[Federal Register Volume 68, Number 155 (Tuesday, August 12, 2003)]
[Rules and Regulations]
[Pages 47860-47875]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-20369]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 390 and 398

[Docket No. FMCSA-2000-7017]
RIN 2126-AA52


Safety Requirements for Operators of Small Passenger-Carrying 
Commercial Motor Vehicles Used In Interstate Commerce

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

ACTION: Final rule.

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SUMMARY: FMCSA amends the Federal Motor Carrier Safety Regulations 
(FMCSRs) to require that motor carriers operating commercial motor 
vehicles (CMVs), designed or used to transport between 9 and 15 
passengers (including the driver) in interstate commerce, must comply 
with the applicable safety regulations when they are directly 
compensated for such services and the vehicle is operated beyond a 75 
air mile radius (86.3 statute miles or 138.9 kilometers) from the 
driver's normal work-reporting location. The agency has revised its 
proposed distance threshold to focus on the distance that the driver 
operates the vehicle, as opposed to the distance that the passengers 
are transported. These motor carriers, drivers, and vehicles are now, 
through this rule, subject to the same safety requirements as motor 
coach operators, except for the commercial driver's license, and 
controlled substances and alcohol testing regulations. This rule 
implements section 212 of the Motor Carrier Safety Improvement Act of 
1999 (MCSIA).

DATES: This final rule is effective on September 11, 2003. Compliance 
Date. Affected motor carriers must be in compliance with this rule no 
later than November 10, 2003.

ADDRESSES:
    Assistance for Small Entities: The Small Business Regulatory 
Enforcement Fairness Act of 1996 (Pub. L. 104-121) requires the FMCSA 
to comply with small entity requests for information or advice about 
compliance with statutes and regulations within FMCSA's jurisdiction. 
Thus, if any small entity, organization, or governmental jurisdiction 
has a question regarding this document, please contact an FMCSA 
Division office in your State or an FMCSA Service Center for a given 
geographic area. For phone numbers and addresses, go to http://www.fmcsa.dot.gov/aboutus/fieldoffs, or call 1-800-832-5660, or Fax 
(202) 366-8842, FMCSA, Attn: Commercial Passenger Carrier Safety 
Division (MC-PSB), Washington, DC 20590.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov at any time or to Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC, between 9 am and 5 pm, Monday through Friday, except 
Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Mr. Larry W. Minor, (202) 366-4009, 
Chief, Vehicle and Roadside Operations Division (MC-PSV); or Mr. Philip 
J. Hanley, (202) 366-9131, Commercial Passenger Carrier Safety Division 
(MC-PSB), Federal Motor Carrier Safety Administration, 400 Seventh 
Street, SW., Washington, DC 20590. Office hours are from 7:45 a.m. to 
4:15 p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: 

Background

Congressional Mandate to Regulate Small Passenger-Carrying Commercial 
Motor Vehicles (CMVs)

    Section 212 of the Motor Carrier Safety Improvement Act of 1999 
(MCSIA), (Pub. L. 106-159, 113 Stat. 1748, December 9, 1999), requires 
that the FMCSA make its safety regulations applicable to: (1) 
Commercial vans referred to as ``camionetas,'' and (2) those commercial 
vans operating in interstate commerce outside of commercial zones that 
have been determined to pose serious safety risks.
    Prior to enactment of the MCSIA, section 4008(a)(2) of the 
Transportation Equity Act for the 21st Century (TEA-21) Public Law 105-
178, 112 Stat. 107, June 9, 1998) amended the passenger-vehicle 
component of the commercial motor vehicle (CMV) definition in 49 U.S.C. 
31132(1). CMV is now defined statutorily to mean a self-propelled or 
towed vehicle used on the highways in interstate commerce to transport 
passengers or property, if the vehicle--
    (A) has a gross vehicle weight rating or gross vehicle weight of at 
least 10,001 pounds, whichever is greater;
    (B) is designed or used to transport more than 8 passengers 
(including the driver) for compensation;

[[Page 47861]]

    (C) is designed or used to transport more than 15 passengers, 
including the driver, and is not used to transport passengers for 
compensation; or
    (D) is used in transporting material found by the Secretary of 
Transportation to be hazardous under section 5103 of this title and 
transported in a quantity requiring placarding under regulations 
prescribed by the Secretary under section 5103.
    Under section 4008(b) of the TEA-21, operators of the CMVs defined 
by section 31132(1)(B) would automatically become subject to the FMCSRs 
one year after the date of enactment of the TEA-21, if they were not 
already covered, ``except to the extent that the Secretary [of 
Transportation] determines, through a rulemaking, that it is 
appropriate to exempt such operators of commercial motor vehicles from 
the application of those regulations.'' Section 4008(b) of the TEA-21 
is a mandate either to impose the FMCSRs on previously unregulated 
smaller-capacity passenger vehicles, or to exempt through notice and 
comment rulemaking some or all of the operators of such vehicles.
    On September 3, 1999, the Federal Highway Administration (FHWA) 
published an interim final rule to adopt the new statutory definition 
of a CMV (64 FR 48510).\1\ The agency revised its regulatory definition 
of CMV to be consistent with the statute, but exempted the operation of 
these small passenger-carrying vehicles from all of the FMCSRs pending 
the completion of a separate rulemaking in which the agency proposed 
requiring operators of such vehicles to file a motor carrier 
identification report, mark their CMVs with a USDOT identification 
number and certain other information, and maintain an accident 
register. The notice of proposed rulemaking (NPRM) for that rule was 
also published on September 3, 1999, at 64 FR 48518.
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    \1\ The MCSIA established the FMCSA in the Department of 
Transportation. On January 4, 2000, the Office of the Secretary 
published a final rule rescinding the authority previously delegated 
to the former Office of Motor Carrier Safety (OMCS) within FHWA (65 
FR 220). This authority is now delegated to the FMCSA. Rulemaking, 
enforcement, and other activities of the former OMCS while part of 
the FHWA are now administered by the FMCSA.
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    On January 11, 2001 (66 FR 2756), the FMCSA published a final rule 
that amended 49 CFR 390.5 to adopt the statutory definition of 
``commercial motor vehicle'' published in the interim final rule on 
September 3, 1999. The final rule also revised Sec.  390.3(f)(6) to 
require that all operators of CMVs designed or used to transport 
between 9 and 15 passengers for compensation (1) complete a motor 
carrier identification report (Form MCS-150) (49 CFR 390.19); (2) 
comply with certain provisions of the CMV marking regulation (49 CFR 
390.21); and (3) maintain an accident register (49 CFR 390.15). These 
actions were intended to enable the agency to monitor the operational 
safety of all motor carriers operating small passenger-carrying 
vehicles for compensation. In addition, the three requirements were 
intended to help the agency compile information on the number of motor 
carriers operating small passenger-carrying vehicles for compensation, 
the location of their principal places of business, the number of 
vehicles operated, and the number of drivers employed.
    On January 11, 2001 (66 FR 2767), FMCSA also published an NPRM for 
this proceeding. Section 212 of MCSIA required FMCSA to complete a 
rulemaking to determine whether motor carriers operating motor vehicles 
designed or used to transport between 9 and 15 passengers (including 
the driver) for compensation should be covered by the FMCSRs. Congress 
directed that, as a minimum, the regulations shall apply to (1) 
commercial vans referred to as ``camionetas,'' and (2) those commercial 
vans operating in interstate commerce outside of commercial zones that 
have been determined to pose serious safety risks.
    This final rule makes the FMCSRs applicable to all motor carriers 
operating CMVs, designed or used to transport between 9 and 15 
passengers (including the driver), in interstate commerce for ``direct 
compensation'' when the vehicle is operated beyond a 75 air mile radius 
(86.3 statute miles or 138.9 kilometers) from the driver's normal work-
reporting location. This decision is based on: (1) The FMCSA's 
understanding of Congress's and the commercial passenger carrier 
industry's usage of the term ``camionetas''; (2) analysis of comments 
submitted in response to the agency's August 5, 1998 (63 FR 41766) 
advance notice of proposed rulemaking (ANPRM) concerning the definition 
of CMV; (3) analysis of comments submitted in response to the September 
3, 1999 interim final rule and NPRM; (4) analysis of comments submitted 
in response to the January 11, 2001 NPRM; and (5) an analysis of 
accident data concerning commercial van transportation of passengers. 
The agency believes that this approach will be more effective than 
other alternatives for responding to congressional and public safety 
concerns about the use of small passenger-carrying CMVs in long-haul 
for-hire operations throughout the United States, including such 
operations for compensation by foreign-based motor carriers to and from 
the United States.

Covered Camioneta Operations

    Furthermore, section 212 of the MCSIA requires the agency to make 
the safety regulations applicable to camioneta operations. The statute 
did not define the term camioneta, but Congress issued an explanatory 
statement (see 145 Cong. Rec. H12868, at H12873, November 18, 1999) 
that suggests camioneta operations are those that involve transporting 
passengers from Mexico to the United States and vice versa.
    FMCSA does not have information concerning the number of motor 
carriers with CMV operations that fit the description of camioneta. The 
Texas Department of Public Safety, in comments to the September 3, 1999 
interim final rule and NPRM published on the same day, described 
camioneta operations as those transporting passengers ``between major 
cities in Texas and the other southern States to and from our borders 
with Mexico.'' Based on analysis of the National Highway Traffic Safety 
Administration (NHTSA) Fatality Analysis Reporting System (FARS), the 
agency believes the accident data suggest that, if there are fatal 
accidents involving these operators, the vast majority of vehicles 
appear to be registered in the United States. While they may travel 
between points in Mexico and the United States, the vehicles are not 
necessarily based in Mexico.
    Rather than adopting a rule that specifically targets, in part, 
vehicles that actually cross the border, FMCSA continues to believe 
section 212 should be implemented by focusing on the distance traveled. 
The distance-based approach used in this final rule will capture CMV 
operators that transport passengers from the U.S.-Mexico border to 
major cities in Texas and other States. Carriers that actually cross 
the border will also be covered, but only in those instances where the 
driver operates the vehicle beyond a 75 air-mile radius from his or her 
normal work-reporting location. The distance the driver operates could 
be determined by enforcement personnel, by questioning the drivers 
about their employers, and by reviewing any available paperwork 
concerning the origin and the destination, regardless of which side of 
the U.S.-Mexico border the trip begins or ends.
Alternatives Considered
    Several alternatives or options to implement section 212 of MCSIA 
were

[[Page 47862]]

considered. They included making the safety-related operational FMCSRs 
applicable to: (1) All motor carriers operating small passenger-
carrying CMVs in interstate commerce for compensation (direct and 
indirect), irrespective of the distance traveled; (2) all motor 
carriers operating small passenger-carrying CMVs in interstate commerce 
that are directly compensated, irrespective of the distance traveled; 
and (3) only those motor carriers operating small passenger-carrying 
CMVs across the U.S.-Mexico border for compensation. FMCSA believes the 
alternative being implemented through this final rule will improve the 
safety performance of for-hire motor carriers that pose a serious 
safety risk to their customers and the traveling public, while avoiding 
to the greatest extent practicable, the imposition of Federal safety 
regulations on van operations that are local in nature and appear to 
pose a significantly lower level of safety risk.

Summary of Proposed Rulemaking

    In the NPRM (66 FR 2767, January 11, 2001), the FMCSA requested 
public comment on making the safety regulations in parts 390, 391, 392, 
393, 395 and 396, and the safety fitness rules in part 385, applicable 
to motor carriers operating CMVs designed or used to transport between 
9 and 15 passengers (including the driver) in interstate commerce, when 
they are directly compensated for such services and the transportation 
of any passenger covers a distance greater than 75 air miles (86.3 
statute miles or 138.9 kilometers). The agency made clear that the 
operators of these small passenger-carrying vehicles would be subject 
to the same safety requirements as motorcoach operations, with the 
exception of the commercial driver's license, and controlled substances 
and alcohol testing regulations.

Commenters

    FMCSA received 29 comments in response to the NPRM. The commenters 
were: Academy Bus Co. (Academy); Advocates for Highway and Auto Safety 
(Advocates); AFL-CIO Transportation Trades Department (AFL-CIO); 
Amalgamated Transit Union (ATU); American Bus Association (ABA); the 
Association for Commuter Transportation (ACT); California Highway 
Patrol (CHP); Colorado Department of Public Safety (CDPS); the 
Commercial Vehicle Safety Alliance (CVSA); Farmworkers Justice Fund 
(FJF); Greyhound Lines, Inc. (Greyhound); League of United Latin 
American Citizens (LULAC); Pennsylvania Bus Association (PBA); Mr. Alan 
Jay Pomerance, a concerned citizen; National Association of State 
Directors of Pupil Transportation Services (State Directors); National 
Automobile Dealers Association (NADA); National Council of La Raza 
(NCLR); National Limousine Association (NLA); National School 
Transportation Association (NSTA); New Jersey Department of 
Transportation (NJDOT); Taxicab, Limousine & Paratransit Association 
(TLPA); Texas Bus Association (TBA); Texas Department of Public Safety 
(TXDPS); United Motorcoach Association (UMA); and four college 
students.
    TXDPS, PBA, LULAC, NCLR and FJF fully supported the proposal as 
published. ABA, TBA, Greyhound, Academy, CHP, CDPS, CVSA, Advocates, 
ATU, NJDOT, AFL-CIO, NSTA, State Directors, Mr. Pomerance, and the four 
students were in favor of the FMCSA's rulemaking, although they 
generally believed that more remains to be done to protect public 
safety and help level the playing field. Advocates and UMA opposed the 
exclusion of small passenger-carrying vehicle operations within the 
proposed 75 air mile range. NLA, TLPA, NADA, and ACT, on the other 
hand, opposed making the safety regulations applicable to their 
members.

Discussion of Comments and FMCSA Responses

Direct Compensation Criterion
    Eight commenters opposed the direct compensation criterion for 
determining the applicability of the safety requirements. Five 
commenters supported making safety-related operational regulations 
applicable to vehicles designed or used to transport between 9 and 15 
passengers when the company holds itself out to the public as providers 
of transportation services, or when a company is primarily engaged in 
providing surface transportation. ABA suggested that the agency use the 
phrase ``primarily engaged in for-hire transportation.'' ABA points out 
that in applying requirements of the Americans with Disabilities Act 
for over-the-road buses, DOT used the terminology ``primarily engaged 
in transportation'' in 1998 regulations (63 FR 51670, 51692; September 
1998).

Greyhound Stated

    Greyhound's major concern is that by limiting applicability of 
the FMCSRs to smaller passenger-carrying commercial motor vehicles, 
the operators of which are ``directly compensated'' for their 
transportation services, FMCSA may be creating unnecessary confusion 
and an inappropriate loophole. We agree that only carriers that are 
``compensated'' for transportation be regulated, it is the modifier, 
``directly'' that causes the potential problem.

ATU Stated:

    [W]e urge the agency to then adopt one of the alternative 
definitions provided by Greyhound Lines, Inc. in its comments to the 
proposed rule. Specifically, Greyhound suggests that the regulations 
be applied to transportation for compensation in smaller vehicles 
provided by entities that either ``hold themselves out to the public 
as providers of transportation services'' or ``are primarily engaged 
in providing surface transportation.'' We prefer the latter 
formulation, but either one would provide a clearer and more precise 
definition of the regulated class than the ``directly'' compensated 
test, which would allow organizations to avoid regulation by masking 
the transportation fee within a ``total package charge'' that 
includes other incidental services.
    NJDOT, CHP, and CDPS generally contend that the proposed 
definition will lead to additional regulatory and enforcement 
problems.

    Response: FMCSA agrees with commenters that the rule should focus 
first and foremost on motor carriers of passengers that offer their 
services to the general public. However, the agency disagrees with 
commenters' assertions that the term ``primarily engaged in providing 
surface transportation'' is a better criterion for determining the 
applicability of the FMCSRs to these motor carriers. The term 
``primarily engaged in providing surface transportation'' requires that 
both the motor carrier and enforcement officials consider all of the 
motor carrier's business activities before determining whether the 
safety regulations apply. Each entity that operates small passenger-
carrying vehicles for compensation in interstate commerce, regardless 
of the distance traveled, is considered a motor carrier, as defined in 
49 CFR 390.5. Motor carriers and enforcement officials would have to 
determine whether the percentage of business that concerns the for-hire 
transportation of passengers is sufficient for the motor carrier to be 
primarily engaged in providing surface transportation. This may vary 
from season to season, or year to year. Generally, enforcement 
opportunities would be limited to carrier visits, unless enforcement 
officials conducting destination inspections or similar activities 
knew, or had reason to believe, that the entity responsible for the 
operation of the vehicle was primarily engaged in providing surface 
transportation of passengers.

[[Page 47863]]

    By contrast, the approach FMCSA proposed and adopts makes the 
FMCSRs applicable for each interstate trip beyond a 75 air mile radius 
of the driver's normal work-reporting location, regardless of the 
percentage of the motor carrier's business involving the for-hire 
transportation of passengers. Motor carriers and enforcement officials 
need only determine the distance that the vehicle would be operated (in 
the case of the motor carrier planning a trip) or was operated (in the 
case of the enforcement official), and whether the vehicle was being 
operated for direct compensation. This could be accomplished by 
interviewing the driver and passengers to determine the nature of the 
trip. The inspector need not know about, and the motor carrier need not 
estimate, the percentages of the company's business operations 
involving for-hire passenger transportation in order to determine 
whether the FMCSRs are applicable to the trip in question.
    We believe that our approach establishes a higher standard of 
safety for the operators of small passenger carrying vehicles than the 
approach recommended by the commenters. FMCSA's approach makes the 
rules applicable to every trip that meets the criterion, regardless of 
whether the entity is primarily engaged in transportation. Conversely, 
commenters would permit potentially unsafe operators to legally 
continue their long-haul van operations, provided they were not 
primarily engaged in the for-hire transportation of passengers. FMCSA 
believes that the approach adopted by this rule achieves a higher 
standard of safety.
    Generally, only entities that assess a fee, monetary or otherwise, 
directly for the transportation of passengers would be subject to the 
safety regulations. The use of small passenger-carrying CMVs for 
compensation, by such operators as hotel/motel shuttle, rental car 
shuttle, and whitewater river rafter transporter services, using small 
passenger-carrying CMVs, would not be subject to the safety-related 
operational regulations, irrespective of the distance traveled. Since 
these businesses do not hold themselves out to the public as providers 
of transportation services and generally operate over short distances, 
FMCSA continues to believe that it is not necessary to impose safety-
related operational regulations on them.
    In response to Greyhound, the ATU, and other commenter assertions 
that the proposed rule would enable some motor carriers to avoid safety 
oversight by structuring their fees or fares as a total package charge, 
FMCSA does not believe the nature of most of these carrier operations 
is such that their identity as for-hire motor carriers of passengers 
can be effectively concealed. In such instances, carriers would have to 
devise a scheme wherein they would provide some other substantive 
service so that the transportation by motor vehicle of the passenger is 
incidental to some other function. Given that most passengers of these 
motor carriers expect to depart specific locations at specific times, 
and arrive at their destinations in a timely manner, it is unlikely the 
motor carriers this rule is intended to cover could maintain effective 
customer relationships by engaging in activities that would increase 
significantly the time required to complete a trip, or the fares 
customers must pay for the transportation service. In addition to 
differences in the nature of the transportation service, FMCSA believes 
the market forces of supply and demand and competitive pricing would 
discourage a commercial operator of a small passenger-carrying vehicle 
from employing this strategy to avoid regulation. Motor carriers that 
employ this strategy would place themselves at an economic disadvantage 
with other for-hire carriers that provide transportation services 
between the same locations.
75 Air-Mile Criterion
    FMCSA proposed making the safety regulations applicable when the 
transportation of any passenger covers a distance greater than 75 air 
miles. Greyhound and the ABA supported the 75 air-mile standard. 
However, fifteen commenters opposed the standard.
    The CVSA argued that commercial motor vehicles should be subject to 
the FMCSRs regardless of how far they travel. The State Directors 
stated a distance-based approach to applying the FMCSRs to commercial 
vans is neither reasonable nor feasible. The State Directors opined 
that the 37 percent of fatal van crashes at distances less than 75 
miles is a substantial number and should not be ignored.
    Response: FMCSA carefully analyzed accident data from the NHTSA 
Fatality Analysis Reporting System (FARS). Based on this analysis, 
FMCSA determined, to the greatest extent practicable, that vans most 
likely to pose a safety risk were those operating at a distance 
approximately 75 air miles or more from the driver's work-reporting 
location. The methodology for estimating this distance is explained 
below.
    FMCSA reviewed the data fields in FARS to determine whether it 
would be possible to estimate the distance a large van may have 
traveled prior to being involved in the fatal accident, and if there 
was any way to identify those accidents most likely to have involved 
interstate transportation. The agency determined that FARS could 
provide potentially useful information to help identify the accidents 
most likely to have involved interstate transportation, based on a 
comparison of data fields for the State in which the vehicle crashed, 
the State in which the vehicle was registered, and the State of the 
driver's license.
    FMCSA estimated the approximate distance between the geographic 
area of the driver's residential zip code and the county and State in 
which the crash took place. The distances were computed for almost all 
fatal accidents involving a large van transporting 9 or more people at 
the time of the accident for calendar years 1996, 1997, and 1998. The 
agency operated under the assumption that the most likely trips to be 
considered interstate in nature are ones in which the State of 
registration of the vehicle and State of issuance for the driver's 
license differ from the State where the vehicle crashed.
    There were 161 fatal accidents between 1996 and 1998 (49 crashes in 
1996, 54 crashes in 1997, and 58 crashes in 1998) in which the vehicle 
was transporting 9 or more passengers at the time of the crash. The 
FARS information for seven of the accidents lacked one or more of the 
data items needed for the analysis. Two of the accidents involved U.S. 
Government vehicles and were excluded from the analysis since they 
would not be covered by the rulemaking--the FMCSRs include an exception 
for transportation performed by the Federal government, a State, or any 
political subdivision of a State (49 CFR 390.3(f)). Five of the 
accidents involved Mexico-licensed drivers operating vehicles 
registered in the United States and one involved a Mexico-licensed 
driver operating a vehicle for which the database did not include 
registration information. It was not possible to complete the distance 
analysis for those accidents.
    Of the remaining 146 fatal accidents in which the large van was 
transporting 9 or more people at the time of the crash, 45 of them 
(approximately 31 percent) appear to have been interstate trips with 
the crash taking place in a State other than the State where the driver 
was licensed, and at a distance greater than 100 statute miles from the 
driver's residence. The shortest distance among the likely interstate 
trips was just over 100 statute miles, while the longest was more than 
2,100 statute miles (a trip

[[Page 47864]]

involving a driver licensed in California, a large van registered in 
Oregon, and a fatal crash in Louisiana).
    Forty-seven of the 146 fatal accidents (approximately 32 percent) 
appear to have been intrastate trips with the fatal accident taking 
place in the State where the driver was licensed and where the vehicle 
was registered, and at a distance greater than 100 statute miles from 
the driver's residence. The shortest distance among the likely 
intrastate trips was just over 100 statute miles, while the longest was 
more than 550 statute miles (a trip involving a driver licensed in 
California, a large van registered in California, and a fatal crash in 
California).
    Fifty-four of the accidents (37 percent) occurred within 100 
statute miles of the driver's residence with only a small percentage 
(seven out of 54 crashes, approximately 13 percent) involving what 
appears to be an interstate trip.
    Overall, approximately 63 percent of the fatal accidents involving 
large vans occurred between 100 and 2,200 statute miles from the 
driver's residence with the longest distances linked typically to the 
trips that were most likely interstate in nature.
    It is not possible to determine the distance the driver may have 
traveled to get to the work-reporting location, or to determine whether 
the van was operated by an individual working from home. However, FMCSA 
has factored into the analysis a maximum distance of 25 statute miles 
between the driver's residence and a possible work-reporting location. 
The Federal Highway Administration (FHWA) ``Summary of Travel Trends 
1995 Nationwide Personal Transportation Survey,'' FHWA-PL-00-006, 
December 1999, discussed in the NPRM, indicates that the average 
commute to work among the individuals participating in the survey was 
11.63 miles. To decrease the likelihood of underestimating the average 
commuting distances of drivers of small passenger-carrying CMVs, the 
agency used an estimate of 25 miles, a little more than twice the 
average in the nationwide survey. When the estimated 25 statute miles 
for commuting to work is deducted from the estimates of the distance 
between the driver's residence and the crash location, the result is an 
estimate of 75 statute miles as the distance the driver may have 
traveled from the work reporting location to the crash site.
    For simplicity, the agency used 75 air miles, which is equivalent 
to 86.3 statute miles, because the motor carrier industry and 
enforcement community have experience using air-miles, and the hours-
of-service rules include an exemption from the records-of-duty status 
requirement for drivers operating within a 100 air-mile radius of their 
work-reporting location.
    As discussed in the above analysis that was the basis for the NPRM, 
the agency continues to believe a mileage threshold of 75 air miles 
(86.3 statute miles or 138.9 kilometers) should be used for determining 
the applicability of the safety regulations to for-hire operations of 
small passenger-carrying vehicles operating in interstate commerce. The 
analysis indicates that approximately 63 percent of 146 fatal 
accidents, in which a large van was actually transporting 9 or more 
occupants at the time of the crash, involved drivers that apparently 
traveled more than 75 statute miles from their work-reporting location. 
While the agency certainly agrees with commenters' concerns that the 
remaining 37 percent of the fatal accidents should not be ignored, this 
rule would not affect most of those accidents, given that they appear 
to be primarily intrastate in nature. Section 212 of the MCSIA does not 
extend FMCSA's jurisdiction to regulate intrastate passenger-carrier 
operations. Accordingly, the final rule adopts a 75 air-mile threshold.
    However, in this final rule, the agency is revising its proposed 
distance threshold to focus on the distance that the driver operates 
the vehicle, as opposed to the distance that the passengers are 
transported. The agency is aware of the potential complexities involved 
with the 75 air-mile standard proposed in the NPRM. In many cases, it 
would be difficult to determine the distance the passengers were 
transported in order to determine whether the safety-related 
operational regulations apply to the motor carrier. This is especially 
true when passengers are picked up or dropped off at multiple 
locations. To simplify compliance and enforcement, FMCSA will apply its 
safety regulations whenever a vehicle that is designed or used to 
transport between 9 and 15 passengers (including the driver) for direct 
compensation is operated beyond a 75 air mile radius from the driver's 
normal work-reporting location. The agency believes that use of the 
driver's normal work reporting location provides an easier means for 
motor carriers and enforcement personnel to determine the applicability 
of the safety regulations, and will help to promote greater levels of 
compliance and ensure consistency in the enforcement of the rules.
State Adoption of Compatible Safety Regulations
    FMCSA requested public comment on the feasibility of making the 
adoption and enforcement of compatible safety regulations applicable to 
small passenger-carrying CMVs operated in interstate commerce a 
condition of receiving Motor Carrier Safety Assistance Program (MCSAP) 
funds. The agency also requested comments on whether the variances from 
the FMCSRs allowed in State laws and regulations should be amended to 
require the adoption and enforcement of intrastate regulations 
applicable to the intrastate operation of these types of vehicles. Six 
commenters believed FMCSA should require the States to adopt compatible 
safety regulations concerning the operation of small passenger carrying 
commercial vehicles.
    Response: Although FMCSA agrees with the commenters that States 
should have compatible regulations, the agency does not believe it is 
necessary to require that all States adopt intrastate requirements that 
are compatible with this final rule. The agency continues to believe 
that State agencies should be given flexibility in responding to unique 
safety issues or concerns involving the intrastate operation of small 
passenger-carrying vehicles.
    The MCSAP is a Federal grant program that provides financial 
assistance to States to reduce the number and severity of accidents and 
hazardous materials incidents involving CMVs. The goal of the MCSAP is 
to reduce CMV-involved accidents, fatalities, and injuries through 
consistent, uniform, and effective CMV safety programs. The MCSAP sets 
forth the conditions for participation by States and local 
jurisdictions and promotes the adoption and uniform enforcement of 
safety rules, regulations, and standards compatible with the FMCSRs and 
Federal Hazardous Materials Regulations (HMRs) for both interstate and 
intrastate motor carriers and drivers. The MCSAP rules are codified in 
49 CFR parts 350 and 355.
    As a condition of participation in the MCSAP, States are required 
to adopt and enforce compatible regulations concerning the interstate 
operation of small passenger-carrying CMVs since FMCSA is adopting 
regulations applicable to these operations. The agency is not amending 
the variances under Sec.  350.341, which means that the States are not 
required to adopt and enforce regulations concerning the intrastate 
operation of small passenger-carrying CMVs. However, FMCSA encourages 
the States to adopt and

[[Page 47865]]

enforce intrastate laws and regulations concerning the operation of 
these CMVs if their accident data warrants such action.
    Based on the agency's analysis of the FARS data for 1996, 1997, and 
1998, approximately 32 percent (51 out of 161) of all fatal crashes 
involving large vans transporting 9 or more passengers at the time of 
the accident during those three years occurred in just three States 
(California (24 fatal accidents), Texas (15 fatal accidents), and 
Florida (12 fatal accidents)). This suggests that it may not be 
necessary for each State to adopt and enforce intrastate regulations 
concerning small passenger-carrying CMVs. However, States such as 
California, Texas, and Florida should give strong consideration to 
adopting and enforcing intrastate regulations given the FARS data.
Commercial Driver's License, and Controlled Substances and Alcohol 
Testing Regulations
    Seven commenters supported making the commercial driver's license 
(CDL), and controlled substances and alcohol testing regulations 
applicable to commercial van operations.
    Response: While FMCSA understands commenter concerns, section 212 
of the MCSIA did not expand the agency's statutory authority concerning 
the establishment and enforcement of the CDL and controlled substances 
and alcohol testing rules. Congress did not amend the statutory 
definition of ``commercial motor vehicle'' in chapter 313 of title 49, 
United States Code, which governs the applicability of the CDL and 
controlled substances and alcohol testing requirements. Therefore, 
FMCSA does not have the statutory authority to apply these requirements 
to commercial van operations. The passenger-carrying threshold that 
Congress provided under that statutory definition remains at 16 or more 
passengers, including the driver.
Applicability of Safety Fitness Procedures
    The proposed rule requested comments on making the safety fitness 
procedures under part 385 applicable to motor carriers operating small 
passenger-carrying CMVs. The safety fitness procedures in 49 CFR part 
385 provide guidance in assessing the safety management controls that 
motor carriers use to ensure compliance with the FMCSRs. Five 
commenters supported applicability of safety fitness procedures to such 
carriers. No commenter expressed specific opposition in relation to 
this proposal.
    Response: FMCSA continues to believe that it is appropriate to make 
the safety fitness procedures applicable to motor carriers that operate 
vehicles designed or used to transport between 9 and 15 passengers, 
when the carrier is directly compensated for its transportation 
services, and the commercial vehicle is operated beyond a 75 air mile 
radius from the driver's normal work-reporting location. Motor carriers 
operating small passenger-carrying CMVs are now subject to compliance 
reviews and the same safety fitness procedures and standards used to 
evaluate other interstate motor carriers. Therefore, section 385.1, as 
amended on May 13, 2002 (67 FR 31978), by the interim final rule 
concerning new entrant motor carriers, made part 385 applicable to all 
motor carriers subject to the FMCSRs, except non-business private motor 
carriers of passengers. Carriers that operate small passenger-carrying 
vehicles, and that receive an ``Unsatisfactory'' safety rating will be 
prohibited from operating CMVs to transport passengers in interstate 
commerce. In addition, these motor carriers will be ineligible to 
contract or subcontract with any Federal agency for transportation of 
passengers in interstate commerce.

Discussion of the Final Rule

    The FMCSA is revising the FMCSRs to require that motor carriers 
operating CMVs that are designed or used to transport between 9 and 15 
passengers (including the driver) for direct compensation in interstate 
commerce (including transportation between points in Canada or Mexico, 
and points in the United States) comply with the regulations contained 
in 49 CFR parts 390, 391, 392, 393, 395 and 396, and the safety fitness 
procedures in part 385, when the driver of the vehicle operates it 
beyond a 75 air mile radius (86.3 statute miles or 138.9 kilometers) 
from his/her normal work-reporting location. This means the motor 
carriers are required to ensure that each of their drivers meet all of 
the minimum qualifications for interstate CMV drivers, including 
physical qualifications prescribed in part 391, and maintain records to 
document compliance. The driver disqualification provisions of 49 CFR 
391.15 are also applicable. Motor carriers and their drivers must also 
comply with the driving rules of part 392, and vehicles must meet all 
applicable requirements in part 393 concerning parts and accessories 
necessary for safe operation.
    To avoid potential confusion, the exception under Sec.  390.3(f)(6) 
has been revised to exempt the operation of CMVs designed or used to 
transport between 9 and 15 passengers, not for direct compensation, 
provided the vehicle does not otherwise meet the definition of a 
commercial motor vehicle (emphasis added). The agency believes that the 
proposed regulatory language could have been misunderstood to imply 
that vehicles designed or used to transport between 9 and 15 
passengers, not for direct compensation, are exempt from the FMCSRs, 
even if the CMV meets the 10,001-pound weight threshold for 
applicability of the safety regulations, or is used to transport 
hazardous materials in a quantity requiring the use of placards.
    Part 396 requires that each motor carrier must have a systematic 
inspection, repair, and maintenance program for the CMVs it operates, 
and must ensure that vehicles are in safe and proper operating 
condition at all times. They must also maintain records to document 
compliance with these rules.
    In addition, motor carriers must ensure that each vehicle is 
inspected at least once every 12 months by a qualified inspector/
mechanic and that any motor carrier employee responsible for the 
adequacy of any brake-related inspection, repair, or maintenance work 
meets certain minimum qualifications. They must also maintain records 
to document compliance with these rules.
    Motor carriers must ensure that their drivers comply with the 
hours-of-service requirements of part 395, including reporting, 
recordkeeping, verifying, and responding to law enforcement requests. 
No driver of a passenger-carrying CMV may drive more than 10 hours 
following 8 consecutive hours off duty. No driver may operate a 
passenger-carrying CMV if the driver has been on duty more than 15 
hours following 8 consecutive hours off duty (regardless of whether he 
or she drove). Furthermore, drivers of passenger-carrying CMVs must not 
drive after being on duty 60 hours in any seven consecutive days if the 
motor carrier does not operate CMVs every day of the week (60-hour 
rule), or after being on duty 70 hours in any eight consecutive days if 
the motor carrier operates CMVs every day of the week (70-hour rule). 
For drivers that operate passenger-carrying CMVs beyond a 100 air-mile 
radius of the normal work-reporting location, a record of duty status 
(log book) is required to document the number of hours on duty and the 
number of hours driving.
    The hours of service rules include a 100 air-mile radius exemption 
from the log book requirement for drivers who operate passenger-
carrying vehicles

[[Page 47866]]

within a 100 air-mile radius of their normal work reporting location, 
provided the driver: returns to the work reporting location and is 
released from work within 12 consecutive hours; has at least 8 
consecutive hours off duty separating each 12 hours on duty; and does 
not exceed 10 hours maximum driving time following 8 consecutive hours 
off duty. As an alternative to the log book, motor carriers of 
passengers must maintain accurate time records showing the time the 
driver reports for duty each day, the total number of hours the driver 
is on duty each day, the time the driver is released from duty each 
day, and the total time for the preceding 7 days for drivers used for 
the first time or intermittently.
    As discussed above, the agency is not (emphasis added) making the 
CDL and controlled substances and alcohol testing requirements 
applicable to operators of small passenger-carrying CMVs, because 
neither section 4008 of the TEA-21 nor section 212 of the MCSIA amended 
the statutory definition of CMV used for those regulations (49 U.S.C. 
31301). Consequently, the passenger-carrying threshold for CDL, and 
controlled substances and alcohol testing requirements remains at 16 
(including the driver).
Compliance Schedule
    After the effective date of this rule, motor carriers will have 90 
days (or 120 days from the Federal Register publication date) to comply 
with the safety regulations. The agency believes this is sufficient 
time for the affected motor carriers to establish and implement safety 
management controls to achieve compliance with the FMCSRs. Furthermore, 
the agency believes that NHTSA FARS data suggest that it is in the 
public interest to require compliance with the FMCSRs as soon as 
practicable.
Relationship Between Final Rules and Transportation of Migrant Workers
    The FMCSA has determined that some of the motor carriers covered by 
this rulemaking may also be subject to the agency's rules for 
transporters of migrant workers in 49 CFR part 398. The agency 
prescribes certain requirements for motor carriers that transport 
migrant workers a total distance of more than 75 miles in interstate or 
foreign commerce. Section 398.1 defines a migrant worker as any 
individual proceeding to or returning from employment in agriculture as 
defined in section 3(f) of the Fair Labor Standards Act of 1938, as 
amended (29 U.S.C. 203(f)) or section 3121(g) of the Internal Revenue 
Code of 1986 (26 U.S.C. 3121(g)). The term ``carrier of migrant workers 
by motor vehicle'' means any person, with certain limited exceptions, 
who transports in interstate or foreign commerce at any one time three 
or more migrant workers to or from their employment by any motor 
vehicle other than a passenger automobile or station wagon.
    Carriers of migrant workers that are directly compensated for their 
transportation services and that operate vehicles designed or used to 
transport between 9 and 15 passengers, in interstate commerce, are 
covered by this final rule if the driver operates beyond a 75 air-mile 
radius from their normal work reporting location. The final rule 
generally establishes more stringent safety requirements than those 
found in 49 CFR part 398. This is not the case, however, with Sec.  
398.6, which prohibits motor carriers from permitting or requiring 
drivers to operate vehicles for more than 10 hours in any 24-hour 
period, unless the driver is given eight hours rest immediately 
following the 10 hours driving time. This daily limit is more 
restrictive than the comparable provision for drivers of larger 
passenger-carrying CMVs (Sec.  395.5(a)(1)), which allows a driver to 
drive up to 16 hours out of 24 under certain circumstances.
    Although compliance with part 395 would result in a less 
restrictive requirement in this instance, FMCSA does not believe this 
deviation is significant in terms of highway safety. The restriction in 
part 398 is based only on the amount of time the driver operates the 
vehicle that transports the migrant workers but does not take into 
account other activities that may affect the driver's fitness for duty 
and level of alertness. Part 395 includes rules to prohibit driving 
after being on-duty (both driving time and time spent performing other 
tasks) for more than 15 hours following at least eight consecutive 
hours off-duty. Part 395 also takes into account any compensated work, 
irrespective of whether the work was performed for the motor carrier. 
For example, if the driver has a part-time job, the time spent on the 
part-time job must be factored into the calculations to determine the 
available driving time. FMCSA believes that overall, part 395 is more 
stringent than part 398 and that compliance with all of the 
requirements of part 395 will improve safety.
    FMCSA believes that it is appropriate to require more rigorous 
safety standards for carriers of migrant workers if their operations 
are conducted in a manner similar to intercity motorcoach businesses. 
Therefore, the agency is amending Sec.  398.2, Applicability, of the 
transporters of migrant worker rules to make it clear to the affected 
motor carriers when they must comply with the same FMCSRs as intercity 
motorcoach operations.
Applicability of Safety Fitness Procedures to Operators of Small 
Passenger-Carrying CMVs
    Part 385 of the FMCSRs establishes procedures to determine the 
safety fitness of motor carriers, assign safety ratings, take remedial 
action when required, and prohibit motor carriers receiving an 
``Unsatisfactory'' safety rating from operating a CMV. As a result of 
this final rule, motor carriers operating small passenger-carrying CMVs 
are now covered by the same safety fitness procedures and standards 
used to evaluate other interstate motor carriers. This means that motor 
carriers affected by this rulemaking will be subject to compliance 
reviews and receive safety ratings. Those receiving an 
``Unsatisfactory'' safety rating will be prohibited from operating CMVs 
to transport passengers in interstate commerce. In addition, these 
motor carriers will be ineligible to contract or subcontract with any 
Federal agency for transportation of passengers in interstate commerce. 
The agency is amending Sec.  385.1, Purpose and scope, to reflect the 
new passenger-carrying threshold for the applicability of the FMCSRs 
and the safety fitness procedures.

Itemization of the Estimated Costs of Imposing Safety-Related 
Requirements

    FMCSA has attempted to evaluate the potential costs of the final 
rule. The agency has considered currently available data concerning the 
number of affected motor carriers, CMVs, and drivers. The agency 
estimates that this rulemaking could affect up to 1,843 for-hire motor 
carriers of passengers with active operating authority who operate only 
CMVs with a seating capacity of 15 passengers or less.
    Each of these motor carriers has on file with the FMCSA 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 the following: (1) motor carriers that may 
have pending applications for operating authority; (2) passenger 
carriers shown as inactive because their authority was revoked for 
failure to maintain evidence of the required minimum levels of 
financial responsibility; (3) private motor carriers of passengers; or 
(4) carriers which also operate larger vehicles, as well as smaller 
vehicles. This number may also

[[Page 47867]]

overstate the population of affected carriers since some of the 
licensed carriers may be exclusively operating equipment carrying less 
than 9 passengers.
    With regard to the number of drivers and vehicles that would be 
covered by the safety regulations, FMCSA does not have a definitive 
source for this information at this time because for-hire small 
passenger motor carriers were only recently required to complete the 
Form MCS-150, Motor Carrier Identification Report, which is used to 
gather information about motor carriers subject to the FMCSRs. However, 
the agency is now gathering data to better estimate the number of 
affected carriers, drivers, and vehicles.
    In the absence of other sources of information, the agency believes 
certain estimates provided by the Taxicab, Limousine & Paratransit 
Association (TLPA) is useful in helping to estimate the number of 
drivers and vehicles that will be covered by this final rule. In 
comments submitted in response to the August 5, 1998, ANPRM (63 FR 
41766) on the subject of safety requirements for the operators of small 
passenger-carrying CMVs, the TLPA estimated that there are 74,000 vans 
nationwide being operated for compensation. The TLPA estimated that van 
fleets average less than 10 vans. In addition, the TLPA estimated that 
if the agency made 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.
    FMCSA believes most of the estimates provided by the TLPA appear to 
be representative of businesses that would not be covered by this rule, 
because this rulemaking applies to long-haul van operations, not for-
hire operations that are local in nature. However, the agency will use 
the TLPA's previous estimate of the number of vehicles per fleet (10 
vans) as a baseline estimate for the number of vehicles that would be 
covered. This means that approximately 18,430 small passenger-carrying 
vehicles (10 vans per fleet x 1,843 for-hire operations) would be 
covered under the FMCSRs.
    The use of the estimates above is not intended to serve as a 
determination whether the passenger-carrying operations are small 
businesses. The estimates are used solely for the purpose of estimating 
the potential costs of this rulemaking action. TLPA's comments 
concerning the agency's estimate of the number of small businesses that 
could be affected by this rulemaking are addressed in the rulemaking 
analysis portion of this notice.
    The agency estimates that the number of drivers affected will be a 
fraction of the 165,000 drivers in the TLPA estimate since the proposal 
is targeted at drivers in the long-haul segment of the small passenger 
carrier industry. The agency believes the total number of drivers will 
be approximately 22,000 (165,000 divided by 7.5) since the number of 
motor carriers currently operating as for-hire motor carriers of 
passengers with small passenger-carrying vehicles is approximately one-
seventh of the TLPA's estimate of all for-hire motor carriers.
Earnings of Commercial Van Drivers, Mechanics, and Supervisors
    In order to evaluate accurately the cost implications of the 
proposed rule, FMCSA reviewed earnings information from the 
``Occupational Outlook Handbook,'' 2000-01 Edition, Bulletin 2520, 
published by the U.S. Department of Labor. We are using the earnings 
information to determine the costs of requiring motor carrier employees 
and individuals who perform services for motor carriers to complete 
certain records that would not otherwise be completed in the normal 
course of business, and to perform certain tasks associated with 
complying with the requirements.
    The agency is using the earnings figures for taxi-drivers and 
chauffeurs because the drivers in question generally do not meet the 
qualifications requirements for intercity bus drivers. The median 
hourly earnings of taxi drivers and chauffeurs, excluding tips, were 
$7.48 in 1998. The middle 50 percent earned between $6.02 and $9.79 an 
hour. The lowest 10 percent earned less than $5.55 and the highest 10 
percent earned more than $12.44 an hour. For the purpose of preparing 
cost estimates for imposing safety-related operational rules, the 
agency will use $12.44 an hour to decrease the likelihood of 
underestimating the impact of this rulemaking.
    The ``Occupational Outlook Handbook'' shows the estimated median 
hourly earnings for automotive mechanics and service technicians, 
including commission, were $13.16 in 1998. The middle 50 percent earned 
between $10.02 and $17.14 an hour. The lowest 10 percent earned less 
than $7.44 and the highest 10 percent earned more than $21.25 an hour. 
For the purpose of preparing cost estimates for this rulemaking the 
agency is using $21.25 an hour.
    FMCSA is using $22 an hour as the estimated earnings for 
supervisors and managers of transportation. The ``Occupational Outlook 
Handbook'' did not include a specific category for transportation 
supervisors so the agency is operating under the assumption that these 
supervisors are paid more than the individuals they supervise. The 
agency estimated that the supervisors are paid $ 0.75 an hour more than 
the service technicians, or $22.
Medical Examination and Certification
    Drivers subject to the rule are required to obtain a medical 
examiner's certificate. FMCSA estimates that the average cost of a 
comprehensive medical examination is $300. This cost includes an 
estimate of the driver's out-of-pocket expenses or co-payment and an 
estimate of the amount the driver's health insurance company would pay 
the medical examiner. Since a medical examiner's certificate is usually 
valid for 24 months, the FMCSA estimates the prorated annual cost of 
CMV driver medical certifications to be approximately $3,300,000 [($300 
per exam per driver ) x (22,000 drivers) = $6,600,000 every two years] 
based on an estimated 22,000 drivers who would be subject to the rule.
    Generally, it takes a medical examiner, such as a physician, doctor 
of osteopathy, physician assistant, advance practice nurse, or doctor 
of chiropractic, about 20 minutes to complete a medical examination 
form and one minute to fill out the medical certificate. Based on the 
$132,000 median annual earning of a general/family practice physician 
listed in the Department of Labor's ``Occupational Outlook Handbook'' 
and an estimated 2,080 hours of work per year, the earnings are equal 
to approximately $63 an hour. The estimated costs to the industry for 
having medical examiners complete the required paperwork would be 
$485,100 ($63 an hour x (21 minutes x 1 hour per 60 minutes) x 22,000 
medical exams performed for drivers). This is the cost every two years. 
The cost each year would be $242,550.
    Therefore, the total annual costs for the physical exam would be 
approximately $3,542,550.
Driver Qualification Files
    FMCSA estimates that the operators of small passenger-carrying CMVs 
will have to create 22,000 driver qualifications files during the first 
year and create approximately 2,860 new files (13 percent of 22,000) 
each year thereafter as a result of driver turnover, retirement, etc. 
The estimate of driver turnover is the same used for previous 
information collection burden estimates for driver qualifications 
files. This means that motor carriers will be responsible for 
maintaining

[[Page 47868]]

approximately 19,140 existing files (22,000 - 2,860) every year after 
the first year this rule is in effect and creating 2,860 new files per 
year.
    The creation of a single, complete driver qualification file 
involves an annual expenditure of approximately 25 minutes, which is 
the sum of 21 minutes of paperwork by a safety director, driver 
supervisor, or equivalent position, and 4 minutes of paperwork by a 
driver. For the first year, the cost would be $188,557 (0.35 hours per 
driver employed x 22,000 drivers x $22 an hour per supervisor) plus 
(0.07 hours per driver employed x 22,000 drivers x $12.44 an hour per 
driver), or $169,400 for the time supervisors spend on this task and 
$19,157 for drivers. For subsequent years the cost for creating new 
driver qualification files would be $24,512 (0.35 hours per driver 
employed x 2,860 drivers x $22 an hour per supervisor) plus (0.07 hours 
per driver employed x 2,860 driver x $12.44 an hour per driver), or 
$22,022 for the time supervisors spend on this task and $2,490 for 
drivers.
    Each driver is required by Sec.  391.27 to furnish their employing 
motor carrier with a list of traffic violations. FMCSA estimates that 
it takes a driver approximately 2 minutes to complete the list. Motor 
carriers are required to conduct an annual review of their drivers' 
records. The agency estimates that it takes approximately 5 minutes per 
driver to complete this task. The cost of complying with the list of 
traffic violations is $7,143 [19,140 drivers x (0.03 hours per driver) 
x ($12.44 an hour for a driver)]. The cost of complying with the annual 
review is $33,686 [(19,140 drivers) x (0.08 hours per driver) x ($22 an 
hour for a supervisor)]. The total cost per year for the annual list of 
violations and the review of the driving record is $40,829.
    Therefore, the estimated cost for driver qualification files is 
$188,557 for the first year carriers are required to comply with the 
safety-related operational provisions of the FMCSRs, and $65,341 for 
each subsequent year ($24,512 for creating new qualification files, 
$7,143 for the list of traffic violations, and $33,686 for the driving 
record review).
Records of Duty Status
    As indicated above, FMCSA believes the final rule will apply to 
22,000 drivers. It is estimated that each driver would spend 
approximately 6.5 minutes per workday to complete a record of duty 
status and work 240 workdays a year. The information collection burden 
for completing the record of duty status would be approximately 571,999 
hours [22,000 drivers x (6.5 minutes per day x 1 hour per 60 minutes) x 
(240 workdays)]. The estimated total cost burden related to completing 
the record of duty status is approximately $7,115,667 based on an 
estimated time burden of 571,999 hours at $12.44 an hour for drivers. 
This time and cost burden estimate takes into consideration two weeks 
of sick/vacation leave for these drivers.
    FMCSA estimates that each motor carrier, affected by this rule, 
will need a supervisor responsible for reviewing its drivers' records 
of duty status and that the supervisor will spend approximately three 
minutes per day reviewing each driver's records to ensure compliance 
with the hours-of-service rules. The information collection burden for 
reviewing the record of duty status would be approximately 264,000 
hours [22,000 drivers x (3 minutes per day per driver's log x 1 hour 
per 60 minutes) x (240 workdays)]. Using the earnings estimate 
presented above (i.e., $22 per hour for supervisors), the annual cost 
would be $5,808,000.
    Therefore, the total costs for requiring motor carriers to comply 
with part 395 would be $12,923,667.
Vehicle Inspection, Repair, and Maintenance
    FMCSA estimates the various recordkeeping requirements in part 396 
related to vehicle inspection, repair, and maintenance would involve an 
estimated total annual expenditure of 12 hours and 57 minutes per CMV 
(48 minutes for systematic inspection, repair, and maintenance; 724 
minutes for driver vehicle inspection reports; and 5 minutes for 
periodic inspection). Evidence of an individual's qualifications to 
perform periodic vehicle inspections must be retained by the motor 
carrier. Evidence of an individual's qualifications to be a brake 
inspector must also be retained. The creation of these two types of 
qualification evidence involves an estimated one-time, non-recurring 
expenditure of 5 minutes by a safety director, driver supervisor, or 
equivalent position for each type of qualification.
    The systematic inspection, repair, and maintenance records would be 
completed by a mechanic. The periodic inspection records would also be 
prepared by a mechanic. The estimated hourly earnings for a mechanic is 
$21.25 as indicated above. If the mechanic must spend approximately 53 
minutes per year per vehicle, the cost per year per vehicle for 
recordkeeping would be approximately $18.77. If there are 18,430 
vehicles that would be covered by the proposed rule, the total cost for 
systematic inspection, repair, and maintenance, and periodic inspection 
records would be $345,931.
    Drivers must prepare vehicle inspection reports at the end of each 
workday. It is estimated that each driver would spend 724 minutes per 
year, or 12.06 hours per year completing the paperwork. Using the 
earnings estimate of $12.44 an hour, the cost for having drivers 
prepare vehicle inspection reports would be $150 per driver per year. 
Based on an estimate of 22,000 drivers, the cost per year for the 
industry would be $3,300,000.
    Finally, looking at the cost for inspector qualifications, FMCSA 
believes the paperwork would be completed by a supervisor. Using the 
earnings estimate of $22 an hour, and an information collection burden 
of 10 minutes (five minutes for each certification of qualifications), 
the cost per carrier would be $3.66. The total non-recurring cost would 
be approximately $6,745.
    Therefore, the estimated total cost burden related to the vehicle 
inspection, repair, and maintenance recordkeeping is approximately 
$3,652,676 per year.

Total Costs and Qualitative Estimate of Benefits

Costs
    The sum of all estimated costs of requiring operators of small 
passenger-carrying CMVs to comply with parts 391, 395, and 396 is 
$23,850,000 for the first year and $20,184,234 each year thereafter. A 
summary of the first-year costs is presented below:

[[Page 47869]]

[GRAPHIC] [TIFF OMITTED] TR12AU03.000

Benefits
    FMCSA is not able to quantify the benefits at this time because the 
agency does not have detailed accident causation data. However, the 
agency believes that operational safety will be improved through 
compliance with the FMCSRs. Furthermore, section 212 of the MCSIA 
requires that the agency make its safety regulations applicable to: (1) 
Commercial vans referred to as ``camionetas,'' and (2) those commercial 
vans operating in interstate commerce outside of commercial zones that 
have been determined to pose serious safety risks.
    The agency believes the benefits of this rulemaking outweigh the 
estimated costs. The benefit of preventing as few as 8 of the 58 fatal 
accidents in 1998 involving large vans transporting 9 or more 
passengers at the time of the crash would outweigh the estimated costs. 
This is especially the case when consideration is also given to the 
prevention of injury and property-damage only accidents that occur 
annually.
    FMCSA has considered the accident information submitted by 
commenters. The agency also considered data from the NHTSA FARS. The 
data suggests that there may be serious safety management control 
problems with some commercial van operations that transport passengers 
for compensation in interstate commerce. Having the FMCSRs apply to 
these operations should help to reduce the incidence of crashes 
involving large vans thereby reducing to some extent the number of 
fatalities and injuries.
Rulemaking Analyses

Privacy Act Statement

    Anyone is able to search the electronic form of all comments 
received into any of DOT's dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit 
http://dms.dot.gov.

Regulatory Planning and Review and DOT Regulatory Policies and 
Procedures

    We have determined that this rulemaking action is a significant 
regulatory action under Executive Order 12866, Regulatory Planning and 
Review, and significant under Department of Transportation regulatory 
policies and procedures because of the substantial public interest 
concerning extending the FMCSRs to a larger population of for-hire 
motor carriers of passengers. This final rule requires that operators 
of vehicles designed or used to carry between 9 and 15 passengers 
(including the driver) for direct compensation, in interstate commerce 
comply with the following rules when the commercial vehicle is operated 
beyond a 75 air mile radius (86.3 statute miles or 138.9 kilometers) 
from the driver's normal work-reporting location: 49 CFR part 391, 
Qualifications of drivers; 49 CFR part 392, Driving of commercial motor 
vehicles; 49 CFR part 393, Parts and accessories necessary for safe 
operation; 49 CFR part 395, Hours of service of drivers; and 49 CFR 
part 396, Inspection, repair, and maintenance.
    Executive Order 12866 requires that regulatory agencies assess both 
the costs and benefits of intended regulations and proposed 
regulations. Based upon the information above, the agency anticipates 
that the economic impact associated with this rulemaking action will be 
$23,850,000 for the first year, and $20,184,234 for each subsequent 
year. The benefit of preventing as few as 8 of the 58 fatal accidents 
in 1998 involving large vans transporting 9 or more passengers at the 
time of the crash would outweigh the estimated costs. The agency 
estimates that each fatality prevented would be equivalent to a benefit 
of $3 million, based on the Department of Transportation's guidance 
memorandum on ``Treatment of Value of Life and Injuries in Preparing 
Economic Evaluations.''

[[Page 47870]]

Preventing 8 single-fatality accidents per year would result in at 
least $24 million in benefits per year. Additional benefits would be 
achieved through reductions in injuries and property-damage only 
accidents involving small passenger-carrying CMVs.
    For purposes of Executive Order 12866, this rulemaking does not 
impose an economic burden greater than $100 million on these motor 
carriers. Therefore, a full Regulatory Impact Statement is not 
necessary.

Regulatory Flexibility Act Analysis

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), FMCSA considered the effects of this regulatory action on small 
entities and determined that this final rule will not affect a 
substantial number of small entities that operate CMVs designed or used 
to transport between 9 and 15 passengers, for compensation, in 
interstate commerce. However, the agency believes the rule will have a 
significant impact on some of the small entities operating such 
vehicles.
    FMCSA is requiring motor carriers that operate CMVs, designed or 
used to transport between 9 and 15 passengers, in interstate commerce, 
to be made subject to the safety-related operational FMCSRs when they 
are directly compensated for such services and the vehicle is operated 
beyond 75 air miles (86.3 statute miles or 138.9 kilometers) from the 
driver's normal work-reporting location. These motor carriers will be 
required to comply with 49 CFR parts 390, 391, 392, 393, 395, and 396. 
FMCSA estimates that this rule will affect 1,843 of the estimated 
14,000 entities that operate CMVs designed or used to transport between 
9 and 15 passengers for compensation, and that most, if not all, of 
these 14,000 businesses are small entities based on criteria 
established by the Small Business Administration (SBA).\2\
---------------------------------------------------------------------------

    \2\ The SBA's Office of Size Standards publishes a list of Small 
Business Size Standards matched to the North American Industry 
Classification System (NAICS). The U.S. Office of Management and 
Budget (OMB) classifies approximately 1,000 activities as industries 
under NAICS. For each industry, except those in public 
administration, SBA has established a size standard. Industries are 
described in detail in North American Industry Classification 
System--United States, 1997. It can be found in many libraries or 
purchased from the National Technical Information Service, by 
calling (800) 553-6847 or (703) 605-6000. Subsector 485 of the NAICS 
covers transit and ground passenger transportation. SBA has 
established $6,000,000 in annual receipts as the maximum size for a 
small business for all of the classifications under this subsector 
(e.g., interurban and rural bus transportation, bus service, taxi 
service, limousine service, charter bus industry). Gross receipts 
are averaged over a firm's latest 3 completed fiscal years to 
determine its average annual receipts. ``Receipts'' means the firm's 
gross or total income, plus cost of goods sold, as defined by or 
reported on the firm's Federal Income Tax return. Therefore, only 
those motor carriers of passengers that averaged $6,000,000 or less 
in annual receipts for the past 3 fiscal years would be considered 
small businesses for the purposes of the regulatory flexibility 
analysis.
---------------------------------------------------------------------------

    The estimate of 1,843 is based on the current number of for-hire 
motor carriers of passengers with active authority that operate only 
CMVs with a seating capacity of 15 passengers or less. Although the 
universe of for-hire motor carriers of passengers potentially subject 
to this rule consists of approximately 14,000 entities, we estimate 
that the final rule will apply to only the 1,843 carriers whose 
operations require interstate operating authority under the FMCSA's 
commercial regulations. Each of these motor carriers has on file with 
the FMCSA proof of financial responsibility at the minimum level 
required for the operation of vehicles designed to transport less than 
16 passengers. This number may overstate the population of affected 
carriers since some of the licensed carriers may be exclusively 
operating equipment carrying less than 9 passengers. However, FMCSA's 
estimate does not include the following: (1) Motor carriers that may 
have pending applications for operating authority; (2) passenger 
carriers shown as inactive because their authority was revoked for 
failure to maintain evidence of the required minimum levels of 
financial responsibility; (3) private motor carriers of passengers; or 
(4) carriers which also operate larger vehicles, as well as smaller 
vehicles. Therefore, the agency believes its estimate of 1,843 motor 
carriers of passengers is a reasonable estimate of the number of 
entities that will be subject to this rule.
    This final rule is the last in a series of rulemaking actions 
intended to improve the safety of operation of vehicles designed or 
used to transport between 9 and 15 passengers, for compensation, in 
interstate commerce. After reviewing the public comments received in 
response to previous rulemaking notices in this series, and completing 
an analysis of accident data, the agency continues to believe that it 
is appropriate to limit the applicability of the rule to those motor 
carriers that are most likely to have safety performance problems. 
Therefore, this rule involves 1,843 out of the 14,000 small entities 
that the agency is authorized to regulate under section 212 of MCSIA.
    The rulemaking series mentioned above began with the August 5, 1998 
(63 FR 41766) ANPRM in which the agency requested public comment from 
all interested parties concerning the potential impact of amending the 
definition of ``commercial motor vehicle'' to make the FMCSRs 
applicable to the operation of small passenger-carrying CMVs. The 
agency specifically asked for comments concerning the types and numbers 
of passenger carriers that would be covered by the safety regulations 
under the revised definition of CMV provided in section 4008(a) of TEA-
21. At that time, we indicated that due to the preliminary nature of 
the ANPRM and the lack of information about the potential costs of the 
rulemaking, the agency could not evaluate the potential regulatory 
changes on small entities. The agency solicited comments, information, 
and data on these potential impacts on small entities.
    On September 3, 1999, the agency published an interim final rule 
(64 FR 48510) and a NPRM (64 FR 48518) based on the comments received 
in response to the ANPRM. The agency used the interim final rule to 
adopt the statutory definition of CMV provided by TEA-21, and 
temporarily exempt the operation of small passenger-carrying vehicles 
from all of the FMCSRs pending completion of a companion rulemaking 
that would help the agency gather additional information about the 
entities operating vehicles designed or used to transport between 9 and 
15 passengers. The exemption was necessary because the agency viewed 
section 4008(a) 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. 
The statute provided that operators of small passenger-carrying 
vehicles would automatically become subject to the FMCSRs unless the 
agency, through a rulemaking proceeding, determines that it is 
appropriate to exempt such operators from the safety regulations.
    While none of the commenters responded to the request for 
information about potential impacts of the rulemaking on small 
entities, the TLPA estimated that if the agency made 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. The agency reviewed its database of for-hire 
interstate motor carriers of passengers to determine whether TLPA's 
estimate was reasonable. At that time, we indicated there were 1,636 
for-hire motor carriers of passengers with active operating authority 
that had on file with the

[[Page 47871]]

agency proof of financial responsibility at the minimum level required 
for the operation of vehicles designed to transport less than 16 
passengers. Recognizing that TLPA's estimate included a wide range of 
passenger-carrying operations that far exceeded the limited number of 
carriers with active operating authority, the agency stated that it 
could not confirm the accuracy of the number.
    The September 3, 1999 NPRM proposed that each motor carrier 
operating small passenger-carrying vehicles submit a Motor Carrier 
Identification Report (FMCSA Form MCS-150), maintain an accident 
register, and mark their CMVs with the motor carrier identification 
number assigned by the agency (64 FR 48518). The agency stated that 
this would provide it with information about the number of passenger 
carriers, their business locations, and the number of drivers employed 
and vehicles operated. We believed that the proposal could affect a 
substantial number of small entities, but would not have a significant 
impact on them. The agency stated that if the TLPA's estimate of 14,000 
interstate motor carriers operating CMVs designed or used to transport 
9- to 15- passengers was accurate, and most or all of these businesses 
are classified as small businesses by SBA, the rulemaking would affect 
up to 14,000 small entities. The agency provided examples of the 
potential costs to mark each vehicle, in accordance with 49 CFR 390.21, 
with a worse case scenario of a one-time cost of $420 for a carrier 
with a fleet of 20 vehicles.
    With the enactment of MCSIA, the agency was required to take a more 
aggressive regulatory approach and impose safety requirements on: (1) 
Commercial vans referred to as ``camionetas,'' and (2) those commercial 
vans operating in interstate commerce outside of commercial zones that 
have been determined to pose serious safety risks. Therefore, the 
agency was required to continue the series of rulemaking actions in the 
absence of definitive industry characteristic and safety performance 
data, including data concerning the potential impact on small 
businesses that would be made subject to the FMCSRs.
    On January 11, 2001, FMCSA issued a final rule adopting the 
statutory definition of CMV as revised by section 4008 of TEA-21, and 
requiring motor carriers operating small passenger-carrying vehicles to 
submit the identification report, mark their vehicles, and maintain an 
accident register (66 FR 2756). On the same day, in response to section 
212 of MCSIA, the agency issued an NPRM (66 FR 2767) proposing that 
motor carriers operating vehicles designed or used to transport between 
9 and 15 passengers (including the driver) in interstate commerce 
comply with the safety regulations when they are directly compensated 
for such services, and the transportation of any of the passengers 
covers a distance greater than 75 air miles (86.3 statute miles).
    FMCSA indicated that in order to avoid underestimating the 
potential impact of the rule on small entities, it estimated that 1,648 
passenger carriers would be subject to the proposed requirements. This 
estimate was based on the number of for-hire motor carriers of 
passengers with active authority to operate CMVs with a seating 
capacity of 15 passengers or less. The agency argued that using the 
estimate of 1,648 carriers from the database of motor carriers of 
passengers provided a reasonable estimate of the number of entities 
that could be subject to the proposed rules. The agency estimated that 
the costs per carrier would be $6,200 for the first year the 
requirements are in effect, and $6,100 per year thereafter, if the 
costs are distributed evenly among the carriers.
    FMCSA estimated that the costs per carrier associated with the NPRM 
would, on average, be 2.2 percent of their revenues based on data from 
the SBA's 1997 ``Employer Firms, Employment and Estimated Receipts by 
Employment Size of Firm'' tables. The agency reviewed revenues for 
motor carriers in the intercity and rural bus transportation segment of 
the industry. The SBA data indicated there are 145 firms in this 
category with less than 20 employees--the 20-employee threshold was 
chosen by FMCSA to be consistent with its estimate of the average 
number of drivers likely to be employed by the 1,648 for-hire passenger 
carriers. These 145 carriers had combined revenues of $41,793,000. The 
average revenues were considered by dividing the combined revenues by 
the total number of firms, or $288,227 in revenues per year for each 
carrier.
    FMCSA made a preliminary determination that the proposed rule would 
not affect a substantial number of small entities because it would be 
applicable to only a fraction of the 14,000 entities operating 9- to 
15-passenger vehicles for compensation. However, the agency recognized 
that the NPRM would have a significant impact on some of the small 
entities, especially in those cases where the profit margins are 
approximately 2.2 percent or less. The agency indicated that there is a 
possibility for failure of some small passenger-carrying CMV 
operations, especially those with profit margins of 2.2 percent or 
less. Because it was limiting the applicability of the rules to only a 
fraction of the universe of eligible small entities (thus minimizing 
the overall impact), and the estimated costs of the rule would be 2.2 
percent of the revenues of the affected small entities, the agency did 
not believe that a more comprehensive analysis was needed to ensure 
compliance with the Regulatory Flexibility Act. This was particularly 
in view of the fact that the agency was statutorily required to 
regulate operators of 9- to 15-passenger vehicles and had exercised its 
discretion, as limited by MCSIA, to minimize the impact on small 
entities.
    After publication of the January 11, 2001 NPRM, the agency 
increased its estimate of the potential costs of the rule for small 
entities based on: (1) A revision of the estimated information 
collection burden for driver records of duty status; (2) a correction 
of the estimate of the costs for medical examinations for drivers; and 
(3) consultation with SBA about the number of small businesses and 
their revenues.
    First, the agency revised the estimated costs associated with the 
information collection burden for drivers' records of duty status, and 
submitted the revised estimate to OMB for approval. The agency 
estimated that the information collection burden for the records of 
duty status (required by 49 CFR part 395) for the operators of 9- to 
15-passenger vehicles would be 137,250 hours, based on an estimated 
18,300 drivers being subject to the requirements. Using the new 
estimates, approved by OMB [OMB Control No. 2126-0001] on information 
collection burden for the records of duty status, and applying the 
burden per driver and carrier to the entities that would operate small 
passenger-carrying CMVs, the agency now believes the additional burden 
would be 836,000 annual burden hours, for approximately 22,000 drivers. 
The result of the increased estimate of the annual burden hours for 
completing and retaining the records of duty status, and an increase in 
the number of drivers that would be subject to the hours of service 
rules, is an increase from $2,539 per carrier per year for such records 
to $7,012 per carrier per year.
    FMCSA also revised its estimates of the costs for medical 
examinations of drivers. The agency's previous calculations included an 
error resulting in an estimate of $1,718 per carrier per year. A 
correction of the error, plus a revision of the estimate of the number

[[Page 47872]]

of drivers yields an estimate of $3,844 per carrier per year for 
medical examinations.
    As indicated earlier, FMCSA estimates that the sum of all estimated 
costs of requiring operators of small passenger-carrying CMVs to comply 
with 49 CFR parts 391, 395, and 396 is approximately $23,850,000 for 
the first year and $20,184,234 per year thereafter. If the costs of the 
rulemaking are distributed evenly among these 1,843 motor carriers, the 
costs per carrier would be approximately $12,940 for the first year the 
requirements are in effect, and a little more than $10,952 per year 
thereafter.
    A summary of the estimated first-year costs per motor carrier is 
presented below:
[GRAPHIC] [TIFF OMITTED] TR12AU03.001

    The actual costs each individual fleet would experience depend on 
the number of drivers employed and the number of small passenger-
carrying CMVs operated. The above estimates are intended to serve as a 
baseline of 10 CMVs per fleet and about 11 drivers per business. 
Driver-related costs, such as driver qualifications and hours-of-
service, for each business would decrease or increase as the number of 
drivers employed decreases below the baseline or increases above the 
baseline. The same holds true for vehicle-related costs.
    In order to better determine the potential impact on small 
businesses, FMCSA met with representatives of SBA. As a result of that 
meeting, the FMCSA reviewed the U.S. Department of Commerce's 1997 
Economic Census, Transportation and Warehousing (Publication No. EC 
97T48S-LS, Issued August 2000) to better determine the revenues of 
businesses under the NAICS subsector 485, which covers transit and 
ground transportation, and more accurately assess the number of small 
entities based on SBA's $6,000,000 threshold for defining a small 
business in the passenger transportation industry.
    For businesses covered by NAICS code 4852, interurban and rural bus 
transportation, the 1997 census data indicate there are 407 firms with 
combined revenues of $1,147,432,000. For the purposes of this analysis, 
the revenues for the businesses in this group were divided by the 
number of firms resulting in an estimate of $2,819,243 in revenues per 
year for each carrier [$1,147,432,000/407 firms = $2,819,243].
    The agency also considered businesses covered by NAICS code 4853, 
taxi and limousine service. The 1997 census data indicate there are 
6,418 firms with combined revenues of $3,154,521,000. For purposes of 
this analysis, the revenues for businesses in this group were also 
divided by the number of firms resulting in an estimate of $491,511 in 
revenues per year for each carrier [($3,154,521,000/6,418) = $491,511].
    Based on the estimates above for the revenues per firm for 
interurban and rural bus transportation businesses, and revenues per 
firm for taxi and limousine service businesses, FMCSA believes that 
most, if not all, of the firms in these categories appear to be small 
businesses based on SBA's $6,000,000 threshold.
    The costs per carrier associated with this rule would, on average, 
be approximately 0.45 percent of the revenues for interurban and rural 
bus services [($12,940 costs per carrier)/($2,819,243 revenues per 
carrier) x 100 = 0.45 percent], and 2.6 percent of the revenues for 
taxi and limousine services [($12,940 costs per carrier)/$491,511 
revenues per carrier) x 100 = 2.6 percent].
    For interurban and rural bus services with a profit margin greater 
than 0.45 percent, the new rule will decrease their profits but the 
businesses would maintain some level of profit. For bus services with 
profit margins of 0.45 percent or less, the rule could result in the 
failure of the business. Likewise, for taxi and limousine services with 
a profit margin greater than 2.6 percent, the rule would decrease their 
profits but the businesses would maintain some level of profit. For 
taxi and limousine businesses with profit margins of 2.6

[[Page 47873]]

percent or less, the rule could result in failure of the business.
    FMCSA does not have data on the revenues or profit margins of the 
1,843 motor carriers likely to be impacted by the rule or more precise 
information about their revenues. Also, the agency does not have 
sufficient data about these motor carriers to determine the 
distribution of drivers and vehicles, such as the number of carriers 
with 1 to 5 vehicles, the number of carriers with 6 to 10 vehicles, the 
number of carriers with 11 to 20 vehicles, and similar data for the 
number of drivers, to make more precise its estimates concerning 
revenues. However, the agency believes it is appropriate to consider 
all 1,843 motor carriers of passengers likely to be affected by this 
rulemaking to be small entities to avoid underestimating the impact 
this rule will have on them. The agency believes the estimates 
presented above are reasonable given the limited information available 
about this segment of the motor carrier industry. Therefore, the agency 
has made a determination that this rule would not affect a substantial 
number of small entities. However, it could have a significant impact 
on some of these 1,843 small entities, especially in those cases where 
the profit margins are approximately 2.6 percent or less.
    FMCSA has considered the comments to the previous rulemaking 
documents concerning the regulation of small passenger-carrying CMVs, 
and believes this group of motor carriers provides an important service 
to its clients. These motor carriers provide services to individuals 
for whom motor coach services are not available, those who may not be 
able to afford to use motor coach operators, or individuals who choose, 
for whatever reason, not to use motor coach operators for their 
intercity travel. The agency believes the industry is very important to 
those who rely on it. There is a possibility for failure of some small 
passenger-carrying CMV operations, especially those with profit margins 
of 2.6 percent or less. However, the number of failures among the 
estimated 1,843 motor carriers operating small passenger-carrying CMVs 
is expected to be small. Therefore, the agency believes there could be 
a small degree of disruption in the services provided by small 
passenger-carrying CMV operations that are not capable of putting into 
place the safety management controls necessary to achieve compliance 
with 49 CFR parts 390, 391, 392, 393, 395, and 396.
    FMCSA has considered other regulatory alternatives as described 
earlier, and determined that this action is necessary to fulfill 
section 212 of the MCSIA and respond to the safety problem indicated by 
the FARS and General Estimates System (GES) data. It is unlikely that a 
rule establishing less stringent requirements would have the same 
potential for improving the safety of operations of these CMVs.
    Accordingly, FMCSA has considered the economic impacts of the 
requirements on small entities and certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities.

Intergovernmental Review

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

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-
3520), Federal agencies must obtain approval from the Office of 
Management and Budget (OMB) for each collection of information they 
conduct, sponsor, or require through regulations. FMCSA determined that 
the requirements in this final rule will impact four currently-approved 
information collections. FMCSA is requiring that motor carriers 
operating CMVs designed or used to transport 9- to 15- passengers be 
required to meet the recordkeeping requirements of 49 CFR parts 391, 
395, and 396.
Medical Examination and Certification--OMB Control No. 2126-0006
    Drivers operating CMVs designed or used to transport between 9 and 
15 passengers will be required to meet the medical examination and 
certification requirements at 49 CFR part 391, subpart E. The 
information collection requirements related to that subpart have been 
approved by the OMB under provisions of the PRA and assigned the OMB 
Control No. 2126-0006, which is currently due to expire on October 31, 
2003. FMCSA estimates it takes a medical examiner approximately 20 
minutes to complete and document the medical examination and 1 minute 
to complete the medical certificate, and that it takes a motor carrier 
approximately 1 minute to make a copy of the medical certificate and 
file it. Therefore, the total time associated with this information 
collection, per driver, is 22 minutes. FMCSA estimates that 
approximately 22,000 drivers will be subject to the final rule. The 
estimated burden for the first year will be 8,067 burden hours [22,000 
drivers x 22 minutes per driver, divided by 60 minutes in an hour]. 
Since the medical examiner's certificate is usually made valid for 24 
months, the prorated annual burden will be approximately half that 
amount. Therefore, the annual burden hours will be 4,034. FMCSA 
submitted the amended medical qualification information collection to 
the OMB for review and approval.
Driver Qualification Files--OMB Approval No. 2126-0004
    Motor carriers that employ drivers of CMVs designed or used to 
transport between 9 and 15 passengers will be required to maintain a 
complete driver qualification file for each driver in accordance with 
49 CFR 391.51. The information collection requirements related to 
driver qualification files have been approved by the OMB under the 
provisions of the PRA and assigned the OMB Control No. 2126-0004, which 
is currently due to expire on August 31, 2004. The following components 
are involved in this information collection: driver's employment 
application (2 minutes for drivers), review of driver's employment 
application (1 minute for motor carriers), initial inquiry of driving 
record and investigation of employment (15 minutes for motor carriers), 
list or certification of violations (2 minutes for drivers), and annual 
review of driving record (5 minutes for motor carriers). The burden 
hour estimate associated with this information collection is 25 minutes 
per driver, which includes 21 minutes for motor carriers and 4 minutes 
for drivers. Therefore, FMCSA estimates that the addition of the 22,000 
drivers who will be subject to this final rule will increase the burden 
hours of this information collection by 9,167 [22,000 drivers x 25 
minutes, divided by 60 minutes in an hour]. FMCSA submitted the amended 
driver qualification information collection to OMB for review and 
approval.
Records of Duty Status--OMB Control No. 2126-0001
    Drivers operating CMVs designed or used to transport between 9 and 
15 passengers will be required to record their duty status in 
accordance with 49 CFR 395.8. The information collection requirements 
related to records of duty status have been approved by the OMB under 
the provisions of the PRA and assigned the OMB Control No. 2126-0001, 
which expires on March 31, 2005. FMCSA estimates the annual burden on 
each CMV driver to be approximately 26 hours [6 minutes and 30 seconds 
for each daily log x 240 workdays a year, divided by 60 minutes in an 
hour]. The

[[Page 47874]]

total burden for the 22,000 drivers affected by this rule will be 
572,000 [22,000 drivers x 26 hours per year]. In addition, each motor 
carrier affected by this rule will have a supervisor responsible for 
reviewing its driver records of duty status and that the supervisor 
will spend approximately 12 hours per year reviewing these records to 
ensure compliance with the hours-of-service rules [3 minutes per day to 
review logs x 240 workdays]. The total burden for the supervisors of 
the 22,000 drivers affected by this rule will be 264,000 [22,000 
drivers x 12 hours per year]. Therefore, the total additional burden 
for OMB Control No. 2126-0001 will be 836,000 annual burden hours 
[572,000 + 264,000]. FMCSA submitted the amended driver records of duty 
status information collection to OMB for review and approval.
Vehicle Inspection, Repair, and Maintenance--OMB Control No. 2126-0003
    Motor carriers operating CMVs designed or used to transport between 
9 and 15 passengers for direct compensation will be required to 
maintain records of inspection, repair, and maintenance for their CMVs 
in accordance with 49 CFR part 396. The information collection 
requirements related to inspection, repair, and maintenance have been 
approved by the OMB under the provisions of the PRA and assigned OMB 
Control No. 2126-0003, which expires on May 31, 2004. FMCSA estimates 
that it will take a total expenditure of 12 hours and 57 minutes (or 
777 minutes) per year per CMV to complete the required recordkeeping 
related to vehicular inspection, repair, and maintenance (48 minutes 
per vehicle for systematic inspection, repair, and maintenance; 12 
hours and 4 minutes per year per vehicle for driver vehicle inspection 
reports; and 5 minutes per year per vehicle for periodic inspection).
    Evidence of an individual's qualifications to perform periodic 
vehicle inspections must be retained by the motor carrier. Evidence of 
an individual's qualifications to be a brake inspector must also be 
retained. The creation of these two types of qualification evidence 
involves an estimated one-time, non-recurring expenditure of 5 minutes 
by a safety director, driver supervisor, or equivalent position for 
each type of inspector. Based on an estimate of 1,843 motor carriers 
that will be subject to the rule and on the assumption that each motor 
carrier has at least (1) one employee who is a qualified periodic 
vehicle inspector and (2) one employee who is a qualified brake 
inspector, the estimated total time burden related to the inspector 
qualifications rules is approximately 307 annual burden hours [(5 
minutes for each periodic vehicle inspector certification x 1,843 motor 
carriers) + (5 minutes for each brake inspector certification x 1,843 
motor carriers) = 18,430 minutes, divided by 60 minutes in an hour = 
307 hours].
    FMCSA estimates that the total inspection, repair, and maintenance 
recordkeeping burden is approximately 238,976 burden hours per year 
[18,430 CMVs x 777 minutes (or 12 hours and 57 minutes) per year per 
CMV, divided by 60 minutes in an hour = 238,669, plus an additional 307 
= 238,976]. FMCSA submitted the amended inspection, repair, and 
maintenance information to OMB for review and approval.
    The total estimated additional burden hours imposed by this rule 
will be 1,088,177 [4,034 (associated with OMB Control No. 2126-0006) + 
9,167 (associated with OMB Control No. 2126-0004) + 836,000 (associated 
with OMB Control No. 2126-0001) + 238,976 (associated with OMB Control 
No. 2126-0003)]. The following table displays this information:

------------------------------------------------------------------------
                                                            Additional
                                            Currently-     burden hours
             OMB control No.                 approved       associated
                                           annual burden     with this
                                               hours        final rule
------------------------------------------------------------------------
2126-0006...............................       1,180,792           4,034
2126-0004...............................         941,856           9,167
2126-0001...............................     161,364,492         836,000
2126-0003...............................      35,107,856         238,976
=========================================
------------------------------------------------------------------------

    In the NPRM stage, we requested comments regarding the information 
collection burden hour estimates. However, no comments were received 
during the NPRM comment period regarding the estimated information 
collection burdens.

National Environmental Policy Act

    The agency has analyzed this rulemaking for purposes 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.

Energy Effects

    We have analyzed this action under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not economically 
significant and is not likely to have a significant adverse effect on 
the supply, distribution, or use of energy.

Unfunded Mandates Reform Act of 1995

    This final rule does not impose an unfunded mandate, as defined by 
the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532 et seq.), that 
will result in a $100 million or more expenditure (adjusted annually 
for inflation) in any one year by State, local, and tribal governments, 
in the aggregate, or by the private sector.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this action under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and does not 
concern an environmental risk to health or safety that may 
disproportionately affect children.

Taking of Private Property

    This final rule will not effect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

Federalism Assessment

    We have analyzed this rule in accordance with the principles and 
criteria of Executive Order 13132, Federalism. We have determined that 
this action does not have a substantial direct effect on States or 
impose additional costs or burdens on the States. Nothing in this 
document limits the policymaking discretion of the States or directly 
preempts any State law or regulation. Therefore, we have determined 
that this final rule does not have federalism implications.

List of Subjects

49 CFR Part 390

    Highway safety, Intermodal transportation, Motor carriers, Motor 
vehicle safety, Reporting and recordkeeping requirements.

49 CFR Part 398

    Highway safety, Migrant labor, Motor carriers, Motor vehicle 
safety, Reporting and recordkeeping requirements.

0
For the reasons discussed in the preamble, the Federal Motor Carrier 
Safety Administration amends title 49,

[[Page 47875]]

Code of Federal Regulations, parts 385, 390, and 398 as follows:

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

0
1. The authority citation for part 390 is revised 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); secs. 212 and 217, Pub. L. 106-159, 113 Stat. 1748, 1766, 
1767; and 49 CFR 1.73.

0
2. Amend Sec.  390.3 by revising paragraph (f)(6) to read as follows:


Sec.  390.3  General applicability.

    (f) * * *
    (6)(i) The operation of commercial motor vehicles designed or used 
to transport between 9 and 15 passengers (including the driver), not 
for direct compensation, provided the vehicle does not otherwise meet 
the definition of a commercial motor vehicle, except that motor 
carriers operating such vehicles are required to comply with Sec. Sec.  
390.15, 390.19, and 390.21(a) and (b)(2).
    (ii) The operation of commercial motor vehicles designed or used to 
transport between 9 and 15 passengers (including the driver) for direct 
compensation, provided the vehicle is not being operated beyond a 75 
air-mile radius (86.3 statute miles or 138.9 kilometers) from the 
driver's normal work-reporting location, and provided the vehicle does 
not otherwise meet the definition of a commercial motor vehicle, except 
that motor carriers operating such vehicles are required to comply with 
Sec. Sec.  390.15, 390.19, and 390.21(a) and (b)(2).

0
3. Amend Sec.  390.5 by adding a definition for ``direct 
compensation,'' in alphabetical order to read as follows:


Sec.  390.5  Definitions.

* * * * *
    Direct compensation means payment made to the motor carrier by the 
passengers or a person acting on behalf of the passengers for the 
transportation services provided, and not included in a total package 
charge or other assessment for highway transportation services.
* * * * *

PART 398--TRANSPORTATION OF MIGRANT WORKERS

0
4. The authority citation for part 398 is revised 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); sec. 212, Pub. L. 106-159, 113 Stat. 1748, 1766; and 49 
CFR 1.73.

0
5. Revise Sec.  398.2 to read as follows:


Sec.  398.2  Applicability.

    (a) General. The regulations prescribed in this part are applicable 
to carriers of migrant workers by motor vehicle, as defined in Sec.  
398.1(b), but only in the case of transportation of any migrant worker 
for a total distance of more than 75 miles (120.7 kilometers) in 
interstate commerce, as defined in 49 CFR 390.5.
    (b) Exception.
    (1) The regulations prescribed in this part are not applicable to 
carriers of migrant workers by motor vehicle, as defined in Sec.  
398.1(b), when:
    (i) The motor vehicle is designed or used to transport between 9 
and 15 passengers (including the driver);
    (ii) The motor carrier is directly compensated for the 
transportation service; and
    (iii) The vehicle used to transport mirgrant workers is operated 
beyond a 75 air-mile radius (86.3 statute miles or 138.9 kilometers) 
from the driver's normal work-reporting location.
    (2) Carriers of migrant workers by motor vehicle that operate 
vehicles, designed or used to transport between 9 and 15 passengers 
(including the driver) for direct compensation, in interstate commerce, 
must comply with the applicable requirements of 49 CFR parts 385, 390, 
391, 392, 393, 395, and 396, when the motor vehicle is operated beyond 
a 75 air-mile radius (86.3 statute miles or 138.9 kilometers) from the 
driver's normal work-reporting location.
* * * * *

    Issued on: August 5, 2003.
Annette M. Sandberg.
Administrator.
[FR Doc. 03-20369 Filed 8-11-03; 8:45 am]
BILLING CODE 4910-EX-P