Hours of Service of Drivers: Application for Exemption; Motion Picture Association of America |
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Cathy F. Gautreaux
Federal Motor Carrier Safety Administration
19 January 2018
[Federal Register Volume 83, Number 13 (Friday, January 19, 2018)]
[Notices]
[Pages 2869-2871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-00846]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2017-0298]
Hours of Service of Drivers: Application for Exemption; Motion
Picture Association of America
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of final disposition; grant of application for
exemption.
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SUMMARY: FMCSA grants the Motion Picture Association of America (MPAA)
a five-year exemption from the electronic logging device (ELD)
requirements for all commercial motor vehicle (CMV) drivers providing
transportation to or from a theatrical or television motion picture
production site. MPAA requested this exemption to allow these drivers
to complete paper records of duty status (RODS) instead of using an ELD
device. FMCSA has determined that the unique aspects of these drivers'
operations, combined with additional oversight of their paper RODS, is
equivalent to that which
[[Page 2870]]
would result from the use of ELDs for their particular operations, and
therefore provides an equivalent level of safety.
DATES: This exemption is effective January 19, 2018 and expires January
19, 2023.
FOR FURTHER INFORMATION CONTACT: For information concerning this
notice, contact Mr. Tom Yager, Chief, FMCSA Driver and Carrier
Operations Division; Office of Carrier, Driver and Vehicle Safety
Standards; Telephone: 614-942-6477. Email: MCPSD@dot.gov. If you have
questions on viewing or submitting material to the docket, contact
Docket Services, telephone (202) 366-9826.
SUPPLEMENTARY INFORMATION:
I. Public Participation
Viewing Comments and Documents
To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to www.regulations.gov and insert
the docket number, ``FMCSA-2017-0298 in the ``Keyword'' box and click
``Search.'' Next, click the ``Open Docket Folder'' button and choose
the document to review. If you do not have access to the internet, you
may view the docket online by visiting the Docket Management Facility
in Room W12-140 on the ground floor of the DOT West Building, 1200 New
Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m.,
e.t., Monday through Friday, except Federal holidays.
II. Legal Basis
FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant
exemptions from certain parts of the Federal Motor Carrier Safety
Regulations (FMCSRs). FMCSA must publish a notice of each exemption
request in the Federal Register (49 CFR 381.315(a)). The Agency must
provide the public 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 safety analyses and public comments submitted,
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)) with the reasons for denying or granting the application
and, if granted, the name of the person or class of persons receiving
the exemption, and the regulatory provision from which the exemption is
granted. The notice must also specify the effective period and explain
the terms and conditions of the exemption. The exemption may be renewed
(49 CFR 381.300(b)).
III. Request for Exemption
MPAA requested an exemption from the final rule on ELD requirements
published in the Federal Register on December 16, 2015 (80 FR 78292).
The exemption would allow all drivers of CMVs providing transportation
of passengers and property to and from a theatrical or television
motion picture production site to complete paper RODS instead of using
an ELD device on or after December 18, 2017, the compliance date for
the ELD rule. The term of the requested exemption is five years,
subject to renewal.
MPAA reported that approximately 6,500 CMV drivers operate CMVs on
a full- or part-time basis for the motion picture industry. According
to HOS data developed by third party compliance services, these drivers
spend on average less than four hours each day driving and drive about
40 miles per day. Their resulting RODs are often very complex, as are
the driver HOS records that employing motor carriers must keep. Through
close cooperation, the industry has been able to manage the extensive
interchange of paper RODs that this work pattern requires. MPAA
asserted that industry's success in HOS management is based on a system
that is driver-based rather than vehicle-based.
According to MPAA, few production drivers qualify for the short-
haul driver exception in 49 CFR 395.1(e)(1)(ii)(A) because they often
exceed the 12-hour limit and therefore may be subject to the ELD
requirements. Each time a production driver operates a CMV for a
different studio or production company, the motor carrier and the
driver must reconcile the driver's HOS record for the past week. At
present, cooperation between production companies, various Teamsters
locals, and drivers can reduce the burden of this detailed
reconciliation. And under the current rules, drivers themselves can
manage the necessary paper RODS, carry them to each new CMV, and
transfer paper copies to each new motor carrier as needed. When a
roadside inspection occurs, a driver can produce paper RODS for review
by the enforcement official.
MPAA contends that the lack of interoperability among ELD platforms
developed by various manufacturers means that motion picture company
drivers will not be able to transfer HOS data from one carrier to other
carriers.
MPAA states \1\ that the motion picture industry (MPI):
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\1\ www.regulations.gov, Docket Item FMCSA-2017-0298-0027, Filed
by Alicia Leahy for MPAA on November 28, 2017.
``. . . has developed a comprehensive database that contains HOS
data, making it easier for motor carriers to keep track of drivers'
cumulative HOS and prevent HOS violations from occurring, all while
protecting the confidentiality of each motor carrier's private
records. This is true even when the driver has worked for a separate
USDOT# within the MPI within the prior 7-day period or same 24-hour
period. This same level of safety, compliance, and visibility to the
driver's hours of service is impossible in the current ELD
landscape.
``Current regulatory requirements designate that drivers submit
logs within 13 days of the 24-hour period to which the record
pertains. 49 CFR 395.8(a)(2)(ii). MPAA Member companies go above and
beyond by requiring drivers to submit RODS within 24 hours of the
duty period to which the record pertains, which is a 12-day
reduction in the timeframe otherwise required.''
``The RODS are then reviewed by third-party auditing companies,
resulting in accelerated reporting of HOS compliance and an
independent assessment of accuracy. This allows any concerns that
may be discovered in the review to be expeditiously addressed by the
employing motor carrier that is ultimately responsible for
enforcement of the regulations. Member companies' current practices
include reviewing driver payroll records and other supporting
documentation such as fuel receipts, inspection reports, vehicle
records and receipts, expense receipts, schedules, bill of lading,
etc. to verify the accuracy of the paper logs'' [emphasis in
original].
A copy of MPAA's application for exemption is available for review
in the docket for this notice.
V. Public Comments
On October 27, 2017, FMCSA published notice of this application and
requested public comments (82 FR 49771). The Agency received 29
comments. Eight respondents, including Teamsters Local 399 and the
International Brotherhood of Teamsters (IBT), provided support for the
exemption. Eleven respondents, including the Advocates for Highway and
Auto Safety (Advocates) and the Commercial Vehicle Safety Alliance
(CVSA), opposed the exemption. Ten respondents commented about the ELD
rule but did not comment on MPAA's application.
Among supporters of the application, Teamsters Local 399, which has
4,500 members in the motion picture and television industry, stated
that ``[t]he AMPTP [Alliance of Motion Picture and
[[Page 2871]]
Television Producers], it's signatory Studios and Producers spend
millions of dollars, year after year, decade after decade, keeping
themselves and Teamster drivers in compliance throughout the United
States. Paper logs for our industry have been practiced, preached and
perfected with safe and accurate results for multiple Studios,
Production Companies and thousands of drivers in the motion picture
industry that are employed by them.''
Among opponents of the application, Advocates concluded that MPAA
``does not meet the statutory and regulatory requirements for the
exemption. The Application fails to justify the need for the exemption,
provide an analysis of the safety impacts the requested exemption may
cause, or provide information on the specific countermeasures to be
undertaken to ensure that the exemption will achieve an equivalent or
greater level of safety than would be achieved absent the exemption.''
CVSA registered its opposition by noting that ``exemptions from
federal safety regulations have the potential to undermine safety,
while also complicating the enforcement process. The Federal Motor
Carrier Safety Regulations and the Hazardous Materials Regulations
exist to ensure that those operating in the transportation industry are
equipped to do it safely.''
VI. FMCSA Response
FMCSA has evaluated MPAA's application and the public comments. The
Agency disagrees with commenters' remarks that MPAA has not justified
the need for the exemption or provided specific countermeasures. MPAA
has outlined their unique operational issues that justify not using
ELDs and clearly explained the special handling of their RODs that
ensures a high level of accuracy to provide the equivalent level of
safety.
We note at the outset that Congress has recognized the unique
aspects of the motion picture industry's operations and has provided
statutory exceptions from some HOS regulations.\2\ The industry's
drivers generally operate short distances and normally spend much of
their time off duty. Therefore, Congress has allowed these drivers
longer work days and drive time compared to the normal hours-of-service
rules.
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\2\ See Section 4133 of SAFETEA-LU (119 Stat. 1744) (set out as
a note to 49 U.S.C. 31136).
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Because of the nature of their operations, motion picture industry
drivers often will continue to use the same paper RODS from one carrier
to another. In these unique circumstances, using an ELD system would
provide little additional accuracy to the HOS data because most duty
status information would be manually entered by the drivers and
interoperability between the systems is not required. As MPAA states,
the paper log provides continuity for the carrier and enforcement to
evaluate compliance, regardless of the number of carriers for which the
driver is operating in a given 7-day or even 24-hour period. FMCSA
acknowledges that, given the unique arrangements under which drivers in
the motion picture industry routinely operate for multiple carriers
over brief periods of time, paper RODS may prove more efficient than
ELDs.
In addition, MPAA members are required to submit their RODS within
24 hours, rather than waiting for the 13-day period allowed by 49 CFR
395.8. According to MPAA, these ``RODS are reviewed by a third-party
auditing company, resulting in accelerated reporting of HOS compliance
and an independent assessment of accuracy.'' In view of the heightened
scrutiny of HOS records to which drivers in the motion picture industry
are subject to (as described in the MPAA statement in Section III,
above), FMCSA believes that drivers operating under this exemption will
achieve a level of safety equivalent to or greater than the level of
safety that would be achieved through the use of ELDs [49 CFR
381.305(a)].
VII. Decision
For the reasons addressed above, and subject to the terms and
conditions set forth in Section VIII, FMCSA grants MPAA's request for
an exemption from the ELD requirement under 49 CFR 395.8(a).
VIII. Terms and Conditions of the Exemption
1. Drivers operating under the exemption are exempt from the ELD
requirement under 49 CFR 395.8(a).
2. The exemption is effective January 19, 2018 and, unless revoked
at an earlier date, expires January 19, 2023.
3. Drivers must have a copy of this notice or equivalent signed
FMCSA exemption document in their possession while operating under the
terms of the exemption. The exemption document must be presented to law
enforcement officials upon request.
4. Carriers operating under this exemption may not have an
``Unsatisfactory'' rating with FMCSA or be subject to any imminent
hazard or out of service orders.
Preemption
In accordance with 49 U.S.C. 31315(d), 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 in interstate commerce.
Notification to FMCSA
Exempt motor carriers must notify FMCSA within 5 business days of
any accident (as defined in 49 CFR 390.5), involving any of their CMVs
operating under the terms of the exemption. The notification must
include the following information:
(a) Name of the exemption: ``MPAA,''
(b) Name of the operating motor carrier,
(c) Date of the accident,
(d) City or town, and State, in which the accident occurred, or
closest to the accident scene,
(e) Driver's name and license number,
(f) Vehicle number and State license number,
(g) Number of individuals suffering physical injury,
(h) Number of fatalities,
(i) The police-reported cause of the accident,
(j) Whether the driver was cited for violation of any traffic laws
or motor carrier safety regulations, and
(k) The driver's total driving time and total on-duty time period
prior to the accident.
Reports filed under this provision shall be emailed to
MCPSD@DOT.GOV.
Termination
FMCSA does not anticipate the drivers covered by this exemption to
experience any deterioration of their safety record. Nevertheless,
interested parties or organizations possessing information that would
otherwise show that any or all of these motor carriers are not
achieving the requisite statutory level of safety should immediately
notify FMCSA. The Agency will evaluate any information submitted and,
if safety is being compromised or if the continuation of the exemption
is inconsistent with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA will
immediately take steps to revoke the exemption of the company or
companies and drivers in question.
Issued on: January 12, 2018.
Cathy F. Gautreaux,
Deputy Administrator.
[FR Doc. 2018-00846 Filed 1-18-18; 8:45 am]
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