[Federal Register Volume 68, Number 176 (Thursday, September 11, 2003)]
[Notices]
[Pages 53630-53631]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-23189]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-1999-5880]


Hours of Service of Drivers: Exemption Application From Hulcher 
Services, Inc.

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Denial of application for exemption.

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SUMMARY: The FMCSA denies the petition of Hulcher Services, Inc. 
(Hulcher) for an exemption from the maximum driving time limitations in 
the Federal Motor Carrier Safety Regulations (FMCSRs). Hulcher argues 
that an exemption would ensure its ability to respond to railroad 
accidents and help restore service. The FMCSA disagrees. We deny the 
exemption because Hulcher did not explain how granting the exemption 
would achieve a level of safety that is equivalent to, or greater than, 
the level of safety achieved by complying with FMCSR driving time 
limitations.

DATES: The denial of this petition is effective on September 11, 2003.

FOR FURTHER INFORMATION CONTACT: Ms. Mary M. Moehring, Driver and 
Carrier Operations Division, Office of Bus and Truck Standards and 
Operations, MC-PSD, (202) 366-4001, Federal Motor Carrier Safety 
Administration, 400 Seventh Street, SW., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

Background

Waivers and Exemptions

    On June 9, 1998, the President signed the Transportation Equity Act 
for the 21st Century (TEA-21) (Pub. L. 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 authority to grant exemptions from the 
FMCSRs. An exemption may be granted for no longer than two years from 
its approval date, and may be renewed upon application to the 
Secretary. On December 8, 1998, the Federal Highway Administration 
(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 to be followed to request waivers and to apply for 
exemptions from the FMCSRs, and the procedures used to process them.

Notice of Application

    On July 30, 1999 FHWA published a Notice of application from 
Hulcher requesting an exemption from 49 CFR 395.3 which provides 
requirements concerning the maximum driving time for drivers of 
commercial motor vehicles (CMVs) (64 FR 41483). Hulcher further 
requested that if this exemption was not possible, the agency permit 
its drivers a 24-hour restart period for the 70 hour rule after 24 
consecutive hours off-duty, irrespective of the number of days used to 
accumulate the previous 70-hours on-duty. In that same Notice, FHWA 
announced its intent to deny the application for exemption and 
requested comments.
    Hulcher provides assistance in restoring rail service after train 
accidents. 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 states that its 
average movement of equipment and personnel is less than 200 miles.

Preliminary Determination To Deny the Exemption

    In the Notice of preliminary determination to deny the exemption, 
FHWA stated its intent to deny because there was no scientific or 
safety-performance data to support it. In particular, FHWA noted:
    (1) Hulcher had 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 (HOS) regulations.
    (2) Hulcher failed to describe the impacts it could experience if 
the exemption was not granted, such as the inability to test new safety 
management control systems.
    (3) Hulcher failed to describe any emergencies that the company has 
been unable to respond to because of compliance with the hours-of-
service regulations.
    (4) Hulcher did not explain why the current emergency relief 
exemption is insufficient for the incidents to which they typically 
respond.
    (5) Hulcher did not provide specific terms or conditions that the 
agency could evaluate beforehand to ensure that an acceptable level of 
safety would be achieved, nor did it provide a means to monitor the 
drivers' safety performance. FHWA stated that Hulcher's safety 
recognition program was not an acceptable alternative to complying with 
well-defined terms and conditions that the agency could evaluate during 
the period of the exemption.
    (6) With regard to the request for the 24-hour restart period, FHWA 
noted that it was unaware of any data that would support granting such 
an exemption.

Discussion of Comments

    The FMCSA received five comments to the notice to propose to deny 
Hulcher's application for exemption. Three comments supported the 
intent to deny, one was opposed, and one generally favored a relaxation 
of the HOS rules.
    Hulcher, in its response to the intent to deny, stated:
    (1) It had not encountered instances in which the HOS prevented it 
from responding to an emergency, but was being proactive in addressing 
what it viewed as a potential problem of being delayed in route;
    (2) It has an exceptionally strong and comprehensive company safety 
culture, including daily safety meetings, as well as safety meetings 
before and after returning from an incident. Hulcher further stated 
that it would never consider allowing one of its employees to operate a 
CMV without adequate rest;
    (3) FMCSA's failure to grant the exemption may result in emergency

[[Page 53631]]

response personnel concentrating on HOS regulations and paperwork, 
thereby diverting attention from the main objective of the incident 
response;
    (4) Operation of CMVs is subordinate to its primary business, and 
most movements are 200 miles or less;
    (5) States routinely issue special emergency permits for the 
movement of Hulcher's oversize or overweight loads, and by issuance of 
these permits, States have declared the move an emergency;
    (6) It wants to receive the same consideration in the FMCSRs as Oil 
Field Operations, Ground Water Well Drilling Operations, Agricultural 
Operations, and Construction Materials, and Equipment.
    Ms. Rachelle Biggs stated a general observation that the current 
system of HOS regulation is unduly complex and the regulations should 
be changed to provide for an 80-hour/8-day maximum on-duty period and a 
total restart after 24 hours off-duty. The comment did not specifically 
identify whether Hulcher should be granted or denied its petition.
    The Brotherhood of Maintenance of Way Employees (BMWE) supported 
the intent to deny on the basis that Hulcher is routinely contracted by 
railroads in the case of a derailment or other railroad accident, and 
that these situations do not meet the definition of emergency in 49 CFR 
390.5. In addition, BMWE stated its concern that the exemption request 
would be used most frequently, not in responding to an emergency, but 
rather, subsequent to the employees' cessation of work as laborers and 
heavy equipment operators. BWME saw the exemption as a means to get 
more hours of on-duty time rather than a legitimate exemption which 
permitted workers to get to the site of an emergency. BMWE submits that 
an exemption from the HOS regulations for employees who have often 
worked under extreme physical and environmental conditions without 
sufficient rest is contrary to public safety.
    The International Brotherhood of Teamsters (IBT), while supporting 
the intent to deny, stated its belief that the agency does not have the 
statutory authority to grant exemptions from HOS regulations.
    The Advocates for Highway and Auto Safety (AHAS) also supported the 
denial, stating that Hulcher had failed to demonstrate that its 
company's services required elimination of the maximum driving and on-
duty hours, or of the minimum off-duty period following the exhaustion 
of available driving and total duty hours at the end of a seven- or 
eight-day driver tour of duty. The AHAS also noted its objection to the 
agency's issuance of notices requesting public comment on exemption 
applications that include an indication of the agency's 
predetermination on the merits.

FMCSA Decision

    The FMCSA has carefully reviewed Hulcher's application for an 
exemption from the HOS regulations and the comments on the request for 
the exemption, and has decided to deny the application. As stated in 
the proposal to deny the application, Hulcher has not demonstrated how 
it will meet the standard of an exemption, and achieve a level of 
safety equal to, or greater than, the level of safety that would be 
achieved by complying with the HOS regulations.
    The fact that Hulcher has a safety program that it believes exceeds 
the industry norm is, in itself, an insufficient reason to grant an 
exemption. The fact that States grant permits for oversize or 
overweight loads, and may, in some cases, designate these permits as 
emergency permits, does not constitute an emergency as defined in 49 
CFR parts 390.5 and 393.23. In fact, the issuance of oversize and 
overweight permits is a routine matter for most State highway and 
transportation departments.
    Hulcher has not demonstrated that the current emergency relief 
provisions of 49 CFR 393.23 are inadequate to meet incidents to which 
they typically respond. In fact, Hulcher indicates that it has not had 
any difficulty to date, but is concerned about potential problems that 
might occur in the future. In the absence of any defined need, it would 
be inappropriate to grant the request.
    Specific statutory exemptions granted to several industries by 
Congress in section 345 of the National Highway Designation Act of 1995 
(Pub. L. 104-59) (109 Stat. 568, 613) are not relevant to Hulcher's 
request for an exemption under 49 CFR 381.310.
    With regard to the comments of the AHAS on the agency's issuance of 
notices that include preliminary determinations, the FMCSA has 
discontinued that practice.
    Finally, the FMCSA notes that on April 28, 2003, it published new 
hours-of-service (HOS) regulations for commercial motor vehicle drivers 
(68 FR 22456). The compliance date for the new regulations is January 
4, 2004. Under the new regulations, drivers of CMVs will be allowed to 
restart the 60-or 70-hour ``clock'' after taking 34 or more consecutive 
hours off-duty. This provision may provide some of the flexibility 
Hulcher sought in its application.

    Issued on: September 8, 2003.
Pamela M. Pelcovits,
Office Director, Policy, Plans, and Regulation.
[FR Doc. 03-23189 Filed 9-10-03; 8:45 am]
BILLING CODE 4910-EX-P