Federal Register / Vol. 76, No. 71 / Wednesday, April 13, 2011 / Proposed Rules 20611 

(Catalog of Federal Domestic Assistance No. 

97.022, ‘‘Flood Insurance.’’) 

Dated: March 30, 2011. 

Sandra K. Knight, 

Deputy Federal Insurance and Mitigation 

Administrator, Mitigation, Department of 

Homeland Security, Federal Emergency 

Management Agency. 

[FR Doc. 2011–8852 Filed 4–12–11; 8:45 am] 

BILLING CODE 9110–12–P 

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. 

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-ofservice (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, 


srobinson on DSKHWCL6B1PROD with PROPOSALS
20612 Federal Register / Vol. 76, No. 71 / Wednesday, April 13, 2011 / Proposed Rules 

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 OwnerOperator 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, 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 76, No. 71 / Wednesday, April 13, 2011 / Proposed Rules 20613 

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 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R8–ES–2010–0077; MO 

92210–0–0008] 

Endangered and Threatened Wildlife 

and Plants; 90-Day Finding on a 

Petition To List Spring Mountains 

Acastus Checkerspot Butterfly as 

Endangered 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of 90-day petition 

finding. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service, announce a 90-day 

finding on a petition to list the Spring 

Mountains acastus checkerspot butterfly 

(Chlosyne acastus robusta) as 

endangered under the Endangered 

Species Act of 1973, as amended (Act). 

Based on our review, we find that the 

petition presents substantial scientific 

or commercial information indicating 

that listing the Spring Mountains 

acastus checkerspot butterfly as 

endangered or threatened may be 

warranted. Therefore, with the 

publication of this notice, we are 

initiating a review of the status of the 

species to determine if listing the Spring 

Mountains acastus checkerspot butterfly 

as endangered or threatened is 

warranted. To ensure that this status 

review is comprehensive, we are 

requesting scientific and commercial 

data and other information regarding 

this subspecies. Based on the status 

review, we will issue a 12-month 

finding on the petition, which will 

address whether the petitioned action is 

warranted, as provided in section 

4(b)(3)(B) of the Act. 

DATES: To allow us adequate time to 

conduct this review, we request that we 

receive information on or before June 

13, 2011. Please note that if you are 

using the Federal eRulemaking Portal 

(see ADDRESSES section below), the 

deadline for submitting an electronic 

comment is Eastern Standard Time on 

this date. After June 13, 2011, you must 

submit information directly to the 

Nevada Fish and Wildlife Office (see 

FOR FURTHER INFORMATION CONTACT

section below). Please note that we 

might not be able to address or 

incorporate information that we receive 

after the above requested date. 

ADDRESSES: You may submit 

information by one of the following 

methods: 

• Electronically: Go to the Federal 

eRulemaking Portal: http:// 

www.regulations.gov. In the Keyword 

box, enter Docket No. FWS–R8–ES– 

2010–0077, which is the docket number 

for this rulemaking. Then, in the Search 

panel on the left side of the screen, 

under the Document Type heading, 

click on the Proposed Rules link to 

locate this document. You may submit 

a comment by clicking on ‘‘Send a 

Comment or Submission.’’ 

• By hard copy: Submit by U.S. mail 

or hand-delivery to: Public Comments 

Processing, Attn: FWS–R8–ES–2010– 

0077; Division of Policy and Directives 

Management; U.S. Fish and Wildlife 

Service; 4401 N. Fairfax Drive, MS 

2042–PDM; Arlington, VA 22203. 

We will post all information we 

receive on http://www.regulations.gov. 

This generally means that we will post 

any personal information you provide 

us (see the Request for Information 

section below for more details). 

FOR FURTHER INFORMATION CONTACT: Jill 

Ralston, Deputy State Supervisor, U.S. 

Fish and Wildlife Service, Nevada Fish 

and Wildlife Office, 4701 North Torrey 

Pines Drive, Las Vegas, NV 89130; by 

telephone 702–515–5230; or by 

facsimile to 702–515–5231. If you use a 

telecommunications device for the deaf 

(TDD), please call the Federal 

Information Relay Service (FIRS) at 

800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Request for Information 

When we make a finding that a 

petition presents substantial 

information indicating that listing a 

species may be warranted, we are 

required to promptly review the status 

of the species (status review). For the 

status review to be complete and based 

on the best available scientific and 

commercial information, we request 

information on the Spring Mountains 

acastus checkerspot butterfly from 

governmental agencies, Native 

American Tribes, the scientific 

community, industry, and any other 

interested parties. We seek information 

on: 

(1) The subspecies’ biology, range, 

and population trends, including: 

(a) Habitat requirements for feeding, 

breeding, and sheltering; 

(b) Genetics and taxonomy; 

(c) Historical and current range, 

including distribution patterns; 

(d) Historical and current population 

levels, and current and projected trends; 

and 

(e) Past and ongoing conservation 

measures for the subspecies, its habitat, 

or both. 

(2) The factors that are the basis for 

making a listing/delisting/downlisting 

determination for a species under 

section 4(a) of the Endangered Species 

Act of 1973, as amended (Act) 

(16 U.S.C. 1531 et seq.), which are: 

(a) The present or threatened 

destruction, modification, or 

curtailment of its habitat or range; 

(b) Overutilization for commercial, 

recreational, scientific, or educational 

purposes; 

(c) Disease or predation; 

(d) The inadequacy of existing 

regulatory mechanisms; or 

(e) Other natural or manmade factors 

affecting its continued existence. 


srobinson on DSKHWCL6B1PROD with PROPOSALS