Hours of Service of Drivers: Kimble Recycling & Disposal, Inc.; Application for Exemption

Jim Mullen
Federal Motor Carrier Safety Administration
21 November 2019

[Federal Register Volume 84, Number 225 (Thursday, November 21, 2019)]
[Notices]
[Pages 64401-64403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-25339]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2019-0106]


Hours of Service of Drivers: Kimble Recycling & Disposal, 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 Kimble Recycling & 
Disposal, Inc.'s (KRD) request for an exemption from the 12-hour limit 
of the hours-of-service (HOS) short-haul exception. The exemption 
enables all KRD'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 without losing their short-haul status. 
FMCSA has analyzed the application and the public comments and has 
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 November 21, 2019 and expires 
November 21, 2024.

ADDRESSES: 
    Docket: For access to the docket to read background documents or 
comments, go to www.regulations.gov at any time or visit Room W12-140 
on the ground level of the West Building, 1200 New Jersey Avenue SE, 
Washington, DC, between 9 a.m. and 5 p.m., ET, Monday through Friday, 
except Federal holidays. The on-line FDMS is available 24 hours each 
day, 365 days each year.
    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits 
comments from the public to better inform its rulemaking process. DOT 
posts these comments, without edit, including any personal information 
the commenter provides, to www.regulations.gov, as described in the 
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.

FOR FURTHER INFORMATION CONTACT: Ms. Pearlie Robinson, FMCSA Driver and 
Carrier Operations Division; Office of Carrier, Driver and Vehicle 
Safety Standards; Telephone: 202-366-4325. Email: MCPSD@dot.gov. If you 
have questions on viewing or submitting material to the docket, contact 
Docket Services, telephone (202) 366-9826.

[[Page 64402]]


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-2019-0106 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 provide an opportunity for public comment on the 
request.
    The Agency reviews 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 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 specify the effective period (up 
to 5 years) and explain the terms and conditions of the exemption. The 
exemption may be renewed (49 CFR 381.300(b)).

III. Request for Exemption

    KRD seeks an exemption for approximately 320 drivers who operate 
CMVs to collect waste and recycling materials. These drivers qualify 
routinely for the short-haul exception in 49 CFR 395.1(e)(1); however, 
occasionally they cannot complete their duty day within 12 hours. KRD 
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.
    KRD states that ELDs delay and distract its drivers working to 
collect waste and recycling materials because they require excessive 
interaction. The exemption application states that, because of frequent 
stops to pick up trash, its drivers are required to interact with the 
ELD ``hundreds if not thousands of times a day.'' KRD asserts that ELDs 
are not designed to accommodate operations such as theirs.
    KRD notes that certain short-haul CMV drivers already operate up to 
14 hours without forfeiting short-haul status. Drivers in the ready-
mixed concrete industry enjoy a statutory exemption [49 CFR 
395.1(e)(1)(ii)(B)], and FMCSA has granted an exemption for the 
asphalt-paving business [83 FR 3864, Jan. 26, 2018]. KRD asserts that 
its operations are similar to these industries as its drivers spend a 
significant portion of their days conducting non-driving duties.

IV. Method To Ensure an Equivalent or Greater Level of Safety

    In its application, KRD lists the following fatigue management 
programs and processes it would implement were the exemption granted: 
Observation Program; Routeware DriveCam Video Event Recorder Program; 
and the KRD Fatigued Driver Process. KRD noted that it incorporated 
elements of the North American Fatigue Management Program into its 
Fatigued Driver Process. Details of these plans are provided in KRD's 
application for exemption, available for review in the docket for this 
notice.

V. Public Comments

    On May 28, 2019, FMCSA published notice of this application and 
requested public comment [84 FR 24592]. The Agency received six 
comments. One commenter, Mr. Chuck Simmons, supported the exemption, 
writing that ``First and foremost, this is a company that takes Safety, 
and specifically fatigue management, very seriously. In fact, they `get 
it' far more than many other motor carriers that I've encountered in my 
17 years in this industry. It seems readily apparent that there would 
be no adverse safety impact by granting the requested exemption.''
    Three commenters opposed the exemption; KRD wrote responses to 
those commenters. Mr. Michael Millard wrote, ``As local 100-air-mile 
radius drivers Kimble Recycling and Disposal, Inc., has no SMS data to 
determine HOS compliance.'' Mr. Millard asserted that KRD operated 
wholly in intrastate commerce and was not subject to the hours of 
service rules for interstate commerce. Mr. Millard concluded his 
comments by saying, ``Based on roadside inspection data I do not 
believe it is warranted for the FMCSA to issue an exemption as 
requested.''
    In response to Mr. Millard's comments, KRD explained that it 
operates in interstate commerce and serves customers in both West 
Virginia and Ohio and that its SMS data is available on the internet. 
KRD indicated that it has no HOS violations.
    The Commercial Vehicle Safety Alliance (CVSA) neither opposed nor 
supported the application. CVSA wrote that ``When considering this 
exemption request, FMCSA should consider its impacts on safety and the 
enforcement process.'' CVSA explained that exemptions have the 
potential to undermine safety while complicating the enforcement 
process. Additionally, CVSA said, ``If this exemption is granted, all 
drivers, managers, dispatchers and relevant staff should be required to 
complete the North American Fatigue Management Program training 
developed in partnership by FMCSA, Transport Canada and industry 
stakeholders as a comprehensive approach for managing fatigue. Required 
participation in the program will aid in mitigating any impact on 
safety additional exposure to fatigue causes.''

VI. FMCSA Response and Decision

    FMCSA has evaluated KRD's application and the public comments and 
decided to grant the exemption. The Agency believes that KRD's CMV 
drivers collecting 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 KRD's drivers to use the short-haul RODS 
exception, but with a 14-hour duty period instead of 12 hours. The 
Agency has granted similar exemptions to the National Asphalt Pavement 
Association, Inc. [83 FR 3864, Jan. 26, 2018] and Waste Management 
Holdings, Inc. [83 FR 53940, Oct. 25, 2018]. FMCSA has no evidence that 
the safety of their operations has deteriorated.
    Regarding the recommendation from CVSA for KRD's relevant staff to 
complete the North American Fatigue Management Program training, KRD 
reported in its application that it has reviewed and incorporated 
elements of the program into its Fatigued Driver Process.
    The Agency emphasizes that this exemption does not allow any 
additional driving time during the work shift nor does it allow driving 
after the

[[Page 64403]]

14th hour from the beginning of the work shift. Drivers remain 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 KRD 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 its drivers routinely extending their maximum work shifts from 12 
to 14 hours. The exemption 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.

VII. Terms and Conditions for the Exemption

     KRD drivers must have a copy of this notice in their 
possession while operating under the terms of the exemption. This 
notice serves as the exemption document and must be presented to law 
enforcement officials upon request.
     KRD 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). KRD 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: ``Kimble Recycling & Disposal, 
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.

VIII. 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 
this motor carrier is not achieving the requisite statutory level of 
safety should immediately notify FMCSA. FMCSA will take all steps 
necessary to protect the public interest, including revocation of the 
exemption. The FMCSA will revoke the exemption immediately for failure 
to comply with its terms and conditions.

    Issued on: November 14, 2019.
 Jim Mullen,
 Deputy Administrator.
[FR Doc. 2019-25339 Filed 11-20-19; 8:45 am]
BILLING CODE 4910-EX-P