[Federal Register Volume 69, Number 182 (Tuesday, September 21, 2004)]
[Notices]
[Pages 56474-56477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21139]



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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: Grant of exemption.

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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) grants 
to Werner Enterprises, Inc. (Werner) an exemption from the requirement 
that drivers of commercial motor vehicles (CMVs) operating in 
interstate commerce prepare handwritten records of duty status (RODS). 
The exemption allows Werner to document its drivers' hours of service 
through the use of GPS technology and complementary computer software 
programs. The terms and conditions for the exemption are the same as 
those proposed in the agency's December 11, 2003, notice and request 
for comments, with the exception of the elimination of requirements for 
quarterly status reports and driver-specific violation reports. FMCSA 
has monitored closely Werner's use of the GPS technology and 
complementary computer software programs since June 1998. Based on this 
experience, the agency believes the terms and conditions of the 
exemption achieve a level of safety equivalent to, or greater than, 
that provided by complying with the current RODS requirements.

DATES: The exemption is effective on September 21, 2004. The exemption 
expires on September 21, 2004.

ADDRESSES: 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) and a request for 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 
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. The revised MOU contains specific provisions related to 
system modifications and internal hours-of-service compliance 
monitoring reports agreed to by Werner and FMCSA.

FMCSA Notice of Intent To Grant Exemption

    On December 11, 2003, FMCSA published a notice of intent to grant 
Werner an exemption from the requirement that drivers of CMVs prepare 
handwritten RODS (68 FR 69117, Dec. 11, 2003). The agency indicated 
that it believes 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. We 
explained that although Werner 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 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 proposed 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 through a notice-
and-comment process every two years.
    The agency proposed that the terms and conditions for the exemption 
be the same as those used for the Project, with a few exceptions based 
on discussions between FMCSA and Werner. FMCSA 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 certain conditions are 
satisfied.

Discussion of Comments

    FMCSA received comments from Advocates for Highway and Auto Safety 
(Advocates), Mr. William J. Alexander, Mr. Mark Benja, the Insurance 
Institute for Highway Safety (IIHS), J. B. Hunt, Mr. Chuck Mosqueda, 
Mr. Timothy G. Trotter, and Werner Enterprises (Werner).
    J.B. Hunt, Chuck Mosqueda, and Werner commented in support of 
FMCSA's proposed exemption. However, J. B. Hunt and Werner expressed 
concern about certain terms and conditions of the proposed exemption.

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    IIHS did not comment specifically on the proposed exemption. 
Rather, it requested that FMCSA publish a summary of the results of the 
pilot demonstration project with Werner, including an assessment of the 
benefits and costs of the technology.
    Advocates and the three remaining individuals who submitted 
comments to the docket were opposed to granting the exemption to Werner 
for various reasons, most of which were discussed in greatest detail by 
Advocates. Advocates believes the GPS technology-based RODS system used 
by Werner allows drivers operating for several hours at very low speeds 
in congested traffic conditions to regard such driving time as off-duty 
time. Advocates believes this practice promotes sleep-deprived, 
fatigued drivers who are a risk to themselves and other motorists, and 
that it also provides Werner with productivity advantages over motor 
carriers relying on handwritten RODS.
    Advocates argues that FMCSA has not demonstrated that Werner's use 
of GPS-based technology achieves a level of safety equivalent to or 
greater than the level that would be achieved through compliance with 
49 CFR 395.8. Advocates believes that inaccurate recording of prolonged 
low-speed operations of CMVs as off-duty time permits drivers to exceed 
maximum driving hours. Therefore, Advocates asserts the proposed 
exemption has no safety basis in the administrative record fulfilling 
the statutory safety test for exemptions under 49 U.S.C. 31315 and 
31136(e).
    Advocates also believes the merits of the Werner exemption should 
be evaluated only after a decision has been issued in the current 
Federal court case concerning the hours-of-service rulemaking and the 
agency has taken any necessary action in response to the court ruling.
    Finally, Advocates argues that FMCSA's December 11, 2003, notice 
does not explain how GPS data are converted to RODs, or whether the 
agency seeks and evaluates the actual GPS data to compare with RODs 
from Werner. For example, there is no information on the extent to 
which FMCSA independently verifies that actual driving times of 
Werner's drivers match information from the GPS-based records.

FMCSA Response to Comments Opposed to Granting the Exemption

    FMCSA believes Advocates' concerns about flaws in the programming 
algorithms or assumptions about drivers' duty status under certain 
circumstances have been adequately resolved as a result of the agency's 
oversight of Werner during the pilot demonstration project. Werner has 
cooperated completely in working with FMCSA to evaluate its use of GPS-
related technology.
    It is true that the original programming algorithms made it 
possible for certain routine driving and work activities to be 
inaccurately recorded as off-duty time. However, we believe this flaw 
in programming or assumptions was simply an error. While the error 
resulted in inaccurate RODS, there is no basis for concluding it was an 
intentional effort to violate the applicable Federal hours-of-service 
regulations. The terms and conditions in the March 2002 MOU between 
FMCSA and Werner required system modifications to correct the 
programming algorithms. Based on the agency's continued oversight and 
monitoring of Werner, we have verified that the corrections have been 
implemented and the issue resolved.
    Furthermore, the new hours-of-service regulations published on 
April 28, 2003 (68 FR 22456, Apr. 28, 2003) and implemented on January 
4, 2004, counter the most likely motive for falsely recording off-duty 
periods of less than 10 hours. Whether the CMV operator is driving the 
CMV; on duty, not driving; off duty; or otherwise moving very slowly in 
the CMV, the driver is prohibited from operating the vehicle for any 
period after the end of the 14th hour after coming on duty following 10 
consecutive hours off duty [49 CFR 395.3(a)]. Miscellaneous off-duty 
periods do not extend the 14-hour limit.
    The pilot demonstration project concerned the use of technology to 
document drivers' RODS. No aspect of the project signified that drivers 
would be allowed to exceed hours-of-service limits in effect during the 
project. The proposed exemption likewise should not be construed as 
involving consideration of alternatives to the new hours-of-service 
regulations for drivers of property-carrying commercial motor vehicles. 
The exemption concerns an alternative to handwritten RODS, not a 
compromise to the minimum safety performance requirements.
    FMCSA believes the exemption satisfies the statutory test that the 
level of safety be equivalent to or greater than the level that would 
be achieved by complying with the regulation in question, 49 CFR 395.8. 
In the case of RODS, what matters is whether the GPS technology-based 
RODS system provides accurate documentation of drivers' duty status. 
There is no discernible reason to conclude that safety would be 
compromised by allowing the use of GPS technology-based RODS as 
implemented by Werner. Since the exemption follows the requirements 
concerning maximum driving or on-duty time and minimum off-duty 
periods, the safety performance criteria under the exemption are 
essentially the same as for all other motor carriers of property. 
Therefore, FMCSA believes the exemption satisfies the statutory safety 
test.
    Advocates' request to defer the decision on the exemption until 
after a ruling on the legal challenge to the new hours-of-service 
regulations has been granted. On July 16, 2004, the U.S. Circuit Court 
of Appeals for the D.C. Circuit held that the new rules were arbitrary 
and capricious because the agency failed to consider their effect on 
the physical condition of drivers, as required by 49 U.S.C. 
31136(a)(4). The court therefore vacated the new regulations [Public 
Citizen, et al., v. Federal Motor Carrier Safety Administration, No. 
03-1165]. For purposes of the Werner exemption, however, the court's 
decision is largely irrelevant. The hours-of-service rules applicable 
to motor carriers and drivers--whether the old regulations or the new 
rules vacated by the court--have no bearing on the question whether 
Werner should be allowed to use advanced technology to document 
compliance with those limits. For purposes of the exemption, the 
question is the accuracy and reliability of Werner's GPS-based RODS 
system, not the content of the hours-of-service regulations.
    With regard to Advocates' questions about the operation of the GPS 
technology-based RODS system used by Werner, and whether the agency 
reviews ``raw'' data to verify drivers' duty status, the agency 
believes there is sufficient information in the public domain to inform 
interested parties about the basic operating principles of GPS 
technology. Furthermore, converting location and time data from points 
A and B to the distance between points A and B, the average speed 
required to travel between points A and B, and the total driving time 
between points A and B requires only the most basic calculations. 
Although the programming algorithms did not adequately address 
situations in which small deviations between GPS location information 
were automatically--and incorrectly--recorded as off-duty time rather 
than on-duty or driving time, this did not diminish the accuracy of 
basic time-of-day, location, and distance-between-locations 
information. Nor did it mean that the basic methods for

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performing certain calculations were inappropriate.
    Werner's programming algorithms included certain assumptions about 
drivers' duty status for vehicle movements that occur between data 
collection cycles, or ``polling intervals'' (instances when vehicle 
location information is captured, along with the date and time). If, 
based upon a comparison of location information gathered at the 
beginning and end of the polling intervals, the vehicle appeared not to 
have moved (or to have moved only a very short distance) between these 
data collection cycles, the system automatically recorded the driver's 
duty status as off duty rather than as driving. Under these 
circumstances the driver would need to provide input to ensure 
documentation of the correct duty status. In the absence of input from 
the driver, the system failed to automatically and accurately record 
driving and on-duty time information. FMCSA believes this programming 
issue has been resolved satisfactorily. System defaults now record 
truck stationary time as on duty, not driving and vehicle movements 
greater than two miles as driving time.
    FMCSA has reviewed raw data from Werner's system, compared RODS 
information with supporting documents, and had Federal safety 
investigators ride with Werner drivers for certain trips to verify the 
accuracy of its RODS system. The agency believes the information it 
reviewed is sufficient proof that Werner's GPS technology-based RODS 
accurately document drivers' duty status.
    Finally, as requested by IIHS, we will prepare a report on the 
results of the pilot demonstration project with Werner.

Discussion of Comments About the Terms and Conditions of the Exemption

    As mentioned earlier in this notice, J. B. Hunt and Werner 
commented about the specific terms and conditions of the exemption. 
Werner indicated it has worked closely with FMCSA during the design, 
implementation and testing phases of its paperless log project. Werner 
explained that it has been subject to various onsite reviews of its 
paperless RODs system, which resulted in numerous changes in the 
program design. Werner argues that these efforts have enabled it to 
develop an efficient paperless RODS system that exceeds the 
capabilities of a handwritten system. Werner believes the proposed 
reporting requirements under the headings ``Quarterly Reports,'' 
``Reporting of Violations of Hours-of-Service Rules,'' and ``FMCSA 
Access to Safety Management Information System'' place unnecessary 
burdens on Werner. Werner believes these recordkeeping burdens would 
discourage other motor carriers from participating in similar pilot 
programs or developing their own paperless RODS system. J. B. Hunt 
expressed similar concerns.

FMCSA Response to Comments About the Terms and Conditions of the 
Exemption

    FMCSA agrees with Werner that the proposed requirements for 
quarterly reports and reporting of violations of hours-of-service rules 
(68 FR 69117, at 69118 and 69119, respectively) are unnecessary, given 
the transition from a demonstration project to an exemption program.
    We included the quarterly reporting requirement in the March 2002 
MOU between FMCSA and Werner to compensate for the inaccurate reporting 
of drivers' duty status caused by the programming algorithms or 
assumptions discussed earlier in this document. Also, there were 
instances when drivers did not accurately input their duty status when 
loading and unloading vehicles. Werner used the information from these 
quarterly reports to make appropriate changes to its programming 
algorithms and its supervision of certain drivers. Since Werner has 
essentially resolved the problems that the quarterly reports were 
intended to address, we no longer believe it is necessary to impose 
this requirement under the exemption. FMCSA retains full authority to 
conduct investigations and compliance reviews of Werner's operations 
and to take enforcement action against violations.
    For essentially the same reasons, FMCSA believes the driver-
specific report of hours-of-service violations is no longer necessary. 
The proposed requirement was intended to address a problem that has 
been resolved, and is unrelated to FMCSA's exercise of its enforcement 
authority.
    However, FMCSA is retaining under the terms and conditions of the 
exemption the requirement that Werner allow FMCSA enforcement personnel 
reasonable access to its safety management information systems. This 
provision requires Werner to provide driver dispatch message histories 
and detailed position histories associated with their RODS. This 
information is essential for independent verification of hours-of-
service information by FMCSA. Although the agency has the statutory 
authority to request that Werner provide such information regardless of 
whether it is required under the exemption, we are including an 
explicit provision to make this authority clear and ensure timely 
responses to any such information requests.

FMCSA Decision

    FMCSA has considered all the comments received in response to its 
December 11, 2003, notice of intent to grant an exemption, and has 
decided to grant Werner an exemption from the requirements of 49 CFR 
395.8. As a result of this exemption, Werner may use its GPS technology 
and complementary safety management computer systems to document 
drivers' duty status in lieu of pen-and-paper RODS. FMCSA has 
determined Werner's GPS technology-based RODS will achieve the 
requisite level of safety under 49 U.S.C. 31315(b), provided the terms 
and conditions in this notice are satisfied.

Terms and Conditions of the Exemption

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 its GPS provider 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 the driver's fuel card is 
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.

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

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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 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 must 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.

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 driver records of duty 
status;
    (d) Driver shipping document records; and
    (e) Miscellaneous trip expense records.

Reporting of Corrections or Amendments To Records

    Werner must 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 must ensure 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 will, to the greatest extent practicable, communicate with State, 
Provincial, and local enforcement agencies regarding the terms and 
conditions of the exemption. FMCSA will 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 FMCSA conducts a compliance review or any other type 
of motor carrier safety management investigation of Werner, FMCSA will 
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 
reserves the right to sample records in accordance with FMCSA policies 
applicable to all motor carriers, and Werner retains the right to 
contest the validity of the sample used.
    The agency does not intend to hold Werner to a higher standard of 
compliance than the rest of the industry, nor would it treat Werner 
differently in conducting complaint investigations 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 continue to be subject to roadside 
inspections conducted by FMCSA or State enforcement personnel during 
the period of the exemption. The exemption does not preclude States 
from continuing to enforce applicable State requirements concerning on-
duty and driving-time limits. 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.

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

    Issued on: September 13, 2004.
Annette M. Sandberg,
Administrator.
[FR Doc. 04-21139 Filed 9-20-04; 8:45 am]
BILLING CODE 4910-EX-P