Notice2022-23312
Hours of Service; United Parcel Service Inc.; Application for Exemption Renewal
Primary source
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Published
October 26, 2022
Effective
October 21, 2022
Issuing agencies
Transportation DepartmentFederal Motor Carrier Safety Administration
Abstract
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.
Full Text
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<title>Federal Register, Volume 87 Issue 206 (Wednesday, October 26, 2022)</title>
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[Federal Register Volume 87, Number 206 (Wednesday, October 26, 2022)]
[Notices]
[Pages 64837-64840]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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:
<bullet> Federal eRulemaking Portal: <a href="http://www.regulations.gov">www.regulations.gov</a>. See the
Public Participation and Request for Comments section below for further
information.
<bullet> Mail: Dockets Operations, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor,
Room W12-140, Washington, DC 20590-0001.
<bullet> 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.
<bullet> 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 <a href="http://www.regulations.gov">www.regulations.gov</a>, 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 <a href="http://www.regulations.gov">www.regulations.gov</a> 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 <a href="http://www.regulations.gov">www.regulations.gov</a>. As described in the system
of records notice DOT/ALL 14--FDMS, which can be reviewed at <a href="https://www.transportation.gov/privacy">https://www.transportation.gov/privacy</a>, 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 <a href="/cdn-cgi/l/email-protection#5b372e303e753734221b3f342f753c342d"><span class="__cf_email__" data-cfemail="771b021c12591b180e3713180359101801">[email protected]</span></a>. 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 <a href="http://www.regulations.gov">www.regulations.gov</a> 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
<a href="/cdn-cgi/l/email-protection#7e333d2e2d283e3a312a50393128"><span class="__cf_email__" data-cfemail="662b253635302622293248212930">[email protected]</span></a>.
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
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.