[Federal Register Volume 82, Number 202 (Friday, October 20, 2017)]
[Notices]
[Pages 48883-48887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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