82_FR_49085 82 FR 48883 - Hours of Service; United Parcel Service Inc. Application for an Exemption From Certain Electronic Logging Device Requirements

82 FR 48883 - Hours of Service; United Parcel Service Inc. Application for an Exemption From Certain Electronic Logging Device Requirements

DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration

Federal Register Volume 82, Issue 202 (October 20, 2017)

Page Range48883-48887
FR Document2017-22833

The Federal Motor Carrier Safety Administration (FMCSA) announces its decision to grant part of United Parcel Service Inc.'s (UPS) application for a limited 5-year exemption from various provisions of the mandate to use electronic logging devices (ELD). FMCSA published a final rule in December 2015 that requires most motor carriers and drivers who are currently required to prepare and retain paper records of duty status (RODS) to use ELDs for hours-of-service (HOS) compliance effective December 18, 2017. Among other things, the December 2015 rule requires (1) certain data elements to be automatically recorded when an authorized user logs in or out of an ELD or changes duty status, and (2) a driver's indication of special driving status to reset to none (except in the case of personal use) if the ELD or commercial motor vehicle's (CMV) engine goes through a power-off cycle. FMCSA grants exemptions to allow (1) all motor carriers and drivers that use portable, driver-based ELDs to record engine data only when the driver is in a CMV and the engine is powered, and (2) all motor carriers to configure an ELD with a yard-move mode that does not require a driver to re-input yard-move status every time the tractor is powered off. The Agency has determined that granting these temporary exemptions would not have an adverse impact on safety, and that a level of safety equivalent to or greater than the level of safety provided by the regulation would be maintained.

Federal Register, Volume 82 Issue 202 (Friday, October 20, 2017)
[Federal Register Volume 82, Number 202 (Friday, October 20, 2017)]
[Notices]
[Pages 48883-48887]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-22833]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2017-0054]


Hours of Service; United Parcel Service Inc. Application for an 
Exemption From Certain Electronic Logging Device Requirements

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

ACTION: Notice of final disposition.

-----------------------------------------------------------------------

SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) 
announces its decision to grant part of United Parcel Service Inc.'s 
(UPS) application for a limited 5-year exemption from various 
provisions of the mandate to use electronic logging devices (ELD). 
FMCSA published a final rule in December 2015 that requires most motor 
carriers and drivers who are currently required to prepare and retain 
paper records of duty status (RODS) to use ELDs for hours-of-service 
(HOS) compliance effective December 18, 2017. Among other things, the 
December 2015 rule requires (1) certain data elements to be 
automatically recorded when an authorized user logs in or out of an ELD 
or changes duty status, and (2) a driver's indication of special 
driving status to reset to none (except in the case of personal use) if 
the ELD or commercial motor vehicle's (CMV) engine goes through a 
power-off cycle. FMCSA grants exemptions to allow (1) all motor 
carriers and drivers that use portable, driver-based ELDs to record 
engine data only when the driver is in a CMV and the engine is powered, 
and (2) all motor carriers to configure an ELD with a yard-move mode 
that does not require a driver to re-input yard-move status every time 
the tractor is powered off. The Agency has determined that granting 
these temporary exemptions would not have an adverse impact on safety, 
and that a level of safety equivalent to or greater than the level of 
safety provided by the regulation would be maintained.

FOR FURTHER INFORMATION CONTACT: Mrs. Amina Dines, Vehicle and Roadside 
Operations Division, Office of Carrier, Driver, and Vehicle Safety, MC-
PSV, (202) 366-2782, [email protected], Federal Motor Carrier Safety 
Administration, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

Background

    Section 4007 of the Transportation Equity Act for the 21st Century 
(TEA- 21) [Pub. L. 105-178, 112 Stat. 107, 401, June 9, 1998] amended 
49 U.S.C. 31315 and 31136(e) to provide authority to grant exemptions 
from the Federal Motor Carrier Safety Regulations (FMCSRs). On August 
20, 2004, FMCSA published a final rule (69 FR 51589) implementing 
section 4007. Under this rule, FMCSA must publish a notice of each 
exemption request in the Federal Register (49 CFR 381.315(a)). The 
Agency must provide the public with 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 the public comments 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(a)).
    The decision of the Agency must be published in the Federal 
Register (49 CFR 381.315(b)). If the Agency denies the request, it must 
state the reason for doing so. If the decision is to grant the 
exemption, the notice must specify the person or class of persons 
receiving the exemption and the regulatory provision or provisions from 
which an exemption is granted. The notice must specify the effective 
period of the exemption (up to 5 years) and explain the terms and 
conditions of the exemption. The exemption may be renewed (49 CFR 
381.315(c) and 49 CFR 381.300(b)).

UPS Application for Exemption

    UPS applied for an exemption from various provisions of 49 CFR part 
395 regarding the use of ELDs. Specifically, UPS requested a temporary 
exemption (1) to allow an alternative ELD phase-in method for fleets 
using compliant automatic on-board recording devices (AOBRDs); (2) from 
the requirement that an ELD automatically record certain data elements 
upon a duty-status change when a driver is not in the vehicle; (3) to 
allow ELDs to be configured with a special driving mode for yard moves 
that does not require the driver to re-input yard move status every 
time the tractor is powered off; and (4) to allow vehicle movements of 
less than one mile on UPS property by non-CDL UPS drivers to be 
annotated as ``on property--other.''
    On June 9, 2017, FMCSA published notice of the UPS application and 
requested public comment (82 FR 26832). FMCSA received 55 comments, 
most of which opposed the exemption on the ground that UPS should 
comply with the ELD rule which it had actively supported. Where 
comments focused on a particular issue, they are addressed in the 
discussions below.

1. Alternative Method of ELD Phase-In

Background
    Subject to limited exceptions, section 395.8(a)(1)(i) of the FMCSRs 
requires motor carriers to install and use ELDs that comply with the 
technical specifications prescribed for those devices no later than 
December 18, 2017. However, section 395.8(a)(1)(ii) allows a motor 
carrier that installs, and requires its drivers to use, compliant 
AOBRDs before the December 18, 2017, compliance date to continue to use 
those AOBRDs until December 16, 2019, thereby providing a 2-year 
grandfather period for devices installed prior to the compliance date.
UPS Request
    In its application, UPS states:

    UPS firmly believes that the best way to transition its 
operations from AOBRDs to ELDs will be on a site-by-site basis. UPS 
currently plans to convert approximately 2800 tractors at 
approximately 35 sites from AOBRDs to ELDs in 2017, and plans to 
convert the remaining tractors (at 141 sites) during 2018. Deploying 
ELDs by site will minimize the significant costs, including training 
costs, related to moving the fleet and workforce from AOBRDs to 
ELDs. A site-by-site approach will also minimize the risk of errors 
and confusion that would be encountered if two different types of 
devices were used simultaneously at a given location.

[[Page 48884]]

    The difficulty large motor carriers like UPS face is with 
FMCSA's decision to permit grandfathering only on a vehicle, and not 
a fleet-wide basis. UPS plans to purchase approximately 1530 new 
tractors in 2018, i.e., after the grandfathering deadline but before 
the ELD implementation date for grandfathered vehicles. Of these, 
1061 will replace existing tractors (the majority of which are 
currently using AOBRDs) that have reached the end of life, and 469 
will be new tractors to accommodate projected growth. These new 
tractors will be delivered to UPS facilities across the country 
consistent with operational needs. At a typical location, 
approximately 12 percent of tractors would be newly purchased.
    If no temporary exemption were granted, large carriers would be 
required to use ELDs in all of the new tractors delivered after 12/
18/2017. The result would be that UPS facilities that had not been 
converted as of that date would have both vehicles using AOBRDs and 
vehicles using ELDs at the same time.

    Based on the above, UPS requests an exemption from section 
395.8(a)(1)(i) to allow the installation of AOBRDs on new truck 
tractors delivered to UPS sites after the December 18, 2017 compliance 
date, where the existing vehicles at that site are equipped with 
compliant AOBRDs. UPS believes that using a site-based approach, as 
described above, will (1) eliminate confusion on the part of drivers 
and other personnel that would result from using both ELDs and AOBRDs 
at the same location, and (2) avoid operational and potential 
enforcement issues that could arise from a driver using different types 
of devices to record hours of service over a given period of time. UPS 
states that under the proposed temporary exemption, all vehicles will 
be fully ELD-compliant by the expiration date of the AOBRD grandfather 
period specified in section 395.8(a)(1)(ii), December 16, 2019.
Public Comments
    The Agency received four comments, two supporting the proposed 
alternative method of ELD phase-in and two opposing it.
    Saucon Technologies (Saucon), an ELD developer, states that 
``[c]ompanies who have been using AOBRD devices for years before the 
ELD final rule was published have been operating `ahead of the safety 
curve,' using technology identified by FMCSA as a safety enhancer, 
before being required to do so. Requiring these early adopters of 
safety technology to have a `mixed fleet' of AOBRD and ELD will present 
a hardship to these operators.'' Specifically, Saucon contends that for 
fleets required to operate with both AOBRDs and ELDs, ensuring (1) that 
drivers are properly trained on both systems, and (2) that 
administrators properly manage the auditing of logs on both systems 
``creates a burden for these operators with little to no additional 
safety benefit resulting from that burden.''
    Saucon also states that since ELD manufacturers not only provide 
the product (AOBRD and ELD), but also the back-office system support 
for operators transitioning to using ELDs in a compliant manner, 
``[h]aving to support the same customer through two regulations within 
their fleet would burden ELD manufacturers as much as the operators.''
    Both Saucon and YRC Worldwide (YRCW), a holding company for a 
portfolio of less-than-truckload companies including YRC Freight, YRC 
Reimer, Holland, Reddaway, and New Penn, commented that allowing a 
complete transition from AOBRDs to ELDs will provide for more 
operational accuracy than having drivers operate some vehicles equipped 
with AOBRDs and others equipped with ELDs.
    The Owner-Operator Independent Drivers Association (OOIDA), a trade 
association representing the views of small-business truckers and 
professional truck drivers in all 50 states and Canada, stated that 
UPS's proposed alternative phase-in period ``is a drastic change from 
their 2011 comments that believed, `a single compliance date is 
superior to any phase-in schedule because it minimizes the potential 
for confusion.'' However, OOIDA states that UPS raised ``a credible 
concern involving drivers that will be forced to use different vehicles 
with both Automatic On-Board Recorders (AOBR) and ELDs,'' and that the 
``lack of specifics regarding interoperability is leading to great 
uncertainty among all stakeholders and will cause confusion during 
roadside inspections for drivers, enforcement, and ELD and AOBRD 
vendors.'' Despite the above, OOIDA states that ``UPS does not 
explicitly explain how they would achieve a level of safety that is 
equivalent to or greater than, the level of safety that would be 
obtained by complying with the regulation,'' and that ``[a]n exemption 
should not be granted merely because it is inconvenient or it puts a 
burden on the petitioner.''
    An individual noted that UPS should have better prepared for this 
deadline, especially since it is the largest trucking entity in the 
United States, and has been aware of this mandate since its inception.
FMCSA Decision
    Section 395.8(a)(1)(ii) of the FMCSRs states, ``A motor carrier 
that installs and requires a driver to use an automatic on-board 
recording device in accordance with Sec.  395.15 before December 18, 
2017 may continue to use the compliant automatic on-board recording 
device no later than December 16, 2019.'' FMCSA has published a series 
of frequently asked questions (FAQ) on its Web site intended to provide 
plain language information regarding the December 2015 ELD rule. These 
FAQs do not modify or replace applicable FMCSA regulations or 
standards. Specifically with respect to the UPS request for an 
alternative phase-in for fleets using compliant AOBRDs, Question 7 of 
the ``Voluntary Usage and Compliance Phases'' section of the FAQs 
states:

    Question: According to Sec.  395.8, if a motor carrier 
``installs and requires a driver to use an AOBRD. . .before December 
18, 2017 they may continue to use the AOBRD until December 16, 
2019.'' Does this mean I can move an AOBRD from one vehicle to 
another after December 18, 2017?
    Response: If your operation uses AOBRDs before December 18, 
2017, and you replace vehicles in your fleet you can install an 
AOBRD that was used in the previous CMV. However, you may not 
purchase and install a new AOBRD in a vehicle after December 18, 
2017.

    Thus, the 1,061 new tractors that UPS plans to purchase after the 
December 18, 2017 ``grandfathering'' deadline to replace existing 
tractors that are currently equipped with AOBRDs will be permitted to 
utilize the AOBRDs from the replaced vehicles until December 16, 2019. 
However, the remaining 469 new tractors that will be purchased to 
accommodate projected growth will be required to be equipped with ELDs 
in accordance with section 395.8(a)(1)(i).
    FMCSA decided not to require full interoperability between all ELDs 
(and AOBRDs) in the final rule because while full interoperability 
would have some benefits, it would also be complicated and costly. 
FMCSA recognizes that a motor carrier, including UPS, may need to 
support a mix of both AOBRD and ELD systems within its fleet for a 
limited time until the carrier can fully implement ELDs in all its 
vehicles. As noted in the final rule, if a driver uses multiple ELD or 
AOBRD systems that are not compatible (e.g., the data file from one 
system cannot be uploaded into the other system), the driver must 
either manually enter the missing duty status information or provide a 
printout from the other system so that an accurate accounting of the 
duty status for the current and previous 7 days is available for 
authorized safety officials.
    Based on the above, FMCSA denies UPS's request to allow an 
alternative

[[Page 48885]]

ELD phase-in method for fleets using compliant AOBRDs.

2. Recording of Data Elements When a Driver Has a Change in Duty Status 
or Logs In/Logs Out of an ELD While Outside the Vehicle

Background
    An ELD automatically records the following data elements: (1) Date; 
(2) Time; (3) CMV geographic location information; (4) Engine hours; 
(5) Vehicle miles; (6) Driver or authenticated user identification 
data; (7) Vehicle identification data; and (8) Motor carrier 
identification data. In addition, an ELD is required to automatically 
record a number of the data elements specified above at certain events, 
to include (1) when a driver indicates a change of duty status under 
section 395.24(b) (see section 395.26(c)), and (2) when an authorized 
user logs into or out of an ELD (see section 395.26(g)).
UPS Request
    In its application, UPS states:

    All UPS drivers are covered under a bargaining unit agreement 
between the Teamsters Union and UPS. Under that agreement, UPS 
drivers are, for the most part, paid by the hour. UPS drivers use 
electronic devices and punch in for work on those devices while they 
are still in the dispatch building. They then walk to their vehicle 
and inspect the vehicle prior to moving the tractor. Upon 
implementation of the ELD rule UPS will be using FMCSR-compliant 
portable, driver-based ELD devices.
    Similarly, at the end of a work day all UPS drivers walk from 
their vehicles to a UPS dispatch office and then clock out using the 
AOBRD devices once all work is done. UPS drivers perform many other 
duties away from the tractor including training, attending safety 
meetings and working in the facility. In a typical UPS location, UPS 
drivers spend an average of 24 minutes prior to entering the vehicle 
and 22 minutes after exiting the vehicle on the clock. 
Significantly, in many situations the vehicle an employee will be, 
or was, using will be occupied by another employee while the 
employee is still on duty for UPS.
    UPS cannot both comply with the requirement that an ELD record 
tractor data when a driver logs in or out (or otherwise changes duty 
status while outside of the vehicle) and also comply with our 
bargaining unit contract and pay guidelines for our drivers.

    UPS requests an exemption from the requirement to record the 
specific data elements identified in sections 395.26(c) and 395.26(g) 
if the driver is not in the vehicle when (1) the driver indicates a 
change of duty status, or (2) an authorized user logs into or out of an 
ELD, respectively. Instead, to assure accurate recording of on-duty, 
not driving time, UPS proposes that it will ``systematically annotate 
that the driver was performing other work.'' UPS believes that the 
proposed exemption ``will have no impact on the recordation of driving 
time'' as all required vehicle data will be recorded when the driver is 
in the vehicle, and ``the tractor data that would not be recorded when 
the driver is not in the vehicle is not relevant to assessing the 
accurate recordation of `on-duty, not driving' time.''
Public Comments
    The Agency received one comment in support of allowing motor 
carriers that use portable, driver-based ELDs to record engine data 
only while the driver is in a CMV. YRCW stated that ``[s]imilar to UPS, 
drivers at our operating companies are covered by a collective 
bargaining agreement. Our drivers perform a variety of other duties as 
they begin and end their day at a company terminal. We support the UPS 
request for an annotation `driver was performing other work.'''
FMCSA Decision
    Because the December 2015 rule provides a performance-based 
standard for ELDs, motor carriers have a number of options to choose 
from the market place of ELD providers. This includes portable units 
that stay with the driver, as well as units that are installed in and 
stay with the vehicle. In its application, UPS notes that ``[u]pon 
implementation of the ELD rule UPS will be using FMCSR-compliant 
portable, driver-based ELD devices.''
    The ELD functions required by the rule are limited to automatically 
recording all driving time, and intermittently recording certain other 
information--including recording specified data elements when a driver 
changes duty status (section 395.26(c)) and logs in/logs out of an ELD 
(section 395.26(g)). For ELDs that are physically installed in a 
vehicle, drivers typically log in/log out of the ELD or change duty 
status while the vehicle is powered, and the required data elements in 
section 395.26 are readily recorded by the ELD because the ELD is 
synchronized with the engine's electronic control module (ECM). 
However, in situations where a driver is using a portable, driver-based 
ELD, a driver will typically log in/log out or change duty status in 
the ELD at a location away from the vehicle (i.e., in the dispatch 
office as described by UPS), prior to preparing to drive the vehicle 
and without the vehicle being powered. In these situations, FMCSA 
agrees that it is not practicable for the ELD to automatically record 
the data elements required by section 395.26(c) and section 395.26(g), 
as the ELD is not synchronized with the engine's ECM at that point. In 
the final rule, FMCSA stated ``FMCSA clarifies that the ECM data or ECM 
connectivity data must only be captured when the engine is powered, but 
the ELD is not prohibited from recording information, if desired, when 
the engine is off.''
    Based on the above, FMCSA agrees that it is not necessary for 
portable, driver-based ELDs to record the data elements required in 
section 395.26(c) and section 395.26(g) when the driver is not in the 
CMV, with the engine powered. In instances where a driver using a 
portable, driver-based ELD logs in/logs out or changes duty status away 
from the vehicle and without the vehicle powered, the driver will 
simply annotate the ELD record to indicate the appropriate duty status 
in accordance with section 395.30. Any time the driver is in the 
vehicle and the vehicle is powered, the portable, driver-based ELD is 
required to automatically record the data elements specified in section 
395.26. FMCSA agrees that safety will not be diminished because (1) 
there will be no impact on the recordation of driving time, and (2) the 
data elements that will not be recorded by the ELD at a change of duty 
status or log on/log out of the ELD while away from the vehicle are not 
critical if the driver properly annotates the ELD record to indicate 
the proper duty status as required.

3. Special Driving Mode for Yard Moves

Background
    Section 395.28(a) of the FMCSRs permits a motor carrier to 
configure an ELD to authorize a driver to indicate that the driver is 
operating a CMV under certain special driving categories, including (1) 
authorized personal use, and (2) and yard moves. Section 395.28(a)(2) 
requires a driver to select the applicable special driving category on 
the ELD before starting operations in that status, and to deselect it 
when the indicated status ends. Section 4.3.2.2.2(e) of Appendix A to 
Subpart B of part 395 requires a driver to reset his/her yard-move 
status to none if the ELD or CMV's engine goes through a power-off 
cycle (ELD or CMV's engine turns off and then on).
UPS Request
    In its application, UPS states:

    UPS is requesting a temporary exemption to allow a special 
driving mode for yard moves that will not require a driver to 
repeatedly indicate that status.
    Most of UPS's feeder drivers are required to complete yard moves 
as part of their scheduled work. This entails the driver moving 
trailers that are already sitting

[[Page 48886]]

uncoupled on a yard as well as coupling or uncoupling inbound and 
outbound trailers. Not only do feeder drivers perform yard moves at 
the beginning or end of trips, they sometimes are assigned to yard 
duty for a portion of their shifts, which can entail moving as many 
as 10 loads per hour within the yard.
    As a safety precaution, UPS requires our drivers to remove the 
keys each time they exit the tractor. Consistent with this 
requirement, they driver will power the tractor down to couple a 
trailer and then power the tractor down again to uncouple. An 
average UPS site has over 100 drivers, with the majority of drivers 
completing several yard moves in the course of a day. The ELD rule 
would require drivers to manually change duty status twice for every 
move they complete in the yard, which could mean entering manual 
changes as many as 20 times in an hour. The average UPS RODS driver 
completes a minimum of 9 yard moves per day. This will impose costs 
on UPS in time spent by drivers manually inputting the yard move 
mode. UPS estimates that the yearly cost to UPS for a single button 
push (.35 sec) at each of these yard move ignition cycles would come 
to approximately $460,000. In addition, driver and administrative 
time would need to be spent reconciling records if drivers fail to 
appropriately record yard move time.

    Based on the above, UPS requests an exemption from section 
395.28(a)(2)(i) to allow its drivers to select ``yard move'' status and 
remain in that status even if the vehicle's ignition is cycled off and 
back on. Under the proposed temporary exemption, and assuming that the 
driver does not go off duty after performing the yard moves, UPS states 
that the ELD would switch to a ``driving'' duty status under section 
395.24 if (1) the driver inputs ``driving,'' (2) the vehicle exceeds 20 
mph, or (3) the vehicle exits the geo-fenced yard. UPS notes that there 
is a posted speed limit of 15 mph on all of its yards, and that it 
already uses the proposed 20 mph threshold described above to trigger a 
designation of ``driving'' duty status in its AOBRDs as a means to 
identify drivers who do not manually annotate their departure from a 
UPS property.
Public Comments
    The Agency received three comments, two supporting and one opposing 
the yard-move exemption.
    Saucon stated that ``[m]any motor coach operators have also 
requested to be able to use Yard Move within a geo-fenced area, then 
`automatically' ending that yard move once the vehicle has left the 
area, and changing the driver's status to driving. We agree that this 
would help motor carriers manage Yard Moves.'' Saucon agreed ``that it 
would be wise to consider alternative ways to allow motor carriers to 
manage yard move, without relying on drivers to push the button to end 
it,'' but noted that it did not necessarily fully agree with the 
solutions proposed by UPS.
    YRCW ``supports the UPS request to allow drivers to select `yard 
move' status and stay in that mode even if the vehicle is cycled off or 
if the driver changes yard vehicles. This will eliminate unnecessary 
multiple entries as drivers have duties to couple and uncouple trailers 
in company yards that sometimes involve vehicle shut downs or vehicle 
changes.''
    OOIDA opposed all elements of the exemption request, including the 
yard-moves provision, but it agreed that the ELD rule imposes 
unnecessary costs and burdens on all drivers and carriers, not just on 
UPS.
FMCSA Decision
    The yard-moves issue was raised by Omnitracs in comments to the 
supplemental notice of proposed rulemaking that preceded the December 
2015 ELD final rule. While Omnitracs agreed with resetting the special 
driving situation to ``none'' if the ELD or CMV's engine goes through a 
power-off cycle, it suggested that the same confirmation be allowed 
during yard driving that is allowed for authorized personal use of the 
CMV. Omnitracs stated that doing so would enable the driver to turn off 
the engine when connecting or disconnecting a trailer when operating 
within a company's facility without the requirement to re-enter the 
annotation of yard driving each time the engine goes through a power 
cycle. In response, FMCSA stated ``The Agency feels that the allowance 
of multiple power off cycles would not provide a substantive reduction 
in inputs required by the driver during yard moves. In addition, this 
may create a potential for misuse of the off-duty yard-move status.''
    In its application, UPS stated that the average UPS RODS driver 
completes a minimum of 9 yard moves per day, and given that a driver is 
required to manually enter the beginning and end of each yard move on 
the ELD, a driver could be required to enter manual changes of duty 
status as many as 20 times in an hour. Based on the information 
provided by UPS, and despite the Agency's response to Omnitrac's 
comment in the December 2015 final rule, FMCSA believes that allowing 
multiple power-off cycles for yard moves can substantially reduce the 
inputs required by the driver in certain operations. Further, UPS 
provided a series of proposed controls to ensure that the ELD will 
switch from ``yard move'' status to ``driving'' status; namely, if (1) 
the driver inputs the ``driving'' mode; (2) the vehicle exceeds a speed 
of 20 mph; or (3) the vehicle exits the geo-fenced UPS yard. 
Implementation and adherence to these controls will help ensure that 
there is no misuse of the off-duty yard-move status.
    Based on the above, FMCSA agrees that permitting all motor carriers 
to configure ELDs with a yard-move mode that does not require a driver 
to re-input yard move status every time the tractor is powered off will 
ensure that drivers operating under the yard-move status will achieve a 
level of safety that is equivalent to or greater than the level that 
would be obtained under the regulation. Allowing multiple power-off 
cycles for yard moves is consistent with what is currently permitted 
for the other special driving category, personal conveyance.

4. Exempt Employees Operating CMVs While on Motor Carrier Property

Background
    Section 395.26(h) of the FMCSRs requires an ELD to automatically 
record certain data elements when a CMV's engine is powered on or off.
UPS Request
    In its application, UPS states:

    In addition to its drivers, UPS currently employs 1434 people 
that wash or fuel vehicles. In the course of performing their 
duties, most of these employees operate vehicles in our fleet, but 
this operation is strictly limited to movements within UPS yards. A 
fuel employee will fuel as many as 60 vehicles during a shift.
    Because they do not operate commercial motor vehicles on 
highways/public roads, UPS's wash and fuel employees are not 
``drivers'' and, in turn, are not required to comply with the hours 
of service rules. . .
    The final ELD rule requires that the ELD automatically record 
certain data when a CMV's engine is powered up or powered down. See 
Sec.  395.26(h). Because UPS will be using portable, driver-based 
ELDs, there will not be ELDs permanently installed in UPS vehicles. 
Therefore, insofar as the ELD regulations would require recordation 
of engine data for in yard operation of UPS vehicles by non-driver 
employees, that requirement would impose a significant burden on 
UPS. While it would be possible to provide these employees with 
portable ELDs to record engine data, doing so would be extremely 
costly. In addition to purchasing devices for each of these 
employees, UPS would have to purchase and maintain secure cabinets 
to store and charge these devices. In addition, UPS would have to 
develop a solution to reconcile these hours in a live environment. 
UPS would also have to employ individuals to annotate logs for data 
that was not reconciled.

    UPS requests an exemption from section 395.26, and proposes to 
allow an alternative approach to track vehicle

[[Page 48887]]

usage by wash and fuel employees on UPS property. Specifically, UPS 
proposes that vehicle movements of less than 1 mile by these exempt 
employees, entirely on UPS property, be annotated on an ELD as ``on 
property--other.'' UPS states that these miles could be easily 
identified using geo-fencing and time-card information for road drivers 
and other employees.
Public Comments
    The Agency received one comment in support of an alternative 
approach to tracking vehicle usage by non-driver employees when the 
company uses portable, driver-based ELDs.
    YRCW stated that ``[s]imilar to UPS, YRCW companies have exempt 
employees who move vehicles short distances for fueling, washing and 
maintenance. As UPS notes these miles are within a company facility and 
could easily be captured by geo-fencing applications.''
FMCSA Decision
    Because UPS wash and fuel employees do not operate CMVs on public 
roads they are not subject to the HOS regulations. Accordingly, the UPS 
wash and fuel employees do not need to use ELDs, and no temporary 
exemption is necessary.

Terms and Conditions for the Exemptions

    Based on its evaluation of the UPS application for exemption, FMCSA 
has decided to grant the following exemptions:
    1. All motor carriers and drivers using portable, driver-based ELDs 
are exempt from the requirements of section 395.26(c) and section 
395.26(g) unless the driver is in the CMV with the engine powered. When 
a driver using a portable, driver-based ELD changes duty status or logs 
in/logs out of the ELD away from the vehicle and without the vehicle 
powered, the driver is required to annotate the ELD record to indicate 
the appropriate duty status in accordance with section 395.30. When the 
driver is in the CMV, and the CMV is powered, the portable, driver-
based ELD is required to automatically record the data elements 
specified in section 395.26.
    2. A motor carrier is permitted to configure an ELD so that a 
driver can select ``yard moves'' in accordance with section 
395.28(a)(1)(ii) without complying with Section 4.3.2.2.2(e) of 
Appendix A to Subpart B of part 395, which requires a driver's yard-
move status to reset to none if the ELD or CMV's engine goes through a 
power-off cycle (ELD or CMV's engine turns off and then on). However, 
the ELD must switch from ``yard move'' status to ``driving'' status if 
(1) the driver inputs the ``driving'' mode; (2) the vehicle exceeds a 
speed of 20 mph; or (3) the vehicle exits a geo-fenced motor carrier 
facility. For the reasons discussed above, FMCSA believes that the 
level of safety that will be achieved with the exemptions will likely 
be equivalent to, or greater than, the level of safety achieved without 
the exemptions.
    FMCSA hereby grants the exemptions for a 5-year period, beginning 
October 20, 2017 and ending October 20, 2022.
    The exemptions will be valid for five years unless rescinded 
earlier by FMCSA. The exemptions will be rescinded if: (1) Motor 
carriers and/or drivers fail to comply with the terms and conditions of 
the exemptions; (2) the exemptions have resulted in a lower level of 
safety than was maintained before they were granted; or (3) 
continuation of the exemptions would not be consistent with the goals 
and objectives of 49 U.S.C. 31136(e) and 31315(b).
    Interested parties possessing information that would demonstrate 
that motor carriers or drivers participating in either of the 
exemptions are not achieving the requisite statutory level of safety 
should immediately notify FMCSA. The Agency will evaluate any such 
information and, if safety is being compromised or if the continuation 
of the exemption is not consistent with 49 U.S.C. 31136(e) and 
311315(b), will take immediate steps to revoke the exemption.

Preemption

    In accordance with 49 U.S.C. 31313(d), as implemented by 49 CFR 
381.600, during the period these exemptions are in effect, no State 
shall enforce any law or regulation applicable to interstate commerce 
that conflicts with or is inconsistent with the exemptions with respect 
to a firm or person operating under the exemptions. States may, but are 
not required to, adopt the same exemptions with respect to operations 
in intrastate commerce.

    Issued on: September 29, 2017.
Daphne Y. Jefferson,
Deputy Administrator.
[FR Doc. 2017-22833 Filed 10-19-17; 8:45 am]
BILLING CODE 4910-EX-P



                                                                              Federal Register / Vol. 82, No. 202 / Friday, October 20, 2017 / Notices                                              48883

                                                accurately due to years of abuse by the                 cycle. FMCSA grants exemptions to                     exemption may be renewed (49 CFR
                                                industry.                                               allow (1) all motor carriers and drivers              381.315(c) and 49 CFR 381.300(b)).
                                                  All comments are available for review                 that use portable, driver-based ELDs to
                                                in the docket for this notice.                                                                                UPS Application for Exemption
                                                                                                        record engine data only when the driver
                                                                                                        is in a CMV and the engine is powered,                   UPS applied for an exemption from
                                                FMCSA Decision                                                                                                various provisions of 49 CFR part 395
                                                                                                        and (2) all motor carriers to configure an
                                                  When FMCSA published the rule                         ELD with a yard-move mode that does                   regarding the use of ELDs. Specifically,
                                                mandating ELDs, it relied upon research                 not require a driver to re-input yard-                UPS requested a temporary exemption
                                                indicating that the rule improves                       move status every time the tractor is                 (1) to allow an alternative ELD phase-in
                                                commercial motor vehicle (CMV) safety                   powered off. The Agency has                           method for fleets using compliant
                                                and reduces the overall paperwork                       determined that granting these                        automatic on-board recording devices
                                                burden for both motor carriers and                      temporary exemptions would not have                   (AOBRDs); (2) from the requirement that
                                                drivers by increasing the use of ELDs                   an adverse impact on safety, and that a               an ELD automatically record certain
                                                within the motor carrier industry, which                level of safety equivalent to or greater              data elements upon a duty-status change
                                                will in turn, improve compliance with                   than the level of safety provided by the              when a driver is not in the vehicle; (3)
                                                the HOS rules. The primary reason for                   regulation would be maintained.                       to allow ELDs to be configured with a
                                                denial of this exemption is that MBI did                                                                      special driving mode for yard moves
                                                                                                        FOR FURTHER INFORMATION CONTACT: Mrs.
                                                not demonstrate how, without using                                                                            that does not require the driver to re-
                                                ELDs, they would maintain a level of                    Amina Dines, Vehicle and Roadside
                                                                                                                                                              input yard move status every time the
                                                safety equivalent to, or greater than, the              Operations Division, Office of Carrier,
                                                                                                                                                              tractor is powered off; and (4) to allow
                                                level achieved without the exemption.                   Driver, and Vehicle Safety, MC–PSV,
                                                                                                                                                              vehicle movements of less than one mile
                                                  For these reasons, FMCSA has denied                   (202) 366–2782, Amina.Dines@dot.gov,
                                                                                                                                                              on UPS property by non-CDL UPS
                                                the applicant’s request for exemption.                  Federal Motor Carrier Safety
                                                                                                                                                              drivers to be annotated as ‘‘on
                                                                                                        Administration, 1200 New Jersey
                                                  Issued on: September 28, 2017.                                                                              property—other.’’
                                                                                                        Avenue SE., Washington, DC 20590–                        On June 9, 2017, FMCSA published
                                                Daphne Y. Jefferson,                                    0001.
                                                Deputy Administrator.
                                                                                                                                                              notice of the UPS application and
                                                                                                        SUPPLEMENTARY INFORMATION:                            requested public comment (82 FR
                                                [FR Doc. 2017–22834 Filed 10–19–17; 8:45 am]
                                                                                                                                                              26832). FMCSA received 55 comments,
                                                BILLING CODE 4910–EX–P                                  Background
                                                                                                                                                              most of which opposed the exemption
                                                                                                           Section 4007 of the Transportation                 on the ground that UPS should comply
                                                                                                        Equity Act for the 21st Century (TEA–                 with the ELD rule which it had actively
                                                DEPARTMENT OF TRANSPORTATION                            21) [Pub. L. 105–178, 112 Stat. 107, 401,             supported. Where comments focused on
                                                Federal Motor Carrier Safety                            June 9, 1998] amended 49 U.S.C. 31315                 a particular issue, they are addressed in
                                                Administration                                          and 31136(e) to provide authority to                  the discussions below.
                                                                                                        grant exemptions from the Federal
                                                [Docket No. FMCSA–2017–0054]                            Motor Carrier Safety Regulations                      1. Alternative Method of ELD Phase-In
                                                                                                        (FMCSRs). On August 20, 2004, FMCSA                   Background
                                                Hours of Service; United Parcel                         published a final rule (69 FR 51589)
                                                Service Inc. Application for an                                                                                  Subject to limited exceptions, section
                                                                                                        implementing section 4007. Under this
                                                Exemption From Certain Electronic                                                                             395.8(a)(1)(i) of the FMCSRs requires
                                                                                                        rule, FMCSA must publish a notice of
                                                Logging Device Requirements                                                                                   motor carriers to install and use ELDs
                                                                                                        each exemption request in the Federal
                                                                                                                                                              that comply with the technical
                                                AGENCY: Federal Motor Carrier Safety                    Register (49 CFR 381.315(a)). The
                                                                                                                                                              specifications prescribed for those
                                                Administration (FMCSA), DOT.                            Agency must provide the public with an
                                                                                                                                                              devices no later than December 18,
                                                ACTION: Notice of final disposition.                    opportunity to inspect the information
                                                                                                                                                              2017. However, section 395.8(a)(1)(ii)
                                                                                                        relevant to the application, including
                                                SUMMARY:   The Federal Motor Carrier                                                                          allows a motor carrier that installs, and
                                                                                                        any safety analyses that have been
                                                Safety Administration (FMCSA)                                                                                 requires its drivers to use, compliant
                                                                                                        conducted. The Agency must also
                                                announces its decision to grant part of                                                                       AOBRDs before the December 18, 2017,
                                                                                                        provide an opportunity for public
                                                United Parcel Service Inc.’s (UPS)                                                                            compliance date to continue to use
                                                                                                        comment on the request.
                                                application for a limited 5-year                                                                              those AOBRDs until December 16, 2019,
                                                                                                           The Agency reviews the safety
                                                exemption from various provisions of                                                                          thereby providing a 2-year grandfather
                                                                                                        analyses and the public comments and
                                                the mandate to use electronic logging                                                                         period for devices installed prior to the
                                                                                                        determines whether granting the
                                                devices (ELD). FMCSA published a final                                                                        compliance date.
                                                                                                        exemption would likely achieve a level
                                                rule in December 2015 that requires                     of safety equivalent to or greater than               UPS Request
                                                most motor carriers and drivers who are                 the level that would be achieved by the                In its application, UPS states:
                                                currently required to prepare and retain                current regulation (49 CFR 381.305(a)).
                                                paper records of duty status (RODS) to                     The decision of the Agency must be                    UPS firmly believes that the best way to
                                                                                                                                                              transition its operations from AOBRDs to
                                                use ELDs for hours-of-service (HOS)                     published in the Federal Register (49                 ELDs will be on a site-by-site basis. UPS
                                                compliance effective December 18,                       CFR 381.315(b)). If the Agency denies                 currently plans to convert approximately
                                                2017. Among other things, the                           the request, it must state the reason for             2800 tractors at approximately 35 sites from
                                                December 2015 rule requires (1) certain                 doing so. If the decision is to grant the             AOBRDs to ELDs in 2017, and plans to
                                                data elements to be automatically                       exemption, the notice must specify the
srobinson on DSKBC5CHB2PROD with NOTICES




                                                                                                                                                              convert the remaining tractors (at 141 sites)
                                                recorded when an authorized user logs                   person or class of persons receiving the              during 2018. Deploying ELDs by site will
                                                in or out of an ELD or changes duty                     exemption and the regulatory provision                minimize the significant costs, including
                                                status, and (2) a driver’s indication of                or provisions from which an exemption                 training costs, related to moving the fleet and
                                                                                                                                                              workforce from AOBRDs to ELDs. A site-by-
                                                special driving status to reset to none                 is granted. The notice must specify the               site approach will also minimize the risk of
                                                (except in the case of personal use) if                 effective period of the exemption (up to              errors and confusion that would be
                                                the ELD or commercial motor vehicle’s                   5 years) and explain the terms and                    encountered if two different types of devices
                                                (CMV) engine goes through a power-off                   conditions of the exemption. The                      were used simultaneously at a given location.



                                           VerDate Sep<11>2014   16:22 Oct 19, 2017   Jkt 244001   PO 00000   Frm 00098   Fmt 4703   Sfmt 4703   E:\FR\FM\20OCN1.SGM   20OCN1


                                                48884                         Federal Register / Vol. 82, No. 202 / Friday, October 20, 2017 / Notices

                                                   The difficulty large motor carriers like UPS         systems, and (2) that administrators                  requires a driver to use an automatic on-
                                                face is with FMCSA’s decision to permit                 properly manage the auditing of logs on               board recording device in accordance
                                                grandfathering only on a vehicle, and not a             both systems ‘‘creates a burden for these             with § 395.15 before December 18, 2017
                                                fleet-wide basis. UPS plans to purchase
                                                                                                        operators with little to no additional                may continue to use the compliant
                                                approximately 1530 new tractors in 2018,
                                                i.e., after the grandfathering deadline but             safety benefit resulting from that                    automatic on-board recording device no
                                                before the ELD implementation date for                  burden.’’                                             later than December 16, 2019.’’ FMCSA
                                                grandfathered vehicles. Of these, 1061 will                Saucon also states that since ELD                  has published a series of frequently
                                                replace existing tractors (the majority of              manufacturers not only provide the                    asked questions (FAQ) on its Web site
                                                which are currently using AOBRDs) that have             product (AOBRD and ELD), but also the                 intended to provide plain language
                                                reached the end of life, and 469 will be new            back-office system support for operators              information regarding the December
                                                tractors to accommodate projected growth.               transitioning to using ELDs in a                      2015 ELD rule. These FAQs do not
                                                These new tractors will be delivered to UPS             compliant manner, ‘‘[h]aving to support
                                                facilities across the country consistent with                                                                 modify or replace applicable FMCSA
                                                operational needs. At a typical location,
                                                                                                        the same customer through two                         regulations or standards. Specifically
                                                approximately 12 percent of tractors would              regulations within their fleet would                  with respect to the UPS request for an
                                                be newly purchased.                                     burden ELD manufacturers as much as                   alternative phase-in for fleets using
                                                   If no temporary exemption were granted,              the operators.’’                                      compliant AOBRDs, Question 7 of the
                                                large carriers would be required to use ELDs               Both Saucon and YRC Worldwide                      ‘‘Voluntary Usage and Compliance
                                                in all of the new tractors delivered after 12/          (YRCW), a holding company for a                       Phases’’ section of the FAQs states:
                                                18/2017. The result would be that UPS                   portfolio of less-than-truckload
                                                facilities that had not been converted as of            companies including YRC Freight, YRC                     Question: According to § 395.8, if a motor
                                                that date would have both vehicles using                                                                      carrier ‘‘installs and requires a driver to use
                                                                                                        Reimer, Holland, Reddaway, and New                    an AOBRD. . .before December 18, 2017
                                                AOBRDs and vehicles using ELDs at the same              Penn, commented that allowing a
                                                time.                                                                                                         they may continue to use the AOBRD until
                                                                                                        complete transition from AOBRDs to                    December 16, 2019.’’ Does this mean I can
                                                   Based on the above, UPS requests an                  ELDs will provide for more operational                move an AOBRD from one vehicle to another
                                                exemption from section 395.8(a)(1)(i) to                accuracy than having drivers operate                  after December 18, 2017?
                                                allow the installation of AOBRDs on                     some vehicles equipped with AOBRDs                       Response: If your operation uses AOBRDs
                                                new truck tractors delivered to UPS                     and others equipped with ELDs.                        before December 18, 2017, and you replace
                                                sites after the December 18, 2017                          The Owner-Operator Independent                     vehicles in your fleet you can install an
                                                compliance date, where the existing                     Drivers Association (OOIDA), a trade                  AOBRD that was used in the previous CMV.
                                                vehicles at that site are equipped with                 association representing the views of                 However, you may not purchase and install
                                                compliant AOBRDs. UPS believes that                     small-business truckers and professional              a new AOBRD in a vehicle after December
                                                                                                                                                              18, 2017.
                                                using a site-based approach, as                         truck drivers in all 50 states and
                                                described above, will (1) eliminate                     Canada, stated that UPS’s proposed                       Thus, the 1,061 new tractors that UPS
                                                confusion on the part of drivers and                    alternative phase-in period ‘‘is a drastic            plans to purchase after the December 18,
                                                other personnel that would result from                  change from their 2011 comments that                  2017 ‘‘grandfathering’’ deadline to
                                                using both ELDs and AOBRDs at the                       believed, ‘a single compliance date is                replace existing tractors that are
                                                same location, and (2) avoid operational                superior to any phase-in schedule                     currently equipped with AOBRDs will
                                                and potential enforcement issues that                   because it minimizes the potential for                be permitted to utilize the AOBRDs
                                                could arise from a driver using different               confusion.’’ However, OOIDA states that               from the replaced vehicles until
                                                types of devices to record hours of                     UPS raised ‘‘a credible concern                       December 16, 2019. However, the
                                                service over a given period of time. UPS                involving drivers that will be forced to              remaining 469 new tractors that will be
                                                states that under the proposed                          use different vehicles with both                      purchased to accommodate projected
                                                temporary exemption, all vehicles will                  Automatic On-Board Recorders (AOBR)                   growth will be required to be equipped
                                                be fully ELD-compliant by the                           and ELDs,’’ and that the ‘‘lack of                    with ELDs in accordance with section
                                                expiration date of the AOBRD                            specifics regarding interoperability is               395.8(a)(1)(i).
                                                grandfather period specified in section                 leading to great uncertainty among all                   FMCSA decided not to require full
                                                395.8(a)(1)(ii), December 16, 2019.                     stakeholders and will cause confusion                 interoperability between all ELDs (and
                                                                                                        during roadside inspections for drivers,              AOBRDs) in the final rule because while
                                                Public Comments                                                                                               full interoperability would have some
                                                                                                        enforcement, and ELD and AOBRD
                                                   The Agency received four comments,                   vendors.’’ Despite the above, OOIDA                   benefits, it would also be complicated
                                                two supporting the proposed alternative                 states that ‘‘UPS does not explicitly                 and costly. FMCSA recognizes that a
                                                method of ELD phase-in and two                          explain how they would achieve a level                motor carrier, including UPS, may need
                                                opposing it.                                            of safety that is equivalent to or greater            to support a mix of both AOBRD and
                                                   Saucon Technologies (Saucon), an                     than, the level of safety that would be               ELD systems within its fleet for a
                                                ELD developer, states that ‘‘[c]ompanies                obtained by complying with the                        limited time until the carrier can fully
                                                who have been using AOBRD devices                       regulation,’’ and that ‘‘[a]n exemption               implement ELDs in all its vehicles. As
                                                for years before the ELD final rule was                 should not be granted merely because it               noted in the final rule, if a driver uses
                                                published have been operating ‘ahead of                 is inconvenient or it puts a burden on                multiple ELD or AOBRD systems that
                                                the safety curve,’ using technology                     the petitioner.’’                                     are not compatible (e.g., the data file
                                                identified by FMCSA as a safety                            An individual noted that UPS should                from one system cannot be uploaded
                                                enhancer, before being required to do                   have better prepared for this deadline,               into the other system), the driver must
                                                so. Requiring these early adopters of
srobinson on DSKBC5CHB2PROD with NOTICES




                                                                                                        especially since it is the largest trucking           either manually enter the missing duty
                                                safety technology to have a ‘mixed fleet’               entity in the United States, and has been             status information or provide a printout
                                                of AOBRD and ELD will present a                         aware of this mandate since its                       from the other system so that an
                                                hardship to these operators.’’                          inception.                                            accurate accounting of the duty status
                                                Specifically, Saucon contends that for                                                                        for the current and previous 7 days is
                                                fleets required to operate with both                    FMCSA Decision                                        available for authorized safety officials.
                                                AOBRDs and ELDs, ensuring (1) that                        Section 395.8(a)(1)(ii) of the FMCSRs                  Based on the above, FMCSA denies
                                                drivers are properly trained on both                    states, ‘‘A motor carrier that installs and           UPS’s request to allow an alternative


                                           VerDate Sep<11>2014   16:22 Oct 19, 2017   Jkt 244001   PO 00000   Frm 00099   Fmt 4703   Sfmt 4703   E:\FR\FM\20OCN1.SGM   20OCN1


                                                                              Federal Register / Vol. 82, No. 202 / Friday, October 20, 2017 / Notices                                            48885

                                                ELD phase-in method for fleets using                    driving time, UPS proposes that it will               and section 395.26(g), as the ELD is not
                                                compliant AOBRDs.                                       ‘‘systematically annotate that the driver             synchronized with the engine’s ECM at
                                                                                                        was performing other work.’’ UPS                      that point. In the final rule, FMCSA
                                                2. Recording of Data Elements When a
                                                                                                        believes that the proposed exemption                  stated ‘‘FMCSA clarifies that the ECM
                                                Driver Has a Change in Duty Status or
                                                                                                        ‘‘will have no impact on the recordation              data or ECM connectivity data must
                                                Logs In/Logs Out of an ELD While
                                                                                                        of driving time’’ as all required vehicle             only be captured when the engine is
                                                Outside the Vehicle                                     data will be recorded when the driver is              powered, but the ELD is not prohibited
                                                Background                                              in the vehicle, and ‘‘the tractor data that           from recording information, if desired,
                                                  An ELD automatically records the                      would not be recorded when the driver                 when the engine is off.’’
                                                                                                        is not in the vehicle is not relevant to                 Based on the above, FMCSA agrees
                                                following data elements: (1) Date; (2)
                                                                                                        assessing the accurate recordation of                 that it is not necessary for portable,
                                                Time; (3) CMV geographic location
                                                                                                        ‘on-duty, not driving’ time.’’                        driver-based ELDs to record the data
                                                information; (4) Engine hours; (5)
                                                                                                                                                              elements required in section 395.26(c)
                                                Vehicle miles; (6) Driver or                            Public Comments                                       and section 395.26(g) when the driver is
                                                authenticated user identification data;                    The Agency received one comment in                 not in the CMV, with the engine
                                                (7) Vehicle identification data; and (8)                support of allowing motor carriers that               powered. In instances where a driver
                                                Motor carrier identification data. In                   use portable, driver-based ELDs to                    using a portable, driver-based ELD logs
                                                addition, an ELD is required to                         record engine data only while the driver              in/logs out or changes duty status away
                                                automatically record a number of the                    is in a CMV. YRCW stated that                         from the vehicle and without the
                                                data elements specified above at certain                ‘‘[s]imilar to UPS, drivers at our                    vehicle powered, the driver will simply
                                                events, to include (1) when a driver                    operating companies are covered by a                  annotate the ELD record to indicate the
                                                indicates a change of duty status under                 collective bargaining agreement. Our                  appropriate duty status in accordance
                                                section 395.24(b) (see section 395.26(c)),              drivers perform a variety of other duties             with section 395.30. Any time the driver
                                                and (2) when an authorized user logs                    as they begin and end their day at a                  is in the vehicle and the vehicle is
                                                into or out of an ELD (see section                      company terminal. We support the UPS                  powered, the portable, driver-based ELD
                                                395.26(g)).                                             request for an annotation ‘driver was                 is required to automatically record the
                                                UPS Request                                             performing other work.’’’                             data elements specified in section
                                                 In its application, UPS states:                        FMCSA Decision                                        395.26. FMCSA agrees that safety will
                                                                                                                                                              not be diminished because (1) there will
                                                   All UPS drivers are covered under a                     Because the December 2015 rule                     be no impact on the recordation of
                                                bargaining unit agreement between the                   provides a performance-based standard                 driving time, and (2) the data elements
                                                Teamsters Union and UPS. Under that                     for ELDs, motor carriers have a number
                                                agreement, UPS drivers are, for the most part,                                                                that will not be recorded by the ELD at
                                                                                                        of options to choose from the market                  a change of duty status or log on/log out
                                                paid by the hour. UPS drivers use electronic            place of ELD providers. This includes
                                                devices and punch in for work on those                                                                        of the ELD while away from the vehicle
                                                devices while they are still in the dispatch
                                                                                                        portable units that stay with the driver,             are not critical if the driver properly
                                                building. They then walk to their vehicle and           as well as units that are installed in and            annotates the ELD record to indicate the
                                                inspect the vehicle prior to moving the                 stay with the vehicle. In its application,            proper duty status as required.
                                                tractor. Upon implementation of the ELD rule            UPS notes that ‘‘[u]pon implementation
                                                UPS will be using FMCSR-compliant                       of the ELD rule UPS will be using                     3. Special Driving Mode for Yard Moves
                                                portable, driver-based ELD devices.                     FMCSR-compliant portable, driver-
                                                   Similarly, at the end of a work day all UPS
                                                                                                                                                              Background
                                                                                                        based ELD devices.’’
                                                drivers walk from their vehicles to a UPS                  The ELD functions required by the                    Section 395.28(a) of the FMCSRs
                                                dispatch office and then clock out using the            rule are limited to automatically                     permits a motor carrier to configure an
                                                AOBRD devices once all work is done. UPS                                                                      ELD to authorize a driver to indicate
                                                drivers perform many other duties away from
                                                                                                        recording all driving time, and
                                                                                                        intermittently recording certain other                that the driver is operating a CMV under
                                                the tractor including training, attending
                                                                                                        information—including recording                       certain special driving categories,
                                                safety meetings and working in the facility.
                                                In a typical UPS location, UPS drivers spend            specified data elements when a driver                 including (1) authorized personal use,
                                                an average of 24 minutes prior to entering the          changes duty status (section 395.26(c))               and (2) and yard moves. Section
                                                vehicle and 22 minutes after exiting the                and logs in/logs out of an ELD (section               395.28(a)(2) requires a driver to select
                                                vehicle on the clock. Significantly, in many            395.26(g)). For ELDs that are physically              the applicable special driving category
                                                situations the vehicle an employee will be, or          installed in a vehicle, drivers typically             on the ELD before starting operations in
                                                was, using will be occupied by another                                                                        that status, and to deselect it when the
                                                                                                        log in/log out of the ELD or change duty
                                                employee while the employee is still on duty                                                                  indicated status ends. Section
                                                for UPS.                                                status while the vehicle is powered, and
                                                                                                        the required data elements in section                 4.3.2.2.2(e) of Appendix A to Subpart B
                                                   UPS cannot both comply with the
                                                requirement that an ELD record tractor data             395.26 are readily recorded by the ELD                of part 395 requires a driver to reset his/
                                                when a driver logs in or out (or otherwise              because the ELD is synchronized with                  her yard-move status to none if the ELD
                                                changes duty status while outside of the                the engine’s electronic control module                or CMV’s engine goes through a power-
                                                vehicle) and also comply with our bargaining            (ECM). However, in situations where a                 off cycle (ELD or CMV’s engine turns off
                                                unit contract and pay guidelines for our                driver is using a portable, driver-based              and then on).
                                                drivers.                                                ELD, a driver will typically log in/log               UPS Request
                                                  UPS requests an exemption from the                    out or change duty status in the ELD at
                                                requirement to record the specific data                 a location away from the vehicle (i.e., in             In its application, UPS states:
srobinson on DSKBC5CHB2PROD with NOTICES




                                                elements identified in sections 395.26(c)               the dispatch office as described by                     UPS is requesting a temporary exemption
                                                and 395.26(g) if the driver is not in the               UPS), prior to preparing to drive the                 to allow a special driving mode for yard
                                                vehicle when (1) the driver indicates a                 vehicle and without the vehicle being                 moves that will not require a driver to
                                                                                                                                                              repeatedly indicate that status.
                                                change of duty status, or (2) an                        powered. In these situations, FMCSA                     Most of UPS’s feeder drivers are required
                                                authorized user logs into or out of an                  agrees that it is not practicable for the             to complete yard moves as part of their
                                                ELD, respectively. Instead, to assure                   ELD to automatically record the data                  scheduled work. This entails the driver
                                                accurate recording of on-duty, not                      elements required by section 395.26(c)                moving trailers that are already sitting



                                           VerDate Sep<11>2014   16:22 Oct 19, 2017   Jkt 244001   PO 00000   Frm 00100   Fmt 4703   Sfmt 4703   E:\FR\FM\20OCN1.SGM   20OCN1


                                                48886                         Federal Register / Vol. 82, No. 202 / Friday, October 20, 2017 / Notices

                                                uncoupled on a yard as well as coupling or              move, without relying on drivers to                   ‘‘driving’’ mode; (2) the vehicle exceeds
                                                uncoupling inbound and outbound trailers.               push the button to end it,’’ but noted                a speed of 20 mph; or (3) the vehicle
                                                Not only do feeder drivers perform yard                 that it did not necessarily fully agree               exits the geo-fenced UPS yard.
                                                moves at the beginning or end of trips, they
                                                                                                        with the solutions proposed by UPS.                   Implementation and adherence to these
                                                sometimes are assigned to yard duty for a
                                                portion of their shifts, which can entail
                                                                                                           YRCW ‘‘supports the UPS request to                 controls will help ensure that there is no
                                                moving as many as 10 loads per hour within              allow drivers to select ‘yard move’                   misuse of the off-duty yard-move status.
                                                the yard.                                               status and stay in that mode even if the                 Based on the above, FMCSA agrees
                                                   As a safety precaution, UPS requires our             vehicle is cycled off or if the driver                that permitting all motor carriers to
                                                drivers to remove the keys each time they               changes yard vehicles. This will                      configure ELDs with a yard-move mode
                                                exit the tractor. Consistent with this                  eliminate unnecessary multiple entries                that does not require a driver to re-input
                                                requirement, they driver will power the                 as drivers have duties to couple and                  yard move status every time the tractor
                                                tractor down to couple a trailer and then               uncouple trailers in company yards that
                                                power the tractor down again to uncouple.
                                                                                                                                                              is powered off will ensure that drivers
                                                An average UPS site has over 100 drivers,
                                                                                                        sometimes involve vehicle shut downs                  operating under the yard-move status
                                                with the majority of drivers completing                 or vehicle changes.’’                                 will achieve a level of safety that is
                                                several yard moves in the course of a day.                 OOIDA opposed all elements of the                  equivalent to or greater than the level
                                                The ELD rule would require drivers to                   exemption request, including the yard-                that would be obtained under the
                                                manually change duty status twice for every             moves provision, but it agreed that the               regulation. Allowing multiple power-off
                                                move they complete in the yard, which could             ELD rule imposes unnecessary costs and                cycles for yard moves is consistent with
                                                mean entering manual changes as many as 20              burdens on all drivers and carriers, not              what is currently permitted for the other
                                                times in an hour. The average UPS RODS                  just on UPS.
                                                driver completes a minimum of 9 yard moves                                                                    special driving category, personal
                                                per day. This will impose costs on UPS in               FMCSA Decision                                        conveyance.
                                                time spent by drivers manually inputting the                                                                  4. Exempt Employees Operating CMVs
                                                                                                           The yard-moves issue was raised by
                                                yard move mode. UPS estimates that the
                                                yearly cost to UPS for a single button push             Omnitracs in comments to the                          While on Motor Carrier Property
                                                (.35 sec) at each of these yard move ignition           supplemental notice of proposed
                                                                                                                                                              Background
                                                cycles would come to approximately                      rulemaking that preceded the December
                                                $460,000. In addition, driver and                       2015 ELD final rule. While Omnitracs                    Section 395.26(h) of the FMCSRs
                                                administrative time would need to be spent              agreed with resetting the special driving             requires an ELD to automatically record
                                                reconciling records if drivers fail to                  situation to ‘‘none’’ if the ELD or CMV’s             certain data elements when a CMV’s
                                                appropriately record yard move time.                    engine goes through a power-off cycle,                engine is powered on or off.
                                                   Based on the above, UPS requests an                  it suggested that the same confirmation               UPS Request
                                                exemption from section 395.28(a)(2)(i)                  be allowed during yard driving that is
                                                to allow its drivers to select ‘‘yard                   allowed for authorized personal use of                 In its application, UPS states:
                                                move’’ status and remain in that status                 the CMV. Omnitracs stated that doing so                  In addition to its drivers, UPS currently
                                                even if the vehicle’s ignition is cycled                would enable the driver to turn off the               employs 1434 people that wash or fuel
                                                off and back on. Under the proposed                     engine when connecting or                             vehicles. In the course of performing their
                                                temporary exemption, and assuming                       disconnecting a trailer when operating                duties, most of these employees operate
                                                                                                        within a company’s facility without the               vehicles in our fleet, but this operation is
                                                that the driver does not go off duty after                                                                    strictly limited to movements within UPS
                                                performing the yard moves, UPS states                   requirement to re-enter the annotation
                                                                                                                                                              yards. A fuel employee will fuel as many as
                                                that the ELD would switch to a                          of yard driving each time the engine                  60 vehicles during a shift.
                                                ‘‘driving’’ duty status under section                   goes through a power cycle. In response,                 Because they do not operate commercial
                                                395.24 if (1) the driver inputs ‘‘driving,’’            FMCSA stated ‘‘The Agency feels that                  motor vehicles on highways/public roads,
                                                (2) the vehicle exceeds 20 mph, or (3)                  the allowance of multiple power off                   UPS’s wash and fuel employees are not
                                                the vehicle exits the geo-fenced yard.                  cycles would not provide a substantive                ‘‘drivers’’ and, in turn, are not required to
                                                UPS notes that there is a posted speed                  reduction in inputs required by the                   comply with the hours of service rules. . .
                                                limit of 15 mph on all of its yards, and                driver during yard moves. In addition,                   The final ELD rule requires that the ELD
                                                                                                        this may create a potential for misuse of             automatically record certain data when a
                                                that it already uses the proposed 20                                                                          CMV’s engine is powered up or powered
                                                mph threshold described above to                        the off-duty yard-move status.’’
                                                                                                                                                              down. See § 395.26(h). Because UPS will be
                                                trigger a designation of ‘‘driving’’ duty                  In its application, UPS stated that the
                                                                                                                                                              using portable, driver-based ELDs, there will
                                                status in its AOBRDs as a means to                      average UPS RODS driver completes a                   not be ELDs permanently installed in UPS
                                                identify drivers who do not manually                    minimum of 9 yard moves per day, and                  vehicles. Therefore, insofar as the ELD
                                                annotate their departure from a UPS                     given that a driver is required to                    regulations would require recordation of
                                                property.                                               manually enter the beginning and end of               engine data for in yard operation of UPS
                                                                                                        each yard move on the ELD, a driver                   vehicles by non-driver employees, that
                                                Public Comments                                         could be required to enter manual                     requirement would impose a significant
                                                   The Agency received three comments,                  changes of duty status as many as 20                  burden on UPS. While it would be possible
                                                                                                        times in an hour. Based on the                        to provide these employees with portable
                                                two supporting and one opposing the
                                                                                                                                                              ELDs to record engine data, doing so would
                                                yard-move exemption.                                    information provided by UPS, and
                                                                                                                                                              be extremely costly. In addition to
                                                   Saucon stated that ‘‘[m]any motor                    despite the Agency’s response to                      purchasing devices for each of these
                                                coach operators have also requested to                  Omnitrac’s comment in the December                    employees, UPS would have to purchase and
                                                be able to use Yard Move within a geo-                  2015 final rule, FMCSA believes that                  maintain secure cabinets to store and charge
                                                fenced area, then ‘automatically’ ending                allowing multiple power-off cycles for
srobinson on DSKBC5CHB2PROD with NOTICES




                                                                                                                                                              these devices. In addition, UPS would have
                                                that yard move once the vehicle has left                yard moves can substantially reduce the               to develop a solution to reconcile these hours
                                                the area, and changing the driver’s                     inputs required by the driver in certain              in a live environment. UPS would also have
                                                status to driving. We agree that this                   operations. Further, UPS provided a                   to employ individuals to annotate logs for
                                                would help motor carriers manage Yard                   series of proposed controls to ensure                 data that was not reconciled.
                                                Moves.’’ Saucon agreed ‘‘that it would                  that the ELD will switch from ‘‘yard                     UPS requests an exemption from
                                                be wise to consider alternative ways to                 move’’ status to ‘‘driving’’ status;                  section 395.26, and proposes to allow an
                                                allow motor carriers to manage yard                     namely, if (1) the driver inputs the                  alternative approach to track vehicle


                                           VerDate Sep<11>2014   16:22 Oct 19, 2017   Jkt 244001   PO 00000   Frm 00101   Fmt 4703   Sfmt 4703   E:\FR\FM\20OCN1.SGM   20OCN1


                                                                              Federal Register / Vol. 82, No. 202 / Friday, October 20, 2017 / Notices                                        48887

                                                usage by wash and fuel employees on                     and then on). However, the ELD must                   DEPARTMENT OF TRANSPORTATION
                                                UPS property. Specifically, UPS                         switch from ‘‘yard move’’ status to
                                                proposes that vehicle movements of less                 ‘‘driving’’ status if (1) the driver inputs           Federal Motor Carrier Safety
                                                than 1 mile by these exempt employees,                  the ‘‘driving’’ mode; (2) the vehicle                 Administration
                                                entirely on UPS property, be annotated                  exceeds a speed of 20 mph; or (3) the                 [Docket No. FMCSA–2013–0275]
                                                on an ELD as ‘‘on property—other.’’                     vehicle exits a geo-fenced motor carrier
                                                UPS states that these miles could be                    facility. For the reasons discussed                   Hours of Service of Drivers: U.S.
                                                easily identified using geo-fencing and                 above, FMCSA believes that the level of               Department of Defense (DOD);
                                                time-card information for road drivers                  safety that will be achieved with the                 Application for Renewal of Exemption
                                                and other employees.                                    exemptions will likely be equivalent to,
                                                                                                                                                              AGENCY:  Federal Motor Carrier Safety
                                                Public Comments                                         or greater than, the level of safety
                                                                                                                                                              Administration (FMCSA), DOT.
                                                   The Agency received one comment in                   achieved without the exemptions.
                                                                                                                                                              ACTION: Notice of renewal of exemption;
                                                support of an alternative approach to                      FMCSA hereby grants the exemptions                 request for comments.
                                                tracking vehicle usage by non-driver                    for a 5-year period, beginning October
                                                employees when the company uses                         20, 2017 and ending October 20, 2022.                 SUMMARY:    FMCSA announces its
                                                portable, driver-based ELDs.                               The exemptions will be valid for five              decision to renew the U.S. Department
                                                   YRCW stated that ‘‘[s]imilar to UPS,                                                                       of Defense (DOD) Military Surface
                                                                                                        years unless rescinded earlier by
                                                YRCW companies have exempt                                                                                    Deployment and Distribution
                                                                                                        FMCSA. The exemptions will be
                                                employees who move vehicles short                                                                             Command’s (SDDC) exemption from the
                                                distances for fueling, washing and                      rescinded if: (1) Motor carriers and/or
                                                                                                                                                              minimum 30-minute rest break
                                                maintenance. As UPS notes these miles                   drivers fail to comply with the terms
                                                                                                                                                              provision of the Agency’s hours-of-
                                                are within a company facility and could                 and conditions of the exemptions; (2)                 service (HOS) regulations for
                                                easily be captured by geo-fencing                       the exemptions have resulted in a lower               commercial motor vehicle (CMV)
                                                applications.’’                                         level of safety than was maintained                   drivers contracted by SDDC for special
                                                                                                        before they were granted; or (3)                      activities. SDDC currently holds an
                                                FMCSA Decision                                          continuation of the exemptions would                  exemption valid through October 27,
                                                   Because UPS wash and fuel                            not be consistent with the goals and                  2018. The exemption renewal is for five
                                                employees do not operate CMVs on                        objectives of 49 U.S.C. 31136(e) and                  years and allows SDDC contracted-
                                                public roads they are not subject to the                31315(b).                                             drivers to use 30 minutes or more of
                                                HOS regulations. Accordingly, the UPS                      Interested parties possessing                      attendance time to meet the HOS rest
                                                wash and fuel employees do not need to                                                                        break requirements, provided they do
                                                                                                        information that would demonstrate
                                                use ELDs, and no temporary exemption                                                                          not perform any other work during the
                                                                                                        that motor carriers or drivers
                                                is necessary.                                                                                                 break. The terms and conditions of the
                                                                                                        participating in either of the exemptions
                                                Terms and Conditions for the                            are not achieving the requisite statutory             current exemption remain in place for
                                                Exemptions                                              level of safety should immediately                    the five-year period.
                                                   Based on its evaluation of the UPS                   notify FMCSA. The Agency will                         DATES: The renewed exemption is
                                                application for exemption, FMCSA has                    evaluate any such information and, if                 effective through October 21, 2023.
                                                decided to grant the following                          safety is being compromised or if the                 Comments must be received on or
                                                exemptions:                                             continuation of the exemption is not                  before November 20, 2017.
                                                   1. All motor carriers and drivers using              consistent with 49 U.S.C. 31136(e) and                ADDRESSES: You may submit comments
                                                portable, driver-based ELDs are exempt                  311315(b), will take immediate steps to               identified by Federal Docket
                                                from the requirements of section                        revoke the exemption.                                 Management System Number FMCSA–
                                                395.26(c) and section 395.26(g) unless                                                                        2013–0275 by any of the following
                                                the driver is in the CMV with the engine                Preemption                                            methods:
                                                powered. When a driver using a                                                                                   • Federal eRulemaking Portal:
                                                                                                          In accordance with 49 U.S.C.                        www.regulations.gov. Follow the online
                                                portable, driver-based ELD changes duty
                                                                                                        31313(d), as implemented by 49 CFR                    instructions for submitting comments.
                                                status or logs in/logs out of the ELD
                                                away from the vehicle and without the                   381.600, during the period these                         • Fax: 1–202–493–2251.
                                                vehicle powered, the driver is required                 exemptions are in effect, no State shall                 • Mail: Docket Management Facility,
                                                to annotate the ELD record to indicate                  enforce any law or regulation applicable              U.S. Department of Transportation, 1200
                                                the appropriate duty status in                          to interstate commerce that conflicts                 New Jersey Avenue SE., West Building,
                                                accordance with section 395.30. When                    with or is inconsistent with the                      Ground Floor, Room W12–140,
                                                the driver is in the CMV, and the CMV                   exemptions with respect to a firm or                  Washington, DC 20590–0001.
                                                is powered, the portable, driver-based                  person operating under the exemptions.                   • Hand Delivery or Courier: West
                                                ELD is required to automatically record                 States may, but are not required to,                  Building, Ground Floor, Room W12–
                                                the data elements specified in section                  adopt the same exemptions with respect                140, 1200 New Jersey Avenue SE.,
                                                395.26.                                                 to operations in intrastate commerce.                 between 9 a.m. and 5 p.m. E.T., Monday
                                                   2. A motor carrier is permitted to                     Issued on: September 29, 2017.                      through Friday, except Federal holidays.
                                                configure an ELD so that a driver can                                                                            Instructions: All submissions must
                                                                                                        Daphne Y. Jefferson,
                                                select ‘‘yard moves’’ in accordance with                                                                      include the Agency name and docket
srobinson on DSKBC5CHB2PROD with NOTICES




                                                section 395.28(a)(1)(ii) without                        Deputy Administrator.                                 number. For detailed instructions on
                                                complying with Section 4.3.2.2.2(e) of                  [FR Doc. 2017–22833 Filed 10–19–17; 8:45 am]          submitting comments and additional
                                                Appendix A to Subpart B of part 395,                    BILLING CODE 4910–EX–P                                information on the exemption process,
                                                which requires a driver’s yard-move                                                                           see the Public Participation heading
                                                status to reset to none if the ELD or                                                                         below. Note that all comments received
                                                CMV’s engine goes through a power-off                                                                         will be posted without change to
                                                cycle (ELD or CMV’s engine turns off                                                                          www.regulations.gov, including any


                                           VerDate Sep<11>2014   16:22 Oct 19, 2017   Jkt 244001   PO 00000   Frm 00102   Fmt 4703   Sfmt 4703   E:\FR\FM\20OCN1.SGM   20OCN1



Document Created: 2017-10-20 00:06:24
Document Modified: 2017-10-20 00:06:24
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice of final disposition.
ContactMrs. Amina Dines, Vehicle and Roadside Operations Division, Office of Carrier, Driver, and Vehicle Safety, MC- PSV, (202) 366-2782, [email protected], Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.
FR Citation82 FR 48883 

2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR