[Federal Register: September 7, 2006 (Volume 71, Number 173)]
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: Renewal of exemption; request for comments.
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
- 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
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-
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: MCPSD@dot.gov.
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
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
(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
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).
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
(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
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
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
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)
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,
[FR Doc. E6-14797 Filed 9-6-06; 8:45 am]
BILLING CODE 4910-EX-P