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 |
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Kelly Leone
Federal Motor Carrier Safety Administration
December 13, 2012
[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]
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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.
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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]
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