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[Federal Register: March 24, 2004 (Volume 69, Number 57)]
[Proposed Rules]
[Page 13803-13805]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24mr04-22]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 390, 391, 392, 395, and 396
[Docket No. FMCSA-2000-7174]
RIN 2126-AA53
Interstate School Bus Safety; Withdrawal
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
[[Page 13804]]
ACTION: Withdrawal of advance notice of proposed rulemaking (ANPRM).
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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA)
withdraws its October 22, 2001, advance notice of proposed rulemaking
(ANPRM) concerning whether to extend the applicability of the Federal
Motor Carrier Safety Regulations (FMCSRs) to all interstate school
transportation operations (excluding home-to-school or school-to-home
transportation) by local governmentally operated educational agencies.
After reviewing the public comments on the ANPRM, the agency determined
that no regulatory action is needed. Therefore, interstate school
transportation operations by local governmentally operated educational
agencies will continue to be exempt from all FMCSRs except the
commercial driver's license regulations and the controlled substances
and alcohol testing regulations.
DATES: The advance notice of proposed rulemaking published on October
22, 2001, at 66 FR 53373 is withdrawn as of March 24, 2004.
FOR FURTHER INFORMATION CONTACT: Mr. Philip J. Hanley, Jr., Office of
Bus and Truck Standards and Operations, (202) 366-6811, Federal Motor
Carrier Safety Administration, Department of Transportation, 400
Seventh Street, SW, Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
Background
On October 22, 2001, FMCSA issued an advance notice of proposed
rulemaking (ANPRM) to gather information, data, and recommendations
that would assist the agency in determining whether to make the Federal
Motor Carrier Safety Regulations (FMCSRs) applicable to interstate
school bus transportation by local governmentally operated educational
agencies (LEAs). Sec. 4024 of the Transportation Equity Act for the
21st Century, Public Law 105-178, 112 Stat. 107 at 416, directed FMCSA
to determine whether to apply the FMCSRs to interstate school
transportation operations (excluding home-to-school or school-to-home
transportation) conducted by LEAs. Generally, the term LEA means a
public board of education or other public authority legally constituted
to perform service functions for public elementary and secondary school
districts in a city, county, or other political subdivision of a State.
LEAs do not include private schools or public colleges and
universities.
In the ANPRM, the agency proposed to determine whether Federal
regulatory involvement in interstate school bus transportation
operations by local educational agencies is necessary to enhance the
safety of passengers and that of the general public. FMCSA also
considered whether interstate transportation (other than home-to-school
and school-to-home) by all governmental educational entities, such as
public universities, should be subject to the FMCSRs. In addition, the
agency considered holding educational agencies to the same standards
that private schools and contractors are required to meet when
operating interstate in other than home-to-school and school-to-home
transportation. Examples of these standards include qualifications of
drivers, hours of service, and maintenance of vehicles.
There are approximately 14,000 school districts (LEAs) in the
United States that provide transportation to students. About two-thirds
provide that service directly, and the remaining third hire a
contractor(s) to provide the transportation service. These entities
(LEAs and contractors) employ nearly 470,000 drivers, operate almost
460,000 school buses, and transport 23.5 million students 4.3 billion
miles every year. It is estimated that less than 5 percent of all
school bus trips are other than home-to-school, with less than 1
percent being interstate in nature. Virtually all school bus
transportation that crosses State lines is for field trips and trips to
school-sponsored sporting events, rather than being home-to-school
transportation.
Although government operation of commercial motor vehicles
(including school buses) has historically been exempt from the majority
of the FMCSRs, drivers employed by governmental agencies, including
LEAs, must comply with the commercial driver's license (CDL)
requirements and drug and alcohol testing requirements. The LEA
exemption originated in Sec. 206(f) of the Motor Carrier Safety Act of
1984 (Public Law 98-554, Title II; 98 Stat. 2833), which specifically
required the Secretary to waive application of the regulations to
school buses, unless the Secretary determined that such regulations are
necessary for public safety.
Contractors hired by school districts must comply with all of the
FMCSRs when providing transportation that is other than home-to-school
and is interstate in nature. As with LEA bus drivers, contractor-
employed school bus drivers must comply with the CDL and drug and
alcohol testing requirements set forth in the FMCSRs regardless of
whether the transportation is interstate or intrastate in nature.
The regulatory oversight of school bus operations has traditionally
been a State function. While the States have adopted the FMCSRs or
compatible regulations to meet the requirements of the Motor Carrier
Safety Assistance Program (MCSAP) (49 CFR part 350), they normally
apply the same exemptions for government operations. The routine
inspection of school buses is a State function and not a MCSAP-
reimbursable activity.
Most States have some driver physical qualification standards,
vehicle maintenance and inspection standards, background investigation
requirements, and training standards that apply to school bus
operations (both LEA and contractor). Only a few States have hours-of-
service or fatigue management standards for school bus operators. LEA-
performed school bus transportation operations are subject to Sec. 7 of
the Fair Labor Standards Act (FLSA) (29 U.S.C. 207), which requires
overtime pay for work in excess of 40 hours per week. (However, Sec.
13(b)(1) of the FLSA exempts from the provisions of Sec. 7 any employee
for whom the Secretary of Transportation has power to establish
qualifications and maximum hours of service pursuant to the provisions
of 49 U.S.C. 31502. See 29 CFR part 782. Thus, certain contractor-
performed school bus transportation operations subject to the
Secretary's jurisdiction are exempt from the overtime provisions of the
FLSA.)
LEA-performed and contractor-performed school bus transportation
operations are equally safe. The overall fatality rate for school buses
is 0.2 per 100 million vehicle miles traveled (VMT), compared with 1.5
fatalities per 100 million VMT for passenger cars (1990-2000). The
fatality rate for trucks is 2.5 per 100 million VMT (2000). In calendar
year 2001, 129 people died in school bus-involved fatal crashes; 16 of
those fatalities were bus occupants. From 1975 through 2001, the number
of school bus occupant fatalities averaged 14 per year. All fatalities
occurred during home-to-school operations. There has not been a single
fatal crash involving an interstate school activity trip during the
last 10 years.
Comments Received on the ANPRM
The ANPRM invited responses to specific questions that FMCSA
considered relevant to its need to decide whether to make the FMCSRs
applicable to interstate school bus transportation by local educational
agencies. We received comments from six State governmental
organizations, five organizations, a consulting group, five
corporations, and 13 individuals. Few
[[Page 13805]]
commenters responded to FMCSA's specific questions. Most merely stated
that they were either for or against LEAs being subject to the FMCSRs.
Beyond the information provided in the comments, FMCSA gleaned
little specific data from the answers supplied. Some commenters stated
that much of the information the agency requested was not readily
obtainable, or that States do not maintain such information. The major
points of the substantive responses are summarized below.
Summary of comments in favor of applying the Federal safety
regulations to LEAs:
1. Many of the commenters simply stated that the Federal safety
regulations should apply equally to all passenger-carrying vehicles,
regardless of controlling entity. These commenters believe that if a
contractor is subject to the safety regulations, then LEAs also should
be subject to them. Commenters expressing this view included the
National School Transportation Association, the Montana School Boards
Association, the American Bus Association, the United Motorcoach
Association, and Advocates for Highway and Auto Safety.
2. The United Motorcoach Association (UMA) expressed concern that
there are no universal minimum standards applicable to every school bus
operation, leaving safety decisions to each State or local district.
Nonetheless, UMA acknowledged that ``We can cite no circumstances where
school bus providers--either contracted or governmentally-owned--have
demonstrated anything less than the highest standards of and attention
to safety. Many States have implemented greater safety oversight on the
school bus community than they have on the commercial operators.''
3. Several commenters, including the National School Transportation
Association and the New Jersey Department of Transportation, noted
that, among the FMCSRs, hours-of-service regulations are least likely
to be replicated at the State level. These commenters envisioned
potential safety benefits from applying the hours-of-service
regulations to all interstate school transportation.
Summary of comments in opposition to applying the safety
regulations to LEAs:
1. Since the current LEA exemption (at 49 U.S.C. 31136) applies to
all government-owned and -operated vehicles, any proposal to apply the
safety regulations to LEAs should include all government vehicles
operated in interstate commerce. The governmental exemption has not
compromised safety.
2. Virtually all commenters who opposed the proposed regulatory
action agreed that most States impose vehicle inspection and
maintenance requirements on all school buses, regardless of type of
operation. The Colorado Department of Education stated that Colorado
already has and is continuing to revise ``tough regulations for the
safety of our children we transport, including when we transport these
children into other states.'' Subjecting Colorado LEAs to the Federal
safety regulations would introduce ``problems of overlapping
regulations.''
3. There is a lack of specific data indicating that LEA pupil
transportation is unsafe. The National Association of State Directors
of Pupil Transportation Services reinforced the point by adding that
any change to the FMCSRs should be based on data.
FMCSA Decision
FMSCA finds a lack of identifiable data indicating that this
segment of transportation is unsafe. The evidence shows that not a
single fatal crash in the past 10 years would have been avoided had
this proposed rule change been in existence. Since the major source of
safety benefits is potential fatal crashes avoided, FMCSA believes that
the benefits of imposing the FMCSRs on all interstate school
transportation operations would be extremely low. Even though the costs
of compliance would be modest, potential benefits would not appear to
outweigh those costs.
Further, Executive Order 13132, dated August 4, 1999, dealing with
Federalism, states that ``the national government should be deferential
to the States when taking action that affects the policymaking
discretion of the States * * *.'' and ``[i]ntrusive Federal oversight
of State administration is neither necessary nor desirable.'' A 1988
Federal Highway Administration final rule, ``Federal Motor Carrier
Safety Regulations; General'' (53 FR 18042, May 19, 1988), invokes this
principle with regard to school bus transportation operations. The
rule's preamble states, at 53 FR 18043, that ``the transportation of
school children and school personnel from home to school and back again
involves problems which are common to the States, and which, in
accordance with the President's Executive Order on Federalism
(Executive Order 12612, October 26, 1987), can best be left to the
individual States * * *.'' FMCSA has reached the same conclusion in
this rulemaking proceeding.
Although FMCSA has decided not to pursue this regulatory action,
the agency is committed to continuing to work with school bus
associations and local school districts to maintain the safety of
school bus transportation. We are working closely with two school bus
associations to learn the extent to which school buses and school bus
operations are regulated at the State level. We recently launched an
outreach program, ``Moving Kids Safely,'' that provides guidance to
school officials responsible for the transportation of school children.
As an integral part of this program, FMCSA assists the school-system
decision maker in selecting a safe transportation company and the
appropriate type of vehicle for the trip.
For these reasons, FMCSA has decided not to extend the
applicability of the FMCSRs to all interstate school transportation
operations (excluding home-to-school or school-to-home transportation)
by local governmentally operated educational agencies. The ANPRM of
October 22, 2001 (66 FR 53373) is withdrawn.
Issued on: March 11, 2004.
Warren E. Hoemann,
Deputy Administrator.
[FR Doc. 04-6585 Filed 3-23-04; 8:45 am]
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