[Federal Register Volume 64, Number 171 (Friday, September 3, 1999)]
[Rules and Regulations]
[Pages 48510-48517]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23026]



[[Page 48509]]

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Part IV





Department of Transportation





_______________________________________________________________________



Federal Highway Administration



_______________________________________________________________________



49 CFR Part 390



Federal Motor Carrier Safety Regulations; Definition of Commercial 
Motor Vehicle; Interim Final Rule

Federal Motor Carrier Safety Regulations; Requirements for Operators of 
Small Passenger-Carrying Commercial Motor Vehicles; Proposed Rule

  Federal Register / Vol. 64, No. 171 / Friday, September 3, 1999 / 
Rules and Regulations  

[[Page 48510]]



DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Part 390

[FHWA Docket No. FHWA-97-2858]
RIN 2125-AE22


Federal Motor Carrier Safety Regulations; Definition of 
Commercial Motor Vehicle

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Interim final rule; request for comments.

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

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