
[Federal Register Volume 76, Number 71 (Wednesday, April 13, 2011)]
[Proposed Rules]
[Pages 20611-20613]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-8789]


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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; request for additional public comment.

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SUMMARY: On February 1, 2011, FMCSA published a notice of proposed 
rulemaking (NPRM), which proposed that electronic on-board recorders 
(EOBR) be required for commercial motor vehicle (CMV) operators who 
must keep records of duty status (RODS) (EOBR 2). In the EOBR 2 NPRM 
and in a predecessor EOBR rulemaking published on April 5, 2010 (EOBR 
1), the Agency advised that it is required by statute to ensure that 
electronic devices are not used to harass CMV drivers, although they 
can be used by motor carriers to monitor productivity. The Agency 
believes it satisfactorily addressed the statutory requirement in both 
its EOBR rulemaking proceedings. In light of recent litigation 
challenging the Agency's treatment of driver harassment in EOBR 1, 
however, FMCSA wishes to ensure that interested parties have a full 
opportunity to address this issue in the active EOBR 2 rulemaking.

DATES: Comments must be received on or before May 23, 2011.

ADDRESSES: You may submit comments identified by the Federal Docket 
Management System Number (FDMS) in the heading of this document by any 
of the following methods. Do not submit the same comments by more than 
one method. However, to allow effective public participation before the 
comment period deadline, the Agency encourages use of the Web site that 
is listed first. It will provide the most efficient and timely method 
of receiving and processing your comments.
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility; U.S. Department of 
Transportation, Room W12-140, 1200 New Jersey Avenue, SE., Washington, 
DC 20590-0001.
     Hand Delivery: Ground floor, Room W12-140, 1200 New Jersey 
Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., e.t., Monday 
through Friday, except Federal holidays.
    Instructions: All submissions must include the Agency name and 
docket number for this regulatory action. Note that all comments 
received will be posted without change to http://www.regulations.gov, 
including any personal information provided. Refer to the Privacy Act 
heading on http://www.regulations.gov for further information.
    Privacy Act: Anyone is able to search the electronic form for all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review the DOT 
Privacy Act system of records notice for the FDMS in the Federal 
Register published on January 17, 2008 (73 FR 3316) at http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.

FOR FURTHER INFORMATION CONTACT: For technical issues: Ms. Deborah M. 
Freund, Vehicle and Roadside Operations Division, Office of Bus and 
Truck Standards and Operations, Federal Motor Carrier Safety 
Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001 
or by telephone at (202) 366-5370. For legal issues: Mr. Charles Fromm, 
Assistant Chief Counsel for Enforcement and Litigation, Federal Motor 
Carrier Safety Administration, 1200 New Jersey Avenue, SE., Washington, 
DC 20590-0001 or by telephone at (202) 366-3551.

SUPPLEMENTARY INFORMATION:

Regulatory Background and Authority

    On April 5, 2010, the Agency issued a final rule (EOBR 1) (75 FR 
17208) that provides new technical requirements for electronic on-board 
recorders (EOBR). The EOBR 1 final rule also requires the limited, 
remedial use of EOBRs for motor carriers with significant hours-of-
service (HOS) violations. The EOBR 1 final rule requires 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 is June 4, 2012.
    Subsequently, on February 1, 2011, the Agency published an NPRM 
that proposed to expand the scope of EOBR 1 to a broader population of 
motor carriers (EOBR 2) (76 FR 5537). Under the EOBR 2 NPRM, within 3 
years of the effective date of the final rule, all motor carriers 
currently required to maintain RODS for HOS recordkeeping would be 
required to use EOBRs. In both EOBR rulemakings, FMCSA explained that 
DOT is directed by 49 U.S.C. 31137(a) to consider driver harassment in 
promulgating an EOBR rule. Section 31137(a) provides:

    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.

    Although the Agency is not aware of any legislative history or case 
law concerning 49 U.S.C. 31137(a), FMCSA assessed this provision in the 
context of all existing legal authorities, permissible productivity 
monitoring, and related public comments. Based on these considerations, 
the Agency understands the term ``harass'' in Section 31137(a) to refer 
to harassment of drivers resulting from invasion of their privacy and 
has so interpreted the statutory language. FMCSA has addressed that 
pertinent statutory concern in this context in both the EOBR 2 NPRM (76 
FR at 5552) and the EOBR 1 final rule (75 FR at 17220-21).
    First, Section 31137(a) expressly permits use of EOBRs to monitor 
driver productivity. As a result, the statute permits carriers to use 
the devices for productivity-related purposes, which could include 
maintaining contact with drivers, monitoring driver progress, 
determining delivery and work schedules, and even requiring drivers to 
return to duty, so long as the drivers would not be put in violation of 
the HOS or other regulations. Section 31137(a) also expressly 
contemplates the use of monitoring devices to increase compliance with 
HOS regulations. As a result, the statute permits carriers to use the 
devices to monitor when, and for how long, drivers are in a particular 
duty status. Although some drivers might perceive such monitoring as a 
form of harassment,

[[Page 20612]]

FMCSA construes Section 31137(a) to permit these activities, either 
because they ``monitor productivity,'' which is expressly permitted 
under the statute, or because they use an EOBR to ``increase compliance 
* * * with hours of service regulations,'' and thus are outside the 
meaning of ``harass'' under Section 31137(a).
    Second, as FMCSA construes Section 31137(a), the Agency is not 
required, in the EOBR rulemakings, to protect against any and all 
possible harassment that is not related to EOBRs. Rather, its duty is 
to ensure that the monitoring devices required by the Agency do not 
increase the harassment of drivers, not to ensure that the devices 
decrease any previously-existing potential for driver harassment that 
might have occurred in the absence of such monitoring devices when 
paper records were the exclusive required means of recording and 
reporting driver duty status. Accordingly, in exercising its 
obligations under Section 31137(a), FMCSA may appropriately take into 
account all existing authorities prohibiting potential harassment of 
drivers in determining whether the Agency must enact new protections 
against harassment specifically for monitoring devices.
    Other existing regulatory and statutory provisions already prohibit 
carriers from attempting to use EOBRs to harass drivers for ostensible 
productivity reasons that are actually illegal or illegitimate. For 
example, 49 CFR 392.3 prohibits motor carriers from requiring ill or 
fatigued drivers to drive. Accordingly, carriers cannot use EOBRs to 
monitor a driver's hours to see if the driver has driving time 
remaining, and then nonetheless force a driver who is fatigued or ill 
to return to work. Similarly, 49 CFR part 395 sets forth HOS 
regulations for CMV drivers. Section 395.3 prohibits a carrier from 
permitting or requiring any driver to violate these regulations. 
Section 395.8 also subjects a carrier, as well as a driver, to 
prosecution for making false reports of duty status. As a result, 
carriers are forbidden from requiring a driver to manipulate an EOBR to 
violate HOS regulations or to use an EOBR to otherwise violate those 
regulations. Further, employer retaliation against a driver who refused 
to modify his accurate HOS records in response to carrier harassment 
would be illegal under 49 U.S.C. 31105(a), which prohibits retaliation 
against employees for filing safety complaints or refusing to operate 
vehicles in violation of safety regulations, based on unsafe vehicle 
conditions, or where an employee accurately reports hours on duty. 
Thus, even if the ``harassment'' contemplated by Section 31137(a) 
extended to these types of scenarios, previously-existing statutes and 
regulations already address these concerns, and the Agency need not 
adopt new regulations or limit the capabilities of EOBRs to mitigate 
them. Rather, as explained above, FMCSA focused its obligations under 
Section 31137(a) on privacy concerns because those issues represented 
potential for harassment that both arose for the first time with EOBRs 
and which were not addressed by previously-existing statutes or 
regulations.
    Furthermore, the EOBRs required by the Agency do not increase the 
potential for carriers to harass drivers for ostensible productivity 
reasons that are actually illegal or illegitimate, beyond the potential 
that already exists with paper records. The EOBRs required by the 
Agency do not require the immediate, real-time transmittal of driver 
duty status data to carriers, which might arguably increase the 
potential for driver harassment. Rather, under EOBR 1, drivers are 
required only to submit their duty status data to carriers within three 
days after it is recorded, see 49 CFR 395.16(m), and under EOBR 2 
drivers would be subject to the same requirement. Thus, other than the 
driver privacy concerns noted and addressed by FMCSA, the Agency 
perceives no other form of ``harassment'' under Section 31137(a) that 
is implicated by monitoring devices themselves that must be addressed 
by the Agency. Indeed, commenters to EOBR 1 said that EOBRs could 
actually limit carrier harassment with respect to HOS rules. These 
commenters stated that EOBRs would force carriers that might otherwise 
harass drivers by coercing them to violate HOS rules to dramatically 
reduce such practices. Given the accuracy of EOBRs compared to paper 
logs, where such violations occur, they would be easier to detect and 
document to prove employer harassment.
    Third, driver comments submitted to both the EOBR 1 and EOBR 2 
dockets largely focused on the potential for harassment in the privacy 
context. Their concerns focused primarily on the potential invasion of 
privacy by the government (e.g., vehicle tracking) and on how data 
collected would be safeguarded, used, and disseminated (e.g., in post-
accident litigation or in personal litigation such as divorce 
proceedings).
    Based on the factors above, the Agency has determined that the 
statute requires it to protect against privacy invasion in the EOBR 
rulemakings. In its EOBR 1 rulemaking and in the EOBR 2 NPRM, the 
Agency took specific steps to ensure that EOBRs are not used to violate 
driver privacy or to otherwise harass drivers in the privacy context. 
The Agency also included additional consideration of this issue in the 
Privacy Impact Analysis conducted in support of each EOBR rulemaking 
initiative. For example, the technical specifications for the devices 
mandated in EOBR 1 and proposed for use in EOBR 2 do not require that 
an EOBR track the precise street address or location of a driver, but 
that it only record the nearest city, town or village and state when it 
records the driver's location (75 FR at 17220 and 76 FR at 5545). And 
FMCSA requires an EOBR to record a driver's location at no more than 60 
minute intervals, having specifically rejected the ``real time'' 1-
minute intervals proposed in the EOBR 1 NPRM as potentially invading 
drivers' privacy. While devices with such real time capability are 
already available on the market, FMCSA does not read Section 31137(a) 
as a mandate to prohibit motor carriers from voluntarily using these 
devices, or their enhanced functionality. The Agency understands 
Section 31137(a) to require FMCSA to ensure that the devices the Agency 
itself requires are not used to harass drivers; the statute does not 
require the Agency to prohibit private parties from voluntarily 
adopting technologies that have capabilities beyond those required by 
the Agency-mandated EOBRs. Also, EOBR 1 does include provisions to 
ensure information collected is not misused. See Privacy Impact 
Assessment at 7 (FMCSA-2004-18940-1156).
    Recently, however, the Owner-Operator Independent Drivers 
Association (OOIDA) challenged the EOBR I final rule in a lawsuit 
brought in the United States Court of Appeals for the Seventh Circuit. 
In that case, Owner-Operator Independent Drivers Ass'n v. U.S. Dep't of 
Transp. (Case No. 10-2340) (7th Cir.), OOIDA raised several concerns 
relating to EOBRs and their potential for harassment. During oral 
argument on February 7, 2011, the Court specifically noted these 
concerns.
    The EOBR 1 rule is a final Agency action and currently remains 
under review by the Seventh Circuit. Accordingly, it is not subject to 
further comment or consideration on harassment or any other matter. The 
Agency believes that it has appropriately interpreted Section 31137(a) 
to require the Agency, in the EOBR rulemakings, to protect drivers from 
harassment resulting from invasion of their privacy. To ensure no 
misunderstanding on the issue,

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however, the Agency seeks to maximize the opportunity for public 
participation on harassment by inviting further comment during the open 
EOBR 2 rulemaking.
    By notice published on March 10, 2011 (76 FR 13121), the Agency has 
already extended the public comment period for the EOBR 2 NPRM to May 
23, 2011. The Agency encourages interested parties to take advantage of 
this extended comment period to submit comment on the issues set forth 
in this notice. As indicated in the March 10 extension notice, the 
Agency will also accept and consider comments on all issues within the 
scope of the NPRM.
    Request for Comments: FMCSA encourages all interested parties to 
submit comments, including supporting data, information or examples, 
regarding the use of EOBRs for purposes of driver harassment. In 
particular, the Agency encourages commenters to address the following:
     Experiences drivers have had regarding harassment, 
including coercion by carriers to evade the HOS regulations;
     Whether such carrier activity would be permitted as 
productivity monitoring or would be barred by other statutory or 
regulatory provisions;
     Whether use of EOBRs would impact the ability of carriers, 
shippers, and other parties to harass or coerce drivers to violate HOS 
requirements;
     The effectiveness of mechanisms currently available under 
49 CFR 392.3, 49 CFR part 395 and 49 U.S.C. 31105(a) to protect against 
carrier coercion; and
     Whether additional regulations or guidance from FMCSA are 
necessary to ensure EOBR devices are not used to harass vehicle 
operators.

    Issued on: April 7, 2011.
Anne S. Ferro,
Administrator.
[FR Doc. 2011-8789 Filed 4-12-11; 8:45 am]
BILLING CODE 4910-EX-P


