Hours of Service of Drivers: Application for Exemption; Western Equipment Dealers Association (WEDA)

Larry W. Minor
Federal Motor Carrier Safety Administration
27 October 2017

[Federal Register Volume 82, Number 207 (Friday, October 27, 2017)]
[Proposed Rules]
[Pages 49770-49771]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-23403]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 395

[Docket No. FMCSA-2017-0296]


Hours of Service of Drivers: Application for Exemption; Western 
Equipment Dealers Association (WEDA)

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

ACTION: Application for exemption; request for comments.

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SUMMARY: FMCSA announces that the Western Equipment Dealers Association 
(WEDA) has requested an exemption on behalf of several other 
organizations and their membership from the requirement that no later 
than December 18, 2017, a motor carrier require each of its drivers to 
use an electronic logging device (ELD) to record the driver's hours-of-
service (HOS). WEDA states that equipment dealer operations in 
agriculture constitute unique circumstances that warrant the requested 
exemption, and not granting it will pose an undue burden on equipment 
dealers and their customers without any measurable safety benefit. In 
its application, WEDA seeks a five-year, renewable exemption from the 
ELD requirements which, the organization states, if granted will 
achieve a level of safety equivalent to, or greater than, the level 
that would be achieved absent the proposed exemption. FMCSA requests 
public comment on WEDA's application for exemption.

DATES: Comments must be received on or before November 27, 2017.

ADDRESSES: You may submit comments identified by Federal Docket 
Management System (FDMS) Number FMCSA-2017-0296 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: Docket Management Facility, 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., 
Monday through Friday, except Federal holidays.
     Fax: 1-202-493-2251.
     Each submission must include the Agency name and the 
docket number 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. The on-line FDMS is available 24 hours each 
day, 365 days each year.
    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.

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 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-2017-0296), 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 comments online, go to www.regulations.gov and put 
the docket number, ``FMCSA-2017-0296'' in the ``Keyword'' box, and 
click ``Search.'' When the new screen appears, click on ``Comment 
Now!'' 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 and may grant or not grant this application 
based on your comments.

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)).

[[Page 49771]]

III. Request for Exemption

    WEDA filed this application for exemption on behalf of its own 
organization and the following: Northeast Equipment Dealers 
Association; North Dakota Implement Dealers Association; Midwest-South 
Eastern Equipment Dealers Association; Far West Equipment Dealers 
Association; Deep South Equipment Dealers Association; Equipment 
Dealers Association and the United Equipment Dealers Association.
    These groups represent approximately 6,000 farm, industrial and 
outdoor power equipment dealers in North America. WEDA states that in 
the agriculture sector, equipment dealers play a key role in selling 
and servicing equipment for farmers and ranchers, as they transport 
machinery to and from farms and between dealerships. They partner with 
agricultural producers to increase productivity through the training 
and use of new equipment technologies. Complying with the ELD 
requirement will be unduly burdensome for equipment dealers and their 
customers--farmers and ranchers, without providing the sought-after 
safety advancements contemplated by the rule.
    Many of the vehicles owned by equipment dealers require a 
commercial driver's license to operate. When transporting equipment to 
and from the farm, on behalf of the farmer, they are either delivering 
new equipment or transporting equipment to a dealership to be serviced. 
Equipment dealers also employ service trucks that drive to farms and 
ranches to work on customer's equipment and deliver parts to the 
customer's location. In either instance, these vehicles usually operate 
within a confined distance from the dealership of less than 150 miles, 
and are primarily in rural regions of their respective states.
    WEDA states that due to the seasonal, unpredictable and rural 
nature of agriculture production, Congress has granted agriculture 
businesses numerous exemptions from transportation requirements. The 
clear intent was to accommodate agricultural operations by broadening 
the scope of existing agribusiness exemptions in terms of distance and 
types of entities covered by the exemption because the reality of 
farming and ranching operations required it.
    WEDA explains that the agribusiness exemption to the HOS rules is 
separate and distinct from the short-haul exemption. Under 49 CFR 
(k)(1-3), equipment dealers are exempt from HOS and log book 
requirements during State-defined harvest and planting seasons when: 
(1) Transporting farm supplies for an agricultural purpose; (2) from 
the dealership to a farm; and (3) within a 150 air-mile radius of the 
distribution point. This exemption, however, does not cover 
transportation of equipment from the farm to a dealership.
    The ELD rule, according to WEDA, creates confusing and overlapping 
scenarios due to the conflicting rules placed on equipment dealers. 
Depending on the State definition of harvest and planting season, an 
equipment dealer may be required to install an ELD for only the couple 
of months of the year when the agribusiness exemption is not in effect. 
The agribusiness exemption is limited in scope; therefore, an equipment 
dealer could be exempt from using an ELD in certain cases, while still 
required to utilize an ELD in others.
    The ELD requirements threaten to limit the exemptions and weave a 
complex regulatory framework that would be difficult for equipment 
dealers to comply with, advises WEDA. The short-haul and agribusiness 
exceptions apply in different scenarios at different times, and it is 
unclear in the first instance whether both can be combined to cover a 
single driving operation. For example, the agribusiness exemption would 
not currently apply to an equipment dealer hauling a broken tractor 
from a farm to the dealership for repair. The short-haul exemption 
would apply, though, so long as the farm is within 100 miles and the 
HOS requirements are met. However, suppose a service truck hauling a 
trailer visits a farm 120 miles from the dealership to repair a 
tractor. After attempting repairs for several hours and working beyond 
12 hours in the day, the technician must return with the tractor or 
another piece of equipment to perform services at the dealership. The 
short haul exemption would not apply because it is beyond the 100-mile 
radius and the HOS requirements have been exceeded, nor would the 
agribusiness exemption apply because a driver is not covered while 
transporting equipment from a farm to the dealership. The driver would 
then be required to record the entirety of the day's driving on an ELD 
because no exemption applies. This is but one scenario of many where 
three complex rules overlap at different intervals to create confusion 
about the regulations that should be followed, and do not contribute to 
increased safety for the driver or the driving public.
    As a practical matter, WEDA states that equipment dealers are 
required to install ELDs in all of their commercial vehicles despite 
never or very rarely utilizing them. Because of the complex and 
confusing overlap, many dealers will install and utilize ELDs when 
unnecessary to avoid harsh penalties including thousands of dollars in 
fines and potential shutdown orders. Equipment dealers will not claim 
the exemptions intended for them by Congress because the confusion and 
complexity spawned by the ELD rule creates the risk of penalties being 
imposed which outweigh the benefits. The result will be severely 
diminished hours of operation for equipment dealers, and, consequently, 
reduced responsiveness to their customers. Costs and downtime for 
farmers and ranchers will undoubtedly increase making their agriculture 
producers less competitive in a global market.

IV. Method To Ensure an Equivalent or Greater Level of Safety

    WEDA states that its request falls within the FMCSA's discretion to 
grant because the law currently provides overlapping exemptions and 
exceptions that, taken together with the ELD mandate, create confusing 
and contradicting requirements for equipment dealers. In addition, 
equipment dealers' operations constitute unique aspects that should 
warrant an exemption from the ELD rules. WEDA therefore seeks a five-
year, renewable exemption from the ELD requirements in the Federal 
regulations. WEDA believes the request should be granted because the 
exemption will achieve a level of safety equivalent to, or greater 
than, the level that would be achieved absent the proposed exemption.
    A copy of WEDA's application for exemption is available for review 
in the docket for this notice.

    Issued on: October 23, 2017.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2017-23403 Filed 10-26-17; 8:45 am]
 BILLING CODE 4910-EX-P