[Federal Register Volume 82, Number 110 (Friday, June 9, 2017)]
[Notices]
[Pages 26832-26835]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-11998]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2017-0054]


Parts and Accessories Necessary for Safe Operation; Application 
for an Exemption From United Parcel Service Inc.

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

ACTION: Notice of application for exemption; request for comments.

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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) 
requests public comment on an application from United Parcel Service, 
Inc. (UPS) for exemption from various provisions of the mandate to use 
electronic logging devices (ELDs). Specifically, UPS is requesting an 
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.'' UPS believes that the requested 
temporary exemptions will maintain a level of safety that is equivalent 
to, or greater than, the level of safety achieved without the 
exemption.

DATES: Comments must be received on or before July 10, 2017.

ADDRESSES: You may submit comments bearing the Federal Docket 
Management System (FDMS) Docket ID FMCSA-2017-0054 using any of the 
following methods:
     Web site: http://www.regulations.gov. Follow the

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instructions for submitting comments on the Federal electronic docket 
site.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, Room W12-140, 1200 New Jersey Avenue SE., Washington, 
DC 20590-0001.
     Hand Delivery: Ground Floor, Room W12-140, DOT Building, 
1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m. 
e.t., Monday-Friday, except Federal holidays.
    Instructions: All submissions must include the Agency name and 
docket number for this notice. For detailed instructions on submitting 
comments and additional information on the exemption process, see the 
``Public Participation'' heading below. Note that all comments received 
will be posted without change to http://www.regulations.gov, including 
any personal information provided. Please see the ``Privacy Act'' 
heading for further information.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov or to Room W12-140, 
DOT Building, 1200 New Jersey Avenue SE., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits 
comments from the public to better inform its rulemaking process. DOT 
posts these comments, without edit, including any personal information 
the commenter provides, to www.regulations.gov, as described in the 
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.
    Public participation: The http://www.regulations.gov Web site is 
generally available 24 hours each day, 365 days each year. You may find 
electronic submission and retrieval help and guidelines under the 
``help'' section of the http://www.regulations.gov Web site as well as 
the DOT's http://docketsinfo.dot.gov Web site. If you would like 
notification that we received your comments, please include a self-
addressed, stamped envelope or postcard or print the acknowledgment 
page that appears after submitting comments online.

FOR FURTHER INFORMATION CONTACT: Mrs. Amina Fisher, Vehicle and 
Roadside Operations Division, Office of Carrier, Driver, and Vehicle 
Safety, MC-PSV, (202) 366-2782, 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, June 9, 1998, 112 Stat. 401] 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).
    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 has applied for an exemption from various provisions of 49 CFR 
part 395 regarding the use of ELDs. Specifically, UPS has 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 conducted on UPS property by non-CDL 
UPS drivers to be annotated as ``on property--other.'' A copy of the 
application is included in the docket referenced at the beginning of 
this notice.

Alternative ELD Phase-In Method

    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.
    In support of 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.
    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 ELDs at the 
same time.
    It is routine for all UPS drivers at a given location to use 
multiple tractors in the course of a week or month. If a site had 
both vehicles using AOBRDs and vehicles using ELDs, under UPS's 
current business practices, drivers would necessarily be using both 
types of devices. This would create complex and difficult situations 
to manage. For example, if a driver used both an AOBRD and an ELD 
during the course of a week, there would not be a single, complete 
log reflecting the driver's hours of service. If, on the other hand, 
each driver at a given location were restricted to only the vehicles

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at that location using AOBRDs or only the vehicles at that location 
using ELDs, that would cause significant operational disruption and 
inefficiency.
    In addition to drivers, UPS exempt employees' fuel, shift and 
work on tractors in the yard. If vehicles using ELDs were deployed 
to a site where the majority of vehicles still used AOBRDs, these 
employees would have to be trained to identify ELD tractors and 
comply with ELD requirements, while simultaneously working with 
vehicles using AOBRDs. Furthermore, UPS would incur significant cost 
to train and deploy ELDs for these few exceptions, and the 
deployment team would also need to return to the site at a later 
date to finish ELD deployment on the rest of the fleet.

    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 hour-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.

Recording of ELD Data Elements

    An ELD is required to automatically record a number of specific 
data elements 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)).
    In support of 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.

    Based on the above, 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.''

Special Driving Mode for Yard Moves

    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 commercial motor vehicle (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 the start of the 
status, and to deselect it when the indicated status ends.
    In support of 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 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 that do not manually annotate their departure from a 
UPS property.

Vehicle Use by Exempt Employees Operating on UPS Property

    Section 395.26(h) of the FMCSRs requires an ELD to automatically 
record certain data elements when a CMV's engine is powered up or 
powered down.
    In support of 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

[[Page 26835]]

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's technology group has had several meetings to explore 
options to account for engine miles and hours for operation of UPS 
vehicles by non-driver employees. In each solution, an employee 
would be required to enter a tractor number for each tractor and to 
log out of each tractor when they are finished even though they 
would be driving the vehicle less than 1 mile and within the yard. 
The employees would be doing this for as many as 10 hours a day and 
on a large number of tractors. When all factors are considered, the 
expense to account for a very small number of miles is extremely 
costly. UPS estimates that the cost would exceed $1,000,000 dollars 
per year in added equipment and hourly expense.

    Based on the above, UPS requests an exemption from section 395.26, 
and proposes to allow an alternative approach to track vehicle usage by 
wash and fuel employees on UPS property. Specifically, UPS proposes 
that vehicle usage of less than 1 mile by these exempt employees, 
conducted 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.
    As noted in its application, UPS believes that each of the 
requested exemptions will result in substantial operational 
efficiencies, and will maintain a level of safety that is equivalent 
to, or greater than, the level of safety achieved without the 
exemptions.

Request for Comments

    In accordance with 49 U.S.C. 31315 and 31136(e), FMCSA requests 
public comment from all interested persons on UPS's application for an 
exemption from 49 CFR part 395. All comments received before the close 
of business on the comment closing date indicated at the beginning of 
this notice will be considered and will be available for examination in 
the docket at the location listed under the Addresses section of this 
notice. Comments received after the comment closing date will be filed 
in the public docket and will be considered to the extent practicable. 
In addition to late comments, FMCSA will also continue to file, in the 
public docket, relevant information that becomes available after the 
comment closing date. Interested persons should continue to examine the 
public docket for new material.

    Issued on: June 1, 2017.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2017-11998 Filed 6-8-17; 8:45 am]
 BILLING CODE 4910-EX-P