[Federal Register Volume 87, Number 206 (Wednesday, October 26, 2022)]
[Notices]
[Pages 64837-64840]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-23312]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2017-0054]


Hours of Service; United Parcel Service Inc.; Application for 
Exemption Renewal

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

ACTION: Notice of provisional renewal of exemption; request for 
comments.

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SUMMARY: FMCSA announces its decision to provisionally renew a United 
Parcel Service, Inc. (UPS) exemption from various provisions of the 
mandate to use electronic logging devices (ELD). FMCSA previously 
granted the exemption 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 commercial motor vehicle (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 
renewal of the temporary exemption would not have an adverse impact on 
safety, and that a level of safety equivalent to or greater than that 
provided by the regulation would be maintained. The exemption renewal 
is for 5 years.

DATES: This renewed exemption is effective October 21, 2022 and expires 
on October 21, 2027. Comments must be received on or before November 
25, 2022.

ADDRESSES: You may submit comments identified by Federal Docket 
Management System (FDMS) Number FMCSA-2017-0054 by any of the following 
methods:
     Federal eRulemaking Portal: www.regulations.gov. See the 
Public Participation and Request for Comments section below for further 
information.
     Mail: Dockets Operations, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, 
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor, 
Room W12-140, 1200 New Jersey Avenue SE, between 9 a.m. and 5 p.m. 
E.T., Monday through Friday, except Federal holidays.
     Fax: (202) 493-2251.
    Each submission must include the Agency name and the docket number 
(FMCSA-2017-0054) for this notice. Note that DOT posts all comments 
received without change to www.regulations.gov, including any personal 
information included in a comment. Please see the Privacy Act heading 
below.
    Docket: For access to the docket to read background documents or 
comments, go to www.regulations.gov at any time or visit Room W12-140 
on the ground level of the West Building, 1200 New Jersey Avenue SE, 
Washington, DC, between 9 a.m. and 5 p.m., ET, Monday through Friday, 
except Federal holidays. To be sure someone is there to help you, 
please call (202) 366-9317 or (202) 366-9826 before visiting Dockets 
Operations.
    Privacy Act: In accordance with 49 U.S.C. 31315(b), DOT solicits 
comments

[[Page 64838]]

from the public to better inform its exemption 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 https://www.transportation.gov/privacy, the comments are searchable by the name 
of the submitter.

FOR FURTHER INFORMATION CONTACT: Mr. Luke Loy, Vehicle and Roadside 
Operations Division; Office of Carrier, Driver and Vehicle Safety 
Standards, FMCSA, at (202) 366-0676 or by email at [email protected]. If 
you have questions on viewing or submitting material to the docket, 
contact Dockets Operations at (202) 366-9826.

SUPPLEMENTARY INFORMATION:

I. Public Participation and Request for Comments

    FMCSA encourages you to participate by submitting comments and 
related materials.

Submitting Comments

    If you submit a comment, please include the docket number for this 
notice (FMCSA-2017-0054), indicate the specific section of this 
document to which the comment applies, and provide a reason for 
suggestions or recommendations. You may submit your comments and 
material online or by fax, mail, or hand delivery, but please use only 
one of these means. FMCSA recommends that you include your name and a 
mailing address, an email address, or a phone number in the body of 
your document so the Agency can contact you if it has questions 
regarding your submission.
    To submit your comment online, go to www.regulations.gov and enter 
the docket number (``FMCSA-2017-0054'') in the ``Keyword'' box, then 
click ``Search.'' When the new screen appears, click on the ``Comment'' 
button and type your comment into the text box in the following screen. 
Choose whether you are submitting your comment as an individual or on 
behalf of a third party and then submit. If you submit your comments by 
mail or hand delivery, submit them in an unbound format, no larger than 
8\1/2\ by 11 inches, suitable for copying and electronic filing. If you 
submit comments by mail and would like to know that they reached the 
facility, please enclose a stamped, self-addressed postcard or 
envelope. FMCSA will consider all comments and material received during 
the comment period.

II. Legal Basis

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315(b)(2) and 49 
CFR 381.300(b) to renew an exemption from the Federal Motor Carrier 
Safety Regulations (FMCSRs) for a 5-year period if it finds ``such 
exemption would likely achieve a level of safety that is equivalent to, 
or greater than, the level that would be achieved absent such 
exemption.'' UPS has requested a five-year extension of the current 
exemption in Docket No. FMCSA-2017-0054.

III. Background

Current Regulatory Requirements

    Section 395.26(b) of title 49 of the Code of Federal Regulations 
requires an ELD to automatically record 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; (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)).
    Section 395.28(a) of title 49 of the Code of Federal Regulations 
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) 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 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 the 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).

Original Exemption and Application for Renewal of Exemption

    In 2017, FMCSA granted a five-year exemption to UPS and all motor 
carriers and drivers from two provisions of the FMCSRs under specified 
terms and conditions (82 FR 48883, Oct. 20, 2017). The exemption 
expires on October 20, 2022. The exemption allows CMV drivers using 
portable electronic ELDs to manually record data that would otherwise 
be required to be automatically recorded when a driver indicates a 
change of duty status or logs in or out of an ELD (49 CFR 395.26(c) and 
395.26(g)). Under the exemption, those requirements do not apply to a 
driver using a portable ELD unless the driver is in the CMV with the 
engine powered. The exemption also allows motor carriers to configure 
their ELD devices so that a driver can enter yard moves under 49 CFR 
395.38(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 re-set to ``none'' if the ELD or CMV's engine goes through a 
power-off cycle or the CMV's engine turns off then on.
    UPS requested renewal of the exemption on the same basis as stated 
in its original application, noting that the conditions which 
necessitated the exemption still exist, and that it has safeguards in 
place to ensure an equivalent level of safety. For example, regarding 
the automatic recording of data elements portion of the exemption, UPS 
stated that its drivers are generally hourly drivers and use portable 
ELD devices and perform a significant amount of work outside of the 
CMV. UPS also noted that drivers generally use the ELD device to 
``punch in'' while they are still in the building and then remain on 
the clock and logged in after they leave the CMV until they return to 
the dispatch office. Automatic logging of events is not practicable for 
drivers using portable EDLs because the ELD device is not synchronized 
to the engine's electronic control module (ECM) when the driver is 
outside the CMV. UPS notes that renewal of the exemption would provide 
an equivalent level of safety because there will be no impact on 
recording driving time and the data elements that will not be 
automatically recorded by the ELD at a change in duty status or log on/
log out while away from the CMV are not critical provided the driver 
properly annotates the ELD record to indicate the proper duty status as 
required by the regulation and the exemption.
    Regarding the yard moves portion of the exemption, UPS noted that 
its feeder drivers are required to complete yard moves as part of their 
scheduled work and that the drivers can be assigned yard duty for a 
portion of their shift which may require moving as many as 10 loads per 
hour within the yard. UPS noted that as a safety precaution its drivers 
are required to remove the keys

[[Page 64839]]

from the CMV each time they exit and that the driver will power the 
tractor down to couple and uncouple a trailer. UPS stated that an 
average UPS site has over 90 drivers with the majority completing 
several yard moves a day. Complying with the specifications in 
4.3.2.2.2(d) of appendix A to subpart B of part 395, would require them 
to enter manual changes of duty status as many as 20 times in an hour. 
UPS estimated that use of the current exemption has resulted in 
significant cost savings to it without any degradation in safety. It 
notes that by continuing to comply with the conditions of the original 
exemption motor carriers using this exemption will ensure that the 
``yard move'' mode is properly reserved for yard moves and that an 
equivalent level of safety will be achieved. A copy of UPS' application 
to renew the exemption is included in the docket referenced at the 
beginning of this notice.

IV. Equivalent Level of Safety

    In its 2017 decision approving the original exemption application, 
FMCSA noted that the December 2015 ELD final rule (80 FR 78292) 
provides a performance-based standard for ELDs and that motor carriers 
may select from a wide variety of ELDs within the marketplace of ELD 
providers. This includes the type of portable ELD units used by UPS.
    The ELD functions required by the ELD 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 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 
determined 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 ELD 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 determines 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 agreed that safety would 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.
    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.
    In its application for renewal, UPS states that it has not 
discovered any safety issues while operating under the exemption and 
that it will continue to monitor its safety data. FMCSA is unaware of 
any evidence of a degradation of safety attributable to the current 
exemption for UPS or any other motor carriers and drivers. FMCSA 
concludes that provisionally extending the exemption granted on October 
20, 2017, for another five years, under the terms and conditions in 
this exemption renewal, will likely achieve a level of safety that is 
equivalent to, or greater than, the level of safety achieved without 
the exemption.

V. Exemption Renewal Decision

A. Grant of Exemption Renewal

    FMCSA provisionally renews the exemption for a period of five years 
subject to the terms and conditions of this decision and the absence of 
public comments that would cause the Agency to terminate the exemption 
under section V.F. below. This exemption renewal is otherwise effective 
October 21, 2022, through October 21, 2027, 11:59 p.m. local time, 
unless renewed or rescinded.

B. Applicability of Exemption

    The exemption allows (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.

C. Terms and Conditions

    When operating under this exemption, motor carriers and drivers are 
subject to the following terms and conditions:
    (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 
aAppendix 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

[[Page 64840]]

likely be equivalent to, or greater than, the level of safety achieved 
without the exemptions.
    (3.) Motor carriers and drivers must comply with all other 
applicable Federal Motor Carrier Safety Regulations (49 CFR part 350-
399).
    (4.) The drivers must provide this exemption document to 
enforcement officials upon request.

D. Preemption

    In accordance with 49 U.S.C. 31315(d), as implemented by 49 CFR 
381.600, during the period this exemption is in effect, no State shall 
enforce any law or regulation that conflicts with or is inconsistent 
with this exemption with respect to a firm or person operating under 
the exemption. States may, but are not required to, adopt the same 
exemption with respect to operations in intrastate commerce.

E. Notification to FMCSA

    All motor carriers and drivers must notify FMCSA within 5 business 
days of any crash (as defined in 49 CFR 390.5) involving any of its 
CMVs operating under the terms of this exemption. The notification must 
include the following information:
    (a) Name of the exemption: ``UPS Renewal 2022'';
    (b) Date of the crash;
    (c) City or town, and State, in which the crash occurred, or 
closest to the crash scene;
    (d) Driver's name and license number;
    (e) Vehicle number and State license number;
    (f) Number of individuals suffering physical injury;
    (g) Number of fatalities;
    (h) The police-reported cause of the crash;
    (i) Whether the driver was cited for violation of any traffic laws, 
motor carrier safety regulations;
    (j) A copy of the accident report, if available; and
    (k) The driver's total driving time and total on-duty time prior to 
the crash.
    Reports filed under this provision shall be emailed to 
[email protected].

F. Termination

    FMCSA does not believe that UPS and other motor carriers and 
drivers covered by this exemption renewal will experience any 
deterioration of their safety record. The exemption will be rescinded 
if: (1) motor carriers and drivers operating under the exemption fail 
to comply with the terms and conditions of the exemption; (2) the 
exemption has resulted in a lower level of safety than was maintained 
before it was granted; or (3) continuation of the exemption would not 
be consistent with the goals and objects of 49 U.S.C. 31136(e) and 
31315.

VI. Request for Comments

    In accordance with 49 U.S.C. 31315(b), FMCSA requests public 
comment from all interested persons on UPS, Inc.'s application for 
renewal of the exemption 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. 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.

Robin Hutcheson,
Administrator.
[FR Doc. 2022-23312 Filed 10-25-22; 8:45 am]
BILLING CODE 4910-EX-P