2019-23561. Hours of Service of Drivers: Application for Exemption; Small Business in Transportation Coalition

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Notice of application for exemption; request for comments.

SUMMARY:

FMCSA announces that the Small Business in Transportation Coalition (SBTC) seeks 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 requests public comment on SBTC's application for reconsideration.

DATES:

Comments must be received on or before November 29, 2019.

ADDRESSES:

You may submit comments identified by Federal Docket Management System (FDMS) Number FMCSA-2019-0239 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: [phone].
• 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:

Ms. Pearlie Robinson, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; Telephone: [phone]; Email: [e-mail]. If you have questions on viewing or submitting material to the docket, contact Docket Services, telephone [phone].

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-2019-0239), 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-2019-0239” 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 81/2 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)).

III. 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 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 [§ 381.310(c)(3)]; and
• Failing to explain how an equivalent level of safety would be achieved [§ 381.310(c)(5)].

IV. Request for Reconsideration of Agency Decision

Through this application SBTC is requesting FMCSA to reconsider its denial of the exemption from the ELD rule. SBTC provided responses to each of FMCSA's reasons for denying its application. 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. SBTC deferred that question 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.

A copy of SBTC's application for reconsideration of the Agency's denial is available for review in the docket for this notice.

V. 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 supports its argument with the belief that ELDs have caused reckless speeding and pose national security threats. 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.”

Issued on: October 23, 2019.

Larry W. Minor,

Associate Administrator for Policy.