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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. Additionally,
the Agency will solicit concepts, ideas,
and comments from enforcement
personnel on the hours-of-service (HOS)
information they would need to see on
the EOBR display screen to effectively
enforce the HOS rules at the roadside
and the type of evidence they would
need to retain in order to support
issuing drivers citations for HOS violations observed during roadside
inspections. This session will be held in
Bellevue, Washington (WA), and will
allow interested persons to present
comments, views, and relevant new
research that FMCSA should consider in
development of Supplemental Notice of
Proposed Rulemaking (SNPRM). 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 and will
allow for email interactivity during the
webcast.
DATES: The listening session will be
held on Thursday, April 26, 2012, at the
Commercial Vehicle Safety Alliance
(CVSA) meeting in Bellevue, WA. The
listening session will run from 1:30
p.m.-5:30 p.m., with a break between
3:30 p.m. and 4 p.m., and continue from
4 p.m.-5:30 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 Hyatt Regency Bellevue,
900 Bellevue Way NE., Bellevue, WA
98004, telephone: (425) 462-1234 and
fax: (425) 646-7567. The session will be
held in the Grand Ballroom IJK on the
2nd floor.
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 acknowledgment
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, Shannon.Watson@dot.gov.
Should you need sign language
interpretation or other assistance to
participate in this listening session,
please contact Ms. Watson by Thursday,
April 12, 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 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.
II. 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 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
in 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?
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?
FMCSA also seeks concepts, ideas,
and comments from enforcement
personnel on the HOS information they
would need to see on the EOBR display
screen at the roadside to effectively
enforce the HOS rules and the type of
evidence they would need to retain in
order to support issuing drivers a
citation for HOS violations observed
during roadside inspections.
III. Alternative Media Broadcasts
During and Immediately After the
Listening Session on April 26, 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: March 26, 2012.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2012-7899 Filed 3-30-12; 8:45 am]
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