60-day Federal Register Notice Comment

BEFORE THE
FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION
DEPARTMENT OF TRANSPORTATION
_____________________________________________________________________
_____________________________________________________________________

COMMENTS OF THE
OWNER-OPERATOR INDEPENDENT DRIVERS ASSOCIATION, INC.
IN RESPONSE TO NOTICE AND REQUEST FOR COMMENTS
DOCKET NO. FMCSA-2011-0074
Agency Information Collection Activities; Request for Comments on a New Information
Collection: Evaluating the Safety Benefits of an On-Board Monitoring System in Commercial
Vehicle Operations; Independent Evaluation and Data Analysis

_____________________________________________________________________
_____________________________________________________________________

JAMES J. JOHNSTON
President
Owner-Operator Independent
Drivers Association, Inc.
1 NW OOIDA Drive
Grain Valley, MO 64029

May 31, 2011

CLAIRE SHAPIRO
Eisen & Shapiro
10028 Woodhill Rd.
Bethesda, MD 20817
Counsel for Owner-Operator Independent
Drivers Association, Inc.

BEFORE THE
FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION
DEPARTMENT OF TRANSPORTATION
________________________________
The Owner-Operator Independent Drivers Association, Inc. (“OOIDA”) hereby submits its
comments in response to the March 29, 2011, notice and request for comments (“Notice”) published
at 76 Fed. Reg. 17474 by the Federal Motor Carrier Safety Administration (“FMCSA” or “Agency”),
Docket No. FMCSA-2011-0074, advising the public of its intent to request approval from the Office
of Management and Budget for a new information collection request (“ICR”) in the form of a series
of questionnaires that are part of a Field Operational Test (“Field Test”) designed to assess
commercial motor vehicle (“CMV”) drivers’ expectations, attitudes and acceptance of a prototype
on-board monitoring system (“OBMS”). FMCSA seeks comments on the need for the proposed
questionnaires and ways they can be enhanced, as well as comments on the accuracy of and ways to
minimize the estimated burden imposed by those questionnaires. 76 Fed. Reg. at 17475.
OOIDA is a not-for-profit corporation incorporated in 1973 in Missouri with its principal
place of business located at 1 NW OOIDA Drive, Grain Valley, Missouri 64029. The more than
152,000 members of OOIDA are independent owner-operators, small-business motor carriers, and
professional truck drivers (“small-business truckers”) located in all 50 states and Canada. These
groups have a significant presence in the trucking industry: One-truck motor carriers represent nearly
half the total number of active motor carriers operating in the United States while approximately 93
percent of active motor carriers operate 20 or fewer trucks.
OOIDA is the largest international trade association representing small-business truckers.
The Association actively promotes their views through its interaction with state, provincial and

federal government agencies; legislatures; courts; other trade associations; and private businesses.
OOIDA also actively represents the positions of this group on all aspects of highway safety and
transportation policy in numerous committees and various forums on the local, state, national, and
international level.
Many of OOIDA’s members might be required to use any OBMS developed and/or approved
by FMCSA as a result of the Field Test, whether use is mandatory or voluntary. Accordingly,
OOIDA would like to provide FMCSA with its members’ thoughts and concerns about the
questionnaires. However, as discussed below, the Notice does not contain draft questionnaires or
any specifics about the questions that will be asked. Nor does it provide any information whatsoever
about the Field Test the questionnaires will be a part of, the type of OBMS being tested, or a
potential OBMS regulatory scheme that is envisioned by FMCSA should the Agency ultimately
decide the technology merits a regulatory mandate. Finally, no other documents that might provide
such information have been referenced in the Notice or placed in the docket and, so far as OOIDA
is aware, FMCSA has never published any other notice that would give the public the missing
information. In this void, it is difficult for any commenter, OOIDA included, to address the
questionnaires in any meaningful way.
OOIDA also believes that FMCSA has jumped the gun by asking the public about the
questionnaires without first or at the same time soliciting comments on the use of OBMS systems
generally, the particular OMBS involved here, and the planned Field Test. Had FMCSA done so,
OOIDA (and perhaps others) could point out the negative aspects of this type of driver monitoring.
For example, an OBMS sometimes penalizes drivers for what are essentially defensive driving
maneuvers. An OBMS is distracting and increases the stress level of many drivers who feel that
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such data gathering could affect their job security. An OBMS in the truck cab that is a long-haul
driver’s home away from home invades the driver’s privacy rights, possibly in a manner that violates
constitutional protections. Finally, the OBMS hardware and software is costly for motor carriers and
drivers already strapped for cash. OOIDA would also have identified less intrusive methods for
encouraging more safety-conscious behavior by drivers, which do not have all of these pitfalls.
DISCUSSION
I.

FMCSA has not provided sufficient background information to
allow the public to offer meaningful comments.

FMCSA’s request for comments on the questionnaires is not part of a rulemaking proceeding
under the Administrative Procedures Act. Rather, as stated in the Notice, FMCSA is seeking public
comments regarding an Information Collection Request (“ICR”) in accordance with the Paperwork
Reduction Act of 1995 (“PRA”). See 76 Fed. Reg. at 17474. The PRA was enacted to minimize
the burdens placed on individuals, small businesses, and local governments by information requests
from the federal government while at the same time maximizing the public benefit from the
information collected through better government decisionmaking. See generally 44 U.S.C. § 3501.
This is done by limiting information requests to those that are “necessary” for the performance of
a government agency’s functions, that have a “practical utility,” and that “improve the quality” of
information being collected by agencies. Id. at § 3504.5.A.iv. To ensure that a new collection
request meets these critieria, the PRA requires an agency to seek public comments before any request
is implemented and, after reviewing and fairly evaluating those comments, to submit the request to
OMB for approval. Id. at § 3506.4.B.c.1.i. It is assumed that the agency will refine the information
request based upon the comments received to ensure maximum quality, utility, and clarity. OMB

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too seeks public comments before making its own independent determination regarding the need for
and utility of the information. Id. at § §3507.B & 3508.
An ICR notice not only advises the public of the proposed information collection, but also
contains a background section that explains the purpose, scope, expected benefits, and estimated
burden of the collection. Although there is no statutory directive dictating the precise amount of
information that must be provided in an ICR notice, it is clear that the PRA’s goals will not be
accomplished unless the notice contains sufficient details to give the public a “meaningful”
opportunity to participate in the process. See Administrative Procedures Act cases, e.g., Louis v.
Dept. of Labor, 419 F.3d 970, 976 (9th Cir. 2005); Gerber v. Norton, 294 F.3d 173, 179 (D.C. Cir.
2002); Hall v. EPA, 263 F.3d 926, 940-41 (9th Cir. 2001); Mobil Oil Corp v. Dept of Energy, 728
F.2d 1477, 1490 (Temp. Emer. Ct. App. 1983). The publication of a notice without adequate
information, although technically compliant, is fundamentally unfair as it does not give commenters
a fair opportunity to offer informed criticism and affect the results. Id.
Only a bare-bones, single-paragraph, background statement has been provided by FMCSA
in the present proceeding. See 76 Fed. Reg. at 17475. It is totally lacking in the type of detail that
would allow for meaningful comments. While it states that the questionnaires will be designed to
“assess CMV drivers’ acceptance on the OBMS being evaluated in the FOT,” and “will address the
CMV drivers’ expectations, experiences, and attitudes toward the OBMS” as they change over time,
no draft questionnaires, sample questions, or even categories or types of questions contemplated are
provided. Moreover, the little information that is provided is unintelligible. The public is told that
there will be pre-study, during the study, and post-study questionnaires; that questionnaires will be
used during Baseline, Intervention, and Withdrawal periods; and that the number of estimated
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responses varies between 250 and 1,250 depending which questionnaire is involved. See id.
However, the Notice does not describe the various periods, nor does it explain why 500 participants
will provide either 250 or 1,250 responses at various times. Further, the Notice is inconsistent about
the number of questionnaires to be used, referring at one point to “four unique questionnaires” and
at another point on the same page to a “total of six questionnaires.” 76 Fed. Reg. at 17475.
Given the limited and confusing nature of the information provided, it is impossible for
commenters to determine and advise FMCSA, as required by the PRA, whether the questionnaires
are necessary for the functioning of FMCSA or whether they have practical utility. Nor can
commenters determine and advise the agency whether the requests are written using plain, coherent,
and unambiguous terminology, understandable to the CMV drivers who must respond, or provide
suggestions about how even essential questionnaires might be improved to achieve maximum
practical utility. 44 U.S.C. §3506.B.I.d.D. This concern should not be taken lightly. Improperly
constructed questionnaires could generate inaccurate statistical data that could then be used to justify
an unwarranted OBMS mandate.
This Notice also contains an estimate of the annual burden imposed by the questionnaires and
asks for comments on the accuracy of that estimate and ways it could be minimized without
compromising the quality of the collected information. 76 Fed. Reg. at 17475. Here again, absent
draft questionnaires or a comprehensive explanation of the content of the questionnaires, there is no
possible way for a commenter to either evaluate the accuracy of FMCSA’s estimates or suggest ways
to minimize the burden.
Equally problematic is the fact that the Notice treats the questionnaires as a stand-alone

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information request,1 notwithstanding the fact that the questionnaires are an integral component in
the FMCSA’s Field Test of an OBMS. Virtually no information is provided about either the Field
Test or the OBMS being tested. The entire description of the test and the system is as follows:
The goal of the OBMS and safety research study (FOT) is to determine whether onboard monitoring and feedback will reduce at-risk behavior among CMV drivers and
improve driver safety performance. The purpose of the questionnaire portion is to
assess CMV drivers’ acceptance on the OBMS being evaluated in the FOT.
76 Fed. Reg. at 17475. There are no details regarding the type of OBMS being tested, how the
OBMS was developed, why FMCSA has focused on this particular method for improving driver
behavior, or what research findings or studies FMCSA relied upon to support its apparent belief that
an OBMS will improve driver safety performance. Similarly, there are no details regarding the
nature or scope of the Field Test and the limited information provided again seems inconsistent.
Specifically, while FMCSA estimates 500 CMV driver participants, it inexplicably estimates only
250 responses to the pre-study and exit questionnaires and 1,250 responses to the other
questionnaires. 76 Fed. Reg. at 17475. Thus, here too, given the dearth of information, a commenter
has no way to place the questionnaires in their proper context to advise whether they are or are not
a necessary or useful part of the Field Test, and whether they are or are not necessary for the
functioning of the agency.
Accordingly, if FMCSA wants to proceed with the questionnaires as part of the proposed
Field Test, it should first issue a supplemental notice providing commenters with the background
information that will allow them to fairly evaluate and address the need for and practical utility of

1

An example of a stand-alone ICR would be the annual and quarterly motor carrier
financial and operating statistics collected by DOT (Forms M and QFR), which are not tied to
any particular agency project or rulemaking.
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the questionnaires. That notice should also include draft questionnaires or, if those aren’t yet
available, detailed descriptions of the types of questions that will be asked. The additional
information is essential if the public comment process is to help improve the quality and clarity of
the questions asked.
II.

FMCSA should seek comments on the merits of on-board monitoring systems.
As noted above, the ICR here is not a stand-alone request for information. Rather, the

questionnaires are one small component in a project aimed at the development of an OBMS to be
installed in the cabs of trucks used by CMV drivers. FMCSA has not indicated its ultimate goal here
– i.e., whether it simply intends to encourage the use of the OBMS by motor carriers and drivers,
whether it intends to propose regulations that would require a limited population of motor carriers
with poor safety records to install and use such systems, or whether it intends to make their use
mandatory for all motor carriers. It is reasonable, however, to assume that FMCSA is studying and
testing on-board monitoring systems (OBMS) because it is considering some regulatory mandate.
As a practical matter, if regulation has never been contemplated, then the development of such
systems could be left entirely to private industry.
A review of FMCSA’s historical treatment of electronic on-board recorders (“EOBR”)
suggests that, even if regulation is not being contemplated at the present time, FMCSA would over
time progress through the other various options to that stage. FMCSA’s predecessor agency, the
Federal Highway Administration, allowed the usage of EOBRs to record drivers’ duty status as an
alternative to handwritten paper logbooks to demonstrate compliance with hours-of-service
requirements, but their usage was entirely voluntary. See 50 Fed. Reg. 15269 (April 17, 1985).
Then, in January of 2007, in a rulemaking now being challenged in the courts by OOIDA and several
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of its members, FMCSA proposed mandatory EOBR usage for motor carriers with a history of
serious hours-of-service rule violations, and provided incentives for use by other motor carriers. 72
Fed. Reg. 2340 (Jan. 18, 2007). Finally, in February of 2011, before the fate of that limitedapplication rule was fully resolved, FMCSA proposed a much broader, universally applicable EOBR
rule that would require the majority of interstate carriers that currently use paper logbooks to
document drivers’ hours-of-service to use EOBRs instead. 76 Fed. Reg. at 5537 (Feb. 1, 2011).
Given the realistic possibility that FMCSA’s treatment of OBMSs will evolve in a similar
fashion, whatever FMCSA’s present intent, the agency should seek public input at this juncture
regarding the overall need for and practical utility of such systems, instead of limiting public
participation to the much narrower issue of the propriety of the use of questionnaires during a Field
Test of an OBMS.

It simply does not make sense to evaluate the merits of and need for the

questionnaires when no comparable determination has been made that the OBMS being tested is
itself worthy of FMCSA’s time and resources.
Indeed, a rulemaking to evaluate the possible regulation of an OBMS seems to be the
procedure contemplated by the PRA.

That statute specifically provides that, where a new

information collection is related to a proposed rule, the ICR notice should be included in the notice
of proposed rulemaking. 44 U.S.C. § 3506.4.B.i.c.2. This is the procedure most commonly followed
by FMCSA. Two recent examples include the Certified Medical Examiner (CME) and Electronic
On-board Recorder (EOBR) rulemakings, both of which included ICR components. See, e.g., 76
Fed. Reg. 5537, 5551 (Feb. 1, 2011); 73 Fed. Reg. 73129, 73140-73142 (Dec. 1, 2008).
Unless FMCSA has absolutely no intention of regulating OBMSs in any manner, OOIDA
would therefore recommend that the Agency issue an advance notice of proposed rulemaking
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detailing the various regulatory options being considered in connection with the OBMS project.
Taking this optional step now to obtain and consider public input on key issues pertaining to
treatment of OBMS usage once a prototype is fully developed could avoid implementation problems
later. Indeed, early public input would allow FMCSA to better evaluate the need for such systems
and related regulations, and to also determine whether it should devote more resources to this or to
other methods for enhancing driver safety.
III.

On-board monitoring systems are problematic in a number of ways.
FMCSA has not asked for comments on the OBMS system being tested. Moreover, it would

be impossible for OOIDA to offer a critique of the specific OBMS being tested because, as noted
above, FMCSA has not provided any information whatsover about that system or even indicated
where such relevant information might be found. Nevertheless, OOIDA thinks it important, given
the contemplated Field Test of an OBMS, to at least briefly note the many problems inherent in any
such system.
Through independent research we found two documents from December of 2007 on the
FMCSA website pertaining to an OBMS project: a Tech Brief and a Final Report (“2007 Final
Report”), both captioned “Onboard Monitoring and Reporting for Commercial Motor Vehicle
Safety” that discuss a two-phase research project for the investigation and development of a
prototype OBMS with a “hardware and software suite that allowed for online measurement of a set
of driving characteristics that are indicators of unsafe driving behavior.” See www.fmcsa.dot.gov/
facts-research/research-technology/tech/Onboard-Monitoring-and-Reporting-for-CMV-Safety- TechBrief-Dec2007.pdf and www.fmcsa.dot.gov/facts-research/research-technology/report/OnboardMonitoring-and-Reporting-for-CMV-Safety-Final-Report- Dec2007.pdf. The prototype seems, at
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a minimum, to monitor driving speed, following behavior, fatigue, and possibly attention/intention
through the use of sensors - including video cameras inside and outside of the truck cab- and
provides both visual and auditory warnings and alerts to drivers. Feedback would be supplied to
drivers in both real-time and via carrier management at a later time, with an emphasis on real-time
online feedback wherever permitted by the OBMS technology.
Since those documents were issued more than three years ago, we don’t know whether the
present Field Test is the one referenced in those documents. Nor do we know whether the OBMS
now being tested uses the same equipment or monitors the same behaviors as presented in those
documents. Nevertheless, the features of the system described in those documents help to pinpoint
some of the real-world concerns raised by any such monitoring system. These include:
•

The monitored behaviors that the OBMS is designed to eliminate, such as
increased speeds, lane departures, and sudden applications of the brakes,
often reflect defensive driving maneuvers required to avoid obstructions in
the roadway (e.g., a deer, other car, poor road conditions, etc.). Because an
automated system cannot detect the reason for monitored behaviors,
observant drivers could be penalized for responding to dangerous situations
created by other drivers.

•

An OBMS adds to the instrumentation on a CMV dashboard that must
already be monitored by the driver. The real-time online feedback includes
distracting bells, whistles, and warnings that divert a driver’s attention away
from the primary driving task at hand to what he is being told to do or not do
by the system. Reliance upon the system could take the place of independent
judgment, based upon years of driving experience.

•

The “big brother is watching” situation created by the presence of an OBMS,
especially video equipment that measures eye closures and movements
supposedly indicating fatigue or inattention, adds an unprecedented level of
driver monitoring and stress in the truck cab. Drivers are rightfully
concerned that delayed feedback available to carrier management creates the

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opportunity for harassment by carriers and even job loss.2
•

In the event of agency enforcement action against a driver or a lawsuit
growing out of an accident or other incident, information collected by the
OBMS could be used by insurance companies and courts to establish liability
on the part of the driver.

•

An OBMS in the truck cab that serves as the long-haul driver’s home while
on the road might violate the right of privacy protected by the U.S.
Constitution. Even though pervasive trucking regulation diminishes a truck
driver’s expectation of privacy, the government’s right to invade the
sanctuary of the truck must be structured to ensure the actions are necessary
to achieve regulatory safety goals and are limited in a way that provides a
constitutionally-adequate substitute for the warrant required by the Fourth
Amendment. New York v. Burger, 482 U.S. 691, 702-03 (1987); Donovan v.
Dewy, 452 U.S. 594, 600 (1981).

•

An OBMS requires the purchase, installation, and continuous monitoring of
costly high-tech equipment by motor carriers and drivers. These costs may
well outweigh the safety benefits produced depending on motor carrier size.

IV.

The desired safety improvement may be more effectively obtained
through less costly and more efficient means.

The 2007 Final Report located by OOIDA shows that FMCSA was aware of some of the
negatives discussed above associated with an OBMS system. However, there is no indication in
either the Notice or the 2007 documents that FMCSA performed any type of cost-benefit analysis
to determine whether an OBMS would still be justified in light of those negatives. Indeed, there is
no mention of the significant costs to motor carriers or drivers for purchasing, installing, and
continuously monitoring the information provided by the system. Nor do any of the available
documents indicate that the Agency has calculated or assigned a value to the behaviors being
addressed, to the likely reduction of those behaviors, or to the costs associated with the stress and
2

To the extent that this OBMS is measuring fatigue and compliance with hours-ofservice regulations, it is incumbent upon FMCSA to ensure that the system is not being used to
harass vehicle operators. 49 U.S.C. § 31137(a).
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other adverse consequences associated with the use of such systems. OOIDA believes that a proper
cost-benefit analysis would show that FMCSA’s research of OBMS for CMV drivers is very likely
misplaced.
There are already a plethora of state laws on the books, applicable to CMV drivers, aimed
at specific unsafe behaviors such as speeding and following too close, and at unacceptable behaviors
falling under the rubric of inattentive or negligent driving practices. Thus, Agency resources may
be better devoted to something other than development of safety technologies with limited appeal
for many in the industry. Second, there are other more efficient, less intrusive, and less costly ways
to encourage safe driving habits and reduce the number of truck-involved crashes.
One alternative strongly and consistently supported by OOIDA is more stringent entry-level
CMV driver training and licensing requirements that include the use of mandatory commercial
learners permits (CLP) and a graduated commercial drivers license (CDL) program to ensure better
trained, more safety-conscious drivers. See OOIDA Comments filed in FMCSA Docket No. 200727748 (May 23, 2008) and Docket No. 2007-27659 (July 9, 2008). In contrast to an OBMS program
that could potentially monitor most CMV drivers, these programs would focus primarily on entrylevel drivers, a group that represents “more than 3 times the risk of crashes than their more
experienced counterparts.” ATA Whitepaper, Issue: Truck Driver Hours of Service Rules (HOS)
(Nov. 2010), p.2. Training and licensing of relatively new CMV drivers could be designed to
emphasize avoidance of the very behaviors being addressed by the prototype OBMS. The need for
carriers to invest in high-tech equipment and monitoring programs would be eliminated. At the same
time, the programs are more likely to yield positive safety benefits because they are focused on the
groups most in need of additional attention.
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OOIDA has also pointed out on a number of occasions that drivers are less likely to continue
driving when fatigued if the condition that most commonly leads to these behaviors are eliminated.
Drivers often continue driving when they need a break because they must meet delivery schedules
set by shippers and carriers that are unrealistic given the excessive time (2 to 8 hours) frequently
spent waiting to load/unload. As confirmed in a recent GAO study, drivers who use all allowed
hours of daily on-duty time often do so because of delays in loading or unloading that are beyond
their control. GAO Report, COMMERCIAL MOTOR CARRIERS: More Could Be Done to
Determine Impact of Excessive Loading and Unloading Wait Times on Hours of Service Violations,
GAO-11-198 (Jan. 26, 2011), pp. 12, 14, at www.gao.gov/ products/GAO-11-198. Indeed, the
causes of detention – facility limitations, product not being ready for shipment, poor service, and
scheduling practices – are all within the shipper or receiver’s control. Id. at 14. If those delays can
be eliminated or at least significantly reduced, the pressure to continue driving even when tired
would be minimized.
V.

Participants must fairly represent the majority of CMV drivers
who have not been subjected to electronic monitoring.

In the Notice, FMCSA has indicated that the Field Test will have 500 participating drivers,
a minuscule fraction of the millions of CMV truck drivers estimated to be on the roads today. Thus,
error rates can be significant unless those participants fairly and accurately represent the overall
population that could potentially be required to use an OBMS. Since this population is composed
overwhelmingly of drivers who have never before been subjected to any type of electronic
monitoring, it is critical that most participants come from that group. A group already accustomed
to other types of electronic monitoring is likely to have very different attitudes and expectations

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regarding such systems.
OOIDA cannot emphasize this point strongly enough. It appears from the 2007 Final Report
that only six drivers were consulted at the conceptual design stage about their opinions about the use
of OBMS and these six were not at all representative of most drivers. 2007 Final Report, at 57. To
the contrary, the drivers questioned were all employee drivers working for the same mid-sized
carrier, all operated within a several hundred mile range, and they never or rarely slept in their cabs.
Id. Even more important for present purposes, these drivers were already driving trucks equipped
with speed governors and the XATA monitoring system, a system that is promoted as an electronic
fleet management and fleet intelligence system, which not only optimizes fleet utilization but
addresses safety and security concerns. 2007 Final Report, at 32, 59-60. Consequently, it is quite
likely that their opinions about the additional on-board monitoring system being discussed, including
their general acceptance of most aspects of the system, are not representative of the views of other
drivers, including the majority of OOIDA’s owner-operator members who operate in a very different
milieu.
Accordingly, the results of a Field Test cannot and should not be relied upon by FMCSA to
determine whether or how to encourage/regulate the use of an OBMS unless the Agency takes care
to assemble a more diverse sample of drivers that not only reflect the various segments of the motor
carrier industry, but who have for the most part not been subjected to electronic monitoring by their
motor carriers.
CONCLUSION
OOIDA supports FMCSA’s efforts to foster safer driving habits among CMV drivers.
However, for all the reasons discussed above, OOIDA believe that FMCSA would accomplish more

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at less cost to industry if it redirected its resources and efforts aimed at development of OBMS to
better training for entry-level drivers and efforts to reduce the detention situation that contributes to
driver fatigue. These alternatives would be a more productive and less costly method of achieving
improvements to CMV safety. To the extent that FMCSA nevertheless decides to go ahead with
the proposed Field Test, it is critical that the Agency select participants that fairly represent the
majority of drivers who have never before been subjected to electronic monitoring.
Respectfully submitted,

JAMES J. JOHNSTON
President
Owner-Operator Independent
Drivers Association, Inc.

CLAIRE SHAPIRO
EISEN AND SHAPIRO
10028 Woodhill Rd.
Bethesda, MD 20817
Counsel for Owner-Operator Independent
Drivers Association, Inc.

May 31, 2011

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