[Federal Register Volume 69, Number 57 (Wednesday, March 24, 2004)]
[Proposed Rules]
[Pages 13803-13805]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-6585]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

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

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


Interstate School Bus Safety; Withdrawal

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

[[Page 13804]]


ACTION: Withdrawal of advance notice of proposed rulemaking (ANPRM).

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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) 
withdraws its October 22, 2001, advance notice of proposed rulemaking 
(ANPRM) concerning whether to extend the applicability of the Federal 
Motor Carrier Safety Regulations (FMCSRs) to all interstate school 
transportation operations (excluding home-to-school or school-to-home 
transportation) by local governmentally operated educational agencies. 
After reviewing the public comments on the ANPRM, the agency determined 
that no regulatory action is needed. Therefore, interstate school 
transportation operations by local governmentally operated educational 
agencies will continue to be exempt from all FMCSRs except the 
commercial driver's license regulations and the controlled substances 
and alcohol testing regulations.

DATES: The advance notice of proposed rulemaking published on October 
22, 2001, at 66 FR 53373 is withdrawn as of March 24, 2004.

FOR FURTHER INFORMATION CONTACT: Mr. Philip J. Hanley, Jr., Office of 
Bus and Truck Standards and Operations, (202) 366-6811, Federal Motor 
Carrier Safety Administration, Department of Transportation, 400 
Seventh Street, SW, Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION: 

Background

    On October 22, 2001, FMCSA issued an advance notice of proposed 
rulemaking (ANPRM) to gather information, data, and recommendations 
that would assist the agency in determining whether to make the Federal 
Motor Carrier Safety Regulations (FMCSRs) applicable to interstate 
school bus transportation by local governmentally operated educational 
agencies (LEAs). Sec. 4024 of the Transportation Equity Act for the 
21st Century, Public Law 105-178, 112 Stat. 107 at 416, directed FMCSA 
to determine whether to apply the FMCSRs to interstate school 
transportation operations (excluding home-to-school or school-to-home 
transportation) conducted by LEAs. Generally, the term LEA means a 
public board of education or other public authority legally constituted 
to perform service functions for public elementary and secondary school 
districts in a city, county, or other political subdivision of a State. 
LEAs do not include private schools or public colleges and 
universities.
    In the ANPRM, the agency proposed to determine whether Federal 
regulatory involvement in interstate school bus transportation 
operations by local educational agencies is necessary to enhance the 
safety of passengers and that of the general public. FMCSA also 
considered whether interstate transportation (other than home-to-school 
and school-to-home) by all governmental educational entities, such as 
public universities, should be subject to the FMCSRs. In addition, the 
agency considered holding educational agencies to the same standards 
that private schools and contractors are required to meet when 
operating interstate in other than home-to-school and school-to-home 
transportation. Examples of these standards include qualifications of 
drivers, hours of service, and maintenance of vehicles.
    There are approximately 14,000 school districts (LEAs) in the 
United States that provide transportation to students. About two-thirds 
provide that service directly, and the remaining third hire a 
contractor(s) to provide the transportation service. These entities 
(LEAs and contractors) employ nearly 470,000 drivers, operate almost 
460,000 school buses, and transport 23.5 million students 4.3 billion 
miles every year. It is estimated that less than 5 percent of all 
school bus trips are other than home-to-school, with less than 1 
percent being interstate in nature. Virtually all school bus 
transportation that crosses State lines is for field trips and trips to 
school-sponsored sporting events, rather than being home-to-school 
transportation.
    Although government operation of commercial motor vehicles 
(including school buses) has historically been exempt from the majority 
of the FMCSRs, drivers employed by governmental agencies, including 
LEAs, must comply with the commercial driver's license (CDL) 
requirements and drug and alcohol testing requirements. The LEA 
exemption originated in Sec. 206(f) of the Motor Carrier Safety Act of 
1984 (Public Law 98-554, Title II; 98 Stat. 2833), which specifically 
required the Secretary to waive application of the regulations to 
school buses, unless the Secretary determined that such regulations are 
necessary for public safety.
    Contractors hired by school districts must comply with all of the 
FMCSRs when providing transportation that is other than home-to-school 
and is interstate in nature. As with LEA bus drivers, contractor-
employed school bus drivers must comply with the CDL and drug and 
alcohol testing requirements set forth in the FMCSRs regardless of 
whether the transportation is interstate or intrastate in nature.
    The regulatory oversight of school bus operations has traditionally 
been a State function. While the States have adopted the FMCSRs or 
compatible regulations to meet the requirements of the Motor Carrier 
Safety Assistance Program (MCSAP) (49 CFR part 350), they normally 
apply the same exemptions for government operations. The routine 
inspection of school buses is a State function and not a MCSAP-
reimbursable activity.
    Most States have some driver physical qualification standards, 
vehicle maintenance and inspection standards, background investigation 
requirements, and training standards that apply to school bus 
operations (both LEA and contractor). Only a few States have hours-of-
service or fatigue management standards for school bus operators. LEA-
performed school bus transportation operations are subject to Sec. 7 of 
the Fair Labor Standards Act (FLSA) (29 U.S.C. 207), which requires 
overtime pay for work in excess of 40 hours per week. (However, Sec. 
13(b)(1) of the FLSA exempts from the provisions of Sec. 7 any employee 
for whom the Secretary of Transportation has power to establish 
qualifications and maximum hours of service pursuant to the provisions 
of 49 U.S.C. 31502. See 29 CFR part 782. Thus, certain contractor-
performed school bus transportation operations subject to the 
Secretary's jurisdiction are exempt from the overtime provisions of the 
FLSA.)
    LEA-performed and contractor-performed school bus transportation 
operations are equally safe. The overall fatality rate for school buses 
is 0.2 per 100 million vehicle miles traveled (VMT), compared with 1.5 
fatalities per 100 million VMT for passenger cars (1990-2000). The 
fatality rate for trucks is 2.5 per 100 million VMT (2000). In calendar 
year 2001, 129 people died in school bus-involved fatal crashes; 16 of 
those fatalities were bus occupants. From 1975 through 2001, the number 
of school bus occupant fatalities averaged 14 per year. All fatalities 
occurred during home-to-school operations. There has not been a single 
fatal crash involving an interstate school activity trip during the 
last 10 years.

Comments Received on the ANPRM

    The ANPRM invited responses to specific questions that FMCSA 
considered relevant to its need to decide whether to make the FMCSRs 
applicable to interstate school bus transportation by local educational 
agencies. We received comments from six State governmental 
organizations, five organizations, a consulting group, five 
corporations, and 13 individuals. Few

[[Page 13805]]

commenters responded to FMCSA's specific questions. Most merely stated 
that they were either for or against LEAs being subject to the FMCSRs.
    Beyond the information provided in the comments, FMCSA gleaned 
little specific data from the answers supplied. Some commenters stated 
that much of the information the agency requested was not readily 
obtainable, or that States do not maintain such information. The major 
points of the substantive responses are summarized below.
    Summary of comments in favor of applying the Federal safety 
regulations to LEAs:
    1. Many of the commenters simply stated that the Federal safety 
regulations should apply equally to all passenger-carrying vehicles, 
regardless of controlling entity. These commenters believe that if a 
contractor is subject to the safety regulations, then LEAs also should 
be subject to them. Commenters expressing this view included the 
National School Transportation Association, the Montana School Boards 
Association, the American Bus Association, the United Motorcoach 
Association, and Advocates for Highway and Auto Safety.
    2. The United Motorcoach Association (UMA) expressed concern that 
there are no universal minimum standards applicable to every school bus 
operation, leaving safety decisions to each State or local district. 
Nonetheless, UMA acknowledged that ``We can cite no circumstances where 
school bus providers--either contracted or governmentally-owned--have 
demonstrated anything less than the highest standards of and attention 
to safety. Many States have implemented greater safety oversight on the 
school bus community than they have on the commercial operators.''
    3. Several commenters, including the National School Transportation 
Association and the New Jersey Department of Transportation, noted 
that, among the FMCSRs, hours-of-service regulations are least likely 
to be replicated at the State level. These commenters envisioned 
potential safety benefits from applying the hours-of-service 
regulations to all interstate school transportation.
    Summary of comments in opposition to applying the safety 
regulations to LEAs:
    1. Since the current LEA exemption (at 49 U.S.C. 31136) applies to 
all government-owned and -operated vehicles, any proposal to apply the 
safety regulations to LEAs should include all government vehicles 
operated in interstate commerce. The governmental exemption has not 
compromised safety.
    2. Virtually all commenters who opposed the proposed regulatory 
action agreed that most States impose vehicle inspection and 
maintenance requirements on all school buses, regardless of type of 
operation. The Colorado Department of Education stated that Colorado 
already has and is continuing to revise ``tough regulations for the 
safety of our children we transport, including when we transport these 
children into other states.'' Subjecting Colorado LEAs to the Federal 
safety regulations would introduce ``problems of overlapping 
regulations.''
    3. There is a lack of specific data indicating that LEA pupil 
transportation is unsafe. The National Association of State Directors 
of Pupil Transportation Services reinforced the point by adding that 
any change to the FMCSRs should be based on data.

FMCSA Decision

    FMSCA finds a lack of identifiable data indicating that this 
segment of transportation is unsafe. The evidence shows that not a 
single fatal crash in the past 10 years would have been avoided had 
this proposed rule change been in existence. Since the major source of 
safety benefits is potential fatal crashes avoided, FMCSA believes that 
the benefits of imposing the FMCSRs on all interstate school 
transportation operations would be extremely low. Even though the costs 
of compliance would be modest, potential benefits would not appear to 
outweigh those costs.
    Further, Executive Order 13132, dated August 4, 1999, dealing with 
Federalism, states that ``the national government should be deferential 
to the States when taking action that affects the policymaking 
discretion of the States * * *.'' and ``[i]ntrusive Federal oversight 
of State administration is neither necessary nor desirable.'' A 1988 
Federal Highway Administration final rule, ``Federal Motor Carrier 
Safety Regulations; General'' (53 FR 18042, May 19, 1988), invokes this 
principle with regard to school bus transportation operations. The 
rule's preamble states, at 53 FR 18043, that ``the transportation of 
school children and school personnel from home to school and back again 
involves problems which are common to the States, and which, in 
accordance with the President's Executive Order on Federalism 
(Executive Order 12612, October 26, 1987), can best be left to the 
individual States * * *.'' FMCSA has reached the same conclusion in 
this rulemaking proceeding.
    Although FMCSA has decided not to pursue this regulatory action, 
the agency is committed to continuing to work with school bus 
associations and local school districts to maintain the safety of 
school bus transportation. We are working closely with two school bus 
associations to learn the extent to which school buses and school bus 
operations are regulated at the State level. We recently launched an 
outreach program, ``Moving Kids Safely,'' that provides guidance to 
school officials responsible for the transportation of school children. 
As an integral part of this program, FMCSA assists the school-system 
decision maker in selecting a safe transportation company and the 
appropriate type of vehicle for the trip.
    For these reasons, FMCSA has decided not to extend the 
applicability of the FMCSRs to all interstate school transportation 
operations (excluding home-to-school or school-to-home transportation) 
by local governmentally operated educational agencies. The ANPRM of 
October 22, 2001 (66 FR 53373) is withdrawn.

    Issued on: March 11, 2004.
Warren E. Hoemann,
Deputy Administrator.
[FR Doc. 04-6585 Filed 3-23-04; 8:45 am]
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