Hours of Service (HOS) of Drivers; Applications for Exemption From the Electronic Logging Device Rule

Raymond A. Martinez
Federal Motor Carrier Safety Administration
7 December 2018

[Federal Register Volume 83, Number 235 (Friday, December 7, 2018)]
[Notices]
[Pages 63194-63196]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-26597]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Dockets No. FMCSA-2017-0243, FMCSA-2017-0296, FMCSA-2017-0337, FMCSA-
2017-0340, FMCSA-2017-0342, FMCSA-2017-0356, FMCSA-2017-0361, FMCSA-
2017-0373, FMCSA-2018-0003, FMCSA-2017-0336]


Hours of Service (HOS) of Drivers; Applications for Exemption 
From the Electronic Logging Device Rule

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

ACTION: Notice of final disposition; denial of applications for 
exemption.

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SUMMARY: As required by statute, FMCSA announces denials of 10 
applications for exemptions from the hours-of service (HOS) electronic 
logging device (ELD) rule. The applicants are as follows: Power and 
Construction Contractors Association; Western Equipment Dealers 
Association; Association of Energy Service Companies; Cudd Energy 
Services, Inc.; SikhsPAC and North American Punjabi Trucker 
Association; Owner- Operator Independent Drivers Association, Inc.; 
American Disposal Service; Towing and Recovery Association of America; 
National Electrical Contractors Association; and the Agricultural 
Retailers Association. The Agency reviewed each application and any 
comments received and rendered each decision based upon the merits of 
the application.

DATES: On June 16, 2018, FMCSA denied 9 applications for exemption and 
on July 26, 2018, the Agency denied the application of the Agricultural 
Retailers Association.

FOR FURTHER INFORMATION CONTACT: Ms. Pearlie Robinson, FMCSA Driver and 
Carrier Operations Division; Office of Carrier, Driver and Vehicle 
Safety Standards; Telephone: 202-366-4325. Email: MCPSD@dot.gov.

SUPPLEMENTARY INFORMATION: 

Background

    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. 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 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. In the case of denials, 49 U.S.C. 31315 explicitly states that 
the Agency may meet the requirements by periodically publishing in the 
Federal Register the names of persons denied exemptions and the reasons 
for the denials.

Applications for Exemption

    The current hours-of-service (HOS) regulations in 49 CFR 395.8(a) 
require motor carriers subject to the regulation to ensure their 
drivers use ELDs in place of written logs to record their duty status 
for each 24-hour period. Additionally, Part 395 lists certain ELD 
exceptions for short-haul operations within a 100 air-mile radius and 
agricultural operations within a 150 air-mile radius.
    The 10 applicants cited below applied for an exemption from the 
requirement to use an ELD to record HOS for drivers subject to the 
regulation for various reasons. FMCSA published Federal Register 
notices requesting public comment on each application. Each notice 
established a docket to provide the public an opportunity to inspect 
the application and other docketed information, such as comments of 
others submitted to the docket. Details of the Agency's analysis 
follows.

Power and Construction Association (PCCA)

    The PCCA requested that motor carriers and drivers operating 
commercial motor vehicles (CMVs) in the power and communication 
construction industry be allowed to use paper records of duty status 
(RODS) instead of ELDs. PCCA noted that construction contractors spend 
considerable time off-road on varying jobsites; a single CMV may have 
several different drivers over the course of a day, moving the vehicle 
short distances around the jobsite. Due to the limited time that their 
drivers spend driving on public roads within a workday, PCCA states 
that the ELD and RODS requirements for drivers in its industries do not 
result in a significant safety benefit.
    FMCSA reviewed the application and the 259 public comments 
submitted. On June 16, 2018, FMCSA denied PCCA's application for 
exemption because the Agency could not ensure that the exemption would 
provide the requisite level of safety. A copy of the denial letter is 
available for review in the docket (FMCSA-2017-0243).

Western Equipment Dealers Association (WEDA)

    WEDA requested this exemption from ELD use on behalf of several 
organizations and their members. Effectively, the requested exemption 
would eliminate the requirement for agricultural equipment dealers to 
install ELDs on their CMVs. WEDA stated that equipment dealer 
operations in agriculture present unique circumstances that warrant the 
requested exemption and that the failure to grant it would pose an 
undue burden on equipment dealers and their customers without a 
measurable safety benefit.
    FMCSA reviewed the application and the 125 public comments 
submitted. On June 16, 2018, FMCSA denied WEDA's application for 
exemption because the Agency could not ensure that the exemption would 
provide the requisite level of safety. A copy of the denial letter is 
available for review in the docket (FMCSA-2017-0296).

Association of Energy Service Companies (AESC)

    AESC requested this exemption to allow all drivers of well service 
rigs to complete paper RODS instead of using an ELD whenever the 
drivers exceeded the requirements of the short-haul exception. 
According to AESC, complying with the ELD requirement would be overly 
burdensome for well

[[Page 63195]]

service rig contractors without providing any measurable safety 
benefit. AESC further explained that well service rig drivers spend 
very little time on public roads, in contrast to long-haul truck 
drivers who spend most of their on-duty hours driving on public roads.
    FMCSA reviewed the application and the 8 public comments submitted. 
On June 16, 2018, FMCSA denied AESC's application for exemption because 
the Agency could not ensure that the exemption would provide the 
requisite level of safety. A copy of the denial letter is available for 
review in the docket (FMCSA-2017-0337).

Cudd Energy Services, Inc. (CES)

    CES requested an exemption from the ELD requirements for its 
specially trained drivers of specially constructed CMVs used in 
oilfield operations to allow drivers of these infrequently driven CMVs 
to complete paper RODS instead of using an ELD. FMCSA regulations 
prohibit these drivers from using the short-haul exceptions to the HOS 
rules. CES believes that the exemption would not have any adverse 
impacts on operational safety because drivers would remain subject to 
the HOS regulations as well as the requirements to maintain paper RODS.
    FMCSA reviewed the application and the 8 comments submitted. None 
of the comments supported the exemption. On June 16, 2018, FMCSA denied 
AESC's application for exemption because the Agency could not ensure 
that the exemption would provide the requisite level of safety. A copy 
of the denial letter is available for review in the docket (FMCSA-2017-
0340).

SikhsPAC and North American Punjabi Trucker Association (Applicants)

    These applicants requested an exemption from the ELD requirements 
on behalf of their members (fresh produce shippers and small truck 
businesses). According to the applicants, many of their members were 
not fully prepared to meet the December 18, 2017, compliance date. The 
exemption would allow members involved in segments of America's 
agricultural transportation industry to delay using ELDs for one year. 
The applicants asserted that the exemption, if granted, would give the 
marketplace time necessary to develop cost-effective and practical 
solutions for the specific needs of impacted stakeholders and would 
allow FMCSA time to address training programs with compliant ELD 
options.
    FMCSA reviewed the application and the 41 comments submitted. On 
June 16, 2018, FMCSA denied the application. The information provided 
by the applicants failed to distinguish the drivers who would be 
included under the exemption. The applicants failed to indicate how 
they could ensure that the exemption would achieve a level of safety 
equivalent to, or greater than, the level of safety that would be 
obtained by compliance with the HOS regulation. A copy of the denial 
letter is available for review in the docket (FMCSA-2017-0342).

Owner-Operator Independent Drivers Association, Inc. (OOIDA)

    OOIDA requested a five-year exemption from the ELD rule for certain 
motor carriers considered to be a small transportation trucking 
business under 13 CFR 121.201. If granted, the exemption would cover 
small trucking businesses that do not have a carrier safety rating of 
``unsatisfactory,'' and that can document a proven history of safety 
performance with no attributable at-fault crashes.
    FMCSA reviewed the application and approximately 4,090 comments 
submitted. An estimated 96 percent of the comments were from owner-
operators in favor of the exemption. Approximately 4 percent of the 
comments were in opposition to the proposed exemption. On June 16, 
2018, FMCSA denied the application. FMCSA noted that most of the 
content of the application challenges the basis of the ELD rule itself, 
rather than justifying an exemption for a specific segment of drivers 
under applicable statutory standards. FMCSA noted further that the 
application provided no consideration of the significant difficulty 
that would be encountered in trying to identify and validate drivers 
who meet the proposed exemption criteria, especially during roadside 
inspections. A copy of the denial letter is available for review in the 
docket (FMCSA-2017-0356).

American Disposal Service (ADS)

    ADS is a trash hauling and recycling company operating in four 
States, with over 300 drivers who hold CDLs. ADS has been using the 
multiple stop rule, ``treating all the stops in a village, town or city 
as one.'' ADS operations fall under the 100 air-mile short haul 
exemption in Section 395.1(e)(1). When drivers exceed the 12-hour 
limitation more than 8 times in any 30 consecutive days, ADS is 
required to install and use ELDs in its CMVs.
    ADS applied for the exemption from the ELD and paper RODS 
requirements because the company does not believe ELDs can accurately 
record driving time when the CMV makes constant short movements with 
the driver often exiting the vehicle. FMCSA reviewed the application 
and the 10 comments submitted. On June 16, 2018, FMCSA denied the 
application. FMCSA concluded that ADS had not clearly explained how its 
non-use of ELDs and its discontinued use of paper RODS would reach the 
current level of safety that compliance with the HOS rules provides. A 
copy of the denial letter is available for review in the docket (FMCSA-
2017-0361).

Towing and Recovery Association of America (TRAA)

    TRAA is the national towing association representing more than 
35,000 towing companies in all 50 states. TRAA has requested a 5-year 
exemption for all operators of CMVs owned or leased to providers of 
motor vehicle towing, recovery, and roadside repair services while 
providing such services. TRAA states that towing industry operations 
represent a unique and vital segment of the overall transportation 
industry in America that warrants exemption from the ELD regulations. 
TRAA believes that failure to grant the exemption will cause confusion 
and create an overly complex regulatory framework that will pose an 
undue burden on towers and their customers without any measurable 
benefit to public safety.
    FMCSA reviewed the application and the 250 comments submitted. On 
June 16, 2018, FMCSA denied the application. FMCSA concluded that 
TRAA's plan for the continued use of paper RODS and the process for 
reviewing the RODS to verify accuracy would be comparable to the level 
of safety provided by paper RODS prior to the implementation of the ELD 
rule but would not achieve the equivalent level of safety that would be 
achieved by the use of ELDs. A copy of the denial letter is available 
for review in the docket (FMCSA-2017-0373).

National Electrical Contractors Association (NECA)

    NECA requested an exemption from the requirement to use an ELD on 
CMVs used by 4,000 contractor members who install, repair, and maintain 
the infrastructure of electrical utilities. NECA believes the ELD 
requirement burdens its members' operations unnecessarily. It proposed 
to continue to use paper logs to record their HOS.
    FMCSA reviewed the application and the 275 comments submitted. Many 
of the comments were form letters in support of the application. On 
June 16, 2018, FMCSA denied the application. FMCSA was unable to 
determine from

[[Page 63196]]

the application and the public comments whether operations under the 
requested exemption would provide a requisite level of safety. A copy 
of the denial letter is available for review in the docket (FMCSA-2018-
0003).

Agricultural Retailers Association (ARA)

    ARA applied for exemption from the ELD requirement on behalf of its 
members who are retailers and distributors of farm-related products and 
services. ARA members rely on CMVs to deliver their products and 
services to farms. ARA asserted that its members were not prepared to 
meet the December 18, 2017 deadline for complying with the ELD rule and 
sought to obtain postponement of the deadline.
    FMCSA reviewed the application and the 117 comments submitted. On 
July 26, 2018, FMCSA denied the application. FMCSA was unable to 
determine from the application and the public comments whether 
operations under the requested exemption would provide a requisite 
level of safety. A copy of the denial letter is available for review in 
the docket (FMCSA-2017-0336).

Conclusion

    FMCSA has reviewed these applications carefully and the comments 
received and has concluded that each application lacks sufficient merit 
to justify the exemptions sought. Accordingly, FMCSA denies each 
application.

    Issued on: November 30, 2018.
Raymond A. Martinez,
Administrator.
[FR Doc. 2018-26597 Filed 12-6-18; 8:45 am]
 BILLING CODE 4910-EX-P