FR Doc 03-23189
[Federal Register: September 11, 2003 (Volume 68, Number 176)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-1999-5880]
Hours of Service of Drivers: Exemption Application From Hulcher
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Denial of application for exemption.
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
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.
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
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-
(4) Hulcher did not explain why the current emergency relief
exemption is insufficient for the incidents to which they typically
(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
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
response personnel concentrating on HOS regulations and paperwork,
thereby diverting attention from the main objective of the incident
(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.
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
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]