[Federal Register Volume 77, Number 40 (Wednesday, February 29, 2012)]
[Proposed Rules]
[Pages 12231-12233]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-4876]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 385, 390, and 395

[Docket No. FMCSA-2010-0167]
RIN 2126-AB20


Electronic On-Board Recorders and Hours of Service Supporting 
Documents

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of public listening session.

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SUMMARY: FMCSA announces that it will hold a public listening session 
to solicit information, concepts, ideas, and comments on Electronic On-
Board Recorders (EOBRs) and the issue of driver harassment. 
Specifically, the Agency wants to know what factors, issues, and data 
it should consider as it addresses the distinction between productivity 
and harassment: what will prevent harassment from occurring; what types 
of harassment already exist; how frequently and to what extent 
harassment happens; and how an electronic device such as an EOBR, 
capable of contemporaneous transmission of information to a motor 
carrier will guard against (or fail to guard against) harassment. This 
session will be held in Louisville, Kentucky (KY), and will allow 
interested persons to present comments, views, and relevant new 
research that FMCSA should consider in development of the final rule. 
This listening session will be recorded and a transcript of the session 
will be placed in the docket for FMCSA's consideration. The listening 
session will also be webcast via the Internet.

DATES: The listening session will be held on Friday, March 23, 2012, at 
the Mid-America Trucking Show in Louisville, KY. The listening session 
will run from 10 a.m.-12 p.m., with a break between 12 p.m. and 2 p.m., 
and continue from 2 p.m.-4 p.m. local time, or earlier, if all 
participants wishing to express their views have done so.

ADDRESSES: The listening session will be held at the Kentucky 
Exposition Center (KEC), 937 Phillips Lane, Louisville, KY 40209, South 
Wing, Meeting Room C-101.
    Internet Address for Live Webcast. FMCSA will post specific 
information on how to participate via the Internet on the FMCSA web 
site at: http://www.fmcsa.dot.gov in advance of the listening session.
    You may submit comments bearing the Federal Docket Management 
System (FDMS) Docket ID FMCSA-2010-0167 using any of the following 
methods:
     Federal eRulemaking Portal: Go to www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Mail: Docket Management Facility; U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, 
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building Ground Floor, Room 
W12-140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 
5 p.m., ET, Monday through Friday, except Federal Holidays.
     Fax: 1-202-493-2251.
    Each submission must include the Agency name and the docket number 
for this notice. Note that DOT posts all comments received without 
change to www.regulations.gov, including any personal information 
included in a comment. Please see the Privacy Act heading below.
    Docket: For access to the docket to read background documents or 
comments, go to www.regulations.gov at any time or visit Room W12-140 
on the ground level of the West Building, 1200 New Jersey Avenue SE., 
Washington, DC, between 9 a.m. and 5 p.m., ET, Monday through Friday, 
except Federal holidays. The on-line Federal document management system 
is available 24 hours each day, 365 days each year. If you want 
acknowledgment that we received your comments, please include a self-
addressed, stamped envelope or postcard or print the acknowledgement

[[Page 12232]]

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 DOT's Privacy Act Statement for the Federal Docket 
Management System published in the Federal Register on January 17, 2008 
(73 FR 3316), or you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.

FOR FURTHER INFORMATION CONTACT: For information concerning the 
listening session or the live webcast, please contact Ms. Shannon L. 
Watson, Senior Advisor for Policy, FMCSA, (202) 385-2395, 
[email protected].
    Should you need sign language interpretation or other assistance to 
participate in this listening session, also contact Ms. Shannon L. 
Watson, at the above phone number, by Thursday, March 8, 2012, to allow 
us to arrange for such services. There is no guarantee that services 
requested on short notice can be provided.

SUPPLEMENTARY INFORMATION:

I. Background

    On February 13, 2012, FMCSA published a notice of intent in the 
Federal Register announcing the Agency's plan for the Electronic On-
Board Recorders and Hours of Service Supporting Documents rulemaking 
(EOBR 2) by working towards preparing a Supplemental Notice of Proposed 
Rulemaking (SNPRM) (77 FR 7562). In this notice, FMCSA stated it would 
do the following: (1) Hold listening sessions on the issue of driver 
harassment; (2) task the Motor Carrier Safety Advisory Committee 
(MCSAC) to assist in developing material to support this rulemaking, 
including technical specifications for EOBRs and their potential to be 
used to harass drivers; and (3) conduct research by surveying drivers, 
carriers, and vendors regarding harassment issues.
    The following discussion summarizes the recent regulatory history 
of the agency's EOBR program:

EOBR 1

    On April 5, 2010, the Agency issued a final rule (EOBR 1) (75 FR 
17208) that provided new technical requirements for EOBRs. The EOBR 1 
final rule also required the limited, remedial use of EOBRs for motor 
carriers with significant hours-of-service (HOS) violations. The EOBR 1 
final rule required a motor carrier found to have a 10 percent 
violation rate for any HOS regulation listed in Appendix C of 49 CFR 
part 385 during a single compliance review to install and use EOBRs on 
all of its CMVs for a period of 2 years. The compliance date for the 
rule was June 4, 2012.
    The Owner-Operator Independent Drivers Association (OOIDA) 
challenged the final rule in the United States Court of Appeals for the 
Seventh Circuit. OOIDA raised several concerns relating to EOBRs and 
their potential use for driver harassment. On August 26, 2011, the 
Court vacated the entire final rule. Owner-Operator Indep. Drivers 
Ass'n et al. v. Fed. Motor Carrier Safety Admin., 656 F.3d. 580 (7th 
Cir. 2011). The Court held that, contrary to statutory requirements, 
the Agency failed to address the issue of driver harassment, including 
how EOBRs could potentially be used to harass drivers and ways to 
ensure that EOBRs were not used to harass drivers. The basis for the 
decision was FMCSA's failure to directly address a requirement in 49 
U.S.C. 31137(a) which reads as follows:

    USE OF MONITORING DEVICES. If the Secretary of Transportation 
prescribes a regulation about the use of monitoring devices on 
commercial motor vehicles to increase compliance by operators of the 
vehicles with hours of service regulations of the Secretary, the 
regulation shall ensure that the devices are not used to harass 
vehicle operators. However, the devices may be used to monitor 
productivity of the operators.

    The court's expectation about how the Agency should address 
harassment and productivity under the statutory directive included the 
following:

    In addition, an adequate explanation that addresses the 
distinction between productivity and harassment must also describe 
what precisely it is that will prevent harassment from occurring. 
The Agency needs to consider what types of harassment already exist, 
how frequently and to what extent harassment happens, and how an 
electronic device capable of contemporaneous transmission of 
information to a motor carrier will guard against (or fail to guard 
against) harassment. A study of these problems with EOBRs already in 
use, and a comparison with carriers that do not use these devices, 
might be one obvious way to measure any effect that requiring EOBRs 
might have on driver harassment (Id. at 588-89).

    As a result of the vacatur, carriers relying on electronic devices 
to monitor HOS compliance are currently governed by the Agency's 
previous rules regarding the use of automatic on-board recording 
devices (49 CFR 395.15). The requirements set forth in 49 CFR 395.15 
were not affected by the Seventh Circuit's decision regarding the 
technical specifications set out in 49 CFR 395.16 in the EOBR 1 Final 
Rule.

Meeting Participation and Information FMCSA Seeks From the Public

    The listening session is open to the public. Speakers' remarks will 
be limited to five minutes each. The public may submit material to the 
FMCSA staff at the session for inclusion in the public docket, FMCSA-
2010-0167. FMCSA will docket the transcription of the listening session 
that will be prepared by an official court reporter.
    FMCSA tasked the Motor Carrier Safety Advisory Committee (MCSAC) 
with addressing harassment through Task 12-01, titled, ``Measures to 
Ensure Electronic On-Board Recorders (EOBRs) Are Not Used to Harass 
Commercial Motor Vehicle (CMV) Operators''. MCSAC held public meetings 
on this task on February 7-8, 2012, and based on its deliberations, 
submitted a report to the FMCSA Administrator on February 8, 2012. This 
report is available for review at: http://mcsac.fmcsa.dot.gov/meeting.htm and the public docket, FMCSA-2010-0167. The questions posed 
to MCSAC will be used as a template for public comment and discussion 
at the listening session.
    The comments sought from the questions below may be submitted in 
written form at the session and summarized verbally, if desired:
    1. In terms of motor carriers' and enforcement officials' 
monitoring or review of drivers' records of duty status (RODS), what 
would constitute driver harassment? Would that definition change based 
on whether the system for recording HOS is paper or electronically 
based? If so, how? As a starting point, the Agency is interested in 
potential forms of harassment, including but not limited to those that 
are: (1) Not prohibited already by current statutes and regulations; 
(2) distinct from monitoring for legitimate business purposes (e.g., 
efforts to maintain or improve productivity); and (3) facilitated or 
made possible solely by EOBR devices and not as a result of functions 
or features that motor carriers may choose to purchase, such as fleet 
management system capabilities. Is this interpretation appropriate? 
Should it be broader? Or narrower?
    2. Are there types of driver harassment to which drivers are 
uniquely vulnerable if they are using EOBRs rather than paper logs? If 
so, what and how would use of an EOBR rather than a paper log make a 
driver more susceptible to harassment? Are there ways in which the use 
of an EOBR rather than a paper log makes a driver less susceptible to 
harassment?

[[Page 12233]]

    3. What types of harassment are motor carrier drivers subjected to 
currently, how frequently, and to what extent does this harassment 
happen? How would an electronic device capable of contemporaneous 
transmission of information to a motor carrier guard against (or fail 
to guard against) this kind of harassment? What experience have motor 
carriers and drivers had with carriers using EOBRs as compared to those 
who do not use these devices in terms of their effect on driver 
harassment or complaints of driver harassment?
    4. What measures should the Agency consider taking to eliminate the 
potential for EOBRs to be used to harass drivers? Are there specific 
functions and capabilities of EOBRs that should be restricted to reduce 
the likelihood of the devices being used to harass vehicle operators?
    5. Motor carriers are often responsible for managing their drivers 
and equipment to optimize efficiency and productivity and to ensure 
transportation services are provided in accordance with a planned 
schedule. Carriers commonly use electronic devices, which may include 
but are not limited to EOBRs, to enhance productivity and optimize 
fleet operation. Provided such devices are not used to coerce drivers 
into violating Federal safety regulations, where is the line between 
legitimate productivity measures and inappropriate oversight or actions 
that may be construed as harassment?

II. Alternative Media Broadcasts During and Immediately After the 
Listening Session on March 23, 2012

    FMCSA will webcast the listening session on the Internet. Specific 
information on how to participate via the Internet and the telephone 
access number will be on the FMCSA Web site at http://www.fmcsa.dot.gov. FMCSA will docket the transcripts of the webcast and 
a separate transcription of the listening session that will be prepared 
by an official court reporter.

    Issued on: February 24, 2012.
William A. Bronrott,
Deputy Administrator.
[FR Doc. 2012-4876 Filed 2-28-12; 8:45 am]
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