[Federal Register Volume 71, Number 173 (Thursday, September 7, 2006)]
[Notices]
[Pages 52846-52848]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-14797]


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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: Renewal of exemption; request for comments.

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SUMMARY: The FMCSA announces its decision to renew Werner Enterprises, 
Inc.'s (Werner) exemption from the Agency's requirement that drivers of 
commercial motor vehicles (CMVs) operating in interstate commerce 
prepare handwritten records of duty status (RODS). Werner has requested 
that its exemption be renewed so that it may continue its practice of 
monitoring the hours of service (HOS) of its drivers by means of GPS 
technology and complementary computer programs. Werner proposes in this 
application that the terms and conditions of the current exemption 
remain in place for a second two-year period. The FMCSA believes that 
with the terms and conditions in place, Werner will maintain a level of 
safety that is equivalent to, or greater than, the level of safety that 
would be obtained by complying with the requirement for a written RODS.

DATES: This decision is effective September 7, 2006. Comments must be 
received on or before October 10, 2006.

ADDRESSES: You may submit comments to the DOT Docket Management System 
(DMS), referencing Docket Number FMCSA-2003-15818, using any of the 
following methods:
     Web Site: http://dmses.dot.gov. Follow the instructions 
for submitting comments on the DOT electronic docket site.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-0001.
     Hand Delivery: Room PL-401 on the plaza level of the 
Nassif Building,

[[Page 52847]]

400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays.
     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 at any time 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. The DMS is available 24 hours each day, 365 days each 
year. If you want us to notify you that we received your comments, 
please include a self-addressed, stamped envelope or postcard or print 
the acknowledgement page that appears after submitting comments on-
line.
    Privacy Act: Anyone may search the electronic form of all comments 
received into any of our 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, etc.). 
You may review the Department of Transportation's complete Privacy Act 
Statement in the Federal Register published on April 11, 2000 (65 FR 
19477; Apr. 11, 2000). This information is also available at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas Yager, Chief, Driver and 
Carrier Operations Division, Office of Bus and Truck Standards and 
Operations, MC-PSD, Federal Motor Carrier Safety Administration, 400 
Seventh Street, SW., Washington, DC 20590-0001. Telephone: 202-366-
4009. E-mail: [email protected].

SUPPLEMENTARY INFORMATION:

Background

    On April 6, 1998, FMCSA published a notice (63 FR 16697) soliciting 
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 would enter into an agreement with the Agency to use such 
systems to record and monitor drivers' HOS in lieu of the RODS required 
by 49 CFR 395.8. The Agency stated its belief that GPS technology and 
certain complementary safety-management computer systems then being 
used by the motor carrier industry provided at least the same degree of 
HOS monitoring accuracy as the automatic on-board recorders permitted 
by 49 CFR 395.15. Although participation in the Project was open to all 
interested motor carriers, Werner was the only motor carrier to enter 
into a memorandum of understanding (MOU) with the Agency to allow the 
use of GPS technology. A copy of the Werner MOU, dated June 10, 1998, 
is included in the docket referenced at the beginning of this notice.
    Following execution of the MOU, FMCSA closely monitored Werner's 
use of GPS technology. Over the course of the pilot demonstration 
project, FMCSA conducted on-site reviews of Werner and also 
investigated a complaint made against Werner. These activities resulted 
in improvements in Werner's GPS system that increased the accuracy of 
the RODS of Werner's drivers and thereby improved HOS compliance. In 
March, 2002, Werner and FMCSA amended the MOU to incorporate various 
modifications of the GPS system designed to improve Werner's monitoring 
of its compliance with the HOS rules. A copy of the amended MOU is also 
in the docket of this notice.
    In 2003, FMCSA exercised its authority under 49 U.S.C. 31315(b) to 
consider Werner for an exemption from its regulation requiring RODS to 
be maintained in paper form. On December 11, 2003, the Agency gave the 
public notice and the opportunity to comment on the proposal (68 FR 
69117). FMCSA considered the comments and on September 21, 2004, 
granted Werner an exemption from 49 CFR 395.8 for a two-year period, 
with terms and conditions similar to those of the amended MOU (69 FR 
56474).

Werner's Application for an Exemption Renewal

    Werner has applied for renewal of this exemption; a copy of the 
application has been placed in the docket. Under 49 U.S.C. 31315 and 
31136(e), FMCSA may renew an exemption from the HOS requirements in 49 
CFR 395.8 for a period of up to two years if it finds ``such exemption 
would likely achieve a level of safety that is equivalent to, or 
greater than, the level that would be achieved absent such exemption.'' 
The procedures for requesting an exemption (including renewals) are 
prescribed in 49 CFR part 381. The FMCSA has evaluated Werner's 
application for a renewal on its merits and decided to renew the 
exemption for a two-year period.

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 
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 RODS for the current day 
and the previous 7 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 RODS for the 
current day and reconstruct his or her duty hours for the previous 7 
days. When the system becomes operational, a fax of the missing RODS 
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).

[[Page 52848]]

Information Required on All CMVs Operated by Werner

    Werner must ensure that each CMV 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 HOS data may be 
retrieved from the on-board GPS equipment;
    (b) A supply of blank RODS 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 RODS 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 RODS 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' 
HOS 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 HOS 
instead of complying with the requirements of 49 CFR 395.8. The FMCSA 
will also continue, to the greatest extent practicable, to communicate 
with State, Provincial, and local enforcement agencies regarding the 
terms and conditions of the exemption. The FMCSA will also 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 complaince 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. It does, however, preclude States from 
requiring Werner drivers to prepare and present RODS. `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(b)(4) and 31136(e), FMCSA 
requests public comments on the approval of Werner's request for a 
renewal of its exemption from the requirements of 49 CFR 395.8. The 
Agency requests that interested parties submit comments by October 10, 
2006. The FMCSA will review all comments received by this date and 
determine whether the renewal of the exemption is consistent with the 
requirements of 49 U.S.C. 31315 and 31136(e). The FMCSA believes the 
requirements for a renewal of an exemption under 49 U.S.C. 31315 and 
31136(e) can be satisfied by initially granting the renewal and then 
requesting and subsequently evaluating comments submitted by interested 
parties. As indicated above, the Agency previously published a notice 
of final disposition announcing its decision to exempt Werner from the 
HOS requirements of 49 CFR 385.8. The decision to renew the exemption 
is based on the merits, and made only after careful consideration of 
the comments submitted in response to the April 30, 2003 (68 FR 23174) 
notice.
    Interested parties or organizations possessing information that 
would otherwise show that Werner's GPS system is not achieving the 
requisite statutory level of safety should immediately notify FMCSA. 
The Agency will evaluate any information submitted and, if safety is 
being compromised or if the continuation of the exemption is not 
consistent with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA will take 
immediate steps to revoke the exemption of the driver(s) in question.

    Issued on: August 31, 2006.
David H. Hugel,
Deputy Administrator.
[FR Doc. E6-14797 Filed 9-6-06; 8:45 am]
BILLING CODE 4910-EX-P