[Federal Register Volume 68, Number 238 (Thursday, December 11, 2003)]
[Notices]
[Pages 69117-69119]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30692]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2003-15818]


Exemption To Allow Werner Enterprises, Inc. To Use Global 
Positioning System (GPS) Technology To Monitor and Record Drivers' 
Hours of Service

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

ACTION: Notice of intent to grant exemption; request for comments.

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SUMMARY: FMCSA proposes to grant an exemption to Werner Enterprises, 
Inc. (Werner) from the requirement that drivers of commercial motor 
vehicles (CMVs) operating in interstate commerce prepare handwritten 
records of duty status (RODS). Werner would instead document its 
drivers' hours of service through the use of GPS technology and 
complementary computer software programs. Werner has used GPS 
technology manufactured by Qualcomm, Inc. and computer software 
programs to manage and record its drivers' duty status since June 10, 
1998, when it entered into a Memorandum of Understanding (MOU) with the 
agency. The MOU was based on the agency's April 6, 1998, notice of 
interpretation concerning the use of such technology. Werner and FMCSA 
revised the MOU in March 2002. The agency proposes that the terms and 
conditions for the exemption be the same as those contained in the 
revised MOU, with a few exceptions based on recent discussions between 
FMCSA and Werner. FMCSA has monitored closely Werner's use of the GPS 
technology since June 1998. Based on this experience, the agency 
believes that the terms and conditions of the exemption would achieve a 
level of safety equivalent to, or greater than, that provided by 
complying with the current RODS requirements.

DATES: Submit comments on or before January 12, 2004.

ADDRESSES: You may submit comments identified by DOT DMS Docket Number 
FMCSA-2003-15818 by any of the following methods:
    [sbull] Web site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
    [sbull] Fax: 1-202-493-2251.
    [sbull] Mail: Docket Management Facility, U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-0001.
    [sbull] Hand Delivery: Room PL-401 on the plaza level of the Nassif 
Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays.
    [sbull] Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Instructions: All submissions must include the agency name and 
docket number for this notice. Note that all comments received will be 
posted without change to http://dms.dot.gov including any personal 
information provided. Please see the Privacy Act heading for further 
information.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov and/or Room PL-401 on the 
plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.
    Privacy Act: Anyone may search the electronic form of all comments 
received into any of DOT's dockets by the name of the individual 
submitting the comment (or of the person signing the comment, if 
submitted on behalf of an association, business, labor union, or other 
entity). You may review DOT's complete Privacy Act Statement in the 
Federal Register (65 FR 19477, Apr. 11, 2000). This statement is also 
available at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Larry W. Minor, Chief of the 
Vehicle and Roadside Operations Division (MC-PSV), (202) 366-4009, 
FMCSA, 400 Seventh Street, SW., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Background

    On April 6, 1998, FMCSA published a notice of interpretation (63 FR 
16697, Apr. 6, 1998) requesting motor carriers to participate in a 
``pilot demonstration project'' (the Project). The Project was a 
voluntary program under which motor carriers with GPS technology and 
related safety management computer systems could enter into an 
agreement with the agency to use such systems to record and monitor 
drivers' hours of service in lieu of complying with the handwritten 
records of duty status (RODS) requirement of 49 CFR 395.8. The agency 
indicated that it believes GPS technology and many of the complementary 
safety management computer systems being used by the motor carrier 
industry provide at least the same degree of monitoring accuracy as 
automatic on-board recorders allowed by 49 CFR 395.15. The original 
deadline for submitting applications was October 5, 1998, with 
subsequent extensions to June 30, 1999 (63 FR 71791, Dec. 30, 1998), 
and December 31, 1999 (64 FR 37689, Jul. 13, 1999). The extensions were 
provided because numerous motor carriers contacted the agency to 
express an interest in participating in the Project. Although 
participation in the Project was open to all interested motor carriers, 
Werner was the only company to sign a memorandum of understanding (MOU) 
with the agency to allow the use of GPS technology.

Status of Werner's Participation in the Project

    On June 10, 1998, Werner entered into an MOU with the agency to use 
GPS technology and related safety management computer systems as an 
alternative to handwritten driver RODS. A copy of the MOU is included 
in the docket referenced at the beginning of this notice. Over the 
course of the pilot demonstration project, FMCSA conducted onsite 
reviews and investigated a complaint. The reviews and complaint 
investigation identified potential improvements to Werner's system that 
would increase the accuracy of the electronic RODS and thereby raise 
the level of hours-of-service compliance.
    In March 2002, Werner and FMCSA entered into a revised MOU to amend 
the terms of the June 1998 agreement. A copy of the revised MOU is in 
the docket referenced at the beginning of this notice. The revised MOU 
contains specific provisions related to system modifications and 
internal hours-of-service compliance monitoring reports agreed to by 
Werner and FMCSA. The March 2002 MOU states:

    At the end of the 18-month period of this agreement, an 
assessment will be made to consider making this pilot program 
permanent. The FMCSA will automatically extend the agreement period 
beyond 18

[[Page 69118]]

months if the assessment has not been completed, or if an agency 
decision regarding permanency has not been rendered. If determined 
not to be permanent, this agreement may be extended, by mutual 
agreement of both parties, beyond the 18 months specified until the 
FMCSA establishes a uniform standard for Electronic On-Board 
Recording.

    The current MOU with Werner was to expire in September 2003 but has 
been extended to December 31, 2003, because the assessment was not 
complete by the scheduled expiration date. Werner has indicated that it 
would like to make its current program permanent rather than continue 
in a pilot demonstration status.

Proposed Terms and Conditions for the Exemption

    FMCSA believes that it is appropriate to make a transition from a 
pilot demonstration project to an exemption, as authorized by 49 U.S.C. 
31315(b) and the implementing regulations under 49 CFR part 381. 
Although Werner has expressed an interest in using GPS technology and 
complementary computer systems to monitor and record its drivers' duty 
status on a permanent basis, FMCSA cannot permit this without 
initiating a notice-and-comment rulemaking proceeding to amend 49 CFR 
395.8. The agency does not believe that it is appropriate to amend the 
safety regulations based on a technology that is currently being used 
by only one motor carrier. Therefore, the agency proposes to exercise 
its authority under 49 U.S.C. 31315(b) to make a transition from the 
Project to an exemption that can be renewed every two years, through a 
notice-and-comment process. The agency proposes that the terms and 
conditions for the exemption be the same as those used for the Project, 
with a few exceptions based on recent discussions between FMCSA and 
Werner. FMCSA has made a preliminary determination that, used in lieu 
of the ``record of duty status'' required by 49 CFR 395.8, Werner's GPS 
technology and complementary safety management computer systems would 
achieve the requisite level of safety under 49 U.S.C. 31315(b), 
provided the following conditions are satisfied:

System Operation

    (a) System defaults must record truck stationary time as ``on duty, 
not driving.''
    (b) Movements of the vehicle greater than two miles must be 
recorded as driving time.
    (c) Speed (which is determined by time and distance between truck 
location updates) that is calculated to be below 10 miles per hour 
(mph) may be considered invalid. In these instances, distance traveled 
may be divided by average driver mph or average State-to-State mph to 
derive a rough estimate of the driving time. Werner must discontinue 
the use of driving time modeling entirely if Qualcomm improves the 
satellite positioning frequency or incorporates other technology that 
makes the modeling unnecessary.
    (d) With the exception of automatically recording the driver's 
status as ``on duty, not driving'' when drivers'' fuel cards are 
inserted into the card reader, no system defaults are authorized for 
routine stops (i.e., deliveries, pickups, rest). Drivers must make the 
correct duty status entry into the electronic system.
    (e) The system must not allow drivers to manipulate the system to 
conceal driving hours.
    The automatic recording of movements of two miles or more as 
driving time differs from the MOU in that the memorandum uses a 
criterion of one mile. Werner has advised FMCSA that lowering the 
vehicle movement threshold to one mile has resulted in a substantial 
number of errors in documenting driver duty status that require 
correction by company management. Therefore, Werner has requested that 
it be allowed to continue using its two-mile criterion rather than risk 
a significant increase in errors.
    In addition, the system operation provision concerning default duty 
status would differ from the current MOU in that fuel stops would be 
covered by an automatic default. Werner has informed FMCSA that its 
drivers generally are unable to enter duty status information during 
refueling because the canopy structures at most fuel stops interfere 
with the satellite communications equipment on their vehicles. FMCSA 
responded that it is permissible under the current MOU to automatically 
place drivers in an on-duty, not-driving status when drivers' fuel 
cards are inserted into a card reader. The proposed exemption would 
explicitly allow the default duty status for refueling. FMCSA requests 
comments on these proposed differences between the MOU and the terms 
and conditions of the exemption.

Documentation of System Failures

    Werner must require each driver to note immediately any failure of 
the GPS technology or complementary safety management computer systems, 
and to immediately begin preparing hard-copy driver logs during the 
period that the technology is inoperative. Werner must maintain a 
centralized record of each separate failure, including the date, time 
periods, individual driver or operating division(s) impacted, and type 
of failure. Upon request by Federal or State enforcement officials, 
Werner must provide facsimile copies of its records of duty status for 
the current day and the previous seven days for the driver(s) affected 
by the failure. In the event that Werner is unable to produce these 
facsimile copies within two hours, the driver(s) must manually prepare 
a driver record of duty status for the current day and reconstruct his 
or her duty hours for the previous seven (7) days. When the system 
becomes operational, a fax of the missing records of duty status must 
be forwarded to the agreed-upon site as soon as possible. Failure to 
produce either of these two types of documents within two hours 
constitutes a violation of this exemption and 49 CFR 395.8(a).

Information Required on All CMVs Operated by Werner

    Werner would be required to ensure that each commercial motor 
vehicle it operates has on board and available for review by Federal or 
State enforcement personnel an information packet containing the 
following three items:
    (a) An instruction sheet describing in detail how hours-of-service 
data may be retrieved from the on-board GPS equipment;
    (b) A supply of blank record of duty status graph-grids sufficient 
to record the driver's duty status and other related information for 
the duration of each trip; and
    (c) A copy of the exemption issued by FMCSA authorizing Werner to 
use GPS technology and complementary computer software programs in lieu 
of the ``record of duty status'' required by 49 CFR 395.8.

Quarterly Reports

    Werner would be required to prepare a compliance report every three 
months following the effective date of the exemption. The reports must 
be maintained for six months from the date of preparation and must be 
made available to FMCSA upon request. The reports must identify:
    (a) Driver training and internal audit procedures employed by 
Werner to ensure the accuracy of the electronic hours-of-service 
records;
    (b) The percent of driver logs in each Werner operating division 
found through internal auditing to be in violation of the maximum 
driving time limitations set forth in 49 CFR 395.3(a) and 395.3(b); and
    (c) The number of drivers in each Werner operating division, the 
number of drivers by operating division audited for hours-of-service 
record accuracy,

[[Page 69119]]

and the percent of driver logs by operating division found to be in 
violation of 49 CFR 395.8(e).
    Furthermore, the support systems must provide a complete audit 
trail of edits (changes) made to ``driving'' time shown on driver duty 
status records.

FMCSA Access to Safety Management Information System

    Werner must allow FMCSA personnel reasonable access to its safety 
management information system(s). If FMCSA requests access to the 
system(s), agency personnel will determine the scope and nature of the 
assessment. At a minimum, access to records will include:
    (a) Driver records of duty status created by Werner's GPS and 
related safety management computer systems;
    (b) Driver-dispatch ``message histories'' and detailed position 
histories associated with driver records of duty status;
    (c) Driver payroll records associated with the driver records of 
duty status;
    (d) Driver shipping document records; and
    (e) Miscellaneous trip expense records.

Reporting of Violations of Hours-of-Service Rules

    Werner must furnish FMCSA, upon request, a driver-specific report 
of violations of the requirements related to maximum driving time rules 
(49 CFR 395.3). With regard to falsification of records of duty status, 
information must be provided on violations of 49 CFR 395.8(e) for each 
individual driver requested. Werner must also agree to furnish upon 
request information indicating what disciplinary and/or remedial 
action, if any, was taken as a result of a driver's violation of rules 
set forth in 49 CFR 395.3 and 49 CFR 395.8(e).

Reporting of Corrections or Amendments to Records

    Werner must agree to furnish, upon request, information indicating 
the number of times the ``driving'' time on driver records of duty 
status was changed for each driver, and identifying who authorized each 
altered record.

Documenting Distance Traveled

    Werner would be required to ensure that the system for monitoring 
and recording drivers' hours of service has a means of determining that 
the mileage each driver travels is based on data from the vehicle's 
electronic control module or other on-board vehicle system, rather than 
on less accurate methods such as GPS-based (point-to-point) 
calculations that may underestimate the distance traveled.

Enforcement of Hours of Service While the Exemption Is in Effect

    Under the terms and conditions of this exemption, Werner may 
require its drivers to use the company's GPS technology and 
complementary safety management computer systems to record their hours 
of service in lieu of complying with the requirements of 49 CFR 395.8. 
FMCSA would, to the greatest extent practicable, communicate with 
State, Provincial, and local enforcement agencies regarding the terms 
and conditions of the exemption, if granted. FMCSA would continue its 
policy of not divulging to any third party proprietary information 
related to Werner's GPS technology or related safety management 
computer systems.
    In the event that FMCSA conducts a compliance review or any other 
type of motor carrier safety management investigation of Werner, FMCSA 
would review, using its automated hours-of-service assessment system, 
100 percent of the applicable operating division's hours-of-service 
records for compliance with the maximum driving time limitations set 
forth in 49 CFR 395.3. The 100 percent sampling would not extend to any 
other portion of the regulations reviewed. With respect to the 
investigation of the accuracy of hours-of-service records (49 CFR 
395.8(e)), FMCSA would reserve the right to conduct a sampling of 
records in accordance with FMCSA policies applicable to all motor 
carriers, and Werner would retain the right to contest the validity of 
the sampling used.
    Notwithstanding the additional recordkeeping requirements of the 
quarterly compliance reports that Werner must prepare (see Quarterly 
Reports above), the agency would not hold Werner to a higher standard 
of compliance than the rest of the industry, nor would it treat Werner 
differently in conducting investigations of complaints or other types 
of investigations. At any time during the exemption period, FMCSA may 
conduct compliance reviews of Werner, consistent with standard 
operating policies applicable to all motor carriers. These compliance 
reviews would result in the assignment of a safety rating, and the 
agency could initiate enforcement action against Werner for serious 
violations.
    Werner's drivers and vehicles would continue to be subject to 
roadside inspections conducted by FMCSA or State enforcement personnel 
during the period of the exemption. Werner must ensure that its drivers 
cooperate with Federal and State enforcement personnel who request 
information, during roadside inspections, concerning its drivers' hours 
of service.

Request for Comments

    In accordance with 49 U.S.C. 31315 and 31136(e), FMCSA is 
requesting public comment from all interested persons on the agency's 
intent to grant Werner an exemption to allow the use of GPS technology 
and related safety management computer systems to document its drivers' 
hours of service. All comments received before the close of business on 
the comment closing date indicated at the beginning of this notice will 
be considered and will be available for examination in the docket at 
the location listed under the address section of this notice. Comments 
received after the comment closing date will be filed in the public 
docket and considered to the extent practicable, but FMCSA may grant or 
deny the exemption at any time after the close of the comment period. 
In addition to late comments, FMCSA also will continue to file in the 
public docket any relevant information that becomes available after the 
comment closing date. Interested persons should continue to examine the 
public docket for new material.

    Authority: 49 U.S.C. 31136 and 31315; 49 CFR 1.73.

    Issued on: December 5, 2003.
Annette M. Sandberg,
Administrator.
[FR Doc. 03-30692 Filed 12-10-03; 8:45 am]
BILLING CODE 4910-EX-P