Agency Information Collection Activities; Approval of a New Information Collection Request: Driver and Carrier Surveys Related to Electronic Onboard Recorders (EOBRs), and Potential Harassment Deriving From EOBR Use, 32001-32005 [2013-12564]

Agencies

• Federal Motor Carrier Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 78, Number 102 (Tuesday, May 28, 2013)]
[Notices]
[Pages 32001-32005]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-12564]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2012-0309]


Agency Information Collection Activities; Approval of a New 
Information Collection Request: Driver and Carrier Surveys Related to 
Electronic Onboard Recorders (EOBRs), and Potential Harassment Deriving 
From EOBR Use

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), USDOT.

ACTION: Notice and request for comments.

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SUMMARY: 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 this new ICR is to broadly examine, by the 
collection of survey data, the issue of driver harassment and determine 
the extent to which Electronic Onboard Recorders (EOBRs) used to 
document drivers' hours of service (HOS) could be used by motor 
carriers or enforcement personnel to harass drivers or monitor driver 
productivity. The survey will collect information on the extent to 
which respondents believe that the use

[[Page 32002]]

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 plans to publish a 
supplemental notice of proposed rulemaking on EOBRs. Prior to the 
issuance of a final rule, FMCSA will consider the survey results.

DATES: Please send your comments by June 27, 2013. OMB must receive 
your comments by this date in order to act on the ICR.

ADDRESSES: All comments should reference Federal Docket Management 
System (FDMS) Docket Number FMCSA-2012-0309. 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/Federal Motor Carrier 
Safety Administration, and sent via electronic mail to oira_submission@omb.eop.gov, faxed to (202) 395-6974, 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. 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 albert.alvarez@dot.gov. Requests for 
additional information or copies of the information collection 
instrument and instructions should be directed to Gene Bergoffen, 
Principal, MaineWay Services, PO Box 166, Fryeburg, ME 04037. 
Telephone: 207 935-7948; email bergoffen@roadrunner.com.

SUPPLEMENTARY INFORMATION:
    Title: Driver and Carrier Surveys Related to Electronic Onboard 
Recorders (EOBRs), and Potential Harassment Deriving from EOBR Use.
    OMB Control Number: 2126-XXXX.
    Type of Request: New ICR.
    Respondents: Commercial motor vehicle (CMV) 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 followup 
interviews) + [7 driver in-depth interviews + 510 driver intercept 
interviews) = 1,039].
    Estimated Time per Response: The estimated average time per 
responses are as follows: 30 minutes for Form 5877, ``In-Depth 
Interview With Carriers,'' Form 5878, ``In-Depth Interview With 
Carriers Recruitment Questionnaire,'' and Form MCSA-5881, ``In-Depth 
Interview With Drivers Recruitment Questionnaire;'' 20 minutes for Form 
5879, ``Web Survey With Carriers,'' Form MCSA-5880, ``In Depth 
Interview With Drivers Main Questionnaire,'' and Form MCSA-5881, ``In 
Depth Interview With Drivers Recruitment Questionnaire;'' and 10 
minutes for Form MCSA-5885, ``Intercept Survey With Carriers.''
    Expiration Date: N/A.
    Frequency of Response: Once.
    Estimated Total Annual Burden: 110.5 hours [(2 carrier in-depth 
interviews x 30 minutes/60 minutes) + (20 carrier pre-test Web 
interviews x 20 minutes/60 minutes) + (400 carrier main survey Web 
interviews x 20 minutes/60 minutes) + (100 carrier non-response 
telephone followup interviews x 10 minutes/60 minutes) + (7 driver in-
depth interviews x 30 minutes/60 minutes) + (510 driver intercept 
interviews x 20 minutes/60 minutes)/3 year approval = 110.5].

Background

    Motor carrier management and oversight of drivers' HOS is one of 
FMCSA's fundamental concerns. 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 (USDOT), granted the first of 10 
waivers to allow use of onboard 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 CMVs with an automatic onboard recording device 
(AOBRD) in lieu of requiring drivers to complete handwritten RODS. The 
term ``automatic onboard recording device'' was defined under Sec.  
395.2 as follows:

an electric, electronic, electromechanical, or mechanical device 
capable of recording driver's duty status information accurately and 
automatically as required by Sec.  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 (75 FR 17208). 
The new rule 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 
record the CMVs location automatically at each change of duty status 
and at intervals while the CMV is in motion. Currently, onboard 
recorders are 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 Sec.  395.16. CMVs manufactured prior to June 4, 2012, could be 
equipped with an HOS recording device that met the requirements of 
either Sec.  395.15 (AOBRD) or Sec.  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 20611). 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;
     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

[[Page 32003]]

     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 basis for the court's 
decision was FMCSA's failure to directly address a requirement in 49 
U.S.C. 31137(a).
    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). 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 proposal on EOBRs 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 CMVs involved in 
interstate commerce and 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, Sec.  32301(b), 126 Stat. 405, 786-
788 [July 6, 2012], amending 49 U.S.C. 31137). MAP-21 retained the 
requirement that regulations ensure such devices not be used to harass 
drivers of CMVs and 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, Sec.  
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 toward the use of EOBRs. The survey results will inform FMCSA 
in its ongoing rulemaking on EOBRs, including potential countermeasures 
or best practices that could 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.

Comments From the Public

General Summary

    The FMCSA received 36 comments to the 60-day Federal Register 
notice published December 13, 2012 (77 FR 74267), regarding the 
Agency's Information Collection Activities; Approval of a New 
Information Collection Request: Driver and Carrier Surveys Related to 
Electronic Onboard Recorders (EOBRs), and Potential Harassment Deriving 
from EOBR Use. There were no requests from commenters to receive copies 
of the survey and the documents associated with the survey that were 
available upon request as stated in the Federal Register notice. Of the 
36 comments received three directly related to the survey. The 
remaining comments focused directly or indirectly on the effects of 
EOBRs in-truck operations.
    Commenters included industry associations, motor carriers, and 
individual CMV drivers. The three commenters directly referencing the 
survey notice were the American Trucking Association (ATA), Owner-
Operator Independent Drivers Association (OOIDA), and Trans Products & 
Tran Services.
    Five comments from trucking companies addressed the use of EOBRs in 
their operations. One company had a neutral comment, one had a negative 
comment, and three had positive comments.
    Twenty-six separate comments from CMV drivers generally opposed the 
use of EOBRs in truck operations according to the following four 
categories:
     One opposed the use of EOBRs and their intrusion into 
driver's rest and personal time;
     Twenty-one objected to the impact of EOBRs on driver 
fatigue/HOS given the unreasonable demands of carriers to exceed their 
legal driving time;
     Two opposed the excessive costs for small carriers in the 
purchase and maintenance of EOBRs; and
     Two said the use of EOBRs would be an invasion of privacy.
    Four individual commenters supported EOBRs. Their reasoning was 
that EOBRs will enable CMV drivers to be accountable for ensuring they 
do not run over the legal HOS limits and, by the use of EOBRs, carriers 
will not be able to force drivers to drive beyond their HOS.
    None of these commenters provided substantive information resulting 
in changes to the proposed survey or its associated documents. However, 
FMCSA does appreciate all these comments and will consider them when 
reviewing the findings of the survey project.
    ATA wrote a supportive letter for the use of EOBRs and the survey 
project goals. It stated ``ATA supports laws and regulations mandating 
the use of electronic logging devices (ELDs)--often called electronic 
onboard recorders or EOBRs--for recording drivers' compliance with 
Federal hours-of-service regulations. ATA also supports the FMCSA plan 
to survey drivers and carriers on how ELDs can be used to monitor 
productivity and their potential use as a tool to harass drivers.''
    OOIDA commented that it ``support[s] the goals of the proposed 
survey.'' It further stated ``OOIDA submits these comments to encourage 
the Agency to design this effort in a way that collects information on 
the wide range of pertinent driver experiences.''
    Trans Products & Tran Services, which offers trucking regulation 
support and education, opposed the plan survey stating:

    We feel this survey will be inadequate and will not fairly 
represent the entire industry that will be potentially affected by a 
final rule requiring all commercial motor carriers to have EOBRs as 
a way to record driver hours of service. Furthermore we do not feel 
that the data retrieved and recorded will significantly reduce 
crashes.

FMCSA Response

ATA
    FMCSA agrees with ATA on the need for the survey, the findings, and 
the survey's potential importance to the trucking industry.
TRANS PRODUCTS & TRAN SERVICES
    The commenter raised two concerns related to the survey process. 
First, the commenter stated that the survey will not represent the 
proper pool of affected drivers. FMCSA plans to randomly survey drivers 
at truck stops and will sample an adequate sample of drivers who 
actually use EOBRs. But the first questions being asked will be tested 
with a random sample of drivers contacted through a telephone survey. 
FMCSA believes that this sample strategy will be generally 
representative of the universe of drivers that currently use and will 
be potentially required to use EOBRs.
    Second, this commenter raised a concern that drivers will not feel 
free to comment because of the fear of intimidation by their superiors. 
In response, no surveys conducted at truck stops will identify the 
driver or the

[[Page 32004]]

company for which he/she works for, and the data will be aggregated and 
not associated with any individual or fleet.
OOIDA
    FMCSA understands that OOIDA supports the goals of the proposed 
survey but raises questions as to whether the survey process will 
reflect concerns of drivers. The OOIDA comments also suggest some 
content for the surveys.
    OOIDA raised concerns about the composition of the research team 
and question whether drivers are adequately represented at this stage. 
In response, given the contentious nature of this issue, FMCSA selected 
a team of consultants and academic researchers with expertise in the 
motor carrier industry and survey design. Nonetheless, we look forward 
to working with OOIDA, as well as other parties from the driver and 
carrier community, to optimize the effectiveness of this survey.
    The following table notes FMCSA's reply to OOIDA's suggestions in 
response to four questions in the notice of December 13, 2012. 
Additionally, it is important to note that the surveys were developed 
after intensive review of OOIDA's earlier submissions including 
comments relating to potential EOBR regulations. The FMCSA also 
reviewed the complete docket of comments, which includes driver input 
from public listening sessions held in 2012. In addition, FMCSA 
considered public input provided at a subcommittee meeting of FMCSA's 
Motor Carrier Safety Advisory Committee, of which an OOIDA official is 
a member.
    As part of the survey development there will be interviews of 
randomly selected drivers and fleets on the survey instruments. The 
purpose is to test the survey before it is provided to drivers and 
fleet carriers.
    Responses to OOIDA's concerns are provided in regular text in the 
chart below.

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   Page/reference of OOIDA
           comment
------------------------------------------------------------------------
6; III-A-2..................  OOIDA commented: Without knowing the
                               number of questions and the scope of the
                               discussions that FMCSA interviewers
                               intend to conduct, it is difficult to
                               judge whether the estimated time burden
                               in the notice is accurate.
                              Reply: The truck drivers' intercept survey
                               is estimated to have a burden of 20
                               minutes per interview. A series of
                               questions focuses on 14 different
                               interactions between drivers and their
                               supervisors. Drivers are asked the
                               following about them: the frequency with
                               which they occur; which, if any, they
                               consider harassment; which, if any, they
                               see as coming from the existence of an
                               EOBR (if their truck has one); and which,
                               if any, are rooted in other truck
                               functionality. In addition, information
                               is gathered about coercion and management
                               reactions to driver's reluctance to obey
                               management's instructions. The draft list
                               of interactions is as follows:
                              Schedules:
                                 A. Ask you to meet a customer load
                                  schedule you viewed as unrealistic.
                                 B. Ask a customer to adjust a load
                                  schedule so it was realistic for you.
                              Fatigue:
                                 C. Ask you to operate when you judged
                                  you were fatigued.
                                 D. Ask that you shut down if you felt
                                  fatigued.
                              Logging and breaks:
                                 E. Ask you to log inaccurately to get
                                  more work time or delay a break.
                                 F. Ask you to log accurately when you
                                  could have had more work time or
                                  delayed a break by being inaccurate.
                                 G. Change your log record after it was
                                  made to give you more work time or
                                  delay a break.
                                 H. Ask you to take sufficient time off
                                  duty to recover from fatigue.
                              Communications:
                                 I. Interrupt your off-duty time with a
                                  message that woke you up.
                                 J. Contact you promptly about a new job
                                  task so you didn't have to wait
                                  without pay.
                              Paid and Unpaid Time:
                                 K. Pay you for customer delays in
                                  picking up or delivering freight.
                                 L. Require you to wait for customer
                                  delays for more than 2 hours without
                                  pay.
                                 M. Arrange your loads so you had little
                                  delay time between loads.
                                 N. Require you to wait between loads
                                  for more than 2 hours without pay.
                              Other situations that might be identified
                               through the qualitative survey phase
6; III-A-3-a................  OOIDA commented: FMCSA would enhance the
                               quality, usefulness, and clarity of the
                               information collected if it: a) collected
                               sufficient data from drivers who operated
                               an EOBR rather than just a random sample.
                              Reply: We are aware that a minority of
                               truck drivers use EOBRs. The plan for
                               intercepts is designed to limit the
                               number of truck drivers without EOBRs in
                               order to oversample truck drivers with
                               EOBRs. Quotas will be established
                               throughout day-parts in order to ensure
                               that drivers with and without EOBRs will
                               be interviewed through the course of the
                               day, limiting day-part bias.
6; III-A-3-b................  OOIDA commented: FMCSA would enhance the
                               quality usefulness, and clarity of the
                               information collected if it: b) asked
                               drivers whether they had experienced each
                               of the examples of the type of harassment
                               outlined in these comments.
                              Reply: As noted above, drivers will be
                               handed a list of interactions with their
                               carriers, asked whether they have
                               experienced them, and asked whether or
                               not they consider them harassment.
6; III-A-3-c................  OOIDA commented: FMCSA would enhance the
                               quality, usefulness, and clarity of the
                               information collected if it: c)
                               guaranteed drivers' confidentiality to
                               ensure candor without fear of retaliation
                               or enforcement actions.
                              Reply: Promises of confidentiality are
                               made at the beginning of the survey. The
                               language currently reads as follows:
                               ``All responses to this collection of
                               information are voluntary and
                               confidentiality will be provided to the
                               extent allowed by law.''
7; III-A-3-d................  OOIDA commented: FMCSA would enhance the
                               quality, usefulness, and clarity of the
                               information collected if it: d) ensured
                               the survey was broad enough to inquire to
                               the types of harassment described in
                               these comments.
                              Reply: Please see the list of interactions
                               listed above.
7; III-A-4..................  OOIDA commented: The burden of the survey
                               would be reduced if drivers were asked
                               whether they had specifically been
                               harassed, rather than asking driver
                               broad, nonspecific questions.
                              Reply: We agree and believe the list of
                               interactions is specific.
14..........................  OOIDA commented: Include law enforcement
                               use or non-use of EOBRs.

[[Page 32005]]

 
                              Reply: Regarding law enforcement use (or
                               non-use) of EOBRs, members of law
                               enforcement are currently not included in
                               the survey plan as respondents, but
                               drivers' experiences with them are.
                               Drivers with EOBRs are asked the
                               following two questions:
                                 Have you ever had a problem producing
                                  your electronic hours-of-service
                                  records for a law enforcement officer?
                                 If so, was this problem big enough that
                                  you felt harassed by the request to
                                  see your records?
                                 Carriers are not asked this pair of
                                  questions.
------------------------------------------------------------------------

    OOIDA also expressed a concern regarding measures to prevent 
carriers from harassing drivers through the use of EOBRs. The 
qualitative questionnaires for both carriers and drivers ask 
participants what could be done to prevent this, either through the 
technology itself or in processes surrounding EOBR usage. Additionally, 
the issue is addressed in the quantitative surveys. Carriers and 
drivers are asked to identify (from a list) actions which they think 
are ``good ideas'' to prevent carriers from harassing their drivers. In 
addition, carriers and drivers are asked what FMCSA actions would be 
appropriate in response to carrier harassment. For specific examples of 
relevant questions regarding mitigation see: Qualitative, Carriers: 
18b, 19; Qualitative, Drivers: 18; Quantitative, Carriers: 26, 27; and 
Quantitative, Drivers: 32, 33.
    No party requested a copy of the survey instruments and associated 
documents before their submission. These documents were, however, 
available upon request as stated in the 60-day notice (77 FR 74267, 
Dec. 13, 2012). Should FMCSA receive a request for these instruments or 
documents, FMCSA will post them in the docket for this ICR to ensure 
broad public access.
    FMCSA will publish a SNPRM on EOBRs and will consider survey 
results concerning the EOBR use by motor carriers to ensure that EOBRs 
are not used by carriers to harass or coerce drivers prior to the 
issuance of a final rule.
    Public Comments Invited: You are asked to comment on any aspect of 
this information collection, including the following: (1) Whether the 
proposed collection is necessary for FMCSA to perform its 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.

    Issued on: May 20, 2013.
Dr. G. Kelly Leone,
Associate Administrator, Office of Research and Information Technology 
and Chief Information Officer.
[FR Doc. 2013-12564 Filed 5-24-13; 8:45 am]
BILLING CODE 4910-EX-P