Passenger Carrier No-Defect Driver Vehicle Inspection Reports, 60990-60997 [2019-24525]
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60990
Federal Register / Vol. 84, No. 218 / Tuesday, November 12, 2019 / Proposed Rules
proposed to be implemented in a similar
manner. Specifically, the new 10 U.S.C.
2320(f) requirement is proposed for
insertion as new DFARS 207.106(S–
70)(2)(ii), with existing paragraphs (ii)–
(iv) renumbered accordingly.
Second, new 10 U.S.C. 2320(f)
requires that, to the maximum extent
practicable, programs for major weapon
systems or subsystems thereof shall use
specially negotiated licenses for
technical data to support DoD’s strategy
for sustainment of the systems or
subsystems. While the current DFARS
coverage does not include a preference
for specially negotiated licenses, the
DFARS authorizes the use of SNLR for
all types of technical data and computer
software, both noncommercial and
commercial. The current DFARS
enables the parties to enter into special
licenses only by voluntary mutual
agreement, and reinforces that any
rights granted to the Government must
be enumerated in an agreement that is
incorporated into the contract. The
DFARS currently identifies the
minimum license rights that the
Government is authorized to accept. For
example, DFARS 227.7103–5,
Government rights, specifies that, when
negotiating specific license rights for
technical data, the Government may not
accept less than limited rights.
The proposed approach for
implementing the new statutory
preference for SNLR is to incorporate an
appropriate statement of preference into
the existing DFARS sections and clauses
that already authorize and address, but
do not currently express a preference
for, SNLR. This implementation
requires consideration of how a
‘‘preference’’ for SNLR can be integrated
appropriately into the current regulatory
structure that allows for SNLR on the
basis of voluntary, mutual agreement.
The proposed approach expresses a
preference for use of SNLR ‘‘whenever
doing so will more equitably address the
parties’ interests than the standard
license rights’’ provided in the
applicable clause or allocation of rights.
However, to ensure that SNLR are not
merely authorized and encouraged, but
are required to be considered, the
approach also includes an affirmative
requirement that, to the maximum
extent practicable, the parties must
enter into good faith negotiations
whenever either party desires a special
license. Thus, it is only in the case
when neither party desires a special
license agreement (e.g., because neither
party anticipates doing so would more
equitably address the parties’ relative
interests), that the parties are not
required to negotiate.
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The proposed approach also
maintains the existing DFARS coverage,
which reinforces that neither party can
be forced to relinquish its standard
license rights. Additionally, the
proposed approach retains the DFARS
statement of mandatory minimum
license rights, as applicable (e.g.,
currently there is no required minimum
license for commercial computer
software or commercial computer
software documentation). The approach
includes the requirement from 10 U.S.C.
2320(f) that the special license must
support the program’s strategy for
sustainment of the major weapon
system or subsystem being purchased.
The proposed approach also states that
DoD may still challenge the basis for a
contractor’s assertions upon which a
special license is based. DoD may
challenge a contractor’s assertions
pursuant to DFARS 252.227–7019,
Validation of Asserted Restrictions–
Computer Software, and 252.227–7037,
Validation of Restrictive Markings on
Technical Data, as applicable. Finally,
the approach also seeks to standardize
the nomenclature for such negotiated
licenses using variations of the term
‘‘special’’ (e.g., special license, specially
negotiated license rights), rather than
the term ‘‘specifically,’’ which is used
inconsistently in the current DFARS.
This proposed implementation
resulted in revisions to the existing
DFARS coverage regarding SNLR for all
forms of technical data and computer
software, as follows:
(1) For commercial technical data, at
227.7102–2(b) and the associated clause
at 252.227–7015(c).
(2) For noncommercial technical data,
at 227.7103–5, and –5(d), and the
associated clause at 252.227–7013(b)(4).
(3) For commercial computer
software, at 227.7202–3(b) (for which
there is no associated clause).
(4) For noncommercial computer
software, at 227.7203–5, and –5(d), and
the associated clause at 252.227–
7014(b)(4).
(5) For the Small Business Innovation
Research (SBIR) Program, at new
227.7104(d), and associated clause at
252.227–7018(b)(5).
Note that in the case of the SBIR
Program, the proposed revisions limit
the preference and authorization to
negotiate special license agreements to
be only after contract award, in
accordance with section 8, paragraph 6,
of the SBIR Program and Small Business
Technology Transfer Program Policy
Directive, published in the Federal
Register on April 2, 2019, (84 FR
12794), and which became effective on
May 2, 2019.
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C. Seeking Public Comment on
Additional Topics
In addition to seeking public
comment on the substance of the draft
DFARS revisions, DoD is also seeking
information regarding any
corresponding change in the burden,
including associated costs or savings,
resulting from contractors and
subcontractors complying with the draft
revised DFARS implementation. More
specifically, DoD is seeking information
regarding any anticipated increase or
decrease in such burden and costs
relative to the burden and costs
associated with complying with the
current DFARS implementing language.
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is a significant
regulatory action and, therefore, was
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
IV. Executive Order 13771
This Advance Notice of Proposed
Rulemaking is not subject to E.O. 13771.
List of Subjects in 48 CFR Parts 207,
212, 215, 227, and 252
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense
Acquisition Regulations System.
[FR Doc. 2019–24585 Filed 11–8–19; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
49 CFR Part 396
[Docket No. FMCSA–2019–0075]
RIN 2126–AC29
Passenger Carrier No-Defect Driver
Vehicle Inspection Reports
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
AGENCY:
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Federal Register / Vol. 84, No. 218 / Tuesday, November 12, 2019 / Proposed Rules
ACTION:
Notice of proposed rulemaking.
FMCSA proposes to rescind
the requirement that drivers of
passenger-carrying commercial motor
vehicles (CMVs) operating in interstate
commerce, submit, and motor carriers
retain, driver-vehicle inspection reports
(DVIRs) when the driver has neither
found nor been made aware of any
vehicle defects or deficiencies (nodefect DVIRs). This proposed rule
would remove an information collection
burden without adversely impacting
safety.
DATES: You must submit comments on
or before January 13, 2020. Comments
sent to the Office of Information and
Regulatory Affairs (OIRA) at the Office
of Management and Budget (OMB) on
the collection of information must be
received by OMB on or before January
13, 2020.
ADDRESSES: You may submit comments
identified by docket number FMCSA–
2019–0075 using any one of the
following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov.
• Fax: (202) 493–2251.
• Mail: Docket Operations (M–30),
U.S. Department of Transportation,
West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue SE,
Washington, DC 20590–0001.
• Hand delivery: Same as mail
address above, between 9 a.m. and 5
p.m., e.t., Monday through Friday,
except Federal holidays.
To avoid duplication, please use only
one of these four methods. See the
‘‘Public Participation and Request for
Comments’’ heading under the
SUPPLEMENTARY INFORMATION section for
instructions on submitting comments,
including information collection
comments for OIRA at OMB.
FOR FURTHER INFORMATION CONTACT: Mr.
Michael Huntley, Chief, Vehicle and
Roadside Operations Division, Office of
Carrier, Driver & Vehicle Safety
Standards, at Federal Motor Carrier
Safety Administration 1200 New Jersey
Avenue SE, Washington, DC 20590–
0001; Michael.Huntley@dot.gov, (202)
366–4325. If you have questions on
viewing or submitting material to the
docket, contact Docket Operations, (202)
366–9826.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Public Participation and Request For
Comments
A. Submitting Comments
If you submit a comment, please
include the docket number for this
notice of proposed rulemaking (NPRM)
(FMCSA–2019–0075), indicate the
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specific section of this document to
which your 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 email
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
https://www.regulations.gov/#!
docketDetail;D=FMCSA-2019-0075,
click on the ‘‘Comment Now!’’ button
and type your comment into the text
box on the following screen. Choose
whether you are submitting your
comment as an individual or on behalf
of a third party and then submit.
If you submit your comments by mail
or hand delivery, submit them in an
unbound format, no larger than 81⁄2 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
comment period and may change this
proposed rule based on your comments.
FMCSA may issue a final rule at any
time after the close of the comment
period.
Confidential Business Information
Confidential Business Information
(CBI) is commercial or financial
information that is both customarily and
actually treated as private by its owner.
Under the Freedom of Information Act
(FOIA) (5 U.S.C. 552), CBI is exempt
from public disclosure. If your
comments responsive to this NPRM
contain commercial or financial
information that is customarily treated
as private, that you actually treat as
private, and that is relevant or
responsive to this NPRM, it is important
that you clearly designate the submitted
comments as CBI. Please mark each
page of your submission that constitutes
CBI as ‘‘PROPIN’’ to indicate it contains
proprietary information. FMCSA will
treat such marked submissions as
confidential under the FOIA, and they
will not be placed in the public docket
of this NPRM. Submissions containing
CBI should be sent to Mr. Brian Dahlin,
Chief, Regulatory Analysis Division,
Federal Motor Carrier Safety
Administration, 1200 New Jersey
Avenue SE, Washington DC 20590. Any
comments that FMCSA receives which
are not specifically designated as CBI
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60991
will be placed in the public docket for
this rulemaking.
B. Viewing Comments and Documents
To view comments, as well as any
documents mentioned in this preamble
as being available in the docket, go to
https://www.regulations.gov/#!
docketDetail;D=FMCSA-2019-0075 and
choose the document to review. If you
do not have access to the internet, you
may view the docket online by visiting
Docket Operations in Room W12–140
on the ground floor of the DOT 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
In accordance with 5 U.S.C. 553(c),
DOT solicits comments from the public
to better inform its rulemaking process.
DOT posts these comments, without
edit, including any personal information
the commenter provides, to
www.regulations.gov, as described in
the system of records notice DOT/ALL–
14 FDMS, which can be reviewed at
https://www.transportation.gov/privacy.
D. Waiver of Advance Notice of
Proposed Rulemaking
Under 49 U.S.C. 31136(g)(1), FMCSA
is required to publish an advance notice
of proposed rulemaking (ANPRM) or
conduct a negotiated rulemaking if a
proposed rule is likely to lead to the
promulgation of a major rule.1 As this
proposed rule is not likely to result in
the promulgation of a major rule, the
Agency is not required to issue an
ANPRM or to proceed with a negotiated
rulemaking.
E. Comments on the Collection of
Information
If you have comments on the
collection of information discussed in
this NPRM, you must also send those
comments to the Office of Information
and Regulatory Affairs at OMB. To
ensure that your comments are received
on time, the preferred methods of
submission are by email to oira_
submissions@omb.eop.gov (include
docket number ‘‘FMCSA–2019–0075’’
and ‘‘Attention: Desk Officer for
1 A ‘‘major rule’’ means any rule that the
Administrator of OIRA at OMB finds has resulted
in or is likely to result in (a) an annual effect on
the economy of $100 million or more; (b) a major
increase in costs or prices for consumers, individual
industries, Federal agencies, State agencies, local
government agencies, or geographic regions; or (c)
significant adverse effects on competition,
employment, investment, productivity, innovation,
or on the ability of United States-based enterprises
to compete with foreign-based enterprises in
domestic and export markets (5 U.S.C. 804(2)).
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Federal Register / Vol. 84, No. 218 / Tuesday, November 12, 2019 / Proposed Rules
FMCSA, DOT’’ in the subject line of the
email) or fax at 202–395–6566. An
alternative, though slower, method is by
United States mail to the Office of
Information and Regulatory Affairs,
Office of Management and Budget, 725
17th Street NW, Washington, DC 20503,
ATTN: Desk Officer, FMCSA, DOT.
Although comments can be received up
to the close of the comment period,
comments will be most useful if
received by OIRA within 30 days of
publication of this NPRM.
II. Executive Summary
Purpose of the Regulatory Action
As part of the Agency’s ongoing effort
to review existing regulations to
evaluate their continued necessity and
effectiveness, FMCSA proposes
rescinding the requirement that drivers
of passenger-carrying CMVs operating in
interstate commerce, submit, and motor
carriers retain, DVIRs when the driver
has neither found nor been made aware
of any vehicle defects or deficiencies.
This proposed rule would remove an
information collection burden without
impacting safety adversely.
Benefits and Costs
The proposed rule would affect all
passenger carriers currently subject to
49 CFR 396.11. Current regulations
require drivers employed by passenger
carriers—except drivers for private
(nonbusiness) passenger carriers,
driveaway-towaway operations, or those
operating only one CMV—to report on
the DVIR any vehicle defects in need of
repair noted or discovered during a
driving day. Drivers must submit this
report to the employing passenger
carrier so that repairs can be made.
Regulations currently require drivers of
passenger-carrying CMVs to file the
DVIR even if there are no vehicle defects
to report. Motor carriers are required to
maintain the original DVIR, the
certification of repairs, and the
certification of the driver’s review for 3
months from the date the written report
was prepared. The proposed rule would
eliminate the need for a driver to file,
and a motor carrier to maintain, a nodefect DVIR.
The Agency estimates that passengercarrying CMV drivers spend
approximately 2.4 million hours each
year completing no-defect DVIRs, and
that the proposed rule would result in
a cost savings of $74 million per year.
There is no discernible safety benefit to
this burden.
If finalized, the proposed rulemaking
would result in reduced governmentimposed costs, and therefore would be
a deregulatory action under Executive
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Order (E.O.) 13771, ‘‘Reducing
Regulation and Controlling Regulatory
Costs’’ (issued January 30, 2017, and
published February 3, 2017, at 82 FR
9339). The present value of the cost
savings, measured on an infinite time
horizon at a 7 percent discount rate,
expressed in 2016 dollars, would be $1
billion. On an annualized basis, these
cost savings would be $71 million.
III. Legal Basis for the Rulemaking
This proposed rule is based on the
authority of the Motor Carrier Act of
1935 (1935 Act) (49 U.S.C. 31502(b))
and the Motor Carrier Safety Act of 1984
(1984 Act) (49 U.S.C. 31136(a)), both of
which are broadly discretionary.
The 1935 Act provides that the
Secretary of Transportation (Secretary)
may prescribe requirements for the
following:
• Qualifications and maximum hours
of service of employees of, and safety of
operation and equipment of, a motor
carrier (§ 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 (§ 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. Section 31136(a)
requires the Secretary to publish
regulations on CMV safety. Specifically,
the Act sets forth minimum safety
standards to ensure that: (1) 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 32911 of the
Moving Ahead for Progress in the 21st
Century Act (MAP–21) [Pub. L. 112–
141, 126 Stat. 405, 818, July 6, 2012]
enacted a fifth requirement, i.e., to
ensure that ‘‘(5) an operator of a
commercial motor vehicle is not coerced
by a motor carrier, shipper, receiver, or
transportation intermediary to operate a
commercial motor vehicle in violation
of a regulation promulgated under this
section, or chapter 51 or chapter 313 of
this title’’ (49 U.S.C. 31136(a)(5)). The
1984 Act grants the Secretary broad
power in carrying out motor carrier
safety statutes and regulations to
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‘‘prescribe recordkeeping and reporting
requirements’’ and to ‘‘perform other
acts the Secretary considers
appropriate’’ (49 U.S.C. 31133(a)(8) and
(10)).
This proposed rule implements, in
part, the Administrator’s authority
under § 31136(a)(1) to ensure that CMVs
are maintained, equipped, loaded, and
operated safely. The NPRM is also based
on the broad recordkeeping and
implementation authority of
§ 31133(a)(8) and (10). This proposed
rule addresses only CMV equipment
and reporting requirements. It does not
address the question whether drivers’
responsibilities affect their ability to
operate CMVs safely (49 U.S.C.
31136(a)(2)). The provisions of the 1984
Act dealing with the physical condition
of drivers (§ 31136(a)(3)–(4)) do not
apply. Finally, as to ensuring that
operators of CMVs are not coerced by
motor carriers, shippers, receivers, or
transportation intermediaries to operate
a CMV in violation of a regulation, the
rule would eliminate only the
requirement for drivers of passengercarrying CMVs to prepare reports when
there are no defects or deficiencies; it
would keep in place the rule requiring
reports when there are defects or
deficiencies, as well as the requirement
for motor carriers to take appropriate
action on receipt of the report when
problems with the vehicle are noted.
Because the rule would remove a
regulatory burden criticized by both
drivers and motor carriers (and
irrelevant to passenger brokers or tour
groups), there is virtually no possibility
that the driver of a passenger-carrying
CMV would be coerced to violate the
rule itself. A passenger carrier may
require a driver to continue filing nodefect DVIRs even in the absence of a
regulatory requirement, but that would
be a condition of employment to
perform duties not required by a safety
regulation, and would therefore not
constitute coercion to violate a safety
regulation.
IV. Background
In response to a joint petition for
rulemaking submitted by the Ocean
Carrier Equipment Management
Association and the Institute of
International Container Lessors, FMCSA
published a final rule on June 12, 2012
(77 FR 34846), eliminating the
requirement for drivers operating
intermodal equipment (IME) to
submit—and intermodal equipment
providers to retain—DVIRs when the
driver has neither found nor been made
aware of any defects in the IME. The
Agency estimated that approximately 95
percent of DVIRs for IME do not identify
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Federal Register / Vol. 84, No. 218 / Tuesday, November 12, 2019 / Proposed Rules
defects and concluded that requiring
DVIRs to be filed only on the roughly 5
percent of IME with defects would focus
attention on the IME that needs it—
rather than the 95 percent with no
defects. FMCSA emphasized that the
rule did not change a driver’s obligation
to assess the condition of IME at the end
of a workday to determine whether the
IME has defects or deficiencies that
could affect operational safety.
Although FMCSA removed the
requirement for a driver to complete a
DVIR if no defects or deficiencies had
been discovered by or reported, the
driver must still inspect the IME to
make this determination and prepare a
DVIR if defects or deficiencies are
discovered or reported. The Agency
stated that it did not believe that
implementation of the rule would lead
to an increase in safety risk because
there are multiple opportunities for IME
to be inspected for potential safety
defects. FMCSA estimated the time and
cost savings associated with the rule
due to reduced paperwork burdens to be
1.636 million hours and $54 million
dollars annually.
Subsequently, and in response to
Executive Order 13563, ‘‘Improving
Regulation and Regulatory Review’’
(issued January 18, 2011, and published
January 21, 2011, at 76 FR 3821),
FMCSA published an NPRM on August
7, 2013 (78 FR 48125) that proposed
extending the same relief regarding nodefect DVIRs to all interstate motor
carriers subject to part 396 of the
FMCSRs, except operators of passengercarrying CMVs. FMCSA published a
final rule on December 18, 2014 (79 FR
75437), adopting the changes proposed
in the NPRM. As with the June 2012
final rule regarding no-defect DVIRs for
IME, FMCSA concluded that the nodefect DVIR requirements impose a
substantial time and paperwork burden
on the trucking industry with no
discernible safety benefit. FMCSA
estimated that non-passenger-carrying
CMV drivers spend approximately 46.7
million hours each year completing nodefect DVIRs, and estimated that the
monetized value of this time was $1.7
billion per year.
V. Discussion of Proposed Rulemaking
The Agency proposes to rescind, for
operators of passenger-carrying CMVs,
the requirement in 49 CFR 396.11(a)(2)
that CMV drivers submit, and motor
carriers retain, DVIRs when the driver
has neither found nor been made aware
of any vehicle defects or deficiencies.
Drivers and motor carriers have long
been required to share the safety
responsibility for operating CMVs and
for assessing the condition of CMVs and
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documenting deficiencies and repairs.
Section 392.7(a) states that ‘‘No
commercial motor vehicle shall be
driven unless the driver is satisfied that
the following parts and accessories are
in good working order . . .’’ Section
393.1(b)(1) provides that ‘‘[e]very motor
carrier and its employee must be
knowledgeable of and comply with the
requirements and specifications of this
part,’’ and § 393.1(c) states that ‘‘No
motor carrier may operate a commercial
motor vehicle, or cause or permit such
vehicle to be operated, unless it is
equipped in accordance with the
requirements and specifications of this
part.’’ Section 396.3(a)(1) requires that
‘‘[p]arts and accessories shall be in safe
and proper operating condition at all
times.’’ Section 396.11(a) states that
every motor carrier must ‘‘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,’’ covering a specific
list of parts and accessories. Section
396.11(c) states that ‘‘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 a vehicle.’’
FMCSA emphasizes that the Agency
is not foregoing the fundamental
requirements of part 393, Parts and
Accessories Necessary for Safe
Operation, nor is it proposing to change
any other element of the inspection,
repair, and maintenance requirements of
part 396. Drivers will still be required to
perform pre-trip evaluations of
equipment condition and complete
DVIRs if any defects or deficiencies are
discovered or reported during the day’s
operations. Motor carriers will still be
required to have systematic inspection,
repair, and maintenance (including
preventative maintenance) programs
and maintain records to prove measures
are being taken to reduce to the extent
practicable, the risk of mechanical
problems occurring while the vehicle is
in operation. In addition, motor carriers
will still be required to review DVIRs
that list defects or deficiencies and take
appropriate action before the vehicle is
dispatched again. The Agency will
retain the requirement that carriers
complete periodic or annual inspections
and maintain documentation for the
individuals who perform periodic
inspections and individuals responsible
for performing brake-related inspection,
repair, and maintenance tasks.
Furthermore, these CMVs will remain
subject to roadside inspections.
In excluding passenger-carrying
CMVs from the December 2014 final
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60993
rule, FMCSA noted that (1) a passenger
carrier crash is a low-probability but
high-consequence event in terms of
potential deaths and injuries, so vehicle
maintenance is paramount, (2)
motorcoach drivers often need to
interact with their passengers at the
beginning and end of their workday,
and often during the trip as well, which
may impact the driver’s ability to
properly document defects and
deficiencies in the mechanical
condition of the vehicle, and (3) because
they are carrying the most valuable
cargo, motor carriers of passengers must
exercise heightened diligence over their
operations, including CMV
maintenance.
FMCSA has reviewed available data
spanning several years regarding vehicle
out-of-service rates for both trucks and
passenger-carrying vehicles, including
data before and after implementation of
the December 2014 final rule. FMCSA’s
Motor Carrier Management Information
System (MCMIS) data show that the
vehicle out-of-service rate for trucks is
consistently about 21 percent
annually—both before and after
implementation of the December 2014
final rule. While the Agency received
several public comments during
development of the December 2014 rule
expressing concern that eliminating the
requirement for no-defect DVIRs would
result in (1) a reduced level of safety
and maintenance and (2) a higher
percentage of vehicle violations and outof-service orders, the data show that the
vehicle out-of-service rate for trucks has
remained nearly constant before and
after implementation of the rule.
The MCMIS data also show that the
vehicle out-of-service rate for passengercarrying vehicles is approximately 6.6
percent annually—consistently less than
one-third of the corresponding vehicle
out-of-service rate for trucks. From this
data, motor carriers of passengers—
because of the nature of their operations
and sensitive cargo that they transport—
have established and implemented
comprehensive inspection, repair and
maintenance programs that help ensure
that their vehicles are in safe and proper
operating condition at a rate that far
exceeds that of other CMVs. As noted
above, implementation of the December
2014 rule eliminating the requirement
for no-defect DVIRs for trucks has not
resulted in a reduced level of
maintenance and safety or a higher
percentage of vehicle violations and outof-service violations. Given that
passenger-carrying vehicles have a
significantly lower vehicle out-ofservice rate generally, the Agency does
not believe that extending to them the
same relief from the preparation and
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retention of no-defect DVIRs will result
in any degradation in safety. Further,
FMCSA emphasizes that it is not
proposing to prohibit motor carriers of
passengers from requiring their drivers
to prepare no-defect DVIRs if they wish,
but is only proposing to eliminate the
current requirement for a no-defect
DVIR.
V. International Impacts
The FMCSRs, and any exceptions to
the FMCSRs, apply only within the
United States (and, in some cases,
United States territories). Motor carriers
and drivers are subject to the laws and
regulations of the countries in which
they operate, unless an international
agreement states otherwise. Drivers and
carriers should be aware of the
regulatory differences among nations.
VI. Section-by-Section Analysis
FMCSA proposes amending 49 CFR
part 396 by deleting a portion of the last
sentence in § 396.11(a)(2) that reads
‘‘The driver of a passenger-carrying
CMV subject to this regulation must
prepare a report even if no defect or
deficiency is discovered by or reported
to the driver; the drivers of all other
commercial motor vehicles are not
required to prepare a report if no defect
or deficiency is discovered by or
reported to the driver.’’ FMCSA would
revise the sentence to read ‘‘Drivers are
not required to prepare a report if no
defect or deficiency is discovered by or
reported to the driver.’’
VII. Regulatory Analyses
A. E.O. 12866 (Regulatory Planning and
Review), E.O. 13563 (Improving
Regulation and Regulatory Review), and
DOT Regulatory Policies and Procedures
This proposed rule is not a significant
regulatory action under section 3(f) of
E.O. 12866, Regulatory Planning and
Review, as supplemented by E.O. 13563
(76 FR 3821, January 21, 2011), and is
also not significant within the meaning
of DOT regulatory policies and
procedures (DOT Order 2100.6, Dec. 18,
2018) and does not require an
assessment of potential costs and
benefits under section 6(a)(4) of that
Order. The Office of Management and
Budget has not reviewed it under that
Order.
Baseline for the Analysis
Under § 396.11, interstate passenger
carriers [except private (nonbusiness)
carriers, driveaway-towaway operations,
or those operating only one CMV] must
require their drivers to prepare a DVIR
at the completion of work each day for
each vehicle operated that covers at a
minimum:
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• Service brakes including trailer brake
connections
• Parking brake
• Steering mechanism
• Lighting devices and reflectors
• Tires
• Horn
• Windshield wipers
• Rear vision mirrors
• Coupling devices
• Wheels and rims
• Emergency equipment.
The report must list any defect or
deficiency discovered by or reported to
the driver which would affect the safety
of operation or result in mechanical
breakdown. The driver must prepare
and submit the report even if no defect
or deficiency is identified and the
carrier must retain the report for three
months from the date the written report
was prepared.
Passenger carriers use various means
of compliance with this requirement
including paper DVIRs and associated
processes for tracking and filing (e.g.,
separating DVIRs that identify defects
from those that do not; maintaining
separate files of each) and electronic
systems for completing a DVIR and
retaining the record.2
FMCSA does not have information on
the ratio of electronic versus paperbased DVIR processes used by passenger
carriers. Regardless of the means of
compliance, the burden associated with
the existing requirement to complete nodefect DVIRs is estimated at 155
seconds per report in the most recent
approved supporting statement for
Information Collection Request (ICR),
OMB control number 2126–0003.
The supporting statement estimated
that there are 247,496 passengercarrying CMVs in operation and subject
to the current DVIR requirements. As
such, the no-defect DVIR rule imposes
a substantial time and paperwork
burden on passenger carriers with no
discernible safety benefit.
Costs
In 2014, the Agency estimated cost
savings associated with eliminating the
requirement for no-defect DVIRs for
property carrying CMVs. As that rule is
analogous to the proposed rule, this
analysis follows the same approach. The
Agency’s 2018 approved supporting
2 J.J. Keller provides a sample paper report
available at https://www.jjkellertraining.com/
Samples/28146_JJK_Motor_Coach_Vehicle_
Inspections_DEMO/story_content/external_files/
DVIR.pdf. A wide variety of vendors supply
electronic DVIR systems, such as https://
www.teletracnavman.com/our-solutions/
compliance/dvir, https://www.verizonconnect.com/
resources/article/electronic-inspection-form-dvir/,
and https://fleetrevolution.com/fleetrevolution-busdvir.
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statement for ICR 2126–0003 states that
there are 247,496 passenger-carrying
CMVs for which DVIRs must be
prepared, submitted, and reviewed.
Consistent with the methodology of the
supporting statement and the 2014
analysis, the Agency assumes that each
of these vehicles is used 65 percent of
the year, and that 95 percent of DVIRs
are no-defect DVIRs for which it
estimated a burden of 155 seconds.
Therefore, the Agency estimated a
paperwork burden of 2,401,747 hours
[247,496 vehicles × (0.65 × 365) × 0.95
× 155 = 8,646,288,229 seconds or
2,401,747 hours]. Using a labor rate of
$31 per hour,3 the Agency estimates a
potential cost savings of $74 million per
year. Because some carriers might
choose to continue to require their
drivers to submit no-defect DVIRs, the
actual cost savings could be less than
the potential. The Agency, however,
assumes that a rational agent would
seek to reduce costs, and that all carriers
subject to the proposed rule would
cease to require no-defect DVIRs.
Therefore, the proposed rule would
result in cost savings of $74 million per
year (Table 1). The Agency welcomes
input on the degree to which carriers
subject to the proposed rule would
retain no-defect reporting.
TABLE 1—CALCULATION OF ANNUAL
COST SAVINGS
Variable
Value
Number of CMVs ..................
Frequency of daily usage .....
Frequency of no-defect
DVIRs ................................
Time to complete a no-defect
DVIR (seconds) .................
Total time saved (hours) ......
Wage rate (per hour) 1 ..........
247,496
65%
155
2,401,747
$31
Total savings .................
$73,665,012
95%
1 Source:
Bureau of Labor Statistics (BLS).
2019. May 2018 National Industry-Specific Occupational Employment and Wage Estimates.
https://www.bls.gov/bls/blswage.htm. Based on
occupational code 53–3021, Bus Drivers,
Transit and Intercity. The wage rate is scaled
up to reflect an estimate of the total labor
costs; wages and salaries accounted for
70.0% of total employee cost for private industry workers in December 2018 (BLS, 2019;
https://www.bls.gov/news.release/pdf/
ecec.pdf).
Benefits
The potential for the proposed rule to
result in benefits relates to the change
in crash risk, if any, that would result
3 This wage is specific to bus drivers. Note that
this rate differs from that used in the approved
supporting statement which reflected the wage for
a business operations specialist in the truck
transportation industry.
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from allowing a defect-based DVIR
approach. The Agency has no
information to suggest that preparation,
submission, and review of no-defect
DVIRs produces a greater level of safety
than that of a defect-based approach.
Further, no degradation in safety
attributable to the 2014 elimination of
the no-defect DVIR requirement for
trucks has been observed. Both the
baseline approach and the defect-based
approach ensure that vehicles are
inspected so that defects are noted and
addressed. Therefore, the proposed rule
would be expected to maintain the same
level of safety. The Agency, however,
seeks comment on the safety impact of
the proposed rule and notes that
commenters to the analogous rule for
trucks had varied opinions regarding
whether no-defect DVIRs are of value
with respect to safety (see Docket No.
FMCSA–2012–0036).
B. E.O. 13771 (Reducing Regulation and
Controlling Regulatory Costs)
This proposed rule would have total
costs less than zero, and is therefore an
E.O. 13771 deregulatory action.4 The
present value of the cost savings of this
rule, measured on an infinite time
horizon at a 7 percent discount rate,
expressed in 2016 dollars, and
discounted to 2020 (the year the rule
goes into effect and cost savings would
first be realized), is $1 billion. On an
annualized basis, these cost savings are
$71 million.
For E.O. 13771 accounting, the April
5, 2017, OMB guidance requires that
agencies also calculate the costs and
cost savings discounted to year 2016.5
In accordance with this requirement, the
present value of the cost savings of this
rule, measured on an infinite time
horizon at a 7 percent discount rate,
expressed in 2016 dollars, and
discounted to 2016, is $771 million. On
an annualized basis, these cost savings
are $54 million.
C. Regulatory Flexibility Act (Small
Entities)
The Regulatory Flexibility Act of 1980
(5 U.S.C. 601 et seq.) requires Federal
agencies to consider the effects of a
regulatory action on small business and
other small entities and to minimize any
significant economic impact. The term
‘‘small entities’’ comprises small
businesses and not-for-profit
4 Executive Office of the President. Office of
Management and Budget. Memorandum M–17–21.
Guidance Implementing Executive Order 13771.
April 5, 2017. Q4 on page 4.
5 Executive Office of the President. Office of
Management and Budget. Memorandum M–17–21.
Guidance Implementing Executive Order 13771.
April 5, 2017. Q25 on page 11.
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organizations that are independently
owned and operated and are not
dominant in their fields and
governmental jurisdictions with a
population of less than 50,000.6
Accordingly, DOT policy requires an
analysis of the impact of all regulations
on small entities, and mandates that
agencies try to minimize any adverse
effects on these entities. Under the
Regulatory Flexibility Act, as amended
by the Small Business Regulatory
Enforcement Fairness Act of 1996
(SBREFA) (Pub. L. 104–121, 110 Stat.
857), the proposed rule is expected to
have a positive economic impact on
small entities in the form of cost savings
through the elimination 2.4 million
paperwork burden hours.
FMCSA invites comment from
members of the public who believe
there will be a significant impact either
on small businesses or on governmental
jurisdictions with a population of less
than 50,000.
Initial Regulatory Flexibility Analysis
(IRFA)
(1) A description of the reason why
action by the Agency is being
considered.
FMCSA proposes rescinding the
requirement that drivers of passengercarrying CMVs submit, and motor
carriers retain, a DVIR when the driver
has neither found nor been made aware
of any vehicle defects or deficiencies
(no-defect DVIR). This proposed rule
would remove a significant information
collection burden without adversely
impacting safety.
(2) A succinct statement of the
objectives of, and legal basis for, the
proposed rule.
The objective of the NPRM is to
eliminate a paperwork burden on
passenger-carrying motor carriers
currently subject to 49 CFR 396.11. This
proposed rule is based on the authority
of the 1935 Act and the 1984 Act, both
of which are broadly discretionary. The
rule implements, to some extent, the
Administrator’s authority under
§ 31136(a)(1) to ensure that CMVs are
maintained, equipped, loaded, and
operated safely. The NPRM is also based
on the broad recordkeeping and
implementation authority of
§ 31133(a)(8) and (10). The removal of
the obligation to prepare and retain nodefect DVIRs would not compromise
drivers’ ability to report vehicle
problems to the carrier, or relieve
carriers of the responsibility to act to
correct such problems.
6 Regulatory Flexibility Act (5 U.S.C. 601 et seq.),
see National Archives at https://www.archives.gov/
federal-register/laws/regulaotry-flexibility/601.html.
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60995
(3) A description of and, where
feasible, an estimate of the number of
small entities to which the proposed
rule would apply.
The Small Business Administration
(SBA) has established size standards for
various types of economic activities, or
industries, under the North American
Industry Classification System (NAICS).
These size standards generally define
small businesses based on the number
of employees or annual receipts. For
example, the SBA defines a small
business in the transit and ground
passenger transportation subsectors
(NAICS 485) as an entity with annual
revenue of less than $15 million (13
CFR 121.201). The SBA definition of a
small business applies to a firm’s
highest domestic parent entity and all
affiliates as a single entity. The business
size is determined based on the primary
economic sector of the parent company,
which is not necessarily NAICS 485.
FMCSA data indicate a total of 8,189
interstate and intrastate passenger
carriers. However, the Agency does not
have data on company affiliations,
NAICS, and revenues or employees with
which to determine how many of these
carriers are small entities.
(4) A description of the projected
reporting, recordkeeping, and other
compliance requirements of the
proposed rule, including an estimate of
the classes of small entities which
would be subject to requirements and
the type of professional skills necessary
for preparation of the report or record.
The proposed rule eliminates the
need for drivers of passenger-carrying
CMVs to complete a DVIR on days
during which they do not identify any
defects. The companies for which these
drivers work would also be spared the
burden of maintaining no-defect reports.
The proposed rule would apply to
interstate passenger carriers (except
private (nonbusiness) carriers,
driveaway-towaway operations, or those
operating only one CMV). The skills
necessary for drivers to complete the
report are knowledge of vehicle
operation and maintenance. The skills
necessary for motor carrier staff
maintaining these records may be
administrative as well as those of a
safety or regulatory compliance clerk.
(5) Identification, to the extent
practicable, of all relevant Federal rules
which may duplicate, overlap, or
conflict with the proposed rule.
This proposed rule does not
duplicate, overlap, or conflict with any
Federal rules.
(6) A description of any significant
alternatives to the proposed rule which
accomplish the stated objectives of
applicable statutes and which minimize
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any significant economic impact of the
proposed rule on small entities.
The Agency has concluded that there
are no significant alternatives to the
proposed rule that would eliminate the
paperwork burden without requiring
additional investment (e.g., in electronic
DVIR systems).
D. Assistance for Small Entities
Pursuant to section 213 of SBREFA,
FMCSA wants to assist small entities in
understanding this proposed rule so that
they can better evaluate its effects on
them and participate in the rulemaking
initiative. If the proposed rule would
affect your small business, organization,
or governmental jurisdiction and you
have questions concerning its
provisions or options for compliance,
please consult the FMCSA point of
contact, listed in the FOR FURTHER
INFORMATION CONTACT section of this
proposed rule.
Small businesses may send comments
on the actions of Federal employees
who enforce or otherwise determine
compliance with Federal regulations to
the Small Business Administration’s
Small Business and Agriculture
Regulatory Enforcement Ombudsman
and the Regional Small Business
Regulatory Fairness Boards. The
Ombudsman evaluates these actions
annually and rates each agency’s
responsiveness to small business. If you
wish to comment on actions by
employees of FMCSA, call 1–888–REG–
FAIR (1–888–734–3247). DOT has a
policy regarding the rights of small
entities to regulatory enforcement
fairness and an explicit policy against
retaliation for exercising these rights.
E. Unfunded Mandates Reform Act of
1995
The Unfunded Mandates Reform Act
of 1995 (2 U.S.C. 1531–1538) requires
Federal agencies to assess the effects of
their discretionary regulatory actions.
The Act addresses actions that may
result in the expenditure by a State,
local, or tribal government, in the
aggregate, or by the private sector of
$165 million (which is the value
equivalent of $100,000,000 in 1995,
adjusted for inflation to 2018 levels) or
more in any one year. Though this
proposed rule would not result in such
an expenditure, the Agency does
discuss the effects of this rule in this
preamble.
F. 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 proposed
rule would result in a reduction of
burden hours for the ‘‘Inspection,
Repair, and Maintenance’’ ICR, OMB
control number 2126–0003. This ICR
comprises ten individual information
collections, each corresponding to a
different area of the inspection, repair,
and maintenance requirements. This
proposed rule affects only the ICR
section dealing with the Driver Vehicle
Inspection Reports for Burden for NoDefect DVIRs for Passenger-Carrying
Vehicles.
In 2018, based on data from its Motor
Carrier Management Information System
(MCMIS) and Licensing and Insurance
System (L&I), FMSCA estimated that
there are approximately 247,496
passenger-carrying CMVs. Consistent
with past analyses of this ICR, the
Agency assumed that these CMVs are
used on average 65 percent of the year.
FMCSA has divided the DVIR process
into two steps. The Agency estimated
the first step, filling out a DVIR, to take
2 minutes, 30 seconds. The Agency
estimated the second step, reviewing
and signing a DVIR, to take 20 seconds
when defects are reported and 5 seconds
when no defects are reported. When
there are no defects to note, there is
nothing to review on the DVIR, and the
form requires only a signature. The
Agency estimates that 5 percent of
DVIRs note defects and 95 percent of
DVIRs note no defects.
If this proposed rule were to be
finalized, the burden associated with
no-defect DVIRs for passenger-carrying
CMVs would be eliminated. The table
below illustrates how this result is
calculated.
TABLE 2—DETAIL OF NO-DEFECT DVIR PRA CALCULATIONS
Activity
Number of
passengercarrying CMVs
Utilization
rate (of 365
calendar days)
247,496
65%
No Defect DVIRS, passenger-carrying CMVs.
If this proposed rule were to be
finalized, the annual reduction in
hourly burdens associated with
elimination of no defect DVIRs for
passenger carrying CMVs is estimated to
be 2,401,747 (247,496 CMVs × 65%
utilization × 365 days × 95% of CMVs
× 155 seconds ÷ 3,600 seconds per
hour). The monetary value of this
annual burden reduction, calculated
using an hourly labor cost of $31, is
$73,665,012 million (2,401,747 hours ×
$31, per hour).7
7 1. Source: Bureau of Labor Statistics (BLS).
2019. May 2018 National Industry-Specific
Occupational Employment and Wage Estimates.
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Total DVIRs
(CMVs ×
utilization
rate ×
percent of
CMVs
affected ×
365)
Percent of
CMVs
affected
95%
G. 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
152,829
Burden
per DVIR
(seconds)
155 ...........................
Total annual
hourly burden
2,401,747
determined that this proposal would not
have substantial direct costs on or for
States nor would it limit the
policymaking discretion of States.
Nothing in this document preempts any
State law or regulation. Therefore, this
rule does not have sufficient Federalism
implications to warrant the preparation
of a Federalism Impact Statement.
H. E.O. 12988 (Civil Justice Reform)
https://www.bls.gov/bls/blswage.htm. Based on
occupational code 53–3021, Bus Drivers, Transit
and Intercity. The wage rate is scaled up to reflect
an estimate of the total labor costs; wages and
salaries accounted for 70.0% of total employee cost
for private industry workers in December 2018
(BLS, 2019; https://www.bls.gov/news.release/pdf/
ecec.pdf).
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This proposed rule 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.
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I. E.O. 13045 (Protection of Children)
Executive Order 13045, Protection of
Children from Environmental Health
Risks and Safety Risks (62 FR 19885,
April 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. FMCSA determined this
proposed 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.
J. E.O. 12630 (Taking of Private
Property)
FMCSA reviewed this proposed rule
in accordance with E.O. 12630,
Governmental Actions and Interference
with Constitutionally Protected Property
Rights, and has determined it would not
effect a taking of private property or
otherwise have taking implications.
K. Privacy
The Consolidated Appropriations Act,
2005, (Pub. L. 108–447, 118 Stat. 2809,
3268, 5 U.S.C. 552a note) requires the
Agency to conduct a privacy impact
assessment of a regulation that will
affect the privacy of individuals. The
Agency will complete a Privacy
Threshold Assessment (PTA) to evaluate
the risks and effects the proposed
rulemaking might have on collecting,
storing, and sharing personally
identifiable information. The PTA will
be submitted to FMCSA’s Privacy
Officer for review and preliminary
adjudication and to DOT’s Privacy
Officer for review and final
adjudication.
L. E.O. 12372 (Intergovernmental
Review)
The regulations implementing E.O.
12372 regarding intergovernmental
consultation on Federal programs and
activities do not apply to this program.
M. E.O. 13211 (Energy Supply,
Distribution, or Use)
FMCSA has analyzed this proposed
rule under E.O. 13211, Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use. FMCSA has
determined that it is not a ‘‘significant
energy action’’ under that order because
it is not a ‘‘significant regulatory action’’
likely to have a significant adverse effect
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on the supply, distribution, or use of
energy. Therefore, it does not require a
Statement of Energy Effects under E.O.
13211.
N. E.O. 13175 (Indian Tribal
Governments)
This rule does not have tribal
implications under E.O. 13175,
Consultation and Coordination with
Indian Tribal Governments, because it
does not have a substantial direct effect
on one or more Indian Tribes, on the
relationship between the Federal
government and Indian Tribes, or on the
distribution of power and
responsibilities between the Federal
Government and Indian Tribes.
O. National Technology Transfer and
Advancement Act (Technical
Standards)
The National Technology Transfer
and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use
voluntary consensus standards in their
regulatory activities unless the agency
provides Congress, through OMB, with
an explanation of why using these
standards would be inconsistent with
applicable law or otherwise impractical.
Voluntary consensus standards (e.g.,
specifications of materials, performance,
design, or operation; test methods;
sampling procedures; and related
management systems practices) are
standards developed or adopted by
voluntary consensus standards bodies.
This rule does not use technical
standards. Therefore, FMCSA did not
consider the use of voluntary consensus
standards.
P. Environment (NEPA)
FMCSA analyzed this NPRM
consistent with the National
Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.) and determined this
action is categorically excluded from
further analysis and documentation in
an environmental assessment or
environmental impact statement under
FMCSA Order 5610.1 (69 FR 9680 (Mar.
1, 2004)), Appendix 2, paragraph (6)(aa).
The Categorical Exclusion (CE) in
paragraph (6)(aa) relates to regulations
requiring motor carriers, drivers, and
others to ‘‘inspect, repair, and provide
maintenance for every CMV used on a
public road,’’ which is the focus of this
rulemaking. The proposed requirements
in this rule are covered by this CE, there
are no extraordinary circumstances
present, and the proposed action does
not have the potential to significantly
affect the quality of the environment.
The CE determination is available for
inspection or copying in the
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60997
regulations.gov website listed under
ADDRESSES.
List of Subjects in 49 CFR Part 396
Highway safety, Motor carriers, Motor
vehicle safety, Reporting and
recordkeeping requirements.
For the reasons stated in the
preamble, FMCSA proposes amending
title 49 CFR, Code of Federal
Regulations, chapter III, to read as
follows:
PART 396—INSPECTION, REPAIR,
AND MAINTENANCE
1. The authority citation for part 396
continues to read as follows:
■
Authority: 49 U.S.C. 504, 31133, 31136,
31151, and 31502; sec. 32934, Pub. L. 112–
141, 126 Stat. 405, 830; sec. 5524, Pub. L.
114–94, 129 Stat. 1312, 1560; and 49 CFR
1.87.
2. Amend § 396.11 by revising
paragraph (a)(2) to read as follows:
■
§ 396.11 Driver vehicle inspection
report(s).
(a) * * *
(2) Report content. (i) The report must
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 a
driver operates more than one vehicle
during the day, a report must be
prepared for each vehicle operated.
Drivers are not required to prepare a
report if no defect or deficiency is
discovered by or reported to the driver.
(ii) The driver must 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.
*
*
*
*
*
Issued under authority delegated in 49 CFR
1.87 on: November 4, 2019.
Jim Mullen,
Acting Administrator.
[FR Doc. 2019–24525 Filed 11–8–19; 8:45 am]
BILLING CODE 4910–EX–P
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Agencies
[Federal Register Volume 84, Number 218 (Tuesday, November 12, 2019)]
[Proposed Rules]
[Pages 60990-60997]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24525]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 396
[Docket No. FMCSA-2019-0075]
RIN 2126-AC29
Passenger Carrier No-Defect Driver Vehicle Inspection Reports
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
[[Page 60991]]
ACTION: Notice of proposed rulemaking.
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SUMMARY: FMCSA proposes to rescind the requirement that drivers of
passenger-carrying commercial motor vehicles (CMVs) operating in
interstate commerce, submit, and motor carriers retain, driver-vehicle
inspection reports (DVIRs) when the driver has neither found nor been
made aware of any vehicle defects or deficiencies (no-defect DVIRs).
This proposed rule would remove an information collection burden
without adversely impacting safety.
DATES: You must submit comments on or before January 13, 2020. Comments
sent to the Office of Information and Regulatory Affairs (OIRA) at the
Office of Management and Budget (OMB) on the collection of information
must be received by OMB on or before January 13, 2020.
ADDRESSES: You may submit comments identified by docket number FMCSA-
2019-0075 using any one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Fax: (202) 493-2251.
Mail: Docket Operations (M-30), U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE, Washington, DC 20590-0001.
Hand delivery: Same as mail address above, between 9 a.m.
and 5 p.m., e.t., Monday through Friday, except Federal holidays.
To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' heading under
the SUPPLEMENTARY INFORMATION section for instructions on submitting
comments, including information collection comments for OIRA at OMB.
FOR FURTHER INFORMATION CONTACT: Mr. Michael Huntley, Chief, Vehicle
and Roadside Operations Division, Office of Carrier, Driver & Vehicle
Safety Standards, at Federal Motor Carrier Safety Administration 1200
New Jersey Avenue SE, Washington, DC 20590-0001;
[email protected], (202) 366-4325. If you have questions on
viewing or submitting material to the docket, contact Docket
Operations, (202) 366-9826.
SUPPLEMENTARY INFORMATION:
I. Public Participation and Request For Comments
A. Submitting Comments
If you submit a comment, please include the docket number for this
notice of proposed rulemaking (NPRM) (FMCSA-2019-0075), indicate the
specific section of this document to which your 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 email 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 https://www.regulations.gov/#!docketDetail;D=FMCSA-2019-0075, click on the ``Comment Now!'' button
and type your comment into the text box on the following screen. Choose
whether you are submitting your comment as an individual or on behalf
of a third party and then submit.
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
comment period and may change this proposed rule based on your
comments. FMCSA may issue a final rule at any time after the close of
the comment period.
Confidential Business Information
Confidential Business Information (CBI) is commercial or financial
information that is both customarily and actually treated as private by
its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552),
CBI is exempt from public disclosure. If your comments responsive to
this NPRM contain commercial or financial information that is
customarily treated as private, that you actually treat as private, and
that is relevant or responsive to this NPRM, it is important that you
clearly designate the submitted comments as CBI. Please mark each page
of your submission that constitutes CBI as ``PROPIN'' to indicate it
contains proprietary information. FMCSA will treat such marked
submissions as confidential under the FOIA, and they will not be placed
in the public docket of this NPRM. Submissions containing CBI should be
sent to Mr. Brian Dahlin, Chief, Regulatory Analysis Division, Federal
Motor Carrier Safety Administration, 1200 New Jersey Avenue SE,
Washington DC 20590. Any comments that FMCSA receives which are not
specifically designated as CBI will be placed in the public docket for
this rulemaking.
B. Viewing Comments and Documents
To view comments, as well as any documents mentioned in this
preamble as being available in the docket, go to https://www.regulations.gov/#!docketDetail;D=FMCSA-2019-0075 and choose the
document to review. If you do not have access to the internet, you may
view the docket online by visiting Docket Operations in Room W12-140 on
the ground floor of the DOT 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
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice DOT/ALL-14 FDMS, which can be reviewed at https://www.transportation.gov/privacy.
D. Waiver of Advance Notice of Proposed Rulemaking
Under 49 U.S.C. 31136(g)(1), FMCSA is required to publish an
advance notice of proposed rulemaking (ANPRM) or conduct a negotiated
rulemaking if a proposed rule is likely to lead to the promulgation of
a major rule.\1\ As this proposed rule is not likely to result in the
promulgation of a major rule, the Agency is not required to issue an
ANPRM or to proceed with a negotiated rulemaking.
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\1\ A ``major rule'' means any rule that the Administrator of
OIRA at OMB finds has resulted in or is likely to result in (a) an
annual effect on the economy of $100 million or more; (b) a major
increase in costs or prices for consumers, individual industries,
Federal agencies, State agencies, local government agencies, or
geographic regions; or (c) significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based enterprises to compete with
foreign-based enterprises in domestic and export markets (5 U.S.C.
804(2)).
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E. Comments on the Collection of Information
If you have comments on the collection of information discussed in
this NPRM, you must also send those comments to the Office of
Information and Regulatory Affairs at OMB. To ensure that your comments
are received on time, the preferred methods of submission are by email
to [email protected] (include docket number ``FMCSA-2019-
0075'' and ``Attention: Desk Officer for
[[Page 60992]]
FMCSA, DOT'' in the subject line of the email) or fax at 202-395-6566.
An alternative, though slower, method is by United States mail to the
Office of Information and Regulatory Affairs, Office of Management and
Budget, 725 17th Street NW, Washington, DC 20503, ATTN: Desk Officer,
FMCSA, DOT. Although comments can be received up to the close of the
comment period, comments will be most useful if received by OIRA within
30 days of publication of this NPRM.
II. Executive Summary
Purpose of the Regulatory Action
As part of the Agency's ongoing effort to review existing
regulations to evaluate their continued necessity and effectiveness,
FMCSA proposes rescinding the requirement that drivers of passenger-
carrying CMVs operating in interstate commerce, submit, and motor
carriers retain, DVIRs when the driver has neither found nor been made
aware of any vehicle defects or deficiencies. This proposed rule would
remove an information collection burden without impacting safety
adversely.
Benefits and Costs
The proposed rule would affect all passenger carriers currently
subject to 49 CFR 396.11. Current regulations require drivers employed
by passenger carriers--except drivers for private (nonbusiness)
passenger carriers, driveaway-towaway operations, or those operating
only one CMV--to report on the DVIR any vehicle defects in need of
repair noted or discovered during a driving day. Drivers must submit
this report to the employing passenger carrier so that repairs can be
made. Regulations currently require drivers of passenger-carrying CMVs
to file the DVIR even if there are no vehicle defects to report. Motor
carriers are required to maintain the original DVIR, the certification
of repairs, and the certification of the driver's review for 3 months
from the date the written report was prepared. The proposed rule would
eliminate the need for a driver to file, and a motor carrier to
maintain, a no-defect DVIR.
The Agency estimates that passenger-carrying CMV drivers spend
approximately 2.4 million hours each year completing no-defect DVIRs,
and that the proposed rule would result in a cost savings of $74
million per year. There is no discernible safety benefit to this
burden.
If finalized, the proposed rulemaking would result in reduced
government-imposed costs, and therefore would be a deregulatory action
under Executive Order (E.O.) 13771, ``Reducing Regulation and
Controlling Regulatory Costs'' (issued January 30, 2017, and published
February 3, 2017, at 82 FR 9339). The present value of the cost
savings, measured on an infinite time horizon at a 7 percent discount
rate, expressed in 2016 dollars, would be $1 billion. On an annualized
basis, these cost savings would be $71 million.
III. Legal Basis for the Rulemaking
This proposed rule is based on the authority of the Motor Carrier
Act of 1935 (1935 Act) (49 U.S.C. 31502(b)) and the Motor Carrier
Safety Act of 1984 (1984 Act) (49 U.S.C. 31136(a)), both of which are
broadly discretionary.
The 1935 Act provides that the Secretary of Transportation
(Secretary) may prescribe requirements for the following:
Qualifications and maximum hours of service of employees
of, and safety of operation and equipment of, a motor carrier (Sec.
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 (Sec. 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. Section 31136(a) requires the
Secretary to publish regulations on CMV safety. Specifically, the Act
sets forth minimum safety standards to ensure that: (1) 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
32911 of the Moving Ahead for Progress in the 21st Century Act (MAP-21)
[Pub. L. 112-141, 126 Stat. 405, 818, July 6, 2012] enacted a fifth
requirement, i.e., to ensure that ``(5) an operator of a commercial
motor vehicle is not coerced by a motor carrier, shipper, receiver, or
transportation intermediary to operate a commercial motor vehicle in
violation of a regulation promulgated under this section, or chapter 51
or chapter 313 of this title'' (49 U.S.C. 31136(a)(5)). The 1984 Act
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 proposed rule implements, in part, the Administrator's
authority under Sec. 31136(a)(1) to ensure that CMVs are maintained,
equipped, loaded, and operated safely. The NPRM is also based on the
broad recordkeeping and implementation authority of Sec. 31133(a)(8)
and (10). This proposed rule addresses only CMV equipment and reporting
requirements. It does not address the question whether drivers'
responsibilities affect their ability to operate CMVs safely (49 U.S.C.
31136(a)(2)). The provisions of the 1984 Act dealing with the physical
condition of drivers (Sec. 31136(a)(3)-(4)) do not apply. Finally, as
to ensuring that operators of CMVs are not coerced by motor carriers,
shippers, receivers, or transportation intermediaries to operate a CMV
in violation of a regulation, the rule would eliminate only the
requirement for drivers of passenger-carrying CMVs to prepare reports
when there are no defects or deficiencies; it would keep in place the
rule requiring reports when there are defects or deficiencies, as well
as the requirement for motor carriers to take appropriate action on
receipt of the report when problems with the vehicle are noted. Because
the rule would remove a regulatory burden criticized by both drivers
and motor carriers (and irrelevant to passenger brokers or tour
groups), there is virtually no possibility that the driver of a
passenger-carrying CMV would be coerced to violate the rule itself. A
passenger carrier may require a driver to continue filing no-defect
DVIRs even in the absence of a regulatory requirement, but that would
be a condition of employment to perform duties not required by a safety
regulation, and would therefore not constitute coercion to violate a
safety regulation.
IV. Background
In response to a joint petition for rulemaking submitted by the
Ocean Carrier Equipment Management Association and the Institute of
International Container Lessors, FMCSA published a final rule on June
12, 2012 (77 FR 34846), eliminating the requirement for drivers
operating intermodal equipment (IME) to submit--and intermodal
equipment providers to retain--DVIRs when the driver has neither found
nor been made aware of any defects in the IME. The Agency estimated
that approximately 95 percent of DVIRs for IME do not identify
[[Page 60993]]
defects and concluded that requiring DVIRs to be filed only on the
roughly 5 percent of IME with defects would focus attention on the IME
that needs it--rather than the 95 percent with no defects. FMCSA
emphasized that the rule did not change a driver's obligation to assess
the condition of IME at the end of a workday to determine whether the
IME has defects or deficiencies that could affect operational safety.
Although FMCSA removed the requirement for a driver to complete a DVIR
if no defects or deficiencies had been discovered by or reported, the
driver must still inspect the IME to make this determination and
prepare a DVIR if defects or deficiencies are discovered or reported.
The Agency stated that it did not believe that implementation of the
rule would lead to an increase in safety risk because there are
multiple opportunities for IME to be inspected for potential safety
defects. FMCSA estimated the time and cost savings associated with the
rule due to reduced paperwork burdens to be 1.636 million hours and $54
million dollars annually.
Subsequently, and in response to Executive Order 13563, ``Improving
Regulation and Regulatory Review'' (issued January 18, 2011, and
published January 21, 2011, at 76 FR 3821), FMCSA published an NPRM on
August 7, 2013 (78 FR 48125) that proposed extending the same relief
regarding no-defect DVIRs to all interstate motor carriers subject to
part 396 of the FMCSRs, except operators of passenger-carrying CMVs.
FMCSA published a final rule on December 18, 2014 (79 FR 75437),
adopting the changes proposed in the NPRM. As with the June 2012 final
rule regarding no-defect DVIRs for IME, FMCSA concluded that the no-
defect DVIR requirements impose a substantial time and paperwork burden
on the trucking industry with no discernible safety benefit. FMCSA
estimated that non-passenger-carrying CMV drivers spend approximately
46.7 million hours each year completing no-defect DVIRs, and estimated
that the monetized value of this time was $1.7 billion per year.
V. Discussion of Proposed Rulemaking
The Agency proposes to rescind, for operators of passenger-carrying
CMVs, the requirement in 49 CFR 396.11(a)(2) that CMV drivers submit,
and motor carriers retain, DVIRs when the driver has neither found nor
been made aware of any vehicle defects or deficiencies.
Drivers and motor carriers have long been required to share the
safety responsibility for operating CMVs and for assessing the
condition of CMVs and documenting deficiencies and repairs. Section
392.7(a) states that ``No commercial motor vehicle shall be driven
unless the driver is satisfied that the following parts and accessories
are in good working order . . .'' Section 393.1(b)(1) provides that
``[e]very motor carrier and its employee must be knowledgeable of and
comply with the requirements and specifications of this part,'' and
Sec. 393.1(c) states that ``No motor carrier may operate a commercial
motor vehicle, or cause or permit such vehicle to be operated, unless
it is equipped in accordance with the requirements and specifications
of this part.'' Section 396.3(a)(1) requires that ``[p]arts and
accessories shall be in safe and proper operating condition at all
times.'' Section 396.11(a) states that every motor carrier must
``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,'' covering a specific list of parts and accessories. Section
396.11(c) states that ``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 a vehicle.''
FMCSA emphasizes that the Agency is not foregoing the fundamental
requirements of part 393, Parts and Accessories Necessary for Safe
Operation, nor is it proposing to change any other element of the
inspection, repair, and maintenance requirements of part 396. Drivers
will still be required to perform pre-trip evaluations of equipment
condition and complete DVIRs if any defects or deficiencies are
discovered or reported during the day's operations. Motor carriers will
still be required to have systematic inspection, repair, and
maintenance (including preventative maintenance) programs and maintain
records to prove measures are being taken to reduce to the extent
practicable, the risk of mechanical problems occurring while the
vehicle is in operation. In addition, motor carriers will still be
required to review DVIRs that list defects or deficiencies and take
appropriate action before the vehicle is dispatched again. The Agency
will retain the requirement that carriers complete periodic or annual
inspections and maintain documentation for the individuals who perform
periodic inspections and individuals responsible for performing brake-
related inspection, repair, and maintenance tasks. Furthermore, these
CMVs will remain subject to roadside inspections.
In excluding passenger-carrying CMVs from the December 2014 final
rule, FMCSA noted that (1) a passenger carrier crash is a low-
probability but high-consequence event in terms of potential deaths and
injuries, so vehicle maintenance is paramount, (2) motorcoach drivers
often need to interact with their passengers at the beginning and end
of their workday, and often during the trip as well, which may impact
the driver's ability to properly document defects and deficiencies in
the mechanical condition of the vehicle, and (3) because they are
carrying the most valuable cargo, motor carriers of passengers must
exercise heightened diligence over their operations, including CMV
maintenance.
FMCSA has reviewed available data spanning several years regarding
vehicle out-of-service rates for both trucks and passenger-carrying
vehicles, including data before and after implementation of the
December 2014 final rule. FMCSA's Motor Carrier Management Information
System (MCMIS) data show that the vehicle out-of-service rate for
trucks is consistently about 21 percent annually--both before and after
implementation of the December 2014 final rule. While the Agency
received several public comments during development of the December
2014 rule expressing concern that eliminating the requirement for no-
defect DVIRs would result in (1) a reduced level of safety and
maintenance and (2) a higher percentage of vehicle violations and out-
of-service orders, the data show that the vehicle out-of-service rate
for trucks has remained nearly constant before and after implementation
of the rule.
The MCMIS data also show that the vehicle out-of-service rate for
passenger-carrying vehicles is approximately 6.6 percent annually--
consistently less than one-third of the corresponding vehicle out-of-
service rate for trucks. From this data, motor carriers of passengers--
because of the nature of their operations and sensitive cargo that they
transport--have established and implemented comprehensive inspection,
repair and maintenance programs that help ensure that their vehicles
are in safe and proper operating condition at a rate that far exceeds
that of other CMVs. As noted above, implementation of the December 2014
rule eliminating the requirement for no-defect DVIRs for trucks has not
resulted in a reduced level of maintenance and safety or a higher
percentage of vehicle violations and out-of-service violations. Given
that passenger-carrying vehicles have a significantly lower vehicle
out-of-service rate generally, the Agency does not believe that
extending to them the same relief from the preparation and
[[Page 60994]]
retention of no-defect DVIRs will result in any degradation in safety.
Further, FMCSA emphasizes that it is not proposing to prohibit motor
carriers of passengers from requiring their drivers to prepare no-
defect DVIRs if they wish, but is only proposing to eliminate the
current requirement for a no-defect DVIR.
V. International Impacts
The FMCSRs, and any exceptions to the FMCSRs, apply only within the
United States (and, in some cases, United States territories). Motor
carriers and drivers are subject to the laws and regulations of the
countries in which they operate, unless an international agreement
states otherwise. Drivers and carriers should be aware of the
regulatory differences among nations.
VI. Section-by-Section Analysis
FMCSA proposes amending 49 CFR part 396 by deleting a portion of
the last sentence in Sec. 396.11(a)(2) that reads ``The driver of a
passenger-carrying CMV subject to this regulation must prepare a report
even if no defect or deficiency is discovered by or reported to the
driver; the drivers of all other commercial motor vehicles are not
required to prepare a report if no defect or deficiency is discovered
by or reported to the driver.'' FMCSA would revise the sentence to read
``Drivers are not required to prepare a report if no defect or
deficiency is discovered by or reported to the driver.''
VII. Regulatory Analyses
A. E.O. 12866 (Regulatory Planning and Review), E.O. 13563 (Improving
Regulation and Regulatory Review), and DOT Regulatory Policies and
Procedures
This proposed rule is not a significant regulatory action under
section 3(f) of E.O. 12866, Regulatory Planning and Review, as
supplemented by E.O. 13563 (76 FR 3821, January 21, 2011), and is also
not significant within the meaning of DOT regulatory policies and
procedures (DOT Order 2100.6, Dec. 18, 2018) and does not require an
assessment of potential costs and benefits under section 6(a)(4) of
that Order. The Office of Management and Budget has not reviewed it
under that Order.
Baseline for the Analysis
Under Sec. 396.11, interstate passenger carriers [except private
(nonbusiness) carriers, driveaway-towaway operations, or those
operating only one CMV] must require their drivers to prepare a DVIR at
the completion of work each day for each vehicle operated that covers
at a minimum:
Service brakes including trailer brake connections
Parking brake
Steering mechanism
Lighting devices and reflectors
Tires
Horn
Windshield wipers
Rear vision mirrors
Coupling devices
Wheels and rims
Emergency equipment.
The report must list any defect or deficiency discovered by or
reported to the driver which would affect the safety of operation or
result in mechanical breakdown. The driver must prepare and submit the
report even if no defect or deficiency is identified and the carrier
must retain the report for three months from the date the written
report was prepared.
Passenger carriers use various means of compliance with this
requirement including paper DVIRs and associated processes for tracking
and filing (e.g., separating DVIRs that identify defects from those
that do not; maintaining separate files of each) and electronic systems
for completing a DVIR and retaining the record.\2\
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\2\ J.J. Keller provides a sample paper report available at
https://www.jjkellertraining.com/Samples/28146_JJK_Motor_Coach_Vehicle_Inspections_DEMO/story_content/external_files/DVIR.pdf. A wide variety of vendors supply electronic
DVIR systems, such as https://www.teletracnavman.com/our-solutions/compliance/dvir, https://www.verizonconnect.com/resources/article/electronic-inspection-form-dvir/, and https://fleetrevolution.com/fleetrevolution-bus-dvir.
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FMCSA does not have information on the ratio of electronic versus
paper-based DVIR processes used by passenger carriers. Regardless of
the means of compliance, the burden associated with the existing
requirement to complete no-defect DVIRs is estimated at 155 seconds per
report in the most recent approved supporting statement for Information
Collection Request (ICR), OMB control number 2126-0003.
The supporting statement estimated that there are 247,496
passenger-carrying CMVs in operation and subject to the current DVIR
requirements. As such, the no-defect DVIR rule imposes a substantial
time and paperwork burden on passenger carriers with no discernible
safety benefit.
Costs
In 2014, the Agency estimated cost savings associated with
eliminating the requirement for no-defect DVIRs for property carrying
CMVs. As that rule is analogous to the proposed rule, this analysis
follows the same approach. The Agency's 2018 approved supporting
statement for ICR 2126-0003 states that there are 247,496 passenger-
carrying CMVs for which DVIRs must be prepared, submitted, and
reviewed. Consistent with the methodology of the supporting statement
and the 2014 analysis, the Agency assumes that each of these vehicles
is used 65 percent of the year, and that 95 percent of DVIRs are no-
defect DVIRs for which it estimated a burden of 155 seconds. Therefore,
the Agency estimated a paperwork burden of 2,401,747 hours [247,496
vehicles x (0.65 x 365) x 0.95 x 155 = 8,646,288,229 seconds or
2,401,747 hours]. Using a labor rate of $31 per hour,\3\ the Agency
estimates a potential cost savings of $74 million per year. Because
some carriers might choose to continue to require their drivers to
submit no-defect DVIRs, the actual cost savings could be less than the
potential. The Agency, however, assumes that a rational agent would
seek to reduce costs, and that all carriers subject to the proposed
rule would cease to require no-defect DVIRs. Therefore, the proposed
rule would result in cost savings of $74 million per year (Table 1).
The Agency welcomes input on the degree to which carriers subject to
the proposed rule would retain no-defect reporting.
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\3\ This wage is specific to bus drivers. Note that this rate
differs from that used in the approved supporting statement which
reflected the wage for a business operations specialist in the truck
transportation industry.
Table 1--Calculation of Annual Cost Savings
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Variable Value
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Number of CMVs.......................................... 247,496
Frequency of daily usage................................ 65%
Frequency of no-defect DVIRs............................ 95%
Time to complete a no-defect DVIR (seconds)............. 155
Total time saved (hours)................................ 2,401,747
Wage rate (per hour) \1\................................ $31
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Total savings....................................... $73,665,012
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\1\ Source: Bureau of Labor Statistics (BLS). 2019. May 2018 National
Industry-Specific Occupational Employment and Wage Estimates. https://www.bls.gov/bls/blswage.htm. Based on occupational code 53-3021, Bus
Drivers, Transit and Intercity. The wage rate is scaled up to reflect
an estimate of the total labor costs; wages and salaries accounted for
70.0% of total employee cost for private industry workers in December
2018 (BLS, 2019; https://www.bls.gov/news.release/pdf/ecec.pdf).
Benefits
The potential for the proposed rule to result in benefits relates
to the change in crash risk, if any, that would result
[[Page 60995]]
from allowing a defect-based DVIR approach. The Agency has no
information to suggest that preparation, submission, and review of no-
defect DVIRs produces a greater level of safety than that of a defect-
based approach. Further, no degradation in safety attributable to the
2014 elimination of the no-defect DVIR requirement for trucks has been
observed. Both the baseline approach and the defect-based approach
ensure that vehicles are inspected so that defects are noted and
addressed. Therefore, the proposed rule would be expected to maintain
the same level of safety. The Agency, however, seeks comment on the
safety impact of the proposed rule and notes that commenters to the
analogous rule for trucks had varied opinions regarding whether no-
defect DVIRs are of value with respect to safety (see Docket No. FMCSA-
2012-0036).
B. E.O. 13771 (Reducing Regulation and Controlling Regulatory Costs)
This proposed rule would have total costs less than zero, and is
therefore an E.O. 13771 deregulatory action.\4\ The present value of
the cost savings of this rule, measured on an infinite time horizon at
a 7 percent discount rate, expressed in 2016 dollars, and discounted to
2020 (the year the rule goes into effect and cost savings would first
be realized), is $1 billion. On an annualized basis, these cost savings
are $71 million.
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\4\ Executive Office of the President. Office of Management and
Budget. Memorandum M-17-21. Guidance Implementing Executive Order
13771. April 5, 2017. Q4 on page 4.
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For E.O. 13771 accounting, the April 5, 2017, OMB guidance requires
that agencies also calculate the costs and cost savings discounted to
year 2016.\5\ In accordance with this requirement, the present value of
the cost savings of this rule, measured on an infinite time horizon at
a 7 percent discount rate, expressed in 2016 dollars, and discounted to
2016, is $771 million. On an annualized basis, these cost savings are
$54 million.
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\5\ Executive Office of the President. Office of Management and
Budget. Memorandum M-17-21. Guidance Implementing Executive Order
13771. April 5, 2017. Q25 on page 11.
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C. Regulatory Flexibility Act (Small Entities)
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires Federal agencies to consider the effects of a regulatory
action on small business and other small entities and to minimize any
significant economic impact. The term ``small entities'' comprises
small businesses and not-for-profit organizations that are
independently owned and operated and are not dominant in their fields
and governmental jurisdictions with a population of less than
50,000.\6\
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\6\ Regulatory Flexibility Act (5 U.S.C. 601 et seq.), see
National Archives at https://www.archives.gov/federal-register/laws/regulaotry-flexibility/601.html.
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Accordingly, DOT policy requires an analysis of the impact of all
regulations on small entities, and mandates that agencies try to
minimize any adverse effects on these entities. Under the Regulatory
Flexibility Act, as amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 (SBREFA) (Pub. L. 104-121, 110 Stat.
857), the proposed rule is expected to have a positive economic impact
on small entities in the form of cost savings through the elimination
2.4 million paperwork burden hours.
FMCSA invites comment from members of the public who believe there
will be a significant impact either on small businesses or on
governmental jurisdictions with a population of less than 50,000.
Initial Regulatory Flexibility Analysis (IRFA)
(1) A description of the reason why action by the Agency is being
considered.
FMCSA proposes rescinding the requirement that drivers of
passenger-carrying CMVs submit, and motor carriers retain, a DVIR when
the driver has neither found nor been made aware of any vehicle defects
or deficiencies (no-defect DVIR). This proposed rule would remove a
significant information collection burden without adversely impacting
safety.
(2) A succinct statement of the objectives of, and legal basis for,
the proposed rule.
The objective of the NPRM is to eliminate a paperwork burden on
passenger-carrying motor carriers currently subject to 49 CFR 396.11.
This proposed rule is based on the authority of the 1935 Act and the
1984 Act, both of which are broadly discretionary. The rule implements,
to some extent, the Administrator's authority under Sec. 31136(a)(1)
to ensure that CMVs are maintained, equipped, loaded, and operated
safely. The NPRM is also based on the broad recordkeeping and
implementation authority of Sec. 31133(a)(8) and (10). The removal of
the obligation to prepare and retain no-defect DVIRs would not
compromise drivers' ability to report vehicle problems to the carrier,
or relieve carriers of the responsibility to act to correct such
problems.
(3) A description of and, where feasible, an estimate of the number
of small entities to which the proposed rule would apply.
The Small Business Administration (SBA) has established size
standards for various types of economic activities, or industries,
under the North American Industry Classification System (NAICS). These
size standards generally define small businesses based on the number of
employees or annual receipts. For example, the SBA defines a small
business in the transit and ground passenger transportation subsectors
(NAICS 485) as an entity with annual revenue of less than $15 million
(13 CFR 121.201). The SBA definition of a small business applies to a
firm's highest domestic parent entity and all affiliates as a single
entity. The business size is determined based on the primary economic
sector of the parent company, which is not necessarily NAICS 485.
FMCSA data indicate a total of 8,189 interstate and intrastate
passenger carriers. However, the Agency does not have data on company
affiliations, NAICS, and revenues or employees with which to determine
how many of these carriers are small entities.
(4) A description of the projected reporting, recordkeeping, and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities which would be subject to
requirements and the type of professional skills necessary for
preparation of the report or record.
The proposed rule eliminates the need for drivers of passenger-
carrying CMVs to complete a DVIR on days during which they do not
identify any defects. The companies for which these drivers work would
also be spared the burden of maintaining no-defect reports. The
proposed rule would apply to interstate passenger carriers (except
private (nonbusiness) carriers, driveaway-towaway operations, or those
operating only one CMV). The skills necessary for drivers to complete
the report are knowledge of vehicle operation and maintenance. The
skills necessary for motor carrier staff maintaining these records may
be administrative as well as those of a safety or regulatory compliance
clerk.
(5) Identification, to the extent practicable, of all relevant
Federal rules which may duplicate, overlap, or conflict with the
proposed rule.
This proposed rule does not duplicate, overlap, or conflict with
any Federal rules.
(6) A description of any significant alternatives to the proposed
rule which accomplish the stated objectives of applicable statutes and
which minimize
[[Page 60996]]
any significant economic impact of the proposed rule on small entities.
The Agency has concluded that there are no significant alternatives
to the proposed rule that would eliminate the paperwork burden without
requiring additional investment (e.g., in electronic DVIR systems).
D. Assistance for Small Entities
Pursuant to section 213 of SBREFA, FMCSA wants to assist small
entities in understanding this proposed rule so that they can better
evaluate its effects on them and participate in the rulemaking
initiative. If the proposed rule would affect your small business,
organization, or governmental jurisdiction and you have questions
concerning its provisions or options for compliance, please consult the
FMCSA point of contact, listed in the FOR FURTHER INFORMATION CONTACT
section of this proposed rule.
Small businesses may send comments on the actions of Federal
employees who enforce or otherwise determine compliance with Federal
regulations to the Small Business Administration's Small Business and
Agriculture Regulatory Enforcement Ombudsman and the Regional Small
Business Regulatory Fairness Boards. The Ombudsman evaluates these
actions annually and rates each agency's responsiveness to small
business. If you wish to comment on actions by employees of FMCSA, call
1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights
of small entities to regulatory enforcement fairness and an explicit
policy against retaliation for exercising these rights.
E. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. The Act addresses actions that may result in the
expenditure by a State, local, or tribal government, in the aggregate,
or by the private sector of $165 million (which is the value equivalent
of $100,000,000 in 1995, adjusted for inflation to 2018 levels) or more
in any one year. Though this proposed rule would not result in such an
expenditure, the Agency does discuss the effects of this rule in this
preamble.
F. 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 proposed rule would
result in a reduction of burden hours for the ``Inspection, Repair, and
Maintenance'' ICR, OMB control number 2126-0003. This ICR comprises ten
individual information collections, each corresponding to a different
area of the inspection, repair, and maintenance requirements. This
proposed rule affects only the ICR section dealing with the Driver
Vehicle Inspection Reports for Burden for No-Defect DVIRs for
Passenger-Carrying Vehicles.
In 2018, based on data from its Motor Carrier Management
Information System (MCMIS) and Licensing and Insurance System (L&I),
FMSCA estimated that there are approximately 247,496 passenger-carrying
CMVs. Consistent with past analyses of this ICR, the Agency assumed
that these CMVs are used on average 65 percent of the year.
FMCSA has divided the DVIR process into two steps. The Agency
estimated the first step, filling out a DVIR, to take 2 minutes, 30
seconds. The Agency estimated the second step, reviewing and signing a
DVIR, to take 20 seconds when defects are reported and 5 seconds when
no defects are reported. When there are no defects to note, there is
nothing to review on the DVIR, and the form requires only a signature.
The Agency estimates that 5 percent of DVIRs note defects and 95
percent of DVIRs note no defects.
If this proposed rule were to be finalized, the burden associated
with no-defect DVIRs for passenger-carrying CMVs would be eliminated.
The table below illustrates how this result is calculated.
Table 2--Detail of No-Defect DVIR PRA Calculations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total DVIRs
(CMVs x
Number of Utilization utilization
Activity passenger- rate (of 365 Percent of rate x percent Burden per DVIR (seconds) Total annual
carrying CMVs calendar days) CMVs affected of CMVs hourly burden
affected x
365)
--------------------------------------------------------------------------------------------------------------------------------------------------------
No Defect DVIRS, passenger-carrying CMVs.. 247,496 65% 95% 152,829 155......................... 2,401,747
--------------------------------------------------------------------------------------------------------------------------------------------------------
If this proposed rule were to be finalized, the annual reduction in
hourly burdens associated with elimination of no defect DVIRs for
passenger carrying CMVs is estimated to be 2,401,747 (247,496 CMVs x
65% utilization x 365 days x 95% of CMVs x 155 seconds / 3,600 seconds
per hour). The monetary value of this annual burden reduction,
calculated using an hourly labor cost of $31, is $73,665,012 million
(2,401,747 hours x $31, per hour).\7\
---------------------------------------------------------------------------
\7\ 1. Source: Bureau of Labor Statistics (BLS). 2019. May 2018
National Industry-Specific Occupational Employment and Wage
Estimates. https://www.bls.gov/bls/blswage.htm. Based on
occupational code 53-3021, Bus Drivers, Transit and Intercity. The
wage rate is scaled up to reflect an estimate of the total labor
costs; wages and salaries accounted for 70.0% of total employee cost
for private industry workers in December 2018 (BLS, 2019; https://www.bls.gov/news.release/pdf/ecec.pdf).
---------------------------------------------------------------------------
G. 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 determined that this proposal would not have
substantial direct costs on or for States nor would it limit the
policymaking discretion of States. Nothing in this document preempts
any State law or regulation. Therefore, this rule does not have
sufficient Federalism implications to warrant the preparation of a
Federalism Impact Statement.
H. E.O. 12988 (Civil Justice Reform)
This proposed rule 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 60997]]
I. E.O. 13045 (Protection of Children)
Executive Order 13045, Protection of Children from Environmental
Health Risks and Safety Risks (62 FR 19885, April 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. FMCSA determined this proposed 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.
J. E.O. 12630 (Taking of Private Property)
FMCSA reviewed this proposed rule in accordance with E.O. 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights, and has determined it would not effect a taking of
private property or otherwise have taking implications.
K. Privacy
The Consolidated Appropriations Act, 2005, (Pub. L. 108-447, 118
Stat. 2809, 3268, 5 U.S.C. 552a note) requires the Agency to conduct a
privacy impact assessment of a regulation that will affect the privacy
of individuals. The Agency will complete a Privacy Threshold Assessment
(PTA) to evaluate the risks and effects the proposed rulemaking might
have on collecting, storing, and sharing personally identifiable
information. The PTA will be submitted to FMCSA's Privacy Officer for
review and preliminary adjudication and to DOT's Privacy Officer for
review and final adjudication.
L. E.O. 12372 (Intergovernmental Review)
The regulations implementing E.O. 12372 regarding intergovernmental
consultation on Federal programs and activities do not apply to this
program.
M. E.O. 13211 (Energy Supply, Distribution, or Use)
FMCSA has analyzed this proposed rule under E.O. 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. FMCSA has determined that it is not a
``significant energy action'' under that order because it is not a
``significant regulatory action'' likely to have a significant adverse
effect on the supply, distribution, or use of energy. Therefore, it
does not require a Statement of Energy Effects under E.O. 13211.
N. E.O. 13175 (Indian Tribal Governments)
This rule does not have tribal implications under E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, because
it does not have a substantial direct effect on one or more Indian
Tribes, on the relationship between the Federal government and Indian
Tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian Tribes.
O. National Technology Transfer and Advancement Act (Technical
Standards)
The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through OMB, with an explanation of why using these standards would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards (e.g., specifications of materials, performance,
design, or operation; test methods; sampling procedures; and related
management systems practices) are standards developed or adopted by
voluntary consensus standards bodies. This rule does not use technical
standards. Therefore, FMCSA did not consider the use of voluntary
consensus standards.
P. Environment (NEPA)
FMCSA analyzed this NPRM consistent with the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.) and determined this action
is categorically excluded from further analysis and documentation in an
environmental assessment or environmental impact statement under FMCSA
Order 5610.1 (69 FR 9680 (Mar. 1, 2004)), Appendix 2, paragraph
(6)(aa). The Categorical Exclusion (CE) in paragraph (6)(aa) relates to
regulations requiring motor carriers, drivers, and others to ``inspect,
repair, and provide maintenance for every CMV used on a public road,''
which is the focus of this rulemaking. The proposed requirements in
this rule are covered by this CE, there are no extraordinary
circumstances present, and the proposed action does not have the
potential to significantly affect the quality of the environment. The
CE determination is available for inspection or copying in the
regulations.gov website listed under ADDRESSES.
List of Subjects in 49 CFR Part 396
Highway safety, Motor carriers, Motor vehicle safety, Reporting and
recordkeeping requirements.
For the reasons stated in the preamble, FMCSA proposes amending
title 49 CFR, Code of Federal Regulations, chapter III, to read as
follows:
PART 396--INSPECTION, REPAIR, AND MAINTENANCE
0
1. The authority citation for part 396 continues to read as follows:
Authority: 49 U.S.C. 504, 31133, 31136, 31151, and 31502; sec.
32934, Pub. L. 112-141, 126 Stat. 405, 830; sec. 5524, Pub. L. 114-
94, 129 Stat. 1312, 1560; and 49 CFR 1.87.
0
2. Amend Sec. 396.11 by revising paragraph (a)(2) to read as follows:
Sec. 396.11 Driver vehicle inspection report(s).
(a) * * *
(2) Report content. (i) The report must 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 a driver operates more than one vehicle
during the day, a report must be prepared for each vehicle operated.
Drivers are not required to prepare a report if no defect or deficiency
is discovered by or reported to the driver.
(ii) The driver must 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.
* * * * *
Issued under authority delegated in 49 CFR 1.87 on: November 4,
2019.
Jim Mullen,
Acting Administrator.
[FR Doc. 2019-24525 Filed 11-8-19; 8:45 am]
BILLING CODE 4910-EX-P