[Federal Register: January 11, 2001 (Volume 66, Number 8)]
[Rules and Regulations]
[Page 2755-2766]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11ja01-30]
[[Page 2755]]
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Part VII
Department of Transportation
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Federal Motor Carrier Safety Administration
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49 CFR Parts 385, 390, 398
Federal Motor Carrier Safety Regulations; Definition of Commercial
Motor Vehicle (CMV); Requirements for Operators of Small Passenger-
Carrying CMVs; Final Rule and Proposed Rule
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 390
[Docket Nos. FMCSA-97-2858 and 99-5710 (formerly FHWA-97-2858 and 99-
5710)]
RINs 2126-AA51 and 2126-AA44 [formerly RINs 2125-AE22 and 2125-AE60]
Federal Motor Carrier Safety Regulations; Definition of
Commercial Motor Vehicle (CMV); Requirements for Operators of Small
Passenger-Carrying CMVs
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule.
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SUMMARY: The FMCSA is amending the Federal Motor Carrier Safety
Regulations (FMCSRs) to adopt the statutory definition of a commercial
motor vehicle (CMV) found at 49 U.S.C. 31132. The FMCSA is also
amending the FMCSRs to require that motor carriers operating CMVs
designed or used to transport between 9 and 15 passengers (including
the driver) for compensation file a motor carrier identification
report, mark their CMVs with a USDOT identification number, and
maintain an accident register. The agency is imposing these
requirements to monitor the operational safety of motor carriers
operating small passenger-carrying vehicles for compensation. This
rulemaking is in response to the Transportation Equity Act for the 21st
Century (TEA-21).
DATES: This rule is effective on February 12, 2001.
FOR FURTHER INFORMATION CONTACT: Mr. Larry W. Minor, Office of Bus and
Truck Standards and Operations, (202) 366-4009, Federal Motor Carrier
Safety Administration, 400 Seventh Street, SW., Washington, D.C. 20590-
0001; or Mr. Charles E. Medalen, Office of the Chief Counsel, HCC-20,
(202) 366-1354, Federal Highway Administration, 400 Seventh Street,
SW., Washington, D.C. 20590-0001. Office hours are from 7:45 a.m. to
4:15 p.m., e.t., Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
Internet users may access all comments that were submitted to the
Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street, SW.,
Washington, DC 20590-0001, in response to previous rulemaking notices
concerning the dockets referenced at the beginning of this notice by
using the universal resource locator (URL): http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dms.dot.gov. It is
available 24 hours each day, 365 days each year. Please follow the
instructions online for more information and help.
An electronic copy of this document may be downloaded using a modem
and suitable communications software from the Government Printing
Office's Electronic Bulletin Board Service at (202) 512-1661. Internet
users may reach the Office of the Federal Register's home page at
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.nara.gov/fedreg and the Government Printing Office's
database at: http://www.access.gpo.gov/naray.
Background
Section 204 of the Motor Carrier Safety Act of 1984 (MCSA) (Pub. L.
98-554, Title II, 98 Stat. 2832, at 2833) defined a ``commercial motor
vehicle'' as one having a gross vehicle weight rating (GVWR) of 10,001
pounds or more; designed to transport more than 15 passengers,
including the driver; or transporting hazardous materials in quantities
requiring the vehicle to be placarded. This definition, codified at 49
U.S.C. 31132(1), was the basis for the regulatory definition of a CMV
in 49 CFR 390.5, which determines the jurisdictional limits and
applicability of most of the FMCSRs. The Senate Committee on Commerce,
Science and Transportation, in a report which accompanied the MCSA
stated: ``The 10,000-pound limit, which is in the current BMCS [Bureau
of Motor Carrier Safety, now the FMCSA] regulations, is proposed to
focus enforcement efforts and because small vans and pickup trucks are
more analogous to automobiles than to medium and heavy commercial
vehicles, and can best be regulated under State automobile licensing,
inspection, and traffic surveillance procedures.'' S. Rep. No. 98-424,
at 6-7 (1984), reprinted in 1984 U.S.C.C.A.N. 4785, 4790-91.
Although the MCSA demonstrated congressional intent to focus the
applicability of the FMCSRs on larger vehicles, Congress did not repeal
section 204 of the Motor Carrier Act of 1935 (Chapter 498, 49 Stat.
543, 546). This statute, now codified at 49 U.S.C. 31502, authorizes
the FMCSA to regulate the safety of all for-hire motor carriers of
passengers and property, and private carriers of property without
respect to the weight or passenger capacity of the vehicles they
operate.
When the Congress enacted the Commercial Motor Vehicle Safety Act
of 1986 (CMVSA) (Pub. L. 99-570, Title XII, 100 Stat. 3207-170) to
require implementation of a single, classified commercial driver's
license program, it also limited the motor vehicles subject to the
program to those designed to transport more than 15 passengers,
including the driver (now codified at 49 U.S.C. 31301(4)(B) with
slightly different wording). This, too, revealed the congressional
policy of applying available Federal motor carrier safety resources to
larger vehicles.
The ICC Termination Act of 1995 (ICCTA) (Pub. L. 104-88, 109 Stat.
803, 919) changed the MCSA's definition of a commercial motor vehicle.
As amended, 49 U.S.C. 31132(1) defined a commercial motor vehicle, in
part, as a vehicle that is ``designed or used to transport passengers
for compensation, but exclud(es) vehicles providing taxicab service and
having a capacity of not more than 6 passengers and not operated on a
regular route or between specified places; (or) is designed or used to
transport more than 15 passengers, including the driver, and is not
used to transport passengers for compensation.'' The ICCTA authorized,
but did not require, the FHWA to change the FMCSRs; accordingly, the
agency did not incorporate the amended language into the CMV definition
in 49 CFR 390.5. The agency notes that the ICCTA included the phrase
``designed or used'' in specifying the passenger-carrying threshold for
the FMCSRs. This change will make the FMCSRs applicable based upon the
number of passengers in the vehicle or the number of designated seating
positions, whichever is greater. In other words, a bus designed to
carry 13 people but actually carrying 18 would be subject to the
FMCSRs.
Section 4008(a)(2) of the TEA-21 (Pub. L. 105-178, 112 Stat. 107,
June 9, 1998) again amended the passenger-vehicle component of the CMV
definition in 49 U.S.C. 31132(1). Section 4008 also changed the weight
threshold in the CMV definition by adding ``gross vehicle weight''
(GVW) to the previous ``gross vehicle weight rating'' (GVWR). The
agency may now exercise its jurisdiction based on the GVW or GVWR,
whichever is greater. A vehicle with a GVWR of 9,500 pounds that was
loaded to 10,500 pounds GVW would therefore be subject to the FMCSRs if
it was operating in interstate commerce. Commercial motor vehicle is
now defined (in 49 U.S.C 31132) to mean a self-propelled or towed
vehicle used on the highways in interstate commerce to transport
passengers or property, if the vehicle--
(A) Has a gross vehicle weight rating or gross vehicle weight of at
least 10,001 pounds, whichever is greater;
(B) Is designed or used to transport more than 8 passengers
(including the driver) for compensation;
[[Page 2757]]
(C) Is designed or used to transport more than 15 passengers,
including the driver, and is not used to transport passengers for
compensation; or
(D) Is used in transporting material found by the Secretary of
Transportation to be hazardous under section 5103 of this title and
transported in a quantity requiring placarding under regulations
prescribed by the Secretary under section 5103.
Under section 4008(b) of the TEA-21, operators of the CMVs defined
by section 31132(1)(B) would automatically become subject to the FMCSRs
one year after the date of enactment of TEA-21, if they were not
already covered, ``except to the extent that the Secretary [of
Transportation] determines, through a rulemaking proceeding, that it is
appropriate to exempt such operators of commercial motor vehicles from
the application of those regulations.''
The FMCSA views section 4008(b) of the TEA-21 as a mandate either
to impose the FMCSRs on previously unregulated smaller capacity
vehicles, or to exempt through a rulemaking proceeding some, or all of
the operators of such vehicles. Although the House Conference Report
(H.R. Conf. Rep. No. 104-422(1995)) on the ICCTA definitional change
directed the agency not to impose on the States (as grant conditions
under the Motor Carrier Safety Assistance Program (MCSAP)) the burden
of regulating a new population of carriers covered by the definition,
no such restriction is included in TEA-21 or its legislative history.
The mandate of the TEA-21 is thus stricter than that of the ICCTA.
On December 9, 1999, the President signed the Motor Carrier Safety
Improvement Act of 1999 (MCSIA) (Pub. L. 106-159, 113 Stat. 1748).
Section 212 of the MCSIA requires that the FMCSA make its safety
regulations applicable to: (1) Commercial vans referred to as
``camionetas,'' and (2) those commercial vans operating in interstate
commerce outside of commercial zones that have been determined to pose
serious safety risks. The rulemaking to implement section 212 must be
completed by December 9, 2000.
Elsewhere in today's Federal Register, the FMCSA published a notice
of proposed rulemaking to amend the FMCSRs to implement section 212 of
the MCSIA. The proposal addresses the safety oversight of camionetas
operations and other van operations that have been determined to pose a
serious safety risk and, consequently, focuses on many concerns raised
by the Congress, the commercial passenger carrier industry, and the
commenters in this proceeding. The remainder of this preamble focuses
on the issues related to bringing closure to the rulemaking dockets
identified at the top of this document.
Summary of Advance Notice of Proposed Rulemaking
On August 5, 1998 (63 FR 41766), the FHWA published an advance
notice of proposed rulemaking (ANPRM) to announce that the agency was
considering amending the FMCSRs in response to section 4008(a) of the
TEA-21, to seek information about the potential impact of the TEA-21
definition, and to request public comment on the question of whether
any class of vehicles should be exempted. The agency also requested
comment on whether the term ``for compensation'' may be interpreted to
distinguish among the types of van services currently in existence.
The agency received 733 comments in response to the ANPRM. The
commenters included State and local government agencies, transit
authorities, vanpool organizations, vanpool members, universities,
trade associations, members of the Congress, and private citizens. Most
(more than 720) of the commenters were opposed to making the FMCSRs
applicable to the operation of small passenger-carrying CMVs. However,
several commenters believed it is necessary to regulate these vehicles
and, in certain cases, identified what they believe are the specific
safety issues section 4008(a) of the TEA-21 was intended to resolve.
The majority of the commenters opposed to the rulemaking were
organizers, members of vanpools, State and local agencies, and vanpool
associations that believe implementing the definition of a passenger
vehicle in section 4008(a) of the TEA-21 would adversely impact vanpool
participation by imposing more stringent standards on drivers of these
vehicles. Some of the commenters argued that there was no data to
support imposing the FMCSRs on the operators of small CMVs, while
others emphasized the adverse impacts that the rulemaking could have on
transportation providers for elderly and disabled citizens.
Of the 733 comments submitted in response to the agency's ANPRM,
only a few expressed support for implementing section 4008(a). The
reasons for supporting the adoption of the revised definition of a CMV
varied from the belief that highway safety would be improved if the
commercial driver's license and controlled substances and alcohol
testing rules were applicable to drivers of small passenger-carrying
vehicles, to the belief that applying the safety regulations to these
vehicles would improve school bus transportation. None of the
commenters in support of regulating small passenger-carrying vehicles
believed implementing section 4008(a) of the TEA-21 would result in
adverse impacts to those businesses.
Summary of Interim Final Rule and Notice of Proposed Rulemaking
On September 3, 1999 (64 FR 48510), the FHWA published an interim
final rule to adopt the statutory definition of a CMV found at 49
U.S.C. 31132. The interim final rule also exempted the operation of
vehicles designed or used to transport more than 8 passengers
(including the driver) for compensation, from all the FMCSRs for six
months. On the same day, the agency published a notice of proposed
rulemaking (NPRM) (64 FR 48518) to require that these motor carriers
file a motor carrier identification report, mark their CMVs with a
USDOT identification number and certain other information (i.e., name
or trade name and address of the principal place of business), and
maintain an accident register.
Discussion of Comments to the Interim Final Rule and NPRM
There were nine comments in response to the interim final rule. The
commenters were: the American Bus Association (ABA); the American
Public Transit Association (APTA); the Colorado Department of Public
Safety (Colorado DPS); the International Taxicab and Livery Association
(ITLA); Greyhound Lines, Inc. (Greyhound); the National Funeral
Directors Association (NFDA); the National Limousine Association, Inc.
(NLA); the San Mateo County Transit District; and the Texas Department
of Public Safety (Texas DPS).
There were 20 comments in response to the notice of proposed
rulemaking. The commenters were: Mr. Ignacio Almada, a concerned
college student; the Amalgamated Transit Union (ATU); the ABA; the
American Car Rental Association (ACRA); Mr. E.A. Brown, a concerned
citizen; Casa de Proyecto Libertad; the Commercial Vehicle Safety
Alliance (CVSA); the Colorado DPS; Farmworker Justice Fund, Inc. (FJF);
Greyhound; the ITLA; the Iowa Department of Transportation; Mr. Rick
Farris, a concerned citizen; the League of United Latin American
Citizens (LULAC); the National Automobile Dealers Association (NADA);
the National Council of La Raza (NCLR); the NFDA; the NLA; Mr. Evan
Nacherlilla, a concerned college student; and the Texas DPS.
[[Page 2758]]
Comments in Support of Making the FMCSRs Applicable to Operators of
Small CMVs
The ABA, Mr. Ignacio Almada, the ATU, Mr. E. B. Brown, Casa de
Proyecto Libertad, the Colorado DPS, the CVSA, the FJF, Greyhound, the
LULAC, Mr. Evan Nacherlilla, the NCLR, the San Mateo County Transit
District, and the Texas DPS expressed support for making all the FMCSRs
applicable to the operators of small passenger-carrying CMVs. Greyhound
stated:
Greyhound respectfully urges the Department of Transportation
(DOT) to fully apply the Federal Motor Carrier Safety Regulations
(FMCSRs) (except drug and alcohol testing and CDL requirements) to
all interstate and international for-hire van service performed in
the United States when such service extends beyond the commercial
zones of cities or similar local boundaries and is performed by
entities primarily engaged in providing surface transportation.
This compromise position provides safety regulation for those
long haul van operators who are not now subject to meaningful
regulation and whose safety record, in terms of fatalities, is far
worse than the highly regulated intercity bus industry, which
provides comparable service. At the same time, it exempts from
federal regulation those short haul and incidental operators, such
as vanpools, limousine operators, and rental car and hotel shuttles,
whose operations may not be appropriate for federal safety
regulation.
Substantial record evidence, including nationwide surveys
submitted both in response to the ANPRM and again with these
comments, demonstrates that long haul commercial vans are involved
in a high level of fatal accidents, yet they are not subject to the
federal safety regulations--driver qualifications, hours of service,
and vehicle inspection and maintenance requirements--that are
intended to prevent those accidents.
It is this type of evidence that led Congress to enact section
4008 of TEA-21 mandating application of the FMCSRs to commercial van
operators by June 9, 1999 except to the extent that DOT through a
rulemaking exempted some of those operators. That deadline is long
passed and it is time for DOT to act expeditiously to protect the
public by adopting a final rule applying the FMCSRs to long haul
commercial vans.
Greyhound included in its comments information about recent
accidents involving small passenger-carrying CMVs. Greyhound stated:
Greyhound conducted a nationwide clippings survey of all van
accidents during the third quarter of 1998. Greyhound took the
survey results, analyzed each news report, and eliminated all
accidents that involved, or appeared to involve, all family, church,
or other not-for-hire vans. What remained were 23 commercial van
accidents involving 64 fatalities and over 100 injuries. On an
annualized basis, this is 92 accidents, 256 fatalities and over 400
injuries. Greyhound's October 5, 1998 letter transmitting that
survey to the docket is attached hereto as Attachment 1.
As part of this reply, we have done the same thing for the third
quarter of 1999. The number of fatalities for 1999 is somewhat
higher than for 1998. In the third quarter of 1999, there were 26
commercial van accidents involving 69 fatalities and approximately
150 injuries. On an annualized basis, that is 104 fatal accidents
with 276 deaths and approximately 600 injuries. We attach hereto as
Attachment 2, the third quarter, 1999 newspaper reports of fatal
accidents that definitely or apparently involve commercial vans.
The ABA indicated that its members support making the FMCSRs
applicable to the operators of small passenger-carrying CMVs. The ABA
stated:
(T)he need to apply the FMCSRs to 9-15 passenger vans is more
than a theoretical concern. ABA and its members have presented
substantial evidence to the FHWA of the extensive scope of small
passenger van operations throughout the United States. While it is
true that neither ABA nor the FHWA has comprehensive data on the
extent of compensated transportation services currently provided by
operators of vans seating 9 to 15 passengers, ABA has discovered
information indicating that this is a substantial and growing
market, particularly but not exclusively in markets for
predominantly Hispanic passengers. Moreover, this service is not
merely local in scope, but includes interstate service throughout
the United States, and foreign commerce service to and from Mexico.
In 1995, ABA member Greyhound Lines, Inc. provided to the FHWA
and Congress information on the growth of van service emanating from
Houston, Texas. That data showed literally dozens [of] operators
performing van and motorcoach service from points in Mexico to
points throughout the United States. Not any of that service was
subject to the FMCSRs to the extent the vehicles carried fewer than
16 passengers.
The ABA indicated that it believes the accident data submitted by
Greyhound should be sufficient in proving that there is a safety
problem with operators of small passenger-carrying CMVs.
Several organizations and one State agency believe the FMCSA's
rulemaking is necessary to improve the operational safety of vans used
by motor carriers transporting migrant workers, immigrants, and people
of Hispanic descent. Casa de Proyecto Libertad (or Liberty Project), an
immigrant advocacy group in the Rio Grande Valley, stated:
It has come to our attention that many of these migrants are
dying after entering the United States as victims of unregulated
commercial passenger vans. These vans, or camionetas, operate on the
Southwest border, traveling great distances between points in Mexico
and the U.S. They are often operated over 12 hours a day by one
driver and are packed full with migrants, vastly exceeding the 9 to
15 passenger limit. These already bad conditions are often
exacerbated by worn tires and poorly working brakes. We at Proyecto
Libertad work to better the futures of migrants and refugees,
however it is of great concern to us that the safety of these same
people is compromised because these vans are not required to meet
federal safety standards. A majority of the deaths that result from
this unregulated industry involve Hispanics; out of an estimated 250
casualties per year, 60 percent are Hispanic.
The regulations that the FHWA is presently exploring are an
important first step, however, we also believe that there are
further safety components that should be covered. The absence of
regulation allows anyone to set up a business to transport paying
passengers without concern for any margin of safety, no matter how
small. Therefore, it is important to step up any regulation that
FHWA considers with some simple but necessary requirements for
commercial passenger vans including: length of driving time, basic
vehicle safety standards and maintenance requirements, and stricter
driver qualifications.
In order to improve the industry's safety record, FHWA must
commit to taking the regulations to a higher level of safety. FHWA
will, in effect, be stepping in to save lives of people unwittingly
using unsafe commercial passenger vans, as well as those who come in
contact with them on the country's roads.
The National Council of La Raza and the Farmworker Justice Fund,
Inc. also submitted comments concerning the safety of Hispanic
passengers. The FJF described itself as a litigation and advocacy
organization that represents migrant and seasonal farmworkers around
the nation. Its primary focus is on wages and working conditions,
occupational health and safety, immigration status, and women's rights.
The NCLR and the FJF stated:
Both NCLR and FJF support the proposed regulations for
interstate commercial passenger vans designed for 9-15 passengers,
but only as part of the overall applications of the FMCSRs to this
group. The proposed exemption of for-hire passenger vehicles from
basic safety regulations will result in the loss of hundreds of
lives each year, most of them Latino migrant workers traveling from
border states to the central U.S. states in commercial interstate
passenger vans known as camionetas. The vast majority--80 percent by
some estimates--of the victims who have died as a result of the use
of these unregulated vehicles is Latino. Allowing these camionetas
to continue to be in use without regulation is tantamount to
dismissing the lives of their victims as insubstantial.
Camionetas typically are older, dilapidated vans. Border guards
report that balding tires, worn brakes, lack of seatbelts and fire
extinguishers are the norm for these vehicles. Instead of 15
passengers that these vehicles are designed to carry, camionetas are
often overcrowded with 30 passengers or more. To save money,
camioneta owners often assign only one driver for the long journey.
Each of these factors poses significant safety risks.
[[Page 2759]]
The Texas DPS stated:
(We) can fully appreciate the dilemma that the revision of the
definition of a commercial motor vehicle creates for the FHWA, as
many small businesses would become subject to the regulations. There
is no way to determine how many new motor carriers, drivers, and
vehicles would be subject to the new requirements. While the new
definition will create an inequitable situation for some of these
carriers, we must not lose sight of what I believe was the primary
inpetus behind the change in the definition--the ``camionetas''
operating between major cities in Texas and the other southern
states to and from our borders with Mexico. We have been in
discussion with the Texas Bus Association over the past three years
concerning the operation of the camionetas in Texas. These vehicles
and drivers often provide the same transportation services over the
same routes as the large bus companies, with the benefit of not
having to comply with the safety regulations. The drivers operate
unregulated for longer hours than their bus counterparts in vans
that endure an enormous amount of wear and tear on a daily basis.
The passengers that subscribe to the service these carriers provide
do so because of choice, convenience, and a greater sense of
security with the driver and carrier. However, their decision to use
these carriers should not be interpreted as a waiver of their rights
to the same protection and safety assurances that they would receive
by travelling on a major bus line.
While the camionetas may be the prime reason for the change in
the definition of a commercial motor vehicle, (we) would suspect
that there are other van services within the nation that inspire
similar safety concerns. There are other van services that will be
included in this definition and made subject to the FMCSR that
should be exempted. Day care centers and hotel shuttle vans may be
prime examples of these carriers. However, (we) cannot endorse
exempting these carriers from the regulations since they operate
wholly within a municipality's commercial zone and will have little
direct exposure to the state agencies that normally enforce the
FMCSR. There are many municipal police agencies that are also
authorized to enforce the FMCSR that may have a legitimate need to
regulate these carriers within their jurisdictions. (We) believe
that their opinion on the issue should be considered.
Comments in Opposition to Making the FMCSRs Applicable to Operators of
Small CMVs
Mr. Rick Farris and the Iowa Department of Transportation expressed
opposition to making the FMCSRs applicable to operators of small
passenger-carrying CMVs subject to the FMCSRs. The ACRA, ITLA, NADA,
NFDA, and NLA opposed making the FMCSRs applicable to their respective
members, rather than expressing total opposition to regulating
operators of small passenger-carrying CMVs.
The ACRA stated:
ACRA advocates that the Agency postpone regulating small
passenger-carrying motor vehicles until evidence is available that
demonstrates these vehicles pose a safety risk. Congress has given
FHWA the discretion to regulate these vehicles based upon FHWA's
expertise in the area of CMVs. If the Agency does not have the
information available to consider these smaller CMVs a safety risk,
then FHWA should develop that information before deciding to
regulate. In all cases of government action, there should be a firm
factual foundation for the action--that foundation should not be
developed after the promulgation of potentially burdensome
regulations.
If FHWA decides to move forward with this rulemaking, ACRA urges
that the Agency find that airport shuttle vans and buses with
passenger capacities of 15 or less, such as those operated by car
rental companies, fall outside the definition of ``commercial motor
vehicles.'' Car rental shuttle services do not fall within the scope
of Congress' intent because these shuttle services are not ``for
compensation'' within the plain or economic meaning of that term.
They merely provide a courtesy service for potential customers of a
car rental agency. The fact that car rental shuttle services are
operated by ``businesses'' (as referenced in the Agency's Regulatory
Guidance for FMCSRs) is not, in and of itself, sufficient to extend
the federal government's regulatory reach over this small subgroup
of small passenger-carrying motor vehicles.
If FHWA ultimately ignores this argument and decides to cover
these courtesy shuttles within the scope of this rulemaking, ACRA
urges the Agency to restrict the scope of its regulations to the
three areas proposed in the NPRM. Considering the limited factual
foundation that FHWA has for classifying these smaller vehicles as
CMVs, it is not appropriate to burden the owners of these vehicles
with the full regulatory requirements of the FMCSRs. If FHWA is
intent on regulating these smaller vehicles, then the limited
burdens proposed in the NPRM would be far preferable to full FMCSR
application.
The ITLA expressed concern about imposing the FMCSR's on the
operators of small passenger-carrying CMVs given the apparent lack of
data on the safety of such operators. The ITLA stated:
ITLA's position is that FHWA must extend the current six month
extension if the rulemaking concerning the application of the
limited FMCSRs is not complete at the time that the current six
month exemption expires. It is ITLA's reading of FHWA's NPRM that
FHWA proposes to only apply the three requirements listed in the
NPRM to the operators of small passenger-carrying CMVs, and that the
rule proposed in the NPRM would continue to provide an exception to
the general application of all of the FMCSRs except for the three
listed. ITLA is totally opposed to the application of any other
FMCSRs to small passenger-carrying CMVs unless and until FHWA
obtains safety data indicating that other FMCSRs should be applied
to this class of vehicle.
While the ITLA is opposed to making the safety regulations
applicable to its members operating small passenger-carrying CMVs, the
association believes certain types of vanpool operations should be
regulated if the agency regulates the operation of small CMVs. In its
comments to the interim final rule the ITLA stated:
ITLA is very concerned with the FHWA's indicated position that
it will not make the FMCSRs applicable to vanpools. FHWA has
indicated that it does not intend to ``regulate commuter vanpools
that are not operated in the furtherance of a commercial
enterprise.'' FHWA limits its discussion of this issue to vans which
are operated by individuals as part of a ``vanpooling'' arrangement.
FHWA appears to dismiss, as irrelevant, the fact that members of the
vanpool may pay a monthly fee to an individual to provide the
vanpool service. This vanpool service could easily be provided in
lieu of a commercial enterprise. The fact the individual providing
the service is not a business seems to be irrelevant. The type of
service being provided should be the controlling factor. In
addition, FHWA totally ignores the fact that several companies
provide vans to their employees to operate vanpools. In addition,
ITLA must presume that FHWA intends to apply applicable FMCSRs to
operators of vans which provide vanpool services as a commercial
enterprise. ITLA urges the FHWA to closely reexamine this issue
before making a final determination concerning the applicability of
the FMCSRs to ``non-commercial'' vanpools.
The NFDA indicated that its members generally do not operate
vehicles designed or used to transport 9 to 15 passengers. However, the
organization believes that when such vehicles are operated in a funeral
procession, they should be exempt from Federal safety regulations. The
NFDA stated:
While most funeral homes provide limousine services to families,
the vast majority of these vehicles are not designed or used to
transport more than 8 passengers. However, there are members of NFDA
that do provide funeral livery vehicles that can transport more than
8 passengers and which would be subject to the Interim Final Rule.
NFDA believes that an exemption is warranted for vehicles used
in connection with a funeral service since they are typically
operating in a funeral procession under a police escort and subject
to special state and local laws * * *.
Given these precautions and the fact that funeral processions
typically travel short distances and at low speeds under a police
escort, an exemption from the Interim Final Rule is warranted for a
commercial motor vehicle designed or used to transport more than 8
passengers that is used in connection with a funeral service or
funeral procession. NFDA respectfully requests that commercial motor
vehicles designed or used to transport more than 8 passengers
(including the driver) for compensation be exempt from the Interim
Final Rule when used in connection with a funeral service or funeral
procession.
[[Page 2760]]
Comments Concerning the Definition of the Term ``For Compensation'' and
Recommendations on Types of Carriage That Should Be Regulated
The preamble to the NPRM included a discussion of the term ``for
compensation.'' The discussion referenced certain regulatory guidance
the agency published in the Federal Register on April 4, 1997 (62 FR
16370). The agency indicated that the term ``for compensation'' was
considered the same as ``for hire'' and discussed its interpretation of
for-hire motor carriers. The NADA disagreed with the agency's
interpretation of what constitutes a for-hire motor carrier. The NADA
stated:
NADA strongly disagrees with this interpretation and the FHWA's
reliance on it to justify the potential regulation of 12 or 15
passenger vans used by dealerships to shuttle customers at no cost.
Regarding dealerships that operate courtesy shuttles in interstate
commerce, NADA knows of none that charge riders a fee. Moreover,
service customers who ride these shuttles are not charged more for
vehicle repair or service work than customers who do not.
In its proposal, the FHWA seems to suggest that Congress did not
intend for the FHWA to regulate van pools, schools or school bus
contractors. If so, then it follows logically that Congress did not
intend for free shuttle services to be regulated. Unlike free
shuttle service riders, van poolers, school systems and community
bus users ``compensate'' directly or indirectly for their
transportation. From a policy standpoint, free shuttle services are
akin to van pools in that they reduce traffic congestion and air
pollution by eliminating the use of a greater number of vehicles
with fewer occupants in each vehicle.
What Congress did intend to regulate was entities which are
primarily or significantly in the business of for-hire people
transportation. Certainly these would include bus, commercial van or
taxi services operating vehicles such as 12 and 15 passenger vans or
11 passenger limousines in interstate commerce. In the interest of
avoiding an overly expansive definition and in the interest of
clarity, the FHWA should promulgate a final rule that defines for-
hire transportation to include only directly compensated, fee-paid
transportation. Of course, NADA recognizes that dealerships
operating courtesy shuttle vans not for compensation are subject to
the over 15 passenger vehicle set out in 49 USC 31132(1)(C).
The ABA also provided comments concerning the meaning of the term
``for compensation.'' The ABA believes the FMCSA should interpret the
term in a way that limits the scope of the rulemaking to entities
primarily engaged in the for-hire transportation of passengers. The ABA
believes the scope of the rulemaking should be further limited to small
passenger-carrying CMV operations outside of commercial zones, as
defined in 49 CFR part 372. The ABA stated:
ABA continues to believe that the term ``for compensation'' be
defined the same as the term ``for hire,'' and agrees with FHWA's
assertion that the term ``for compensation'' is synonymous with
``for-hire.'' However, ABA proposes that the FHWA adopt the
``primarily engaged in'' test and the ``commercial zone'' exemption
discussed above. This approach will allow the FHWA to retain its
current definitions and policies, minimize the burden on these non-
transportation companies and greatly reduce the populations of new
entities for enforcement purposes.
The ABA indicated that it does not believe that hotel and rental car
shuttles should be covered under the FMCSRs. Since theses operations
are primarily non-transportation businesses, they should not be
considered for-hire passenger carriers.
Comments Concerning the MCS-150
Mr. Evan Nacherlilla and Mr. Ignacio Almada believe the FMCSA
should collect information concerning each employee's and driver's
previous driving record, experience, and criminal record. These
commenters also believe the agency should create a database available
to the general public via the Internet that identifies all motor
carriers operating small passenger-carrying CMVs. They argue that this
will allow the public to make informed decisions whether to engage in
business with certain motor carriers.
Comments Concerning Marking of CMVs
The ITLA and the NFDA opposed the proposal that operators of small
passenger-carrying CMVs be required to mark their vehicles in
accordance with 49 CFR 390.21. The ITLA stated:
Although the ITLA recognizes the limited applicability of FMCSRs
that FHWA is proposing, the ITLA does question the necessity of
imposing the marking requirements of 49 CFR 390.21 on limousines and
other ``luxury-type passenger service'' vehicles. Under the
provisions of 49 CFR 390.401, limousines and other ``luxury-type
passenger service'' vehicles with a capacity of six or fewer
passengers are exempt from the marking requirements of 49 CFR part
390, Subpart D. ITLA urges the FHWA to expand this exemption to
vehicles providing similar services which carry 9 to 15 passengers
including the driver. The nature of the service provided in such
vehicles is luxury service, as acknowledged by FHWA in the existing
regulations at 49 CFR 390.401. The imposition of the marking
requirements on larger capacity limousines and other luxury-type
passenger service'' vehicles would appear to serve no useful safety
purpose, but would diminish or eliminate the ``luxury'' nature of
the service provided by unnecessarily marking the vehicles in
question.
The NFDA stated:
While this regulation does not impose undue regulatory burdens
for most motor carriers operating CMVs, they would cause significant
consumer dissatisfaction with funeral homes operating CMVs. It would
offend many funeral consumers if limousines used by funeral homes
were marked with ODOT numbers and the name and address of the
funeral home. These markings would appear to many consumers as an
undignified advertisement painted on a limousine that is being used
in connection with a funeral service. For these reasons, NFDA would
request exemption from the proposed regulation for all CMVs used by
a funeral home in connection with a funeral service or funeral
procession.
Comments Concerning the Proposal to Require an Accident Register
Mr. Evan Nacherlilla and Mr. Ignacio Almada believe the accident
register for the operators of small passenger-carrying vehicles should
include the ``legal conclusion to the accident and the individual
dollar amount in damage to all vehicles involved.'' These commenters
indicated that documenting this information would make it easier for
any interested party to determine if the driver of the CMV was
responsible for the accident, and to determine the severity of the
accident. They also suggest that the accident register cover all
accidents for the previous 60 months.
FMCSA Response to Comments
The FMCSA has carefully considered all of the comments received in
response to the interim final rule and the NPRM. We have grouped the
comments by subject for discussion.
Safety Performance Information Submitted by Commenters
The ABA, ATU, Casa de Proyecto Libertad, and Greyhound have
presented compelling information detailing accidents and deaths
occurring in small passenger vans in the United States. These
submissions indicate that commercial van transportation is increasing
across the country, particularly in markets serving the U.S.-Mexico
border. The camionetas operations along the border were singled out in
the comments as posing significant unregulated safety risks to
passengers and the travelling public. The Texas DPS echoed this view
and recommended they should be subject to the FMCSRs. Notwithstanding
the emphasis on camionetas operations, the commenters raise questions
about the safety of other long-haul, interstate van operators as well.
The information presented by the various commenters raises safety
issues
[[Page 2761]]
the FMCSA must address. Our plan to address the issues begins with this
final rule. When this rule becomes effective, all businesses operating
vehicles designed or used to transport 9 to 15 passengers (including
the driver) for compensation in interstate commerce will be required to
complete a motor carrier identification report, mark their vehicles
with a USDOT identification number, and maintain an accident register.
The agency is taking this action to gather information about the
operations and safety of motor carriers operating small passenger-
carrying vehicles for compensation.
Elsewhere in today's Federal Register, the FMCSA published another
rulemaking required by section 212 of the MCSIA. It addresses the
safety oversight of camionetas operations and other van operations that
might pose a serious safety risk and, consequently, focuses on many
concerns raised by the commenters in this proceeding. For that reason,
the FMCSA requests that those who have participated in this rulemaking
assist the agency in implementing section 212 of the MCSIA. The
accident information from news clippings paints a vivid, but
indiscriminate, picture of safety problems in van transportation. The
challenge for the FMCSA is to develop information that enables the
agency to focus its regulations on the industry segment that poses
serious safety risks. By this rulemaking, the FMCSA has narrowed its
focus to for-hire motor carriers operating vehicles designed or used to
transport 9 to 15 passengers in interstate commerce. The other
rulemaking concerning section 212 of the MCSIA considers which segments
of that group should be subject to the safety-related operational
FMCSRs. The agency encourages all interested parties to respond to the
notice of proposed rulemaking on this subject and welcomes information
that helps us make that determination.
Response to Comments Concerning the Meaning of the Phrase ``For
Compensation''
The FMCSA recognizes the concerns that the ABA, ACRA, Greyhound,
NADA, and NFDA have about how the agency interprets the phrase ``for
compensation.'' Although these commenters believe the phrase should,
for the purpose of implementing section 4008 of the TEA-21, be
interpreted to be applicable to only those entities that are directly
compensated (i.e., entities that are primarily engaged in the for-hire
transportation of passengers), the FMCSA will continue to use the
broader interpretation of the phrase. The agency stands by its
previously stated position that the phrase ``for compensation'' is
synonymous with ``for hire'' and its April 4, 1997 (62 FR 16370,
16407), interpretation of ``for-hire motor carrier.'' The
interpretation states:
The FHWA has determined that any business (emphasis added)
entity that assesses a fee, monetary or otherwise, directly or
indirectly for the transportation of passengers is operating as a
for-hire carrier. Thus, the transportation for compensation in
interstate commerce of passengers by motor vehicles (except in six-
passenger taxicabs operating on fixed routes) in the following
operations would typically be subject to all parts of the FMCSRs,
including part 387: whitewater river rafters; hotel/motel shuttle
transporters; rental car shuttle services, etc. These are examples
of for-hire carriage because some fee is charged, usually indirectly
in a total package charge or other assessment for transportation
performed.
The reference to six-passenger taxicabs operating on fixed routes
was included in the guidance due to a CMV definition set forth in the
ICCTA. The ICCTA amended the statutory definition of a CMV, adding
``designed or used to transport passengers for compensation, but
exclud[es] vehicles providing taxicab service and having a capacity of
not more than 6 passengers and not operated on a regular route or
between specified places.'' The TEA-21 definition removed this clause
from the definition of CMV.
The interpretation simply lays out the agency's view of its
statutory authority, and the current applicability of the safety
regulations to certain for-hire motor carriers.
Response to Comments About Transportation of Migrant Workers
The FMCSA recognizes that some commenters believe that migrant
workers face disproportionately high fatality rates in small passenger-
carrying CMVs because the FMCSRs do not apply. Although the FMCSRs do
not apply to small vans at this time, the FMCSA has in place safety
regulations applicable to motor carriers that transport migrant workers
more than 75 miles in interstate or foreign commerce (49 CFR part 398).
These regulations apply to any person, with certain limited exceptions,
who transports in interstate or foreign commerce at any one time three
or more migrant workers to or from their employment by any motor
vehicle other than a passenger automobile or station wagon. Overall,
the rules address the safety concerns expressed by commenters. For
example, Sec. 398.6 prohibits drivers from operating a vehicle for more
than 10 hours in any 24-hour period, unless the driver is given 8 hours
rest immediately following the 10 hours driving time. Drivers must meet
the physical qualification standards in Sec. 398.3 to qualify as a
driver of migrant workers. Equipment standards are prescribed in
Sec. 398.4 to ensure that the carrier's motor vehicles are safe.
Moreover, carriers are required to have their vehicles systematically
inspected (Sec. 398.7). As these regulations prescribe broad safety
standards for motor carriers of migrant workers, the FMCSA does not see
a basis for additional regulation in this specific segment of the
industry.
Response to Comments Concerning Information on the Form MCS-150
The FMCSA has considered Mr. Evan Nacherlilla's and Mr. Ignacio
Almada's comments concerning the collection of data on the Form MCS-150
about individual driving records, experience, and criminal records.
Motor carriers are already required to consider driving records and
information from previous employers as part of the process for hiring
drivers. The FMCSA believes that this responsibility should remain with
the employer and sees no public benefit to having the agency collect
this information. With regard to Mr. Evan Nacherlilla's and Mr. Ignacio
Almada's comments about the creation of a database that identifies all
motor carriers operating small passenger-carrying CMVs, the FMCSA has
already developed databases of all interstate motor carriers that have
complied with the agency's requirement to complete the motor carrier
identification report (see 49 CFR 390.19), and for-hire motor carriers
that must obtain operating authority (see 49 CFR part 365). The public
may request safety profiles of interstate motor carriers by calling 1-
800-832-5660. The public may also obtain information about motor
carriers via the Internet by visiting the agency's website at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fmcsa.dot.gov.
Response to Comments Concerning Marking of CMVs
The FMCSA continues to believe that small passenger-carrying CMVs
should be marked to help enforcement officials and the general public
identify these vehicles. However, after considering the comments
received in response to the NPRM, the agency has determined that
marking these vehicles with USDOT identification numbers only is
sufficient at this time. The agency is not requiring that the name of
the carrier, and the principal place of business be marked on these
CMVs. The types of passenger-carrying operations being conducted by
many of these businesses (e.g., vehicles in funeral processions) is
such that it would be distasteful to clients and
[[Page 2762]]
customers to have the vehicles marked in the same manner as larger
CMVs. Clients and customers of limousine services and other luxury-type
passenger service would most likely prefer that the vehicles be
discretely marked. A requirement that these vehicles display the name
of the motor carrier and principal place of business with markings that
are readily legible, during daylight hours, from a distance of 50 feet
while the vehicle is stationary would be anything but discrete. Marking
the vehicles with the USDOT identification number only, would provide a
unique identifier linking the vehicle to the motor carrier, without
being a visual annoyance to clients and customers. The identification
number must be visible from a distance of 50 feet from the CMV, but
this requirement should be much less offensive to customers than
displaying the name and principal place of business for the motor
carrier.
The FMCSA believes that, given the relatively small size of
vehicles designed or used to transport 9 to 15 passengers (including
the driver) for compensation when compared to other CMVs, motorists
should be able to quickly locate the USDOT identification numbers
displayed on the sides of the vehicles. Further, motorists should be
able to see the license plate(s) on these small CMVs more easily than
those on larger vehicles. For urgent matters (such as accidents or
allegations of dangerous driver behavior) that necessitate immediate
action by State or local law enforcement officials, the license plates
will enable those officials to trace the vehicle back to the registered
owner (i.e., the motor carrier or leasing company) and the display of
the company name and principal place of business is not critical. For
other matters, such as individuals who wish to submit complaints about
unsafe motor carriers (e.g., motorists who have only the USDOT
identification number, clients or customers who know only the name of
the business, or motor carrier employees reporting information about
their employers), the FMCSA will have sufficient information to locate
these carriers and take appropriate action. Accordingly, the FMCSA will
only require that small passenger-carrying CMVs be marked with the
USDOT identification number.
Response to Comments About the Accident Register
The FMCSA does not believe it is necessary to require that the
accident register include more information than is currently required
by 49 CFR 390.15. There is no discernible benefit to Mr. Evan
Nacherlilla's and Mr. Ignacio Almada's suggestion that the agency
require motor carriers to include in their accident registers
information about findings of guilt or innocence for each accident. The
agency also sees little benefit to requiring that information be
retained by the motor carrier for 60 months. The commenters have not
provided any information to suggest that the current requirements are
insufficient.
The FMCSA is concerned about the total number of accidents, as
defined in 49 CFR 390.5, that a motor carrier has experienced for the
previous 12 months, when an assessment of the motor carrier's safety
management controls must be made. The agency calculates motor carriers'
accident rates (the number of recordable accidents per million miles of
CMV travel) as part of the process for determining their safety rating.
Accidents are a factor in that process when a motor carrier incurs two
or more recordable accidents within the 12 months prior to a compliance
review. The agency considers ``preventability'' when a motor carrier
contests a rating by presenting compelling evidence that the recordable
rate is not a fair means of evaluating its accident factor. The agency
uses the following standard in making a determination of
preventability: ``If a driver, who exercises normal judgment and
foresight could have foreseen the possibility of the accident that in
fact occurred, and avoided it by taking steps within his/her control
which would not have risked causing another kind of mishap, the
accident was preventable.'' This standard is presented in appendix B to
part 385, Explanation of Safety Rating Process.
The commenters have not provided any information to support the
implicit assertion that the current accident information used as a
factor in assessing a motor carrier's safety fitness is inadequate.
Irrespective of whether the driver receives a ticket for violating
State or local traffic laws, or is convicted of a more serious offense,
the FMCSA continues to believe that all recordable accidents should be
considered when determining a motor carrier's safety fitness. The FMCSA
is able to obtain all the information it needs concerning accidents
involving a motor carrier subject to 49 CFR 390.15, either from other
records maintained by the motor carrier or from State or local
enforcement agencies that responded to the accident(s) in question.
Therefore, the FMCSA has in place a reliable means of gathering
information about accidents involving fatalities, injuries requiring
medical treatment away from the scene of the accident, or disabling
damage to any of the vehicles involved in the incident.
With regard to the suggestion that the accident register include
the dollar amount of damages in each accident, the FMCSA does not
believe such information is a reliable means of assessing the severity
of accidents. For example, a CMV collision involving the total loss of
an expensive brand new import car would be listed as a more severe
accident than one involving the total loss of 10-year-old import car of
the same make and model. The fatality, injury, and disabling damage
criteria provide a more effective means of distinguishing between
accidents involving only minor injuries and/or property damage, and
those that are more severe.
Discussion of the Final Rule
The FMCSA is making final the amendments to the definition of
``commercial motor vehicle'' in Sec. 390.5 that were adopted on an
interim final basis on September 3, 1999 (64 FR at 48516-48517). All of
the amendments are based on statute. The FMCSA is also adopting a
revised version of Sec. 390.3(f)(6) to require that operators of CMVs
designed or used to transport 9 to 15 passengers for compensation
complete a motor carrier identification report (49 CFR 390.19), comply
with certain provisions of the CMV marking regulation (49 CFR 390.21,
except Sec. 390.21(b)(1)), and maintain an accident register (49 CFR
390.15). These actions will enable us to monitor the operational safety
of all motor carriers operating small passenger vehicles for
compensation. In addition, the three requirements will help the agency
compile information on the number of motor carriers operating small
passenger-carrying vehicles for compensation, the locations of their
principal places of businesses, the number of vehicles operated, and
the number of drivers employed. Through marking of the vehicles with
USDOT identification numbers, State agencies will be able to identify
small passenger-carrying vehicles and collect accident data for
submission to the FMCSA through the agency's SAFETYNET database. The
requirement that motor carriers operating small passenger-carrying CMVs
maintain accident information will enable the agency to conduct special
studies concerning the safety performance of these carriers.
Motor Carrier Identification Report
Section 390.19 of the FMCSRs requires motor carriers to file Form
MCS-150, Motor Carrier Identification
[[Page 2763]]
Report, before beginning operations in interstate commerce, and to file
an update of the report every 24 months. The information from the Form
MCS-150 is used to create a file in the Motor Carrier Management
Information System (MCMIS), a database containing safety information
about interstate motor carriers (e.g., compliance review results,
roadside inspection results, CMV accidents, etc.).
The FMCSA is requiring that operators of small passenger-carrying
CMVs file Form MCS-150 to enable the agency to determine how many motor
carriers are affected by the TEA-21 revision to the CMV definition, the
number of drivers employed and vehicles operated by these carriers, and
the principal place of business for each of these entities. Each motor
carrier will be assigned a USDOT census or identification number which,
when marked on each CMV operated by the motor carrier, will help
enforcement officials and the general public identify these businesses.
Vehicle Marking
Section 390.21 requires that motor carriers mark their CMVs with
the name or trade name of the business, the city or community and State
in which the motor carrier maintains its principal place of business,
and its motor carrier identification number. The FMCSA is requiring the
operators of small passenger-carrying vehicles to comply with all the
provisions of the marking rule, except Sec. 390.21(b)(1) concerning the
display of the name or trade name of the motor carrier. This will help
to ensure that enforcement officials and the public can identify motor
carriers' vehicles and that accidents (as defined in 49 CFR 390.5) can
be recorded by the States and entered into the FMCSA's SAFETYNET
database. The FMCSA will use the information to study the number and
locations of accidents, and the motor carriers involved, to determine
if there are patterns or trends concerning the safety performance of
these carriers.
Accident Register
Section 390.15 requires that motor carriers make all records and
information pertaining to an accident available to the FMCSA upon
request. Motor carriers must give the agency all reasonable assistance
in the investigation of any accident. Motor carriers also must maintain
at the principal place of business, for a period of one year after an
accident occurs, an accident register with the following information:
(1) Date of the accident;
(2) City or town in which or most near where the accident occurred,
and the State in which the accident occurred;
(3) Driver's name;
(4) Number of injuries;
(5) Number of fatalities; and
(6) Whether hazardous materials, other than fuel spilled from the
fuel tanks of the motor vehicles involved in the accident, were
released.
Copies of all accident reports required by State or other
government entities or insurers also must be maintained by the motor
carriers.
The FMCSA is requiring that operators of CMVs designed or used to
transport 9 to 15 passengers for compensation be required to comply
with Sec. 390.15 to assist the agency in conducting investigations and,
if necessary, special studies about the safety performance of
particular motor carriers or segments of the industry. For example, if
one of a motor carrier's small passenger-carrying vehicles is involved
in a major accident or a series of accidents, the FMCSA could review
the records required by Sec. 390.15 as part of the process of
determining whether there are deficiencies with the carrier's safety
management controls.
Explanation of the Term ``For Compensation''
The TEA-21 definition of a passenger CMV includes the phrase ``for
compensation'' in 49 U.S.C. 31132(1)(B). However, the TEA-21 did not
include a definition of the phrase. As stated above, the FMCSA
considers the term to be synonymous with ``for hire.'' The FMCSA
intends that this rulemaking be applicable to all interstate for-hire
motor carriers of passengers operating CMVs designed or used to
transport 9 to 15 people. Although some commenters to the interim final
rule and NPRM suggested that a distinction be made between businesses
that are primarily engaged in the for-hire transportation of passengers
and those that are primarily engaged in a non-transportation related
enterprise, the agency does not believe it is appropriate to exempt a
for-hire motor carrier from the requirements being proposed on the
basis of how the motor carrier is paid for its services.
Rulemaking Analysis and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FMCSA has determined that this action is a significant
regulatory action within the meaning of Executive Order 12866 and
significant within the meaning of Department of Transportation
regulatory policies and procedures because of the substantial public
interest concerning the possible extension of the applicability of the
FMCSRs to a larger population of motor carrier operations. This rule
requires that operators of vehicles designed or used to carry between 9
and 15 passengers (including the driver) for compensation, in
interstate commerce, file a motor carrier identification report, mark
their CMVs with a USDOT identification number, and maintain an accident
register.
The FMCSA believes the costs of complying with the requirements to
submit a motor carrier identification report and to maintain an
accident register are negligible. These requirements impose only
information collection burdens (i.e., completion of forms,
recordkeeping, etc.) and are discussed in greater detail below in the
``Paperwork Reduction Act'' section of this notice.
The FMCSA estimates that the cost of marking CMVs will be between
$11 and $27 per vehicle depending on the number of vehicles the motor
carrier operates. Although the actual cost to the industry should be
less than that originally estimated in the agency's NPRM--the final
rule requires that less information be displayed than was originally
proposed--the FMCSA is using the same estimate range to avoid
underestimating the burden on the industry. These cost estimates are
based upon the FMCSA's regulatory evaluation and regulatory flexibility
analysis prepared for the June 2, 2000 (65 FR 35287), final rule
concerning CMV marking requirements. The complete regulatory evaluation
and regulatory flexibility analysis are included in FMCSA Docket No.
FMCSA-98-3947.
Since motor carriers operating CMVs designed or used to transport 9
to 15 passengers currently are not required to complete Form MCS-150,
the FMCSA does not have sufficient data to estimate the total number of
CMVs that would need to be marked in accordance with Sec. 390.21.
However, one of the commenters responding to the August 5, 1998, ANPRM
(63 FR 41766) provided information that may be useful in estimating the
population of vehicles that would need to be marked. The International
Taxicab and Livery Association (ITLA) stated:
According to information available to ITLA, there are
approximately 50,000 limousines in use that would be affected by the
definitional change. It should be noted that there are over 9000
limousine operators nationwide (also operating premium sedan
services), and that the median fleet size is less than 5. In
addition, the average annual
[[Page 2764]]
miles operated by limousines is approximately 23,000 miles.
ITLA estimates that there are approximately 74,000 vans
nationwide--the breakdown between ``mini-vans'' and those affected
by the proposed definition is not available. Van fleets average less
than 10 vans, with an approximate annual mileage of 40,000 per
vehicle, and an average trip length of less than 8 miles lasting
significantly less than 1 hour.
In September of 1998, the American Business Information (a
mailing list sales company) released a sales catalog that reports
the following information:
------------------------------------------------------------------------
# of U.S.
SIC code Type of service companies
------------------------------------------------------------------------
4111-01..................... Airport Transportation....... 4,752
4119-01..................... Handicapped Transportation... 1,302
4119-03..................... Limousine Transportation..... 9,482
4121-01 Taxicab Transportation....... 7,348
------------
Total................... ............................. 22,884
------------------------------------------------------------------------
The ITLA indicated that, if the agency decides to make the FMCSRs
applicable to the operation of small passenger-carrying vehicles,
approximately 14,000 companies, 125,000 vehicles, and 165,000 drivers
would be covered. If there are 125,000 vehicles designed or used to
transport 9 to 15 passengers for compensation in interstate commerce,
the costs to the industry for marking CMVs could be between $1,375,000
and $3,375,000. The costs are one-time expenses and would not be
recurring. Generally, the marking would last the normal life of the
vehicle.
At this time, the FMCSA is not able to specifically quantify the
safety benefits resulting from requiring CMVs to be marked. The
requirement is necessary because it would be used to monitor the safety
performance of these motor carriers. The safety performance data
ultimately would be used to determine whether there are safety problems
with operators of small passenger-carrying CMVs, and whether other
FMCSRs should be made applicable to them.
The FMCSA has considered other rulemaking options, such as not
imposing any regulatory burdens on these motor carriers, excluding the
marking requirements from this final rule, or imposing more stringent
requirements. The agency believes the option chosen will be most
effective at helping to achieve its objective to monitor the safety
performance of these passenger carriers. Based upon the information
above, the agency anticipates that the economic impact associated with
this rulemaking action is minimal and a full regulatory evaluation is
not necessary.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FMCSA has considered the effects of this regulatory action on
small entities and determined that this rule will affect a substantial
number of small entities, but will not have a significant impact on
them. If the ITLA's estimate of 14,000 interstate motor carriers
operating CMVs designed or used to transport 9 to 15 passengers is
accurate, and most or all of these businesses are classified as small
businesses by the Small Business Administration (SBA), the rule could
affect up to 14,000 small entities.
Generally, the costs per vehicle for small companies to mark their
CMVs will be greater than those for large companies. If a motor carrier
has between 1 to 6 vehicles, the total cost per vehicle for marking is
estimated at $27. The motor carrier's total cost would therefore be
between $27 and $156. For a motor carrier operating 7 to 20 CMVs, the
total cost per vehicle marking would be $21. The total cost for the
motor carrier's fleet would be between $147 and $420. For a fleet of 21
to 99 vehicles, the total cost per vehicle marking would decrease to
$16. The total cost for the motor carrier's fleet would be between $336
and $1,584. And, for a fleet of 100 to 999 vehicles the cost per
vehicle marking would decrease to $11. The total fleet cost would be
between $1,100 and $10,989.
For purposes of this rulemaking analysis, given the lack of any
other relevant data on the subject, the FMCSA will use the ITLA's
estimate for the number of businesses, vehicles, and drivers for these
small passenger-carrying CMVs. The FMCSA's data concerning carriers
that have operating authority can only be used to identify 1,648
interstate motor carriers operating vehicles designed or used to
transport between 9 to 15 passengers. The agency believes there may be
many more carriers and that the ITLA's estimate appears to be a
reasonable number.
Based on its analysis summarized above, the FMCSA believes that
this rulemaking could affect, but not have a significant impact on, a
substantial number of small entities. For example, if a small entity
operated between 7 and 20 CMVs, the total cost per vehicle marking
would be $21. The total cost for the motor carrier's fleet would be
between $147 and $420. The FMCSA does not consider this total fleet
cost for marking the CMVs to be a significant impact on a business
operating 20 vehicles, but a normal operating cost for doing business.
The anticipated benefits (i.e., enabling the FMCSA, State agencies, and
others to identify small passenger-carrying vehicles involved in
accidents and, in turn, determine whether additional regulatory
requirements are necessary) outweigh the costs associated with this
rule. Accordingly, the FMCSA has considered the economic impacts of the
requirements on small entities and certifies that this rule would not
have a significant economic impact on a substantial number of small
entities.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities do not apply to this program.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-
3520), Federal agencies must obtain approval from the Office of
Management and Budget (OMB) for each collection of information they
conduct, sponsor, or require through regulations. The FMCSA has
determined that this proposal contains new collection of information
requirements for the purposes of the PRA. The FMCSA is requiring that
motor carriers operating CMVs designed or used to transport 9 to 15
passengers meet the vehicle marking requirements at 49 CFR 390.21
(except Sec. 390.21(b)(1)). The FMCSA believes it is important that
small passenger-carrying CMVs be marked with USDOT numbers so that the
public has an effective means to identify motor carriers operating in
an unsafe manner. Such markings will also assist Federal and State
officials in accident investigations.
The information collection requirements contained on Form MCS-150
have been approved by the OMB under the provisions of the PRA and
assigned the control number of 2126-0013 which expires on October 31,
2002. The FMCSA estimates it takes approximately 20 minutes for
interstate motor carriers to complete the Form MCS-150 the first time
it is filed. The agency estimates that as a result of this rulemaking,
14,000 interstate motor carriers, currently not subject to the FMCSA's
safety regulations, would have to complete the Form MCS-150. Motor
carriers are required to complete the form before beginning operations
in interstate commerce. Motor carriers
[[Page 2765]]
must also update the information submitted to the agency every 24
months. However, the agency estimates the update would take
considerably less time because most of the information is likely to be
the same and motor carriers would already have had the experience of
completing the form at least once before the update. The agency
estimates the update would take 10 minutes. Therefore, the FMCSA
estimates an additional burden of 4,667 hours ((20 minutes per motor
carrier x 14,000 motor carriers) / 60 minutes per hour) to OMB 2126-
0013 for the initial filing of the Form MCS-150. The burden hours for
OMB 2126-0013 would be further increased by 2,333 hours ((10 minutes
per motor carrier x 14,000 motor carriers) / 60 minutes per hour)
because of the biennial update. This final rule contains a requirement
that businesses currently not subject to 49 CFR 390.19 file, and
periodically update the Form MCS-150.
The information collection requirements for the accident register
have been approved by the OMB under the provisions of the PRA and
assigned the control number of 2126-0009 which expires on August 31,
2002. The FMCSA estimates it takes approximately 18 minutes for
interstate motor carriers to collect and record the seven elements of
information on the accident register. However, since the FMCSA does not
have sufficient information to estimate the number of accidents
operators of small passenger-carrying CMVs have each year, the agency
is unable to estimate the total time burden. If each of the estimated
14,000 interstate motor carriers operating small passenger-carrying
vehicles has one accident per year, an additional burden of 4,200 hours
per year ((18 minutes per motor carrier x 14,000 motor carriers)/60
minutes per hour) would be added to OMB No. 2126-0009. This final rule
requires businesses currently not subject to 49 CFR 390.15 to maintain
an accident register.
The FMCSA submitted both of these revised information collections,
as required, to OMB for review and approval at the time the September
3, 1999, NPRM was published. Interested parties were invited to send
comments regarding these information collection requirements. There
were no substantive comments received. Therefore, the FMCSA is
requesting that the revised information collections be approved at this
time and is submitting this request to OMB.
National Environmental Policy Act
The agency has analyzed this rulemaking for the purpose of the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
has determined that this action does not have any effect on the quality
of the environment.
Unfunded Mandates Reform Act of 1995
This rule does not impose an unfunded Federal mandate, as defined
by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532 et seq.),
that will result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more in any one year.
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
The FMCSA has analyzed this action under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This rule is not an economically significant rule and does not
concern an environmental risk to health or safety that may
disproportionately affect children.
Executive Order 12630 (Taking of Private Property)
This rule will 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 13132 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132 dated August 4, 1999, and
it has been determined that this rulemaking does not have a substantial
direct effect or sufficient federalism implications on States that
would limit the policymaking discretion of the States. Nothing in this
document directly preempts any State law or regulation. This final rule
does not impose additional costs or burdens on the States.
Regulation Identification Number
A regulatory identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RINs contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects in 49 CFR Part 390
Highway safety, Motor carriers, Motor vehicle identification and
marking, Reporting and recordkeeping requirements.
Issued on: January 4, 2001.
Clyde J. Hart, Jr.,
Acting Deputy Administrator.
Accordingly, part 390 of Title 49 of the Code of Federal
Regulations is amended as follows:
[[Page 2766]]
PART 390--[AMENDED]
1. Revise the authority citation for part 390 to read as follows:
Authority: 49 U.S.C. 13301, 13902, 31132, 31133, 31136, 31502,
and 31504; sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C.
701 note); and 49 CFR 1.73.
2. Amend Sec. 390.3 to revise paragraph (f)(6) to read as follows:
Sec. 390.3 General applicability.
* * * * *
(f) Exceptions. * * *
(6) The operation of commercial motor vehicles designed or used to
transport between 9 to 15 passengers (including the driver). However,
motor carriers operating these vehicles for compensation are required
to comply with 49 CFR 385.21, Motor carrier identification report, 49
CFR 390.15, Assistance in investigations and special studies, and 49
CFR 390.21, Marking of commercial motor vehicles (except
Sec. 390.21(b)(1)).
3. Amend Sec. 390.5 to revise the definition of ``Commercial motor
vehicle'' to read as follows:
Sec. 390.5 Definitions.
* * * * *
Commercial motor vehicle means any self-propelled or towed motor
vehicle used on a highway in interstate commerce to transport
passengers or property when the vehicle--
(1) Has a gross vehicle weight rating or gross combination weight
rating, or gross vehicle weight or gross combination weight, of 4,536
kg (10,001 pounds) or more, whichever is greater; or
(2) Is designed or used to transport more than 8 passengers
(including the driver) for compensation; or
(3) Is designed or used to transport more than 15 passengers,
including the driver, and is not used to transport passengers for
compensation; or
(4) Is used in transporting material found by the Secretary of
Transportation to be hazardous under 49 U.S.C. 5103 and transported in
a quantity requiring placarding under regulations prescribed by the
Secretary under 49 CFR, subtitle B, chapter I, subchapter C.
[FR Doc. 01-765 Filed 1-10-01; 8:45 am]
BILLING CODE 4910-EX-P