[Federal Register: September 21, 2004 (Volume 69, Number 182)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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.
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.
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
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.
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
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-
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
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 [[Page 56476]]
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
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
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 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
(a) System defaults must record truck stationary time as "on duty,
(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
[[Page 56477]] 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
(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
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
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
Authority: 49 U.S.C. 31136 and 31315; 49 CFR 1.73.
Issued on: September 13, 2004.
Annette M. Sandberg,
[FR Doc. 04-21139 Filed 9-20-04; 8:45 am]