[Federal Register Volume 84, Number 225 (Thursday, November 21, 2019)]
[Notices]
[Pages 64391-64393]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-25335]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2019-0085]


Hours of Service of Drivers: National Waste & Recycling 
Association; Application for Exemption

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

ACTION: Notice of final disposition.

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SUMMARY: FMCSA announces its decision to grant the National Waste & 
Recycling Association's (NWRA) request for exemption from the 
requirement that short-haul drivers utilizing the records of duty 
status (RODS) exception return to their normal work-reporting location 
within 12 hours after coming on duty. The exemption enables all NWRA 
members' short-haul commercial motor vehicle (CMV) drivers in the waste 
and recycling industry to return to their work-reporting location 
within 14 hours (instead of the current 12 hours) without losing their 
short-haul status. FMCSA has analyzed the exemption application and the 
public comments and has determined that the exemption, subject to the 
terms and conditions imposed, will achieve a level of safety that is 
equivalent to, or greater than, the level that would be achieved absent 
such exemption.

DATES: This exemption is effective November 21, 2019 through November 
21, 2024.

FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, FMCSA Driver and 
Carrier Operations Division; Telephone: (202) 366-2722; Email: 
[email protected]. If you have questions on viewing or submitting material 
to the docket, contact Docket Services, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION:

I. Public Participation

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to www.regulations.gov and insert 
the docket number, FMCSA-2019-0085 in the ``Keyword'' box and click 
``Search.'' Next, click the ``Open Docket Folder'' button and choose 
the document to review. If you do not have access to the internet, you 
may view the docket online by visiting the Docket Management Facility 
in Room W12-140 on the ground floor of the DOT West Building, 1200 New 
Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., 
e.t., Monday through Friday, except Federal holidays.

II. Legal Basis

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant 
exemptions from certain Federal Motor Carrier Safety Regulations 
(FMCSRs). FMCSA must publish a notice of each exemption request in the 
Federal Register (49 CFR 381.315(a)). The Agency must provide the 
public an opportunity to inspect the information relevant to the 
application, including any safety analyses that have been conducted. 
The Agency must also provide an opportunity for public comment on the 
request.
    The Agency reviews the safety analyses and public comments 
submitted, and determines whether granting the exemption would likely 
achieve a level of safety equivalent to, or greater than, the level 
that would be achieved by the current regulation (49 CFR 381.305). The 
Agency's decision must be published in the Federal Register (49 CFR 
381.315(b)) with the reasons for denying or granting the application 
and, if granted, the name of the person or class of persons receiving 
the exemption, and the regulatory provision from which the exemption is 
granted. The notice must specify the effective period (up to 5 years) 
and explain its terms and conditions. The exemption may be renewed (49 
CFR 381.300(b)).

III. Request for Exemption

    Under FMCSA's current hours-of-service (HOS) rules, drivers are not 
required to prepare and maintain records of duty status (RODS) provided 
that (among other things) they return to their normal work reporting 
location and are released from work within 12 hours after coming on 
duty (49 CFR 395.1(e)(1)). A driver who exceeds the12-hour limit loses 
the short-haul exception and must immediately prepare RODS for the 
entire day, often by means of an electronic logging device (ELD) (49 
CFR 395.8(a)(1)(i)).
    NWRA represents approximately 700 publicly traded and privately-
owned local, regional, national and international waste and recycling 
companies. These motor carriers operate more than 100,000 waste and 
recycling collection trucks and employ an even greater number of 
commercial motor vehicle (CMV) drivers. Its drivers routinely qualify 
for the short-haul HOS exception in 49 CFR 395.1(e)(1); however, on 
occasion, these drivers cannot complete their duty day within 12 hours. 
The drivers may exceed the 12-consecutive hour limitation of the short-
haul exception more than 8 times

[[Page 64392]]

in any 30-day period due to operating restrictions placed upon the 
industry by States and localities, inclement weather, traffic 
congestion, and other circumstances beyond their control. Once they 
exceed the 8-in-30-day threshold, NWRA member companies must install 
electronic logging devices (ELDs) to document driver's duty status (49 
CFR 395.8(a)(1)(iii)(A)(1)). Therefore, NWRA's application for a 14-
hour day would help some of its member carriers to avoid the economic 
burden of installing ELD's when their drivers occasionally exceed the 
8-in-30-day threshold for the ELD mandate.
    NWRA notes that drivers in the asphalt-paving business were granted 
a similar exemption [83 FR 3864, Jan. 26, 2018], and that 49 CFR 
395.1(e)(1)(ii)(B) reflects a statutory exemption for the ready-mixed 
concrete industry. NWRA further notes that FMCSA recently granted one 
of its member companies, Waste Management Holdings, Inc., a similar 
exemption [83 FR 53940, Oct. 25, 2018]. NWRA argues that granting a 
broader exemption would create regulatory consistency across the entire 
waste and recycling industry.
    NWRA asserts that waste and recycling carriers have virtually no 
record of HOS violations in the Agency's Compliance, Safety, 
Accountability (CSA) Safety Measurement System (SMS), nor is there a 
history of CSA interventions for HOS non-compliance by these carriers. 
NWRA adds that there is no equivalent or greater level of safety that 
ELDs would bring to the waste and recycling industry.
    NWRA's application for exemption is available for review in the 
docket referenced at the beginning of the notice.

IV. Public Comments

    On March 29, 2019, FMCSA published notice of this application and 
requested public comment (84 FR 12019). The Agency received 13 comments 
12 supporting the application. Seven of these comments were filed by 
waste and recycling-related companies: Republic Services; Waste 
Connections; Rumpke Waste and Recycling; Kimble Recycling and Disposal; 
Waste Management; Texas Disposal Systems; and the National Demolition 
Association. Five individuals also supported the exemption request. One 
individual opposed the application.
    The primary reasons cited for supporting the NWRA request include 
the following: (1) The HOS of waste and recycling drivers are impacted 
by factors outside their control, which means the driver cannot always 
return to the work reporting location within the allotted 12 hours; (2) 
requiring waste and recycling drivers to log their HOS on an ELD causes 
driver distraction; and (3) granting NWRA's application for exemption 
is consistent with a number of the Agency's prior exemptions, including 
those issued to the National Asphalt Pavement Association and Waste 
Management, Inc.
    Regarding the first reason given in support of the exemption, 
commenters noted that drivers may exceed the 12-hours on-duty 
limitation under the short-haul exemption more than eight times in any 
30-day period due to operating restrictions placed upon the industry by 
the State, localities, inclement weather, traffic congestion, and other 
circumstances beyond their control. With regard to the second reason, 
commenters believe that, from a safety perspective, the following 
burdens and risks are a concern, particularly for residential, short-
haul drivers: An ELD device which requires interaction by the driver 
making frequent duty-status changes, as the trucks stop to pick up 
waste, would cause significant distractions; and maneuvering through 
residential areas, parking lots, among parked cars, pedestrians, and 
other motorists of all types requires the constant, undivided attention 
of drivers, both for their own safety and for that of the general 
public.
    Commenters further argued that granting a broader exemption to NWRA 
member companies--based on prior FMCSA exemptions on this same issue--
would create regulatory consistency across the entire waste and 
recycling industry. One individual commenter opposed the application, 
stating that the Agency should stop granting exemptions like the one 
requested by NWRA.

V. FMCSA Response to Comments

    The Agency agrees with the commenters who support the application 
because the exemption would not allow additional driving time during 
the work shift or allow driving after the 14th hour from the beginning 
of the work shift. In addition, drivers would remain limited by the 
weekly 60- or 70-hour limits and the employer must maintain accurate 
time records concerning the time the driver reports for work each day, 
the total number of hours the driver is on duty each day, and the time 
the driver is released from duty each day. The exemption would provide 
limited relief from the recordkeeping requirements for HOS for short-
haul drivers who find it necessary to exceed the 12-hour limit, which 
impacts the type of HOS records required. The Agency has granted 
similar exemptions to the National Asphalt Paving Association [January 
26, 2018, (83 FR 3864)], the Motion Picture Association of America 
[January 19, 2018, (83 FR 2869)], and Waste Management Holdings, Inc. 
[October 25, 2018 83 FR 53940].

VI. FMCSA Decision

    FMCSA has evaluated NWRA's application and the public comments and 
determined that it is appropriate to grant the request. Because the 
exemption would extend neither the 11-hour driving time allowed during 
the work shift nor the 14-hour driving window applicable to all other 
truck drivers, there is no reason to believe that the safety 
performance of these drivers would be compromised. Drivers would 
continue to return to the normal work-reporting location at the end of 
each work shift and continue to comply with the weekly HOS limits. 
Therefore, the Agency believes that the exempted drivers will likely 
achieve a level of safety that is equivalent to or greater than, the 
level of safety achieved without the exemption [49 CFR 381.305(a)]. The 
exemption will allow drivers for NWRA's member companies to use the 
short-haul RODS exception, but with a 14-hour duty period instead of 12 
hours.
    The FMCSA emphasizes that absent the exemption, these drivers could 
take advantage of the current exemption that allows driver up to eight 
days within a 30-consecutive day period to operate beyond the short-
haul limits without incurring the costs of using ELDs. Through this 
exemption, motor carriers and drivers will have additional flexibility 
to address situations when drivers operate beyond the 12-hour short-
haul limit for more than 8 days during a 30-day period.

VII. Terms and Conditions for the Exemption

     Drivers for member companies of the National Waste & 
Recycling Association must have a copy of this notice or equivalent 
signed FMCSA exemption document in their possession while operating 
under the terms of the exemption. The exemption document must be 
presented to law enforcement officials upon request.
     Drivers for NWRA member companies must return to the work 
reporting location and be released from work within 14 consecutive 
hours.
     NWRA member companies must maintain accurate time records 
concerning the time the driver reports for work each day, the total 
number of

[[Page 64393]]

hours the driver is on duty each day, and, the time the driver is 
released from duty each day.

Extent of the Exemption

    This exemption is limited to the provisions of 49 CFR 
395.1(e)(1)(ii) and is available only to drivers for companies that are 
members of NWRA. These drivers must comply will all other applicable 
provisions of the FMCSRs.

Preemption

    In accordance with 49 U.S.C. 31315(d), during the period this 
exemption is in effect, no State shall enforce any law or regulation 
that conflicts with or is inconsistent with this exemption with respect 
to a firm or person operating under the exemption.

Notification to FMCSA

    Any NWRA member company utilizing this exemption must notify FMCSA 
within 5 business days of any accident (as defined in 49 CFR 390.5), 
involving any of the motor carrier's CMVs operating under the terms of 
this exemption. The notification must include the following 
information:
    (a) Identity of the exemption: ``National Waste & Recycling 
Association;''
    (b) Name of operating motor carrier;
    (c) Date of the accident;
    (d) City or town, and State, in which the accident occurred, or 
closest to the accident scene;
    (e) Driver's name and license number;
    (f) Vehicle number and State license number;
    (g) Number of individuals suffering physical injury;
    (h) Number of fatalities;
    (i) The police-reported cause of the accident;
    (j) Whether the driver was cited for violation of any traffic laws, 
motor carrier safety regulations; and
    (k) The driver's total driving time and total on-duty time period 
prior to the accident.
    Reports filed under this provision shall be emailed to 
[email protected].
Termination
    FMCSA does not believe the drivers covered by this exemption will 
experience any deterioration of their safety record.
    Interested parties or organizations possessing information that 
would otherwise show that any or all of these motor carriers are not 
achieving the requisite statutory level of safety should immediately 
notify FMCSA. The Agency will evaluate any information submitted and, 
if safety is being compromised or if the continuation of this exemption 
is inconsistent with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA will 
immediately take steps to revoke the exemption of the company and 
drivers in question.

    Issued on: November 15, 2019.
Jim Mullen,
Deputy Administrator.
[FR Doc. 2019-25335 Filed 11-20-19; 8:45 am]
BILLING CODE 4910-EX-P