[Federal Register Volume 76, Number 71 (Wednesday, April 13, 2011)]
[Proposed Rules]
[Pages 20611-20613]
[FR Doc No: 2011-8789]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 385, 390, and 395

[Docket No. FMCSA-2010-0167]
RIN 2126-AB20

Electronic On-Board Recorders and Hours of Service Supporting
Documents

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

ACTION: Notice; request for additional public comment.

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SUMMARY: 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 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/E8-785.pdf.

FOR FURTHER INFORMATION CONTACT: 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<PHONE_NUMBER>. 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<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

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-of-
service (HOS) violations. The EOBR 1 final rule requires a motor
carrier found to have a 10 percent violation rate for any HOS
regulation listed in Appendix C of 49 CFR part 385 during a single
compliance review to install and use EOBRs on all of its CMVs for a
period of 2 years. The compliance date for the rule 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,

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, 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 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'' 1-
minute 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 Owner-Operator 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,

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]
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[Federal Register Volume 87, Number 248 (Wednesday, December 28, 2022)]
[Notices]
[Pages 79885-79886]
[FR Doc No: 2022-28077]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2022-0040; FRL-10542-01-OMS]

Information Collection Request Submitted to OMB for Review and
Approval; Comment Request; NESHAP for Clay Ceramics Manufacturing,
Glass Manufacturing, and Secondary Nonferrous Metals Processing Area
Sources (Renewal)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Environmental Protection Agency has submitted an
information collection request (ICR), NESHAP for Clay Ceramics
Manufacturing, Glass Manufacturing, and Secondary Nonferrous Metals
Processing Area Sources (EPA ICR Number 2274.07, OMB Control Number
2060-0606), to the Office of Management and Budget (OMB) for review and
approval in accordance with the Paperwork Reduction Act. This is a
proposed extension of the ICR, which is currently approved through
January 31, 2023. Public comments were previously requested, via the
Federal Register on July 22, 2022 during a 60-day comment period. This
notice allows for an additional 30 days for public comments. A fuller
description of the ICR is given below, including its estimated burden
and cost to the public. An agency may neither conduct nor sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.

DATES: Additional comments may be submitted on or before January 27,
2023.

ADDRESSES: Submit your comments, referencing Docket ID Number EPA-HQ-
OAR-2022-0040, to: (1) EPA online using https://www.regulations.gov/
(our preferred method), or by email to [email protected], or by mail to:
EPA Docket Center, Environmental Protection Agency, Mail Code 28221T,
1200 Pennsylvania Ave. NW, Washington, DC 20460; and (2) OMB's Office
of Information and Regulatory Affairs using the interface at: https://www.reginfo.gov/public/do/PRAMain. Find this particular information
collection by selecting ``Currently under Review--Open for Public
Comments'' or by using the search function.
    The EPA's policy is that all comments received will be included in
the public docket without change, including any personal information
provided, unless the comment includes profanity, threats,

information claimed to be Confidential Business Information (CBI), or
other information whose disclosure is restricted by statute.

FOR FURTHER INFORMATION CONTACT: Muntasir Ali, Sector Policies and
Program Division (D243-05), Office of Air Quality Planning and
Standards, U.S. Environmental Protection Agency, Research Triangle
Park, North Carolina, 27711; telephone number:<PHONE_NUMBER>; email
address: [email protected].

SUPPLEMENTARY INFORMATION: Supporting documents, which explain in
detail the information that the EPA will be collecting, are available
in the public docket for this ICR. The docket can be viewed online at:
https://www.regulations.gov, or in person, at the EPA Docket Center,
WJC West Building, Room 3334, 1301 Constitution Ave. NW, Washington,
DC. The telephone number for the Docket Center is:<PHONE_NUMBER>. For
additional information about EPA's public docket, visit http://www.epa.gov/dockets.
    Abstract: The National Emission Standards for Hazardous Air
Pollutants (NESHAP) for Clay Ceramics Manufacturing, Glass
Manufacturing, and Secondary Nonferrous Metals Processing Area Sources
(40 CFR part 63, subparts RRRRRR, SSSSSS, and TTTTTT) were proposed on
September 20, 2007; and promulgated on December 26, 2007. These
regulations apply to the following existing and new facilities: (1)
clay ceramics manufacturing facilities that process more than 50 tons
per year of wet clay and are area sources of hazardous air pollutants
(HAP); (2) glass manufacturing facilities that use continuous furnaces
to produce glass that contains HAP as raw materials and are area
sources of HAP; and (3) secondary nonferrous metals processing
facilities that are area sources of HAP. Clay ceramics manufacturing
facilities include facilities that manufacture pressed tile,
sanitaryware, dinnerware, or pottery with an atomized glaze spray booth
or kiln that fires glazed ceramic ware. Glass manufacturing facilities
include facilities that manufacture flat glass, glass containers, or
pressed and blown glass by melting a mixture of raw materials, to
produce molten glass and form the molten glass into sheets, containers,
or other shapes. Secondary nonferrous metals processing facilities
means brass and bronze ingot making, secondary magnesium processing, or
secondary zinc processing plants that use furnace melting operations to
melt post-consumer nonferrous metal scrap to make products including
bars, ingots, blocks, or metal powders. New facilities include those
that commenced either construction, or modification or reconstruction
after the date of proposal. This information is being collected to
assure compliance with 40 CFR part 63, subparts RRRRRR, SSSSSS, and
TTTTTT.
    Form Numbers: None.
    Respondents/affected entities: Area sources of clay ceramics
manufacturing, glass manufacturing, and secondary nonferrous metals
processing.
    Respondent's obligation to respond: Mandatory (40 CFR part 63,
subparts RRRRRR, SSSSSS, and TTTTTT).
    Estimated number of respondents: 87 (total).
    Frequency of response: Initially.
    Total estimated burden: 1,970 hours (per year). Burden is defined
at 5 CFR 1320.3(b).
    Total estimated cost: $250,000 (per year), which includes $13,900
in annualized capital/startup and/or operation & maintenance costs.
    Changes in the Estimates: The increase in burden from the most-
recently approved ICR is due to an adjustment. The adjustment increase
is due to an increase in the number of respondents, including one new
respondent expected during the three-year period of this ICR. There is
an increase in cost due to the increased number of respondents and due
to the use of updated labor rates. This ICR uses labor rates from the
most-recent Bureau of Labor Statistics report (September 2021) to
calculate respondent burden costs.
    The new source is not expected to incur capital costs; therefore,
there is no change in the capital/startup costs from the most-recently
approved ICR. There is an increase in O&M costs due to the use of
updated labor rates associated with inspections of emission control
systems for glass manufacturing facilities. This ICR uses the technical
labor rate from the most-recent Bureau of Labor Statistics report
(September 2021) to calculate respondent burden costs associated with
inspection of emission control systems.

Courtney Kerwin,
Director, Regulatory Support Division.
[FR Doc. 2022-28077 Filed 12-27-22; 8:45 am]
BILLING CODE 6560-50-P