60-day Comment Federal Register Notice

Federal Register / Vol. 77, No. 240 / Thursday, December 13, 2012 / Notices
• Types of actions categorically
excluded;
• Requests previously received by the
Secretary of Transportation for new CEs
that are not currently in regulation; and
• Requests for new CEs.
The Secretary sent the invitation to
participate in the survey electronically
to 1,511 individuals from SDOTs, transit
authorities, MPOs, and federally
recognized Tribal Governments. The
survey period ran from September 5,
2012, through October 9, 2012.
Responses were collected online and
through email. Respondents were
encouraged to provide electronic
documents and other materials to
supplement their answers. Five hundred
twenty-two individuals responded to
the questionnaire. The SDOT
respondents represented 40 States, the
District of Columbia, and Puerto Rico.
The FHWA and FTA have compiled
the responses and completed the MAP–
21 survey report. The purpose of this
notice is to comply with the publication
requirement for the survey report. The
report is available online at
www.fhwa.dot.gov/map21 and http://
www.fta.dot.gov/map21.
Authority: Sec. 1318(a)(2), Pub. L. 112–
141, 126 Stat. 405 (2012).
Issued on: December 7, 2012.
Victor Mendez,
Administrator, Federal Highway
Administration.
Peter Rogoff,
Administrator, Federal Transit
Administration.
[FR Doc. 2012–30085 Filed 12–12–12; 8:45 am]
BILLING CODE 4910–22–P

DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
[Docket No. FMCSA–2012–0309]

Agency Information Collection
Activities; New Information Collection
Request: Driver and Carrier Surveys
Related to Electronic On-Board
Recorders (EOBRs), and Potential
Harassment Deriving From EOBR Use
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Notice and request for
information.
AGENCY:

In accordance with the
Paperwork Reduction Act of 1995,
FMCSA announces its plan to submit
the Information Collection Request (ICR)
described below to the Office of
Management and Budget (OMB) for
review and approval. The purpose of

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this new ICR is to broadly examine by
the collection of survey data, the issue
of driver harassment and determine the
extent to which Electric On-Board
Recorders (EOBRs) used to document
drivers’ hours of service could also be
used by motor carriers or enforcement
personnel to harass drivers and/or
monitor driver productivity. The survey
will also collect information on the
extent to which respondents believe that
the use of EOBRs may result in coercion
of drivers by motor carriers, shippers,
receivers and transportation
intermediaries. The proposed surveys
for drivers and carriers collect
information related to issues of EOBR
harassment of drivers by carriers.
FMCSA will publish a supplemental
notice of proposed rulemaking on
EOBRs and will consider survey results
concerning the EOBR use by motor
carriers including countermeasures or
best practices to ensure that EOBRs are
not used by carriers to harass or coerce
drivers prior to the issuance of a final
rule.
DATES: Comments must be received on
or before February 11, 2013.
ADDRESSES: You may submit comments
identified by Docket Number FMCSA–
2012—0309 using any of the following
methods:
• Federal eRulemaking Portal: Go to
http://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 20590–00001.
• Hand Delivery or Courier. West
Building Ground Floor, Room W12–140,
1200 New Jersey Avenue SE.,
Washington, DC 20590–0001 between
9:00 a.m. and 5:00 p.m. e.t. Monday
through Friday, except Holidays.
• Fax 1–202–493–2251.
To avoid duplication, please use only
one of these four methods. Each
submission must include the Agency
name and the docket number for this
Notice. Note that DOT posts all
comments received without change to
http://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 http://
www.regulations.gov at any time or to
Room W12–140 on the ground level of
the West Building, 1200 New Jersey
Avenue SE., Washington, DC 20590–
0001 between 9:00 a.m. and 5:00 p.m.,
Monday through Friday, except Federal

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holidays. The FDMS docket 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
post card or print the acknowledgement
page that appears after submitting them
on-line.
Privacy Act: Anyone is able to 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 complete
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:
Albert Alvarez, Research Division,
Office of Analysis, Research and
Technology, Federal Motor Carrier
Safety Administration, 1200 New Jersey
Ave. SE., Washington, DC 20590.
Telephone: (202 385–2387); email
[email protected]. Requests for
additional information or copies of the
information collection instrument and
instructions should be directed to Gene
Bergoffen, Principal, MaineWay
Services, P.O. Box 166, Fryeburg, ME
04037. Telephone: 207 935–7948; email
[email protected].
SUPPLEMENTARY INFORMATION:
Background
Motor carrier management and
oversight of drivers’ hours-of-service
(HOS) is one of the fundamental
concerns of FMCSA. Motor carriers
began to look to automated methods of
recording drivers’ record of duty status
(RODS) in the mid-1980s as a way to
save drivers time and improve the
efficiency of their compliance assurance
procedures. In April 1985, the Federal
Highway Administration (FHWA), the
predecessor agency to FMCSA within
the U.S. Department of Transportation
(DOT), granted the first of 10 waivers to
allow use of on-board computers in lieu
of requiring drivers to complete
handwritten RODS.
After conducting notice-and-comment
on the rulemaking regarding automated
methods of recording RODS, the Agency
issued a final rule on September 30,
1988. The rule revised part 395 of the
Federal Motor Carrier Safety
Regulations (FMCSRs) by allowing
motor carriers the flexibility to equip
commercial motor vehicles (CMVs) with
an automatic on-board recording device
(AOBRD) in lieu of requiring drivers to

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Federal Register / Vol. 77, No. 240 / Thursday, December 13, 2012 / Notices

complete handwritten RODS. The term
‘‘automatic on-board recording device’’
was defined under § 395.2 as follows:

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‘‘an electric, electronic, electromechanical, or
mechanical device capable of recording
driver’s duty status information accurately
and automatically as required by § 395.15.
The device must be integrally synchronized
with specific operations of the commercial
motor vehicle in which it is installed. At a
minimum, the device must record engine
use, road speed, miles driven, the date, and
time of day.’’

On April 5, 2010, FMCSA published
a final rule to incorporate new
performance standards for electronic onboard recorders (EOBRs) installed in
CMVs manufactured on or after June 4,
2012. The new rule also required
installation of EOBRs meeting the new
performance standards in CMVs
operated by motor carriers found by the
Agency to have serious HOS
noncompliance. EOBRs would have
been required to automatically record
the CMV’s location at each change of
duty status and at intervals while the
CMV is in motion. Current on-board
recorders were not required to do this.
To ensure a smooth transition from
AOBRDs to EOBRs, the final rule would
have required that for CMVs
manufactured on or after June 4, 2012,
devices installed by a manufacturer or
motor carrier would need to have met
the requirements of § 395.16.
Commercial motor vehicles
manufactured prior to June 4, 2012
could be equipped with an HOS
recording device that met the
requirements of either § 395.15
(AOBRD) or § 395.16.
The 2010 EOBR rule was challenged
in court based in part on concerns that
EOBRs could be used to harass drivers.
Owner-Operators Independent Drivers
Association v. U.S. Department of
Transportation, 656 F.3d 580 (7th Cir.
2011). At the time, a new rulemaking by
FMCSA had been started that proposed
to require certain motor carriers
operating CMVs in interstate commerce
to use EOBRs to document their drivers’
HOS (76 FR 5537, February 1, 2011).
Based on issues raised in the litigation
on the April 2010 final rule, FMCSA
published a notice requesting public
comment on the harassment issue on
April 13, 2011 (76 FR 20612). The
Agency sought and received comments
on the following items:
• 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;

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• 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 that EOBR devices are not used
to harass vehicle operators.
On August 26, 2011, the U.S. Court of
Appeals for the Seventh Circuit vacated
the Agency’s April 2010 final rule on
the use of EOBRs. The court stated 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 court also noted that the Agency
had not estimated the safety benefits of
EOBRs currently in use and how much
EOBRs increased compliance. The basis
for the court’s decision was FMCSA’s
failure to directly address a requirement
in 49 U.S.C. 31137(a). At the time of the
court’s decision, the statute read 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.

As a result of the court’s ruling,
carriers relying on electronic devices to
monitor HOS compliance are currently
governed by the rules that address the
use of AOBRDs as in effect immediately
before the court’s ruling (49 CFR
395.15). These rules were not affected
by the court’s decision. On May 14,
2012, FMCSA rescinded the April 5,
2010 final rule, as amended September
13, 2010, in response to the court’s
decision to vacate the rulemaking.
FMCSA had previously announced its
intent to move forward with a rule on
electronic logging devices with a
supplemental notice of proposed
rulemaking (SNPRM) (77 FR 7562
(February 13, 2012)). Congress
subsequently mandated that the
Secretary of Transportation adopt
regulations requiring that commercial
motor vehicles involved in interstate
commerce, operated by drivers who are
required to keep records of duty status
(RODS), be equipped with electronic
logging devices. (MAP–21, Pub. L. 112–
141, § 32301(b), 126 Stat. 405, 786–788
(July 6, 2012), amending 49 U.S.C.

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31137). The legislation retained the
requirement that regulations ensure
such devices not be used to harass
drivers of CMVs. MAP–21 also required
that certain regulations governing CMV
safety ensure that drivers of CMVs are
not coerced into operating in violation
of regulations to be promulgated (Pub.
L. 112–141, § 32911. 126 Stat. at 818
(amending 49 U.S.C. 31136(a)).
The objectives of the proposed driver
and carrier surveys through this ICR are
to broadly examine the issue of driver
harassment and coercion and determine
the extent to which EOBRs could be
used to either harass and/or monitor
driver productivity. These surveys will
explore the relevant issues from the
point of view of both drivers and
carriers towards the use of EOBRs. The
survey results will inform FMCSA in its
ongoing rulemaking on EOBRs,
including potential countermeasures or
best practices that will ensure that
EOBRs are not used to harass or coerce
CMV drivers. The purpose of these
surveys is, in part, to respond to the
court’s suggestion that the Agency
research the issue of driver harassment
based on use of the device.
Title: Driver and Carrier Surveys
Related to Electronic On-Board
Recorders (EOBRs), and Potential
Harassment Deriving from EOBR Use.
OMB Control Number: 2126–XXXX.
Type of Request: New ICR.
Respondents: Commercial motor
vehicle drivers and carriers.
Estimated Number of Respondents:
1,039 [(2 carrier in-depth interviews +
20 carrier pre test web interviews + 400
carrier main survey web interviews +
100 carrier non-response telephone
follow up interviews) + (7 driver indepth interviews + 510 driver intercept
interviews) = 1,039].
Estimated Time per Response: 30
minutes for in-depth interviews of
drivers and motor carriers; 20 minutes
for carrier survey; 20 minutes for the
driver survey; 10 minutes for the
telephone interview of carriers with
non-responses.
Expiration Date: N/A.
Frequency of Response: Once.
Estimated Total Annual Burden:
110.5 hours [(2 carrier in-depth
interviews × 30 minutes/60 minutes +
20 carrier pre-test web interviews × 20
minutes/60 minutes + 400 carrier main
survey web interviews × 20 minutes/60
minutes + 100 carrier non-response
telephone follow up interviews × 10
minutes/60 minutes) + (7 driver indepth interviews × 30 minutes/60
minutes + 510 driver intercept
interviews × 20 minutes/60 minutes)/3
year approval) = 110.5].

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Federal Register / Vol. 77, No. 240 / Thursday, December 13, 2012 / Notices
Public Comments Invited: You are
asked to comment on any aspect of this
information collection, including: (1)
Whether the proposed collection is
necessary for the FMCSA to perform its
functions; (2) the accuracy of the
estimated burden; (3) ways for the
FMCSA to enhance the quality,
usefulness, and clarity of the
information to be collected; and (4)
ways that the estimated annual burden
could be minimized without reducing
the quality of the collected information.
Issued on: December 3, 2012.
Kelly Leone,
Associate Administrator for Office of
Research and Information Technology.

SUPPLEMENTARY INFORMATION:

[FR Doc. 2012–30143 Filed 12–12–12; 8:45 am]
BILLING CODE 4910–EX–P

DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
[Docket No. FMCSA–2011–0313]

Agency Information Collection
Activities; Revision of a CurrentlyApproved Information Collection
Request: Transportation of Household
Goods; Consumer Protection
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Notice and request for
comments.
AGENCY:

In accordance with the
Paperwork Reduction Act of 1995
(PRA), FMCSA announces its plan to
submit the Information Collection
Request (ICR) described below to the
Office of Management and Budget
(OMB) for its review and approval. The
FMCSA requests approval to revise an
ICR entitled, ‘‘Transportation of
Household Goods; Consumer
Protection.’’ The information collected
will be used to help regulate motor
carriers transporting household goods
(HHG) for individual shippers.
DATES: Please send your comments by
January 14, 2013. OMB must receive
your comments by this date in order to
act quickly on the ICR.
ADDRESSES: All comments should
reference Federal Docket Management
System (FDMS) Docket Number
FMCSA–2011–0313. Interested persons
are invited to submit written comments
on the proposed information collection
to the Office of Information and
Regulatory Affairs, Office of
Management and Budget. Comments
should be addressed to the attention of
the Desk Officer, Department of
Transportation/Office of the Secretary,

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and sent via electronic mail to http://
www.regulations.gov or faxed to (202)
395–7245, or mailed to the Office of
Information and Regulatory Affairs,
Office of Management and Budget,
Docket Library, Room 10102, 725 17th
Street NW., Washington, DC 20503.
FOR FURTHER INFORMATION CONTACT: Mr.
Brodie Mack, Commercial Enforcement
Division, Federal Motor Carrier Safety
Administration, West Building 6th
Floor, 1200 New Jersey Avenue SE.,
Washington, DC 20590. Telephone:
202–366–8045; email
[email protected].
Title: Transportation of Household
Goods; Consumer Protection.
OMB Control Number: 2126–0025.
Type of Request: Revision of a
currently-approved information
collection.
Respondents: 6,000 household goods
movers.
Estimated Time per Response: Varies
from 5 minutes to display assigned U.S.
DOT number in created advertisement
to 12.5 minutes to distribute consumer
publication.
Expiration Date: December 31, 2013.
Frequency of Response: On occasion.
Estimated Total Annual Burden:
5,524,500 hours [Informational
documents provided to prospective
shippers at 43,500 hours + Written Cost
estimates for prospective shippers at
4,620,000 hours + Service orders, bills
of lading at 805,300 hours + In-transit
service notifications at 22,600 hours +
Complaint and inquiry records
including establishing records system at
32,700 hours + Household Goods—
Consumer Complaint Form MCSA–2P at
400 hours = 5,524,500].
Background: The Motor Carrier Safety
Improvement Act of 1999 (MCSIA) (Pub.
L. 106–159, 113 Stat. 1749, December 9,
1999) authorized the Secretary of
Transportation (Secretary) to regulate
household goods carriers engaged in
interstate operations for individual
shippers. In earlier legislation, Congress
abolished the former Interstate
Commerce Commission and transferred
the Commission’s jurisdiction over
household goods transportation to the
U.S. Department of Transportation
(DOT) (ICC Termination Act of 1995,
Pub. L. 104–88). Prior to FMCSA’s
establishment, the Secretary delegated
this household goods jurisdiction to the
Federal Highway Administration,
FMCSA’s predecessor organization
within DOT.
Sections 4202 through 4216 of the
Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for
Users (Pub. L. 109–59, 119 Stat. 1144,

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Aug. 10, 2005) (SAFETEA–LU)
amended various provisions of existing
law regarding household goods
transportation. It specifically addressed:
definitions (section 4202); payment of
rates (section 4203); registration
requirements for household goods motor
carriers (section 4204); carrier
operations (section 4205); enforcement
of regulations (section 4206); liability of
carriers under receipts and bills of
lading (section 4207); arbitration
requirements (section 4208); civil
penalties for brokers and unauthorized
transportation (section 4209); penalties
for holding goods hostage (section
4210); consumer handbook (section
4211); release of broker information
(section 4212); working group for
Federal-State relations (section 4213);
consumer complaint information
(section 4214); review of liability of
carriers (section 4215); and application
of State laws (section 4216). The
FMCSA regulations that set forth
Federal requirements for movers that
provide interstate transportation of
household goods are found in 49 CFR
part 375, ‘‘Transportation of Household
Goods; Consumer Protection
Regulation.’’ On July 16, 2012, FMCSA
published a Direct Final Rule (DFR)
entitled, ‘‘Transportation of Household
Goods in Interstate Commerce;
Consumer Protection Regulations:
Household Goods Motor Carrier Record
Retention Requirements,’’ in the Federal
Register (77 FR 41699). The rule
amends the regulations governing the
period during which HHG motor
carriers must retain documentation of
an individual shipper’s waiver of
receipt of printed copies of consumer
protection materials. This change
harmonizes the retention period with
other document retention requirements
applicable to HHG motor carriers.
FMCSA also amended the regulations to
clarify that a HHG motor carrier is not
required to retain waiver documentation
from any individual shippers for whom
the carrier does not actually provide
services. The Agency did not receive
any comments in response to the DFR.
Public Comments Invited: You are
asked to comment on any aspect of this
information collection, including: (1)
Whether the proposed collection is
necessary for the performance of
FMCSA’s functions; (2) the accuracy of
the estimated burden; (3) ways for
FMCSA to enhance the quality,
usefulness, and clarity of the collected
information; and (4) ways that the
burden could be minimized without
reducing the quality of the collected
information. The Agency will
summarize or include your comments in

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