Transportation of Household Goods in Interstate Commerce; Consumer Protection Regulations: Household Goods Motor Carrier Record Retention Requirements |
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Federal Motor Carrier Safety Administration
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Anne S. Ferro
July 16, 2012
[Federal Register Volume 77, Number 136 (Monday, July 16, 2012)]
[Rules and Regulations]
[Pages 41699-41704]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-17268]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 375
[Docket No. FMCSA-2011-0313]
RIN 2126-AB41
Transportation of Household Goods in Interstate Commerce;
Consumer Protection Regulations: Household Goods Motor Carrier Record
Retention Requirements
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Direct final rule; request for comments.
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SUMMARY: FMCSA amends the regulations governing the period during which
household goods (HHG) motor carriers must retain documentation of an
individual shipper's waiver of receipt of printed copies of consumer
protection materials. This change harmonizes the retention period with
other document retention requirements applicable to HHG motor carriers.
FMCSA also amends the regulations to clarify that a HHG motor carrier
is not required to retain waiver documentation from any individual
shippers for whom the carrier does not actually provide services. This
rule responds to a petition filed by the American Moving and Storage
Association (AMSA).
DATES: This final rule is effective November 13, 2012, unless an
adverse comment, or notice of intent to submit an adverse comment, is
either submitted to the above docket via http://www.regulations.gov on
or before August 15, 2012 or reaches the Docket Management Facility by
that date. If an adverse comment, or notice of intent to submit an
adverse comment, is received by August 15, 2012, we will withdraw this
direct final rule and publish a timely notice of withdrawal in the
Federal Register.
ADDRESSES: You may submit comments identified by docket number FMCSA-
2011-0313 using any one of the following methods:
(1) Federal eRulemaking Portal: http://www.regulations.gov.
(2) Fax: 202-493-2251.
(3) Mail: Docket Management Facility (M-30) West Building Ground
Floor Room W12-140, U.S. Department of Transportation, 1200 New Jersey
Avenue SE., Washington, DC 20590-0001.
(4) Hand Delivery: Same as mail address above, between 9 a.m. and 5
p.m., E.T., Monday through Friday,
[[Page 41700]]
except Federal holidays. The telephone number is 202-366-9329.
To avoid duplication, please use only one of these methods. See the
``Public Participation and Comments'' portion of the SUPPLEMENTARY
INFORMATION section below for instructions on submitting comments.
FOR FURTHER INFORMATION CONTACT: Mr. Brodie Mack, FMCSA Household Goods
Enforcement and Compliance Team Leader, (202) 385-2400.
SUPPLEMENTARY INFORMATION:
I. Public Participation and Comments
If you would like to participate in this rulemaking, you may submit
comments and related materials. All comments received will be posted,
without change, to http://www.regulations.gov and will include any
personal information you have provided.
A. Submitting Comments
If you submit a comment, please include the docket number for this
rulemaking (FMCSA-2011-0313), indicate the specific section of this
direct final rule 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. We recommend that you include your name and a
mailing address, an email address, or a phone number in the body of
your document so that we can contact you if we have questions regarding
your submission. As a reminder, FMCSA will only consider adverse
comments as defined in 49 CFR 389.39(b) and explained below.
To submit your comment online, go to http://www.regulations.gov,
click on the ``submit a comment'' box, which will then become
highlighted in blue. In the ``Document Type'' drop down menu select
``Final Rule'' and insert ``FMCSA-2011-0313'' in the ``Keyword'' box.
Click ``Search'' then click on the balloon shape 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 them by mail and would
like to know that they reached the facility, please enclose a stamped,
self-addressed postcard or envelope.
B. Viewing Comments and Documents
To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to http://www.regulations.gov,
click on the ``read comments'' box, which will then become highlighted
in blue. In the ``Keyword'' box insert ``FMCSA-2011-0313'' and click
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' column.
If you do not have access to the Internet, you may also 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., Monday through Friday, except Federal holidays.
C. Privacy Act
Anyone can search the electronic form of 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 a Privacy Act notice
regarding our public dockets in the January 17, 2008, issue of the
Federal Register (73 FR 3316).
II. Regulatory Information
FMCSA publishes this direct final rule under 49 CFR 389.39 because
the Agency determined that the rule is a routine and non-controversial
amendment to 49 CFR part 375. The rule reduces the record retention
period in 49 CFR 375.213(e)(3) from three years to one year to
harmonize it with the retention period required for other household
goods shipping documents. It also clarifies that a household goods
motor carrier is not required to retain waiver documentation from an
individual shipper for whom the carrier does not transport household
goods or provide related services. FMCSA does not expect any adverse
comments to this rule because it merely makes this recordkeeping
requirement consistent with others in 49 CFR part 375. If no adverse
comments, or notices of intent to submit an adverse comment, are
received by August 15, 2012, this rule will become effective as stated
in the DATES section. In that case, approximately 30 days before the
effective date, we will publish a document in the Federal Register
stating that no adverse comments were received and confirming that this
rule will become effective as scheduled. However, if we receive any
adverse comments or notices of intent to submit an adverse comment, we
will publish a document in the Federal Register announcing the
withdrawal of all or part of this direct final rule. If we decide to
proceed with a rulemaking following receipt of any adverse comments, we
will publish a separate notice of proposed rulemaking (NPRM) and
provide a new opportunity for comment.
A comment is considered ``adverse'' if the comment explains why
this rule or a part of this rule would be inappropriate, including a
challenge to its underlying premise or approach, or would be
ineffective or unacceptable without a change.
III. Legal Basis for the Rulemaking
The Secretary of Transportation's (Secretary) general jurisdiction
to establish regulations over transportation of property by motor
carrier is found at 49 U.S.C. 13501. Household goods motor carriers are
a subset of all property motor carriers and are required by 49 U.S.C.
13902 to register with FMCSA as HHG motor carriers. The Secretary's
authority to inspect, copy and set retention periods for HHG motor
carriers' records is found at 49 U.S.C. 14122. This rulemaking only
applies to HHG motor carriers that provide for-hire transportation in
interstate or foreign commerce.
This rulemaking is based on the statutory provisions cited above
and on the Household Goods Mover Oversight Enforcement and Reform Act
of 2005, Title IV, Subtitle B of the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU)
(Pub. L. 109-59). Section 4205 of SAFETEA-LU, codified at 49 U.S.C.
14104(b)(2), requires HHG motor carriers to distribute the following
two FMCSA consumer pamphlets to prospective shippers: ``Your Rights and
Responsibilities When You Move,'' and ``Ready to Move?--Tips for a
Successful Interstate Move.''
The Secretary has delegated these various authorities to the FMCSA
Administrator (49 CFR 1.73(a)).
IV. Background
On November 29, 2010, FMCSA published a final rule entitled
``Brokers of Household Goods Transportation by Motor Vehicle'' (73 FR
72987). That rule amended FMCSA's regulations to require HHG brokers to
comply with certain consumer protection requirements. As a part of that
rule, FMCSA also amended existing regulations to permit HHG motor
carriers to provide FMCSA's consumer protection publications by
Internet in place of paper copies (49 CFR 375.213(a) and (b)). In
accordance with that rule, if an individual shipper elects to waive
physical receipt of the consumer protection information and instead
chooses to access the information via hyperlink on the Internet, HHG
motor carriers must obtain a signed paper or electronic
[[Page 41701]]
receipt from the shipper documenting this waiver (49 CFR
375.213(e)(2)). Household goods motor carriers must keep this receipt
on file for three years (49 CFR 375.213(e)(3)).
On January 11, 2011, the American Moving and Storage Association
(AMSA) submitted a petition for rulemaking to amend 49 CFR 375.213(e).
AMSA requested that FMCSA reduce the retention period for the waiver
documentation from three years to one year to harmonize this
requirement with other one-year document retention requirements in 49
CFR part 375. AMSA also requested that FMCSA amend Sec. 375.213(e)(3)
to clarify that household goods motor carriers are only required to
retain receipts from those shippers for whom they actually provide
moving services.
A copy of AMSA's current petition is in Docket FMCSA-2011-0313, as
well as Docket FMCSA-2004-17008.
V. Discussion of the Rule
FMCSA amends 49 CFR 375.213(e)(3) by reducing the retention period
from three years to one year for signed receipts documenting an
individual shipper's waiver of physical receipt of the consumer
protection publications ``Your Rights and Responsibilities When You
Move,'' and ``Ready to Move?--Tips for a Successful Interstate Move.''
This change would harmonize this requirement with other requirements in
part 375 that require HHG motor carriers to retain shipping documents
for only one year. See, for example, 49 CFR 375.403(c) (binding
estimates); Sec. 375.405(d) (non-binding estimates); and Sec.
375.501(g) (orders for service). FMCSA does not believe that any valid
consumer protection purpose would be served by requiring HHG motor
carriers to retain the consumer protection waiver receipt documentation
two years longer than the other documentation about a shipper's move.
In any event, without the other documentation related to a shipper's
move, FMCSA would be limited in its ability to use the waiver for
enforcement purposes.
FMCSA also amends 49 CFR 375.213(e)(3) by clarifying that a HHG
motor carrier that obtains a signed waiver from a shipper is required
to comply with the retention requirements in Sec. 375.213(e)(3) only
if the carrier actually provides moving services to the shipper. FMCSA
estimates that shippers solicit approximately three estimates from
different household goods carriers before choosing one. The Agency does
not believe there are any significant consumer protection benefits
associated with requiring a HHG carrier to retain receipts for
prospective shippers that ultimately do not use its services. As a
result, Sec. 375.213(e)(3) no longer requires HHG carriers to retain
receipts from shippers who decide not to use that particular HHG motor
carrier.
VI. Regulatory Analyses
Executive Order (E.O.) (Regulatory Planning and Review), Executive
Order 13563 (Improving Regulation and Regulatory Review), and DOT
Regulatory Policies and Procedures
FMCSA has determined that this direct final rule is not a
``significant regulatory action'' within the meaning of Executive Order
(E.O.) 12866, as supplemented by E.O. 13563 (76 FR 3821, January 21,
2011), or within the meaning of DOT regulatory policies and procedures.
The estimated cost or benefit of the direct final rule is not expected
to exceed the $100 million annual threshold for economic significance;
therefore, any costs or benefits associated with the rule are expected
to be minimal. Moreover, the Agency does not expect the direct final
rule to generate substantial Congressional or public interest.
Therefore, this rule has not been formally reviewed by the Office of
Management and Budget. No expenditures are required of the affected
population because this rule reduces a regulatory burden.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121,
110 Stat. 857), FMCSA is not required to prepare a final regulatory
flexibility analysis under 5 U.S.C. 604(a) for this final rule because
the agency has not issued a notice of proposed rulemaking prior to this
action.
Unfunded Mandates Reform Act
FMCSA is not required to prepare an assessment under the Unfunded
Mandates Reform Act of 1995, 2 U.S.C. 1531, et seq., evaluating a
discretionary regulatory action because the Agency has not issued an
NPRM prior to this action.
E.O. 13132 (Federalism)
A rule has implications for Federalism under Section 1(a) of E.O.
13132 if it has ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.'' FMCSA has determined that this rule would not have
substantial direct effects on States, nor would it limit the
policymaking discretion of States. Nothing in this document preempts
any State law or regulation.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-
3520), a Federal agency must obtain approval from the Office of
Management and Budget (OMB) for each collection of information it
conducts, sponsors, or requires through regulations.
The FMCSA seeks approval of the collection of information
requirements in this direct final rule to generate, maintain, retain,
disclose, and provide information to, or for, the agency under 49 CFR
part 375. The information collected will assist individual household
goods shippers in their commercial dealings with interstate household
goods carriers, thereby providing a desirable consumer protection
service. The collection of information would be used by prospective
household goods shippers to make informed decisions about contracts and
services to be ordered, executed, and settled within the interstate
household goods carrier industry.
FMCSA estimates there are approximately 6,000 active household
goods carriers.\1\ This direct final rule reducing the record retention
time from 3 years to one year results in a smaller burden on the HHG
motor carrier industry. However, necessary adjustments were made to
baseline annual burden and cost estimates because the Agency previously
failed to account for the paperwork burden/reduction the November 29,
2010, final rule ``Brokers of Household Goods Transportation by Motor
Vehicle'' (73 FR 72987) would have on household goods carriers who
provide consumers electronic access to the mandated consumer protection
information. FMCSA has calculated a program adjustment decrease of
31,900 estimated annual burden hours [5,524,500 proposed estimated
annual burden hours--5,556,400 currently-approved estimated annual
burden hours = (31,900)] and a decrease of $5,328,000 in estimated
annual costs to respondents [$4,516,000 proposed annual cost to
respondents--$9,844,000 currently-approved annual cost to respondents =
-$5,328,000].\2\
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\1\ Three year average for 2008--2010. See http://www.fmcsa.dot.gov/documents/facts-research/CMV-Facts.pdf.
\2\ See http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201007-2126-002.
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The Agency has updated its baseline for burden estimates and costs
to respondents in regard to consumers
[[Page 41702]]
(shippers) requesting either printed or electronic copies of Federal
consumer protection information, specifically, Department of
Transportation publications FMCSA-ESA-03-005 entitled ``Ready to
Move?'' and FMCSA-ESA-03-006 ``Your Rights and Responsibilities When
You Move.'' The Agency estimates that forty percent of consumers will
request printed copies and the remaining sixty percent will request
electronic copies. HHG motor carriers may provide a hyperlink directed
to each of these documents from their Web sites, but are required to
obtain a receipt that indicates verification of the shipper's agreement
to access the Federal consumer protection information on the Internet.
Although an increase in burden hours is associated with carriers
providing hyperlinks, obtaining, and retaining receipts from shippers
who elect to access these publications electronically, there is a
substantial reduction in material costs from producing and storing
documents. In addition to these adjustments, the Agency identified and
corrected a calculation error regarding annual burden hours in the
currently approved Information Collection Request (ICR).
Table 1 summarizes the revision to annual burden estimates for IC1:
``Required Information for Prospective Individual Shippers'' based on
Agency errors found in the calculations done in 2010. A detailed
analysis of the burden hours can be found in the Paperwork Reduction
Act supporting statement that corresponds with this direct final rule.
The supporting statement and its attachments are in the docket
associated with this direct final rule (Docket No. FMCSA-2011-0313).
Table 1--Summary of Revisions to Annual Hourly Burden Estimates Due to Agency Errors
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Revision due
Revision due to agency
Collection Old burden to error error (old--
error)
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IC1:
``Ready to Move?''.......................................... 3,000 0 3,000
``Rights & Responsibilities''............................... 68,000 -34,000 34,000
Complaint & Inquiry Program Summary......................... 1,000 -500 500
Arbitration Procedure Summary............................... 1,000 -500 500
Create Summaries............................................ 2,400 0 2,400
Website Hyperlink........................................... 0 0 0
Signed Receipts............................................. .............. 0 0
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Total for IC1........................................... 75,400 -35,000 40,400
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Table 2 below summarizes the revisions to annual burden estimates
based on the Household Goods Broker final rule of November 29, 2010.
The direct final rule to reduce the record retention period for
receipts from three years to one year does not affect the annual burden
hour estimates, only the capital costs shown in Table 3.
Table 2--Summary of Revisions to Annual Hourly Burden Estimates Based on HHG Broker Final Rule of November 29,
2010
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Total after
HHG broker
Revision due Revision due final rule
Collection to agency to HHG broker (error--HHG
error final rule broker final
rule)
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IC1:
``Ready to Move?''.......................................... 3,000 -1,500 1,500
``Rights & Responsibilities''............................... 34,000 -20,400 13,600
Complaint & Inquiry Program Summary......................... 500 0 500
Arbitration Procedure Summary............................... 500 0 500
Create Summaries............................................ 2,400 0 2,400
Website Hyperlink........................................... 0 1,000 1,000
Signed Receipts............................................. 0 24,000 24,000
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Total for IC1........................................... 40,400 3,100 43,500
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Table 3 summarizes the revision to annual costs to respondents.
Revisions are due to consumer requests for electronic pamphlets instead
of printed ones. A detailed analysis of annual costs can be found in
the Paperwork Reduction Act supporting statement that corresponds with
this direct final rule. The supporting statement and its attachments
are in the docket associated with this direct final rule (Docket No.
FMCSA-2011-0313).
[[Page 41703]]
Table 3--Summary of Revisions of Estimates of Annual Costs to Respondents
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Total cost
Collection New cost Old cost reduction
(new--old)
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IC1:
``Ready to Move?''.......................................... $288,000 $720,000 -$432,000
``Rights & Responsibilities''............................... 3,264,000 8,160,000 -4,896,000
Complaint & Inquiry Program Summary......................... 120,000 120,000 0
Arbitration Procedure Summary............................... 120,000 120,000 0
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Total Capital Costs for IC1............................. 3,792,000 9,120,000 -5,328,000
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We particularly request your comments on whether the collection of
information is necessary for the FMCSA to meet the goal of 49 CFR part
375 to protect consumers, including: (1) Whether the information is
useful to this goal; (2) the accuracy of the estimate of the burden of
the information collection; (3) ways to enhance the quality, utility
and clarity of the information collected; and (4) ways to minimize the
burden of the collection of information on respondents, including the
use of automated collection techniques or other forms of information
technology. You may submit comments on the information collection
burden addressed by this direct final rule to the Office of Management
and Budget (OMB). The OMB must receive your comments by September 14,
2012. You must mail or hand deliver your comments to: Attention: Desk
Officer for the Department of Transportation, Docket Library, Office of
Information and Regulatory Affairs, Office of Management and Budget,
Room 10102, 725 17th Street NW., Washington, DC 20503. Please also
provide a copy of your comments on the information collection burden
addressed by this direct final rule to docket FMCSA-2011-0313 in
www.regulations.gov by one of the four ways shown above under the
ADDRESSES heading.
National Environmental Policy Act and Clean Air Act
FMCSA analyzed this rule in accordance with the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.). The
Agency has determined under its environmental procedures Order 5610.1,
published March 1, 2004 in the Federal Register (69 FR 9680), that this
action is categorically excluded (CE) from further environmental
documentation under Appendix 2, Paragraph 6(q) of the Order (69 FR
9703). This CE relates to regulations implementing record preservation
procedures for household goods freight forwarders, brokers, and motor
carriers, including record types and retention periods. In addition,
the Agency believes this rule includes no extraordinary circumstances
that will have any effect on the quality of the environment. Thus, the
action does not require an environmental assessment or an environmental
impact statement.
FMCSA also analyzed this rule under the Clean Air Act, as amended
(CAA), section 176(c) (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.
E.O. 13211 (Energy Effects)
FMCSA has analyzed this direct final rule under E.O. 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The Agency has determined that it is not a
``significant energy action'' under that order because it is not a
``significant regulatory action'' under E.O. 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. Therefore, no Statement of Energy Effects is required.
E.O. 13045 (Protection of Children)
E.O. 13045, Protection of Children from Environmental Health Risks
and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies
issuing ``economically significant'' rules, if the regulation also
concerns an environmental health or safety risk that an agency has
reason to believe may disproportionately affect children, to include an
evaluation of the regulation's environmental health and safety effects
on children. As discussed previously, this direct final rule is not
economically significant. Therefore, no analysis of the impacts on
children is required. In any event, FMCSA does not anticipate that this
regulatory action could in any respect present an environmental or
safety risk that could disproportionately affect children.
E.O. 12988 (Civil Justice Reform)
This final rule meets applicable standards in sections 3(a) and
3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
E.O. 12630 (Taking of Private Property)
FMCSA reviewed this final rule in accordance with Executive Order
12630, Governmental Actions and Interference with Constitutionally
Protected Property Rights, and has determined it will not affect a
taking of private property or otherwise have taking implications.
Privacy Impact Assessment
FMCSA conducted a privacy impact assessment of this rule as
required by section 522(a)(5) of the FY 2005 Omnibus Appropriations
Act, Public Law 108-447, 118 Stat. 3268 (Dec. 8, 2004) [set out as a
note to 5 U.S.C. 552a]. Section 522 of title I of division H of the
Consolidated Appropriations Act, 2005, enacted December 8, 2004 (Pub.
L. 108-447, 118 Stat. 2809, 3268, 5 U.S.C. 552a note) requires the
Agency to conduct a privacy impact assessment (PIA) of a regulation
that will affect the privacy of individuals. This rule does not require
the collection of any personally identifiable information.
The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies
and any non-Federal agency which receives records contained in a system
of records from a Federal agency for use in a matching program. FMCSA
has determined this rule will not result in a new or revised Privacy
Act System of Records for FMCSA.
Executive Order 12372 (Intergovernmental Review)
The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this program.
List of Subjects in 49 CFR Part 375
Advertising, Arbitration, Consumer protection, Freight, Highways
and roads, Insurance, Motor carriers, Moving
[[Page 41704]]
of household goods, Reporting and recordkeeping requirements.
VII. The Final Rule
For the reasons stated in the preamble, FMCSA amends 49 CFR part
375 in title 49, Code of Federal Regulations, chapter III, subchapter
B, as follows:
PART 375--TRANSPORTATION OF HOUSEHOLD GOODS IN INTERSTATE COMMERCE;
CONSUMER PROTECTION REGULATIONS
0
1. The authority citation for part 375 continues to read as follows:
Authority: 49 U.S.C. 13102, 13301, 13501, 13704, 13707, 13902,
14104, 14706, 14708; subtitle B, title IV of Pub. L. 109-59; and 49
CFR 1.73.
0
2. Revise Sec. 375.213, paragraph (e)(3), to read as follows:
Sec. 375.213 What information must I provide to a prospective
individual shipper?
* * * * *
(e) * * *
(3) You must maintain the signed receipt required by paragraph
(e)(2) of this section for one year from the date the individual
shipper signs the receipt. You are not required to maintain the signed
receipt when you do not actually transport household goods or perform
related services for the individual shipper who signed the receipt.
Issued on: July 6, 2012.
Anne S. Ferro,
Administrator.
[FR Doc. 2012-17268 Filed 7-13-12; 8:45 am]
BILLING CODE 4910-EX-P