Notice: Request for Comments entitled, "Electronic On-Board Recorders and Hours of Service Supporting Documents

Federal Register / Vol. 76, No. 71 / Wednesday, April 13, 2011 / Proposed Rules
(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
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Notice; request for additional
public comment.
AGENCY:

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

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SUMMARY:

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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/E8785.pdf.
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:
FOR FURTHER INFORMATION CONTACT:

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

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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,

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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,

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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

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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’’ 1minute 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,

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

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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.

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ACTION:

Notice of 90-day petition

finding.
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
SUMMARY:

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

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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.

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