[Federal Register Volume 64, Number 146 (Friday, July 30, 1999)]
[Notices]
[Pages 41483-41486]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-19463]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-99-5880]
Hours of Service of Drivers; Exemption Application From Hulcher
Services, Inc.
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice of application for exemption and intent to deny
exemption; request for comments.
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SUMMARY: The FHWA is announcing its preliminary determination to deny
the application of Hulcher Services, Inc. (Hulcher) for an exemption
from the maximum driving time limitations in the Federal Motor Carrier
Safety Regulations (FMCSRs). Hulcher requested an exemption because it
believes the current requirements interfere with the efficiency and
effectiveness of the company's core business, emergency and disaster
response to railroad accidents. The FHWA intends to deny the exemption
because Hulcher did not explain how it would ensure that it could
achieve a level of safety that is equivalent to, or greater than, the
level of safety that would be obtained by complying with the hours-of-
service regulations. Also, Hulcher did not describe the impacts (e.g.,
inability to test innovative safety management control systems, etc.)
it could experience if the exemption is not granted by the FHWA. The
exemption, if granted, would preempt inconsistent State and local
requirements applicable to interstate commerce.
DATES: Comments must be received on or before August 30, 1999.
ADDRESSES: Submit written, signed comments to FHWA Docket No. FHWA-99-
5880, the Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh
Street, SW., Washington, DC 20590-0001. All comments received will be
available for examination at the above address from 9 a.m. to 5 p.m.,
e.t., Monday through Friday, except Federal holidays. Those desiring
notification of receipt of comments must include a self-addressed,
stamped envelope or postcard.
FOR FURTHER INFORMATION CONTACT: Mr. Larry W. Minor, Office of Motor
Carrier Research and Standards, HMCS-10, (202) 366-4009; or Mr. Charles
E. Medalen, Office of the Chief Counsel, HCC-20, (202) 366-1354,
Federal Highway Administration, 400 Seventh Street, SW., Washington,
D.C. 20590-0001. Office hours are from 7:45 a.m. to 4:15 p.m., e.t.,
Monday through Friday, except Federal holidays.
[[Page 41484]]
SUPPLEMENTARY INFORMATION:
Electronic Access
Internet users may access all comments that were submitted to the
Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street, SW.,
Washington, DC 20590-0001, in response to previous rulemaking notices
concerning the docket referenced at the beginning of this notice by
using the universal resource locator (URL): http://dms.dot.gov. It is
available 24 hours each day, 365 days each year. Please follow the
instructions online for more information and help.
An electronic copy of this document may be downloaded using a modem
and suitable communications software from the Government Printing
Office's Electronic Bulletin Board Service at (202) 512-1661. Internet
users may reach the Office of the Federal Register's home page at
http://www.nara.gov/fedreg and the Government Printing Office's
database at: http://www.access.gpo.gov/nara.
Background
On June 9, 1998, the President signed the Transportation Equity Act
for the 21st Century (TEA-21) (Public Law 105-178, 112 Stat. 107).
Section 4007 of TEA-21 amended 49 U.S.C. 31315 and 31136(e) concerning
the Secretary of Transportation's (the Secretary's) authority to grant
exemptions from the FMCSRs for a person(s) seeking regulatory relief
from those requirements. An exemption may be granted for no longer than
two years from its approval date, and may be renewed upon application
to the Secretary. The Secretary must provide the public with an
opportunity to comment on each exemption request prior to granting or
denying the exemption.
The TEA-21 requires the FHWA to publish a notice in the Federal
Register for each exemption requested, explaining that the request has
been filed, and providing the public with an opportunity to inspect the
safety analysis and any other relevant information known to the agency,
and to comment on the request. Prior to granting a request for an
exemption, the agency must publish a notice in the Federal Register
identifying the person or class of persons who will receive the
exemption, the provisions from which the person will be exempt, the
effective period, and all terms and conditions of the exemption. The
terms and conditions established by the FHWA must ensure that the
exemption will likely achieve a level of safety that is equivalent to,
or greater than, the level that would be achieved by complying with the
regulation.
On December 8, 1998, the FHWA published an interim final rule
implementing section 4007 of TEA-21 (63 FR 67600). The regulations at
49 CFR part 381 establish the procedures persons must follow to request
waivers and to apply for exemptions from the FMCSRs, and the procedures
the FHWA will use to process the requests for waivers and applications
for exemptions.
Hulcher's Application for an Exemption
Hulcher applied for an exemption from 49 CFR 395.3, which provides
requirements concerning the maximum driving time for drivers of
commercial motor vehicles (CMVs). A copy of the application is in the
docket identified at the beginning of this notice. Generally, under the
current regulations drivers may not drive more than 10 hours following
eight consecutive hours off duty, or for any period after being on duty
(this includes all driving time, and all time spent working, but not
driving) for 15 hours following eight consecutive hours off duty. In
addition, drivers may not drive after being on duty 60 hours in any
seven consecutive days if the employing motor carrier does not operate
CMVs every day of the week (60-hour rule), or after being on duty 70
hours in any eight consecutive days if the employing motor carrier
operates CMVs every day of the week (70-hour rule). Hulcher requested
an exemption to all these requirements. If such an exemption is not
possible, the company asked that the FHWA consider allowing its drivers
a 24-hour restart for the 70-hour rule--after 24 consecutive hours off-
duty, the driver would be allowed to drive a CMV irrespective of the
number of days used to accumulate the previous 70-hours on-duty.
Hulcher is a business that provides assistance in restoring rail
service after train accidents, including hazardous materials incidents.
The company responds to emergencies, makes necessary repairs to tracks
and switches, and lifts locomotives and rail cars back onto the tracks.
Its equipment is maintained and staged strategically throughout the
United States in order to respond quickly and efficiently to railroad
emergencies. The company claims that its average movement of equipment
and personnel is less than 200 miles. Hulcher states:
The company's dilemma concerns, the interpretation by the
company, of the requirement of [49 CFR 395.3]. The company's heavy
equipment operators, and laborers, who are CDL qualified, and who
would occasionally operate a CMV, maintain a daily record of duty
status. These personnel are performing daily activities other than
operating a CMV, and not necessarily associated with a CMV. The
company's practice has been to record hours worked daily as, on duty
not driving, in a driver's daily log. The duties being performed are
no different from the duties of a heavy equipment mechanic. A
mechanic whose daily job function, and classification, is to
maintain the equipment at a company owned location and, on occasion,
if CDL qualified, may be needed to operate a CMV. The mechanic would
not be required to maintain a drivers daily log record, but would be
accountable for seven days prior plus the day he would be operating
a CMV. Because of this company's current practice to record a duty
status of all hours of every day, available hours of service have
been significantly reduced, when needed to respond to an emergency.
These personnel may go for days or weeks, without operating a CMV,
but may report daily to a company owned facility. These personnel
are relieved from duty daily for at least fifteen hours while at
these locations. In the event, our operators and laborers have been
operating heavy equipment at an emergency scene, they are still
showing a daily record of duty status as ``on duty not driving.''
Once the job is finished, and prior to transporting the equipment
back to it's staged location, all heavy equipment operators, and
laborers, who will be operating a CMV, for the return trip, will be
housed at a motel or other accommodations in order that they be
rested before operating the CMV. Several of these personnel may have
exhausted all available hours of service during this job. In order
to comply with the requirements of [49 CFR 395.3], they will need to
stay off duty up to an additional two days before regaining
available hours. These operators and laborers can not possibly be
more rested after forty-eight or more hours off duty, and away from
home, than after having been off duty for at least twenty-four hours
and returning home, and being placed off duty. The company, and its
Managers, will not allow a fatigued individual to operate any
company owned vehicle, and or equipment.
Hulcher submitted information on its ``Safety Recognition Program''
which is intended to reward employees who have been successful in
preventing both accidents and injuries. One point (each point has a
cash value) is earned for each month that an employee works without
having a ``chargeable'' accident or injury. If the employee has a
chargeable accident or injury he or she loses points (two points per
accident or injury). Bonus points may be earned based on the number of
consecutive months or years the employee works without an incident, and
based on the performance of the employee's division. The information
provided does not show any discernible linkage between the recognition
program and compliance with safety regulations or company guidelines.
[[Page 41485]]
Basis for Preliminary Determination to Deny the Exemption
The FHWA has carefully reviewed Hulcher's application for an
exemption to the maximum driving time regulation and its alternate
request for the use of a 24-hour restart to the 70-hour rule, and does
not believe there is scientific or safety-performance data to support
granting either request. Hulcher has failed to explain how it would
ensure that it could achieve a level of safety that is equivalent to,
or greater than, the level of safety that would be obtained by
complying with the hours-of-service regulations. Also, Hulcher did not
describe the impacts (e.g., inability to test innovative safety
management control systems, etc.) it could experience if the exemption
is not granted by the FHWA. Although Hulcher argues that regulatory
relief is necessary to respond to disasters and emergencies, there is
no discussion of specific disasters or emergencies the company has been
unable to respond to because of compliance with the hours-of-service
regulations. The FHWA does not believe that an exemption granted under
the authority of section 4007 of the TEA-21 is necessary for motor
carriers to obtain regulatory relief to respond to legitimate
emergencies.
The FMCSRs include an emergency relief exemption (49 CFR 390.23)
from almost all of the FMCSRs, including the hours-of-service
requirements, for any motor carrier or driver operating a CMV to
provide relief during an emergency (as defined 1 in 49 CFR
390.5) subject to certain limitations. For regional emergencies, the
emergency relief exemption is effective when an emergency has been
declared by the President, the governor of a State, or their authorized
representatives having authority to declare emergencies; or certain
officials in one of the FHWA's Resource Centers have declared that a
regional emergency exists which justifies an exemption from parts 390
through 399. In the case of local emergencies, the exemption is
effective when an emergency has been declared by a Federal, State or
local government official having authority to declare an emergency; or
certain officials in one of the FHWA's Resource Centers have declared
that a local emergency exists which justifies an exemption from parts
390 through 399 of the FMCSRs.
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\1\ Emergency means any hurricane, tornado, storm (e.g.,
thunderstorm, snowstorm, icestorm, blizzard, sandstorm, etc.), high
water, wind-driven water, tidal wave, tsunami, earthquake, volcanic
eruption, mud slide, drought, forest fire, explosion, blackout or
other occurrence, natural or man-made, which interrupts the delivery
of essential services (such as, electricity, medical care, sewer,
water, telecommunication transmissions) or essential supplies (such
as, food and fuel) or otherwise immediately threatens human life or
public welfare, provided such hurricane, tornado, or other event
results in: a declaration of an emergency by the President, the
governor of a State, or their authorized representatives; or by
certain officials in one of the FHWA's resource centers near the
location in which the emergency occurs; or by other Federal, State,
or local government officials having authority to declare
emergencies.
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The motor carrier or driver is subject to the requirements of parts
390 through 399 upon termination of direct assistance to the regional
or local emergency relief effort. Direct assistance ends when a driver
or CMV is used in interstate commerce to transport cargo not destined
for the emergency relief effort, or when the motor carrier dispatches
the driver or CMV to another location to begin operations in commerce.
When the driver has been relieved of all duty and responsibilities
after providing direct assistance to a regional or local emergency
relief effort, the driver may not operate a CMV in commerce until all
the requirements of Sec. 395.3 are met and, the driver has had at least
24 consecutive hours off-duty when the driver has operated in excess of
the 60-or 70-hour rules.
Hulcher has not explained why the current emergency relief
exemption is not sufficient for the incidents to which they typically
respond. Also, Hulcher has not provided an explanation of what it
considers an emergency or disaster. The FHWA does not believe that the
mere fact that a train accident occurs automatically constitutes an
emergency necessitating regulatory relief from the hours-of-service
rules. The exemption from all of the hours-of-service limits, as
requested by Hulcher, provides no specific terms or conditions that
could be evaluated by the agency beforehand to ensure that an
acceptable level of safety would likely be achieved, nor does it offer
a means to monitor the safety performance of Hulcher's drivers. Under
these circumstances, it would be inappropriate to consider granting the
request.
With regard to Hulcher's alternate request to use a 24-hour restart
to the 70-hour rule, the FHWA is not aware of any research that would
support such an exemption. The agency proposed allowing a 24-hour
restart for all motor carriers in 1992 (57 FR 37504; August 19, 1992).
Nearly 68,000 comments were received in response to the 1992 notice of
proposed rulemaking. Virtually no substantive information was presented
in these comments to support a change in the regulations. Except in
very general terms, the FHWA received little discussion of potential
impacts on highway safety that could result from increasing the
available on-duty hours. The FHWA, therefore, declined to make the
proposed changes to the rule and, on February 3, 1993 (58 FR 6937),
withdrew the proposal and closed the docket.
On November 5, 1996 (61 FR 57252), the FHWA published an advance
notice of proposed rulemaking (ANPRM) on all aspects of the hours-of-
service regulations. The agency indicated that it was nearing the
completion of several research projects and was seeking the results of
other relevant research to consider in revising the hours-of-service
regulations. To assist the FHWA in gathering all pertinent data to make
informed decisions based upon scientific evidence, the FHWA requested
assistance in locating any other relevant information, including
research, operational tests, or pilot regulatory programs conducted
anywhere in the world, that may be used by the agency in developing a
revised regulatory scheme for CMV drivers' hours of service. The agency
has reviewed all the research reports submitted by commenters to the
rulemaking docket, and scientific information obtained through other
sources, and is not aware of any data that would support granting an
exemption to use a 24-hour restart. Copies of all known research
reports, as well as all comments submitted in response to the ANRPM,
are available in FHWA Docket No. FHWA-97-2350.
The FHWA recognizes that Hulcher provides an important service
needed to restore rail service after an accident or incident, but does
not believe it is necessary to grant either a blanket exemption to the
hours-of-service regulations or allow a 24-hour restart to the 70-hour
rule. There are no reported instances of the hours-of-service
regulations preventing Hulcher from responding to a legitimate
emergency or a disaster.
Moreover, the FHWA has considered Hulcher's safety recognition
program and does not believe it is relevant to the application. Based
on the information submitted by Hulcher, drivers are rewarded for not
having ``chargeable'' accidents or injuries or penalized for having
such occurrences. The FHWA does not consider this to be an acceptable
alternative to complying with well-defined, enforceable terms and
conditions that the agency could attempt to evaluate during the period
of the exemption.
Request for Comments
In accordance with 49 U.S.C. 31315 and 31136(e), the FHWA is
requesting public comment from all interested persons on the exemption
application
[[Page 41486]]
from Hulcher. All comments received before the close of business on the
comment closing date indicated at the beginning of this notice will be
considered and will be available for examination in the docket at the
location listed under the address section of this notice. Comments
received after the comment closing date will be filed in the public
docket and will be considered to the extent practicable, but the FHWA
may deny the exemption at any time after the close of the comment
period. In addition to late comments, the FHWA will also continue to
file, in the public docket, relevant information that becomes available
after the comment closing date. Interested persons should continue to
examine the public docket for new material.
Authority: 49 U.S.C. 31136 and 31315; and 49 CFR 1.48.
Issued on: July 22, 1999.
Kenneth R. Wykle,
Federal Highway Administrator.
[FR Doc. 99-19463 Filed 7-29-99; 8:45 am]
BILLING CODE 4910-22-P
