Hours of Service of Drivers: Waste Management Holdings, Inc.; Application for Exemption

Raymond P. Martinez
Federal Motor Carrier Safety Administration
25 October 2018

[Federal Register Volume 83, Number 207 (Thursday, October 25, 2018)]
[Notices]
[Pages 53940-53942]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-23335]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2018-0181]


Hours of Service of Drivers: Waste Management Holdings, Inc.; 
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 Waste Management 
Holdings, Inc.'s (WMH) 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 of coming on duty. The exemption enables all of WMH's drivers who 
operate commercial motor vehicles (CMVs) to collect waste and recycling 
materials to use the short-haul exception but return to their work-
reporting location within 14 hours instead of the usual 12 hours. FMCSA 
has analyzed the exemption application and the public comments and has

[[Page 53941]]

determined that the exemption, subject to the terms and conditions 
imposed, will likely 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 October 22, 2018, through October 
22, 2023.

FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, FMCSA Driver and 
Carrier Operations Division; Telephone: (202) 366-2722; Email: 
MCPSD@dot.gov. 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-2018-0181 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 
decision of the Agency 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 also 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

    Drivers qualifying for the hours-of-service (HOS) short-haul 
exception in 49 CFR 395.1(e)(1) are not required to maintain a record 
of duty status (RODS) on-board the vehicle, provided that 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)(ii)(A)]. A 
driver who exceeds the 12-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). Waste Management Holdings, Inc. (WMH) 
seeks an exemption to allow its drivers to continue to qualify for the 
short-haul exception up to the 14th hour after coming on duty.
    WMH seeks the exemption for approximately 18,000 drivers in 84 
separate subsidiaries or affiliates who operate commercial motor 
vehicles (CMVs) to collect waste and recycling materials. These drivers 
routinely qualify for the short-haul exception in 49 CFR 395.1(e)(1); 
however, occasionally they cannot complete their duty day within 12 
hours.
    WMH states that ELDs delay and distract its drivers working to 
collect waste and recycling materials because they require extensive 
interaction. As a result of frequent stops to pick up trash, WMH's 
drivers are required to interact with the ELD hundreds if not thousands 
of times a day. WMH asserts that ELDs are not designed for such 
operations and that they lack a provision for blocking service time. 
WMH further states that the ELDs do not accurately capture the duty 
status of its drivers. WMH has been actively working with its provider 
to improve ELD performance in this environment, but that progress has 
been limited. WMH also asserts that the excessive driver-ELD 
interaction impacts ``driver safety and the safety of the communities 
we serve.''
    WMH notes that certain CMV drivers may already operate up to 14 
hours without forfeiting short-haul status, for example those in the 
ready-mixed concrete industry [49 CFR 395.1(e)(1)(ii)(B))] or the 
asphalt-paving business [83 FR 3864, January 26, 2018]. WMH asserts its 
operations are similar to these industries because its drivers spend a 
significant portion of their days conducting non-driving duties. WMH 
anticipates no reduction in safety from the exemption requested, and a 
potential for increased safety due to reduced driver distraction.
    WMH cites its fatigue management program as further evidence that 
operations with the exemption in place would equal or exceed the level 
of safety under the current HOS regulations. This program includes the 
use of video event recorders triggered by unusual events suggestive of 
driver fatigue, like aggressive braking, steering, or acceleration. 
When WMH's assessment of the recording indicates that driver fatigue is 
involved, WMH managers may discipline the driver.
    A copy of the WMH's application for exemption is available for 
review in the docket for this notice.

IV. Public Comments

    On July 17, 2018, FMCSA published notice of this application and 
requested public comment (83 FR 33291). The Agency received 54 sets of 
comments to the docket. The Owner-Operator Independent Driver's 
Association (OOIDA), the National Waste and Recycling Association 
(NWRA), Waste Connections, and Republic Services filed comments in 
support of the proposed exemption, along with 19 individuals. The 
International Brotherhood of Teamsters (IBT), the American Federation 
of State, County and Municipal Employees, and the Advocates for Highway 
and Auto Safety (Advocates)/the Trucking Alliance for Driver Safety and 
Security (The Trucking Alliance), along with 25 individuals filed 
comments in opposition to the proposed exemption request. Three 
commenters had no position either for or against the WHM exemption 
request.
    OOIDA wrote in support of the proposed exemption as follows: ``The 
problems associated with the [ELD] mandate have been illustrated by the 
various industries requesting exemptions from its requirements . . . 
These issues are not just felt by WMH drivers . . . OOIDA has long 
argued that ELDs do not accurately or automatically record HOS. OOIDA 
is also aware of troubles other drivers have experienced related to 
devices, including several vendor-wide systems failures, faulty GPS 
tracking, engine disablements, and a worsening truck parking crisis . . 
. Extending the short-haul exception from 12 hours to 14 hours should 
be part of a revised HOS rulemaking that can provide better flexibility 
for drivers and actually improve highway safety.''
    The NWRA also supported the exemption request: ``The adverse 
impacts ELDs and RODS have on safety as it relates to driver 
distraction is particularly troublesome. NWRA

[[Page 53942]]

believes that [current] research supports exempting WMH and all waste 
and recyclable material CMV drivers and companies from complying with 
the ELD mandate and the use of RODS. NWRA supports WMH's request to 
increase the short-haul exemption from 12 hours to 14 hours as has 
already been done for the ready-mix concrete and asphalt industries.''
    Waste Connections supports the proposal to increase the return 
requirement from 12 to 14 hours: ``We will continue to work diligently 
with our drivers to uphold safety as our #1 value and to keep the time 
our drivers spend on the road to a safe duration.''
    The Advocates/The Trucking Alliance filed joint comments in 
opposition to the WMH application for exemption on the grounds ``that 
the application does not meet the statutory and regulatory requirements 
for the exemption. The application fails to justify the need for the 
exemption, provide an analysis of the safety implications of the 
requested exemption, or provide information on the specific 
countermeasures to be undertaken to ensure that the exemption will 
achieve an equivalent or greater level of safety that would be achieved 
absent the exemption. . . Granting exemptions to the HOS or ELD rules 
undermines the federal regulatory HOS scheme, weakens specific safety 
regulations, and complicates enforcement.''
    The IBT opposes the exemption request: ``The idea that increasing 
the allowable driving time for WMH drivers to 14 hours a day will have 
`no adverse safety impact' does not align with the facts. It flies in 
the face of the logic behind there being a cap on allowable driving 
hours at all. Additional time behind-the-wheel leads to greater 
fatigue, which leads to a greater propensity for accidents . . . We 
strongly encourage the Agency to deny the request.''

V. FMCSA Decision

    FMCSA has evaluated WMH's application and the public comments and 
decided to grant the exemption. The Agency believes that the drivers of 
WMH's CMVs used to collect waste and recycling materials who are 
exempted 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 WMH's drivers to use the 
short-haul RODS exception, but with a 14-hour duty period instead of 12 
hours. The Agency granted a similar exemption to the National Asphalt 
Paving Association [January 26, 2018, (83 FR 3864)].
    Regarding the comments from the Advocates, the Trucking Alliance 
and the IBT, the Agency emphasizes that this exemption does not allow 
any additional driving time during the work shift, or allow driving 
after the 14th hour from the beginning of the work shift. In addition, 
drivers are still limited by the weekly 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. As the WMH 
explained, drivers usually return to the work reporting location within 
12 hours, but the demands during certain periods necessitate work 
shifts going beyond 12 hours. Therefore, the exemption application 
should not be construed as a mechanism for the applicant to implement a 
new business model with all of its drivers routinely extending maximum 
work shifts from 12 to 14 hours. It provides limited relief to 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.

VI. Terms and Conditions for the Exemption

     Drivers 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 must return to the work reporting location and be 
released from work within 14 consecutive hours.

Extent of the Exemption

    This exemption is limited to the provisions of 49 CFR 
395.1(e)(1)(ii)(A). 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 motor carrier 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: ``Waste Management Holdings, Inc.''
    (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 
MCPSD@DOT.GOV.

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: October 18, 2018.
Raymond P. Martinez,
Administrator.
[FR Doc. 2018-23335 Filed 10-24-18; 8:45 am]
 BILLING CODE 4910-EX-P