[Federal Register: September 3, 1999 (Volume 64, Number 171)]
[Rules and Regulations]
[Page 48509-48517]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03se99-32]

[[Page 48509]]

_______________________________________________________________________

Part IV

Department of Transportation

_______________________________________________________________________

Federal Highway Administration

_______________________________________________________________________

49 CFR Part 390

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

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

[[Page 48510]]

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Part 390

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


Federal Motor Carrier Safety Regulations; Definition of
Commercial Motor Vehicle

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Interim final rule; request for comments.

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

SUMMARY: The FHWA is amending the Federal Motor Carrier Safety
Regulations (FMCSRs) to adopt the statutory definition of a commercial
motor vehicle (CMV) found at 49 U.S.C. 31132. This action is in
response to the Transportation Equity Act for the 21st Century (TEA-
21). Section 4008(a) of TEA-21 amended the definition of the term
``commercial motor vehicle'' to cover vehicles ``designed or used to
transport more than 8 passengers (including the driver) for
compensation.'' The FHWA is revising its regulatory definition of CMV
to be consistent with the statute, but is exempting the operation of
these small passenger-carrying vehicles from all of the FMCSRs for six
months to allow time for the completion of a separate rulemaking action
published elsewhere in today's Federal Register. As a result of this
action, the applicability of the FMCSRs will be the same as before the
enactment of TEA-21 until March 3, 2000. Therefore, entities that were
not subject to the FMCSRs prior to the enactment of TEA-21 are not
required to make any changes in their operations until that date.

DATES: This rule is effective on September 3, 1999. Comments must be
received on or before November 2, 1999.

ADDRESSES: Submit written, signed comments to FHWA Docket No. FHWA-97-
2858, the Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh
Street, SW., Washington, DC 20590-0001. All comments received will be
available for examination at the above address from 9 a.m. to 5 p.m.,
e.t., Monday through Friday, except Federal holidays. Those desiring
notification of receipt of comments must include a self-addressed,
stamped envelope or postcard.

FOR FURTHER INFORMATION CONTACT: Mr. Larry W. Minor, Office of Motor
Carrier Research and Standards, HMCS-10, (202) 366-4009; or Mr. Charles
E. Medalen, Office of the Chief Counsel, HCC-20, (202) 366-1354,
Federal Highway Administration, 400 Seventh Street, SW., Washington,
D.C. 20590-0001. Office hours are from 7:45 a.m. to 4:15 p.m., e.t.,
Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Internet users can access all comments that were submitted to the
Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street, SW.,
Washington, DC 20590-001, in response to previous rulemaking notices
concerning the docket referenced at the beginning of this notice by
using the universal resource locator (URL): http://dms.dot.gov. It is
available 24 hours each day, 365 days each year. Please follow the
instructions online for more information and help.
    An electronic copy of this document may be downloaded using a modem
and suitable communications software from the Government Printing
Office's Electronic Bulletin Board Service at (202) 512-1661. Internet
users may reach the Office of the Federal Register's home page at
http://www.nara.gov/fedreg and the Government Printing Office's
database at: http://www.access.gpo.gov/nara.

Background

    Section 204 of the Motor Carrier Safety Act of 1984 (MCSA) (Pub. L.
98-554, Title II, 98 Stat. 2832, at 2833) defined a ``commercial motor
vehicle'' as one having a gross vehicle weight rating (GVWR) of 10,001
pounds or more; designed to transport more than 15 passengers,
including the driver; or transporting hazardous materials in quantities
requiring the vehicle to be placarded. This definition, codified at 49
U.S.C. 31132(1), was the basis for the regulatory definition of a CMV
in 49 CFR 390.5, which determines the jurisdictional limits and
applicability of most of the FMCSRs. The Senate Committee on Commerce,
Science and Transportation, in a report which accompanied the MCSA
stated: ``The 10,000-pound limit, which is in the current BMCS (Bureau
of Motor Carrier Safety, now the FHWA's Office of Motor Carrier and
Highway Safety) regulations, is proposed to focus enforcement efforts
and because small vans and pickup trucks are more analogous to
automobiles than to medium and heavy commercial vehicles, and can best
be regulated under State automobile licensing, inspection, and traffic
surveillance procedures.'' S. Rep. No. 98-424, at 6-7 (1984), reprinted
in 1984 U.S.C.C.A.N. 4785, 4790-91.
    Although the MCSA demonstrated congressional intent to focus the
applicability of the FMCSRs on larger vehicles, Congress did not repeal
section 204 of the Motor Carrier Act of 1935 (Chapter 498, 49 Stat.
543, 546). This statute, now codified at 49 U.S.C. 31502, authorizes
the FHWA to regulate the safety of all for-hire motor carriers of
passengers and property, and private carriers of property without
respect to the weight or passenger capacity of the vehicles they
operate.
    When the Congress enacted the Commercial Motor Vehicle Safety Act
of 1986 (CMVSA) (Pub. L. 99-570, Title XII, 100 Stat. 3207-170) to
require implementation of a single, classified commercial driver's
license program, it also limited the motor vehicles subject to the
program to those designed to transport more than 15 passengers,
including the driver (now codified at 49 U.S.C. 31301(4)(B) with
slightly different wording). This, too, revealed the congressional
policy of applying available Federal motor carrier safety resources to
larger vehicles.
    The ICC Termination Act of 1995 (ICCTA) (Pub. L. 104-88, 109 Stat.
803, 919) changed the MCSA's definition of a commercial motor vehicle.
As amended, section 31132(1) defined a commercial motor vehicle, in
part, as a vehicle that is ``designed or used to transport passengers
for compensation, but exclud(es) vehicles providing taxicab service and
having a capacity of not more than 6 passengers and not operated on a
regular route or between specified places; (or) is designed or used to
transport more than 15 passengers, including the driver, and is not
used to transport passengers for compensation.'' The ICCTA authorized,
but did not require, the FHWA to change the FMCSRs accordingly; the
agency did not incorporate the amended language into the CMV definition
in Sec. 390.5. The agency notes that the ICCTA included the phrase
``designed or used'' in specifying the passenger-carrying threshold for
the FMCSRs. This change will make the FMCSRs applicable based upon the
number of passengers in the vehicle or the number of designated seating
positions, whichever is greater. In other words, a bus designed to
carry 13 people but actually carrying 18 would be subject to the
FMCSRs.
    Section 4008(a)(2) of TEA-21 (Pub. L. 105-178, 112 Stat. 107, June
9, 1998) again amended the passenger-vehicle component of the CMV
definition in 49 U.S.C. 31132(1). Section 4008 also changed the weight
threshold in the CMV definition by adding ``gross vehicle weight''
(GVW) to the previous ``gross vehicle weight rating'' (GVWR).

[[Page 48511]]

The agency may now exercise jurisdiction based on the GVW or GVWR,
whichever is greater. A vehicle with a GVWR of 9,500 pounds that was
loaded to 10,500 pounds GVW would therefore be subject to the FMCSRs if
it was operating in interstate commerce. Commercial motor vehicle is
now defined (in 49 U.S.C 31132) to mean a self-propelled or towed
vehicle used on the highways in interstate commerce to transport
passengers or property, if the vehicle--
    (A) Has a gross vehicle weight rating or gross vehicle weight of at
least 10,001 pounds, whichever is greater;
    (B) Is designed or used to transport more than 8 passengers
(including the driver) for compensation;
    (C) Is designed or used to transport more than 15 passengers,
including the driver, and is not used to transport passengers for
compensation; or
    (D) Is used in transporting material found by the Secretary of
Transportation to be hazardous under section 5103 of this title and
transported in a quantity requiring placarding under regulations
prescribed by the Secretary under section 5103.
    Under section 4008(b), operators of the CMVs defined by section
31132(1)(B) will automatically become subject to the FMCSRs one year
after the date of enactment of TEA-21, if they are not already covered,
``except to the extent that the Secretary [of Transportation]
determines, through a rulemaking proceeding, that it is appropriate to
exempt such operators of commercial motor vehicles from the application
of those regulations.''
    The FHWA views section 4008 of TEA-21 as a mandate either to impose
the FMCSRs on previously unregulated smaller capacity vehicles, or to
exempt through a rulemaking proceeding some or all of the operators of
such vehicles. Although the House Conference Report (H.R. Conf. Rep.
No. 104-422 (1995)) on the ICCTA definitional change directed the
agency not to impose on the States (as grant conditions under the Motor
Carrier Safety Assistance Program (MCSAP)) the burden of regulating a
new population of carriers covered by the definition, no such
restriction is included in TEA-21 or its legislative history. The
mandate of TEA-21 is thus stricter than that of the ICCTA. Still, the
FHWA is authorized to undertake rulemaking to exempt some of these
passenger vehicles from the FMCSRs.

FHWA's Advance Notice of Proposed Rulemaking

    On August 5, 1998 (63 FR 41766), the FHWA published an advance
notice of proposed rulemaking (ANPRM) to announce that the agency was
considering amending the FMCSRs in response to section 4008(a) of the
TEA-21, to seek information about the potential impact of the TEA-21
definition, and to request public comment on the question whether any
class of vehicles should be exempted. The agency also requested comment
on whether the term ``for compensation'' may be interpreted to
distinguish among the types of van services currently in existence.

Discussion of Comments to the ANPRM

    The FHWA received 733 comments in response to the ANPRM. The
commenters included State and local government agencies, transit
authorities, vanpool organizations, vanpool members, universities,
trade associations, and members of Congress, as well as private
citizens. Most (more than 720) of the commenters were opposed to making
the FMCSRs applicable to the operation of small passenger-carrying
CMVs. However, several commenters believed it is necessary to regulate
these vehicles and, in certain cases, identified what they believe are
the specific safety issues section 4008(a) was intended to resolve.

Comments Opposed to Making the FMCSRs Applicable to Small CMVs

    The majority of the commenters opposed to the rulemaking were
organizers and members of vanpools, and State and local agencies and
vanpool associations that believe implementing section 4008(a) of TEA-
21 would adversely impact vanpool participation by imposing more
stringent standards on drivers of these vehicles. Some of the
commenters argued there was no data to support imposing the FMCSRs on
the operators of small CMVs while others emphasized the adverse impacts
the rulemaking could have on transportation providers for elderly and
disabled citizens.
    Commenting on the issue of commuter transportation, the Southern
California Association of Governments stated:

    The proposed expanded regulation would reduce the current number
of commuters willing to volunteer to serve as vanpool drivers and
back-up drivers. Members of a vanpool agree to the obligation on a
volunteer basis within the commuting group. Currently, a free or
partially subsidized commute and personal use of the vanpool
vehicles on evenings and weekends is still not enough of an
attraction for a large number of commuters. The proposed additional
requirements, which include minimum driver training, written
testing, behind-the-wheel testing, medical qualifications, drug and
alcohol testing, imposed by the FHWA will result in volunteer
vanpool driving to become extremely burdensome.

    The Florida Department of Transportation, commenting about the
impacts the rulemaking would have on transportation providers for the
elderly and disabled, stated:

    The proposed amendment to the Federal Motor Carrier Safety
Regulations (FMCSR) would have a significant impact to certain
Florida rural transportation providers. These primarily include
those operators that are located along or near the state border.
These operators provide transportation services for disadvantaged
persons needing transportation to and from certain medical and
rehabilitation facilities. These transportation entities are either
public or private-non-profit senior citizen or mental health
facilities and designated as community transportation coordinators
by Florida Statutes. [Their] operational areas are primarily rural
and it is often necessary for these operators to transport
passengers needing special care or treatment across state lines to
facilities located in bordering states. These transportation
operators receive funding and compensation for their services from
local, state and federal funds and have been considered as
``eligible transit operators'' by the FHWA pursuant to the ICC
Termination Act of 1995. Vehicles operated by these providers mainly
consist of 15 passenger vans. These operators are currently exempted
from the FMCSR since the 15 passenger vehicles operated do not meet
the definition of a ``commercial motor vehicle'' in 49 U.S.C.
Section 31132 . These operators are also exempted from the FHWA
insurance requirements for interstate motor vehicles by [49 U.S.C.
31138(e)(4)].

    The Iowa Department of Transportation expressed concerns that
regulating small passenger-carrying CMVs would adversely impact motor
carrier safety programs by using limited enforcement resources to
regulate the entities operating these vehicles. The agency stated:

    State and local enforcement agencies have numerous enforcement
demands on the regulation of straight trucks, truck tractors,
tractors with semi-trailers, double bottoms, buses, and vehicles
transporting hazardous materials. Expanding the motor carriers
safety requirements to passenger carrying vehicles will be costly
and a strain on inspector availability for what appears to be little
public benefit.
    In a period when zero-based regulations are/have been developed
and implemented, is it logical to expand the definition of a
commercial motor vehicle to include 8-passenger vehicles? If 8-
passenger vehicles are included, why not 6-passenger vehicles? Are
we beginning to over-regulate? Safety is a major issue in conducting
inspections. En-route inspections are kept to a minimum for buses.
To protect passengers during an inspection requires special
considerations and planning. Adding 8-passenger vehicles will
continue to complicate inspection procedures with risks to
passengers.

[[Page 48512]]

    The Oregon Department of Transportation, Motor Carrier
Transportation Branch, also expressed opposition to adopting the new
definition of CMV. The Motor Carrier Transportation Branch (MCTB)
stated:

    The MCTB does not understand why the definition of commercial
motor vehicle was amended in the [TEA-21] to include vehicles
designed or used to transport more than eight passengers (including
the driver) for compensation. Further, the MCTB questions whether
including these smaller vehicles will improve highway safety.
    [I]t is not apparent that these smaller vehicles represent a
significant danger. In fact, this move to regulate smaller vehicles
contradicts the current Motor Carrier Regulatory Relief and Safety
Demonstration Project. Little, if any, safety benefit may result in
including these smaller vehicles under the jurisdiction of the motor
carrier safety regulations. As stated in the advanced notice of
proposed rulemaking: request for comment, ``vans and pickup trucks
are more analogous to automobiles than to medium and heavy
commercial vehicles, and can be best regulated under State
licensing, inspection, and traffic surveillance procedures.

    The International Taxicab and Livery Association (ITLA) opposed
adopting the new definition of CMV and provided estimates of the number
of businesses that would be affected by the rulemaking, as well as the
number of vehicles and drivers that would be subject to Federal safety
requirements if the FHWA implemented section 4008 of the TEA-21. The
ITLA stated:

    According to information available to ITLA, there are
approximately 50,000 limousines in use that would be affected by the
definitional change. It should be noted that there are over 9000
limousine operators nationwide (also operating premium sedan
services), and that the median fleet size is less than 5. In
addition, the average annual miles operated by limousines is
approximately 23,000 miles.
    ITLA estimates that there are approximately 74,000 vans
nationwide `` the breakdown between ``mini-vans'' and those affected
by the proposed definition is not available. Van fleets average less
than 10 vans, with an approximate annual mileage of 40,000 per
vehicle, and an average trip length of less than 8 miles lasting
significantly less than 1 hour.
    In September of 1998, the American Business Information (a mailing
list sales company) released a sales catalog that reports the following
information:

------------------------------------------------------------------------
                                                              Number of
             SIC code                   Type of service          U.S.
                                                              companies
------------------------------------------------------------------------
4111-01..........................  Airport Transportation..        4,752
4119-01..........................  Handicapped                     1,302
                                    Transportation.
4119-03..........................  Limousine Transportation        9,482
4121-01..........................  Taxicab Transportation..        7,348
                                                            ------------
                                       Total...............       22,884
------------------------------------------------------------------------

    The ITLA indicated that if the FHWA decides to make the FMCSRs
applicable to the operation of small passenger-carrying vehicles,
approximately 14,000 companies, 125,000 vehicles, and 165,000 drivers
would be covered.

Comments in Support of Making the FMCSRs Applicable to Small CMVs

    Of the 733 comments submitted in response to the agency's ANPRM,
only a few (less than 13) expressed support for implementing section
4008(a). The reasons for supporting the adoption of the revised
definition of a CMV varied from the belief that highway safety would be
improved if the commercial driver's license and controlled substances
and alcohol testing rules were applicable to drivers of small
passenger-carrying vehicles, to the belief that applying the safety
regulations to these vehicles would improve school bus transportation.
None of the commenters in support of regulating small passenger-
carrying vehicles believed implementing section 4008(a) of the TEA-21
would result in adverse impacts to those businesses.

    The United Motor Coach Association (UMA) stated:
    UMA's reason for pursuing a legislative change stemmed from the
rising tide of uninsured and/or unsafe carriers operating from or
through commercial zones (as defined in 49 CFR Part 372),
particularly in Texas and the southwestern states. In fact, the
problem was so severe in Texas that McAllen City officials
petitioned the ICC to severely restrict the motor carrier commercial
zone surrounding that city.
    Subsequent research by UMA and its operator member companies
indicate that the problem is not simply a southern border issue. It
is a growing problem that is National in scope. Exempted passenger
carriers recognize that municipal commercial zones provide a safe
haven from federal safety regulations. These protected and
unregulated interstate bus operators perform identical service to
that of the regulated companies that provide bus service using
larger vehicles. The unregulated carriers are very aware of their
current exempt status. They have generally used large vans or mini-
buses with a seating capacity of fewer than 15 passengers to escape
compliance to Federal Motor Carrier Safety Regulations (FMCSRs).
(Manufacturers of these small buses routinely market the vehicles by
highlighting their regulation exempt status in their promotions.) In
the majority of instances, unregulated service providers operate out
of urban locations that fall within the commercial zone
classification. UMA does not consider this exemption to be fair or
equitable and believes that passenger safety is compromised.
    Consolidated Safety Services stated:
    During ten years of reviewing the level of compliance with
applicable regulations by companies offering passenger travel, we
have seen regulatory standards for non-CMV vehicle operations that
range from comprehensive to non-existent. We routinely see companies
who restrict equipment inventory for the sole purpose of avoiding
the costs and efforts associated with compliance with the FMCSRs.
Attitudes displayed towards safety in these instances are generally
very casual in nature and cause considerable concern. It should be
noted that we also see non-CMV carriers whose efforts to provide
safe transportation should be commended since they apply the
standards published in the FMCSRs even though not required.
    Greyhound stated:
    Commercial van interstate service has grown dramatically in
recent years. It is difficult to document the precise size of the
population of commercial vans or their growth because the federal
government historically has not regulated them and thus has not kept
statistics on them. However, reports of Greyhound managers
throughout the country have made it clear that commercial van
interstate service has grown significantly.
    In 1995, Greyhound documented that growth with a report focusing
on one city, Houston. That report, which was shared with DOT and
Congress, showed that there were literally dozens of operators
performing van and bus service from points in Mexico to destinations
throughout the United States. Some of the bus service was licensed
as ``charter and tour'' service and thus was regulated, but none of
the van service was, or is, subject to any federal safety
regulation.

    With regard to the impacts section 4008(a) of TEA-21 would have on
student transportation, the National School Transportation Association
(NSTA) stated:

[[Page 48513]]

    NSTA supports the proposal to revise the definition of
``commercial motor vehicle'' to include vehicles designed to
transport more than 8 passengers. NSTA has long held the position
that all school-age children deserve the highest standard of safety,
regardless of who owns the vehicle, who operates the vehicle, or how
many passengers the vehicle will seat. This proposal will bring all
vehicles operating in similar capacity under the same regulations.

    Among the State agencies that support the TEA-21 provision, the
Colorado Highway Patrol indicated there are safety benefits to
regulating smaller vehicles. The Colorado Highway Patrol stated:

    The Colorado State Patrol supports the revision which would
require a ``Commercial vehicle designed or used to transport more
than 8 passengers (including the driver) for compensation'' to be
subject to the FMCSR's with qualifications identified below. Most of
these vehicles were subject to regulation under the ICC prior to its
termination in 1995. Why should passenger carriers, subject to prior
regulation by the ICC, be released from regulatory requirements
under FHWA? In Colorado the Public Utilities Commission (COPUC)
already regulates for-hire passenger carriers (including taxi cabs).
This rule should not apply to private motor carrier of passengers
(PMCP), business and non-business, (as defined in 390.5).

FHWA Response to Comments

    The FHWA has considered all of the comments received in response to
the ANPRM and determined there is insufficient data concerning the
safety performance of motor carriers operating CMVs designed or used to
transport 9 to 15 passengers (including the driver) for compensation,
to justify making the FMCSRs applicable to them at this time.
Commenters to the docket have expressed opinions for and against
regulating operators of passenger-carrying vehicles designed to
transport 9 to 15 passengers (including the driver) but none of the
commenters have presented safety data that could be useful in deciding
whether to regulate such motor carriers. While the FHWA acknowledges
that there may be safety benefits to extending the applicability of the
FMCSRs to the operation of small passenger-carrying CMVs for
compensation, a mere assumption does not satisfy the agency's
obligation to quantify the benefits of rulemaking and to prove that the
benefits exceed the costs to the relevant segment of the industry and
U.S. consumers.

Safety Performance Data

    The FHWA is not aware of any accident databases that would enable
the agency to estimate the annual accident involvement of small
passenger-carrying vehicles, operated for compensation in interstate
commerce. The absence of such data makes it difficult to determine
whether the accident involvement of these vehicles warrants Federal
regulation. For example, the agency is unable to determine whether the
number of accidents for this population of CMVs suggests these vehicles
are over represented in crashes involving fatalities, injuries, or
disabling damage to one or more vehicles (i.e., whether the number of
accidents is greater than one would expect given the population of
vehicles), which in turn may be an indicator of problems with the
safety management controls for the motor carriers operating the
vehicles. Also, the FHWA does not have information that would enable
the agency to examine the causes of or contributing factors to
accidents these motor carriers are typically involved in to determine
which, if any, of the FMCSRs could have made a difference in the
outcome.
    The FHWA has reviewed information from the National Highway Traffic
Safety Administration's (NHTSA) Fatality Analysis Reporting System
(FARS) and General Estimates System (GES) and determined that there is
information concerning the accident involvement of the class of
vehicles covered by section 4008 of the TEA-21, but no practical means
to distinguish between accidents involving interstate motor carriers of
passengers (either private or for-hire) and those involving intrastate
motor carriers, or those involving commuter vanpools operated by
individuals and not in the furtherance of a commercial enterprise.
    The FHWA also searched for information from the National
Transportation Safety Board (NTSB) and the Customs Service--because
some commenters made reference to the operational safety of motor
carriers transporting passengers to and from Mexico--to better
understand safety issues concerning the operation of small passenger-
carrying vehicles. The NTSB has no published studies indicating a
safety problem with this population of motor carriers. The Customs
Service, while maintaining records on the number of vehicles crossing
the border, does not have information on either the actual number of
Mexican-owned CMVs that enter the U.S., or on how many of each type of
CMV enter the country. The Customs Service does not record information
on each vehicle, or whether the vehicle is operated by a U.S. or
foreign motor carrier. To further complicate matters, many vehicles
used in cross-border operations may go through customs more than once a
day. Also, the Customs Service does not collect CMV accident
statistics.
    The FHWA believes it is inappropriate to make the FMCSRs applicable
to the operation of small passenger-carrying vehicles unless there is
data to suggest operational safety problems.

Estimating the Population of Motor Carriers, Drivers, and Vehicles

    In addition to difficulties in evaluating the safety performance of
motor carriers operating small passenger-carrying vehicles, the FHWA
has limited information on the number of vehicles and drivers that
would be covered by the FMCSRs. The FHWA has reviewed its database of
for-hire motor carriers of passengers who have interstate operating
authority.
    Although TEA-21 did not define the term ``for compensation'' as
used in the amended definition of CMV, the FHWA has, for the purpose of
this rulemaking and analysis, focused on for-hire motor carriers of
passengers operating vehicles designed to transport less than 16
passengers, including the driver. These carriers are currently required
to obtain operating authority from the FHWA (49 CFR 365).
    As of April 1999, there are 1,636 for-hire motor carriers of
passengers with active authority. Each of these carriers has on file
with the FHWA proof of financial responsibility at the minimum level
required for the operation of vehicles designed to transport less than
16 passengers. This number does not include pending applications for
operating authority, passenger carriers shown as inactive because their
authority was revoked for failure to maintain evidence of the required
minimum levels of financial responsibility, or private motor carriers
of passengers. There is no indication that Congress intended the FHWA
to consider regulating private motor carriers of passengers (as defined
in 49 CFR 390.5) operating vehicles designed to transport less than 16
passengers so the agency has not made an effort to estimate the number
of such carriers.
    The FHWA has information on the number of for-hire motor carriers
of passengers who have complied with the operating authority
requirements, but the agency does not have data on the number of
drivers employed by these motor carriers. The FHWA cannot determine
what percentage of these drivers would meet the applicable requirements
of part 391 on driver qualifications or how their typical work
schedules would be disrupted by having to comply with part 395
concerning hours of service for drivers. Therefore,

[[Page 48514]]

the FHWA can estimate neither the costs nor the benefits of applying
the driver-related requirements of the FMCSRs to the vehicle operators
based on the information currently in its databases.
    In short, the FHWA believes the ITLA's estimates of the number of
small passenger-carrying vehicles (or their drivers) operating in
interstate commerce for compensation should be considered, but cannot
confirm the accuracy of those estimates. The FHWA cannot estimate with
certainty the regulatory burden associated with making parts 391, 395,
or 393 applicable to these drivers and CMVs. However, in a separate
rulemaking action published elsewhere in today's Federal Register, the
agency is proposing certain requirements to improve its ability to
gather data about the operators of small passenger-carrying vehicles.

Commercial Driver's License and Controlled Substances and Alcohol
Testing

    Many of the commenters, both for and against extending the
applicability of the FMCSRs to small passenger-carrying CMVs,
misconstrued section 4008 as mandating application of the CDL and
controlled substances and alcohol testing rules (parts 383 and 382,
respectively) to the drivers of such vehicles. Section 4008 does not
amend the CMV definition used for those programs (49 U.S.C. 31301).
Therefore, the potential benefits that some commenters argued would be
associated with imposing the CDL and controlled substances and alcohol
regulations can not be achieved. Conversely, commenters who argued
against adopting the amended CMV definition on the assumption that it
would make parts 382 and 383 applicable, thereby making it more
difficult to find vanpool drivers, were also mistaken. Furthermore,
since section 4008 is targeted at the operation of passenger-carrying
vehicles for compensation, vanpools would generally remain unregulated,
as explained below.

Applicability of Section 4008 to Vanpools

    The FHWA agrees with commenters that the agency should not make the
FMCSRs applicable to vanpools. The agency recognizes the importance of
vanpools in reducing traffic congestion and air pollution caused by
automobile emissions and agrees that having to comply with the FMCSRs
would increase the costs of operating vanpools and could make it more
difficult to get people to volunteer to drive vans. The FHWA does not
believe Congress intended the agency to regulate commuter vanpools. The
use of the phrase ``for compensation'' in section 4008 of TEA-21
suggests that the implementing regulations be limited to vans operated
in the furtherance of a commercial enterprise, which is generally not
the case for commuter vanpools. Certain vanpool services may, depending
on whether the FHWA regulates the operation of small passenger-carrying
vehicles and how the agency interprets or defines ``for compensation,''
be subject to the safety regulations. However, the agency does not
intend to regulate commuter vanpools that are not operated in the
furtherance of a commercial enterprise.
    The FHWA considers the phrase ``for compensation'' to be synonymous
with ``for hire.'' On April 4, 1997 (62 FR 16370), the FHWA published
Regulatory Guidance for the Federal Motor Carrier Safety Regulations.
Page 16407 of that notice includes an interpretation of ``for-hire
motor carrier.'' The guidance states:

    The FHWA has determined that any business (emphasis added)
entity that assesses a fee, monetary or otherwise, directly or
indirectly for the transportation of passengers is operating as a
for-hire carrier. Thus, the transportation for compensation in
interstate commerce of passengers by motor vehicles (except in six-
passenger taxicabs operating on fixed routes) in the following
operations would typically be subject to all parts of the FMCSRs,
including part 387: whitewater river rafters; hotel/motel shuttle
transporters; rental car shuttle services, etc. These are examples
of for-hire carriage because some fee is charged, usually indirectly
in a total package charge or other assessment for transportation
performed.

    The reference to six-passenger taxicabs operating on fixed routes
was included in the guidance because of the ICC Termination Act of 1995
(ICCTA) (Pub. L. 104-88, 109 Stat. 803, 919). The ICCTA amended the
statutory definition of a CMV prior to TEA-21, adding ``designed or
used to transport passengers for compensation, but exclud(es) vehicles
providing taxicab service and having a capacity of not more than 6
passengers and not operated on a regular route or between specified
places.'' The TEA-21 resulted in the removal of this clause from the
definition of CMV.
    The FHWA understands that passengers in many vanpools pay a monthly
fee to an individual, who either owns or leases the van. The FHWA does
not believe this is a business. The individual uses this money not as a
source of income or in the furtherance of a commercial enterprise, but
to pay for the van, insurance premiums, and maintenance. There may be
surplus funds each month that are put in reserve to cover unexpected
costs or losses of revenue during periods in which vanpool membership
decreases. The FHWA, however, does not believe that this type of
arrangement should be considered ``for compensation'' and does not
intend to regulate such operations. The agency requests comments on the
nature of these operations.

Minimum Levels of Driver Training and Testing

    Although numerous commenters argued against adopting the TEA-21
definition of CMV because they believe the FMCSRs require a minimum of
8 hours of driver training, a written test, and a road test, these
arguments are based upon a misunderstanding of the current safety
regulations, and an assumption that all driver-related FMCSRs would be
applicable to drivers of small passenger-carrying CMVs.
    If the FHWA made the FMCSRs applicable to drivers of small
passenger-carrying CMVs, the drivers of such vehicles would, unless an
exception were provided, be required to comply with all of the
provisions of part 391, Qualifications of Drivers. However, part 391
does not require that drivers of CMVs have 8 hours of training. Section
391.11 requires that drivers be capable of operating safely the CMV
they are assigned, and have a valid operator's license issued by only
one State or jurisdiction. The determination of the driver's ability
may be based upon experience, training, or both. The regulations do not
specify a minimum amount of training or experience.
    Section 391.11(b)(8) requires drivers to successfully complete a
road test, or present an operator's license (or a certificate of road
test) to the motor carrier for acceptance as equivalent to a road test.
Section 391.33, Equivalent of road test, allows motor carriers to
accept a CDL in lieu of administering a road test if the driver was
required to successfully complete a road test to obtain the license. If
the FHWA required drivers of small passenger-carrying vehicles to
comply with all the requirements of part 391, the agency could consider
allowing motor carriers to accept a license other than a CDL if that
license required a road test. Even if the agency required drivers to
take road tests, the regulatory burden would be minimal. The operating
characteristics of vehicles designed or used to transport 9 to 15
passengers, including the driver, are similar to vehicles most drivers
are capable of driving (i.e., vans, full-sized sport utility vehicles,
commuter vans), and the amount of time and effort needed to conduct the
road test (as

[[Page 48515]]

specified in Sec. 391.31) would not be unreasonable.
    With regard to a written test, the FHWA does not require that non-
CDL drivers be subjected to a written test. The FHWA rescinded the
written examination requirements of part 391 on November 23, 1994 (59
FR 60319).

Transportation of Children

    In response to commenters that believe the adoption of section 4008
would either enhance or reduce the transportation safety of school
children, the FHWA notes that the FMCSRs include exceptions for all
school bus operations (as defined in Sec. 390.5), and transportation
performed by the Federal government, a State, or any political
subdivision of a State (Sec. 390.3(f)(2)). School bus operation means
the use of a school bus to transport school children and/or school
personnel from home to school and from school to home. School bus is
defined (Sec. 390.5) as a passenger motor vehicle designed to carry
more than 10 passengers in addition to the driver, and used primarily
for school bus operations. School bus operations are not regulated by
the FHWA, even when such operations are conducted by a for-hire motor
carrier of passengers. Irrespective of the decision the FHWA ultimately
makes concerning the applicability of the TEA-21 definition to small
passenger CMVs, vans used to transport children to and from school
would not be regulated as a result of that rulemaking.

Applicability of Financial Responsibility and Operating Authority
Regulations

    In response to commenters who believe the FHWA should make the
financial responsibility (49 CFR 387) and operating authority (49 CFR
365) requirements applicable to the operators of small passenger-
carrying vehicles, it should be noted that these requirements are
already applicable to for-hire motor carriers of passengers operating
vehicles designed to transport less than 16 passengers, with certain
exceptions. The financial responsibility exceptions, however, cover
many of the operations of interest to commenters, e.g., school bus
operations and most vanpools (see Sec. 387.27(b)(1), (3) and (4)).
Since these exceptions are statutory (see 49 U.S.C. 31138(e)(1) and
(3)), the FHWA has no discretion to rescind them. Subpart B of part 387
requires a minimum of $1.5 million in public liability for the
operation of vehicles with a seating capacity of 15 passengers or less,
unless the vehicles fall into one of the exempt categories. Part 365
requires for-hire motor carriers to obtain operating authority and
subpart C of part 387 requires them to file proof of financial
responsibility.

FHWA Decision

    Given the statutory deadline of June 9, 1999, for deciding whether
to exempt the operation of small passenger-carrying CMVs from the
FMCSRs, the FHWA has decided that it is in the public interest
temporarily to limit the applicability of the FMCSRs to the motor
carrier operations covered prior to the enactment of TEA-21. The FHWA
has no useful data on the relative safety of small passenger CMVs. In
the absence of such data, the agency has no rational basis for
extending the FMCSRs to this class of vehicles.
    However, the FHWA believes that action must be taken to learn more
about the operational safety of motor carriers operating small
passenger vehicles for compensation. In a notice of proposed rulemaking
published elsewhere in today's Federal Register, the agency is
proposing that these motor carriers be required to complete a motor
carrier identification report (49 CFR 385.21), and comply with the
FHWA's CMV marking requirement (49 CFR 390.21) which would include
displaying a USDOT motor carrier identification number on all vehicles
designed to transport 9 to 15 passengers for compensation in interstate
commerce. The agency would also require that these motor carriers be
required to maintain an accident register (49 CFR 390.15).

Discussion of the Interim Final Rule

    The FHWA is amending the FMCSRs to adopt the revised statutory
definition of CMV provided by section 4008 of TEA-21. The FHWA is
revising its definition of CMV found at Sec. 390.5 and adding a new
paragraph (f)(6) to Sec. 390.3 giving operators of CMVs designed or
used to transport 9 to 15 passengers a six-month exemption from all of
the FMCSRs. The FHWA is exempting until March 6, 2000 the operation of
small passenger-carrying vehicles from all of the FMCSRs to allow time
for the completion of a separate rulemaking action published elsewhere
in today's Federal Register. As a result of this action, the
applicability of the FMCSRs will be the same as before the enactment of
TEA-21 until that date. Therefore, entities that were not subject to
the FMCSRs prior to the enactment of TEA-21 are not required to make
changes in their operations to comply with the safety regulations.
    The FHWA, however, is adopting the statutory changes to the
definition of CMV concerning the use of ``gross vehicle weight'' in
addition to ``gross vehicle weight rating,'' and ``designed or used''
to transport passengers instead of ``designed'' to transport
passengers.

Rulemaking Analysis and Notices

    Under the Administrative Procedure Act (APA) (5 U.S.C. 553(b)), an
agency may waive the normal notice and comment requirements if it
finds, for good cause, that they are impracticable, unnecessary, or
contrary to the public interest.
    In this case, notice and comment are unnecessary. The rule adopts
the statutory definition of a ``commercial motor vehicle'' and an
exemption for passenger vehicles with a capacity of 9 to 15, including
the driver, that are operated for compensation in interstate commerce.
Because this rule makes the applicability of the FMCSRs the same as
before the enactment of TEA-21, and codifies two minor TEA-21
amendments that eliminate jurisdictional loopholes from the CMV
definition, the FHWA finds good cause to waive prior notice and
comment. The current regulations were adopted through notice and
comment rulemaking and do not require further procedural review.
Nonetheless, the agency's August 5, 1998 ANPRM (63 FR 41766) sought
information from operators of small passenger vehicles and other
interested parties; the FHWA received more than 700 responses. As
explained in the preamble, the commenters were overwhelmingly opposed
to the application of the FMCSRs to these vehicles. The most
significant conclusion drawn from those comments, and from every other
source the agency consulted, is that accident data which would allow
the FHWA to determine the relative safety of small passenger CMVs, and
thus to perform an analysis of the costs and benefits of subjecting
them to the FMCSRs, is not currently available. The FHWA has therefore
decided that it could not, consistent with the requirements of the APA
and other laws, impose on small passenger CMVs the burdens of complying
with the FMCSRs. Because this final rule establishes an exception to
make the applicability of the FMCSRs the same as before the enactment
of TEA-21, and will remain in effect only for 6 months while the agency
solicits and evaluates comments on the companion NPRM published
elsewhere in today's issue of the Federal Register, the FHWA finds that
there is no need to publish this temporary measure for notice and
comment.
    As explained above, however, the FHWA also believes that operators
of these vehicles should be required to

[[Page 48516]]

keep accident registers and display a USDOT number. Since these changes
are substantive, the agency is publishing an NPRM on that subject
elsewhere in this issue of the Federal Register. Those proposals, if
adopted, would enable the agency to collect safety information specific
to small passenger CMVs. If the data demonstrate that a serious safety
problem exists, the FHWA could then propose to apply some or all of the
FMCSRs to passenger vehicles with a capacity of 9 to 15.
    Accordingly, the FHWA finds that there is good cause to waive prior
notice and comment for the limited reasons described above. For the
same reasons, the FHWA finds, pursuant to 5 U.S.C. 553(d)(3), that
there is good cause for making the interim final rule effective upon
publication. Comments received will be considered in evaluating whether
any changes to this interim final rule are required. All comments
received before the close of business on the comment closing date
indicated above will be considered and will be available for
examination in the docket at the above address. Comments received after
the comment closing date will be filed in the docket and will be
considered to the extent practicable. In addition to late comments, the
FHWA will also continue to file relevant information in the docket as
it becomes available after the comment period closing date, and
interested persons should continue to examine the docket for new
material.

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

    The FHWA has determined that this action is a significant
regulatory action within the meaning of Executive Order 12866 and
significant within the meaning of Department of Transportation
regulatory policies and procedures because of the substantial public
interest concerning the possible extension of the applicability of the
FMCSRs to a larger population of motor carrier operations. This interim
final rule exempts temporarily from the FMCSRs the operation of
vehicles designed or used to carry between 9 and 15 passengers
(including the driver), for compensation in interstate commerce. As a
result of this action, the applicability of the FMCSRs is changed to be
the same as before the enactment of section 4008. The FHWA is simply
establishing an exception until the agency has better information upon
which to make a determination of the costs and benefits. The agency is
not making any estimate of either the costs or benefits of either using
the statutory definition or exempting all, or some, of these
operations.

Regulatory Flexibility Act

    The FHWA has considered the effects of this regulatory action on
small entities and determined that this rule will not affect a
substantial number of small entities. The FHWA is revising its
regulatory definition of CMV, at 49 CFR 390.5, to be consistent with
the statute, but exempting temporarily the operation of small
passenger-carrying vehicles from all of the FMCSRs for six months to
allow the agency to complete a separate rulemaking action published
elsewhere in today's Federal Register. As a result of this action, the
applicability of the FMCSRs will be the same as before the enactment of
TEA-21. Entities that were not subject to the FMCSRs prior to the
enactment of TEA-21 are not required to make changes in their
operations to comply with the safety regulations. The FHWA, in
compliance with the Regulatory Flexibility Act (5 U.S.C. 601-612), has
considered the economic impacts of this rulemaking on small entities
and certifies that this rule will not have a significant economic
impact on a substantial number of small entities. The FHWA will
reexamine this certification after reviewing the comments to this rule
and the companion NPRM.

Executive Order 12612 (Federalism Assessment)

    This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that this rulemaking does not have sufficient Federalism implications
to warrant the preparation of a Federalism assessment. Nothing in this
document preempts any State law or regulation.

Executive Order 12372 (Intergovernmental Review)

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

Paperwork Reduction Act

    This action does not contain a collection of information
requirement for the purposes of the Paperwork Reduction Act of 1995 (44
U.S.C. 3501-3520).

National Environmental Policy Act

    The agency has analyzed this rulemaking for the purpose of the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
has determined that this action does not have any effect on the quality
of the environment.

Unfunded Mandates Reform Act

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

Regulation Identification Number

    A regulatory identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.

List of Subjects in 49 CFR Part 390

    Highway safety, Motor carriers, Motor vehicle identification and
marking, Reporting and record keeping requirements.

    Issued on: August 30, 1999.
Kenneth R. Wykle,
Federal Highway Administrator.

    In consideration of the foregoing, the FHWA amends title 49, Code
of Federal Regulations, chapter III, as follows:

PART 390--[AMENDED]

    1. The authority citation for part 390 continues to read as
follows:

    Authority: 49 U.S.C. 13301, 13902, 31132, 31133, 31136, 31502,
and 31504; sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C.
701 note); and 49 CFR 1.48.

    2. Amend Sec. 390.3 to revise paragraph (f)(5) by replacing the
period with a semicolon, and add paragraph (f)(6) to read as follows:

Sec. 390.3  General applicability.

* * * * *
    (f) Exceptions.
* * * * *
    (6) The operation of commercial motor vehicles designed to
transport less than 16 passengers (including the driver) until March 6,
2000.
    2. Amend Sec. 390.5 to revise the definition of ``commercial motor
vehicle'' to read as follows:

Sec. 390.5  Definitions.

* * * * *
    Commercial motor vehicle means any self-propelled or towed motor
vehicle

[[Page 48517]]

used on a highway in interstate commerce to transport passengers or
property when the vehicle--
    (1) Has a gross vehicle weight rating or gross combination weight
rating, or gross vehicle weight or gross combination weight, of 4,536
kg (10,001 pounds) or more, whichever is greater; or
    (2) Is designed or used to transport more than 8 passengers
(including the driver) for compensation; or
    (3) Is designed or used to transport more than 15 passengers,
including the driver, and is not used to transport passengers for
compensation; or
    (4) Is used in transporting material found by the Secretary of
Transportation to be hazardous under 49 U.S.C. 5103 and transported in
a quantity requiring placarding under regulations prescribed by the
Secretary under 49 CFR, subtitle B, chapter I, subchapter C.

[FR Doc. 99-23026 Filed 9-2-99; 8:45 am]
BILLING CODE 4910-22-P