Inspection, Repair, and Maintenance; Driver-Vehicle Inspection Report for Intermodal Equipment, 34846-34853 [2012-14215]

Download as PDF 34846 Federal Register / Vol. 77, No. 113 / Tuesday, June 12, 2012 / Rules and Regulations (15) The NOX ozone season variability limit for New York is 2,177 tons. * * * * * (17) The NOX ozone season variability limit for Ohio is 8,193 tons. (18) The NOX ozone season variability limit for Oklahoma is 4,766 tons. * * * * * (22) The NOX ozone season variability limit for Texas is 13,768 tons. * * * * * (b) * * * (2) The SO2 variability limit for Indiana is 29,961 tons. * * * * * (9) The SO2 variability limit for New York is 4,960 tons. * * * * * (11) The SO2 variability limit for Ohio is 25,603 tons. * * * * * Subpart DDDDD—[Amended] Subpart CCCCC—[Amended] 5. Section 97.710 is amended by: a. Revising paragraphs (a)(2)(iv) and (a)(2)(v); ■ b. Revising paragraphs (a)(3), (a)(5), and (a)(6); and ■ c. Revising paragraphs (b)(2), (b)(3), (b)(5) and (b)(6). The revisions read as follows: ■ ■ 4. Section 97.610 is amended by revising: ■ a. Paragraph (a)(2); ■ b. Paragraphs (a)(7)(ii) and (a)(7)(v); ■ c. Paragraphs (a)(9) and (a)(11); and ■ d. Paragraphs (b)(2), (b)(9), and (b)(11). The revisions read as follows: ■ wreier-aviles on DSK5TPTVN1PROD with RULES § 97.610 State SO2 Group 1 trading budgets, new unit set-asides, Indian country new unit set-aside, and variability limits. § 97.710 State SO2 Group 2 trading budgets, new unit set-asides, Indian country new unit set-aside, and variability limits. (a) * * * (a) * * * (2) * * * (2) Indiana. (i) The SO2 trading budget (iv) The SO2 trading budget for 2014 for 2012 and 2013 is 290,762 tons. and thereafter is 135,565 tons. (ii) The SO2 new unit set-aside for (v) The SO2 new unit set-aside for 2012 and 2013 is 8,723 tons. 2014 and thereafter is 2,711 tons. (iii) [Reserved] * * * * * (iv) The SO2 trading budget for 2014 (3) Kansas. (i) The SO2 trading budget and thereafter is 166,449 tons. for 2012 and 2013 is 41,980 tons. (v) The SO2 new unit set-aside for (ii) The SO2 new unit set-aside for 2014 and thereafter is 4,993 tons. 2012 and 2013 is 798 tons. * * * * * (iii) The SO2 Indian country new unit (7) * * * set-aside for 2012 and 2013 is 42 tons. (ii) The SO2 new unit set-aside for (iv) The SO2 trading budget for 2014 2012 is 4,149 tons and for 2013 is 6,224 and thereafter is 41,980 tons. tons. (v) The SO2 new unit set-aside for * * * * * 2014 and thereafter is 798 tons. (v) The SO2 new unit set-aside for (vi) The SO2 Indian country new unit 2014 and thereafter is 4,978 tons. set-aside for 2014 and thereafter is 42 tons. * * * * * (9) New York. (i) The SO2 trading * * * * * budget for 2012 and 2013 is 36,296 tons. (5) Nebraska. (i) The SO2 trading (ii) The SO2 new unit set-aside for budget for 2012 and 2013 is 68,162 tons. 2012 and 2013 is 690 tons. (ii) The SO2 new unit set-aside for (iii) The SO2 Indian country new unit 2012 and 2013 is 2,658 tons. set-aside for 2012 and 2013 is 36 tons. (iii) The SO2 Indian country new unit (iv) The SO2 trading budget for 2014 set-aside for 2012 and 2013 is 68 tons. and thereafter is 27,556 tons. (iv) The SO2 trading budget for 2014 (v) The SO2 new unit set-aside for and thereafter is 68,162 tons. 2014 and thereafter is 523 tons. (v) The SO2 new unit set-aside for (vi) The SO2 Indian country new unit 2014 and thereafter is 2,658 tons. set-aside for 2014 and thereafter is 28 (vi) The SO2 Indian country new unit tons. set-aside for 2014 and thereafter is 68 * * * * * tons. (11) Ohio. (i) The SO2 trading budget (6) South Carolina. (i) The SO2 trading for 2012 and 2013 is 315,393 tons. budget for 2012 and 2013 is 96,633 tons. (ii) The SO2 new unit set-aside for (ii) The SO2 new unit set-aside for 2012 and 2013 is 6,308 tons. 2012 and 2013 is 1,836 tons. (iii) [Reserved] (iii) The SO2 Indian country new unit (iv) The SO2 trading budget for 2014 set-aside for 2012 and 2013 is 97 tons. and thereafter is 142,240 tons. (iv) The SO2 trading budget for 2014 (v) The SO2 new unit set-aside for and thereafter is 96,633 tons. 2014 and thereafter is 2,845 tons. (v) The SO2 new unit set-aside for * * * * * 2014 and thereafter is 1,836 tons. VerDate Mar<15>2010 14:44 Jun 11, 2012 Jkt 226001 PO 00000 Frm 00066 Fmt 4700 Sfmt 4700 (vi) The SO2 Indian country new unit set-aside for 2014 and thereafter is 97 tons. * * * * * (b) * * * (2) The SO2 variability limit for Georgia is 24,402 tons. (3) The SO2 variability limit for Kansas is 7,556 tons. * * * * * (5) The SO2 variability limit for Nebraska is 12,269 tons. (6) The SO2 variability limit for South Carolina is 17,394 tons. * * * * * [FR Doc. 2012–14251 Filed 6–11–12; 8:45 am] BILLING CODE 6560–50–P 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 Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation. ACTION: Final rule. AGENCY: 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. SUMMARY: E:\FR\FM\12JNR1.SGM 12JNR1 Federal Register / Vol. 77, No. 113 / Tuesday, June 12, 2012 / Rules and Regulations 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: FOR FURTHER INFORMATION CONTACT: 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. wreier-aviles on DSK5TPTVN1PROD with RULES 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 VerDate Mar<15>2010 14:44 Jun 11, 2012 Jkt 226001 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 PO 00000 Frm 00067 Fmt 4700 Sfmt 4700 34847 ‘‘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. E:\FR\FM\12JNR1.SGM 12JNR1 34848 Federal Register / Vol. 77, No. 113 / Tuesday, June 12, 2012 / Rules and Regulations Additionally, FMCSA adopted inspection requirements for motor carriers and drivers operating IME. V. Background wreier-aviles on DSK5TPTVN1PROD with RULES 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 nonIME 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). 1 The driver’s responsibility to report vehicle defects has always been part of the Federal safety regulations for CMVs. Part 6, Rule 6.6, of the Motor Carrier Safety Regulations issued by the Interstate Commerce Commission (ICC) in 1939 called for every driver to submit a written report at the end of his day’s work or tour of duty to inform his employer of any vehicle defect or deficiency he discovered that would likely affect the safety of operation of that vehicle (4 FR 2294, 2305, June 7, 1939). The ICC recommended, but did not require, that motor carriers use a Driver’s Trip Report. The report included the driver’s name, vehicle number, date, a list of 20 items for inspection, and a space for the driver and mechanic to note defects. VerDate Mar<15>2010 14:44 Jun 11, 2012 Jkt 226001 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: 1. 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. 2. 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. 3. Data transmission, processing, and storage requirements for no-defect DVIRs could add significant unnecessary costs to intermodal operations without providing offsetting benefits. 4. 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: 1. FMCSA sought comment on the Petitioners’ and FMCSA’s estimates of the costs and time burden associated PO 00000 Frm 00068 Fmt 4700 Sfmt 4700 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. 2. 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. 3. 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 E:\FR\FM\12JNR1.SGM 12JNR1 Federal Register / Vol. 77, No. 113 / Tuesday, June 12, 2012 / Rules and Regulations 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. wreier-aviles on DSK5TPTVN1PROD with RULES 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. VerDate Mar<15>2010 14:44 Jun 11, 2012 Jkt 226001 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 PO 00000 Frm 00069 Fmt 4700 Sfmt 4700 34849 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 E:\FR\FM\12JNR1.SGM 12JNR1 34850 Federal Register / Vol. 77, No. 113 / Tuesday, June 12, 2012 / Rules and Regulations wreier-aviles on DSK5TPTVN1PROD with RULES 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 VerDate Mar<15>2010 14:44 Jun 11, 2012 Jkt 226001 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 PO 00000 Frm 00070 Fmt 4700 Sfmt 4700 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. E:\FR\FM\12JNR1.SGM 12JNR1 Federal Register / Vol. 77, No. 113 / Tuesday, June 12, 2012 / Rules and Regulations 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. wreier-aviles on DSK5TPTVN1PROD with RULES 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 VerDate Mar<15>2010 14:44 Jun 11, 2012 Jkt 226001 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) PO 00000 Frm 00071 Fmt 4700 Sfmt 4700 34851 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. E:\FR\FM\12JNR1.SGM 12JNR1 34852 Federal Register / Vol. 77, No. 113 / Tuesday, June 12, 2012 / Rules and Regulations 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: ■ wreier-aviles on DSK5TPTVN1PROD with RULES § 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: (i) Service brakes including trailer brake connections; (ii) Parking brake; (iii) Steering mechanism; (iv) Lighting devices and reflectors; (v) Tires; (vi) Horn; (vii) Windshield wipers; (viii) Rear vision mirrors; (ix) Coupling devices; (x) Wheels and rims; (xi) 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 VerDate Mar<15>2010 14:44 Jun 11, 2012 Jkt 226001 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: (i) Brakes; (ii) Lighting devices, lamps, markers, and conspicuity marking material; (iii) Wheels, rims, lugs, tires; (iv) Air line connections, hoses, and couplers; (v) King pin upper coupling device; (vi) Rails or support frames; (vii) Tie down bolsters; (viii) Locking pins, clevises, clamps, or hooks; (ix) 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 PO 00000 Frm 00072 Fmt 4700 Sfmt 4700 deficiencies were discovered by, or reported to, the driver. (ii) Motor carrier’s USDOT number; intermodal equipment provider’s USDOT number, and a unique identifying number for the item of intermodal equipment. (iii) Date and time the report was submitted. (iv) 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. * * * * * E:\FR\FM\12JNR1.SGM 12JNR1 Federal Register / Vol. 77, No. 113 / Tuesday, June 12, 2012 / Rules and Regulations Issued on: June 5, 2012. Anne S. Ferro, Administrator, FMCSA. FOR FURTHER INFORMATION CONTACT: [FR Doc. 2012–14215 Filed 6–11–12; 8:45 am] BILLING CODE 4910–EX–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 111213751–2102–02] RIN 0648–XC064 Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod for American Fisheries Act Catcher/ Processors Using Trawl Gear in the Bering Sea and Aleutian Islands Management Area National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; closure. AGENCY: NMFS is prohibiting directed fishing for Pacific cod by American Fisheries Act (AFA) trawl catcher/ processors in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to prevent exceeding the 2012 Pacific cod total allowable catch specified for AFA trawl catcher/processors in the BSAI. DATES: Effective 1200 hrs, Alaska local time (A.l.t.), June 10, 2012, through 2400 hrs, A.l.t., December 31, 2012. wreier-aviles on DSK5TPTVN1PROD with RULES SUMMARY: VerDate Mar<15>2010 14:44 Jun 11, 2012 Jkt 226001 Obren Davis, 907–586–7228. SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. The 2012 Pacific cod total allowable catch (TAC) allocated to AFA trawl catcher/processors in the BSAI is 5,361 metric tons (mt) as established by the final 2012 and 2013 harvest specifications for groundfish in the BSAI (77 FR 10669, February 23, 2012). In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2012 Pacific cod TAC allocated to AFA trawl catcher/ processors in the BSAI will be taken as incidental catch in the directed fishing for other species. Therefore, the Regional Administrator is establishing a directed fishing allowance of 0 mt and in accordance with § 679.20(d)(1)(iii), finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by AFA trawl catcher/processors in the BSAI. After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip. PO 00000 Frm 00073 Fmt 4700 Sfmt 9990 34853 Classification This action responds to the best available information recently obtained from the fishery. The Acting Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for Pacific cod by AFA trawl catcher/ processors in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of June 6, 2012. The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment. This action is required by § 679.20 and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 1801 et seq. Dated: June 7, 2012. Carrie Selberg, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 2012–14258 Filed 6–7–12; 4:15 pm] BILLING CODE 3510–22–P E:\FR\FM\12JNR1.SGM 12JNR1

Agencies

[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]


=======================================================================
-----------------------------------------------------------------------

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--driver-vehicle 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.

[[Page 34847]]


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 Sec.  
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.

[[Page 34848]]

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 Sec.  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 Sec.  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 ``no-
defect 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 Sec.  390.42(b) and Sec.  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 Sec.  396.11(b).
---------------------------------------------------------------------------

    \1\ The driver's responsibility to report vehicle defects has 
always been part of the Federal safety regulations for CMVs. Part 6, 
Rule 6.6, of the Motor Carrier Safety Regulations issued by the 
Interstate Commerce Commission (ICC) in 1939 called for every driver 
to submit a written report at the end of his day's work or tour of 
duty to inform his employer of any vehicle defect or deficiency he 
discovered that would likely affect the safety of operation of that 
vehicle (4 FR 2294, 2305, June 7, 1939). The ICC recommended, but 
did not require, that motor carriers use a Driver's Trip Report. The 
report included the driver's name, vehicle number, date, a list of 
20 items for inspection, and a space for the driver and mechanic to 
note defects.
---------------------------------------------------------------------------

    On October 27, 2009, OCEMA petitioned FMCSA for a partial extension 
of the compliance date for Sec. Sec.  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 Sec.  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 Sec.  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:
    1. 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.
    2. 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.
    3. Data transmission, processing, and storage requirements for no-
defect DVIRs could add significant unnecessary costs to intermodal 
operations without providing offsetting benefits.
    4. 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 Sec. Sec.  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:
    1. 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.
    2. 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.
    3. 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 no-defect 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 Sec. Sec.  
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

[[Page 34849]]

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 no-defect 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 no-defect 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

[[Page 34850]]

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 Sec.  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. 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 Sec.  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 Sec. Sec.  396.11(b) and 396.12(b)(4).
    This rule does not change the IEPs' obligation under Sec.  
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 Sec.  390.40(d) to provide IME intended for 
interchange that is in safe and proper operating condition.
    This rule includes editorial changes to Sec.  396.11(a) and (b). 
The content from Sec.  396.11(a), (b), and (d) has been re-organized 
for clarity and includes a revised paragraph Sec.  396.11(a). Paragraph 
(b) has been rewritten, for clarity, into four subparagraphs: Sec.  
396.11(b)(1), (2), (3), and (4). Also for clarity and to conform to 
contemporary regulatory citation style, the individual items listed in 
Sec.  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 x .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 x 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 x $33 per hour/3600 seconds per hour = $1.42). 
The total savings annually amount to $54 (38 million units of IME x 
$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, Sec.  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.

[[Page 34851]]

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 x 95 percent no defect rate x 150 seconds per DVIR / 3600 
seconds per hour) and 0.053 million hours for IC6 (40 million IEP DVIR 
x 95 percent no defect rate x 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

0
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.

[[Page 34852]]

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.


0
2. Revise Sec.  390.42(b) to read as follows:


Sec.  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 Sec.  396.11(a)(2) of this chapter.

PART 396--INSPECTION, REPAIR, AND MAINTENANCE

0
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.


0
4. Revise Sec.  396.11(a) and (b) to read as follows:


Sec.  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:
    (i) Service brakes including trailer brake connections;
    (ii) Parking brake;
    (iii) Steering mechanism;
    (iv) Lighting devices and reflectors;
    (v) Tires;
    (vi) Horn;
    (vii) Windshield wipers;
    (viii) Rear vision mirrors;
    (ix) Coupling devices;
    (x) Wheels and rims;
    (xi) 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:
    (i) Brakes;
    (ii) Lighting devices, lamps, markers, and conspicuity marking 
material;
    (iii) Wheels, rims, lugs, tires;
    (iv) Air line connections, hoses, and couplers;
    (v) King pin upper coupling device;
    (vi) Rails or support frames;
    (vii) Tie down bolsters;
    (viii) Locking pins, clevises, clamps, or hooks;
    (ix) 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.
    (ii) Motor carrier's USDOT number; intermodal equipment provider's 
USDOT number, and a unique identifying number for the item of 
intermodal equipment.
    (iii) Date and time the report was submitted.
    (iv) 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.

0
5. Revise Sec.  396.12(b)(4) to read as follows:


Sec.  396.12  Procedures for intermodal equipment providers to accept 
reports required by Sec.  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.
* * * * *


[[Page 34853]]


    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