[Federal Register Volume 66, Number 204 (Monday, October 22, 2001)]
[Proposed Rules]
[Pages 53373-53376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26562]



Federal Motor Carrier Safety Administration

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

[FMCSA Docket No. FMCSA-2000-7174]
RIN 2126-AA53

Interstate School Bus Safety

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

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


SUMMARY: The FMCSA requests comments on whether to extend the 
applicability of the Federal Motor Carrier Safety Regulations (FMCSRs) 
to all interstate school transportation operations (thus excluding 
home-to-school or school-to-home transportation) by local 
governmentally-operated educational agencies. This action responds to 
section 4024 of the Transportation Equity Act for the 21st Century 
(TEA-21) which directs the FMCSA to determine whether the FMSCRs should 
apply to these operations. The FMCSA requests comments, data, and 
information to assist the agency in making the determination.

DATES: Comments must be received on or before January 22, 2002.

ADDRESSES: You can mail, fax, hand deliver, or electronically submit 
written comments to the Docket Management Facility, U.S. Department of 
Transportation, Document Management Facility, Room PL-401, 400 Seventh 
Street, SW., Washington, DC 20590-0001. The fax number is (202) 493-
2251. You can comment to the Web site (http://dmses.dot.gov/submit). 
You must include the docket number that appears in the heading of this 
document in your comment. You can examine and copy all comments at the 
above address from 9 a.m. to 5 p.m., et., Monday through Friday, except 
Federal holidays. You may also review the docket on the Internet at 
http://dms.dot.gov. If you want us to notify you that we received your 
comments, please include a self-addressed, stamped envelope or 
postcard, or after submitting comments electronically, print the 
acknowledgment page.

FOR FURTHER INFORMATION CONTACT: Mr. Philip J. Hanley, Jr., Office of 
Bus and Truck Standards and Operations, (202) 366-6811, Federal Motor 
Carrier Safety Administration, Department of Transportation, 400 
Seventh Street, SW., Washington, DC 20590-0001. Office hours are from 
7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal 



    The ANPRM responds to section 4024 of the TEA-21 (Pub. L. 105-128, 
112 Stat. 107, at 416), which directs FMCSA to initiate a rulemaking 
proceeding on whether or not the FMSCRs should apply to all interstate 
school transportation operations by local

[[Page 53374]]

educational agencies. The definition of the term ``local educational 
agency'' at 20 U.S.C. 8801(18) is applicable to Sec. 4024:

    (A) The term ``local educational agency'' means a public board 
of education or other public authority legally constituted within a 
State for either administrative control or direction of, or to 
perform a service function for, public elementary or secondary 
schools in a city, county, township, school district, or other 
political subdivision of a State, or for such combination of school 
districts or counties as are recognized in a State as an 
administrative agency for its public elementary or secondary 
    (B) The term includes any other public institution or agency 
having administrative control and direction of a public elementary 
or secondary school.
    (C) The term includes an elementary or secondary school funded 
by the Bureau of Indian Affairs but only to the extent that such 
inclusion makes such school eligible for programs for which specific 
eligibility is not provided to such school in another provision of 
law and such school does not have a student population that is 
smaller than the student population of the local educational agency 
receiving assistance under this chapter with the smallest student 
population, except that such school shall not be subject to the 
jurisdiction of any State educational agency other than the Bureau 
of Indian Affairs.

    The FMCSA must determine whether Federal regulatory involvement in 
interstate school bus transportation operations by local educational 
agencies is necessary to enhance the safety of those passengers and 
that of the general public. The FMCSA is also considering whether the 
interstate transportation (other than home to school and school to 
home) by all governmental educational entities such as public 
universities should be subject to the FMCSRs.
    At present, there are two exceptions in the FMCSRs relating to 
school bus operations. The first (49 CFR 390.3(f)(1)) exempts all 
school bus operations, whether by a for-hire carrier of passengers 
operating under a contract with the educational agency or local 
educational agencies, that transport only school children and/or school 
personnel from home to school and from school to home. This exception 
originated from section 206(f) of the Motor Carrier Safety Act of 1984 
(MCSA) (Pub. L. 98-554, 98 Stat. 2832) formerly codified at 49 U.S.C. 
31136(e)(1) which specifically directed the Secretary of Transportation 
(Secretary) to waive application of the regulations issued under 
section 206 with respect to school buses, unless the Secretary 
determined that making such regulations applicable to school buses was 
necessary for public safety taking into account all Federal and State 
laws applicable to school buses. This statutory language was 
subsequently repealed by section 4007(c) of the Transportation Equity 
Act for the 21st Century (TEA-21) in 1998. However, section 4007(d) 
provided that amendments made by 4007 shall not apply to or otherwise 
affect a waiver, exemption, or pilot program in effect on the date of 
enactment of TEA-21. In 1988, the agency indicated that the 
transportation of school children and school personnel from home to 
school and back again involved problems which are common to the States, 
and which, in accordance with the then-current Executive Order on 
Federalism (Executive Order 12612), could best be left to the 
individual States (see 53 FR 18043, May 19, 1988).
    The second exception is contained in 49 CFR 390.3(f)(2), which 
makes transportation by a government entity exempt from the FMCSRs. 
This exemption also originated from section 206 of the MCSA, which 
specifically authorized the Secretary to waive application of the 
regulations to any person or class of persons if the Secretary 
determines that such waiver is not contrary to the public interest and 
is consistent with the safe operation of CMVs. Although safety on the 
public highways is an area that must not be compromised, the FMCSA has 
historically exempted some segments of transportation. Transportation 
by government entities has been one such segment.
    Currently, some pupil transportation for school-related purposes 
(e.g., field trips) may be subject to the FMCSRs. One example is where 
a private school or contractor transports passengers in a commercial 
motor vehicle (CMV) across a state line outside the scope of home to 
school and school to home. These operations are subject to the 
applicable provisions of 49 CFR parts 350-399 of the FMCSRs.
    At the present time, most school bus drivers, including those 
employed by private schools, contractors, and educational agencies, are 
subject to the commercial driver's license requirements in 49 CFR part 
383 and the drug and alcohol requirements in 49 CFR part 382 because 
most medium to large school buses meet the regulatory definition of a 
CMV (i.e. designed to transport 16 or more passengers, including the 
driver). School bus drivers are required to hold a commercial driver's 
license, and their employers are required to have a controlled 
substances and alcohol testing program for the drivers.
    Under this ANPRM, the FMCSA is considering holding the educational 
agencies to the same standards that the private schools and contractors 
are required to meet when operating in interstate commerce in other 
than home to school and school to home-type operations. Examples of 
these standards include qualifications of drivers, hours of service, 
and maintenance of vehicles.
    The primary goal of the FMCSRs is to promote the safe operation of 
CMVs. The goal of the FMCSA's Passenger Carrier Safety Program is to 
reduce bus crashes and thereby decrease fatalities, bodily injuries and 
property losses. School bus operations are distinguished from other 
types of passenger transportation operations because of their highly 
specialized type of service. For the most part, the operation of a 
school bus entails the transportation of school children and/or school 
personnel from home to school and school to home. This type of 
transportation generally involves the regularly scheduled operation of 
school buses into and through residential, rural, and business areas, 
which collectively encompass a relatively small geographic area within 
the confines of a single State. The routes are, in most circumstances, 
predetermined and of a ``stop and go'' nature during specific morning 
and afternoon hours. The other users of the highways have generally 
come to expect and accept the ``stop and go'' operations of school 
buses during those specific hours of operation.
    When transporting children, school personnel and (sometimes) 
parents on other kinds of trips, school buses often travel the same 
highways `` many of them high-speed arteries `` that are used by large 
CMVs. The speeds that are maintained are considerably greater than 
those attained in ``stop and go'' pickup or drop-off operations. The 
actual time spent driving is generally greater, as is the possibility 
of fatigue.
    The FMCSA is aware that some local jurisdictions and/or school 
systems have imposed specific requirements on drivers who transport 
school children. The FMCSA believes that most States have established 
programs to review the qualifications of school bus operators and the 
maintenance of school bus vehicles involved in home-to-school and 
school-to-home movements. The FMCSA is interested in obtaining 
information about the present extent of safety oversight of school bus 
operations by local educational agencies. The FMCSA requests States, 
counties, and localities to submit information about their safety 
standards and oversight programs to the docket. The FMCSA is primarily 
interested in the safety standards concerning driver qualification, 
vehicular parts and

[[Page 53375]]

accessories, hours-of-service controls, and vehicular inspection, 
repair, and maintenance. Public comment on the issues raised in this 
ANPRM will assist the FMCSA in determining whether any further 
regulatory action is required.

Discussion of Government Crash Data

    The FMCSA has reviewed the current data from the National Highway 
Traffic Safety Administration's Fatal Analysis Reporting System (FARS) 
and General Estimates System (GES) for 1998 and 1999. The data is 
located in the docket for this ANPRM. The FARS shows there were 111 
school buses involved in a fatal crash in calendar year 1998. There 
were 303 school bus occupants on these 111 school buses and 4 of these 
occupants were killed . The FARS shows there were 138 school buses 
involved in a fatal crash in calendar year 1999. There were 469 school 
bus occupants on these 138 school buses and 8 of these occupants were 
killed. As the name implies, the GES contains only estimates for the 
number of injuries resulting from school bus crashes. The GES indicates 
15,000 estimated injuries resulting from school bus crashes in 1999. 
The FARS and the GES do not provide a means to separate crash 
statistics for interstate school bus transportation or for school buses 
operated by local educational agencies. The FMCSA strongly encourages 
the submission of crash data and information involving interstate 
school bus transportation by local educational agencies to the docket.

Request for Comments

    The purpose of this ANPRM is to gather information, data, and 
recommendations from a broad spectrum of commenters to assist the FMCSA 
in evaluating the potential safety benefits and the potential costs of 
making the FMCSRs applicable to interstate school bus transportation by 
local educational agencies. The FMCSA requests views and supporting 
information about whether only certain, but not all, parts of the 
FMCSRs should apply to interstate school bus transportation by local 
educational agencies. For example, a commenter might assert that the 
hours-of-service limitations contained in 49 CFR part 395 should apply 
to the interstate school bus drivers of local educational agencies, but 
that the driving rules in 49 CFR part 392 should not because adequate 
local traffic safety laws already exist. The FMCSA requests all 
commenters to support their positions with data and factual 
    Commenters may include in their comments to the docket discussions 
of any other issues that they believe are relevant to this rulemaking. 
In addition, the FMCSA encourages all interested parties to respond to 
the specific questions posed below:
    1. How many local educational agencies that operate school buses 
would be impacted if the FMCSRs applied to their interstate school bus 
transportation (but not home-to-school or school-to-home) operations, 
e.g., interstate class trips? How many school buses and drivers working 
for local educational agencies are involved in the interstate 
transportation? (These questions assume that the public school students 
are not bused across State lines in the course of home-to-school or 
school-to-home transportation. It is possible, however, that school 
districts in rural areas of adjacent States may have reciprocal 
agreements to accept each other's students where the closest in-State 
school is much farther away than a school just across the State line. 
If so, we would like to know where this occurs and how many students, 
drivers and buses are involved.)
    2. What requirements of the FMCSRs are not addressed by State or 
local school bus safety standards? For example, to what extent do local 
educational agencies require their interstate school bus drivers to 
undergo periodic physical examinations? Is there a systematic 
inspection, repair and maintenance program in place for school buses?
    3. Are there limits to the number of hours that a driver may 
operate a school bus during school-related activities (e.g., field 
trips, etc.)? Are there any limitations on on-duty time by local 
educational agencies?
    4. What would be the incremental cost (if any) for local 
educational agencies of complying with the FMCSRs for interstate trips, 
over and above the safety program and regulatory compliance costs that 
are already expended? Keep in mind that the FMCSRs include driver 
qualifications, medical qualifications, hours-of-service limits, and 
vehicle requirements (including inspection, repair, and maintenance 
provisions). Please describe the nature and extent of the impact upon 
operations and procedures.
    5. What are the potential safety benefits of applying all or 
selected FMCSRs to interstate school bus transportation by educational 
agencies? Please provide data and information to support your position.
    6. Should the FMCSA require that States receiving Motor Carrier 
Safety Assistance Program (MCSAP) funds adopt State laws and 
regulations that are compatible with the FMCSRs for intrastate school 
bus transportation by educational agencies?
    7. If the States adopt safety standards that are equivalent to the 
FMCSRs for interstate school bus transportation by local educational 
agencies, how would they enforce them? Would more personnel be 
required? Please provide cost estimates if available.
    8. Should the FMCSRs be applied uniformly for all providers of 
transportation whether they are local educational agencies, private 
schools, or contractors?
    9. Should the FMCSRs be made applicable to all educational 
institutions beyond the secondary level that transport students to 
after-school type activities?
    10. Should the FMCSA apply the FMCSRs to all interstate 
transportation of school children, even school-to-home and home-to-
school? (see Question 1)

Rulemaking Analyses and Notices

    We will consider all comments received before the close of business 
on the comment closing due date indicated above. We will file comments 
received after the comment closing date in the docket and will consider 
them to the extent possible.

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    This ANPRM is not a significant regulatory action under section 
3(f) of Executive Order 12866 and does not require an assessment of 
potential costs and benefits under section 6(a)(3) of that Order. It 
has not been reviewed by the Office of Management and Budget under that 
Order. It is not significant under the regulatory policies and 
procedures of the Department of Transportation (DOT) (44 FR 11040, 
February 26, 1979).

Regulatory Flexibility Act

    Due to the preliminary nature of this document and the lack of 
necessary information on costs, the FMCSA is unable at this time to 
evaluate the effects of the potential regulatory changes on small 
entities. Based on the information received in response to the ANPRM, 
the FMCSA intends, in compliance with the Regulatory Flexibility Act (5 
U.S.C. 601-612) to carefully consider the economic impact of these 
potential changes on small entities. The FMCSA solicits comments, 
information, and data on these potential impacts.

Unfunded Mandates Reform Act

    The FMCSA will analyze any proposed rule to determine whether it 
would result in the expenditure by

[[Page 53376]]

State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more in any one year (2 U.S.C. 1531 
et seq.).

Executive Order 13045 (Protection of Children)

    This publication is not a covered regulatory action under Executive 
Order 13045 because it would not affect in a material way the economy, 
a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety of State, local, or tribal 
governments or communities.

Executive Order 12630 (Taking of Private Property)

    This publication will not affect the taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

Executive Order 13132 (Federalism)

    This action will be analyzed in accordance with the principles and 
criteria contained in Executive Order 13132 dated August 4, 1999, to 
determine if this action has federalism implications. Nothing in this 
document directly preempts any State law or regulation.

Executive Order 12372 (Intergovernmental Review)

    The regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on Federal programs and activities do 
not apply to this program. Catalog of Federal Domestic Assistance 
Program Number 20.217, Motor Carrier Safety.

Paperwork Reduction Act

    This action, if taken beyond the ANPRM stage, could have an impact 
on existing collection of information requirements for the purposes of 
the Paperwork Reduction Act of 1995 (49 U.S.C. 3501-3520). Office of 
Management and Budget (OMB) reviews and approvals would be required if 
regulatory changes were proposed and promulgated.

National Environmental Policy Act

    The FMCSA is a new administration within the Department of 
Transportation (DOT). We are striving to meet all of the statutory and 
executive branch requirements on rulemaking. The FMCSA is currently 
developing an agency order that will comply with all statutory and 
regulatory policies under the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.). We expect the draft FMCSA Order to appear in 
the Federal Register for public comment in the near future. The 
framework of the FMCSA Order will be consistent with and reflect the 
procedures for considering environmental impacts under DOT Order 
5610.1C. Due to the preliminary nature of this document and the lack of 
necessary information, the FMCSA is unable to evaluate the effects of 
the potential regulatory changes on the environment at this time.

Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    On November 6, 2000, the President issued Executive Order 13175 (65 
FR 67249) entitled, ``Consultation and Coordination with Indian Tribal 
Governments.'' Executive Order 13175 took effect on January 6, 2001, 
and revoked Executive Order 13084 (Tribal Consultation) as of that 
date. E.O. 13175 requires the DOT to develop an accountable process to 
ensure ``meaningful and timely input by tribal officials in the 
development of regulatory policies that have tribal implications.'' At 
this time, we are only soliciting data to develop a rulemaking. Due to 
the preliminary nature of this document and the lack of necessary 
information, the FMCSA is unable to evaluate the effects of the 
potential regulatory changes on Indian Tribal Governments.

    Issued on: October 16, 2001.
Brian M. McLaughlin,
Associate Administrator, Policy and Program Development.
[FR Doc. 01-26562 Filed 10-19-01; 8:45 am]