
[Federal Register Volume 77, Number 240 (Thursday, December 13, 2012)]
[Notices]
[Pages 74267-74269]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-30143]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2012-0309]


Agency Information Collection Activities; New Information 
Collection Request: Driver and Carrier Surveys Related to Electronic 
On-Board Recorders (EOBRs), and Potential Harassment Deriving From EOBR 
Use

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

ACTION: Notice and request for information.

-----------------------------------------------------------------------

SUMMARY: In accordance with the Paperwork Reduction Act of 1995, FMCSA 
announces its plan to submit the Information Collection Request (ICR) 
described below to the Office of Management and Budget (OMB) for review 
and approval. The purpose of this new ICR is to broadly examine by the 
collection of survey data, the issue of driver harassment and determine 
the extent to which Electric On-Board Recorders (EOBRs) used to 
document drivers' hours of service could also be used by motor carriers 
or enforcement personnel to harass drivers and/or monitor driver 
productivity. The survey will also collect information on the extent to 
which respondents believe that the use of EOBRs may result in coercion 
of drivers by motor carriers, shippers, receivers and transportation 
intermediaries. The proposed surveys for drivers and carriers collect 
information related to issues of EOBR harassment of drivers by 
carriers. FMCSA will publish a supplemental notice of proposed 
rulemaking on EOBRs and will consider survey results concerning the 
EOBR use by motor carriers including countermeasures or best practices 
to ensure that EOBRs are not used by carriers to harass or coerce 
drivers prior to the issuance of a final rule.

DATES: Comments must be received on or before February 11, 2013.

ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2012--0309 using any of the following methods:
     Federal eRulemaking Portal: Go to http://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 20590-00001.
     Hand Delivery or Courier. West Building Ground Floor, Room 
W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001 between 
9:00 a.m. and 5:00 p.m. e.t. Monday through Friday, except Holidays.
     Fax 1-202-493-2251.
    To avoid duplication, please use only one of these four methods. 
Each submission must include the Agency name and the docket number for 
this Notice. Note that DOT posts all comments received without change 
to http://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 http://www.regulations.gov at any time or to Room W12-
140 on the ground level of the West Building, 1200 New Jersey Avenue 
SE., Washington, DC 20590-0001 between 9:00 a.m. and 5:00 p.m., Monday 
through Friday, except Federal holidays. The FDMS docket 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 post card or print the acknowledgement page that appears 
after submitting them on-line.
    Privacy Act: Anyone is able to 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 complete 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: Albert Alvarez, Research Division, 
Office of Analysis, Research and Technology, Federal Motor Carrier 
Safety Administration, 1200 New Jersey Ave. SE., Washington, DC 20590. 
Telephone: (202 385-2387); email albert.alvarez@dot.gov. Requests for 
additional information or copies of the information collection 
instrument and instructions should be directed to Gene Bergoffen, 
Principal, MaineWay Services, P.O. Box 166, Fryeburg, ME 04037. 
Telephone: 207 935-7948; email bergoffen@roadrunner.com.

SUPPLEMENTARY INFORMATION: 

Background

    Motor carrier management and oversight of drivers' hours-of-service 
(HOS) is one of the fundamental concerns of FMCSA. Motor carriers began 
to look to automated methods of recording drivers' record of duty 
status (RODS) in the mid-1980s as a way to save drivers time and 
improve the efficiency of their compliance assurance procedures. In 
April 1985, the Federal Highway Administration (FHWA), the predecessor 
agency to FMCSA within the U.S. Department of Transportation (DOT), 
granted the first of 10 waivers to allow use of on-board computers in 
lieu of requiring drivers to complete handwritten RODS.
    After conducting notice-and-comment on the rulemaking regarding 
automated methods of recording RODS, the Agency issued a final rule on 
September 30, 1988. The rule revised part 395 of the Federal Motor 
Carrier Safety Regulations (FMCSRs) by allowing motor carriers the 
flexibility to equip commercial motor vehicles (CMVs) with an automatic 
on-board recording device (AOBRD) in lieu of requiring drivers to

[[Page 74268]]

complete handwritten RODS. The term ``automatic on-board recording 
device'' was defined under Sec.  395.2 as follows:

``an electric, electronic, electromechanical, or mechanical device 
capable of recording driver's duty status information accurately and 
automatically as required by Sec.  395.15. The device must be 
integrally synchronized with specific operations of the commercial 
motor vehicle in which it is installed. At a minimum, the device 
must record engine use, road speed, miles driven, the date, and time 
of day.''

    On April 5, 2010, FMCSA published a final rule to incorporate new 
performance standards for electronic on-board recorders (EOBRs) 
installed in CMVs manufactured on or after June 4, 2012. The new rule 
also required installation of EOBRs meeting the new performance 
standards in CMVs operated by motor carriers found by the Agency to 
have serious HOS noncompliance. EOBRs would have been required to 
automatically record the CMV's location at each change of duty status 
and at intervals while the CMV is in motion. Current on-board recorders 
were not required to do this. To ensure a smooth transition from AOBRDs 
to EOBRs, the final rule would have required that for CMVs manufactured 
on or after June 4, 2012, devices installed by a manufacturer or motor 
carrier would need to have met the requirements of Sec.  395.16. 
Commercial motor vehicles manufactured prior to June 4, 2012 could be 
equipped with an HOS recording device that met the requirements of 
either Sec.  395.15 (AOBRD) or Sec.  395.16.
    The 2010 EOBR rule was challenged in court based in part on 
concerns that EOBRs could be used to harass drivers. Owner-Operators 
Independent Drivers Association v. U.S. Department of Transportation, 
656 F.3d 580 (7th Cir. 2011). At the time, a new rulemaking by FMCSA 
had been started that proposed to require certain motor carriers 
operating CMVs in interstate commerce to use EOBRs to document their 
drivers' HOS (76 FR 5537, February 1, 2011). Based on issues raised in 
the litigation on the April 2010 final rule, FMCSA published a notice 
requesting public comment on the harassment issue on April 13, 2011 (76 
FR 20612). The Agency sought and received comments on the following 
items:
     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 that EOBR devices are not used to harass vehicle 
operators.
    On August 26, 2011, the U.S. Court of Appeals for the Seventh 
Circuit vacated the Agency's April 2010 final rule on the use of EOBRs. 
The court stated 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 court also noted that the 
Agency had not estimated the safety benefits of EOBRs currently in use 
and how much EOBRs increased compliance. The basis for the court's 
decision was FMCSA's failure to directly address a requirement in 49 
U.S.C. 31137(a). At the time of the court's decision, the statute read 
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.

    As a result of the court's ruling, carriers relying on electronic 
devices to monitor HOS compliance are currently governed by the rules 
that address the use of AOBRDs as in effect immediately before the 
court's ruling (49 CFR 395.15). These rules were not affected by the 
court's decision. On May 14, 2012, FMCSA rescinded the April 5, 2010 
final rule, as amended September 13, 2010, in response to the court's 
decision to vacate the rulemaking. FMCSA had previously announced its 
intent to move forward with a rule on electronic logging devices with a 
supplemental notice of proposed rulemaking (SNPRM) (77 FR 7562 
(February 13, 2012)). Congress subsequently mandated that the Secretary 
of Transportation adopt regulations requiring that commercial motor 
vehicles involved in interstate commerce, operated by drivers who are 
required to keep records of duty status (RODS), be equipped with 
electronic logging devices. (MAP-21, Pub. L. 112-141, Sec.  32301(b), 
126 Stat. 405, 786-788 (July 6, 2012), amending 49 U.S.C. 31137). The 
legislation retained the requirement that regulations ensure such 
devices not be used to harass drivers of CMVs. MAP-21 also required 
that certain regulations governing CMV safety ensure that drivers of 
CMVs are not coerced into operating in violation of regulations to be 
promulgated (Pub. L. 112-141, Sec.  32911. 126 Stat. at 818 (amending 
49 U.S.C. 31136(a)).
    The objectives of the proposed driver and carrier surveys through 
this ICR are to broadly examine the issue of driver harassment and 
coercion and determine the extent to which EOBRs could be used to 
either harass and/or monitor driver productivity. These surveys will 
explore the relevant issues from the point of view of both drivers and 
carriers towards the use of EOBRs. The survey results will inform FMCSA 
in its ongoing rulemaking on EOBRs, including potential countermeasures 
or best practices that will ensure that EOBRs are not used to harass or 
coerce CMV drivers. The purpose of these surveys is, in part, to 
respond to the court's suggestion that the Agency research the issue of 
driver harassment based on use of the device.
    Title: Driver and Carrier Surveys Related to Electronic On-Board 
Recorders (EOBRs), and Potential Harassment Deriving from EOBR Use.
    OMB Control Number: 2126-XXXX.
    Type of Request: New ICR.
    Respondents: Commercial motor vehicle drivers and carriers.
    Estimated Number of Respondents: 1,039 [(2 carrier in-depth 
interviews + 20 carrier pre test web interviews + 400 carrier main 
survey web interviews + 100 carrier non-response telephone follow up 
interviews) + (7 driver in-depth interviews + 510 driver intercept 
interviews) = 1,039].
    Estimated Time per Response: 30 minutes for in-depth interviews of 
drivers and motor carriers; 20 minutes for carrier survey; 20 minutes 
for the driver survey; 10 minutes for the telephone interview of 
carriers with non-responses.
    Expiration Date: N/A.
    Frequency of Response: Once.
    Estimated Total Annual Burden: 110.5 hours [(2 carrier in-depth 
interviews x 30 minutes/60 minutes + 20 carrier pre-test web interviews 
x 20 minutes/60 minutes + 400 carrier main survey web interviews x 20 
minutes/60 minutes + 100 carrier non-response telephone follow up 
interviews x 10 minutes/60 minutes) + (7 driver in-depth interviews x 
30 minutes/60 minutes + 510 driver intercept interviews x 20 minutes/60 
minutes)/3 year approval) = 110.5].

[[Page 74269]]

    Public Comments Invited: You are asked to comment on any aspect of 
this information collection, including: (1) Whether the proposed 
collection is necessary for the FMCSA to perform its functions; (2) the 
accuracy of the estimated burden; (3) ways for the FMCSA to enhance the 
quality, usefulness, and clarity of the information to be collected; 
and (4) ways that the estimated annual burden could be minimized 
without reducing the quality of the collected information.

    Issued on: December 3, 2012.
Kelly Leone,
Associate Administrator for Office of Research and Information 
Technology.
[FR Doc. 2012-30143 Filed 12-12-12; 8:45 am]
BILLING CODE 4910-EX-P


