Federal Motor Carrier Safety Regulations; Definition of Commercial Motor Vehicle

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Parts 390, 391, 392, 393, 395, and 396

[FHWA Docket No. FHWA-97-2858]

RIN 2125-AE 22

Federal Motor Carrier Safety Regulations; Definition of

Commercial Motor Vehicle

AGENCY: Federal Highway Administration (FHWA); DOT.

ACTION: Advance notice of proposed rulemaking (ANPRM); request for

comments.

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SUMMARY: The Federal Highway Administration is considering amending the

Federal Motor Carrier Safety Regulations (FMCSRs) in response to the

Transportation Equity Act for the 21st Century (hereinafter referred as

``TEA-21''). Section 4008(a) of TEA-21 amends the definition of the

term ``commercial motor vehicle'' (CMV) in 49 U.S.C. 31132(1) to cover

vehicles ``designed or used to transport more than 8 passengers

(including the driver) for compensation.'' The change could make the

FMCSRs applicable to a considerable number of entities, including

operators of small commuter vans or airport shuttle buses, not now

subject to them. This ANPRM requests comment and information to help

the FHWA identify such operators and

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determine whether the regulations should be applied to all of them or

whether exemptions should be granted.

DATES: Comments must be received on or before October 5, 1998.

ADDRESSES: Submit written, signed comments to FHWA Docket No. FHWA-97-

2858, the Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh

Street, SW., Washington, DC 20590-0001. All comments received will be

available for examination at the above address from 10 a.m. to 5 p.m.,

e.t., Monday through Friday, except Federal holidays. Those desiring

notification of receipt of comments must include a self-addressed,

stamped envelope or postcard.

FOR FURTHER INFORMATION CONTACT: Mr. David M. Lehrman, Office of Motor

Carrier Research and Standards, (202) 366-0994, Mr. Charles E. Medalen,

Office of the Chief Counsel, (202) 366-1354, Federal Highway

Administration, 400 Seventh Street, SW., Washington, DC 20590. 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 can access all comments received by the U.S. DOT

Dockets, Room PL-401, by using the universal resource locator (URL):

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 Federal Register

Electronic Bulletin Board Service at (202) 512-1661. Internet users may

reach the Federal Register's home page at: http://www.nara.gov/nara/

fedreg and the Government Printing Office's database at: http://

www.access.gpo.gov/su__docs.

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 FHWA's Office of Motor Carriers)

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

Sec. 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

FHWA 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 definition of a commercial motor vehicle. As

amended, section 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 Sec. 390.5.

Section 4008(a)(2) of 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).

Commercial motor vehicle is now defined 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;

(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 Sec. 4008(b), operators of the CMVs defined by section

31132(1)(B) will automatically become subject to the FMCSRs one year

after the date of enactment of TEA-21, if they are 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 FHWA views section 4008 of TEA-21 as a mandate to impose the

FMCSRs on previously unregulated smaller capacity vehicles. Although

the House Conference Report 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 TEA-21 is thus stricter than that of the ICCTA. Still, the

FHWA is authorized to undertake rulemaking to exempt some of these

passenger vehicles from the FMCSRs. One of the purposes of this ANPRM

is to ask for information about the potential reach of the TEA-21

definition and comments on the question whether any class of vehicles

should be exempted. We would also like to determine whether the term

``for compensation'' may be interpreted to distinguish among the types

of van services currently in existence (see question 6 below).

Request for Comments

The purpose of this ANPRM is to gather information from a broad

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spectrum of commenters. While some of the questions are intended for

specific audiences, all interested parties are encouraged to answer any

of the questions posed. In addition, commenters should include a

discussion of any other issues that they believe are relevant to this

rulemaking.

1. What types and numbers of passenger carriers that are not

currently subject to Federal regulation would be covered by the FMCSRs

when the new TEA-21 definition of a CMV becomes effective? For example,

are there day care centers or senior citizen facilities/communities

utilizing for-hire contractors in interstate commerce? How many car or

van pools would be subject to the regulations?

2. What would be the safety benefits of applying the FMCSRs to all

interstate operations of for-hire vehicles with a seated passenger

capacity of more than 8 passengers (including the driver), as in the

TEA-21 definition? Please provide data and information to support your

position.

3. What would be the economic impact--positive or negative--of

extending the applicability of the FMCSRs to businesses engaged in the

interstate operation of vehicles designed or used to transport 9-15

passengers? Keep in mind that the FMCSRs include driver qualifications,

medical qualifications, hours of service limits, and vehicle

requirements (including inspection, repair and maintenance provisions).

Would complying with the FMCSRs impact on current daily business

operations and procedures?

4. With the exception of FHWA recordkeeping requirements (e.g.,

driver qualification files, medical reports, records of duty status,

etc.), what provisions of the FMCSRs are not currently met by

businesses operating small capacity passenger vehicles in interstate

commerce? For example, do these businesses, as a matter of good

operating practice, require their drivers periodically to undergo a

physical examination? Are there limits to the number of hours that a

driver may operate a vehicle? Is there a systematic inspection, repair

and maintenance program in place for the vehicles?

5. What would be the incremental cost (if any) of complying with

the non-recordkeeping provisions of the FMCSRs for interstate operators

of small capacity passenger vehicles?

6. Should the FHWA require States receiving MCSAP funds to make the

State equivalents of the FMCSRs applicable to for-hire carriers

operating passenger vehicles with a capacity of 9-15 in intrastate

commerce? Some States may wish to enforce the revised TEA-21 definition

on businesses operating those vehicles either in interstate or

intrastate commerce, or both. The FHWA requests each State to indicate

whether it already regulates this class of vehicles or whether it would

adopt the new TEA-21 definition voluntarily. We recognize that many

State MCSAP agencies would need additional legislative authority to

adopt the new definition; we are simply asking for their best guess as

to the reaction of their legislatures to such a proposition.

An issue which requires clarification is the meaning of ``for

compensation.'' If a hotel offers an airport shuttle service to its

paying guests, yet passes the cost of such service on to the guest

without itemizing it on the bill, is that transportation ``for

compensation?'' If a van-pool requires each passenger to contribute

his/her proportionate share of expenses, is that transportation ``for

compensation?'' States, other governmental entities, and any interested

parties are invited to offer their comments regarding an appropriate

application of ``for compensation.''

7. How would States likely to adopt the new TEA-21 definition

enforce it? For example, would the State restrict enforcement to

roadside inspections of the vehicles and drivers? Would more personnel

be required?

8. For State agencies and industry associations that have

statistics on the use of vehicles designed or used to transport between

9 and 15 passengers in interstate commerce, approximately how many

additional businesses would be subject to the FMCSRs or State

equivalent under the amended statutory definition of a CMV? How many

drivers are employed by these businesses and how many vehicles are

operated by them?

9. In light of the fact that TEA-21 provides the FHWA with explicit

direction to apply the FMCSRs to smaller capacity passenger vehicles

designed ``or used'' to carry passengers, what effect do you foresee if

the FHWA's current regulatory definition at Sec. 390.5 were so changed?

(Use the above questions as a reference when evaluating the impact.)

All commenters are asked to provide information, data, and

recommendations, based upon their own experience with transportation

issues, to assist the FHWA in evaluating the potential safety benefits

and the costs of implementing the CMV definition enacted by TEA-21. The

FHWA especially encourages the submission of accident data on small

passenger vehicles. Since Department of Transportation statistics do

not distinguish between private and commercial light weight vehicles,

such data would be useful if available.

Rulemaking Analyses

All comments received before the close of business on the comment

closing due date indicated above will be considered and will be

available for examination in the docket at the above address. Comments

received after the comment closing date will be filed in the docket and

will be considered to the extent practicable. In addition to late

comments, the FHWA will also continue to file relevant information in

the docket as it becomes available after the comment period closing

date, and interested persons should continue to examine the docket for

new material.

Executive Order 12866 (Federal Regulation) and DOT Regulatory

Policies and Procedures

In this rulemaking, the FHWA is considering changes to the

definition of a commercial motor vehicle which would extend the FMCSRs

to vehicles designed or used to carry more than 8 passengers (including

the driver), for compensation in interstate compensation as mandated by

the TEA-21. The regulatory action under consideration is significant

under Executive Order 12866 and significant under the regulatory

policies and procedures of the Department of Transportation because of

the substantial public interest anticipated if the agency expands the

applicability of the FMCSRs to an expanded population of regulated

commercial motor vehicles as in the previously cited instances. The

potential economic impact of expanding the applicability of the FMCSRs

is not known at this time. Therefore, a full regulatory evaluation has

not yet been prepared. The agency intends to use the information

collected from comments to this docket to determine whether a notice of

proposed rulemaking should be developed, and, if necessary, a full

regulatory evaluation.

Regulatory Flexibility Act

Due to the preliminary nature of this document and the lack of

necessary information on costs, the FHWA is unable at this time to

evaluate the effects of the potential regulatory changes on small

entities. The FHWA solicits comments, information, and data on these

potential impacts.

Unfunded Mandates Reform Act

The FHWA will analyze any proposed rule to determine whether it

would result in the expenditure by state, local, and tribal

governments, in the aggregate,

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or by the private sector, of $100 million or more in any one year, as

required by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532).

Executive Order 12612 (Federalism Assessment)

This action will be analyzed in accordance with the principles and

criteria contained in Executive Order 12612 to determine if this action

has sufficient federalism implications to warrant the preparation of a

federalism assessment. Nothing in this document directly preempts any

State law or regulation.

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 of Federal programs and

activities do not apply to this program.

Paperwork Reduction Act

This action, if taken beyond the ANPRM stage, would in all

likelihood impact existing collection of information requirements for

the purposes of the Paperwork Reduction Act of 1995 (49 U.S.C. 3501-

3520). Office of Management and Budget (OMB) reviews and approvals

would be required if regulatory changes were proposed and promulgated

National Environmental Policy Act

The agency will analyze this action for purposes of the National

Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) to determine

whether would have any effect on the quality of the environment.

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 RIN contained in the heading of

this document can be used to cross reference this action with the

Unified Agenda.

List of Subjects

49 CFR Part 390

Highway safety, Highways and roads, Motor carriers, Motor vehicle

identification and marking, Reporting and record keeping requirements.

49 CFR Part 391

Highways and roads, Motor carriers--driver qualifications, Motor

vehicle safety, Reporting and record keeping requirements.

49 CFR Part 392

Highway safety, Highways and roads, Motor carriers--driving

practices.

49 CFR Part 393

Highways and roads, Motor carriers, Motor vehicle equipment, Motor

vehicle safety.

49 CFR Part 395

Global positioning systems, Highways and roads, Highway safety,

Motor carriers--driver hours of service.

49 CFR Part 396

Highways and roads, Motor carriers, Motor vehicle maintenance,

Motor vehicle safety.

(49 U.S.C. 31132, 31136, and 31502; and 49 CFR 1.48)

Issued: July 27, 1998.

Kenneth R. Wykle,

Federal Highway Administrator.

[FR Doc. 98-20920 Filed 8-4-98; 8:45 am]

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