New York is required by 49 USC Section 31141 to adopt and enforce the minimum safety standards on commercial motor vehicles and is generally preempted from applying either more stringent standards or more lax standards to motor carriers engaged in interstate commerce. In addition to the legislative mandate, New York is a participant in the Motor Carrier Safety Assistance Program (MCSAP) pursuant to an agreement most recently approved on January 9, 2017. Pursuant to this agreement, New York assumes the role and obligation of performing motor carrier enforcement for FMCSA in return for federal funding that amounts to $14,775,210 for the current fiscal year. As a condition of this agreement, New York must annually certify that it has adopted and is enforcing the current version of the federal rules. New York, through its Department of Transportation (NYSDOT) has previously adopted the relevant federal regulations for the purpose of motor carrier operation, regulation and enforcement. The purpose of this update is to assure the application of the 2017 edition of the federal rules, rather than the application of the 2013 edition that was last adopted in 2015.

This emergency rule provides for the timely adoption of the 2017 edition of the federal rules and thus brings New York into compliance with the three-year MCSAP compatibility requirement prescribed by 49 CFR part 350.331(c).

1. Statutory authority:

Transportation Law section 14(18), Transportation Law section 140, and Transportation Law section 211. This is an update to a more recent edition of federal motor carrier regulations that have been incorporated by reference into New York regulations. The commissioner of transportation is empowered to prescribe rules and regulations concerning the safety of motor carriers by Transportation Law section 14(18). Transportation Law section 140 empowers the commissioner to prescribe rules and regulations in relation to motor carrier safety. Transportation Law section 211 authorizes the commissioner to promulgate rules and regulations governing the hours of service of drivers of trucks and motor buses.

2. Legislative objectives:

The legislative objective is to promote and enforce public safety and responsibility of motor carriers that are subject to regulation by the Federal Motor Carrier Safety Administration (FMCSA). FMCSA regulations are set forth in Title 49 of the Code of Federal Regulations (CFR). New York is required by 49 USC Section 31141 to adopt and enforce the minimum safety standards on commercial motor vehicles and is generally preempted from applying either more stringent standards or more lax standards to motor carriers engaged in interstate commerce. In addition to the legislative mandate, New York is a participant in the Motor Carrier Safety Assistance Program (MCSAP) pursuant to an agreement most recently approved on January 9, 2017. Pursuant to this agreement, New York assumes the role and obligation of performing motor carrier enforcement for FMCSA in return for federal funding that amounts to $14,775,210 for the current fiscal year. As a condition of this agreement, New York must annually certify that it has adopted and is enforcing the current version of the federal rules.

New York, through its Department of Transportation (NYSDOT) has previously adopted the relevant federal regulations for motor carrier operation, regulation and enforcement.

Most of the federal motor carrier vehicle safety standard regulations date back to their initial adoption in 1968. Over the last five decades there have been occasional changes, most of which have been minor. Hours of Service (HOS) rules for drivers of commercial motor vehicles date back to 1938 and the Interstate Commerce Commission. In 2005, the FMCSA issued the first of their changes to the HOS rules.

As concerns the adoption of 49 CFR Part 395 into 17 NYCRR 820.6 pertaining to the hours of service of drivers, the legislative objective has been and is “to promote safe driving of commercial motor vehicles (CMVs) by limiting on-duty driving time, thereby ensuring that drivers have adequate time to obtain rest. FMCSA conducts regular checks at the roadside and performs in-depth compliance reviews to ensure that drivers are operating within the HOS limits.” There is no change in this objective related to this update to the current version of Part 395. What has changed between the 2013 version and the 2017 version of Part 395 are some changes related to roadside inspection, and most significantly, the addition of Subpart B to Part 395 that mandates the use of “Electronic Logging Devices” (ELDs) for certain classes of motor carriers under certain circumstances as spelled out in the newer version of the CFR.

ELDs are electronic devices that automatically record driving time and facilitate electronic recording of other duty status categories, and provide the same information currently collected on paper records of duty status (RODS). The update to the current version of Part 395 by a consensus rule met with objections from the Owner-Operator Independent Drivers Association, Inc. (“OOIDA”) making consensus adoption of the update impossible and triggering this rulemaking. Based upon the 29 pages of public comment objecting to the consensus update, OOIDA takes issue with truck inspections, in general, and takes specific exception with the ELD mandate in Part 395. None of the stated comments/objections by OOIDA would appear to pertain to the general updates to the newer version of the CFR outside of Part 395. However, because the CFR books contain multiple parts, it became impossible to proceed by consensus even for any other changes between the 2013 and 2017 versions of the regulations.

3. Needs and benefits:

The purpose of this rulemaking is to comply with federal requirements. These requirements include those imposed by law, as well as those assumed pursuant to the agreement by the State of New York to participate in the Motor Carrier Safety Assistance Program (MCSAP). MCSAP is a grant program under regulatory provisions in 49 CFR Part 350 that contributes half the cost of enforcing safety regulations on commercial motor carriers operating within or through the state. Concerning HOS enforcement, adoption of the ELD mandate will better assure compliance with HOS regulations that have long been recognized as the key to preventing accidents that occur because of fatigued driving.

NYSDOT is simply updating the version of the federal motor carrier regulations to the edition published in 2017. The regulations referencing the version of the CFR are 17 NYCRR Sections 154-1.1(f), 154-2.1(e), 720.12(a), 721.3(f), 721.6, 750.3, 820.13, and 855.2. Pursuant to the MCSAP agreement, these updates to the references to the CFR must put New York into compliance with the CFR within three years of the most current edition. These periodic updates are normally effected by a consensus rule because New York has no choice but to adopt the federal regulations and because, until now, nobody had expressed any objections to the periodic update bringing New York into compliance with national standards for motor carriers as adopted by FMCSA.

The changes effected by updating the edition of the CFR are normally very minor, and nationally applicable. These regulations that are already enforced by NYSDOT and cooperating police agencies and are not changing. The update to the current edition of the federal rules does result in some limited situations where enforcement of the updated rule may impose additional requirements on the motor carriers that are subject to FMCSA regulation. The only known situation where the proposed update changes motor carrier requirements involves the ELD mandate and the manner that hours of service (HOS) inspections and enforcement will be undertaken using data that may now be required to come from an ELD as opposed to data from a log book that was previously allowed.

There were delays in the implementation of the final rule at FMCSA from 2010 through 2017 because of challenges at FMCSA, including a challenge by OOIDA that was resolved in the 7th Circuit Court of Appeals. Owner Operator Ind. Drivers Ass’n v. United States DOT, 840 F.3d 879 (7th Cir. 2016). The ELD final rule made changes to the technical requirements. Specifically, the final rule simplified the data transfer options and exempted vehicles with a pre-2000 model year from the ELD requirement.

4. Costs:

The FMCSA undertook extensive study over a period of many years at untold expense to formulate what they call a “Regulatory Evaluation of Electronic Logging Devices and Hours of Service” in support of the ELD rule in Part 395. This effort culminated in a document that is 170 pages in length. FMCSA published a synopsis of their findings in in 80 FR 78292 (publication date 12/16/2015. A copy of the 253-page document will posted on the Department’s webpage at https://www.dot.ny.gov/divisions/operating/osss/bus/rules-regulations.

The ELD mandate requires that certain motor carriers equip their vehicles with ELDs and incur other expenses projected to total $1,836 per year. The ELD mandate also makes it more difficult for motor carriers to evade responsibility for HOS violations. The cost-benefit analysis utilized by FMCSA when the ELD mandate was adopted in Part 395 estimates that implementation of the rule results in significant savings on paperwork (including labor expenses) and crash reductions that are valued at $3,010 per year. The FMCSA regulatory impact statement thus estimates a net annual financial benefit to motor carriers of $1,174.

The Department initiates rulemaking of this nature as a nondiscretionary, ministerial undertaking pursuant to higher authority. The purpose of incorporating 49 CFR Part 395 into 17 NYCRR Part 820 is to require motor carriers operating within and through this state to utilize the most accurate, tamperproof and error free-technology for recordation of records on hours of service of drivers of commercial motor vehicles. These electronic devices record automatically and the records they create will replace paper logbooks, that are frequently found to be incomplete, inaccurate or missing altogether. With the arguable exception for implementation of the ELD mandate, it is not expected that updating to the 2017 version of the CFR will have any significant cost impacts on motor carriers that are subject to NYSDOT/FMCSA regulation and enforcement. The necessary update makes no changes to the longstanding and current system of commercial motor vehicle enforcement. Most truck and/or driver inspections are performed roadside under the “pervasively regulated industry” exception to the Fourth Amendment of the U.S. Constitution.

5. Local government mandates:

The rule imposes no local government mandates.

6. Paperwork:

The paperwork requirements relating to motor carrier safety regulations are prescribed by the underlying regulations. No increase in the paperwork requirements will be occasioned by the update in the incorporated version of the federal regulations.

As concerns the adoption of the ELD mandate in Part 395 of the HOS regulations, utilization of the ELD is projected to result in a reduction of paperwork because the ELD automatically records driving time and facilitates electronic recording of other duty status categories, and provides the same information currently collected on paper records of duty status (RODS). In this way, the ELD replaces the log books that have been used in the past. FMCSA estimates that the paperwork savings connected to adoption of the ELD rule have an annual value of $2,438.60 per year per truck.

7. Duplication:

There are no duplications, overlaps or conflicts associated with the rule.

8. Alternatives:

There is no alternative to adoption of the update to the version of the federal rules. New York is required to apply the federal rules and has agreed to do so under the MCSAP agreement. Failure to timely adopt the update will put New York in violation of the federal law and constitute a breach of the MCSAP agreement and result in the loss of federal assistance estimated to be $14,775,210 for the current fiscal year.

9. Federal standards:

49 USC Section 31141 requires New York to adopt and enforce the minimum safety standards on commercial motor vehicles as adopted by FMCSA and New York is generally preempted from applying either more stringent standards or more lax standards to motor carriers engaged in interstate commerce.

10. Compliance schedule:

FMCSA allowed for a gradual roll-out of the ELD mandate with the federal rule taking effect in December of 2017, and enforcement delayed until April 1, 2018. Because of objections to the consensus update, New York has not begun to do any enforcement of the ELD mandate. Unless the ELD mandate is implemented in New York, the State will face the elimination of MCSAP funding. Adoption is therefore a matter of high priority and will be effected as soon as possible.

1. Effect of rule. The rule serves to effect an update to the edition of the federal motor carrier safety regulations that apply to commercial motor carriers. This update will result in no changes to the requirements for commercial motor carriers to comply with regulations and submit to routine roadside vehicle/driver inspections and safety audits. Some of the requirements applicable to vehicle safety may involve minor changes as New York conforms to the current federal standards. As concerns the hours of service for drivers covered by 49 CFR Part 395, the updated version adds Subpart B that now requires certain drivers for motor carriers to equip vehicles with Electronic Logging Devices (ELDs). FMCSA has compiled national estimates on the number of businesses affected by this ELD rule. For hire general and specialized freight, private property carriers and for hire and private passenger together totaled 539,000, of which 533,970 were classified as small businesses. As such, the percentage of such operators constitute most of the target population, to wit: “… FMCSA estimates that 99.1 percent of regulated motor carriers are small businesses according to Small Business Administration (SBA) size standards.” 80 FR 78292, *78376. There are no specific figures available for New York.

2. Compliance requirements. As concerns the ELD requirement in 49 CFR Part 395, FMCSA conducted extensive investigations into the issue of cost to small business nationwide, which are thoroughly documented in 80 FR 78292 on the Department’s webpage at https://www.dot.ny.gov/divisions/operating/osss/bus/rules-regulations. One paragraph pertinent to this category is this: “ELDs can lead to significant paperwork savings that can offset the costs of the devices. The Agency, however, recognizes that these devices entail an up-front investment that can be burdensome for small carriers. At least one provider, however, provides free hardware and recoups the cost of the device over time in the form of higher monthly operating fees. The Agency is also aware of lease-to-own programs that allow carriers to spread the purchase costs over several years. Nevertheless, the typical carrier will likely be required to spend about $584 per Commercial Motor Vehicle (CMV) to purchase and install ELDs. In addition to purchase costs, carriers will also likely spend about $20 per month per CMV for monthly service fees.” 80 FR 78292, *78378. Costs were considered justified to achieve the benefits of the rule.

3. Professional services. As concerns the ELD requirement in 49 CFR Part 395, professional services are not broken out in the federal analysis as a standalone category. Device installation and maintenance are included in the cost of the devices and associated equipment installation. Driver training costs are $9.4 (in 2013 millions) nationwide. Both categories of expenditure are likely to be offset by time savings realized by discontinuance of hours of service recordation with paper logbooks and the clerical expense associated with that recordkeeping.

4. Compliance costs. As concerns the ELD requirement in 49 CFR Part 395, costs of improved hours of service compliance per ELD was computed nationwide at $286 per CMV for long haul operators and $193 per CMV for short haul operators (in 2013 dollars).

5. Economic and technological feasibility. FMCSA analysis did not determine economic or technological feasibility to be constraining factors in implementation of the ELD rule.

6. Minimizing adverse impact. Because small businesses comprise such a large portion of the motor carrier population subject to the Federal Motor Carrier Safety Regulations (FMCSRs), FMCSA stated in the 2011 NPRM that it is neither feasible nor consistent with the Agency's safety mandate to allow a motor carrier to be excepted from the requirement to use Automatic on Board Recording Devices (AOBRs) based only on its status as a small business entity. As the state is constrained from altering the federal regulation, there is no methodology to achieve a minimization of adverse impact. The updated version of 49 CFR Part 395 does include exceptions to the ELD mandate where a driver may use a log book as proof of compliance with Record of Duty Status requirements (normally a log book) under the following circumstances: (1) the vehicle is used no more than eight days in any 30-day period, (2) a driveaway-towaway operation in which the vehicle is driven is part of the shipment being delivered, (3) a driveaway-towaway operation in which the vehicle is driven is a motor home or a recreational vehicle trailer or (4) the vehicle was manufactured before model year 2000.

7. Small business and local government participation. Small business was afforded ample opportunity to participate in the federal rulemaking associated with the ELD rule. As that process has closed and the federal ELD rule is now in effect, there is no ability to reopen the public participation initiative at the state level.

8. Cure period or other opportunity for ameliorative action: Pursuant to SAPA 202-b(1-a)(b), no such cure period is included in the rule. The rule involves an update to the applicable federal regulations that apply to motor carriers. There was a gradual roll-out period leading to the adoption, implementation and enforcement of the ELD rule. The rule became effective at the federal level in December of 2017. No enforcement was to occur before April 1, 2018. Because this update has not been effected in New York, enforcement of the ELD rule will not occur until adoption. There is no additional cure period for the avoidance of penalties associated with the violation of the ELD rule as such would be counter to provisions of the Federal Motor Carrier Safety Assistance Program (MCSAP) agreement in force. Per 49 CFR 350.335: (a) FMCSA may initiate a proceeding to withdraw Plan approval or withhold MCSAP funds in accordance with 49 CFR 320.215 in the following situations: (1) When a State that currently has compatible CMV safety laws and regulations pertaining to interstate commerce (i.e., rules identical to the FMCSRs and Hazardous Material Regulations (HMRs) or have the same effect as the FMCSRs and identical to the HMRs) and intrastate commerce (i.e., rules identical to or within the tolerance guidelines for the FMCSRs and identical to the HMRs) enacts a law or regulation which results in an incompatible rule.

1. Types and estimated numbers of rural areas. The proposed rulemaking involves an update to the edition of federal motor carrier regulations that have previously been incorporated by reference into state regulations. The only material change expected from this update is the addition of the mandate for Electronic Logging Devices (ELDs) for certain commercial motor vehicles for the purpose of enforcing 49 CFR Part 395 on the hours of service of drivers. This update is supported, in part, by the Regulatory Evaluation of Electronic Logging Devices supporting the adoption of the final rule at FMCSA dating from November 2015. This Regulatory Impact Analysis does not include an analysis of the rulemaking associated with ELD on commercial motor carriers situated or operating primarily within rural areas as defined by federal law. The purpose of the ELD rule, to reduce the incidence of commercial motor vehicle accidents due to driver fatigue is unaffected by external factors related to the area of operation being rural as opposed to urban; as such, analysis focused on rural areas would not have produced data disposed to produce consequences on the rulemaking. The rule applies across the state. Per SAPA section 102(10): ““Rural area” means those portions of the state so defined by subdivision seven of section four hundred eighty-one of the executive law,” to wit: ““Rural areas” means counties within the state having less than two hundred thousand population, and the municipalities, individuals, institutions, communities, programs and such other entities or resources as are found therein. In counties of two hundred thousand or greater population, “rural areas” means towns with population densities of one hundred fifty persons or less per square mile, and the villages, individuals, institutions, communities, programs and such other entities or resources as are found therein.” Federal law does not provide a definition of “rural area” strictly comparable to the state definition. Per 49 USC section 5302(16), “The term "rural area" means an area encompassing a population of less than 50,000 people that has not been designated in the most recent decennial census as an "urbanized area" by the Secretary of Commerce.” It should be noted that under 17 NYCRR Section 820.6(b)(1), “the operation of a commercial motor vehicle owned by a farmer and operated by himself or an employee when used in the hauling of farm, dairy, or horticultural products and farm supplies for himself or his farm neighbors to market” is excepted, so that the applicability of the ELD mandate to farmers is limited. There is also an exemption for farm vehicles engaged in most interstate operations found at 49 CFR Section 390.39, including the requirements in Part 395.

2. Reporting, recordkeeping and other compliance requirements and professional services. Motor carrier regulation and enforcement is not expected to change significantly from that provided under the existing regulations. As concerns the new requirement for ELDs, recordkeeping is reduced in that ELD driver record of duty status is recorded automatically and retained electronically, rather than via manual recordation retained on paper. Compliance costs include purchase, installation and maintenance of the ELD. Professional services may include driver training in the use of the device all of which are discussed in costs below. Per the 2015 federal RIA, “Substantial paperwork and recordkeeping burdens are … associated with HOS rules, including time spent by drivers filling out and submitting paper RODS and time spent by motor carrier staff reviewing, filing, and maintaining these RODS. ELDs will eliminate clerical tasks associated with the RODS and significantly reduce the time drivers spend recording their HOS. These paperwork reductions offset most of the costs of the devices.” The types and numbers of rural areas in which affected entities may be domiciled is undetermined but is considered irrelevant to the purpose of the rulemaking. Commercial motor carriers headquartered in rural areas are not expected to encounter disproportionate operational or regulatory compliance costs related to the incorporation of federal safety standards associated with ELD into Title 17 NYCRR.

3. Costs. As concerns the ELD requirement, the initial capital costs as are described in the RIA Part 3. ‘Costs of Final Rule’ on the Department’s webpage at https://www.dot.ny.gov/divisions/operating/osss/bus/rules-regulations. The total annualized cost of ELD with Universal Serial Bus (USB) at 5 and 10-year replacement intervals at $166; the cost was compiled from vendor marketing material so it does not reflect actual expenditures, which may vary depending on the size of carrier fleets.

4. Minimizing adverse impact. As incorporation of 49 CFR Part 395 into Title 17 regulations is mandatory the Department has no discretion to alter the federal regulatory provisions to furnish relief to rural area carriers. However, the FMCSA received a comment in 2014 which made them aware of important wireless coverage issues: “A rural transit provider stated that connectivity is not available in many areas, so Internet and cellphone reception is not possible. ELDs that rely on such connectivity are not viable.”

5. Rural area participation. 49 USC section 30103(b) provides that a state, “… may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter...”; as such, the agency provided no public or private interests in rural areas with the opportunity to participate in the rule making process for the purpose of determining how to modify the federal ELD regulations to minimize cost or complexity, as a less stringent regulation on the subject would be preempted.

1. Nature of impact: The proposed rule changes are advanced periodically to retain consistency of Title 17 NYCRR with Title 49 CFR provisions related to safe operation of commercial motor vehicles; said CFR provisions are incorporated by reference. Since the Department last adopted such updates by incorporation of the 10/1/2013 edition of CFR safety provisions in January 2015, commercial motor carriers subject to hours of service (HOS) requirements have been required under new federal mandates to transition from paper logbooks to electronic logging devices (ELD) to document compliance with limitations on hours behind the wheel, termed “record of duty status” (RODS). Said federal regulations were adopted with a compliance date of December 18, 2017 in 80 FR 78292. The present rule update serves to capture that material by incorporation and is not expected to have a significant impact on jobs; the associated New York State Department of Transportation (NYSDOT) enforcement activity will be consistent with past practice.

2. Categories and numbers affected: Federal rules except limited numbers of commercial motor carriers from compliance with ELD requirement. Most motor carriers whose drivers currently maintain paper logbooks are required to transition to ELD and those excepted must continue to maintain paper logbooks if required to document RODS. Exclusion of small businesses was considered but ultimately rejected by FMCSA as inconsistent with the federal statutory framework under which rulemaking is undertaken (80 FR 78292, *78313).

3. Regions of adverse impact: Inspections and reviews are conducted pursuant to Department policy and there is no variance in the methodology across regions. No adverse impact on jobs in any particular region is anticipated.

4. Minimizing adverse impact: Cost estimates for compliance with the ELD mandate vary depending on the number of vehicles a carrier has in operation. Larger carriers are expected to enjoy significant cost savings, whereas smaller carriers and single operators may see modest cost increases of a few hundred dollars per vehicle, that are expected to evaporate over time as the ELD becomes standard equipment in newer model commercial vehicles and such vehicles replace older ones in the operator’s fleets. FMCSA determined that time savings to drivers and carriers from filling out, submitting, and handling paper can exceed the annualized costs of equipping and maintaining ELD. The possible cost increases that may occur in certain cases were estimated to not likely exceed a few hundred dollars per year and were not considered to represent a significant impact. Business case studies performed by FMCSA following the implementation of electronic management systems consistently revealed the cost of compliance management, including truck mounted data terminal hardware, to be 30% lower than manual compliance management procedures used for paper logs (80 FR 78292, *78344).

Title 17 NYCRR regulations must remain consistent with the CFR, per 49 USCS section 31141. As such, NYSDOT reviews and inspections are performed using the standards that are found in the CFR regulations incorporated by reference in 17 NYCRR. Neither the frequency of inspections nor the basis for NYSDOT enforcement action is expected to change in any way post adoption of the instance rulemaking, so categories and numbers affected remain status quo. The purpose of performing motor carrier enforcement activities is the advancement of public safety through verification of compliance with state law and regulation pertaining to motor carrier safety; consequently, there are no adverse impacts.