Parts and Accessories Necessary for Safe Operation; Application for an Exemption From United Parcel Service Inc. |
|---|
Topics: UPS
|
Larry W. Minor
Federal Motor Carrier Safety Administration
9 June 2017
[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
[[Page 26833]]
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
[[Page 26834]]
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