[Federal Register Volume 77, Number 113 (Tuesday, June 12, 2012)]
[Rules and Regulations]
[Pages 34846-34853]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-14215]
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DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration
49 CFR Parts 390 and 396
[Docket No. FMCSA-2011-0046]
RIN 2126-AB34
Inspection, Repair, and Maintenance; Driver-Vehicle Inspection
Report for Intermodal Equipment
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department
of Transportation.
ACTION: Final rule.
SUMMARY: FMCSA eliminates the
requirement for drivers operating
intermodal equipment (IME) to
submit—and intermodal equipment
providers (IEPs) to retain—drivervehicle
inspection reports (DVIRs) when
the driver has neither found nor been
made aware of any defects in the IME.
This responds to a joint petition for
rulemaking from the Ocean Carrier
Equipment Management Association
(OCEMA) and the Institute of
International Container Lessors (IICL).
DATES: The final rule is effective June
12, 2012.
ADDRESSES: For access to the docket to
read background documents, including
those referenced in this document, or to
read comments received, go to:
- Regulations.gov, http://www.regulations.gov, at any time and
insert FMCSA-2011-0046 in the
"Keyword" box, and then click
"Search."
- Docket Management Facility, Room
W12-140, DOT Building, 1200 New
Jersey Avenue SE., Washington, DC.
You may view the docket online by
visiting the facility between 9 a.m. and
5 p.m. e.t., Monday through Friday
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Ms.
Deborah M. Freund, Vehicle and
Roadside Operations Division, Office of
Bus and Truck Standards and
Operations (MC-PSV), Federal Motor
Carrier Safety Administration, 1200
New Jersey Avenue SE., Washington,
DC 20590; telephone (202) 366-5370.
SUPPLEMENTARY INFORMATION: I. Executive Summary
The purpose of this rule is to
eliminate the reporting requirement for
Driver-Vehicle Inspection Reports
(DVIR) for intermodal equipment (IME),
if the driver has neither found nor has
been made aware of any defects in the
IME. The rule also eliminates the
recordkeeping requirement for
intermodal equipment providers (IEPs)
to retain DVIRs that do not indicate IME
defects. The FMCSA estimates annual
time and costs savings of 1.636 million
hours and $54 million dollars. This rule
is part of the effort of the U.S.
Department of Transportation to
implement Executive Order 13563.
II. 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 signing the comment, if
submitted on behalf of an association,
business, labor union, etc.). You may
review the U.S. Department of
Transportation's (DOT) Privacy Act
system of records notice for the DOT
Federal Docket Management System
(FDMS) in the Federal Register
published on January 17, 2008 (73 FR
3316) at http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.
III. Abbreviations
AAR Association of American Railroads
ATA American Trucking Associations
CMV Commercial motor vehicle
DOT U.S. Department of Transportation
DVIR Driver-vehicle inspection report
EDI Electronic data interchange
FHWA Federal Highway Administration
FMCSRs Federal Motor Carrier Safety
Regulations
GIER Global Intermodal Equipment Registry
IANA Intermodal Association of North
America
IC Information collection
ICC Interstate Commerce Commission
IEP Intermodal equipment provider
IICL Institute of International Container
Lessors
IMCC Intermodal Motor Carriers
Conference
IME Intermodal equipment
NPRM Notice of proposed rulemaking
OCEMA Ocean Carrier Equipment
Management Association
OOS Out of service
Secretary Secretary of Transportation
IV. Legal Basis for the Rulemaking
Although intermodal cargo containers
move by ship and/or by rail, the trip
generally begins and ends on chassis
trailers (on IME) for transportation by
highway. These trailers fall under
FMCSA's safety jurisdiction. At issue in
this final rule is the requirement that
drivers complete DVIRs, which note the
existence or absence of defects or
deficiencies in IME. The final rule
eliminates the requirement that drivers
complete DVIRs when they have no
defects or deficiencies to report.
This final rule is based on the
authority of the Motor Carrier Act of
1935 (1935 Act) and the Motor Carrier
Safety Act of 1984 (1984 Act), both of
which are broadly discretionary, and the
specific mandates of section 4118 of the
Safe, Accountable, Flexible, Efficient
Transportation Equity Act; a Legacy for
Users (SAFETEA-LU) (Pub. L. 109-59,
119 Stat. 1144, at 1729, August 10, 2005,
codified at 49 U.S.C. 31151).
The 1935 Act provides that the
Secretary of Transportation (Secretary)
may prescribe requirements for
- Qualifications and maximum hours
of service of employees of, and safety of
operation and equipment of, a motor
carrier (49 U.S.C. 31502(b)(1)), and
- Qualifications and maximum hours
of service of employees of, and
standards of equipment of, a motor
private carrier, when needed to promote
safety of operation (49 U.S.C.
31502(b)(2)).
This rulemaking is based on the
Secretary's authority under both
§ 31502(b)(1) and (2).
The 1984 Act authorizes the Secretary
to regulate drivers, motor carriers, and
vehicle equipment. Codified at 49
U.S.C. 31136(a), section 206(a) of the
1984 Act requires the Secretary to
publish regulations on motor vehicle
safety. Specifically, the Act sets forth
minimum safety standards to ensure
that: (1) Commercial motor vehicles
(CMVs) are maintained, equipped,
loaded, and operated safely (49 U.S.C.
31136(a)(1)); (2) the responsibilities
imposed on operators of CMVs do not
impair their ability to operate the
vehicles safely (49 U.S.C. 31136(a)(2));
(3) the physical condition of CMV
operators is adequate to enable them to
operate the vehicles safely (49 U.S.C.
31136(a)(3)); and (4) the operation of
CMVs does not have a deleterious effect
on the physical condition of the
operators (49 U.S.C. 31136(a)(4)).
Section 211 of the 1984 Act also grants
the Secretary broad power in carrying
out motor carrier safety statutes and
regulations to "prescribe recordkeeping
and reporting requirements" and to "perform other acts the Secretary
considers appropriate" (49 U.S.C.
31133(a)(8) and (10)).
This rule implements, in part, the
Administrator's delegated authority
under Section 206(a)(1) of the 1984 Act
to ensure that CMVs are maintained,
equipped, loaded and operated safely
and also exercises the broad
recordkeeping and implementation
authority under Section 211. The other
subsections of Section 206(a) do not
apply because this final rule only
addresses CMV equipment.
Section 4118 of SAFETEA-LU,
entitled "Roadability," requires the
Secretary to issue regulations "to ensure
that intermodal equipment used to
transport intermodal containers is safe
and systematically maintained."
Codified at 49 U.S.C. 31151(a)(3), it
specifies a minimum of 14 items to be
included in those regulations. It also
authorizes Departmental employees
designated by the Secretary to inspect
IME and make copies of related
maintenance and repair records (49
U.S.C. 31151(b)). Any IME that fails to
comply with applicable Federal safety
regulations may be placed out of service
(OOS) by Departmental or other Federal,
State, or government officials designated
by the Secretary until the necessary
repairs have been made (49 U.S.C.
31151(c)). Also included is a provision
preempting inconsistent State, local, or
tribal requirements that relate to CMV
safety, but providing that preemption of
a State periodic chassis inspection
requirement that was in effect on
January 1, 2005 may be waived upon
application by the State if the Secretary
finds the State requirement is as
effective as the Federal requirement and
does not unduly burden interstate
commerce (49 U.S.C. 31151(d) and (e)).
FMCSA published a final rule on
December 17, 2008 (73 FR 76794),
implementing the SAFETEA-LU
requirements. That rule requires IEPs to
register and file with FMCSA an IEP
Identification Report (Form MCS-150C);
establish a systematic inspection, repair,
and maintenance program in order to
provide IME that is in safe and proper
operating condition; maintain
documentation of their maintenance
program; and provide a means to
respond effectively to driver and motor
carrier reports about intermodal chassis
mechanical defects and deficiencies.
The regulations also require IEPs to
mark each intermodal chassis offered for
transportation in interstate commerce
with a DOT identification number. For
the first time, these regulations made
IEPs subject to the FMCSRs, and called
for shared safety responsibility among
IEPs, motor carriers, and drivers. Additionally, FMCSA adopted
inspection requirements for motor
carriers and drivers operating IME.
V. Background
Section 4118 of SAFETEA-LU
amended 49 U.S.C. chapter 311 to
require that the Secretary establish a
program ensuring that IME used to
transport intermodal containers is safe
and systematically maintained (49
U.S.C. 31151). Among other things, the
statute called for the Secretary to
mandate "a process by which a driver
or motor carrier transporting intermodal
equipment is required to report to the
intermodal equipment provider or the
providers' designated agent any actual
damage or defect in the intermodal
equipment of which the driver or motor
carrier is aware at the time the
intermodal equipment is returned to the
intermodal equipment provider or the
provider's designated agent" (49 U.S.C.
31151(a)(3)(L)). FMCSA's December 17,
2008 rule (73 FR 76794) satisfied this
requirement.
The 2008 rule included a new
§ 390.42, which prescribed the
responsibilities of drivers and motor
carriers when operating IME. Section
390.42(b) required the driver or motor
carrier to report any damage to or
deficiencies in certain IME parts and
accessories at the time the equipment is
returned to the IEP.
Importantly, FMCSA did not propose
any changes to § 396.11(b), "Report
content," which requires—for both non-
IME and IME—that "If no defect or
deficiency is discovered by or reported
to the driver, the report shall so
indicate." This requirement to prepare a
DVIR, even in the absence of equipment
defects or deficiencies (hereafter a "nodefect
DVIR"), has been in the safety
regulations since 1952 (17 FR 4422,
4452, May 15, 1952).1 In the 2008 final
rule, the Agency added language in the
new § 390.42(b) and § 396.12(b)(4) to
clarify that "if no damage, defects, or
deficiencies are discovered by the
driver, the report shall so indicate."
This was done to make the new rules for
IEPs consistent with § 396.11(b).
On October 27, 2009, OCEMA
petitioned FMCSA for a partial
extension of the compliance date for
§§ 396.9(d), 396.11(a)(2), 396.12(a),
396.12(c), and 396.12(d). These
provisions include the process for
delivering the DVIR and acting on
defects or deficiencies reported. FMCSA
granted the petition. In a final rule
published on December 29, 2009,
FMCSA extended the compliance date
for these provisions from December 17,
2009, to June 30, 2010 (74 FR 68703).
On March 31, 2010, OCEMA and IICL
jointly filed a petition for rulemaking to
rescind the part of § 390.42(b) that
required drivers to file no-defect DVIRs
with IEPs on IME they are returning.
OCEMA and IICL requested that FMCSA
delete the sentence "if no damage,
defects, or deficiencies are discovered
by the driver, the report shall so
indicate."
FMCSA granted the petition for
rulemaking on July 30, 2010. Because
FMCSA had previously extended the
compliance date to June 30, 2010, (74
FR 68703), FMCSA published a final
rule on August 20, 2010 that extended
the compliance date for § 390.42(b) to
June 30, 2011 (75 FR 51419). On May
20, 2011, FMCSA published a notice
further extending the compliance date,
to June 30, 2012 (76 FR 29169).
The petitioners presented four
arguments supporting their request:
- SAFETEA-LU requires DVIRs only
for known damage or defects. Congress
could have added a requirement to file
no-defect DVIRs but did not do so.
- There is significant risk that a large
volume of no-defect DVIRs could
overwhelm the small proportion
(4 percent) of DVIRs that contain
damage or defects.
- Data transmission, processing, and
storage requirements for no-defect
DVIRs could add significant
unnecessary costs to intermodal
operations without providing offsetting
benefits.
- Submission of no-defect DVIRs
contributes to driver productivity losses
in the form of congestion and delay at
intermodal facilities.
The Agency published an NPRM on
June 7, 2011 (75 FR 32906) proposing
changes to §§ 390.42(b), 396.11(b), and
396.12(b)(4) that would eliminate the
requirement to file no-defect DVIRs.
VI. Discussion of Public Comments NPRM Issues
In addition to seeking general
comments on the NPRM:
- FMCSA sought comment on the
Petitioners' and FMCSA's estimates of
the costs and time burden associated with no-defect DVIRs. The Petitioners
estimated a time burden of 3 minutes,
whereas the FMCSA's information
collection (IC) request statement
referenced in the 2008 final rule
estimated a burden of 2 minutes 35
seconds.
- FMCSA sought comment on the
Petitioners' statement that IEPs incur a
$0.02 transaction cost to retrieve the
USDOT number through an electronic
database, which Petitioners asserted is
necessary for IME identification and
completion of no-defect DVIR
processing. FMCSA asked for
clarification of the Petitioner's
statement, because the Agency's
December 29, 2009, technical
amendment (74 FR 68703), mandated
that no fee would be charged to outside
users.
- Finally, FMCSA asked the
following questions about how DVIRs
are handled:
1.1. Please explain in detail the procedures
for filing and maintaining DVIRs from the
time they are completed through the end of
their retention periods. Are defect DVIRs
kept separate from no-defect DVIRs, sent to
maintenance staff, and then acted on? Do you
have special procedures in place for the nodefect
DVIRs? If so, please describe them.
1.2. Do you have examples of specific
incidents in which handling of a large
volume of no-defect DVIRs has interfered
with handling of defect DVIRs? If so, please
describe how these additional documents
affected the repairing of defects.
1.3. Some DVIRs are completed
electronically. Are the electronic DVIRs
automatically or manually separated into
defect and no-defect categories? Do you have
an estimate of the percentage of forms filled
out on paper and electronically? If so, please
provide detailed information on the data and
methodology used for that estimate.
2. Please provide information on the
percentage of no-defect DVIRs. Also, please
provide a discussion of the methodology for
developing this information. (76 FR 32909)
Comments Received
The Agency received comments from
five organizations: the Association of
American Railroads (AAR), IICL,
Intermodal Association of North
America (IANA), Intermodal Motor
Carriers Conference (IMCC) of the
American Trucking Associations (ATA),
and OCEMA. All commenters stated
they supported FMCSA's proposed
revisions of §§ 390.42(b), 396.11(b), and
396.12(b)(4).
Procedures for Filing and Maintaining
DVIRs; Time Burden Estimate for
Manual and Electronic Filing
In response to FMCSA's question
concerning procedures for filing and
maintaining DVIRs, IANA described
several types of DVIR collection processes. These processes ranged from
manual submission of hard-copy
paperwork to unassisted electronic data
interchange (EDI) transmissions. IANA
added that the different nature of these
processes contributes to the variation in
time burden and would make an exact
assessment difficult. IANA also
described the comprehensive electronic
"virtual pre-gate" and at-gate
procedures, which allow for reporting
and processing of DVIRs via a web
portal, interactive voice response
system, or EDI and transmittals of files
in various formats. IANA noted that its
program offers IEPs and motor carriers
electronic DVIR retention and
recordkeeping features that go beyond
FMCSA's requirements. IANA stated
that, although it does not possess
empirical data to validate petitioners'
OCEMA and IICL's 3-minute estimate,
its discussions with its Motor Carrier
Division confirm the validity of this
estimate.
OCEMA estimated that the actual time
it takes to file a DVIR could vary
between 1 and 5 minutes, depending
upon the DVIR process, its format, and
the driver's familiarity and comfort level
with the process. OCEMA stated it
believes that 3 minutes is a reasonable
estimate, although possibly a low one.
OCEMA also stated that the majority of
the intermodal industry appears to have
adopted either IANA's system,
DVIR.Intermodal.org, or another DVIR
system available through Chassis.com.
OCEMA added that if a defect or
damage is noted on a DVIR, that
information is sent to the intermodal
facility, the chassis pool manager, and
often to the terminal operator, to initiate
a corrective action. In some cases, the
terminal places a hold on the unit of
IME to keep it from leaving the facility
until maintenance personnel release it.
IICL stated that its members agreed
with FMCSA's analyses.
FMCSA Response: FMCSA believes
that IME DVIRs are no more complex
than DVIRs for other CMV equipment,
and therefore that it has opted to use its
estimate of two minutes and thirty-five
seconds rather than the 3 minutes
mentioned by the petitioners.
Cost of Filing and Maintaining DVIRs
With respect to the cost estimate,
IANA and OCEMA clarified that the
$0.02 fee per DVIR is a transaction fee
that IEPs and other users incur to offset
DVIR processing costs. They emphasize
that it is not a Global Intermodal
Equipment Registry (GIER) user fee.
OCEMA noted that, to its knowledge,
direct public web-portal access to the
GIER database is free to the public.
FMCSA Response: FMCSA
acknowledges IANA's and OCEMA's
clarification. This is consistent with the
Agency's position that there should not
be an outside user fee associated with
database access.
Impact on Processing Defect DVIRs Due
to Large Volume of No-Defect DVIRs
In response to the request for
examples of specific incidents in which
handling a large volume of no-defect
DVIRs interfered with handling defect
DVIRs, OCEMA stated that it was not
able to identify specific incidents, but
noted that there had been only a limited
time period when defect DVIRs were
required. OCEMA added that increased
reporting would likely generate more
reports containing errors, greatly
increase the data flows through
operational processes, and increase
burdens associated with report storage
and retrieval.
IANA stated that its system accepts
both defect and no-defect DVIRs and
separates them automatically. OCEMA
added that Chassis.com also accepts
both defect and no-defect DVIRs.
FMCSA Response: The information
confirmed the Agency's understanding
of many of the processes, as well as
providing clarifying details.
Percentages of No-Defect DVIRs
With respect to the percentage of nodefect
DVIRs received, IANA stated that
it received 98.8 percent no-defect DVIRs
for the period December 17, 2009
through July 30, 2010. During the
following 2 months, the total number of
DVIRs IANA processed declined by 51
percent, with the no-defect DVIR
proportion remaining at 98.8 percent.
IANA also stated that from August 20,
2010 through June 30, 2011, as a result
of FMCSA's extension of the
compliance date for no-defect DVIR
reporting, no-defect DVIRs were not
submitted or processed, and there is no
relevant statistical information available
on the ratio of no-defect to defect DVIRs.
OCEMA stated that 98 percent of
DVIRs received by its subsidiary,
Consolidated Chassis Management,
identified no defects.
FMCSA Response: FMCSA has
received different industry estimates of
the percentage of no-defect DVIRs. To
ensure a conservative estimate of the
reduction in costs and paperwork
burdens, FMCSA will continue to use
95 percent as the estimated proportion
of DVIRs that do not identify defects.
Filing DVIRs on only the roughly 5
percent of IME with defects will focus
attention on the IME that needs it—
rather than the 95 percent with no
defects. This change in procedure should streamline the process by
providing IEPs only that information
they need to act on.
Other Comments Received
ATA IMCC contends that a written
driver pre-trip report documenting the
condition of the IME offered for
interchange is necessary for FMCSA to
measure compliance with the IME
regulations effectively. IMCC believes
that a lack of documentation on pre-trip
equipment conditions prevents the
facility operator or other party
responsible for IME maintenance from
evaluating its processes and making
necessary changes.
FMCSA Response: Although it is
outside the scope of this particular
rulemaking, the Agency notes that
Section 4118 of SAFETEA-LU did
include requirements for drivers to
conduct an inspection "as part of the
Federal requirement in effect on the
date of enactment of this Act"—that is,
a pre-trip inspection. In its comments to
the December 2006 NPRM, ATA and
other commenters recommend that
FMCSA adopt the industry inspection
procedures by requiring the same list of
inspection items as set forth in Exhibit
A of the Uniform Intermodal
Interchange and Facility Access
Agreement (UIIA). Even though the
Federal requirement that it refers to,
codified at 49 CFR 392.7, does not
include a requirement for a pre-trip
inspection document, the Agency
understands that it has been customary
for drivers to use that checklist.
Although there are differences between
the UIIA and the requirements of 49
CFR Part 393, the Agency stated in the
preamble to the December 2008 final
rule, "To the extent that the contents of
any other inspection checklist are
compatible with it, and do not
otherwise conflict with FMCSR
requirements, IEPs and motor carriers
may continue to use them." (73 FR
76794, at 76803). In addition, the
FMCSA does not have any data to
suggest that adding such a requirement
to the FMCSRs would provide safety
benefits.
VII. Discussion of Final Rule
All commenters expressed support for
eliminating the requirement to file nodefect
DVIRs, which they viewed as an
unnecessary administrative burden.
AAR noted, "Rarely does an agency
have an opportunity to eliminate a
paperwork requirement that clearly
serves no useful purpose. This is one
such occasion. AAR applauds FMCSA
for initiating this proceeding."
The Agency emphasizes that this rule
does not change a driver's obligation to assess the condition of IME at the end
of a workday to determine whether the
IME has defects or deficiencies that
could affect operational safety.
Although FMCSA is removing the
requirement to complete a DVIR if the
driver finds no defects in the IME and
none have been reported to the driver,
he or she must still inspect the IME to
make this determination.
FMCSA also points out that
§ 390.40(i) requires IEPs to develop and
implement procedures to repair any
equipment damage, defects, or
deficiencies identified as part of a pretrip
inspection or replace the equipment
prior to the driver's departure. It is in
the IEPs'—and drivers'—best interests
for IME defects to be identified and
remedied before the IME is next
tendered. If drivers submit DVIRs when
they note IME defects or deficiencies,
they can be remedied without delaying
the next driver who receives the
equipment.
This rule does not affect requirements
governing the inspection and
completion of DVIRs for power units.
Drivers also must continue to complete
no-defect DVIRs on chassis that are
owned or leased by the motor carrier.
Changes to the Code of Federal
Regulations
FMCSA makes the changes proposed
in the NPRM eliminating the no-defect
DVIR filing requirement. FMCSA revises
§ 390.42(b) by deleting the sentence, "If
no damage, defects, or deficiencies are
discovered by the driver, the report
shall so indicate." Conforming changes
are made in §§ 396.11(b) and
396.12(b)(4).
This rule does not change the IEPs'
obligation under § 390.40(c) to
systematically inspect, repair, and
maintain—or cause to be systematically
inspected, repaired and maintained—all
IME intended for interchange with a
motor carrier. Nor does it alter the IEPs'
responsibility under § 390.40(d) to
provide IME intended for interchange
that is in safe and proper operating
condition.
This rule includes editorial changes to
§ 396.11(a) and (b). The content from
§ 396.11(a), (b), and (d) has been reorganized
for clarity and includes a
revised paragraph § 396.11(a). Paragraph
(b) has been rewritten, for clarity, into
four subparagraphs: § 396.11(b)(1), (2),
(3), and (4). Also for clarity and to
conform to contemporary regulatory
citation style, the individual items listed
in § 396.11(a)(1) and (b)(1) are given
paragraph designations. The Agency
also revises the authority citations for 49
CFR parts 390 and 396 to correct
statutory references and eliminate references that are either erroneous or
unnecessary.
VIII. Regulatory Analyses
Executive Orders 13563 and 12866
(Regulatory Planning and Review) and
DOT Regulatory Policies and Procedures
FMCSA has determined that this
action meets the criteria for a
"significant regulatory action" as
specified in Executive Order 12866, as
supplemented by Executive Order
13563 issued by the President on
January 18, 2011 (76 FR 3821) and
within the meaning of the Department
of Transportation regulatory policies
and procedures (44 FR 11034, February
26, 1979). The Department expects this
rule to generate cost savings in the form
of reduced paperwork burdens. Due to
other existing inspection requirements,
the Department does not believe that
this rule will result in reduced safety.
The rule removes the requirement for
drivers to submit DVIRs when they do
not have IME defects or deficiencies to
report. The only impact of this rule is
to alleviate a portion of the paperwork
burden for CMV drivers, which in
monetary terms does not warrant a full
regulatory analysis.
Approximately 40 million items of
IME are in-gated each year. Of those,
approximately 95 percent of DVIRs do
not note defects. Therefore, for each of
these 38 million units of no-defect IME
(40 million × .95 = 38 million), a DVIR
would not have to be completed. Filling
out a no-defect DVIR is estimated to take
2.5 minutes and reviewing and signing
a DVIR is estimated to take 5 seconds
when no defects are noted. For a total
of 2 minutes and 35 seconds in time
savings if these reports are not required
when no-defects are noted. This
amounts to a time savings of 1.636
million hours annually (38 million units
× 155 seconds per IME/3600 seconds/
hour). As this burden falls on drivers,
the value of this time can be monetized
using the prevailing wage for truck
drivers. We use the median annual wage
for BLS occupation category 53-3032
Heavy and Tractor-Trailer Truck Drivers
from the May 2011 Occupational
Employment and Wages report, the most
recent available. The median wage for
truck drivers from this report is $18.24
per hour, which we inflate by 52
percent to account for fringe benefits
and 27 percent to account for overhead.
This produces a total loaded hourly
time value of $33, rounded to the
nearest dollar (the exact amount is
$32.65). The estimated costs savings is
$1.42 per transaction (155 seconds × $33
per hour/3600 seconds per hour =
$1.42). The total savings annually amount to $54 (38 million units of IME
× $1.42 per eliminated report = $54
million rounded to the nearest
$100,000).
FMCSA emphasizes that this rule
does not change two related
requirements concerning IME safety. It
does not change a driver's obligation to
assess the condition of IME at the end
of a workday to determine whether the
IME has defects or deficiencies that
could affect operational safety. In
addition, § 390.40(i) requires IEPs to
develop and implement procedures to
repair any equipment damage, defects,
or deficiencies identified as part of a
pre-trip inspection or replace the
equipment prior to the driver's
departure. Because there are multiple
opportunities for IME to be inspected
for potential safety defects, the Agency
does not believe that the
implementation of this rule would lead
to an increase in safety risk.
Regulatory Flexibility Act
The Regulatory Flexibility Act
(5 U.S.C. 601 et seq.) requires Federal
agencies to determine whether rules
could have a significant economic
impact on a substantial number of small
entities. This rule will grant regulatory
relief to IEPs, which include 108 entities
consisting of steamship lines, railroads,
and chassis pool operators. In its 2008
final rule, the Agency confirmed that all
IEPs are either foreign-owned or
otherwise do not meet the criteria for
small business designation as defined
by the Small Business Administration
(73 FR 76816, December 17, 2008).
Consequently, I certify that this action
would not have a significant economic
impact on a substantial number of small
entities.
Unfunded Mandates Reform Act of 1995
This rulemaking does not impose an
unfunded Federal mandate, as defined
by the Unfunded Mandates Reform Act
of 1995 (2 U.S.C. 1532, et seq.), that will
result in the expenditure by State, local,
and tribal governments, in the aggregate,
or by the private sector of $143.1
million (which is the value of $100
million in 2010 after adjusting for
inflation) or more in any 1 year.
Executive Order 12988 (Civil Justice
Reform)
This action meets applicable
standards in sections 3(a) and 3(b)(2) of
Executive Order 12988, Civil Justice
Reform, to minimize litigation,
eliminate ambiguity, and reduce
burden.
Executive Order 13045 (Protection of
Children)
FMCSA analyzed this action under
Executive Order 13045, Protection of
Children from Environmental Health
Risks and Safety Risks. FMCSA
determined that this rulemaking does
not pose an environmental risk to health
or safety that may affect children
disproportionately.
Executive Order 12630 (Taking of
Private Property)
This rulemaking does not effect a
taking of private property or otherwise
have takings implications under
Executive Order 12630, Governmental
Actions and Interference with
Constitutionally Protected Property
Rights.
Executive Order 13132 (Federalism)
A rulemaking has implications for
Federalism under Executive Order
13132, Federalism, if it has a substantial
direct effect on State or local
governments and would either preempt
State law or impose a substantial direct
cost of compliance on State or local
governments. FMCSA analyzed this
action in accordance with Executive
Order 13132. The rule will not have a
substantial direct effect on States or
local governments, nor will it limit the
policymaking discretion of States.
Nothing in this rulemaking will preempt
any State law or regulation.
Executive Order 12372
(Intergovernmental Review)
The regulations implementing
Executive Order 12372 regarding
intergovernmental consultation on
Federal programs and activities do not
apply to this action.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(44 U.S.C. 3507(d)) requires FMCSA to
consider the impact of paperwork and
other information collection burdens
imposed on the public. This rule will
result in a reduction of burden hours for
the "Inspection, Repair, and
Maintenance" information collection
(IC) request, OMB control number 2126-
0003. In this IC, the burden associated
with DVIRs is calculated as a CMV
driver activity without regard to the
commodity or type of trailer, such as
IME, that they are hauling. The current
burden estimate was based on 4,679,682
CMVs generating 1,249,168,107 DVIRs
per year. Those calculations also
estimate that 95 percent of DVIRs do not
note defects. The Agency will continue
to use this estimate, rather than using
the petitioners' estimate of 96 percent
for IME DVIRs. The petitioners estimate that about 40 million IME in-gates
requiring a DVIR occur each year
(400,000 units of IME, 100 in-gates per
unit of IME per year).
This IC includes all tasks related to
inspection, repair, and maintenance,
including two distinct driver tasks
related to DVIRs: (1) Filling out a DVIR
(IC2) and reviewing and signing a DVIR
(IC6). Filling out a DVIR (IC2) is
estimated to take 2.5 minutes and (2)
reviewing and signing a DVIR (IC6) is
estimated to take 5 seconds when no
defects are noted. As noted above,
approximately 40 million of the total
1.25 billion DVIRs completed by the
industry are for IME. This rule results in
a reduction of 1.583 million hours for
IC2 (40 million IEP DVIR × 95 percent
no defect rate × 150 seconds per DVIR
÷ 3600 seconds per hour) and 0.053
million hours for IC6 (40 million IEP
DVIR × 95 percent no defect rate × 5
seconds per DVIR ÷ 3600 seconds per
hour). The currently approved burden
estimate for this entire IC is 59,729,888
hours, and the new burden estimate is
58,093,888 hours: a total burden
reduction of 1.636 million hours per
year. As this burden falls on drivers, the
value of this time can be monetized
using the prevailing wage for truck
drivers. We use the median annual wage
for BLS occupation category 53-3032
Heavy and Tractor-Trailer Truck Drivers
from the May 2011 Occupational
Employment and Wages report, the most
recent available. The median wage for
truck drivers from this report is $18.24
per hour, which we inflate by 52
percent to account for fringe benefits
and 27 percent to account for overhead.
This produces a total loaded hourly
time value of $33, rounded to the
nearest dollar (the exact amount is
$32.65). Multiplying this figure by the
burden hour reduction estimate of 1.636
million hours produces a monetized
time cost savings of $53,988,000, or
roughly $54 million.
National Environmental Policy Act and
Clean Air Act
FMCSA analyzed this final rule for
the purpose of the National
Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.) and determined
under our environmental procedures
Order 5610.1, issued March 1, 2004 (69
FR 9680), that this action does not have
any effect on the quality of the
environment. Therefore, this final rule
is categorically excluded from further
analysis and documentation in an
environmental assessment or
environmental impact statement under
FMCSA Order 5610.1, paragraph 6(bb)
of Appendix 2. The Categorical
Exclusion under paragraph 6(y)(6) relates to "regulations concerning
vehicle operation safety standards,"
such as the driver-vehicle inspection
reports addressed by this rulemaking. A
Categorical Exclusion determination is
available for inspection or copying in
the Regulations.gov Web site listed
under ADDRESSES.
FMCSA also analyzed this action
under section 176(c) of the Clean Air
Act (CAA), as amended (42 U.S.C. 7401
et seq.), and implementing regulations
promulgated by the Environmental
Protection Agency. Approval of this
action is exempt from the CAA's general
conformity requirement since it does
not affect direct or indirect emissions of
criteria pollutants.
In addition to the NEPA requirements
to examine impacts on air quality, the
CAA requires FMCSA to analyze the
potential impact of its actions on air
quality and to ensure that FMCSA
actions conform to State and local air
quality implementation plans. The
additional contributions to air emissions
are expected to fall within the CAA de
minimis standards and are not expected
to be subject to the Environmental
Protection Agency's General Conformity
Rule (40 CFR parts 51 and 93).
Executive Order 13211 (Energy Effects)
FMCSA analyzed this action under
Executive Order 13211, Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use. FMCSA
determined that it is not a "significant
energy action" under that Executive
Order because it is not economically
significant and is not likely to have an
adverse effect on the supply,
distribution, or use of energy.
List of Subjects 49 CFR Part 390
Highway safety, Intermodal
transportation, Motor carriers, Motor
vehicle safety, Reporting and
recordkeeping requirements.
49 CFR Part 396
Highway safety, Motor carriers, Motor
vehicle safety, Reporting and
recordkeeping requirements.
In consideration of the foregoing,
FMCSA amends 49 CFR chapter III,
subchapter B, as follows:
PART 390—FEDERAL MOTOR
CARRIER SAFETY REGULATIONS;
GENERAL
1. The authority citation for part 390
continues to read as follows:
Authority: 49 U.S.C. 504, 508, 31132,
31133, 31136, 31144, 31151, and 31502; sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677-
1678; secs. 212 and 217, Pub. L. 106-159, 113
Stat. 1748, 1766, 1767; sec. 229, Pub. L. 106-
159 (as transferred by. Sec. 4115 and
amended by secs. 4130-4132, Pub. L. 109-59,
119 Stat. 1144, 1726, 1743-1744); sec. 4136,
Pub. L. 109-59, 119 Stat. 1144, 1745 and 49
CFR 1.73.
2. Revise § 390.42(b) to read as
follows:
§ 390.42 What are the responsibilities of
drivers and motor carriers operating
intermodal equipment?
* * * * *
(b) A driver or motor carrier
transporting intermodal equipment
must report to the intermodal
equipment provider, or its designated
agent, any known damage, defects, or
deficiencies in the intermodal
equipment at the time the equipment is
returned to the provider or the
provider's designated agent. The report
must include, at a minimum, the items
in § 396.11(a)(2) of this chapter.
PART 396—INSPECTION, REPAIR,
AND MAINTENANCE
3. The authority citation for part 396
is revised to read as follows:
Authority: 49 U.S.C. 504, 31133, 31136,
31151, and 31502; and 49 CFR 1.73.
4. Revise § 396.11(a) and (b) to read as
follows:
§ 396.11 Driver vehicle inspection
report(s).
(a) Equipment provided by motor
carrier. (1) Report required. Every motor
carrier shall require its drivers to report,
and every driver shall prepare a report
in writing at the completion of each
day's work on each vehicle operated,
except for intermodal equipment
tendered by an intermodal equipment
provider. The report shall cover at least
the following parts and accessories:
- Service brakes including trailer
brake connections;
- Parking brake;
- Steering mechanism;
- Lighting devices and reflectors;
- Tires;
- Horn;
- Windshield wipers;
- Rear vision mirrors;
- Coupling devices;
- Wheels and rims;
- Emergency equipment;
(2) Report content. The report shall
identify the vehicle and list any defect
or deficiency discovered by or reported
to the driver which would affect the
safety of operation of the vehicle or
result in its mechanical breakdown. If
no defect or deficiency is discovered by
or reported to the driver, the report shall
so indicate. In all instances, the driver shall sign the report. On two-driver
operations, only one driver needs to
sign the driver vehicle inspection
report, provided both drivers agree as to
the defects or deficiencies identified. If
a driver operates more than one vehicle
during the day, a report shall be
prepared for each vehicle operated.
(3) Corrective action. (i) Prior to
requiring or permitting a driver to
operate a vehicle, every motor carrier or
its agent shall repair any defect or
deficiency listed on the driver vehicle
inspection report which would be likely
to affect the safety of operation of the
vehicle.
(ii) Every motor carrier or its agent
shall certify on the original driver
vehicle inspection report which lists
any defect or deficiency that the defect
or deficiency has been repaired or that
repair is unnecessary before the vehicle
is operated again.
(4) Retention period for reports. Every
motor carrier shall maintain the original
driver vehicle inspection report, the
certification of repairs, and the
certification of the driver's review for
three months from the date the written
report was prepared.
(5) Exceptions. The rules in this
section shall not apply to a private
motor carrier of passengers
(nonbusiness), a driveaway-towaway
operation, or any motor carrier
operating only one commercial motor
vehicle.
(b) Equipment provided by intermodal
equipment provider. (1) Report required.
Every intermodal equipment provider
must have a process to receive driver
reports of, and each driver or motor
carrier transporting intermodal
equipment must report to the
intermodal equipment provider or its
designated agent, any known damage,
defects, or deficiencies in the
intermodal equipment at the time the
equipment is returned to the provider or
the provider's designated agent. The
report must include, at a minimum, the
following parts and accessories:
- Brakes;
- Lighting devices, lamps, markers,
and conspicuity marking material;
- Wheels, rims, lugs, tires;
- Air line connections, hoses, and
couplers;
- King pin upper coupling device;
- Rails or support frames;
- Tie down bolsters;
- Locking pins, clevises, clamps,
or hooks;
- Sliders or sliding frame lock;
(2) Report content. (i) Name of the
motor carrier responsible for the
operation of the intermodal equipment
at the time the damage, defects, or deficiencies were discovered by, or
reported to, the driver.
- Motor carrier's USDOT number;
intermodal equipment provider's
USDOT number, and a unique
identifying number for the item of
intermodal equipment.
- Date and time the report was
submitted.
- All damage, defects, or
deficiencies of the intermodal
equipment reported to the equipment
provider and discovered by, or reported
to, the motor carrier or its driver which
would
(A) Affect the safety of operation of
the intermodal equipment, or
(B) Result in its mechanical
breakdown while transported on public
roads
(v) The signature of the driver who
prepared the report.
(3) Corrective action. (i) Prior to
allowing or permitting a motor carrier to
transport a piece of intermodal
equipment for which a motor carrier or
driver has submitted a report about
damage, defects or deficiencies, each
intermodal equipment provider or its
agent must repair the reported damage,
defects, or deficiencies that are likely to
affect the safety of operation of the
vehicle.
(ii) Each intermodal equipment
provider or its agent must certify on the
original driver's report which lists any
damage, defects, or deficiencies of the
intermodal equipment that the reported
damage, defects, or deficiencies have
been repaired, or that repair is
unnecessary, before the vehicle is
operated again.
(4) Retention period for reports. Each
intermodal equipment provider must
maintain all documentation required by
this section, including the original
driver report, the certification of repairs
on all intermodal equipment, for a
period of three months from the date
that a motor carrier or its driver submits
the report to the intermodal equipment
provider or its agent.
5. Revise § 396.12(b)(4) to read as
follows:
§ 396.12 Procedures for intermodal
equipment providers to accept reports
required by § 390.42 (b) of this chapter.
* * * * *
(b) * * *
(4) All damage, defects, or
deficiencies of the intermodal
equipment must be reported to the
equipment provider by the motor carrier
or its driver. If no defect or deficiency
in the intermodal equipment is
discovered by or reported to the driver,
no written report is required.
* * * * *
Issued on: June 5, 2012.
Anne S. Ferro,
Administrator, FMCSA.
[FR Doc. 2012-14215 Filed 6-11-12; 8:45 am]
BILLING CODE 4910-EX-P
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