7562 Federal Register / Vol. 77, No. 29 / Monday, February 13, 2012 / Proposed Rules 

Proposed Change 5: Renewal of 

Certifications 

The Department solicits comments on 

a proposal to specify that a certification 

under chapter 154 is effective for a 

specified term of years. This proposal is 

responsive to many comments pointing 

out that changed circumstances may 

affect whether a once-certified 

mechanism continues to be adequate for 

purposes of ensuring the availability for 

appointment of competent counsel. At 

the time a State applies for certification, 

for example, its provisions authorizing 

compensation at a specified hourly rate 

may be sufficient to achieve this 

objective. But after the passage of years, 

that may no longer be the case in light 

of inflation or other changed economic 

circumstances. Cf. Durable Mfg. Co. v. 

United States Dep’t of Labor, 578 F.3d 

497, 501–02 (7th Cir. 2009) (upholding 

time limitation of validity of labor 

certificates in light of possible 

subsequent changes in economic 

circumstances affecting consistency 

with statutory requirements and 

objectives). Similarly, changes in 

various State policies that may affect the 

mechanism’s operation, or new 

statutory provisions or legal precedent 

relating to attorney competence, 

compensation, or reasonable litigation 

expenses, may bear on the continued 

adequacy of the mechanism. Providing 

some limitation on the lifespan of 

certifications and requiring renewal of 

certifications would allow questions 

regarding continued compliance with 

chapter 154 to be reexamined at regular 

intervals, each time with increased 

information about a State’s actual 

experience with its mechanism, rather 

than assuming that a once-compliant 

State system is compliant indefinitely. 

At the same time, it is possible that 

overly stringent limitations on the 

duration of certifications could unduly 

burden States and disserve chapter 

154’s objectives by discouraging States 

from undertaking the effort to establish 

compliant mechanisms and seek their 

certification. Balancing the need for 

examination of continued compliance 

with the need to provide States with a 

substantial period of certainty, the 

Department is considering a term of five 

years for certifications, which would 

begin to run only after completion of 

both the certification process by the 

Attorney General and any related 

judicial review. See 28 U.S.C. 2265(c) 

(providing for DC Circuit review of 

certification decisions). The final rule 

could also provide that if a State 

requests renewal of the certification at 

or before the end of the five-year period, 

the initial certification would remain 

effective until completion of the 

renewal process and any related judicial 

review. Thus, a State that achieves 

certification of its mechanism would 

enjoy the uninterrupted benefits of 

chapter 154 for the full term of five 

years. The Department seeks comment 

on the merits and substance of a 

renewal requirement, including whether 

five years is an appropriate term of years 

during which a certification should be 

effective, or whether that term of years 

should be longer or shorter. 

Regulatory Certifications 

Executive Orders 12866 and 13563— 

Regulatory Review 

This regulation has been drafted and 

reviewed in accordance with Executive 

Order 12866, ‘‘Regulatory Planning and 

Review,’’ section 1(b), Principles of 

Regulation, and in accordance with 

Executive Order 13563, ‘‘Improving 

Regulation and Regulatory Review,’’ 

section 1(b), General Principles of 

Regulation. 

The Department of Justice has 

determined that this rule is a 

‘‘significant regulatory action’’ under 

Executive Order 12866, section 3(f), and 

accordingly this rule has been reviewed 

by the Office of Management and 

Budget. 

Executive Order 13132—Federalism 

This regulation will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. It only requests 

public comment on possible changes in 

a previously published proposed rule 

regarding the certification procedure 

under chapter 154 of title 28, United 

States Code. Therefore, in accordance 

with Executive Order 13132, it is 

determined that this rule does not have 

sufficient federalism implications to 

warrant the preparation of a federalism 

assessment. 

Executive Order 12988—Civil Justice 

Reform 

This regulation meets the applicable 

standards set forth in section 3(a) and 

(b)(2) of Executive Order 12988. 

Regulatory Flexibility Act 

The Attorney General, in accordance 

with the Regulatory Flexibility Act, 5 

U.S.C. 605(b), has reviewed this 

regulation and by approving it certifies 

that this regulation will not have a 

significant economic impact on a 

substantial number of small entities. It 

only requests public comment on 

possible changes in a previously 

published proposed rule regarding the 

certification procedure under chapter 

154 of title 28, United States Code. 

Unfunded Mandates Reform Act of 1995 

This rule will not result in aggregate 

expenditures by State, local, and tribal 

governments or by the private sector of 

$100,000,000 or more in any one year, 

and it will not significantly or uniquely 

affect small governments. Therefore, no 

actions were deemed necessary under 

the provisions of the Unfunded 

Mandates Reform Act of 1995. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This rule is not a major rule as 

defined by section 251 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, 5 U.S.C. 804. This 

rule will not result in an annual effect 

on the economy of $100 million or 

more; a major increase in costs or prices; 

or significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of United States-based companies to 

compete with foreign-based companies 

in domestic and export markets. 

Dated: February 6, 2012. 

Eric H. Holder, Jr., 

Attorney General. 

[FR Doc. 2012–3293 Filed 2–10–12; 8:45 am] 

BILLING CODE 4410–18–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 of intent. 

SUMMARY: FMCSA announces its intent 

to move forward with the Electronic OnBoard Recorders and Hours of Service 

Supporting Documents rulemaking 

(EOBR 2) by preparing a Supplemental 

Notice of Proposed Rulemaking 

(SNPRM). To augment the Agency’s 

efforts to obtain comprehensive data to 

support this SNPRM, FMCSA plans to 

do the following: hold listening sessions 

on the issue of driver harassment; task 

the Motor Carrier Safety Advisory 

Committee (MCSAC) to assist in 

developing material to support this 


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Federal Register / Vol. 77, No. 29 / Monday, February 13, 2012 / Proposed Rules 7563 

1For a more detailed history of the program 

containing the initial regulatory actions by the 

agency see EOBR 1, discussed below in this section 

(75 FR 17208). 

rulemaking, including technical 

specifications for EOBRs and their 

potential to be used to harass drivers; 

and conduct research by surveying 

drivers, carriers, and vendors regarding 

harassment issues. 

ADDRESSES: Comments and material 

received from the public as well as 

documents mentioned in this notice are 

available for inspection or copying in 

the docket, Docket No. FMCSA–2010– 

0167, and at the Docket Management 

Facility, U.S. Department of 

Transportation, 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. 

FOR FURTHER INFORMATION CONTACT: 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. 

SUPPLEMENTARY INFORMATION: 

Regulatory Background 

The following discussion summarizes 

the recent regulatory history of the 

agency’s EOBR initiatives.1

EOBR 1 

On April 5, 2010, the Agency issued 

a final rule (75 FR 17208) that provided 

new technical requirements for EOBRs. 

The EOBR final rule also required the 

limited, remedial use of EOBRs by any 

motor carrier found, during a single 

compliance review, to have a 10 percent 

violation rate for any hours-of-service 

(HOS) regulation listed in a new 

Appendix C of 49 CFR part 385. The 

final rule required EOBRs on all of the 

motor carrier’s commercial motor 

vehicles (CMVs) for a period of 2 years. 

The compliance date for the final 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. 

(Emphasis added.)). 

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). 

The Court also noted that the Agency 

had not estimated the safety benefits of 

EOBRs currently in use and how much 

EOBRs increased compliance. 

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. 

EOBR 2 

On February 1, 2011, the Agency 

published a notice of proposed 

rulemaking (NPRM) that proposed to 

expand the scope of EOBR use to a 

broader population of motor carriers 

(EOBR 2) (76 FR 5537). The EOBR 2 

NPRM proposed that, within 3 years of 

the effective date of the final rule, all 

motor carriers currently required to 

maintain records of duty status (RODS) 

for HOS recordkeeping would be 

required to use EOBRs. 

Due to the pending EOBR 1 litigation, 

the Agency extended the EOBR 2 public 

comment period and, in recognition of 

issues raised in oral argument before the 

Seventh Circuit, expressly invited 

comment on the issue of driver 

harassment. A notice published on 

March 10, 2011 (76 FR 13121) extended 

the public comment period for the 

EOBR 2 NPRM to May 23, 2011. On 

April 13, 2011, the Agency published a 

notice specifically inviting comments 

on the EOBR2 rulemaking to address 

harassment (76 FR 20611). In light of the 

litigation challenging the Agency’s 

treatment of driver harassment in EOBR 

1, FMCSA wished to ensure that 

interested parties had a full opportunity 

to consider the harassment issue in the 

active EOBR 2 rulemaking. 

Planned Activities 

EOBR 2 SNPRM 

Because the EOBR 2 rule relied on the 

technical specifications provided in 

EOBR 1, where this final rule was 

vacated, the Agency must again 

proposed and seek comment on new 

technical standards into the CFR before 

any final rule concerning use of an 

EOBR device is issued. These proposed 

technical standards would take into 

account the official MCSAC 

recommendations, as well as public 

comments. 

FMCSA takes this opportunity to 

declare its intention to proceed with the 

EOBR 2 rulemaking. The Agency is 

preparing an SNPRM to propose 

technical standards for an EOBR, 

address driver harassment issues, 

propose requirements for retaining HOS 

supporting documents, and provide 

clarification and request further 

comments on several of the proposals. 

Additionally, the Agency will hold 

public listening sessions; work with its 

Motor Carrier Safety Advisory 

Committee (MCSAC); and use driver, 

carrier, and vendor surveys to obtain all 

the stakeholder information needed to 

discuss issues involving driver 

harassment. 

Public Listening Sessions 

FMCSA will hold public listening 

sessions to discuss issues involving the 

driver harassment issue. The public will 

have an opportunity to speak about this 

issue and provide the Agency with 

information on how to address 

harassment. All public comments will 

be placed in the docket of this 

rulemaking. Details concerning the 

schedule and locations for the listening 

sessions, as well as procedural 

information for participants, will follow 

in a subsequent Federal Register notice. 


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7564 Federal Register / Vol. 77, No. 29 / Monday, February 13, 2012 / Proposed Rules 

Motor Carrier Safety Advisory 

Committee Task 

MCSAC is an advisory committee to 

FMCSA. 

In June 2011, a MCSAC subcommittee 

began work on Task 11–04 (Electronic 

On-Board Recorders (EOBR) 

Communications Protocols, Security, 

Interfaces, and Display of Hours-ofService Data During Driver/Vehicle 

Inspections and Safety Investigations). 

The subcommittee examined technical 

issues relating to the electronic transfer 

of HOS information from CMVs to law 

enforcement personnel at the roadside 

raised by the EOBR 1 final rule. The 

subcommittee met several times and 

made its final report to the full 

committee on December 5 and 6, 2011. 

On December 16, 2011, the full 

committee made an official 

recommendation to FMCSA. 

FMCSA will task MCSAC to make 

recommendations related to the EOBR2 

rulemaking. Details will follow in a 

subsequent Federal Register notice. 

More information about these MCSAC 

meetings, recommendations, and task 

orders can be found at http:// 

mcsac.fmcsa.dot.gov/meeting.htm. 

Research 

Subject to Office of Management and 

Budget approval, FMCSA will initiate 

OMB-approved survey of drivers 

regarding harassment experiences and 

concerns and OMB-approved surveys 

for carriers and vendors regarding 

harassment. Details will follow in 

subsequent Federal Register notices. 

EOBR 1 Final Rule Withdrawal 

Based on the Seventh Circuit’s 

decision, the Agency plans to publish a 

final rule in the Federal Register 

announcing the removal of the 

regulatory text in 49 CFR parts 350, 385, 

395, 396 adopted in EOBR 1 and 

subsequently vacated by the Seventh 

Circuit decision. This will complete the 

actions required by the Court. 

Issued on: February 7, 2012. 

Anne S. Ferro, 

Administrator. 

[FR Doc. 2012–3265 Filed 2–10–12; 8:45 am] 

BILLING CODE 4910–EX–P 


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