Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 19589 

method of electronic filing, written ex 

parte presentations and memoranda 

summarizing oral ex parte 

presentations, and all attachments 

thereto, must be filed through the 

electronic comment filing system 

available for that proceeding and must 

be filed in their native format (e.g., .doc, 

.xml, .ppt, searchable .pdf). Participants 

in this proceeding should familiarize 

themselves with the Commission’s ex 

parte rules. 

B. Filing Requirements 

83. Pursuant to §§ 1.415 and 1.419 of 

the Commission’s rules, interested 

parties may file comments and reply 

comments on or before the dates 

indicated on the first page of this 

document. Comments may be filed 

using: (1) The Commission’s Electronic 

Comment Filing System (‘‘ECFS’’), (2) 

the Federal Government’s eRulemaking 

Portal, or (3) by filing paper copies. 

• Electronic Filers: Comments may be 

filed electronically using the Internet by 

accessing the ECFS: http://www.fcc.gov/ 

cgb/ecfs/ or the Federal eRulemaking 

Portal: http://www.regulations.gov. 

• Paper Filers: Parties who choose to 

file by paper must file an original and 

one copy of each filing. If more than one 

docket or rulemaking number appears in 

the caption of this proceeding, filers 

must submit two additional copies for 

each additional docket or rulemaking 

number. 

Filings can be sent by hand or 

messenger delivery, by commercial 

overnight courier, or by first-class or 

overnight U.S. Postal Service mail. All 

filings must be addressed to the 

Commission’s Secretary, Office of the 

Secretary, Federal Communications 

Commission. 

Æ All hand-delivered or messengerdelivered paper filings for the 

Commission’s Secretary must be 

delivered to FCC Headquarters at 445 

12th St. SW., Room TW–A325, 

Washington, DC 20554. All hand 

deliveries must be held together with 

rubber bands or fasteners. Any 

envelopes must be disposed of before 

entering the building. The filing hours 

are 8 a.m. to 7 p.m. 

Æ Commercial overnight mail (other 

than U.S. Postal Service Express Mail 

and Priority Mail) must be sent to 9300 

East Hampton Drive, Capitol Heights, 

MD 20743. 

Æ U.S. Postal Service first-class, 

Express, and Priority mail must be 

addressed to 445 12th Street SW., 

Washington DC 20554. 

84. Comments, reply comments, and 

ex parte submissions will be available 

for public inspection during regular 

business hours in the FCC Reference 

Center, Federal Communications 

Commission, 445 12th Street SW., 

CY–A257, Washington, DC, 20554. 

These documents will also be available 

via ECFS. Documents will be available 

electronically in ASCII, Microsoft Word, 

and/or Adobe Acrobat. 

85. To request information in 

accessible formats (Braille, large print, 

electronic files, audio format), send an 

email to fcc504@fcc.gov or call the 

FCC’s Consumer and Governmental 

Affairs Bureau at (202) 418–0530 

(voice), (202) 418–0432 (TTY). This 

document can also be downloaded in 

Word and Portable Document Format 

(PDF) at: http://www.fcc.gov. 

86. For additional information on this 

proceeding, contact Brenda Boykin of 

the Spectrum and Competition Policy 

Division, Wireless Telecommunications 

Bureau, at (202) 418–2062. 

C. Initial Regulatory Flexibility Act 

Analysis 

87. As required by the Regulatory 

Flexibility Act of 1980 (‘‘RFA’’), the 

Commission has prepared an Initial 

Regulatory Flexibility Analysis (IRFA) 

relating to this NPRM. The IRFA is 

attached to this NPRM. Written public 

comments are requested on the IRFA. 

These comments must be filed in 

accordance with the same filing 

deadlines as comments filed in response 

to this Notice of Proposed Rulemaking 

as set forth on the first page of this 

document and have a separate and 

distinct heading designating them as 

responses to the IRFA. 

D. Paperwork Reduction Act 

88. This document does not contain 

proposed information collection(s) 

subject to the Paperwork Reduction Act 

of 1995 (PRA), Public Law 104–13. In 

addition, therefore, it does not contain 

any new or modified information 

collection burden for small business 

concerns with fewer than 25 employees, 

pursuant to the Small Business 

Paperwork Relief Act of 2002, Public 

Law 107–198, see 44 U.S.C. 3506(c)(4). 

VII. Ordering Clauses 

89. Accordingly, it is ordered, 

pursuant to sections 1, 2, 4(i), 4(j), 301, 

302(a), 303(b), 303(e), 303(f), 303(g), 

303(r), 304, 307(a), 309(j)(3), and 

316(a)(1) of the Communications Act of 

1934, as amended, 47 U.S.C. 151, 152, 

154(i), 154(j), 301, 302(a), 303(b), 303(e), 

303(f), 303(g), 303(r), 304, 307(a), 

309(j)(3), and 316(a)(1), and § 1.401 et 

seq. of the Commission’s rules, 47 CFR 

1.401 et seq., that this Notice in WT 

Docket No. 12–69 IS adopted. 

90. It is further ordered that the 

Petition for Rulemaking of the 700 MHz 

Block A Good Faith Purchaser Alliance 

is granted to the extent described 

herein. 

91. It is further ordered that the 

proceeding in RM–11592 is hereby 

terminated. 

92. It is further ordered that the 

Commission’s Consumer & 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this Notice, including the Initial 

Regulatory Flexibility Analysis, to the 

Chief Counsel for Advocacy of the Small 

Business Administration. 

Federal Communications Commission. 

Bulah P. Wheeler, 

Deputy Manager. 

[FR Doc. 2012–7760 Filed 3–30–12; 8:45 am] 

BILLING CODE 6712–01–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. 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 


sroberts on DSK5SPTVN1PROD with PROPOSALS
19590 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 

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 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 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 


sroberts on DSK5SPTVN1PROD with PROPOSALS
Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 19591 

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] 

BILLING CODE 4910–EX–P 

DEPARTMENT OF TRANSPORTATION 

Surface Transportation Board 

49 CFR Parts 1002, 1011, 1108, 1109, 

1111, and 1115 

[Docket No. EP 699] 

Assessment of Mediation and 

Arbitration Procedures 

AGENCY: Surface Transportation Board. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Surface Transportation 

Board (Board or STB) proposes 

regulations that would require parties to 

participate in mediation in certain types 

of cases and would modify its existing 

regulations that permit parties to engage 

voluntarily in mediation. The Board 

also proposes an arbitration program 

under which carriers and shippers 

would agree voluntarily to arbitrate 

certain types of disputes that come 

before the Board, and proposes 

modifications to clarify and simplify its 

existing rules governing the use of 

arbitration in other disputes. The Board 

seeks comments regarding these 

proposed rules. 

DATES: Comments are due by May 17, 

2012. Replies are due June 18, 2012. 

ADDRESSES: Comments, information, or 

questions regarding this proposed rule 

should reference Docket No. EP 699 and 

be in writing addressed to: Chief, 

Section of Administration, Office of 

Proceedings, Surface Transportation 

Board, 395 E Street SW., Washington, 

DC 20423–0001. 

FOR FURTHER INFORMATION CONTACT: 

Amy C. Ziehm at 202–245–0391. 

[Assistance for the hearing impaired is 

available through the Federal 

Information Relay Service (FIRS) at 1– 

800–877–8339.] 

SUPPLEMENTARY INFORMATION: The Board 

favors the resolution of disputes through 

the use of mediation and arbitration 

procedures, in lieu of formal Board 


sroberts on DSK5SPTVN1PROD with PROPOSALS