Federal Motor Carrier Safety Regulations; Definition of Commercial Motor Vehicle

SUMMARY: The FHWA 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. This action is in

response to the Transportation Equity Act for the 21st Century (TEA-

21). Section 4008(a) of TEA-21 amended the definition of the term

``commercial motor vehicle'' to cover vehicles ``designed or used to

transport more than 8 passengers (including the driver) for

compensation.'' The FHWA is revising its regulatory definition of CMV

to be consistent with the statute, but is exempting the operation of

these small passenger-carrying vehicles from all of the FMCSRs for six

months to allow time for the completion of a separate rulemaking action

published elsewhere in today's Federal Register. As a result of this

action, the applicability of the FMCSRs will be the same as before the

enactment of TEA-21 until March 3, 2000. Therefore, entities that were

not subject to the FMCSRs prior to the enactment of TEA-21 are not

required to make any changes in their operations until that date.

DATES: This rule is effective on September 3, 1999. Comments must be

received on or before November 2, 1999.

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 9 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. Larry W. Minor, Office of Motor

Carrier Research and Standards, HMCS-10, (202) 366-4009; 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 can access all comments that were submitted to the

Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street, SW.,

Washington, DC 20590-001, in response to previous rulemaking notices

concerning the docket referenced at the beginning of this notice 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 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://www.nara.gov/fedreg and the Government Printing Office's

database at: http://www.access.gpo.gov/nara.

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 Carrier and

Highway Safety) 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 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's 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. 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 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).

[[Page 48511]]

The agency may now exercise 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;

(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), 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 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 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.

FHWA's 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 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.

Discussion of Comments to the ANPRM

The FHWA 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, and members of Congress, as well as 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) was intended to resolve.

Comments Opposed to Making the FMCSRs Applicable to Small CMVs

The majority of the commenters opposed to the rulemaking were

organizers and members of vanpools, and State and local agencies and

vanpool associations that believe implementing section 4008(a) of TEA-

21 would adversely impact vanpool participation by imposing more

stringent standards on drivers of these vehicles. Some of the

commenters argued there was no data to support imposing the FMCSRs on

the operators of small CMVs while others emphasized the adverse impacts

the rulemaking could have on transportation providers for elderly and

disabled citizens.

Commenting on the issue of commuter transportation, the Southern

California Association of Governments stated:

The proposed expanded regulation would reduce the current number

of commuters willing to volunteer to serve as vanpool drivers and

back-up drivers. Members of a vanpool agree to the obligation on a

volunteer basis within the commuting group. Currently, a free or

partially subsidized commute and personal use of the vanpool

vehicles on evenings and weekends is still not enough of an

attraction for a large number of commuters. The proposed additional

requirements, which include minimum driver training, written

testing, behind-the-wheel testing, medical qualifications, drug and

alcohol testing, imposed by the FHWA will result in volunteer

vanpool driving to become extremely burdensome.

The Florida Department of Transportation, commenting about the

impacts the rulemaking would have on transportation providers for the

elderly and disabled, stated:

The proposed amendment to the Federal Motor Carrier Safety

Regulations (FMCSR) would have a significant impact to certain

Florida rural transportation providers. These primarily include

those operators that are located along or near the state border.

These operators provide transportation services for disadvantaged

persons needing transportation to and from certain medical and

rehabilitation facilities. These transportation entities are either

public or private-non-profit senior citizen or mental health

facilities and designated as community transportation coordinators

by Florida Statutes. [Their] operational areas are primarily rural

and it is often necessary for these operators to transport

passengers needing special care or treatment across state lines to

facilities located in bordering states. These transportation

operators receive funding and compensation for their services from

local, state and federal funds and have been considered as

``eligible transit operators'' by the FHWA pursuant to the ICC

Termination Act of 1995. Vehicles operated by these providers mainly

consist of 15 passenger vans. These operators are currently exempted

from the FMCSR since the 15 passenger vehicles operated do not meet

the definition of a ``commercial motor vehicle'' in 49 U.S.C.

Section 31132 . These operators are also exempted from the FHWA

insurance requirements for interstate motor vehicles by [49 U.S.C.

31138(e)(4)].

The Iowa Department of Transportation expressed concerns that

regulating small passenger-carrying CMVs would adversely impact motor

carrier safety programs by using limited enforcement resources to

regulate the entities operating these vehicles. The agency stated:

State and local enforcement agencies have numerous enforcement

demands on the regulation of straight trucks, truck tractors,

tractors with semi-trailers, double bottoms, buses, and vehicles

transporting hazardous materials. Expanding the motor carriers

safety requirements to passenger carrying vehicles will be costly

and a strain on inspector availability for what appears to be little

public benefit.

In a period when zero-based regulations are/have been developed

and implemented, is it logical to expand the definition of a

commercial motor vehicle to include 8-passenger vehicles? If 8-

passenger vehicles are included, why not 6-passenger vehicles? Are

we beginning to over-regulate? Safety is a major issue in conducting

inspections. En-route inspections are kept to a minimum for buses.

To protect passengers during an inspection requires special

considerations and planning. Adding 8-passenger vehicles will

continue to complicate inspection procedures with risks to

passengers.

[[Page 48512]]

The Oregon Department of Transportation, Motor Carrier

Transportation Branch, also expressed opposition to adopting the new

definition of CMV. The Motor Carrier Transportation Branch (MCTB)

stated:

The MCTB does not understand why the definition of commercial

motor vehicle was amended in the [TEA-21] to include vehicles

designed or used to transport more than eight passengers (including

the driver) for compensation. Further, the MCTB questions whether

including these smaller vehicles will improve highway safety.

[I]t is not apparent that these smaller vehicles represent a

significant danger. In fact, this move to regulate smaller vehicles

contradicts the current Motor Carrier Regulatory Relief and Safety

Demonstration Project. Little, if any, safety benefit may result in

including these smaller vehicles under the jurisdiction of the motor

carrier safety regulations. As stated in the advanced notice of

proposed rulemaking: request for comment, ``vans and pickup trucks

are more analogous to automobiles than to medium and heavy

commercial vehicles, and can be best regulated under State

licensing, inspection, and traffic surveillance procedures.

The International Taxicab and Livery Association (ITLA) opposed

adopting the new definition of CMV and provided estimates of the number

of businesses that would be affected by the rulemaking, as well as the

number of vehicles and drivers that would be subject to Federal safety

requirements if the FHWA implemented section 4008 of the TEA-21. The

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 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:

------------------------------------------------------------------------

Number of

SIC code Type of service U.S.

companies

------------------------------------------------------------------------

4111-01.......................... Airport Transportation.. 4,752

4119-01.......................... Handicapped 1,302

Transportation.

4119-03.......................... Limousine Transportation 9,482

4121-01.......................... Taxicab Transportation.. 7,348

------------

Total............... 22,884

------------------------------------------------------------------------

The ITLA indicated that if the FHWA 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.

Comments in Support of Making the FMCSRs Applicable to Small CMVs

Of the 733 comments submitted in response to the agency's ANPRM,

only a few (less than 13) 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.

The United Motor Coach Association (UMA) stated:

UMA's reason for pursuing a legislative change stemmed from the

rising tide of uninsured and/or unsafe carriers operating from or

through commercial zones (as defined in 49 CFR Part 372),

particularly in Texas and the southwestern states. In fact, the

problem was so severe in Texas that McAllen City officials

petitioned the ICC to severely restrict the motor carrier commercial

zone surrounding that city.

Subsequent research by UMA and its operator member companies

indicate that the problem is not simply a southern border issue. It

is a growing problem that is National in scope. Exempted passenger

carriers recognize that municipal commercial zones provide a safe

haven from federal safety regulations. These protected and

unregulated interstate bus operators perform identical service to

that of the regulated companies that provide bus service using

larger vehicles. The unregulated carriers are very aware of their

current exempt status. They have generally used large vans or mini-

buses with a seating capacity of fewer than 15 passengers to escape

compliance to Federal Motor Carrier Safety Regulations (FMCSRs).

(Manufacturers of these small buses routinely market the vehicles by

highlighting their regulation exempt status in their promotions.) In

the majority of instances, unregulated service providers operate out

of urban locations that fall within the commercial zone

classification. UMA does not consider this exemption to be fair or

equitable and believes that passenger safety is compromised.

Consolidated Safety Services stated:

During ten years of reviewing the level of compliance with

applicable regulations by companies offering passenger travel, we

have seen regulatory standards for non-CMV vehicle operations that

range from comprehensive to non-existent. We routinely see companies

who restrict equipment inventory for the sole purpose of avoiding

the costs and efforts associated with compliance with the FMCSRs.

Attitudes displayed towards safety in these instances are generally

very casual in nature and cause considerable concern. It should be

noted that we also see non-CMV carriers whose efforts to provide

safe transportation should be commended since they apply the

standards published in the FMCSRs even though not required.

Greyhound stated:

Commercial van interstate service has grown dramatically in

recent years. It is difficult to document the precise size of the

population of commercial vans or their growth because the federal

government historically has not regulated them and thus has not kept

statistics on them. However, reports of Greyhound managers

throughout the country have made it clear that commercial van

interstate service has grown significantly.

In 1995, Greyhound documented that growth with a report focusing

on one city, Houston. That report, which was shared with DOT and

Congress, showed that there were literally dozens of operators

performing van and bus service from points in Mexico to destinations

throughout the United States. Some of the bus service was licensed

as ``charter and tour'' service and thus was regulated, but none of

the van service was, or is, subject to any federal safety

regulation.

With regard to the impacts section 4008(a) of TEA-21 would have on

student transportation, the National School Transportation Association

(NSTA) stated:

[[Page 48513]]

NSTA supports the proposal to revise the definition of

``commercial motor vehicle'' to include vehicles designed to

transport more than 8 passengers. NSTA has long held the position

that all school-age children deserve the highest standard of safety,

regardless of who owns the vehicle, who operates the vehicle, or how

many passengers the vehicle will seat. This proposal will bring all

vehicles operating in similar capacity under the same regulations.

Among the State agencies that support the TEA-21 provision, the

Colorado Highway Patrol indicated there are safety benefits to

regulating smaller vehicles. The Colorado Highway Patrol stated:

The Colorado State Patrol supports the revision which would

require a ``Commercial vehicle designed or used to transport more

than 8 passengers (including the driver) for compensation'' to be

subject to the FMCSR's with qualifications identified below. Most of

these vehicles were subject to regulation under the ICC prior to its

termination in 1995. Why should passenger carriers, subject to prior

regulation by the ICC, be released from regulatory requirements

under FHWA? In Colorado the Public Utilities Commission (COPUC)

already regulates for-hire passenger carriers (including taxi cabs).

This rule should not apply to private motor carrier of passengers

(PMCP), business and non-business, (as defined in 390.5).

FHWA Response to Comments

The FHWA has considered all of the comments received in response to

the ANPRM and determined there is insufficient data concerning the

safety performance of motor carriers operating CMVs designed or used to

transport 9 to 15 passengers (including the driver) for compensation,

to justify making the FMCSRs applicable to them at this time.

Commenters to the docket have expressed opinions for and against

regulating operators of passenger-carrying vehicles designed to

transport 9 to 15 passengers (including the driver) but none of the

commenters have presented safety data that could be useful in deciding

whether to regulate such motor carriers. While the FHWA acknowledges

that there may be safety benefits to extending the applicability of the

FMCSRs to the operation of small passenger-carrying CMVs for

compensation, a mere assumption does not satisfy the agency's

obligation to quantify the benefits of rulemaking and to prove that the

benefits exceed the costs to the relevant segment of the industry and

U.S. consumers.

Safety Performance Data

The FHWA is not aware of any accident databases that would enable

the agency to estimate the annual accident involvement of small

passenger-carrying vehicles, operated for compensation in interstate

commerce. The absence of such data makes it difficult to determine

whether the accident involvement of these vehicles warrants Federal

regulation. For example, the agency is unable to determine whether the

number of accidents for this population of CMVs suggests these vehicles

are over represented in crashes involving fatalities, injuries, or

disabling damage to one or more vehicles (i.e., whether the number of

accidents is greater than one would expect given the population of

vehicles), which in turn may be an indicator of problems with the

safety management controls for the motor carriers operating the

vehicles. Also, the FHWA does not have information that would enable

the agency to examine the causes of or contributing factors to

accidents these motor carriers are typically involved in to determine

which, if any, of the FMCSRs could have made a difference in the

outcome.

The FHWA has reviewed information from the National Highway Traffic

Safety Administration's (NHTSA) Fatality Analysis Reporting System

(FARS) and General Estimates System (GES) and determined that there is

information concerning the accident involvement of the class of

vehicles covered by section 4008 of the TEA-21, but no practical means

to distinguish between accidents involving interstate motor carriers of

passengers (either private or for-hire) and those involving intrastate

motor carriers, or those involving commuter vanpools operated by

individuals and not in the furtherance of a commercial enterprise.

The FHWA also searched for information from the National

Transportation Safety Board (NTSB) and the Customs Service--because

some commenters made reference to the operational safety of motor

carriers transporting passengers to and from Mexico--to better

understand safety issues concerning the operation of small passenger-

carrying vehicles. The NTSB has no published studies indicating a

safety problem with this population of motor carriers. The Customs

Service, while maintaining records on the number of vehicles crossing

the border, does not have information on either the actual number of

Mexican-owned CMVs that enter the U.S., or on how many of each type of

CMV enter the country. The Customs Service does not record information

on each vehicle, or whether the vehicle is operated by a U.S. or

foreign motor carrier. To further complicate matters, many vehicles

used in cross-border operations may go through customs more than once a

day. Also, the Customs Service does not collect CMV accident

statistics.

The FHWA believes it is inappropriate to make the FMCSRs applicable

to the operation of small passenger-carrying vehicles unless there is

data to suggest operational safety problems.

Estimating the Population of Motor Carriers, Drivers, and Vehicles

In addition to difficulties in evaluating the safety performance of

motor carriers operating small passenger-carrying vehicles, the FHWA

has limited information on the number of vehicles and drivers that

would be covered by the FMCSRs. The FHWA has reviewed its database of

for-hire motor carriers of passengers who have interstate operating

authority.

Although TEA-21 did not define the term ``for compensation'' as

used in the amended definition of CMV, the FHWA has, for the purpose of

this rulemaking and analysis, focused on for-hire motor carriers of

passengers operating vehicles designed to transport less than 16

passengers, including the driver. These carriers are currently required

to obtain operating authority from the FHWA (49 CFR 365).

As of April 1999, there are 1,636 for-hire motor carriers of

passengers with active authority. Each of these carriers has on file

with the FHWA proof of financial responsibility at the minimum level

required for the operation of vehicles designed to transport less than

16 passengers. This number does not include pending applications for

operating authority, passenger carriers shown as inactive because their

authority was revoked for failure to maintain evidence of the required

minimum levels of financial responsibility, or private motor carriers

of passengers. There is no indication that Congress intended the FHWA

to consider regulating private motor carriers of passengers (as defined

in 49 CFR 390.5) operating vehicles designed to transport less than 16

passengers so the agency has not made an effort to estimate the number

of such carriers.

The FHWA has information on the number of for-hire motor carriers

of passengers who have complied with the operating authority

requirements, but the agency does not have data on the number of

drivers employed by these motor carriers. The FHWA cannot determine

what percentage of these drivers would meet the applicable requirements

of part 391 on driver qualifications or how their typical work

schedules would be disrupted by having to comply with part 395

concerning hours of service for drivers. Therefore,

[[Page 48514]]

the FHWA can estimate neither the costs nor the benefits of applying

the driver-related requirements of the FMCSRs to the vehicle operators

based on the information currently in its databases.

In short, the FHWA believes the ITLA's estimates of the number of

small passenger-carrying vehicles (or their drivers) operating in

interstate commerce for compensation should be considered, but cannot

confirm the accuracy of those estimates. The FHWA cannot estimate with

certainty the regulatory burden associated with making parts 391, 395,

or 393 applicable to these drivers and CMVs. However, in a separate

rulemaking action published elsewhere in today's Federal Register, the

agency is proposing certain requirements to improve its ability to

gather data about the operators of small passenger-carrying vehicles.

Commercial Driver's License and Controlled Substances and Alcohol

Testing

Many of the commenters, both for and against extending the

applicability of the FMCSRs to small passenger-carrying CMVs,

misconstrued section 4008 as mandating application of the CDL and

controlled substances and alcohol testing rules (parts 383 and 382,

respectively) to the drivers of such vehicles. Section 4008 does not

amend the CMV definition used for those programs (49 U.S.C. 31301).

Therefore, the potential benefits that some commenters argued would be

associated with imposing the CDL and controlled substances and alcohol

regulations can not be achieved. Conversely, commenters who argued

against adopting the amended CMV definition on the assumption that it

would make parts 382 and 383 applicable, thereby making it more

difficult to find vanpool drivers, were also mistaken. Furthermore,

since section 4008 is targeted at the operation of passenger-carrying

vehicles for compensation, vanpools would generally remain unregulated,

as explained below.

Applicability of Section 4008 to Vanpools

The FHWA agrees with commenters that the agency should not make the

FMCSRs applicable to vanpools. The agency recognizes the importance of

vanpools in reducing traffic congestion and air pollution caused by

automobile emissions and agrees that having to comply with the FMCSRs

would increase the costs of operating vanpools and could make it more

difficult to get people to volunteer to drive vans. The FHWA does not

believe Congress intended the agency to regulate commuter vanpools. The

use of the phrase ``for compensation'' in section 4008 of TEA-21

suggests that the implementing regulations be limited to vans operated

in the furtherance of a commercial enterprise, which is generally not

the case for commuter vanpools. Certain vanpool services may, depending

on whether the FHWA regulates the operation of small passenger-carrying

vehicles and how the agency interprets or defines ``for compensation,''

be subject to the safety regulations. However, the agency does not

intend to regulate commuter vanpools that are not operated in the

furtherance of a commercial enterprise.

The FHWA considers the phrase ``for compensation'' to be synonymous

with ``for hire.'' On April 4, 1997 (62 FR 16370), the FHWA published

Regulatory Guidance for the Federal Motor Carrier Safety Regulations.

Page 16407 of that notice includes an interpretation of ``for-hire

motor carrier.'' The guidance 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 because of the ICC Termination Act of 1995

(ICCTA) (Pub. L. 104-88, 109 Stat. 803, 919). The ICCTA amended the

statutory definition of a CMV prior to TEA-21, 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 resulted in the removal of this clause from the

definition of CMV.

The FHWA understands that passengers in many vanpools pay a monthly

fee to an individual, who either owns or leases the van. The FHWA does

not believe this is a business. The individual uses this money not as a

source of income or in the furtherance of a commercial enterprise, but

to pay for the van, insurance premiums, and maintenance. There may be

surplus funds each month that are put in reserve to cover unexpected

costs or losses of revenue during periods in which vanpool membership

decreases. The FHWA, however, does not believe that this type of

arrangement should be considered ``for compensation'' and does not

intend to regulate such operations. The agency requests comments on the

nature of these operations.

Minimum Levels of Driver Training and Testing

Although numerous commenters argued against adopting the TEA-21

definition of CMV because they believe the FMCSRs require a minimum of

8 hours of driver training, a written test, and a road test, these

arguments are based upon a misunderstanding of the current safety

regulations, and an assumption that all driver-related FMCSRs would be

applicable to drivers of small passenger-carrying CMVs.

If the FHWA made the FMCSRs applicable to drivers of small

passenger-carrying CMVs, the drivers of such vehicles would, unless an

exception were provided, be required to comply with all of the

provisions of part 391, Qualifications of Drivers. However, part 391

does not require that drivers of CMVs have 8 hours of training. Section

391.11 requires that drivers be capable of operating safely the CMV

they are assigned, and have a valid operator's license issued by only

one State or jurisdiction. The determination of the driver's ability

may be based upon experience, training, or both. The regulations do not

specify a minimum amount of training or experience.

Section 391.11(b)(8) requires drivers to successfully complete a

road test, or present an operator's license (or a certificate of road

test) to the motor carrier for acceptance as equivalent to a road test.

Section 391.33, Equivalent of road test, allows motor carriers to

accept a CDL in lieu of administering a road test if the driver was

required to successfully complete a road test to obtain the license. If

the FHWA required drivers of small passenger-carrying vehicles to

comply with all the requirements of part 391, the agency could consider

allowing motor carriers to accept a license other than a CDL if that

license required a road test. Even if the agency required drivers to

take road tests, the regulatory burden would be minimal. The operating

characteristics of vehicles designed or used to transport 9 to 15

passengers, including the driver, are similar to vehicles most drivers

are capable of driving (i.e., vans, full-sized sport utility vehicles,

commuter vans), and the amount of time and effort needed to conduct the

road test (as

[[Page 48515]]

specified in Sec. 391.31) would not be unreasonable.

With regard to a written test, the FHWA does not require that non-

CDL drivers be subjected to a written test. The FHWA rescinded the

written examination requirements of part 391 on November 23, 1994 (59

FR 60319).

Transportation of Children

In response to commenters that believe the adoption of section 4008

would either enhance or reduce the transportation safety of school

children, the FHWA notes that the FMCSRs include exceptions for all

school bus operations (as defined in Sec. 390.5), and transportation

performed by the Federal government, a State, or any political

subdivision of a State (Sec. 390.3(f)(2)). School bus operation means

the use of a school bus to transport school children and/or school

personnel from home to school and from school to home. School bus is

defined (Sec. 390.5) as a passenger motor vehicle designed to carry

more than 10 passengers in addition to the driver, and used primarily

for school bus operations. School bus operations are not regulated by

the FHWA, even when such operations are conducted by a for-hire motor

carrier of passengers. Irrespective of the decision the FHWA ultimately

makes concerning the applicability of the TEA-21 definition to small

passenger CMVs, vans used to transport children to and from school

would not be regulated as a result of that rulemaking.

Applicability of Financial Responsibility and Operating Authority

Regulations

In response to commenters who believe the FHWA should make the

financial responsibility (49 CFR 387) and operating authority (49 CFR

365) requirements applicable to the operators of small passenger-

carrying vehicles, it should be noted that these requirements are

already applicable to for-hire motor carriers of passengers operating

vehicles designed to transport less than 16 passengers, with certain

exceptions. The financial responsibility exceptions, however, cover

many of the operations of interest to commenters, e.g., school bus

operations and most vanpools (see Sec. 387.27(b)(1), (3) and (4)).

Since these exceptions are statutory (see 49 U.S.C. 31138(e)(1) and

(3)), the FHWA has no discretion to rescind them. Subpart B of part 387

requires a minimum of $1.5 million in public liability for the

operation of vehicles with a seating capacity of 15 passengers or less,

unless the vehicles fall into one of the exempt categories. Part 365

requires for-hire motor carriers to obtain operating authority and

subpart C of part 387 requires them to file proof of financial

responsibility.

FHWA Decision

Given the statutory deadline of June 9, 1999, for deciding whether

to exempt the operation of small passenger-carrying CMVs from the

FMCSRs, the FHWA has decided that it is in the public interest

temporarily to limit the applicability of the FMCSRs to the motor

carrier operations covered prior to the enactment of TEA-21. The FHWA

has no useful data on the relative safety of small passenger CMVs. In

the absence of such data, the agency has no rational basis for

extending the FMCSRs to this class of vehicles.

However, the FHWA believes that action must be taken to learn more

about the operational safety of motor carriers operating small

passenger vehicles for compensation. In a notice of proposed rulemaking

published elsewhere in today's Federal Register, the agency is

proposing that these motor carriers be required to complete a motor

carrier identification report (49 CFR 385.21), and comply with the

FHWA's CMV marking requirement (49 CFR 390.21) which would include

displaying a USDOT motor carrier identification number on all vehicles

designed to transport 9 to 15 passengers for compensation in interstate

commerce. The agency would also require that these motor carriers be

required to maintain an accident register (49 CFR 390.15).

Discussion of the Interim Final Rule

The FHWA is amending the FMCSRs to adopt the revised statutory

definition of CMV provided by section 4008 of TEA-21. The FHWA is

revising its definition of CMV found at Sec. 390.5 and adding a new

paragraph (f)(6) to Sec. 390.3 giving operators of CMVs designed or

used to transport 9 to 15 passengers a six-month exemption from all of

the FMCSRs. The FHWA is exempting until March 6, 2000 the operation of

small passenger-carrying vehicles from all of the FMCSRs to allow time

for the completion of a separate rulemaking action published elsewhere

in today's Federal Register. As a result of this action, the

applicability of the FMCSRs will be the same as before the enactment of

TEA-21 until that date. Therefore, entities that were not subject to

the FMCSRs prior to the enactment of TEA-21 are not required to make

changes in their operations to comply with the safety regulations.

The FHWA, however, is adopting the statutory changes to the

definition of CMV concerning the use of ``gross vehicle weight'' in

addition to ``gross vehicle weight rating,'' and ``designed or used''

to transport passengers instead of ``designed'' to transport

passengers.

Rulemaking Analysis and Notices

Under the Administrative Procedure Act (APA) (5 U.S.C. 553(b)), an

agency may waive the normal notice and comment requirements if it

finds, for good cause, that they are impracticable, unnecessary, or

contrary to the public interest.

In this case, notice and comment are unnecessary. The rule adopts

the statutory definition of a ``commercial motor vehicle'' and an

exemption for passenger vehicles with a capacity of 9 to 15, including

the driver, that are operated for compensation in interstate commerce.

Because this rule makes the applicability of the FMCSRs the same as

before the enactment of TEA-21, and codifies two minor TEA-21

amendments that eliminate jurisdictional loopholes from the CMV

definition, the FHWA finds good cause to waive prior notice and

comment. The current regulations were adopted through notice and

comment rulemaking and do not require further procedural review.

Nonetheless, the agency's August 5, 1998 ANPRM (63 FR 41766) sought

information from operators of small passenger vehicles and other

interested parties; the FHWA received more than 700 responses. As

explained in the preamble, the commenters were overwhelmingly opposed

to the application of the FMCSRs to these vehicles. The most

significant conclusion drawn from those comments, and from every other

source the agency consulted, is that accident data which would allow

the FHWA to determine the relative safety of small passenger CMVs, and

thus to perform an analysis of the costs and benefits of subjecting

them to the FMCSRs, is not currently available. The FHWA has therefore

decided that it could not, consistent with the requirements of the APA

and other laws, impose on small passenger CMVs the burdens of complying

with the FMCSRs. Because this final rule establishes an exception to

make the applicability of the FMCSRs the same as before the enactment

of TEA-21, and will remain in effect only for 6 months while the agency

solicits and evaluates comments on the companion NPRM published

elsewhere in today's issue of the Federal Register, the FHWA finds that

there is no need to publish this temporary measure for notice and

comment.

As explained above, however, the FHWA also believes that operators

of these vehicles should be required to

[[Page 48516]]

keep accident registers and display a USDOT number. Since these changes

are substantive, the agency is publishing an NPRM on that subject

elsewhere in this issue of the Federal Register. Those proposals, if

adopted, would enable the agency to collect safety information specific

to small passenger CMVs. If the data demonstrate that a serious safety

problem exists, the FHWA could then propose to apply some or all of the

FMCSRs to passenger vehicles with a capacity of 9 to 15.

Accordingly, the FHWA finds that there is good cause to waive prior

notice and comment for the limited reasons described above. For the

same reasons, the FHWA finds, pursuant to 5 U.S.C. 553(d)(3), that

there is good cause for making the interim final rule effective upon

publication. Comments received will be considered in evaluating whether

any changes to this interim final rule are required. All comments

received before the close of business on the comment closing 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 (Regulatory Planning and Review) and DOT

Regulatory Policies and Procedures

The FHWA 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 interim

final rule exempts temporarily from the FMCSRs the operation of

vehicles designed or used to carry between 9 and 15 passengers

(including the driver), for compensation in interstate commerce. As a

result of this action, the applicability of the FMCSRs is changed to be

the same as before the enactment of section 4008. The FHWA is simply

establishing an exception until the agency has better information upon

which to make a determination of the costs and benefits. The agency is

not making any estimate of either the costs or benefits of either using

the statutory definition or exempting all, or some, of these

operations.

Regulatory Flexibility Act

The FHWA has considered the effects of this regulatory action on

small entities and determined that this rule will not affect a

substantial number of small entities. The FHWA is revising its

regulatory definition of CMV, at 49 CFR 390.5, to be consistent with

the statute, but exempting temporarily the operation of small

passenger-carrying vehicles from all of the FMCSRs for six months to

allow the agency to complete a separate rulemaking action published

elsewhere in today's Federal Register. As a result of this action, the

applicability of the FMCSRs will be the same as before the enactment of

TEA-21. Entities that were not subject to the FMCSRs prior to the

enactment of TEA-21 are not required to make changes in their

operations to comply with the safety regulations. The FHWA, in

compliance with the Regulatory Flexibility Act (5 U.S.C. 601-612), has

considered the economic impacts of this rulemaking on small entities

and certifies that this rule will not have a significant economic

impact on a substantial number of small entities. The FHWA will

reexamine this certification after reviewing the comments to this rule

and the companion NPRM.

Executive Order 12612 (Federalism Assessment)

This action has been analyzed in accordance with the principles and

criteria contained in Executive Order 12612, and it has been determined

that this rulemaking does not have sufficient Federalism implications

to warrant the preparation of a Federalism assessment. Nothing in this

document 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 on Federal programs and

activities do not apply to this program.

Paperwork Reduction Act

This action does not contain a collection of information

requirement for the purposes of the Paperwork Reduction Act of 1995 (44

U.S.C. 3501-3520).

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

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.

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 in 49 CFR Part 390

Highway safety, Motor carriers, Motor vehicle identification and

marking, Reporting and record keeping requirements.

Issued on: August 30, 1999.

Kenneth R. Wykle,

Federal Highway Administrator.

In consideration of the foregoing, the FHWA amends title 49, Code

of Federal Regulations, chapter III, as follows:

PART 390--[AMENDED]

1. The authority citation for part 390 continues 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 1.48.

2. Amend Sec. 390.3 to revise paragraph (f)(5) by replacing the

period with a semicolon, and add paragraph (f)(6) to read as follows:

Sec. 390.3 General applicability.

* * * * *

(f) Exceptions.

* * * * *

(6) The operation of commercial motor vehicles designed to

transport less than 16 passengers (including the driver) until March 6,

2000.

2. 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

[[Page 48517]]

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. 99-23026 Filed 9-2-99; 8:45 am]

BILLING CODE 4910-22-P