[Federal Register: December 11, 2003 (Volume 68, Number 238)]
[Notices]
[Page 69117-69119]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11de03-105]
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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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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]