Inspection, Repair, and Maintenance; Driver-Vehicle Inspection Report (DVIR) |
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Anthony R. Foxx
Federal Motor Carrier Safety Administration
December 18, 2014
[Federal Register Volume 79, Number 243 (Thursday, December 18, 2014)]
[Rules and Regulations]
[Pages 75437-75449]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-29331]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 392 and 396
[Docket No. FMCSA-2012-0336]
RIN 2126-AB46
Inspection, Repair, and Maintenance; Driver-Vehicle Inspection
Report (DVIR)
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule.
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SUMMARY: FMCSA rescinds the requirement that commercial motor vehicle
(CMV) drivers operating in interstate commerce, except drivers of
passenger-carrying CMVs, submit, and motor carriers retain, DVIRs when
the driver has neither found nor been made aware of any vehicle defects
or deficiencies. This rule also harmonizes the pre- and post-trip
inspection lists. It responds in part to the President's January 2011
Regulatory Review and Reform initiative, removing a significant
information collection burden without adversely impacting safety. The
Agency also makes a technical change to Sec. 396.11 to eliminate
redundant language.
DATES: This final rule is effective December 18, 2014.
Petitions for Reconsideration of this final rule must be submitted
to FMCSA Administrator no later than January 20, 2015.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Mr. Mike Huntley, Vehicle and Roadside Operations
Division, Office of Bus and Truck Standards and Operations, Federal
Motor Carrier Safety Administration, telephone: 202-366-4325.
SUPPLEMENTARY INFORMATION:
Executive Summary of the Benefits and Costs
This rule affects all motor carriers currently subject to 49 CFR
396.11, both private and for-hire, with the exception of operators of
passenger-carrying CMVs. Current safety regulations require drivers
employed by motor carriers to prepare a written report at the
completion of each day's work, on each vehicle operated, that lists 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. This report must be submitted to the employing
[[Page 75438]]
motor carrier so that repairs can be made. Regulations now require
drivers to file the DVIR at the end of each tour of duty, even if there
are no vehicle defects to report. The rule eliminates the need to file
a no-defect DVIR, except for operations involving passenger-carrying
CMVs.
The no-defect DVIR imposes a substantial time and paperwork burden
on the trucking industry, with no discernible safety benefit. The
Agency estimates that non-passenger-carrying CMV drivers spend
approximately 46.7 million hours each year completing no-defect DVIRs,
time which could be dedicated to other purposes. FMCSA estimates that
the monetized value of this time is currently $1.7 billion per year,
which is the estimated benefit that would result from the adoption of
the rule.
Table 1--Summary of the Monetized Benefits, Costs and Net Benefits of the Rule
----------------------------------------------------------------------------------------------------------------
10 Years, 7 10 Years, 3
Annual percent discount percent discount
rate rate
----------------------------------------------------------------------------------------------------------------
Monetized Benefits..................................... \1\ $1.7 \1\ $12.8 \1\ $14.9
Costs.................................................. 0 0 0
--------------------------------------------------------
Net Benefits....................................... \1\ 1.7 \1\ 12.8 \1\ 14.9
----------------------------------------------------------------------------------------------------------------
\1\ Billion.
Background
Presidential Executive Order (E.O.) 13563, ``Improving Regulation
and Regulatory Review'' (issued January 18, 2011, and published January
21 at 76 FR 3821), prompted DOT to publish a notice in the Federal
Register (76 FR 8940, February 16, 2011). This notice requested
comments on a plan for reviewing existing rules, as well as
identification of existing rules that DOT should review because they
may be outmoded, ineffective, insufficient, or excessively burdensome.
DOT placed all retrospective regulatory review comments, including a
transcript of a March 14, 2011, public meeting, in docket DOT-OST-2011-
0025. DOT received comments from 102 members of the public, with many
providing multiple suggestions. FMCSA received one comment from the
American Trucking Associations, Inc. (ATA) concerning what it
considered duplicative driver vehicle inspection requirements in 49 CFR
parts 392 and 396. Although FMCSA agrees that there is some
duplication, the Agency did not believe that it resulted in unnecessary
actions or an information collection burden. However, FMCSA did
discover a related information collection burden that it considers
unnecessary and removes in this final rule.
It has always been the responsibility of a CMV driver to report
vehicle defects. In 1939, the Interstate Commerce Commission (ICC)
issued regulations requiring every driver to submit a written report on
the condition of the vehicle at the end of each day's work or tour of
duty. At a minimum, the report had to include information about any
vehicle defect or deficiency the driver discovered that would likely
affect the safety of operation of that vehicle (4 FR 2294 at 2305, June
7, 1939). The ICC recommended, but did not require, that motor carriers
use a `Driver's Trip Report,' and it provided a sample report format in
its 1939 notice. The sample report format included the driver's name,
vehicle number, date, a list of 20 items for inspection, and a space
for the driver and mechanic to note defects. This report is now called
a DVIR, but the current rule does not include a sample report form. The
requirements to prepare, submit, and retain a no-defect DVIR have been
in the safety regulations since 1952 (17 FR 4422, 4452, May 15, 1952).
In a separate report (54 M.C.C. 337, at 356, April 14, 1952) the ICC
explained that it was revising its rule to improve motor carriers'
inspection and maintenance procedures and recordkeeping. The ICC noted
that the most substantial recordkeeping change proposed and adopted was
for the driver to complete the vehicle condition report or trip ticket
at the end of the day's work or tour of duty whether or not any defect
or deficiency in the equipment is discovered, ``. . . in order to
provide a continuous record of vehicle condition and to insure that the
reports, particularly those involving defects, will be made out
currently and maintained on a current basis.''
On December 17, 2008, FMCSA published a final rule to implement
Sec. 4118 of the Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users (SAFETEA-LU) [Pub. L. 109-59, 119 Stat.
1144, 1729, Aug. 10, 2005], dealing with the safety of chassis used to
transport intermodal containers (73 FR 76794). Among other things,
Sec. 4118 called for the Secretary to mandate ``a process by which a
driver or motor carrier transporting intermodal equipment [IME] is
required to report to the intermodal equipment provider [IEP] or the
provider's designated agent any actual damage or defect in the
intermodal equipment of which the driver or motor carrier is aware at
the time the intermodal equipment is returned to the intermodal
equipment provider or the provider's designated agent'' (49 U.S.C.
31151(a)(3)(L)). FMCSA's 2008 rule included a new code section--49 CFR
390.42--which prescribed the responsibilities of drivers and motor
carriers when operating IME. Section 390.42(b) required the driver or
motor carrier to report any damage to or deficiencies in certain IME
parts and accessories at the time the equipment is returned to the IEP.
Importantly, FMCSA did not propose any changes to Sec. 396.11(a),
``Report content,'' which requires--both for IME and non-IME--that ``If
no defect or deficiency is discovered by or reported to the driver, the
report shall so indicate.''
On March 31, 2010, the Ocean Carrier Equipment Management
Association (OCEMA) and Institute of International Container Lessors
(IICL) jointly filed a petition for rulemaking to rescind the part of
Sec. 390.42(b) that required drivers to file no-defect DVIRs on IME
they return to IEPs. OCEMA and IICL requested that FMCSA delete the
sentence ``if no damage, defects, or deficiencies are discovered by the
driver, the report shall so indicate.''
The petitioners presented four arguments supporting their request:
1. Section 4118 of SAFETEA-LU requires DVIRs only for known damage
or defects. Congress could have added a requirement to file no-defect
DVIRs but did not do so.
2. There is significant risk that a large volume of no-defect DVIRs
could overwhelm the small proportion (4 percent) of DVIRs that report
damage or defects.
[[Page 75439]]
3. Data transmission, processing, and storage requirements for no-
defect DVIRs could add significant unnecessary costs to intermodal
operations without providing offsetting benefits.
4. Submission of no-defect DVIRs contributes to driver productivity
losses in the form of congestion and delay at intermodal facilities.
On June 12, 2012 (77 FR 34846), the Agency published a final rule
eliminating the requirement for drivers operating IME to submit--and
IEPs to retain--DVIRs when the driver has neither found nor been made
aware of any defects in the IME. The Agency now extends this relief
from the paperwork requirement to all interstate motor carriers subject
to Part 396 of the Federal Motor Carrier Safety Regulations (FMCSRs),
except operators of passenger-carrying CMVs.
FMCSA emphasizes that the Agency is not foregoing the fundamental
requirements of Part 393, Parts and Accessories Necessary for Safe
Operation. Nor is it making any changes to 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 programs (including preventative maintenance) and maintain
records to prove measures are being taken to reduce to the extent
practicable, the risk of mechanical problems happening while the
vehicle is in operation. In addition, motor carriers will still be
required to review driver vehicle inspections that list defects or
deficiencies and take appropriate action before the vehicle is
dispatched again. The Agency will retain the requirement for carriers
to 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 continue to be subject
to roadside inspections. In short, the existing regulations place
shared responsibility on drivers and motor carriers to ensure that CMVs
used in interstate commerce are in safe and proper operating condition.
This final rule does not change a driver's obligation to report on the
condition of the CMVs and to report to the motor carrier any defects or
deficiencies that could affect the safety of its operation.
Legal Basis for the Rulemaking
This 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:
Qualifications and maximum hours of service of employees
of, and safety of operation and equipment of, a motor carrier (section
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 (section 31502(b)(2)).
This rulemaking is based on the Secretary's authority under both
section 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
requires the Secretary to prescribe 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] added 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 also grants the Secretary broad power in
carrying out motor carrier safety statutes and regulations to
``prescribe recordkeeping and reporting requirements'' and to ``perform
other acts the Secretary considers appropriate'' (49 U.S.C. 31133(a)(8)
and (10)).
This rule implements, in part, the Administrator's authority under
section 31136(a)(1) to ensure that CMVs are maintained, equipped,
loaded, and operated safely. The final rule is also based on the broad
recordkeeping and implementation authority of section 31133(a)(8) and
(10). This rule addresses only CMV equipment and reporting
requirements. The provisions of the 1984 Act dealing with the physical
condition of drivers therefore do not apply (section 31136(a)(3)-(4)).
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 eliminates only
the requirement for drivers (except drivers of passenger-carrying CMVs)
to prepare reports when there are no defects or deficiencies; it
preserves 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. The removal of the requirement to prepare and retain
no-defect DVIRs therefore will not compromise drivers' ability to
report vehicle problems to the carrier, or relieve carriers of the
responsibility to take action. Furthermore, elimination of the no-
defect DVIRs will not compromise drivers' protection under existing
whistleblower statutes concerning employers taking adverse action
against drivers for refusing to violate the FMCSRs. The rule thus
provides protection against coercion of drivers by motor carriers.
Finally, because the rule removes a regulatory burden criticized by
both drivers and motor carriers (and irrelevant to shippers, receivers,
and transportation intermediaries), there is virtually no possibility
that a CMV operator will be coerced to violate the rule itself. It is
true, of course, that a motor carrier could insist that a driver
continue filing no-defect DVIRs even in the absence of a regulatory
requirement, but that would be a condition of employment, not coercion
to violate a safety regulation.
Discussion of Comments
On August 7, 2013, FMCSA published a notice of proposed rulemaking
(NPRM) (78 FR 48125). The Agency proposed to rescind the requirement
that CMV drivers, operating in interstate commerce, except drivers of
passenger-carrying CMVs, submit, and motor carriers retain, driver-
vehicle inspection reports when the driver neither found nor been made
aware any vehicle defects or deficiencies.
FMCSA received 41 comments from the following:
Two governmental agencies: National Transportation Safety
Board (NTSB) and Canadian Council of Motor Transport Administrators
(CCMTA).
[[Page 75440]]
Six motor carriers: Atlas PyroVision Productions, Con-way
Freight, Payne and Dolan, Pyro Spectaculars, RES Specialty
Pyrotechnics, and Wald and Company.
Nine industry associations: American Moving and Storage
Association (AMSA), American Pyrotechnics Association (APA), American
Truck Dealers Division of the National Automobile Dealers Association
(ATD), American Trucking Associations (ATA), California Trucking
Association (CTA), National Motor Freight Traffic Association (NMFTA),
New England Fuel Institute (NEFI), Petroleum Marketers Association of
America (PMAA), and National Strategic Shippers Transportation Council
(NASSTRAC).
Two advocacy organizations: American Association for
Justice (AAJ) and Advocates for Highway and Auto Safety (Advocates).
Two providers of fleet management software: Zonar Systems
(Zonar) and J. Hart of Fleettrakker LLC.
20 individuals.
Several commenters, including Advocates, ATA, and the NTSB,
commented on matters outside the scope of this rulemaking (including
hours-of-service regulations, transmittal of driver medical
certification information, and brake system and tire inspection
procedures).
Con-way Freight pointed out an erroneous reference to Sec.
396.11(b)(2), rather than Sec. 396.11(a)(2). FMCSA published a
correction notice in the Federal Register on September 6, 2013 (78 FR
54861) to address this error.
Comments Supporting the Proposal
Thirty-one commenters favored FMCSA's proposal. Most pointed to the
potential savings in time and paperwork.
APA stated the current DVIR rule ``is an excellent example of an
ineffective and excessively burdensome paperwork requirement.'' Four
motor carriers stated they supported APA's position on the proposed
rule.
Collette Gott, who identified herself as a trucking company safety
director, said the proposed rule would encourage motor carriers to
shift their focus from mere recordkeeping to CMV safety and maintenance
activities and would improve communications between drivers and
maintenance shop staff, as well as lead to better recordkeeping.
Because she recognized that a requirement to complete a record of an
inspection does not guarantee that the inspection gets done, she also
maintained that motor carriers will continue to develop and implement
oversight procedures.
Zonar, a provider of fleet management systems, supported the
proposed rulemaking.
Con-way Freight stated that it supported the proposal in its
entirety.
NMFTA stated its support for the proposed rule. NASSTRAC and CTA
both supported the proposed rule and asked FMCSA to continue to
eliminate or lessen regulations which have costs that outweigh
benefits. ATD also supported the proposed rule, stating that a DVIR is
one element of an inspection, repair, and maintenance program, and it
only makes sense for the driver to prepare and retain formal inspection
reports if the driver discovers safety-related defects or deficiencies.
PMAA and NEFI both favored the proposed rule. PMAA wrote ``We
applaud the FMCSA for recognizing that keeping non-defect DVIR reports
on file does nothing to ensure the safe maintenance of CMVs in
interstate commerce. PMAA believes keeping both non-defect DVIRs and
defect DVIRs can lead to filing errors that unnecessarily delay repairs
on CMVs to the detriment of both operational safety and small motor
carriers who are perpetually overburdened by unnecessary paperwork.''
Both PMAA and NEFI also provided detailed responses to the questions
FMCSA asked in the NPRM concerning procedures for handling DVIRs.
An individual commenter noted that, in the fuel-hauling business,
the large number of rules imposed by Federal, State, and local
governments, as well as by fuel transfer facilities (``loading racks'')
is confusing to both drivers and motor carriers and leads to errors and
reduced safety. In his view, reducing the burden on drivers will be
helpful.
ATA supported the proposal, arguing that the current requirement
produces a regulatory burden without a safety benefit. However, ATA
raised questions concerning FMCSA's computation of the information
collection burden. FMCSA addresses those questions below under the
heading ``Information Collection Burden Estimates.''
Stephen Carter, a professional driver and private pilot, supported
the proposed rule because it would improve his and his carrier's
efficiency by eliminating a time- and resource-intensive requirement.
He added that it is very much in his and his carrier's interest for him
to report equipment defects and for the carrier to remedy them before
his CMV is operated. Although he stated that the vast majority of DVIRs
submitted currently indicate no defects, he strongly disagreed with the
notion, as expressed by some of the opposing comments that drivers
would neglect to inspect their CMVs or perform inadequate inspections
with the aim of not submitting a DVIR. Mr. Carter added that, as a
private pilot, he is bound by Federal Aviation Administration (FAA)
regulations--and those regulations require a report only if the pilot
finds a safety-related defect in a pre-flight or post-flight
inspection.
Twelve other individuals also expressed their support for the
proposal. Several of them noted potential savings in time, resources,
and paper.
Three commenters--ATD, NTSB, and Zonar--addressed the proposed
harmonization of the part 392 pre-inspection and part 396 DVIR lists.
All of them supported it.
Comments Opposed to the Proposal: Preference for Retaining Full
Reporting Versus Proposed Reporting-By-Exception
AAJ believes that eliminating no-defect DVIRs will dramatically
increase truck accidents, injuries, and fatalities. AAJ states that
``Most truck drivers use the daily report as a checklist, much like
airline pilots. Thus, eliminating DVIRs will be interpreted by many
drivers as eliminating the necessity for a pre-trip inspection.'' AAJ
contended that even drivers who understand that an inspection is still
necessary ``would not have the report and its list of parts and
accessories to use as a checklist.''
An individual, Clay Eppard, characterized the DVIR as a vital line
of communication between drivers and mechanics/motor carriers to
promote vehicle safety. He noted that drivers often include ``non-
safety-related'' defects in their DVIRs, and that some of those defects
could affect vehicle safety if they are not addressed in a timely
fashion.
AMSA opposed the proposal because it and its members consider the
submittal of no-defect DVIRs to be a critical component of preemptive
maintenance, and thus an important facet to the general operation of a
safe and compliant motor carrier. AMSA and its member companies believe
that if FMCSA rescinds the requirement for no-defect DVIRs, drivers
could become complacent and this could adversely affect safety and
operational practices. AMSA stated that many of its members will
continue to require that drivers submit all DVIRs to their respective
carriers, regardless of FMCSA's decision.
Similarly, Advocates contended that eliminating the requirement
would lead to less attention being paid to vehicle
[[Page 75441]]
safety and maintenance, and a higher percentage of vehicle violations
and out-of-service (OOS) orders. Advocates asserted that the process of
completing the DVIR is a driver's responsibility--and it makes the
driver consider the operation of the CMV during the previous trip,
including any problems that did not actually disable it. Advocates
stated, ``It is inappropriate to allow motor carriers and vehicle
maintenance staffs to assume that the failure to complete a report
means that no vehicle maintenance or safety issues were encountered.''
The NTSB believes that daily safety inspection is an important
component of effective vehicle maintenance, noting that many motor
carriers employ inspection checklists. The Board stated that the
checklists serve as ``job aids'' for drivers, provide documentation
that the driver has completed the daily inspection, and serve as a
means of communication between drivers and maintenance workers about
vehicle safety issues. The NTSB pointed out that similar inspection
reports are required in other transportation modes and in the military,
and noted that the use of safety checklists has been shown to improve
safety outcomes in many non-transportation settings. The NTSB went on
to say that, ``Although the requirement to submit a no-defect DVIR is
not a guarantee that drivers will conduct thorough vehicle inspections,
the requirement creates a system of accountability that encourages
drivers to do so. Without requiring some type of documentation, such as
the signature on the DVIR, drivers may be less likely to conduct
inspections, and less likely to detect and document vehicle problems.''
The NTSB added that FMCSA requires other types of records to be
maintained (hours-of-service records, drug tests, driving records)
regardless of whether they indicate compliance or non-compliance. The
NTSB also maintained that records preserved by the operator serve as an
indicator to regulators that a carrier is following good safety
practices.
FMCSA response. The Agency did not propose to change the
requirement concerning filing of DVIRs when the driver notes a defect
or is made aware of one. FMCSA also did not propose to prohibit motor
carriers from continuing to require their drivers to prepare DVIRs,
even when the driver has no vehicle defects to report. The fundamental
requirement of the FMCSRs is for motor carriers to ensure that their
CMVs are in safe and proper operating condition at all times. As the
NPRM noted, the Agency attempted to determine, through an analysis of
historical inspection and other safety data, whether eliminating the
no-defect DVIR would affect the condition and proper maintenance of
vehicle components (79 FR 48129). Due to data limitations, mainly the
inability to distinguish between form-and-manner violations and serious
safety violations, this analysis could not be performed. If anything,
the rule may actually improve safety by ensuring that the relatively
few DVIRs that report defects are not lost among the vast majority of
those that do not, thereby making it easier for motor carriers to
identify vehicles in need of repair. Nonetheless, the safety and
potential operational implications of drivers not performing a post-
trip inspection and not reporting CMV equipment defects--and motor
carriers not remedying those defects--are as important as when the
regulation was promulgated in 1952.
FMCSA does not agree with the contention by several commenters that
revising the DVIR requirement as proposed would inevitably lead to
drivers paying less attention to vehicle maintenance and safety. The
new rule would not change the requirement for CMV drivers to conduct
pre- and post-trip vehicle inspections. Nor does it change the
requirement for CMV drivers to report defects or deficiencies that were
found by or reported to them. No commenters provided data or
information to support their predictions of reduced safety.
The Agency also disagrees with Advocates' contention that drivers
would not report situations that arose in a previous trip, or Mr.
Eppard's comment that drivers would not report ``non-safety related''
defects. The rule does not place a time limit on the driver's ability
to report CMV defects. If a driver operates a particular CMV on
multiple days, and recalls a potential problem that was not reported
the last time he or she drove the CMV, the driver should report the
problem to the motor carrier. The rule also does not limit what a
driver may report as a safety-related defect.
FMCSA agrees with commenters that completion of a DVIR is an
important tool in a motor carrier's systematic inspection, repair, and
maintenance program--but disagrees that it is necessary for truck
drivers to submit a DVIR when there are no defects to report. The ICC's
original 1939 recommendation for use of a ``Driver Trip Report'' and
its 1952 ``vehicle condition report by driver'' reflected a preference
for a ``continuous record'' of vehicle condition. This type of record
would include both the presence and absence of defects. Over the years,
however, the notion of a ``continuous record'' has given way among many
regulatory agencies to ``reporting by exception''--it is more important
and efficient to report anomalies, unusual situations, and real defects
or deficiencies that might require maintenance staff to act on them.
One example of this reporting-by-exception model is the FAA's
requirement for reporting of anomalies and defects for aircraft. FMCSA
reviewed regulations under 14 CFR part 121 applicable to domestic,
flag, and supplemental operations (Sec. Sec. 121.315, 121.563,
121.701, 121.703) and 14 CFR part 135 commuter and on-demand operations
(Sec. Sec. 135.65, 135.415, 135.417) concerning aircraft maintenance
logs, reporting of mechanical irregularities, service difficulty
reports, and mechanical difficulty summary reports. There is no
requirement to file any kind of ``normal operation'' report. The United
States Coast Guard (USCG) regulations concerning tests before getting
underway (33 CFR 164.25) describe requirements for testing of certain
components (primary and secondary steering gear). That same agency's
regulations for maintenance, failure, and reporting (33 CFR 164.82)
address the requirement for marine radar to be maintained operative,
and to file reports in the event of an equipment failure. Neither set
of requirements calls for logging detailed results of tests that are
performed where no deficiencies are found.
FMCSA disagrees with the AAJ's and other commenters' assertion that
``most drivers'' would reasonably interpret the proposed rule as
deleting not only the requirement for a no-defect DVIR, but the need
for a pre-trip and post-trip inspection. The same checklist of what
could be covered during a driver vehicle inspection would be retained
in the FMCSRs. Drivers of all CMVs subject to this rule will continue
to be required to file a DVIR if the driver discovers or is made aware
of a safety defect or deficiency. FMCSA also did not propose to do away
with the pre-trip inspection list in Sec. 392.7(a) or the list of
parts and accessories in Sec. 396.11(a). The NPRM merely proposed to
make the pre-trip inspection list in Sec. 392.7(a) consistent with
that of Sec. 396.11(a).
Role of DVIR in Inspection, Repair, and Maintenance Programs
Comment. Advocates and several other commenters noted that drivers
should positively state whether a malfunction was discovered. The NTSB
commented that ``the records preserved by a motor carrier serve as an
indicator to regulators that a carrier is following
[[Page 75442]]
good safety practices.'' Although Advocates supported FMCSA's proposal
to continue to require drivers of passenger-carrying CMVs to complete a
DVIR even when the driver reports no defects or deficiencies, they
pointed out that drivers of freight-transporting CMVs also may have
interactions with many people during their work day. The NTSB and two
individuals, Mr. Eppard and Frank Gaede, shared this viewpoint.
FMCSA response. The rule retains the requirement for CMV drivers to
report defects or deficiencies they become aware of--and this holds for
all the vehicles that a driver may operate in any given day.
FMCSA acknowledges that all drivers experience interruptions during
their work day that could impact their ability to timely document
problems with the vehicle.
The Agency is retaining no-defect DVIRs for passenger-carrying
CMVs, as proposed in the NPRM. First, a passenger-carrier crash is a
low-probability but high-consequence event, in terms of potential
deaths and injuries. Second, motorcoach drivers often need to interact
with their passengers, particularly at the beginning and end of their
work day, but often during the trip as well. Third, because they are
carrying the most valuable cargo, motor carriers of passengers must
exercise heightened diligence over their operations, including CMV
maintenance. For all of these reasons, FMCSA decided against applying
this rule to bus drivers and companies at this time.
Regarding the comment that DVIRs are only one element of an
inspection, repair, and maintenance program, FMCSA agrees. 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 to complete DVIRs if
any defects or deficiencies are discovered or reported during the day's
operations.
Responding to the NTSB, FMCSA notes that the content and quality of
CMV maintenance records often provide a more useful picture of a motor
carrier's vehicle safety practices than the sheer quantity of its
records. Furthermore, unlike the NTSB, FMCSA by statute must consider
benefits and costs to the individuals and entities subject to its
regulations. The DVIR is the largest element of the information
collection (IC) for part 396 (Office of Management and Budget (OMB)
Control No. 2126-0003); the no-defect DVIR for property-carrying CMVs
makes up more than 46 million of the 58 million burden hours associated
with that collection.
Opposition to Proposal: DVIR as ``Certification''
Comment. Advocates described a DVIR, when used in slip-seat
operations, as ``certification from the prior driver . . . that the
truck is either ready to go or indicates what is needed to get the CMV
ready for operation.''
FMCSA response. A document that reports defects or deficiencies--
and how the motor carrier has resolved them--is critical for the next
driver. A document that reports no defects or deficiencies is not.
Furthermore, the description of a DVIR as a ``certification'' of the
state of a CMV is not consistent with the text of the regulation. Under
this rule, the absence of a DVIR will serve the same function as the
previous no-defect DVIR, i.e., the driver is not aware of any safety
defect. This does not mean that the next driver should not perform a
pre-trip inspection--and it certainly does not indicate that the driver
may skip a post-trip inspection that would form the basis for a driver-
vehicle inspection report required under Sec. 396.11(a).
Results of Truck and Bus Inspections
Comment. Advocates cited the 20 percent vehicle OOS rate for truck
and bus inspections as a key reason for its opposition to the proposed
rule. AAJ cited a 27.8 percent vehicle OOS rate for CMVs during traffic
stops and a 20.18 percent OOS rate during roadside inspections. Both
commenters stated or implied that elimination of no-defect DVIRs would
adversely affect those figures. Advocates also argued that the
differences cited by FMCSA in the number of fatalities per fatal
motorcoach crash (1.57) ``is not significantly different'' from the
number of fatalities per fatal truck crash (1.13), and thus not
sufficient to justify different rules for trucks and buses.
FMCSA response. The Agency does not believe (1) that any particular
vehicle OOS rate is a reason to retain the requirement for no-defect
DVIRs, or (2) that the elimination of no-defect DVIRs for property-
carrying CMVs will adversely affect the vehicle OOS rate. Furthermore,
the Agency believes that the difference between 1.57 fatalities per bus
crash and 1.13 fatalities per truck crash is meaningful. And, as noted
above, the Agency is taking an appropriately cautious step by retaining
the requirement for a no-defect DVIR for passenger-carrying CMVs. FMCSA
reiterates the three points made in the NPRM. First, a passenger-
carrier crash is a low-probability but high-consequence event, in terms
of potential deaths and injuries. Second, motorcoach drivers often need
to interact with their passengers, particularly at the beginning and
end of their work day, but often during the trip as well. Third,
because they are carrying the most valuable cargo, motor carriers of
passengers must exercise heightened diligence over their operations,
including CMV maintenance. For all of these reasons, FMCSA decided
against applying this rule to bus drivers and companies at this time
Safety Statistics
Comment. Advocates cited statistics from FMCSA's Compliance,
Safety, Accountability (CSA) program as a basis for recommending that
the current DVIR regulation be retained. Advocates stated that the
August 2013 Safety Measurement System analyses showed that nearly 30
percent of motor carriers with a Vehicle Maintenance score had scores
exceeding an 80 percentile threshold, thus indicating that FMCSA would
prioritize these carriers for a safety intervention.
FMCSA Response. FMCSA reviewed the SMS data that Advocates
referenced. The Agency agrees that approximately 30 percent of motor
carriers with a Vehicle Maintenance score had scores exceeding an 80
percentile threshold, which would likely result in the Agency
prioritizing them for an enforcement intervention. However, the Agency
is not aware of, and Advocates did not present, any data or information
concerning the relationship between the preparation and retention of
no-defect DVIRs and carriers' safety performance, as captured in SMS.
Generally, all of the carriers with scores exceeding the 80
percentile threshold are currently subject to the requirement to
prepare and retain no-defect DVIRs. These carriers have clearly
demonstrated lapses in their safety management controls related to
vehicle maintenance and have a pattern of dispatching vehicles that
have mechanical problems. These problems may or may not have been known
to the driver who prepared the DVIR the day prior to the roadside
inspection during which the violations were noted.
FMCSA has no means of determining the percentage of these instances
involving previous-day DVIRs where the mechanical problems were noted
but not acted upon by the carrier. Likewise, the Agency has no means of
determining the percentage where mechanical problems were present but
not reported. Therefore, the maintenance scores in SMS do not
[[Page 75443]]
provide useful information for determining what actions these carriers
would take in the absence of the no-defect DVIR requirement. And, this
information does not mean that carriers with SMS scores below the
enforcement intervention threshold would lessen their vehicle
maintenance efforts upon rescission of the requirement to prepare and
maintain no-defect DVIRs.
FMCSA believes it is important to note that nothing in this
rulemaking relieves drivers of the responsibility to prepare DVIRs for
any vehicle for which a defect or deficiency has been observed by or
reported to the driver. Motor carriers remain responsible for reviewing
those DVIRs and taking appropriate action to either fix the problem or
document that no repairs were made because the carrier determined that
the problem did not relate to the safe operation of the vehicle. The
Agency will continue to use SMS to identify carriers with poor
maintenance programs.
Information Collection Burden Estimates
Comments. NMFTA stated that it concurs with FMCSA's analyses,
including the Agency's conservative estimate of the reductions in time
and cost burdens from eliminating no-defect DVIRs. However, several
commenters questioned FMCSA's estimates of reductions in the costs
associated with completing and filing DVIRs. Advocates asserted that
FMCSA has neither performed a study on the potential outcomes, nor
considered costs to society, from the proposed rule--and Advocates
believes the change would lead to unintended and negative consequences
from some CMV drivers who ``may choose to forego completing a defect
DVIR.'' Advocates also believes that the estimated time savings for a
driver to complete, and for a motor carrier to review and file, a DVIR
is so small ``there is little or no practical utility for the
individual driver or the industry as a whole'' resulting from the
proposed requirement.
FMCSA response. The Agency did not propose to prohibit motor
carriers from continuing to require their drivers to prepare DVIRs even
when the driver has no vehicle defects to report. We have complied with
the Paperwork Reduction Act (PRA) requirements and routinely published
60- and 30-day notices concerning the estimates used for this
information collection burden. If interested parties have accepted
these estimates during the multiple notice-and-comment proceedings
concerning the renewal of the OMB approval for part 396, it is only
appropriate that the Agency use those same estimates for the
rulemaking. Through this notice-and-comment rulemaking, we are
eliminating a costly portion of an information collection requirement
without adversely impacting safety. As for the allegedly de minimis
effect of the rule, the PRA calls for the Agency to estimate not only
the time and resource requirements associated with filing of a given
item of information, but also the aggregate annual total of such
filings. In the case of the DVIR, FMCSA estimates that the form is
completed an average of 250 days per year for each of the more than
4.58 million CMVs in operation. So, although the requirements imposed
on an individual on a daily basis may be low, the aggregate total is
very large.
Comment. An individual commenter, Robert Irwin, believes FMCSA
should no longer require no-defect DVIRs for passenger CMVs, given that
it takes the same amount of time to prepare a DVIR for a bus as for a
truck.
FMCSA response. The Agency believes that significant reporting
changes in the passenger-carrying CMV segment should not be made at
this time, for the reasons given above.
Comment. Zonar questioned FMCSA's time and cost estimates, noting
that the inspections themselves would still be required and asserting
that the drivers' ``paperwork'' time is minimal. John Hart,
representing Fleettrakker LLC, a provider of fleet management software,
asked FMCSA to reconsider its proposal in light of the availability of
electronic DVIR applications that would provide comprehensive records
of daily CMV inspections while eliminating cumbersome paper records.
Mr. Hart said the daily inspection was based on a faulty assumption.
FMCSA response. The PRA estimates focus on recordkeeping and
record-retention, not on the performance of the inspection, which is
considered part of a normal business practice. The Agency estimates
include the actions of preparing, submitting, reviewing, and filing
records--and, even if the records were handled electronically, there
would still be an information-collection burden associated with them.
Processes: Paper Versus Electronic DVIRs
Comment. Mr. Hart of Fleettrakker LLC argued there is an
inconsistency between FMCSA's support of integrated electronic wireless
technologies and its policy to allow the use of electronic signatures
for DVIRs, and that this calls into question the accuracy of FMCSA's
analyses of paper-based DVIR reports. He also claimed that the use of
paper DVIRs is not an effective tool to improve CMV safety, and that
FMCSA should require the use of electronic applications to perform this
function. Zonar asked FMCSA to strengthen its policy concerning use of
electronic documents and systems, such as the DVIR application included
in its own products. Gregory Hooyman of Payne and Dolan noted that
vehicle monitoring systems can communicate with the safety and
maintenance departments from the road to advise them of problems so
they can be ready to repair the vehicle when it returns, rather than
having to wait until the trip is over and the driver submits a paper
DVIR.
FMCSA response. FMCSA does not prohibit motor carriers from using
information technology in their CMV maintenance activities. FMCSA also
will allow motor carriers to continue to require drivers to submit no-
defect DVIRs if they believe that doing so is appropriate for their
operations. However, the NPRM did not propose to require motor carriers
to use electronic DVIRs in place of paper DVIRs.
FMCSA recognizes that CMV operations and maintenance marketplaces
are served by a large and constantly increasing number of system
providers. FMCSA's policy since the early 1990s has been to encourage
motor carriers to use electronic methods for a wide range of
information collection and recordkeeping purposes. In fact, one of the
first requests from motor carriers to be allowed to utilize electronic
document handling concerned DVIRs. FMCSA's January 2011 Regulatory
Guidance Concerning Electronic Signatures and Documents (76 FR 411,
January 4, 2011) continues and extends the Agency's support of
paperless recordkeeping systems.
Comment. The NTSB noted that many motor carriers use DVIR
checklists that are integrated with driver record of duty status
(logbook) forms, or use electronic DVIRs. The NTSB believes that,
unless drivers elect not to complete inspections, the amount of
additional time spent to complete a no-defect DVIR is negligible.
FMCSA response. FMCSA has long allowed motor carriers the option of
using the back of the record of duty status (daily log) as the DVIR,
provided the motor carrier complies with the record retention
requirements in Sec. 395.8 and Sec. 395.11 (see Regulatory Guidance
for Sec. 396.11, Question 15, 62 FR 16370, at 16428). Motor carriers
may still use these forms and checklists. FMCSA has encouraged the use
of electronic recordkeeping for DVIRs since the early 1990s. However,
it still takes time for a driver to complete and submit a DVIR, and for
a motor carrier to review it and
[[Page 75444]]
to file it, whether it is prepared electronically or on paper. FMCSA
anticipates that the proportion of DVIRs completed electronically will
steadily increase.
Comment. The NTSB does not believe that maintenance personnel would
overlook DVIRs indicating defects. In describing how a motor carrier
might use DVIRs, the NTSB indicated that no-defect DVIRs are typically
not given to maintenance personnel, but are delivered to a separate
location. DVIRs noting defects are typically used to initiate work
orders.
FMCSA response. FMCSA disagrees with the NTSB's description of the
process for handling DVIRs. Drivers required to use paper forms
generally submit all of their documents in a trip envelope, and someone
sorts them out and forwards them to the appropriate staff or offices.
All vehicle-related documents, except for fuel purchases, would
generally be forwarded to the maintenance department. Only at that
point would the DVIRs that note vehicle defects or deficiencies be
sorted and assigned for action.
Comment. AAJ stated that it is sympathetic to the need to reduce
paperwork and costs and suggested that, rather than eliminate no-defect
DVIRs altogether, FMCSA could reduce costs to motor carriers if the
daily inspection report were to be included in a weekly format.
According to AAJ, this would continue to ensure that daily inspections
were performed and reduce the volume of paper records needing to be
maintained.
FMCSA response. There are several potential drawbacks to this
suggestion. In a June 1998 final rule, the Agency revised the part 396
requirements [63 FR 33254, June 18, 1998, at 33279] to acknowledge the
growing use of centralized maintenance recordkeeping systems and to
eliminate the requirement that the previous day's DVIR be physically
carried in the CMV. Because drivers often do not operate the same CMV
every day, a multiday form would probably need to be tracked to follow
a given CMV. Thus, the AAJ's suggestion appears to recommend returning
to the pre-1998 rule. It is also unclear what would happen to the
weekly report if a driver discovered a mechanical problem on the third
day of the week, for example, and submitted the defect report (on the
weekly form) to the maintenance shop.
Comment. ATA believes that FMCSA has overstated the potential
benefits associated with eliminating the no-defect DVIR. ATA estimates
that about 40 percent of the 600,000-800,000 electronic on-board
recorders \1\ in use include an electronic-DVIR function. ATA also
believes that FMCSA has over-estimated the amount of time needed to
complete the paperwork for a no-defect DVIR: As ATA views it, 47.2
million hours, divided by 500,000 fleets, equals approximately 95 hours
per fleet per year. ATA also believes that many motor carriers will
continue to maintain no-defect DVIRs in order to provide continuity to
their maintenance programs and because of concerns over litigation. ATA
surveyed the motor carrier members of its Technology & Maintenance
Council and received responses from 59 carriers. Although nearly three-
fourths (70.2 percent) of them supported rescinding the regulatory
requirement, there was nearly an even division among the carriers that
said they would continue to retain no-defect DVIRs, those that would no
longer retain them, and those that were uncertain. Among the 13
carriers providing individual comments to the survey, opinions were
divided. Although most expressed support for the proposal, others
expressed concerns similar to those of Advocates, that drivers might
not complete DVIRs to report defects [even though this will still be
required]. Of the 37 carriers responding to a question concerning costs
of submitting and retaining no-defect DVIRs, 16 stated that they were
unable to provide estimates or that the costs were minimal, although
one carrier estimated a cost of $25,000 per truck per year.
---------------------------------------------------------------------------
\1\ The term ``electronic on-board recorder'' is understood in
this context to include multiple functions, not limited to recording
driver hours-of service.
---------------------------------------------------------------------------
FMCSA response. Rather than estimating information-collection
burdens on a per-fleet basis, as ATA did, FMCSA calculated its time
estimate on a per-vehicle basis (approximately 11 hours). Because there
is enormous variation in fleet sizes, and because approximately 152,000
single-CMV fleets are not required to prepare or retain DVIRs, FMCSA
believes that it is more appropriate to estimate information collection
burdens on a per-vehicle basis, and to express them as industry-wide
totals rather than per-fleet totals. In addition, it appears that ATA
might not have accounted for the motor carriers that operate only a
single CMV and are not required to prepare DVIRs, so might have under-
estimated the reduction in information-collection burden.
Concerning the proportion of DVIRs prepared electronically, FMCSA
received no comments on its estimated information collection burden for
inspection, repair, and maintenance recordkeeping requirements the last
several times this collection has come up for renewal. FMCSA's current
estimate that 5 percent of DVIRs are completed electronically (5% x
4,578,250 CMVs), is somewhat less than the ATA's estimate (40% of
between 600,000 and 800,000 CMVs so equipped = 240,000 to 280,000 CMVs
using electronic DVIRs).
Applicability to Intrastate Operations
Comment. Gregory Hooyman, who supported the proposal, also asked
FMCSA to make it applicable to intrastate drivers in order to avoid
potential confusion.
FMCSA response. In order to be eligible for Motor Carrier Safety
Assistance Program (MCSAP) grants, States must adopt and enforce motor
carrier safety laws and regulations for intrastate as well as
interstate operations that are compatible with the FMCSRs, including
parts 392 and 396 (49 CFR 350.201(a)). MCSAP recipients have up to 3
years to adopt the requirements of this final rule.
Comment Concerning U.S.-Canada Reciprocity
Comment. The CCMTA noted that, in accordance with the Canada-U.S.
Trip Inspection Reciprocity Agreement, ``CCMTA jurisdictions will
accept the pre- and post-trip inspection reports prepared by U.S. base-
plated motor carriers in accordance with 49 CFR part 396 as fully
compliant with the requirements of NSC [National Safety Code] Standard
13 on Trip Inspection dated September 2008 provided such motor carriers
carry, and produce upon demand, a post-trip inspection report that is
no more than 24-hours old. If a driver does not have access to the
vehicle's previous post-trip inspection report, the driver will prepare
and produce the report required by 49 CFR 396.11 for the purpose of the
Canadian operations.'' CCMTA stated that the proposed change to the
FMCSRs would require amending the Reciprocity Agreement, to state that
U.S. domiciled drivers will continue to be required to produce a DVIR
at roadside when operating in Canada even when no defect has been
detected. CCMTA provided a copy of a May 14, 2009, letter on this
matter.
FMCSA response. Motor carriers operating in Canada will need to
comply with Canadian national, Provincial and Territorial requirements
that require the previous post-trip DVIR. Drivers will need to prepare
and to carry a copy of their previous day's post-trip
[[Page 75445]]
DVIR, regardless of whether there are defects to report.
Section-by-Section Analysis
This final rule adopts the NPRM as proposed with minor revisions
for clarity.
In Sec. 392.7, FMCSA adds ``wheels and rims'' and ``emergency
equipment'' to the pre-trip list in paragraph (a) in order to harmonize
it with the post-trip list in Sec. 396.11(a)(1). Additionally, FMCSA
amends 49 CFR part 396 by deleting the sentence in Sec. 396.11(a)(2)
that reads ``If no defect or deficiency is discovered by or reported to
the driver, the report shall so indicate.'' In its place, FMCSA inserts
``The driver of a passenger-carrying CMV must prepare and submit 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 or submit a report if no defect or deficiency is
discovered by or reported to the driver.'' FMCSA also makes minor
editorial and formatting changes to the remainder of the text of Sec.
396.11(a)(2).
The Agency makes a technical change to Sec. 396.11 to eliminate
redundant language. In the final rule of June 12, 2012 (77 FR 34852),
the text of Sec. 396.11(c) was moved to Sec. 396.11(a)(3) and the
text of Sec. 396.11(d) was moved to Sec. 396.11(a)(5). However, the
amendatory text to delete paragraphs (c) and (d) was not included in
that final rule. The Agency corrects that omission here.
Rulemaking Analyses
Executive Order 12866 (Regulatory Planning and Review) as Supplemented
by E.O. 13563 and DOT Regulatory Policies and Procedures
Under E.O. 12866, ``Regulatory Planning and Review'' (issued
September 30, 1993, published October 4 at 58 FR 51735), as
supplemented by E.O. 13563 (discussed above in the ``Background''
section), and DOT policies and procedures, FMCSA must determine whether
a regulatory action is ``significant'' and therefore subject to OMB
review. E.O. 12866 defines ``significant regulatory action'' as one
likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal government or communities.
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another Agency.
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof.
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the E.O.
FMCSA has determined that this rule does have an annual effect of
$100 million or more. The value of the time saved by eliminating the
paperwork burden associated with the filing of no-defect DVIRs is
approximately $1.7 billion per year. The explanation of how these
savings were estimated is presented below. The rule is not expected to
have any negative safety impacts.
The Agency conducted an analysis pursuant to the Paperwork
Reduction Act (PRA) to estimate the reduction in hourly burden from
elimination of DVIRs for non-passenger-carrying operators of CMVs.
FMCSA determined that 46.7 million hours of paperwork burden would be
eliminated by this rule. The full details of the PRA analysis are
included in the ``Paperwork Reduction Act'' section below. Using a
labor cost of $37 per hour (with a base wage of $18.61,\2\ fringe
benefits of 57 percent,\3\ and overhead of 27 percent; \4\ $18.61 x
1.57 x 1.27 = $37), the Agency valued this time savings at $1.7 billion
per year (46.7 million hours saved x $37 per hour).
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\2\ The median hourly wage for heavy truck drivers. See http://www.bls.gov/oes/current/oes533032.htm. Accessed April 18, 2014.
\3\ The ratio of total fringe benefits to wages and salaries for
transportation and warehousing workers. See http://www.bls.gov/news.release/archives/ecec_03122014.pdf. Table 10, Employer costs
per hour worked for employee compensation and costs as a percent of
total compensation: Private industry workers, by industry group,
March 12, 2014. Transportation and Warehousing. http://www.bls.gov/news.release/pdf/ecec.pdf. Accessed April 18, 2014.
\4\ Industry data gathered for the Truck Costing Model developed
by the Upper Great Plains Transportation Institute Berwick showed an
average cost of $0.107 per mile of CMV operation for management and
overhead, and $0.39 per mile for labor, indicating an overhead rate
of 27 percent ($0.107 / $0.39). See Farooq. ``Truck Costing Model
for Transportation Managers''. Upper Great Plains Transportation
Institute, North Dakota State University (2003) accessed on April
18, 2014 at http://ntl.bts.gov/lib/24000/24200/24223/24223.pdf. See
Appendix A, pp. 42-47. Overhead is applied to the base wage and
fringe benefits.
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The Agency added ``wheels and rims'' and ``emergency equipment'' to
the items required to be inspected under Sec. 392.7 to make the lists
in this section and Sec. 396.11 consistent. The addition of these two
items to Sec. 392.7 is expected to impose a de minimis additional
burden on drivers performing pre-trip evaluations of equipment, as
drivers will be able readily to observe whether these newly added items
are in good working order during their review of the items currently in
the Sec. 392.7 list (service brakes, including trailer brake
connections, parking (hand) brake, steering mechanism, lighting devices
and reflectors, tires, horn, windshield wiper or wipers, rear-vision
mirror or mirrors, and coupling devices). For example, a driver making
a visual examination of tires can hardly avoid examining the wheels and
rims at the same time, and defects on these components are usually
fairly obvious. Similarly, while getting into the cab to check the
steering mechanism and horn, he or she can easily glance at the dial
gauge on the fire extinguisher to determine that it is still fully
charged. Other emergency equipment, including warning triangles,
flares, or fuses are usually stored in an easy-to-reach location (often
under or behind the driver's seat) and are readily checked. These items
were added to the inspection list for consistency, and the Agency
expects the cost and benefits of these additions to be de minimis.
Regulatory Flexibility Act
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.\5\
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\5\ Regulatory Flexibility Act (5 U.S.C. 601 et seq.), see
National Archives at http://www.archives.gov/federal-register/laws/regulaotry-flexibility/601.html.
---------------------------------------------------------------------------
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 rule will have a significant economic impact on a substantial
number of small entities in the form of cost savings through the
elimination of 46.7 million paperwork burden hours. These firms would
receive regulatory relief of approximately $3,000 per entity, which is
a positive benefit and does not impose a cost on the regulated
entities. See 5 U.S.C. 605(b).
[[Page 75446]]
Regulatory Flexibility Analysis (RFA)
(1) A Description of the Reason Why Action by the Agency Is Being
Considered
FMCSA rescinds the requirement that commercial motor vehicle (CMV)
drivers operating in interstate commerce, except drivers of passenger-
carrying CMVs, submit, and motor carriers retain, driver-vehicle
inspection reports (DVIR) when the driver has neither found nor been
made aware of any vehicle defects or deficiencies (no-defect DVIR).
This rule removes a significant information collection burden without
adversely impacting safety. This rule responds, in part, to the
President's January 2011 Regulatory Review and Reform initiative.
Finally, this rule harmonizes the pre- and post-trip inspection lists.
(2) A Succinct Statement of the Objectives of, and Legal Basis Why
Action by the Agency Is Being Considered
This final rule grants regulatory relief to motor carriers and
drivers of all sizes of vehicles currently subject to 49 CFR 396.11,
both private and for-hire, with the exception of operators of
passenger-carrying CMVs. This 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 rule implements, to some extent,
the Administrator's authority under section 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
section 31133(a)(8) and (10). The removal of the obligation to prepare
and retain no-defect DVIRs does not compromise drivers' ability to
report vehicle problems to the carrier, or relieve carriers of the
responsibility to take corrective action.
(3) A Description of and, Where Feasible, an Estimate of the Number of
Small Entities To Which the Rule Applies
The motor carriers regulated by FMCSA operate in many different
industries, and no single ``small business'' size threshold used by the
Small Business Administration (SBA) is applicable to all motor
carriers. Most for-hire property carriers operate under North American
Industrial Classification System \6\ (NAICS) code 484, truck
transportation (see, http://www.bls.gov/iag/tgs/iag484.htm), although
some for-hire carriers categorize themselves as ``express delivery
services'' (NAICS 492110), ``local delivery'' (NAICS 492210), or
operate primarily in other modes of freight transportation. The SBA
size standard for ``small'' truck transportation and local delivery
services is currently $25.5 million or less in revenue per year, and
1,500 or fewer employees for express delivery services. For other firms
in other modes that may also be registered as for-hire motor carriers,
the ``small'' size standard is 500 or 1,500 employees.\7\
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\6\ More information about NAICS is available at: http://www.census.gov/eos/www/naics/., Accessed Feb. 4, 2014.
\7\ U.S. Small Business Administration Table of small Business
Size Standards matched to North American Industry Classification
System (NAICS) codes, effective January 1, 2012. See http://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf.
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This rulemaking would also affect private motor carriers. These
carriers use CMVs they own or lease to ship their own goods (such as a
motor carrier that is operated by a retail department store chain to
distribute goods from its warehouses to its store locations) or in
other regulated transportation activities related to their primary
business activities (for example, dump trucks used by construction
companies). FMCSA does not have NAICS codes for private motor carriers
and therefore cannot determine the appropriate size standard to use for
each case. The ``small'' size standards vary widely, from $0.75 million
for many types of farms, to $33.5 million for building construction
firms.
For for-hire motor carriers, FMCSA examined data from the 2007
Economic Census \8\ to determine the percentage of firms that have
revenue at or below SBA's thresholds. Although boundaries for the
revenue categories used in the Economic Census do not exactly coincide
with the SBA thresholds, FMCSA was able to make reasonable estimates
using these data. According to the Economic Census, about 99 percent of
trucking firms had annual revenue less than $25 million; the Agency
concluded that the percentage would be approximately the same using the
SBA threshold of $25.5 million as the boundary.
---------------------------------------------------------------------------
\8\ U.S. Census Bureau, ``2007 Economic Census.'' Accessed
December 18, 2013 at: http://www.census.gov/econ/census07/.
---------------------------------------------------------------------------
For private carriers, the Agency assumed that private carriers with
fewer CMVs than the top 1 percent (ranked by total CMVs) of for-hire
carriers would also be small. That is, any company maintaining a CMV
fleet the size of that of a large for-hire carrier would be considered
large within its own industry. The Agency found that the top 1 percent
of for-hire carriers had at least 194 CMVs. Using this threshold, FMCSA
identified 201,725 small private property carriers (99.4 percent of
this group) with fewer than 194 CMVs. This could overestimate the
number of small, private carriers. However, the Agency is confident
that no small private carrier would be excluded.
The table below shows the complete estimates of the number of small
carriers. All told, FMCSA estimates that 99.1 percent of regulated
motor carriers are small businesses according to SBA size standards.
[[Page 75447]]
Table 3--Estimates of Numbers of Small Entities
----------------------------------------------------------------------------------------------------------------
For-hire For-hire
general specialized Private Total
freight freight property
----------------------------------------------------------------------------------------------------------------
Carriers........................................ 176,000 139,000 203,000 518,000
Percentage of Small Carriers.................... 98.9% 98.9% 99.4% 99.1%
Number of Small Carriers *...................... 174,064 137,471 201,725 513,260
----------------------------------------------------------------------------------------------------------------
* Number of carriers does not exactly equal percentages due to rounding.
(4) A Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Rule, Including an Estimate of the
Classes of Small Entities That Would Be Subject To Requirements and the
Type of Professional Skills Necessary for Preparation of the Report or
Record
This rule reduces costs on small entities by eliminating a
substantial paperwork filing burden. The reduction in this burden is
estimated to save the industry 46.7 million hours of driver time with
associated monetized savings of $1.7 billion, as explained in the
Paperwork Reduction Act section. These benefits will accrue primarily
to small carriers that make up the majority of firms and employ the
majority of drivers in the industry. The skills for drivers to complete
DVIRs are basic reading and writing proficiency skills.
(5) Identification, to the Extent Practicable, of All Relevant Federal
Rules Which May Duplicate, Overlap, or Conflict With the Rule
This rule does not duplicate, overlap, or conflict with any other
Federal rules.
(6) A Description af Any Significant Alternatives to the Rules Which
Accomplish the Stated Objectives of Applicable Statutes and Which
Minimize Any Significant Economic Impact of the Rule on Small Entities
The Agency has concluded that there are no significant alternatives
to the rule that would achieve either the value of $1.7 billion in time
savings or other objectives of this final rule, except eliminating the
paperwork burden. Because small businesses are such a considerable part
of the demographic the Agency regulates, providing alternatives to
small businesses for non-compliance options is neither feasible nor
consistent with public safety.
Assistance for Small Entities
Pursuant to section 213 of SBREFA, FMCSA wants to assist small
entities in understanding this rule so that they can better evaluate
its effects on them. If the rule affects your small business,
organization, or governmental jurisdiction and you have questions
concerning its provisions or options for compliance, please consult
Mike Huntley listed in the FOR FURTHER INFORMATION CONTACT section of
this 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 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).
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. In particular, 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 $151 million (which was the
value of $100 million in 2013 after adjusting for inflation) or more in
any 1 year. Although this rule does not result in such expenditure,
FMCSA discusses the effects of this rule elsewhere in this preamble.
National Environmental Policy Act and Clean Air Act
FMCSA analyzed this final rule for the purpose of the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and
determined under its environmental procedures Order 5610.1, published
February 24, 2004 (69 FR 9680), that this action does not have any
effect on the quality of the environment. Therefore, this final rule is
categorically excluded from further analysis and documentation in an
environmental assessment or environmental impact statement under FMCSA
Order 5610.1, paragraph 6(aa) of Appendix 2. The Categorical Exclusion
under 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. A Categorical Exclusion determination is available for
inspection or copying in the regulations.gov Web site listed under
ADDRESSES.
In addition to the NEPA requirements to examine impacts on air
quality, the Clean Air Act (CAA) as amended (42 U.S.C. 7401 et seq.)
also requires FMCSA to analyze the potential impact of its actions on
air quality and to ensure that FMCSA actions conform to State and local
air quality implementation plans. No additional contributions to air
emissions are expected from this rule and FMCSA expects the rule to not
be subject to the Environmental Protection Agency's General Conformity
Rule (40 CFR parts 51 and 93).
Executive Order 12898 Environmental Justice
FMCSA evaluated the environmental effects of this proposed rule in
accordance with Executive Order 12898 and determined that there are no
environmental justice issues associated with its provisions nor any
collective environmental impact resulting from its promulgation.
Environmental justice issues would be raised if there were
``disproportionate'' and ``high and adverse impact'' on minority or
low-income populations.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
FMCSA to consider the impact of paperwork and other information
collection burdens imposed on the public. This rule reduces the burden
hours for the ``Inspection, Repair, and Maintenance'' information
collection request (ICR), OMB control number 2126-0003. This ICR
comprises six individual information collections, each corresponding to
a different area of the inspection, repair, and maintenance
requirements. This rule affects only the DVIR section of this ICR.
Based on data from its Motor Carrier Management Information System
(MCMIS) and Licensing and Insurance
[[Page 75448]]
System (L&I), FMCSA estimates that there are approximately 4,117,000
CMVs being operated that are subject to these requirements, which
includes 1,845,000 tractors and 101,000 passenger-carrying CMVs, but
excludes the 152,000 CMVs of single-vehicle owner operators. Consistent
with past analyses of this ICR, the Agency assumes that these CMVs are
used on average 65 percent of the days of a year, and that 25 percent
of tractor-trailer drivers operate two vehicle combinations per day,
which effectively increases the number of CMVs or CMV combinations
requiring a DVIR by 461,250 (25 percent x 1,845,000 tractors) to a
total of 4,578,250 (4,117,000 CMVs + 461,250 additional tractor-trailer
combinations). Applying the 65 percent utilization rate yields an
annual estimate of 1,086,189,813 DVIRs (4,578,250 CMVs or CMV
combinations x 65 percent x 365 days per year).
FMCSA has parsed the DVIR process into two steps. The first step,
filling out a DVIR is estimated to take 2 minutes, 30 seconds. The
second step, reviewing and signing a DVIR is estimated 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 that 95 percent of
DVIRs note no defects.
When this rule goes into effect, 93 percent of the burden
associated with DVIRs will be eliminated. The remaining burden would be
associated with DVIRs that note defects and no-defect DVIRs for
passenger-carrying CMVs. The annual burden remaining from these two
activities is 2,564,615 hours and 980,123 hours respectively. The table
below illustrates how these results were calculated.
Table 4--Detail of DVIR PRA Calculations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total DVIRs
Utilization rate (CMVs x
Number of CMVs (of 365 Percent of CMVs utilization rate Burden per Total Annual
Activity or CMV calendar days) affected x percent of DVIR (seconds) hourly burden
combinations (percent) CMVs affected x
365)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Defect DVIRs, All............................... 4,578,250 65 5 54,309,491 170 2,564,615
No Defect DVIRS, passenger-carrying CMVs........ 101,000 65 95 22,764,138 155 980,123
-------------------------------------------------------------------------------------------------------
Total....................................... ................ ................ ................ ................ .............. 3,544,738
--------------------------------------------------------------------------------------------------------------------------------------------------------
Defect DVIRs create 2,564,615 hours of annual burden (4,578,250
CMVs x 65% utilization x 365 days x 5% of CMVs x 170 seconds / 3,600
seconds per hour). The annual hourly burden of no defect DVIRs for
passenger carrying CMVs is estimated to be 980,123 hours (101,000 CMVs
x 65% utilization x 365 days x 95% of CMVs x 155 seconds / 3,600
seconds per hour). The total remaining hourly burden of DVIRs is
3,544,738 hours. This new total represents a reduction of 46,669,294
hours compared to the 50,214,032 hours of annual burden estimated in
the currently approved ICR. The monetary value of this annual burden
reduction, calculated using an hourly labor cost of $37, is $1.7
billion (46,669,294 hours x $37 per hour).
Executive Order 12630 (Taking of Private Property)
This rule does not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
Executive Order 12988 (Civil Justice Reform)
This 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.
Executive Order 13045 (Protection of Children)
Executive Order 13045, ``Protection of Children From Environmental
Health Risks and Safety Risks'' (April 23, 1997, 62 FR 19885), requires
that agencies issuing economically significant rules, which also
concern an environmental health or safety risk that an Agency has
reason to believe may disproportionately affect children, must include
an evaluation of the environmental health and safety effects of the
regulation on children. Section 5 of Executive Order 13045 directs an
Agency to submit for a covered regulatory action an evaluation of its
environmental health or safety effects on children. FMCSA has
determined that this rule is not a covered regulatory action as defined
under Executive Order 13045. This determination is based on the fact
that this proposal would not constitute an environmental health risk or
safety risk that would disproportionately affect children.
Executive Order 13132 (Federalism)
A rule has implications for Federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on States or localities. FMCSA analyzed this
rule under that Order and has determined that it does not have
implications for federalism.
Executive Order 12372 (Intergovernmental Review)
The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this program.
Executive Order 13211 (Energy Supply, Distribution, or Use)
FMCSA analyzed this rule under Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use.'' This final rule is not a significant energy
action within the meaning of section 4(b) of the Executive Order. This
final rule is a procedural action, is not economically significant, and
does not have a significant adverse effect on the supply, distribution,
or use of energy.
Privacy Impact Analysis
FMCSA conducted a privacy impact assessment of this rule as
required by section 522(a)(5) of the FY 2005 Omnibus Appropriations
Act, Public Law 108-447, 118 Stat. 3268 (Dec. 8, 2004) [set out as a
note to 5 U.S.C. 552a]. The assessment considers any impacts of the
rule on the privacy of information in an identifiable form and related
matters. FMCSA has determined
[[Page 75449]]
this rule would have no privacy impacts.
List of Subjects
49 CFR Part 392
Alcohol abuse, Drug abuse, Highway safety, Motor carriers.
49 CFR Part 396
Highway safety, Motor carriers, Motor vehicle safety, Reporting and
recordkeeping requirements.
For the reasons stated in the preamble, FMCSA amends title 49 CFR,
Code of Federal Regulations, chapter III, to read as follows:
PART 392--DRIVING OF COMMERCIAL MOTOR VEHICLES
0
1. The authority citation for part 392 continues to read as follows:
Authority: 49 U.S.C. 504, 13902, 31136, 31151, 31502; Section
112 of Pub. L. 103-311, 108 Stat. 1673, 1676 (1994), as amended by
sec. 32509 of Pub. L. 112-141, 126 Stat. 405-805 (2012); and 49 CFR
1.87.
0
2. Revise Sec. 392.7(a) to read as follows:
Sec. 392.7 Equipment, inspection and use.
(a) No commercial motor vehicle shall be driven unless the driver
is satisfied that the following parts and accessories are in good
working order, nor shall any driver fail to use or make use of such
parts and accessories when and as needed:
Service brakes, including trailer brake connections.
Parking (hand) brake.
Steering mechanism.
Lighting devices and reflectors.
Tires.
Horn.
Windshield wiper or wipers.
Rear-vision mirror or mirrors.
Coupling devices.
Wheels and rims.
Emergency equipment.
* * * * *
PART 396--INSPECTION, REPAIR, AND MAINTENANCE
0
3. 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; and 49 CFR 1.87.
0
4. Amend Sec. 396.11 as follows:
0
a. Remove paragraphs (c) and (d); and
0
b. Revise paragraph (a)(2) to read as follows:
Sec. 396.11 Driver vehicle inspection report(s).
* * * * *
(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.
The driver of a passenger-carrying CMV subject to this regulation must
prepare and submit 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 or submit 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.
* * * * *
Dated: December 9, 2014.
Anthony R. Foxx,
Secretary.
[FR Doc. 2014-29331 Filed 12-17-14; 8:45 am]
BILLING CODE 4910-EX-P