Federal Register / Vol. 77, No. 40 / Wednesday, February 29, 2012 / Proposed Rules 12231 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the EO has the 

potential to influence the regulation. 

This action is not subject to EO 13045 

because it proposes to authorize preexisting State rules. 

8. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355, May 22, 

2001), because it is not a ‘‘significant 

regulatory action’’ as defined under 

Executive Order 12866. 

9. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, section 12(d) (15 U.S.C. 272 

note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus bodies. 

The NTTAA directs EPA to provide 

Congress, through the OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. This 

proposed action does not involve 

technical standards. Therefore EPA is 

not considering the use of any voluntary 

consensus standards. 

10. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (EO) 12898 (59 FR 

7629, February 16, 1994) establishes 

Federal executive policy on 

environmental justice. Its main 

provision directs Federal agencies, to 

the greatest extent practicable and 

permitted by law, to make 

environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this 

proposed action will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it does not affect the level of 

protection provided to human health or 

the environment. This action proposes 

to authorize pre-existing State rules 

which are equivalent to, and no less 

stringent than, existing Federal 

requirements. 

List of Subjects in 40 CFR Part 271 

Environmental protection, 

Administrative practice and procedure, 

Confidential business information, 

Hazardous materials transportation, 

Hazardous waste, Indians—lands, 

Intergovernmental relations, Penalties, 

Reporting and recordkeeping 

requirements. 

Authority: This proposed action is issued 

under the authority of sections 2002(a), 3006 

and 7004(b) of the Solid Waste Disposal Act, 

as amended, 42 U.S.C. 6912(a), 6926, 6974(b). 

Dated: February 13, 2012. 

Dennis J. McLerran, 

Regional Administrator, EPA Region 10. 

[FR Doc. 2012–3916 Filed 2–28–12; 8:45 am] 

BILLING CODE 6560–50–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 public listening 

session. 

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. This session 

will be held in Louisville, Kentucky 

(KY), and will allow interested persons 

to present comments, views, and 

relevant new research that FMCSA 

should consider in development of the 

final rule. 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. 

DATES: The listening session will be 

held on Friday, March 23, 2012, at the 

Mid-America Trucking Show in 

Louisville, KY. The listening session 

will run from 10 a.m.–12 p.m., with a 

break between 12 p.m. and 2 p.m., and 

continue from 2 p.m.–4 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 Kentucky Exposition 

Center (KEC), 937 Phillips Lane, 

Louisville, KY 40209, South Wing, 

Meeting Room C–101. 

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 acknowledgement 


tkelley on DSK3SPTVN1PROD with PROPOSALS
12232 Federal Register / Vol. 77, No. 40 / Wednesday, February 29, 2012 / Proposed Rules 

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, also 

contact Ms. Shannon L. Watson, at the 

above phone number, by Thursday, 

March 8, 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 OnBoard 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 hours-of-service (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. 

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 Motor Carrier 

Safety Advisory Committee (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 

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? 


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Federal Register / Vol. 77, No. 40 / Wednesday, February 29, 2012 / Proposed Rules 12233 

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? 

II. Alternative Media Broadcasts 

During and Immediately After the 

Listening Session on March 23, 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: February 24, 2012. 

William A. Bronrott, 

Deputy Administrator. 

[FR Doc. 2012–4876 Filed 2–28–12; 8:45 am] 

BILLING CODE P 


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