Hours of Service of Drivers: Application for Exemption; Small Business in Transportation Coalition

Larry W. Minor
Federal Motor Carrier Safety Administration
13 April 2020

[Federal Register Volume 85, Number 71 (Monday, April 13, 2020)]
[Notices]
[Pages 20562-20564]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-07730]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2019-0239]


Hours of Service of Drivers: Application for Exemption; Small 
Business in Transportation Coalition

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

ACTION: Application for exemption; final determination.

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SUMMARY: FMCSA announces its decision to deny the Small Business in 
Transportation Coalition's (SBTC) request for reconsideration of its 
application for exemption from the electronic logging device (ELD) rule 
that was denied by the Agency on July 17, 2019. SBTC has resubmitted 
its application for exemption from the ELD requirements for all motor 
carriers with fewer than 50 employees, including, but not limited to, 
one-person private and for-hire owner-operators of commercial motor 
vehicles used in interstate commerce. SBTC believes that the exemption 
would not have any adverse impacts on operational safety as motor 
carriers and drivers would remain subject to the hours-of-service (HOS) 
regulations, as well as the requirements to maintain paper records of 
duty status (RODs). FMCSA has analyzed SBTC's petition for 
reconsideration and the public comments received and has determined 
that neither the applicant nor the commenters provided information that 
would change the Agency's previous decision to deny the exemption.

FOR FURTHER INFORMATION CONTACT: Ms. La Tonya Mimms, Chief, FMCSA 
Driver and Carrier Operations Division; Office of Carrier, Driver and 
Vehicle Safety Standards; Telephone: (202) 366-4325; 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: 

[[Page 20563]]

I. 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)).
    When the Agency denied a request for an exemption, the applicant 
may be allowed to resubmit the application, if the applicant can 
reasonably address the basis for denial. 49 U.S.C. 31315(b)(3).

II. Background

    On December 16, 2015, FMCSA published the Electronic Logging 
Devices and Hours of Service Supporting Documents final rule (80 FR 
78292). The ELD rule applies to most motor carriers and drivers who are 
required to keep RODS. The compliance date for the ELD requirement was 
December 18, 2017.
    On June 5, 2018, FMCSA published SBTC's application for exemption 
and requested public comment (83 FR 26140). SBTC reports it is a non-
profit trade organization with more than 8,000 members. SBTC states 
that it ``represents, promotes, and protects the interest of small 
businesses in the transportation industry. Through the exemption 
application, SBTC sought relief from the ELD requirements for small 
private, common and contract motor carriers with fewer than 50 
employees. SBTC argued:

    ``[T]he ELD rule is not a ``safety regulation'' per se as the 
FMCSA has concluded. Rather it is a mechanism intended to enforce a 
safety regulation by regulating the manner in which a driver records 
and communicates his compliance. That is, it is merely a tool to 
determine compliance with an existing rule that regulates over-the-
road drivers' driving and on duty time, namely the actual safety 
regulation: the [hours-of- service] regulations codified at 49 CFR 
395.3 and 395.5. However, the ELD rule is not a safety regulation 
itself. Therefore, it is our position that this rule does not itself 
impact safety, and that the level of safety will not change based on 
whether or not our exemption application is approved. That would 
require a change to the [hours-of-service rules].''

    On July 9, 2018, FMCSA extended the public comment period at the 
request of the SBTC (83 FR 31836). The Agency received more than 1,900 
comments to the docket [Docket No. FMCSA-2018-0180]. Most of the 
comments favored granting the exemption. On July 17, 2019, the Agency 
published notice of its decision to deny SBTC's application for 
exemption (84 FR 34250) and listed the following reasons for the 
denial:
     Failing to provide the name of the individual or motor 
carrier that would be responsible for the use or operation of 
commercial motor vehicles (CMVs) under the exemption [49 CFR 
381.310(b)(2)];
     Failing to provide an estimate of the total number of 
drivers and CMVs that would be operated under the terms and conditions 
of the exemption [Sec.  381.310(c)(3)]; and
     Failing to explain how an equivalent level of safety would 
be achieved [Sec.  381.310(c)(5)].

III. Request for Reconsideration of Agency Decision

    SBTC requested FMCSA to reconsider its denial of the ELD exemption. 
According to SBTC, the reason for not providing an estimate of the 
number of drivers and CMVs that would be operating under the exemption 
is that SBTC is a trade group, not a single carrier. SBTC argues that a 
trade group would not know the number of employees eligible for the 
exemption. Regarding that question, SBTC deferred to the Agency because 
FMCSA is the custodian of MCS-150 industry data. SBTC believes that it 
has identified the percentage of carriers that would be affected by the 
exemption but does not know a way to extrapolate the number of drivers 
from the estimated 3.5 million truck drivers in the U.S. without 
deferring to FMCSA for that information.

IV. Equivalent Level of Safety

    To ensure an equivalent level of safety, SBTC suggests a return to 
paper logs. According to SBTC, ``Paper logs were deemed sufficient to 
ensure adequate levels of safety for generations, more than 80 years. 
And the FMCSA has already issued numerous exemptions that require 
carriers to revert to tracking their hours of service using paper logs 
in lieu of ELDs . . .'' SBTC argues that ELDs have caused reckless 
speeding and pose a national security threat. SBTC urges FMCSA to look 
carefully at the unintended consequences of the ELD rule when deciding 
whether or not to grant the exemption. SBTC also suggests that FMCSA 
temporarily grant the exemption ``if for no other reason than to press 
the pause button while [FMCSA] studies these unintended consequences 
and their adverse effects on safety. We contend this would indeed 
achieve a greater level of overall safety than the current status 
quo.''

V. Public Comments

    On October 29, 2019, FMCSA published SBTC's petition for 
reconsideration and requested public comment (84 FR 57932). The Agency 
received approximately 355 comments, more than 300 of which favored the 
exemption. For example, Mr. Michael Garrison said, ``I support the ELD 
exemption application. Please grant the exemption. The 14-hour rule is 
forcing drivers to drive when they are tired and is a major safety 
concern.'' Mr. Dahl Warren wrote, ``I support the ELD exemption 
especially for small carriers. There is no need for these carriers to 
have the expense burden that the ELDs create.''
    Only a few commenters opposed the exemption: the Commercial Vehicle 
Safety Alliance (CVSA), Truckload Carriers Association (TCA) and Mr. 
Michael Millard. CVSA wrote, ``In their request for reconsideration, 
SBTC reiterates the same claims about paper logs and does not provide 
any additional method of ensuring an equivalent level of safety.'' TCA 
stated, ``In comments submitted to the Agency in July 2018, TCA opposed 
the Small Business in Transportation Coalition's (SBTC) initial request 
for an exemption from the ELD requirements and we now oppose the 
group's petition for reconsideration.'' Mr. Millard said, ``The FMCSA 
should again deny the SBTC's request to assure a level platform among 
all carriers large and small in following the HOS. Removing the ELD 
from the HOS equation allows those using paper RODS an upper hand and 
questionable HOS compliance.''

VI. FMCSA Decision

    The FMCSA carefully reviewed SBTC's petition for reconsideration, 
as well as the public comments. The

[[Page 20564]]

Agency has concluded that SBTC provided no additional information that 
would alter its decision to deny SBTC's 2018 exemption application. For 
example, instead of providing the information required by subpart C of 
49 CFR part 381 for reconsideration, SBTC presented arguments for not 
providing the information. SBTC's application still does not provide 
the number of drivers and CMVs that would be covered by the exemption, 
nor does SBTC explain how an equivalent level of safety would be 
achieved by continuing to use paper logs. Therefore, the Agency denies 
this application for exemption from the ELD rule and reaffirms its 
previous denial.

Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2020-07730 Filed 4-10-20; 8:45 am]
 BILLING CODE 4910-EX-P