[Federal Register Volume 76, Number 109 (Tuesday, June 7, 2011)]
[Proposed Rules]
[Pages 32906-32911]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-13935]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 390 and 396

[Docket No. FMCSA-2011-0046]
RIN 2126-AB34


Inspection, Repair, and Maintenance; Driver-Vehicle Inspection 
Report for Intermodal Equipment

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department 
of Transportation.

ACTION: Notice of proposed rulemaking (NPRM); request for comments.

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SUMMARY: FMCSA proposes to revise a requirement of the Federal Motor 
Carrier Safety Regulations that applies to intermodal equipment 
providers and motor carriers operating intermodal equipment. The Agency 
proposes to delete the requirement for drivers operating intermodal 
equipment to submit and intermodal equipment providers to retain 
driver-vehicle inspection reports when the driver has neither found nor 
been made aware of any defects on the intermodal equipment used. This 
NPRM responds to a joint petition for rulemaking from the Ocean Carrier 
Equipment Management Association and the Institute of International 
Container Lessors.

DATES: Send your comments on or before August 8, 2011.

ADDRESSES: You may submit comments identified by Docket ID Number 
FMCSA-2011-0046 by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Mail: Docket Management Facility: U.S. Department of 
Transportation, 1200 New Jersey Avenue, SE., West Building, Ground 
Floor, Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor, 
Room W12-140, 1200 New Jersey Avenue, SE., between 9 a.m. and 5 p.m. 
ET, Monday through Friday, except Federal holidays.
     Fax: 202-493-2251.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.

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. Public Participation and Request for Comments

    FMCSA encourages you to participate in this rulemaking by 
submitting comments and related materials. All comments received will 
be posted without change to http://www.regulations.gov and will include 
any personal information you provide.

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (FMCSA-2011-0046), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online or by fax, mail, or hand delivery, but please use only one of 
these means. FMCSA recommends that you include your name and a mailing 
address, an e-mail address, or a phone number in the body of your 
document so that FMCSA can contact you if there are questions regarding 
your submission.
    To submit your comment online, go to http://www.regulations.gov and 
click on the ``Submit a Comment'' box, which will then become 
highlighted in blue. In the ``Select Document Type'' drop-down menu, 
select ``Proposed Rule,'' insert ``FMCSA-2011-0046'' in the ``Keyword'' 
box, and click ``Search.'' When the new screen appears, click on 
``Submit a Comment'' in the ``Actions'' column. If you submit your 
comments by mail or hand delivery, submit them in an unbound format, no 
larger than 8\1/2\ by 11 inches, suitable for copying and electronic 
filing. If you submit comments by mail and would like to know that they 
reached the facility, please enclose a stamped, self-addressed postcard 
or envelope.
    FMCSA will consider all comments and material received during the

[[Page 32907]]

comment period and may change this proposed rule based on your 
comments.

B. Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble, 
available in the docket, go to http://www.regulations.gov and click on 
the ``Read Comments'' box in the upper right-hand side of the screen. 
Then, in the ``Keyword'' box insert ``FMCSA-2011-0046'' and click 
``Search.'' Next, click the ``Open Docket Folder'' in the ``Actions'' 
column. Finally, in the ``Title'' column, click on the document you 
would like to review. If you do not have access to the Internet, you 
may view the docket online by visiting the Docket Management Facility 
in Room W12-140 on the ground floor of the Department of Transportation 
West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, 
between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal 
holidays.

C. Privacy Act

    Anyone is able to search the electronic form for all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review the 
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.

II. Abbreviations

ATA American Trucking Associations
CMV commercial motor vehicle
DOT U.S. Department of Transportation
DVIR driver-vehicle inspection report
FHWA Federal Highway Administration
FMCSRs Federal Motor Carrier Safety Regulations
IANA Intermodal Association of North America
IEP intermodal equipment provider
IICL Institute of International Container Lessors
IME intermodal equipment
NPRM Notice of Proposed Rulemaking
OCEMA Ocean Carrier Equipment Management Association
SAFETEA-LU Safe, Accountable, Flexible, Efficient Transportation 
Equity Act; A Legacy for Users
Secretary Secretary of Transportation

III. Legal Basis for the Rulemaking

    Although cargo containers move by ship, and often also by rail, 
their journeys generally begin and end on chassis trailers for 
transportation by highway to their final destinations. These trailers, 
generally referred to as intermodal equipment (IME), fall under FMCSA's 
safety jurisdiction. At issue in this NPRM is the requirement that 
drivers complete driver vehicle inspection reports (DVIRs) which note 
the existence or absence of defects or deficiencies in IME. FMCSA 
proposes to eliminate the requirement that drivers complete DVIRs when 
they have no defects or deficiencies to report.
    This NPRM 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 (1) qualifications and 
maximum hours of service of employees of, and safety of operation and 
equipment of, a (for-hire) motor carrier (49 U.S.C. 31502(b)(1)), and 
(2) qualifications and maximum hours of service of employees of, and 
standards of equipment of, a (not for-hire) 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 provisions.
    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 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.'' Section 31151(a)(3) of title 49, United States Code, 
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 copy 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 governmental 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, but providing that preemption 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 Intermodal 
Equipment Providers (IEPs) to register and file with FMCSA an 
Intermodal Equipment Provider 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. 
These regulations, for the first time, make IEPs subject to the Federal 
Motor Carrier Safety Regulations (FMCSRs), and call for shared safety 
responsibility among IEPs, motor carriers, and drivers. Additionally, 
FMCSA adopted inspection requirements for motor carriers and drivers 
operating IME.

IV. Background

    Section 4118 of SAFETEA-LU [Pub. L. 109-59, August 10, 2005, 119 
Stat. 1144, 1729] 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 IME 
is required to report to the IEP or the providers' designated agent any 
actual damage or defect in the IME of which the driver or motor carrier 
is aware at the time the IME is returned to the IEP or the provider's 
designated agent'' (49 U.S.C. 31151(a)(3)(L)).

[[Page 32908]]

    To satisfy this statutory requirement, FMCSA proposed a rule that 
for the first time would (1) make IEPs subject to the FMCSRs and (2) 
call for a shared safety responsibility among IEPs, motor carriers, and 
drivers (71 FR 76796, December 21, 2006). That proposed rule included a 
new Sec.  390.44 (changed to Sec.  390.42 in the final rule), which 
prescribed the responsibilities of drivers and motor carriers when 
operating IME. Proposed Sec.  390.44(b) required the driver or motor 
carrier to report any damage or deficiencies in the equipment at the 
time the equipment is returned to the IEP. These included, at a 
minimum, the items listed in proposed Sec.  396.11(a)(2), which 
required that the IEP have a process in place to receive reports of 
defects or deficiencies in the equipment and which listed the specific 
components that must be included on the DVIR. Finally, FMCSA proposed a 
new Sec.  396.12 that required IEPs to establish a procedure to accept 
reports of defects or deficiencies from motor carriers or drivers, 
repair the defects that are likely to affect safety, and document the 
procedure. 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\ FMCSA did not receive 
any comments opposing its decision not to make changes to Sec.  
396.11(b).
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    \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, motor carriers to 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.
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    In the final rule, published December 17, 2008 (73 FR 76794), the 
Agency added language in the new Sec.  390.42(b) (which had been Sec.  
390.44 in the NPRM) 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), which has, for many years, 
required drivers to prepare no-defect DVIRs.
    On October 27, 2009, Ocean Carrier Equipment Management Association 
(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 December 29, 2009, the compliance 
date for these provisions was extended from December 17, 2009, to June 
30, 2010 (74 FR 68703).

V. OCEMA's and IICL's Petition

    On March 31, 2010, OCEMA and Institute of International Container 
Lessors (IICL) jointly petitioned FMCSA to rescind the part of Sec.  
390.42(b) that concerns a driver's responsibility to file no-defect 
DVIRs with IEPs on IME they are returning.\2\ The regulatory text at 
issue states:
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    \2\ Although the petition did not specifically address the 
analogous requirement in Sec.  396.12(b)(4), this NPRM addresses the 
issue of ``no-defect DVIRs'' throughout Parts 390 and 396.

    (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. If no damage, defects, or 
deficiencies are discovered by the driver, the report shall so 
indicate. The report must include, at a minimum, the items in Sec.  
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396.11(a)(2) of this chapter (emphasis added).

OCEMA and IICL requested that FMCSA delete the sentence in italics.

    The petitioners presented four arguments against the DVIR element 
of the current rule:
    (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. The regulatory imposition of no-defect DVIRs is not required 
by law and likely is inconsistent with Congressional intent.
    (2) There is a significant risk that the volume of no-defect DVIRs, 
if required, could overwhelm the 4 percent of DVIRs that contain damage 
or defects. Using a sampling of industry data from 2007-2009, OCEMA 
estimated that 16.9 percent of chassis operating in the United States 
are in-gated (return to the IME through the in-gate process) every day. 
Assuming a fleet of 650,000 active chassis per day, there are 109,850 
in-gates per day and 40,095,250 in-gates per year. The petitioners 
estimated that approximately 96 percent of DVIRs collected do not 
contain discrepancies, which results in 38,491,440 no-defect DVIRs per 
year. The risk is that 1,603,810 DVIRs, or 4 percent of the total, that 
contain defect and damage information will be lost, obscured, or 
delayed by the sheer magnitude of the remaining 96 percent of no-defect 
DVIRs.
    (3) The petitioners added that ``Data transmission, processing, and 
storage requirements for no-defect DVIRs add significant unnecessary 
costs to intermodal operations with no apparent offsetting benefits.'' 
They stated:

    Each DVIR processed will involve utilizing the GIER [Global 
Intermodal Equipment Registry] system to retrieve the USDOT number 
at a transaction cost of $.02. For an estimated 38,491,440 no-defect 
DVIRs per year, IEPs would incur over $769,828.00 in costs to 
retrieve just that information.

    (4) The petitioners claimed that submission of no-defect DVIRs 
contributes to driver productivity losses in the form of congestion and 
delay at intermodal facilities. The petitioners assumed that truck 
drivers take 3 minutes to fill out a report, which results in 1,924,572 
driver hours lost per year. They added:

    IEPs will incur costs associated with storage of electronic or 
paper copies and the reproduction of same for FMCSA personnel. 
Assuming truck drivers take 3 minutes per report, this would mean 
almost 2 million driver-hours spent on a largely meaningless 
exercise.

    FMCSA granted the petition on July 30, 2010. The Agency Order 
granting the petition has been placed in the docket.
    Because FMCSA did not have sufficient time to address the petition 
through a notice-and-comment rulemaking prior to the compliance date of 
June 30, 2010, it 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).

VI. Agency Analysis of the Petition and Discussion of Proposed Rule

    The Agency agrees with the petitioners that the existing 
requirement for motor carriers to prepare no-defect DVIRs goes beyond 
the specific requirements of 49 U.S.C. 31151(a)(3)(L). In its 2008 
final rule, FMCSA, for the first time, subjected IEPs to the FMCSRs, 
and called for shared safety responsibility among IEPs, motor carriers, 
and drivers regarding processes for assessing the condition of IME and 
documenting deficiencies and repairs. Section 390.40(d) requires an IEP 
to ``provide intermodal equipment that is in safe and proper operating 
condition.'' At facilities at which the IEP makes IME available for 
interchange, Sec.  390.40(i) requires that the IEP must (1)

[[Page 32909]]

develop and implement procedures to repair any equipment damage, 
defects, or deficiencies identified as part of a pre-trip inspection, 
or (2) replace the equipment. Existing regulations provide a system of 
checks and balances to ensure that all IME offered for interchange is 
in safe and proper operating condition--regardless of whether the motor 
carrier prepared a DVIR for IME that had no damage, defects, or 
deficiencies at the time it was returned.
    Accordingly, FMCSA is proposing to eliminate the language of 
Sec. Sec.  390.42(b) and 396.12(b)(4) that expressly requires motor 
carriers to prepare and transmit a no-defect DVIR to the IEP upon 
returning the IME. For consistency, the Agency is also proposing minor 
amendments to Sec.  396.11(b) to clarify that no-defect DVIRs do not 
need to be prepared for items of IME.
    This proposed rule does not change a driver's obligation to assess 
the condition of IME at the end of a workday to determine whether the 
IME has defects or deficiencies that could affect the safety of its 
operation. Although FMCSA proposes to remove the requirement to 
complete a DVIR if the driver has found 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. This proposed change also does not affect 
requirements governing the inspection and completion of DVIRs for power 
units.
    Although FMCSA is proposing to make the change requested by the 
petitioners, it still seeks comments from all interested parties on 
certain aspects of the DVIR process. First, there are differences 
between the Petitioners' and FMCSA's previously published cost and time 
burden estimates associated with no-defect DVIRs. The Information 
Collection Request (ICR) statement referenced in the 2008 final rule 
\3\ estimated the time spent for a driver to prepare a written 
inspection report and provide a copy to his/her employing motor carrier 
as approximately 2 minutes 30 seconds on average. Additionally, 5 
seconds were estimated for a driver to review and acknowledge the last 
vehicle inspection report that had noted no vehicle defects. This 
results in a total burden of 2 minutes 35 seconds when no defect was 
found, less than the 3 minute burden presented in the petition. Neither 
the 2008 final rule nor the petition evaluated the time burden of 
handling DVIR paperwork by motor carriers and IEP staff.
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    \3\ See the currently approved supporting statement for 
Inspection, Repair and Maintenance Information Collection Request 
(ICR) (OMB control number 2126-0003).
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    Second, the petitioners also stated that a $.02 transaction cost is 
incurred by the IEP to retrieve the USDOT number through an electronic 
database, which is necessary for IME identification and completion of 
no-defect DVIR processing. However, the Agency published a technical 
amendment on December 29, 2009 (74 FR 68703), which introduced a fifth 
option for IME identification: use of an electronic database system. 
The Agency required that several conditions be satisfied, specifically, 
that the system not require a user-fee:

    2. The identification system shall be publicly-available, and 
offer read-only access for inquiries on individual items of IME 
without requiring advance user registration, a password, or a usage-
fee. The identification system must be accessible through: real-time 
internet access via public web portal; and toll-free telephonic 
access (emphasis added)

    Because the Agency cannot validate the cost and time burden 
associated with no-defect DVIRs, the Agency is requesting that 
commenters to this rulemaking provide their analysis of the DVIR 
process. FMCSA requests comments from all interested parties on these 
questions:
1. DVIR Handling
    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 are 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.

Proposed Changes

    This proposed rule would revise Sec. Sec.  390.42(b), 396.11(b), 
and 396.12(b)(4) to delete the sentence, ``If no damage, defects, or 
deficiencies are discovered by the driver, the report shall so 
indicate.'' This proposed rule also makes an editorial change. The 
language that was originally under Sec.  396.11(b) has been split, for 
clarity, into three subparagraphs: Sec.  396.11(b)(1), (2), and (3), 
respectively. New text, as described, is contained in Sec.  
396.11(b)(2).

VII. Regulatory Analyses

Executive Orders 13563 and 12866 (Regulatory Planning and Review) and 
DOT Regulatory Policies and Procedures

    FMCSA has determined that this action does not meet the criteria 
for a ``significant regulatory action.'' either as specified in 
Executive Order 12866 as supplemented by Executive Order 13563 issued 
by the President on January 18, 2011 (76 FR 3821) or within the meaning 
of the Department of Transportation regulatory policies and procedures 
(44 FR 11034, February 26, 1979). If this rule becomes final, the 
industry would not be expected to experience new costs.
    The proposed rule would remove the requirement for drivers to 
submit DVIRs when they do not have IME defects or deficiencies to 
report. Because the requirement for identifying IME only came into 
effect in December 2010, and because information management systems and 
crash report forms are still in the process of being revised to 
identify IEPs, the Agency does not have current data on crashes 
involving IME or subject to the December 2008 rule. Because IEPs 
continue to be required to provide IME intended for interchange to 
motor carriers that is in safe and proper operating condition, the 
Agency does not expect implementation of this rule to result in any 
change in the number of truck crashes.
    Lacking independent data, FMCSA also is unable to estimate the 
precise aggregate benefits of the proposed rule.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
Federal agencies to determine whether proposed rules could have a 
significant economic impact on a substantial number of small entities. 
This proposed rule would grant regulatory relief to IEPs, which consist 
of 108 entities, including 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

[[Page 32910]]

designation as defined by the Small Business Administration (73 FR 
76816). Consequently, the Agency certifies that this proposed 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 $140.8 
million (which is the value of $100 million in 2009 after adjusting for 
inflation) or more in any 1 year.

Executive Order 12988 (Civil Justice Reform)

    This proposed action meets applicable standards in sections 3(a) 
and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    FMCSA analyzed this action under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. We 
determined that this rulemaking does not pose an environmental risk to 
health or safety that may disproportionately affect children.

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 them. FMCSA analyzed this 
proposed action in accordance with Executive Order 13132. The proposal 
would not have a substantial direct effect on States, nor would it 
limit the policymaking discretion of States. Nothing in this rulemaking 
would 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 
that FMCSA consider the impact of paperwork and other information 
collection burdens imposed on the public. We determined that no new 
information collection requirements are associated with this proposed 
rule. The Agency believes that, if promulgated, this rulemaking would 
result in a reduction in the information collection burden associated 
with completing the driver-vehicle inspection report, but cannot 
quantify the reduction at this time.

National Environmental Policy Act

    FMCSA analyzed this NPRM 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 proposed action does not have any 
effect on the quality of the environment. Therefore, this NPRM 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.
    We also analyzed this proposal 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 also 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 from any of the options 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. We 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 proposes to amend 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. 508, 13301, 13902, 31132, 31133, 31136, 
31144, 31151, 31502, 31504; sec. 204, Pub. L. 104-88, 109 Stat. 803, 
941 (49 U.S.C. 701 note); sec. 114, Pub. L. 103-311, 108 Stat. 1673, 
1677; sec. 212, 217, 229, Pub. L. 106-159, 113 Stat. 1748, 1766, 
1767, 1773; sec. 4136, Pub. L. 109-59, 119 Stat. 1144, 1745 and 49 
CFR 1.73.

    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

    3. The authority citation for part 396 continues to read as 
follows:


[[Page 32911]]


    Authority:  49 U.S.C. 31133, 31136, 31151, and 31502; and 49 CFR 
1.73.

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


Sec.  396.11  Driver vehicle inspection report(s).

* * * * *
    (b) Report content. (1) The report shall identify the vehicle and 
list any defect or deficiency discovered by or reported to the driver 
that would affect the safety of operation of the vehicle or result in 
its mechanical breakdown.
    (2) For vehicles other than intermodal equipment tendered by 
intermodal equipment providers, if no defect or deficiency is 
discovered by or reported to the driver, the written report shall so 
indicate.
    (3) For intermodal equipment tendered by intermodal equipment 
providers, if no defects or deficiencies are discovered by or reported 
to the driver, no written report is required.
    (4) In all instances where a written driver vehicle inspection 
report is required, the driver shall sign the report. On two-driver 
operations, only one driver needs to sign, 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.
* * * * *
    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.
* * * * *

    Issued on: May 27, 2011.
Anne S. Ferro,
Administrator, FMCSA.
[FR Doc. 2011-13935 Filed 6-6-11; 8:45 am]
BILLING CODE 4910-EX-P