13984 Federal Register / Vol. 89, No. 38 / Monday, February 26, 2024 / Rules and Regulations 

ambiguity and be written to minimize 

litigation; and 

(b) Meets the criteria of section 3(b)(2) 

requiring that all regulations be written 

in clear language and contain clear legal 

standards. 

I. Consultation With Indian Tribes (E.O. 

13175 and Departmental Policy) 

The Department of the Interior strives 

to strengthen its government-togovernment relationship with Indian 

Tribes through a commitment to 

consultation with Indian Tribes and 

recognition of their right to selfgovernance and tribal sovereignty. We 

have evaluated this rule under the 

Department’s consultation policy and 

under the criteria in E.O. 13175 and 

have determined that it has no 

substantial direct effects on federally 

recognized Indian Tribes and that 

consultation under the Department’s 

Tribal consultation policy is not 

required. 

J. Paperwork Reduction Act 

This rule does not contain 

information collection requirements, 

and a submission to OMB under the 

Paperwork Reduction Act (44 U.S.C. 

3501 et seq.) is not required. We may 

not conduct or sponsor, and you are not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

K. National Environmental Policy Act 

(NEPA) 

This rule does not constitute a major 

federal action because of the nondiscretionary nature of the civil penalty 

adjustment as required by law (see 40 

CFR 1508.1(q)(1)(ii)). The Department of 

Labor’s Consumer Price Index sets the 

amount of the annual civil penalty 

adjustment to account for inflation as 

required by the Federal Civil Penalties 

Inflation Adjustment Act Improvements 

Act of 2015. Accordingly, BLM has no 

discretion in the execution of the civil 

penalty adjustments. Even if this were a 

discretionary action, which it is not, a 

detailed statement under NEPA would 

also not be required because, as a 

regulation of an administrative nature, 

this rule would otherwise be covered by 

a categorical exclusion. See 43 CFR 

46.210(i). BLM has determined that the 

rule does not implicate any of the 

extraordinary circumstances listed in 43 

CFR 46.215 that would prevent reliance 

on the categorical exclusion. Because 

this rule is not a major federal action, it 

is therefore not subject to the 

requirements of NEPA. 

L. Effects on the Energy Supply (E.O. 

13211) 

This rule is not a significant energy 

action under the definition in E.O. 

13211. Therefore, a Statement of Energy 

Effects is not required. 

List of Subjects 

43 CFR Part 3160 

Administrative practice and 

procedure; Government contracts; 

Indians—lands; Mineral royalties; Oil 

and gas exploration; Penalties; Public 

lands—mineral resources; Reporting 

and recordkeeping requirements. 

43 CFR Part 9230 

Penalties, Public lands. 

For the reasons given in the preamble, 

the BLM amends Chapter II of Title 43 

of the Code of Federal Regulations as 

follows: 

PART 3160—ONSHORE OIL AND GAS 

OPERATIONS 

■ 1. The authority citation for part 3160 

continues to read as follows: 

Authority: 25 U.S.C. 396d and 2107; 30 

U.S.C. 189, 306, 359, and 1751; 43 U.S.C. 

1732(b), 1733, 1740; and Sec. 107, Pub. L. 

114–74, 129 Stat. 599, unless otherwise 

noted. 

Subpart 3163—Noncompliance, 

Assessments, and Penalties 

§ 3163.2 [Amended] 

■ 2. In § 3163.2: 

■ a. In paragraphs (b)(1) and (d), remove 

‘‘$1,291’’ and add in its place ‘‘$1,333’’. 

■ b. In paragraph (b)(2), remove 

‘‘$12,924’’ and add in its place 

‘‘$13,343’’. 

■ c. In paragraph (e) introductory text, 

remove ‘‘$25,847’’ and add in its place 

‘‘$26,685’’. 

■ d. In paragraph (f) introductory text, 

remove ‘‘$64,618’’ and add in its place 

‘‘$66,712’’. 

PART 9230—TRESPASS 

■ 3.The authority citation for part 9230 

continues to read as follows: 

Authority: R.S. 2478; 43 U.S.C. 1201. 

Subpart 9239—Kinds of Trespass 

§ 9239.5–3 [Amended] 

■ 4. In § 9239.5–3(f)(1), remove 

‘‘$4,838’’ and add in its place ‘‘$4,995’’. 

This action by the Principal Deputy 

Assistant Secretary is taken pursuant to 

an existing delegation of authority. 

Steven H. Feldgus, 

Principal Deputy Assistant Secretary, Land 

and Minerals Management. 

[FR Doc. 2024–03842 Filed 2–23–24; 8:45 am] 

BILLING CODE 4331–29–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Part 372 

[Docket No. FMCSA–2023–0007] 

RIN 2126–AC57 

Exemption From Operating Authority 

Regulations for Providers of 

Recreational Activities 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), Department 

of Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: FMCSA amends its 

regulations to implement the statutory 

exemption from its operating authority 

registration requirements for providers 

of recreational activities. The exemption 

applies to motor carriers operating a 

motor vehicle designed or used to 

transport between 9 and 15 passengers 

(including the driver), whether operated 

alone or with a trailer attached to the 

transport vehicle, if the motor vehicle is 

operated by a person that provides 

recreational activities within a 150 airmile radius of the location at which 

passengers initially boarded the motor 

vehicle at the beginning of the trip. 

FMCSA also defines recreational 

activities to clarify the exemption, 

adopting, in response to a comment, a 

definition modified from that proposed 

in the notice of proposed rulemaking 

(NPRM). 

DATES: This final rule is effective April 

26, 2024. 

Petitions for Reconsideration of this 

final rule must be submitted to the 

FMCSA Administrator no later than 

March 27, 2024. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Antonio Harris, Registration, Licensing 

and Insurance Division, Office of 

Research and Registration, FMCSA, 

1200 New Jersey Avenue SE, 

Washington, DC 20590–0001; (202) 366– 

2964; antonio.harris@dot.gov. If you 

have questions on viewing or submitting 

material to the docket, call Dockets 

Operations at (202) 366–9826. 


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Federal Register / Vol. 89, No. 38 / Monday, February 26, 2024 / Rules and Regulations 13985 

1While the statute refers to a ‘‘person,’’ that term 

can refer both to an individual or to a motor carrier 

under the definitions of that term in 49 U.S.C. 

13102(18) and 1 U.S.C. 1. 

SUPPLEMENTARY INFORMATION: FMCSA 

organizes this final rule as follows: 

I. Availability of Rulemaking Documents 

II. Executive Summary 

A. Purpose and Summary of the Regulatory 

Action 

B. Costs and Benefits 

III. Abbreviations 

IV. Legal Basis 

V. Discussion of Proposed Rulemaking and 

Comments 

A. Proposed Rulemaking 

B. Comments and Responses 

VI. Changes From the NPRM 

VII. Severability 

VIII. Section-by-Section Analysis 

IX. Regulatory Analyses 

A. E.O. 12866 (Regulatory Planning and 

Review), E.O. 13563 (Improving 

Regulation and Regulatory Review), E.O. 

14094 (Modernizing Regulatory Review), 

and DOT Regulatory Policies and 

Procedures 

B. Congressional Review Act 

C. Regulatory Flexibility Act 

D. Assistance for Small Entities 

E. Unfunded Mandates Reform Act of 1995 

F. Paperwork Reduction Act 

G. E.O. 13132 (Federalism) 

H. Privacy 

I. E.O. 13175 (Indian Tribal Governments) 

J. National Environmental Policy Act of 

1969 

I. Availability of Rulemaking 

Documents 

To view any documents mentioned as 

being available in the docket, go to 

https://www.regulations.gov/docket/ 

FMCSA-2023-0007/document and 

choose the document to review. To view 

comments, click this final rule, then 

click ‘‘Browse Comments.’’ If you do not 

have access to the internet, you may 

view the docket online by visiting 

Dockets Operations at U.S. Department 

of Transportation, 1200 New Jersey 

Avenue SE, Washington, DC 20590– 

0001, between 9 a.m. and 5 p.m., 

Monday through Friday, except Federal 

holidays. To be sure someone is there to 

help you, please call (202) 366–9317 or 

(202) 366–9826 before visiting Dockets 

Operations. 

II. Executive Summary 

A. Purpose and Summary of the 

Regulatory Action 

Section 23012 of the Infrastructure 

Investment and Jobs Act (IIJA) (Pub. L. 

117–58, 135 Stat. 429 (H.R. 3684, Nov. 

15, 2021)) amended 49 United States 

Code (U.S.C.) 13506 by adding, in 

paragraph (b)(4), a new exemption from 

FMCSA’s operating authority 

registration requirements. FMCSA adds 

new regulatory text implementing this 

statutory exemption. The exemption 

from operating authority registration 

applies to motor carriers operating a 

motor vehicle designed or used to 

transport between 9 and 15 passengers 

(including the driver), whether operated 

alone or with a trailer attached to the 

transport vehicle, if the motor vehicle is 

operated by a person 1 that provides 

recreational activities and the 

transportation is provided within a 150 

air-mile radius of the location at which 

passengers initially boarded the motor 

vehicle at the outset of the trip. 

FMCSA also defines recreational 

activities to clarify the exemption. The 

statute, which requires that the motor 

vehicle be operated ‘‘by a person that 

provides recreational activities,’’ does 

not define recreational activities. The 

Agency’s definition clarifies the types of 

recreational activities FMCSA has 

determined would qualify for the 

exemption in 49 U.S.C. 13506(b)(4). 

FMCSA adopts a definition of 

recreational activities consistent with 

the activities that Congress outlined in 

another section of the IIJA that uses this 

term. Section 11512 of the IIJA provided 

examples of ‘‘groups representing 

recreational activities and interests’’ in 

subsection (c)(4) which provided some 

insight as to legislative intent for the 

term recreational activities in section 

23012. The definition FMCSA adopts in 

implementing section 23012 includes 

activities Congress mentions in section 

11512 and also describes activities that 

fall outside the intended scope of the 

term. This language is intended to 

illustrate which activities are within the 

exemption, based on the intent of 

Congress, and to allow sufficient 

flexibility for analysis of the term’s 

applicability to activities not specified 

in the regulation. 

B. Costs and Benefits 

The cost savings associated with this 

rulemaking include changes in 

paperwork, fees, and insurance costs 

associated with maintaining for-hire 

operating authority. Because there is no 

pre-existing definition of recreational 

activities, motor carriers previously may 

have been interpreting their eligibility 

for the operating authority exemption in 

varying ways. Through this rulemaking, 

there will be increased costs for motor 

carriers that inappropriately interpreted 

their eligibility for the exemption, and 

decreased costs for those carriers that 

now have clear regulatory language to 

support use of the exemption. The 

differing interpretations by regulated 

entities and enforcement officials may 

have hindered consistent enforcement 

practices, thereby impacting businessrelated decisions in providing 

transportation for recreational activities. 

The clarification in this rule may 

resolve possible information asymmetry 

and enforcement differences by creating 

a common understanding between 

FMCSA and motor carriers. Because this 

rule may also lead to an increase in 

exemption use, it will benefit carriers by 

improving the efficiency of their 

business operations and increase both 

consumer and producer surplus. 

III. Abbreviations 

AOA America Outdoors Association 

AWM AWM Associates, LLC 

BEA Bureau of Economic Analysis 

BLS Bureau of Labor Statistics 

CE Categorical Exclusion 

CFR Code of Federal Regulations 

DOL U.S. Department of Labor 

DOT Department of Transportation 

E.O. Executive Order 

FMCSA Federal Motor Carrier Safety 

Administration 

FMCSRs Federal Motor Carrier Safety 

Regulations 

FR Federal Register 

FRFA Final Regulatory Flexibility Analysis 

GDP Gross Domestic Product 

ICR Information Collection Request 

IRFA Initial Regulatory Flexibility Analysis 

IIJA Infrastructure Investment and Jobs Act 

MCMIS Motor Carrier Management 

Information System 

NAICS North American Industry 

Classification System 

NAMIC National Association of Mutual 

Insurance Companies 

NPRM Notice of Proposed Rulemaking 

OEWS Occupational Employment and 

Wage Statistics 

OMB Office of Management and Budget 

PIA Privacy Impact Assessment 

PTA Privacy Threshold Assessment 

RIA Regulatory Impact Analysis 

Secretary The Secretary of the Department 

of Transportation 

SBA Small Business Administration 

UMRA Unfunded Mandates Reform Act of 

1995 

URS Unified Registration System 

U.S.C. United States Code 

USDOT United States Department of 

Transportation 

Vehicle Associations Motorcycle Industry 

Council, Specialty Vehicle Institute of 

America, and Recreational Off-Highway 

Vehicle Association 

IV. Legal Basis 

Section 23012 of the IIJA amended 49 

U.S.C. 13506 by adding a new 

exemption from the requirement to 

obtain operating authority registration 

for ‘‘providers of recreational activities’’ 

operating passenger vehicles designed 

or used to transport between 9 and 15 

passengers (including the driver) (see 49 

U.S.C. 13506(b)(4)). The statute, which 

requires that the motor vehicle be 

operated ‘‘by a person that provides 

recreational activities,’’ does not define 


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13986 Federal Register / Vol. 89, No. 38 / Monday, February 26, 2024 / Rules and Regulations 

2Absent an exemption, the Secretary has 

jurisdiction over transportation by motor carrier 

and the procurement of that transportation, to the 

extent that passengers, property, or both, are 

transported by motor carrier in interstate commerce 

(49 U.S.C. 13501). This authority has been 

delegated to the FMCSA Administrator under 49 

CFR 1.87(a)(3). 

3AOA’s comment was submitted in response to 

DOT’s Notice of Review of Guidance, 84 FR 1820, 

Feb. 5, 2019. 

recreational activities. This final rule 

defines recreational activities to clarify 

the exemption’s applicability. 

Under Title 49, Code of Federal 

Regulations (CFR) 1.87(a)(5), the 

authority of the Secretary of the 

Department of Transportation (the 

Secretary) to carry out the functions 

relating to the registration requirements 

in 49 U.S.C. 13901 and 13902 is 

delegated to the FMCSA Administrator. 

Sections 13901 and 13902 generally 

require that any person wishing to 

provide transportation subject to 

jurisdiction under subchapter I of 

chapter 135 2 must be registered as a 

motor carrier, defined in 49 U.S.C. 

13102(14) as ‘‘a person providing motor 

vehicle transportation for 

compensation.’’ The requirements of 

these sections, which are enforced 

under § 392.9a (‘‘Operating authority’’), 

are the basis for the rules governing 

applications for operating authority 

registration in 49 CFR part 365. 

Under 49 CFR 1.87(a)(3), the authority 

of the Secretary to carry out the 

functions related to the jurisdiction 

requirements in 49 U.S.C. 13506 is 

delegated to the FMCSA Administrator. 

Section 13506 provides miscellaneous 

motor carrier transportation exemptions, 

including the exemption from operating 

authority for providers of recreational 

activities added by the IIJA. The 

statutory exemption provided in section 

13506 provides the basis for the 

regulatory exemption added under this 

rule in 49 CFR 372.113, including the 

definition of recreational activities 

added to 49 CFR 372.107. 

V. Discussion of Proposed Rulemaking 

and Comments 

A. Proposed Rulemaking 

On June 21, 2023, FMCSA published 

in the Federal Register (Docket No. 

FMCSA–2023–0007, 88 FR 40146) an 

NPRM titled ‘‘Exemption from 

Operating Authority Regulations for 

Providers of Recreational Activities.’’ 

The NPRM proposed a new § 372.113 

that outlines the exemption from 

operating authority registration for 

providers of recreational activities in 49 

U.S.C. 13506(b)(4). This new section 

would reflect the statutory language and 

incorporate the exemption into the 

FMCSRs. The NPRM also proposed 

adding a definition of recreational 

activities to § 372.107 which would 

provide a clear description of the types 

of activities that qualify for the 

exemption in 49 U.S.C. 13506(b)(4). The 

proposed definition set out the meaning 

of recreational activities, provided a 

non-exhaustive list of included 

activities, and identified two types of 

excluded activities. The NPRM asked 

for comments addressing whether the 

last part of the definition, excluding 

certain types of activities, should be 

retained or removed. 

B. Comments and Responses 

FMCSA solicited comments 

concerning the NPRM for 60 days 

ending August 21, 2023, and by that 

date four comments were received. 

AWM Associates, LLC (AWM), the 

National Association of Mutual 

Insurance Companies (NAMIC), and a 

private citizen each submitted a 

comment, and a joint comment was 

submitted by the Motorcycle Industry 

Council, Specialty Vehicle Institute of 

America, and Recreational Off-Highway 

Vehicle Association (the ‘‘Vehicle 

Associations’’). 

FMCSA did not receive any 

comments regarding the portion of the 

recreational activities definition that 

excludes certain types of activities. The 

exclusions are provided to clarify that 

certain activities are exempt activities 

where the service provided by the motor 

carriers mainly focuses on 

transportation from one location to 

another. In such cases, the motor 

carrier’s business is in fact selling 

transportation—not providing 

recreational activities. FMCSA has 

received inquiries illustrative of these 

types of activities. For example, a bus 

company offering scheduled route 

service with multiple stops would not 

fall within the exemption merely 

because one of the scheduled stops was 

at or near a water park or a horseback 

riding stable. Likewise, motor carriers 

that advertise and provide alcohol, 

music, or other ‘‘party’’ activities on 

board the vehicle as the principal 

activity or purpose of the transportation 

would not be eligible for the exemption. 

In these situations, the activity cannot 

be completed and has no purpose 

without the transportation. The 

transportation in such circumstances is 

integral to the activities, rather than 

incidental. Accordingly, the definition 

in § 372.107 explicitly excludes any 

activity: (1) for which the activity 

offered or sold is occurring 

simultaneously with the transportation; 

or (2) for which the transportation is the 

primary service offered for sale. 

AWM 

Comment: AWM objected to the 

creation of an exemption from the 

operating authority registration rules for 

providers of recreational activities and 

questioned whether the cost of 

compliance for providers of recreational 

activities under the current regulations 

is burdensome. Going beyond the 

exemption at issue, AWM stated that the 

FMCSRs are unclear regarding which 

motor carriers are required to apply for 

operating authority under part 365. 

AWM also questioned whether the 

providers of recreational activities 

would be required to obtain operating 

authority under part 365. 

Response: The exemption being 

added to § 372.113 simply reflects the 

statutory language in 49 U.S.C. 

13506(b)(4) that is currently in effect 

and incorporates the statutory 

exemption from operating authority 

registration into the FMCSRs for 

convenient reference. FMCSA is not 

determining through this rulemaking 

whether there should be an exemption 

from the operating authority registration 

rules for providers of recreational 

activities; that decision was made by 

Congress when it passed the IIJA which 

created a statutory exemption. FMCSA’s 

role in this rulemaking is to define the 

term recreational activities and consider 

the regulatory and economic impacts of 

clarifying the definition. The Agency 

considers the objection to the creation of 

the exemption outside the scope of the 

rule and declines to make any changes 

to the rule based on it. 

AWM’s comment questions whether 

the cost of obtaining and maintaining 

operating authority is burdensome, and 

it critiques portions of the comment 

from the America Outdoors Association 

(AOA) relating to this issue. The AOA 

comment, which relates to operating 

authority for recreational activity 

providers, predates both the IIJA and 

this rule, and AOA submitted it in 

response to a DOT notice requesting that 

the public identify and provide input on 

the Department’s existing guidance 

documents that are good candidates for 

repeal, replacement, or modification.3

The Agency added AOA’s comment to 

the docket for this rulemaking and cited 

it in the NPRM in support of its 

proposed definition of the term 

recreational activities. However, the 

Agency did not rely on AOA’s comment 

in the regulatory impact analysis (RIA). 

The Agency’s analysis accounts for the 

impact of the statutory exemption, 

which was enacted after AOA’s 


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Federal Register / Vol. 89, No. 38 / Monday, February 26, 2024 / Rules and Regulations 13987 

4Further explanation of the regulations 

applicable to passenger motor carriers is provided 

in Appendix A to Part 390—Applicability of the 

Registration, Financial Responsibility, and Safety 

Regulations to Motor Carriers of Passengers. 

5Whether a motor carrier eligible for the 

operating authority exemption in this rule sees an 

impact to their insurance costs as a result of this 

rule depends on a number of factors: (1) whether 

the motor carrier operates year-round, (2) whether 

they operate only seasonally, but maintain yearround insurance coverage to satisfy other Federal or 

State requirements, or (3) whether they are already 

using the statutory operating authority exemption. 

Although the exemption in this rule will not impact 

the insurance costs for all carriers, they may realize 

other benefits such as administrative cost savings, 

as described elsewhere in the rule. 

comment was submitted to FMCSA. The 

Agency’s RIA considers the impact of 

codifying and clarifying the statutory 

exemption currently in effect, whereas 

AWM’s comment is directed towards 

AOA’s comments on cost and the 

impact of establishing the exemption as 

an initial matter. Therefore, the Agency 

considers this portion of AWM’s 

comment outside the scope of the rule 

and declines to make any changes to the 

rule based on it. 

Regarding the applicability of 

operating authority requirements in part 

365, 49 U.S.C. 13901 and 13902 

generally require that any person that 

wishes to provide transportation subject 

to jurisdiction under subchapter I of 

chapter 135 be registered as a motor 

carrier, defined in 49 U.S.C. 13102(14) 

as ‘‘a person providing motor vehicle 

transportation for compensation.’’ The 

requirements of these sections, which 

are enforced under § 392.9a (‘‘Operating 

authority’’), are the basis for the rules 

governing applications for operating 

authority registration in 49 CFR part 

365. Part 365 states that the rules 

governing applications for operating 

authority apply to motor carriers of 

property or passengers.4 Congress 

established the operating authority 

registration exemption for providers of 

recreational activities carrying 9 to 15 

passengers when it passed the IIJA. This 

rulemaking seeks only to clarify the 

statutory exemption by defining the 

term recreational activities. This 

rulemaking does not make any changes 

to the operating authority provisions in 

49 CFR part 365. The Agency considers 

this portion of AWM’s comment outside 

the scope of the rule and declines to 

change the rule based on it. 

The Vehicle Associations 

Comment: The Vehicle Associations 

generally supported the proposed 

exemption but proposed a modification 

to the definition of recreational 

activities. They proposed modifying the 

definition to state that recreational 

activities means motorized and nonmotorized activities, and to add offhighway vehicle driving and riding to 

the list of activities expressly included. 

The Vehicle Associations stated that 

this modification is supported by the 

inclusion of off-highway motorcycling, 

all-terrain vehicles, and other off-road 

motorized vehicle activities in section 

11512 of the IIJA, which is the IIJA 

section the Agency cited in the NPRM 

in support of the proposed definition. 

The Vehicle Associations also stated 

that the modified definition would be 

consistent with recreation-related terms 

defined elsewhere in Federal statute, as 

well as lists of recreational activities 

provided as examples by Federal land 

management agencies. 

Response: The Agency adopts the 

Vehicle Associations’ proposed 

modification in part. The Agency agrees 

that adding ‘‘off-highway vehicle 

driving and riding’’ to the nonexhaustive list of covered activities will 

help clarify the exemption. As the 

Vehicle Associations note, inclusion of 

these activities is supported by the list 

of recreational activities in section 

11512 of the IIJA. Although that section 

appears in a separate division and title 

of the IIJA from the motor carrier safety 

provisions in Division B, Title III, and 

does not conclusively define the scope 

of the exemption in section 23012, it 

does provide some insight into the 

legislative intent, as explained in the 

NPRM. The Agency adopts the addition 

of ‘‘off-highway vehicle driving and 

riding’’ to align with that intent. The 

Agency considers the other part of the 

proposed modification, the addition of 

the phrase ‘‘motorized and nonmotorized,’’ unnecessary and declines 

to adopt it. 

NAMIC 

Comment: NAMIC raised a concern 

that ‘‘expanding eligibility for an 

exemption from federal requirements for 

insurance coverage . . . could create 

confusion for policyholders and may 

not be administratively possible for 

insurers.’’ NAMIC raised a further 

concern that differing State and Federal 

requirements for insurance coverage risk 

confusion and underinsurance among 

motor carriers. NAMIC suggested further 

investigation into the availability of 

‘‘coverage on a monthly basis and for 

which coverage can be stopped and 

started at reasonable notice periods,’’ 

and whether ‘‘states will permit similar 

staggering of insurance coverage for 

such vehicles.’’ 

Response: As explained in response to 

AWM’s comment, this rule codifies and 

clarifies in the CFR an existing statutory 

exemption from operating authority 

requirements. Although operating 

authority is linked to insurance through 

financial responsibility requirements, 

this rule does not create or expand any 

exemption to Federal insurance 

requirements more broadly because 

motor carriers eligible for the operating 

authority exemption may still be 

required to maintain financial 

responsibility under other regulations in 

the FMCSRs (see, e.g., 49 CFR 

387.31(a)). The Agency declines to make 

any changes to the final rule based on 

NAMIC’s concern regarding expansion 

of an exemption from Federal insurance 

requirements. 

Regarding potential confusion with 

State insurance requirements, the 

Agency believes this rule will alleviate 

confusion. The rule provides a 

definition for recreational activities, 

consistent with the Agency’s 

understanding of congressional intent 

when establishing the exemption, to 

create a common understanding among 

motor carriers and enforcement officials 

about the exemption. The rule should 

clarify the Federal requirements and has 

no impact on the applicable State 

requirements. The Agency disagrees that 

the rule increases the risk of confusion 

as compared to the statutory exemption 

in 49 U.S.C. 13506(b)(4) standing alone, 

and it declines to make any changes to 

the exemption based on NAMIC’s 

comment. State insurance requirements 

are relevant to two scenarios in the RIA, 

because a seasonal motor carrier eligible 

for the exemption may still have to carry 

insurance in the off-season to satisfy 

State requirements, depending on its 

particular circumstances. The Agency 

has added a statement in the RIA to 

clarify that cost impacts will vary 

depending on State insurance coverage 

requirements. 

Whether certain insurance policies 

are available to motor carriers providing 

recreational activities eligible for the 

operating authority exemption, where 

such policies offer cost savings to the 

motor carriers due to the exemption, is 

a separate concern from the 

applicability of the exemption. 

Changing the extent of the exemption is 

outside the Agency’s authority, and the 

Agency declines to make any changes to 

the exemption based on this portion of 

NAMIC’s comment but does consider it 

in relation to the RIA for the rule. 

In the NPRM, the Agency’s RIA 

included an estimate of potential 

insurance cost savings, among other 

potential cost savings, for eligible motor 

carriers.5 The Agency requested 

comments on its estimates of liability 

insurance costs and the administrative 

costs of researching liability insurance 

or other financial responsibility options, 


khammond on DSKJM1Z7X2PROD with RULES
13988 Federal Register / Vol. 89, No. 38 / Monday, February 26, 2024 / Rules and Regulations 

6For example, Progressive offers policyholders 

the option to adjust coverage based on seasonal 

changes (Progressive Commercial Auto Insurance, 

available at https://www.progressivecommercial.

com/commercial-auto-insurance/ (accessed Sept. 

20, 2023)). 

but the Agency did not receive any 

comments on this issue. NAMIC 

suggested further research into the 

availability of monthly insurance 

coverage options for exemption-eligible 

motor carriers, but otherwise the 

Agency did not receive any data or other 

information regarding its insurance cost 

estimates. 

Based on the information gathered 

and the Agency’s experience 

administering the relevant regulations, 

FMCSA believes it is possible for a 

motor carrier providing recreational 

activities on a seasonal basis to carry an 

insurance policy during its operating 

season, terminate the policy at the end 

of the season, and obtain a new policy 

at the beginning of its next operating 

season.6 The NPRM RIA used the 

forgone insurance premiums in the 

offseason as an estimate of insurance 

cost savings for motor carriers in this 

scenario. The Agency maintains that 

this method provides a reasonable 

estimate of the potential insurance cost 

savings, even though the actual 

insurance cost savings realized by motor 

carriers in this scenario may differ 

depending on their specific insurer, 

policy, location, and other particular 

circumstances. The Agency has added a 

statement in the RIA to clarify that cost 

impacts will vary depending on State 

insurance coverage requirements and 

has removed quantified estimates of 

insurance cost savings. For further 

assumptions made on insurance 

coverage, refer to the section labeled 

‘‘Insurance’’ in the RIA. 

Comments Outside the Scope of the 

Rulemaking 

Comment: A private citizen objected 

to the creation of an exemption from the 

operating authority registration rules for 

providers of recreational activities. 

Response: As explained in response to 

AWM’s comment, the exemption that is 

being added to § 372.113 reflects the 

statutory language in 49 U.S.C. 

13506(b)(4) and incorporates the 

statutory exemption into the FMCSRs. 

FMCSA is not determining through this 

rulemaking whether there should be an 

exemption from the operating authority 

registration rules for providers of 

recreational activities. The Agency 

considers this comment outside the 

scope of the rule and declines to make 

any changes to the rule based on it. 

VI. Changes From the NPRM 

In response to a comment, FMCSA is 

changing the definition of recreational 

activities in this final rule from that 

proposed in the NPRM. The Agency is 

modifying the definition of recreational 

activities in § 372.107 to include offhighway vehicle driving and riding in 

the non-exhaustive list of activities 

provided as examples within the 

definition. The Agency is also making a 

grammatical change to the last sentence 

of the definition to give the numbered 

clauses parallel structure. 

VII. Severability 

Congress created an exemption from 

FMCSA’s operating authority 

registration rules for ‘‘providers of 

recreational activities.’’ (49 U.S.C. 

13506(b)(4)). This final rule adds new 

regulatory text implementing this 

statutory exemption and defines the 

term recreational activities. This final 

rule is meant to operate holistically in 

addressing a range of issues necessary to 

ensure the implementation of the 

exemption. However, FMCSA 

recognizes that certain provisions focus 

on unique topics. Therefore, FMCSA 

finds that the various provisions within 

this rule are severable and able to 

operate functionally if one or more 

provisions were rendered null or 

otherwise eliminated. The remaining 

provision or provisions within the rule 

will continue to operate functionally if 

any one or more provisions were 

invalidated and any other provision(s) 

remained. In the event a court were to 

invalidate one or more of this final 

rule’s unique provisions, the remaining 

provisions should stand, thus allowing 

this congressionally mandated 

exemption to continue to operate. 

VIII. Section-by-Section Analysis 

This section-by-section analysis 

describes the proposed changes in 

numerical order. 

Section 372.107 Definitions 

As proposed in the NPRM, FMCSA 

adds a new paragraph (i), which defines 

recreational activities. 

Section 372.113 Providers of 

Recreational Activities 

As proposed in the NPRM, FMCSA 

adds a new § 372.113 to subpart A of 49 

CFR 372. This new section outlines the 

exemption from operating authority 

registration in 49 U.S.C. 13506(b)(4). 

IX. Regulatory Analyses 

A. Executive Order (E.O.) 12866 

(Regulatory Planning and Review), E.O. 

13563 (Improving Regulation and 

Regulatory Review), E.O. 14094 

(Modernizing Regulatory Review), and 

DOT Regulatory Policies and Procedures 

FMCSA has considered the impact of 

this final rule under E.O. 12866 (58 FR 

51735, Oct. 4, 1993), Regulatory 

Planning and Review, E.O. 13563 (76 FR 

3821, Jan. 21, 2011), Improving 

Regulation and Regulatory Review, and 

E.O. 14094 (88 FR 21879, Apr. 11, 

2023), Modernizing Regulatory Review. 

The Office of Information and 

Regulatory Affairs within the Office of 

Management and Budget (OMB) 

determined that this final rule is not a 

significant regulatory action under 

section 3(f) of E.O. 12866, as 

supplemented by E.O. 13563, and does 

not require an assessment of potential 

costs and benefits under section 6(a)(3) 

of that order. Accordingly, OMB has not 

reviewed it under that E.O. 

Purpose 

This final rule codifies the exemption 

for providers of recreational activities in 

regulation and defines recreational 

activities to clarify this exemption by 

providing a clear description of what 

types of recreational activities do and do 

not qualify for the exemption in 49 

U.S.C. 13506(b)(4). This ensures that 

providers of recreational activities are 

aware of their eligibility for the 

exemption from filing for operating 

authority that FMCSA is adding in new 

§ 372.113. Specifically, this rule affects 

motor carriers operating a motor vehicle 

designed or used to transport between 9 

and 15 passengers (including the 

driver), whether operated alone or with 

a trailer attached to the transport 

vehicle, if the motor vehicle is operated 

by a person that provides recreational 

activities and the transportation is 

provided within a 150 air-mile radius of 

the location at which passengers 

initially boarded the motor vehicle at 

the outset of the trip. 

This rule provides clarity to both 

motor carriers and enforcement officials 

regarding which carriers qualify for the 

new exemption in section 23012 of the 

IIJA as of November 15, 2021. Because 

Congress did not define recreational 

activities and there is no pre-existing 

definition of recreational activities in 

statute or regulation, FMCSA is bringing 

the FMCSRs into alignment with the 

IIJA’s exemption by adding a new 

definition of that term. This clarity 

resolves possible information 

asymmetry currently affecting the 

regulated industry and enforcement 


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7 DOL, BLS. Occupational Employment and Wage 

Statistics (OEWS). National. May 2022. 43–9041 

Insurance Claims and Policy Processing Clerks. 

Available at https://www.bls.gov/oes/current/ 

oes439041.htm (accessed Sept. 1, 2023). 

8This estimate is based on the calculations used 

in the ICR titled, ‘‘Financial Responsibility Motor 

Carriers, Freight Forwarders and Brokers,’’ covered 

by OMB Control Number 2126–0017. 

9The supporting statement for the ‘‘Financial 

Responsibility Motor Carriers, Freight Forwarders 

and Brokers’’ ICR estimates Government costs for 

Forms BMC–91 and BMC–91X at $0, as they are 

filed electronically. 

officials as to which carriers qualify for 

the operating authority exemption. 

Baseline 

For the purposes of this analysis, the 

changes in this rule are compared to the 

baseline established by section 23012 of 

the IIJA and the current requirements 

for providers of recreational activities 

under 49 U.S.C. 13901 and 13902 and 

49 CFR part 365. As discussed above, 

the IIJA created a new exemption from 

the requirement to obtain FMCSA 

operating authority registration for 

providers of recreational activities. 

Accordingly, this exemption has been 

available to these motor carriers since 

the IIJA was enacted on November 15, 

2021. Therefore, the incremental 

impacts of this rule relative to the 

baseline lie in how the affected industry 

and enforcement officials have been 

interpreting the term in the absence of 

a definition in the FMCSRs. 

Uncertainties 

The Agency relies on the Motor 

Carrier Management Information System 

(MCMIS) database to obtain information 

on commercial motor carriers subject to 

the FMCSRs. While MCMIS does 

contain data on passenger vehicle size 

(e.g., weight and capacity) and type, it 

does not track industry type, nor 

whether an operating authority 

exemption is applicable. Consequently, 

the Agency knows neither the 

magnitude of the population affected by 

this rule, nor the degree to which 

passenger carriers are currently taking 

advantage of the exemption. Therefore, 

FMCSA estimates how different carriers 

will be impacted by costs and benefits 

on a per-unit basis, depending on their 

current behavior. 

In the NPRM, the Agency invited the 

public to provide information to address 

uncertainty surrounding the size of the 

affected population and the frequency of 

exemption use. While FMCSA did not 

receive such information, a comment 

from AWM provided questions about 

whether an exemption from the current 

requirements for obtaining and 

maintaining operating authority was 

necessary. However, FMCSA is not 

determining through this rulemaking 

whether there should be an exemption 

from the operating authority registration 

rules for providers of recreational 

activities. This decision was made by 

Congress when it passed the IIJA in 

2021, which created a statutory 

exemption. FMCSA’s role in this 

rulemaking is only to define the term 

recreational activities and consider the 

impacts of clarifying the exemption. The 

Agency will therefore not revise the rule 

in response to comments outside of that 

scope. 

Carrier Cost Components 

The resulting cost impacts of the 

definitional clarification in this rule 

include changes in paperwork, fees, and 

insurance costs associated with 

maintaining operating authority. 

Because there is no pre-existing 

definition of recreational activities, 

motor carriers may be interpreting their 

eligibility for the operating authority 

exemption in varying ways. Depending 

on current interpretations, this rule will 

either increase, decrease, or have no 

incremental impact on the degree to 

which the operating authority 

exemptions are used relative to the 

baseline. Because FMCSA is unable to 

ascertain how various carriers 

interpreted this exemption set forth by 

section 23012 of the IIJA in 2021, the 

Agency estimates the impacts of this 

rule based on four hypothetical 

scenarios of exemption use. These four 

scenarios make use of the forms and 

insurance cost analyses set forth below, 

in advance of the scenarios. 

Forms 

Currently, there are several forms that 

providers of recreational activities are 

responsible for submitting to FMCSA in 

order to maintain operating authority 

registration. As detailed later in this 

analysis, the use of these forms, as 

explained in Table 1, may change as a 

result of this rule, depending on how 

the affected carriers are interpreting this 

exemption. 

TABLE 1—FORMS CURRENTLY USED IN MAINTAINING OPERATING AUTHORITY

Form Affected groups 

Motor Carrier Automobile Bodily Injury and Property Damage Liability 

Certificate of Insurance (BMC–91 or BMC–91X).

Carriers that must provide proof of liability insurance meeting the minimum levels of financial responsibility. 

Motor Carrier Records Change (MCSA–5889) ........................................ Carriers reinstating operating authority. 

Request for Revocation of Authority Granted (OCE–46) ......................... Carriers voluntarily revoking operating authority.

Application for Motor Passenger Carrier Authority (OP–1(P)) ................. Carriers with an existing USDOT number wishing to expand to an operation requiring operating authority. 

Tables 2 and 3 display the paperwork 

burden of these forms to private entities 

and to the Government, respectively. 

These estimates are based on the 

Information Collection Request (ICR) 

supporting statements associated with 

each form. For example, Table 2 shows 

that Forms BMC–91 and BMC–91X are 

estimated to take 10 minutes to 

complete by an insurance claims and 

policy processing clerk at a wage rate 7

of $39.36, leading to a paperwork 

burden of $7 (10 minutes × $39.36 = 

$7).8 9

TABLE 2—PAPERWORK COSTS TO PRIVATE SECTOR

[2022$] 

Paperwork Wage Hours to 

submit form Cost per form Filing fee Total cost 

Forms BMC–91 or BMC–91X by insurance claims 

processer .......................................................................... $39.36 0.17 $7 ........................ $7 

Form MCSA–5889 by office clerk ........................................ 31.99 0.25 8 $80 88 


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10 DOL, BLS. Occupational Employment and 

Wage Statistics (OEWS). National. May 2022. 

Available at: https://www.bls.gov/oes/current/oes_

nat.htm (accessed Sept. 1, 2023). 

11 DOL, BLS. Table 4: Employer costs for 

Employee Compensation for private industry 

workers by occupation and industry group, Dec 

2022. Available at: https://www.bls.gov/ 

news.release/archives/ecec_03172023.htm 

(accessed Sept. 1, 2023). 

12 Ibid. 

13Berwick, Farooq. Truck Costing Model for 

Transportation Managers. North Dakota State 

University. Upper Great Plains Transportation 

Institute. August 2003. Appendix A, pp. 42–47. 

Available at: https://www.ugpti.org/resources/ 

reports/downloads/mpc03-152.pdf (accessed Jan. 5, 

2024). 

14OPM Pay & Leave Salaries & Wages. Salary 

Table 2023–DCB, Hourly Basic (B) Rates by Grade 

and Step. Available at https://www.opm.gov/policydata-oversight/pay-leave/salaries-wages/salarytables/23Tables/html/DCB_h.aspx (accessed Sept. 

5, 2023). 

15 DOT, Volpe Center. Volpe Project Costs. 

Available at: https://www.volpe.dot.gov/work-withus/volpe-project-costs (accessed Jan. 4, 2024). 

16 DOT, Volpe Center. How to Initiate Work. 

Available at: https://www.volpe.dot.gov/work-withus/how-initiate-work (accessed Jan. 4, 2024). 

17 DOT, Volpe Center. Volpe Project Costs. 

Available at: https://www.volpe.dot.gov/work-withus/volpe-project-costs (accessed Jan. 4, 2024). 

TABLE 2—PAPERWORK COSTS TO PRIVATE SECTOR—Continued 

[2022$] 

Paperwork Wage Hours to 

submit form Cost per form Filing fee Total cost 

Form OCE–46 by office clerk .............................................. 31.99 0.25 8 ........................ 8 

Form OP–1(P) by office clerk .............................................. 31.99 2 64 300 364 

Estimates may not total due to rounding. 

TABLE 3—PAPERWORK COSTS TO GOVERNMENT

[2023$] 

Paperwork GS–9, Step 5 

wage 

Hours to 

process form Cost per form 

Form MCSA–5889 ....................................................................................................................... $73.71 0.25 $18 

Form OCE–46 .............................................................................................................................. 73.71 0.25 18 

Form OP–1(P) ............................................................................................................................. 73.71 6.5 479 

Estimates may not total due to rounding. 

FMCSA computes its estimates of 

labor costs using data gathered from 

several sources. Labor costs comprise 

wages, fringe benefits, and overhead. 

Fringe benefits include paid leave, 

bonuses and overtime pay, health and 

other types of insurance, retirement 

plans, and legally required benefits 

(Social Security, Medicare, 

unemployment insurance, and workers 

compensation insurance). Overhead 

includes any expenses to a firm 

associated with labor that are not part of 

employees’ compensation; this typically 

includes many types of fixed costs of 

managing a body of employees, such as 

management and human resource staff 

salaries or payroll services. The 

economic costs of labor to a firm should 

include the costs of all forms of 

compensation and labor-related 

expenses. For this analysis, costs of 

labor to a firm have been calculated 

relative to total compensation (base 

wages, plus fringe benefits, plus 

overhead). 

The primary source for industry 

wages is the median hourly wage data 

(May 2022) from the U.S. Department of 

Labor (DOL), Bureau of Labor Statistics 

(BLS), Occupational Employment and 

Wage Statistics (OEWS).10

BLS does not publish data on fringe 

benefits for specific occupations, but it 

does for the broad industry groups in its 

Employer Costs for Employee 

Compensation release. For office clerk 

employees, this analysis uses an average 

hourly wage of $28.89 and average 

hourly benefits of $14.85 for private 

industry workers in ‘‘transportation and 

warehousing’’ 11 to estimate that fringe 

benefits are equal to 51.4 percent 

($14.85 ÷ $28.89) of wages. For 

insurance claims processors, this RIA 

uses an average hourly wage of $37.31 

and average hourly benefits of $18.92 

for private industry workers in 

‘‘financial activities’’ 12 to estimate that 

fringe benefits are equal to 50.7 percent 

($18.92 ÷ $37.31) of wages. 

For estimating the overhead rates on 

wages, the Agency used industry data 

gathered for the Truck Costing Model 

developed by the Upper Great Plains 

Transportation Institute, North Dakota 

State University as a proxy for the 

overhead cost of employees in the 

transportation intermediary and surety 

and trustee industries.13 Research 

conducted for this model found an 

average cost of $0.107 per mile of 

commercial motor vehicle operation for 

management and overhead, and $0.39 

per mile for labor, indicating an 

overhead rate of 27 percent (27 percent 

= $0.107 ÷ $0.39, rounded to the nearest 

whole percent). 

It is assumed that FMCSA reviewers 

will be Federal government employees 

located in the Washington, DC region at 

the GS–9 Step 5 wage rate.14 OPM does 

not publish annual rates that include 

fringe benefits or overhead. OMB does 

publish an object class analysis of the 

budget of the U.S. Government. The 

Object Class Analysis estimates that, in 

2021, DOT spent $6,351 million in 

employee compensation and $2,840 

million in employee benefits. FMCSA 

estimates a fringe benefit rate of 45 

percent ($2,840 ÷ $6,351) for FMCSA 

personnel. FMCSA uses the DOT Volpe 

Center overhead rate of 64 percent for 

Federal personnel.15 The Volpe Center 

is a Federal fee-for-service research and 

innovation center in the DOT. Unlike 

most Federal agencies, Volpe receives 

no direct appropriation from Congress 

and must cover direct and indirect 

expenses through agreements with 

project sponsors.16 17 These indirect 

costs are recovered through the 

overhead rate charged on direct labor 

costs. Volpe employees are 

compensated according to the Federal 

locality pay tables used for all Federal 

employees and their labor costs include 

the same employee benefits. Therefore, 

FMCSA believes that the overhead rate 

for Volpe personnel is similar to the rate 

for all DOT personnel. 


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18 Insuranks Online Insurance Comparison 

Marketplace. https://www.insuranks.com/ 

commercial-van-insurance (accessed Sept. 12, 

2023). These estimates are quoted from 12 different 

insurance companies, including Geico, Progressive, 

State Farm, and others. The monthly quotes were 

summed and then divided by 12 to obtain an 

estimated monthly average for the industry: ($115 

+ $120 + $130 + $183 + $165 + $180 + $195 + $210 

+ $221 + $232 + $254 + $270) ÷ 12 = $190. 

19For example, Progressive offers policyholders 

the option to adjust coverage based on seasonal 

changes (Progressive Commercial Auto Insurance, 

available at https://www.progressivecommercial.

com/commercial-auto-insurance/ (accessed Sept. 

20, 2023)). 

20 DOL, BLS. Occupational Employment and 

Wage Statistics (OEWS). National. May 2022. 43– 

4071 Office Clerks, General. Available at: https://

www.bls.gov/oes/current/oes434071.htm (accessed 

Sept. 9, 2023). 

Insurance 

In addition to submitting forms to 

FMCSA, providers of recreational 

activities wishing to maintain a valid 

operating authority registration must 

also have proof of liability insurance 

filed with FMCSA. The Agency 

estimates that such liability insurance 

currently costs entities an average of 

$190 per month for one vehicle, or 

$2,280 per year ($190 × 12 = $2,280).18

Using a range of fleet sizes for 

illustrative purposes, Table 4 presents 

the estimated costs currently associated 

with maintaining liability insurance by 

fleet size. 

TABLE 4—CURRENT INSURANCE ESTIMATES BY FLEET SIZE

[2022$] 

Number of vehicles in fleet Monthly premium Yearly premium 

1 ............................................................................................................................................... $190 $2,280 

5 ............................................................................................................................................... 950 11,400 

10 ............................................................................................................................................. 1,900 22,800 

Exemption Use Scenarios for Analyzing 

Carrier Costs 

The following four scenarios build on 

the forms and insurance cost analyses 

detailed above and examine how the 

impact of this rule on carrier costs may 

vary under different exemption use 

conditions. The scenarios are an 

increase in exemption use by carriers, a 

decrease in exemption use by carriers, 

no change in exemption use, and 

exemption use by new carriers entering 

the industry. 

Scenario One: Increase in Exemption 

Use 

Scenario One includes providers of 

recreational activities that have been 

eligible for the operating authority 

exemption established by section 23012 

of the IIJA in 2021 but are not utilizing 

it due to the definitional ambiguity of 

recreational activities. If there are such 

carriers, after publication of this final 

rule they will understand they are 

classified as providers of recreational 

activities and are, therefore, eligible for 

this exemption. This would lead to an 

incremental increase in the number of 

operational authority exemptions being 

used relative to the baseline. As 

explained in detail below, these carriers 

will be impacted in different ways by 

the following costs and cost savings: 

financial responsibility compliance 

costs, operating authority registration 

fees, and paperwork costs. 

Carriers under Scenario One that are 

currently maintaining their operating 

authority registration year-round would 

experience cost savings associated with 

maintaining financial responsibility. In 

the NPRM, the Agency invited the 

public to provide additional information 

on the scenarios presented in the RIA, 

and the estimated insurance premiums. 

While no data were provided on these 

estimates, NAMIC suggested that the 

Agency further research the availability 

of insurance policies that provide 

coverage on a monthly basis, and 

whether States would permit similar 

staggering of required insurance 

coverage. 

As detailed above in section V.B. 

Comments and Responses, based on the 

information gathered and the Agency’s 

experience administering the relevant 

regulations, FMCSA believes it is 

possible for a motor carrier providing 

recreational activities on a seasonal 

basis to carry an insurance policy 

during its operating season, terminate 

the policy at the end of the season, and 

obtain a new policy at the beginning of 

its next operating season.19 The Agency 

declines to make any modifications to 

this analysis based on this comment. 

Regarding the second part of NAMIC’s 

comment, the Agency concurs that the 

degree of insurance cost savings is 

dependent on several factors, including 

other Federal or State insurance 

requirements. FMCSA amends this RIA 

by removing quantified estimates of 

insurance cost savings and 

acknowledging the varying impacts 

State insurance requirements will have 

on the degree of cost savings. 

As described above, FMCSA estimates 

average monthly insurance premiums of 

$190 per vehicle. The Agency maintains 

that certain motor carriers will 

experience insurance cost savings; 

however, the quantified amount of those 

savings may be offset by the need to 

satisfy other Federal or State insurance 

requirements. Motor carriers that do not 

have to meet other Federal or State 

insurance requirements would save on 

insurance costs during months they are 

not in operation. 

There may also be cost savings as a 

result of avoided insurance-related 

administrative requirements. Currently, 

carriers must choose an insurance plan 

or other acceptable form of financial 

responsibility, and have proof filed with 

FMCSA whenever they apply for or 

reinstate operating authority. The 

Agency estimates that it takes carriers 8 

hours to research and identify which 

insurance company, financial surety, or 

bond provider they will use. Assuming 

this task is performed by an office clerk, 

this activity is estimated to cost each 

carrier $256 ($31.99 × 8 hours = $256).20

As displayed in Table 2, carriers 

under Scenario One were also required 

to ensure that their financial 

responsibility provider submit Forms 

BMC–91 or BMC–91X to FMCSA at a 

cost of $7 per form. These 

administrative requirements for 

insurance were no longer required after 

the enactment of the IIJA in 2021; 

therefore, the definitional clarification 

in this rule may lead to cost savings of 

$256 to the carrier and $7 to the 

insurance company. 

Some carriers under Scenario One 

were filing Form OCE–46 to voluntarily 

revoke their operating authority 

registrations during the off-season 

months so that they did not need to 

maintain insurance at FMCSA’s 

minimum prescribed levels during those 

months. To resume operations, the 

providers were then required to submit 

Form MCSA–5889 to reinstate their 

operating authority registrations during 

the months when they were operating. 

As displayed in Tables 2 and 3, it is 

estimated to cost $8 to submit Form 


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13992 Federal Register / Vol. 89, No. 38 / Monday, February 26, 2024 / Rules and Regulations 

21This estimate is based on the calculations used 

in the ICR titled, ‘‘Motor Carrier Records Change 

Form’’ (Form MCSA–5889), covered by OMB 

Control Number 2126–0060. The cost of a paper 

submission is $7 and the cost of an electronic 

submission is $0. 

22This estimate is based on the calculations used 

in the ICR titled ‘‘Request for Revocation of 

Authority Granted,’’ covered by OMB Control 

Number 2126–0018. 

23Applicants that have never held a USDOT 

number or any other registration issued by FMCSA 

must file the URS online application (Form MCSA– 

1) to obtain a USDOT number and register for 

operating authority. 24This estimate is based on calculations used in 

the ICR titled ‘‘Licensing Applications for Motor 

Carrier Operating Authority,’’ covered by OMB 

Control Number 2126–0016. 

25 DOL, Bureau of Economic Analysis (BEA). BEA 

Data, Special Topics, Outdoor Recreation Satellite 

Account, U.S. and States, 2021. Current release 

Nov. 9, 2022. Available at https://www.bea.gov/ 

data/special-topics/outdoor-recreation (accessed 

Sept 13, 2023). 

26A major rule means any rule that OMB finds 

has resulted in or is likely to result in (a) an annual 

effect on the economy of $100 million or more; (b) 

a major increase in costs or prices for consumers, 

individual industries, geographic regions, Federal, 

State, or local government agencies; or (c) 

significant adverse effects on competition, 

employment, investment, productivity, innovation, 

or on the ability of United States-based enterprises 

to compete with foreign-based enterprises in 

domestic and export markets (5 U.S.C. 802(4)). 

MCSA–5889, plus a fee of $80 to 

carriers, and $18 in costs to FMCSA.21

Form OCE–46 is also estimated to cost 

$8 per carrier and $18 for FMCSA 

processing time.22 As a result of this 

rule, if there are carriers under this 

scenario, they would no longer be 

subject to the costs associated with 

submitting Form MCSA–5889 or Form 

OCE–46. 

Scenario Two: Decrease in Exemption 

Use 

It is also possible that this rule will 

limit the use of this exemption for 

certain carriers. Because neither FMCSA 

nor Congress provided a definition of 

recreational activities, there may be 

carriers that incorrectly believed they 

are providers of recreational activities, 

but upon issuance of this rule, would 

realize they are not. These carriers may 

currently be incorrectly utilizing this 

exemption and revoking their operating 

authority when they were not eligible to 

do so. Therefore, if such carriers exist, 

they may incur a cost of $88 to submit 

Form MCSA–5889 as a result of this 

rulemaking for reinstatement of their 

operating authority (Table 2). They 

would also need to resume paying for 

financial responsibility in order to 

maintain valid operating authority. 

Illustrative examples of possible 

insurance-related costs are displayed in 

Tables 4 and 5. 

Scenario Three: No Incremental Change 

in Exemption Use 

There may also be eligible carriers 

that correctly interpreted Congress’ 

intent and have been utilizing the 

exemption correctly since the IIJA’s 

enactment. These carriers are not 

expected to be impacted by this rule 

relative to the baseline. They have 

already gone through the steps of 

voluntarily revoking their operating 

authority with FMCSA, are maintaining 

financial responsibility only while in 

operation, and are not paying fees or 

completing paperwork associated with 

maintaining operating authority. 

Scenario Four: New Providers 

This rule may also affect eligible 

providers considering engaging in 

providing recreational activities in the 

future. If there are new carriers 

considering entering this field that were 

not aware of the IIJA exemption, they 

would no longer need to account for the 

following costs as a result of this rule: 

year-round financial responsibility 

premiums required by FMCSA, 

financial responsibility-related 

administrative costs, and operating 

authority fees and paperwork. 

Prior to the enactment of the IIJA, new 

providers of recreational activities had 

to submit the ‘‘Application for Motor 

Passenger Carrier Authority’’ (Form OP– 

1(P)).23 The Agency estimates that this 

form costs $64 with a $300 fee for 

carriers, and $479 in Government costs 

(Tables 2 and 3, respectively).24

Additionally, as described in the 

Financial Responsibility under Scenario 

One section, the avoided insurancerelated administrative costs would be $7 

for insurance companies and $256 for 

carriers. An illustrative example of 

potential avoided insurance premium 

costs is presented in Table 5. 

Government Costs 

In addition to the cost to carriers 

analyzed in the four scenarios above, 

this rule may have government costs. 

The changes implemented by this rule 

will not require additional training for 

enforcement personnel. The Agency 

expects that the definitional 

clarification set forth in this rule will be 

communicated to FMCSA personnel 

and the Agency’s State-based 

enforcement partners through existing 

means, such as policy updates and 

ongoing training. The Agency will be 

impacted by the costs and cost savings 

associated with this rule, as outlined in 

Table 3 ($479 for Form OP–1(P), $18 for 

Form OCE–46 and Form MCSA–5889). 

Benefits 

The affected entities are providers of 

recreational activities that typically 

consist of physically demanding 

outdoor experiences or excursions that 

do not have transportation as an integral 

part of the activity itself. Overall, the 

outdoor recreation economy accounted 

for 1.9 percent ($454 billion) of currentdollar gross domestic product (GDP) for 

the nation in 2021.25 Hawaii, Montana, 

Vermont, Alaska, and Maine are among 

the States where outdoor recreation as a 

percent of that States’ GDP ranks the 

highest. For example, in 2021, outdoor 

recreation accounted for $4.4 billion of 

Hawaii’s $91.1 billion overall GDP, or 

4.8 percent—the highest proportion of 

any State. In terms of actual levels, the 

States that produced the highest outdoor 

recreation GDP in 2021 were California 

($54.7 billion), Florida ($41.9 billion), 

and Texas ($37.5 billion). 

Differences in interpretation between 

regulated entities and enforcement 

officials may be hindering consistent 

enforcement practices, thereby 

impacting business-related decisions in 

providing transportation for recreational 

activities. This rule may resolve this 

information asymmetry by creating a 

common understanding between 

FMCSA and motor carriers. Because this 

rule may also lead to an increase in 

exemption use, it will benefit carriers by 

improving the efficiency of their 

business operations and therefore 

increase both consumer and producer 

surplus. 

B. Congressional Review Act 

This rule is not a major rule as 

defined under the Congressional Review 

Act (5 U.S.C. 801–808).26

C. Regulatory Flexibility Act (Small 

Entities) 

The Regulatory Flexibility Act of 

1980, Public Law 96–354, 94 Stat. 1164 

(5 U.S.C. 601–612), as amended by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996 (Pub. L. 104–121, 

110 Stat. 857, March 29, 1996) and the 

Small Business Jobs Act of 2010 (Pub. 

L. 111–240, 124 Stat. 2504, September 

27, 2010), requires Federal agencies to 

consider the effects of the regulatory 

action on small business and other 

small entities and to minimize any 

significant economic impact. The term 

small entities comprises small 

businesses and not-for-profit 

organizations that are independently 

owned and operated and are not 

dominant in their fields, and 

governmental jurisdictions with 

populations of less than 50,000. 

Accordingly, DOT policy requires an 

analysis of the impact of all regulations 

on small entities, and mandates that 


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agencies strive to lessen any adverse 

effects on these businesses. 

FMCSA has not determined whether 

this final rule will have a significant 

economic impact on a substantial 

number of small entities. Therefore, 

FMCSA prepared an initial regulatory 

flexibility analysis (IRFA) for the NPRM 

and a final regulatory flexibility analysis 

(FRFA) for the final rule. 

A FRFA must contain the following: 

1. A statement of the need for, and 

objectives of, the rule. 

2. A statement of the significant issues 

raised by the public comments in response to 

the IRFA, a statement of the assessment of 

the agency of such issues, and a statement of 

any changes made in the proposed rule as a 

result of such comments. 

3. The response of the agency to any 

comments filed by the Chief Counsel for 

Advocacy of the Small Business 

Administration (SBA) in response to the 

proposed rule, and a detailed statement of 

any change made to the proposed rule in the 

final rule as a result of the comments. 

4. A description of and an estimate of the 

number of small entities to which the rule 

will apply or an explanation of why no such 

estimate is available. 

5. A description of the projected reporting, 

recordkeeping, and other compliance 

requirements of the rule, including an 

estimate of the classes of small entities which 

will be subject to the requirement and the 

type of professional skills necessary for 

preparation of the report or record. 

6. A description of the steps the agency has 

taken to minimize the significant economic 

impact on small entities consistent with the 

stated objectives of applicable statutes, 

including a statement of the factual, policy, 

and legal reasons for selecting the alternative 

adopted in the final rule and why each of the 

other significant alternatives to the rule 

considered by the agency which affect the 

impact on small entities was rejected. 

7. Description of steps taken by a covered 

agency to minimize costs of credit for small 

entities. 

1. A statement of the need for, and 

objectives of, the rule. 

Section 23012 of the IIJA amended 49 

U.S.C. 13506 by adding a new 

exemption in paragraph (b)(4) from the 

operating authority registration 

requirements. FMCSA is adding a new 

regulatory section incorporating that 

statutory exemption and also including 

a definition for the exempt operations. 

The exemption from operating authority 

registration applies to motor carriers 

operating a motor vehicle designed or 

used to transport between 9 and 15 

passengers (including the driver) 

whether operated alone or with a trailer 

attached to the transport vehicle, if the 

motor vehicle is operated by a person 

that provides recreational activities and 

the transportation is provided within a 

150 air-mile radius of the location at 

which passengers initially boarded the 

motor vehicle at the outset of the trip. 

The new statutory exemption did not 

include a definition of recreational 

activities, creating some ambiguity in 

the exemption’s applicability. The 

Agency is codifying the exemption in 

regulation and removing ambiguity by 

defining recreational activities. 

2. A statement of the significant issues 

raised by the public comments in 

response to the IRFA, a statement of the 

assessment of the agency of such issues, 

and a statement of any changes made in 

the proposed rule as a result of such 

comments. 

The public comments raised no 

significant issues in response to the 

IRFA. The Agency received four 

comments from AWM, NAMIC, the 

Vehicle Associations, and a private 

citizen. 

In response to the Vehicle 

Associations’ comment, the Agency is 

modifying the definition of recreational 

activities in § 372.107 to include offhighway vehicle driving and riding in 

the non-exhaustive list of activities 

provided as examples within the 

definition. As detailed in section V. 

Discussion of Proposed Rulemaking and 

Comments of this final rule, the Vehicle 

Associations proposed modifying 

recreational activities to include 

motorized and non-motorized activities, 

such as off-highway vehicle driving and 

riding. The Agency adopts the Vehicle 

Associations’ proposed modification in 

part. 

As detailed in paragraph 4 of this 

FRFA, FMCSA provided a wide range of 

North American Industry Classification 

System (NAICS) codes of the 

recreational activities industry in the 

IRFA, in order to capture all of the 

potential sectors that providers of 

recreational activities may operate 

under. The addition of ‘‘off-highway 

vehicle driving and riding’’ to the list of 

examples is intended for additional 

clarification and will not expand the list 

of affected NAICS codes that were 

estimated in the IRFA, as presented in 

Table 6. 

As described in section IX.A 

Regulatory Analyses, the Agency’s 

preliminary RIA included quantified 

estimates of potential insurance cost 

savings, among other potential cost 

savings, for eligible motor carriers and 

the Agency invited the public to provide 

additional information on these 

estimates. While no data were provided 

as to the estimated premiums, NAMIC 

suggested that the Agency further 

research the availability of insurance 

policies that provide coverage on a 

monthly basis. The Agency maintains 

that certain motor carriers may save on 

insurance costs as a result of this rule, 

depending on their particular 

circumstances as detailed in section 

IX.A, but the Agency removes the 

quantified estimates of that savings from 

the RIA. 

The Agency concurs that the degree of 

insurance cost savings is dependent on 

several factors, including other Federal 

or State insurance requirements. 

Therefore, FMCSA amends this RIA by 

removing quantified estimates of 

insurance cost savings and 

acknowledging the varying impacts 

State insurance requirements will have 

on the degree of cost savings. The 

quantified amount of those savings may 

be offset by the need to satisfy other 

Federal or State insurance requirements. 

Motor carriers that do not have to meet 

other Federal or State insurance 

requirements would save on insurance 

costs during months they are not in 

operation. 

The remaining comments from AWM 

and the private citizen did not relate to 

the clarification of the recreational 

activities exemption. AWM questioned 

the magnitude of the burden associated 

with obtaining and maintaining 

operating authority, and the private 

citizen raised concerns about effects on 

public land usage. As detailed in section 

V. Discussion of Proposed Rulemaking 

and Comments, FMCSA is not 

determining through this rulemaking 

whether there should be an exemption 

from the operating authority registration 

rules for providers of recreational 

activities. This decision was made by 

Congress when it passed the IIJA in 

2021, which created a statutory 

exemption. FMCSA’s scope in this 

rulemaking is only to define the term 

recreational activities and consider the 

impacts of providing that definition to 

clarify the exemption. The Agency 

considers the objections to the creation 

of the exemption outside the scope of 

the rule and declines to make any 

changes to the rule based on them. 

3. The response of the agency to any 

comments filed by the Chief Counsel for 

Advocacy of the SBA in response to the 

proposed rule, and a detailed statement 

of any change made to the proposed rule 

in the final rule as a result of the 

comments. 

The Chief Counsel for Advocacy of 

the SBA filed no comments to the 

proposed rule. Thus, FMCSA has 

nothing to respond to from the Chief 

Counsel for Advocacy of the SBA. 

4. A description of and an estimate of 

the number of small entities to which 

the rule will apply or an explanation of 

why no such estimate is available. 

Small entity is defined in 5 U.S.C. 

601. Section 601(3) defines a small 

entity as having the same meaning as 


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27More information about NAICS is available at 

http://www.census.gov/naics (accessed Sept. 13, 

2023). 

28SBA Table of Small Business Size Standards 

Matched to NAICS effective Mar. 17, 2023, located 

at https://www.sba.gov/sites/sbagov/files/2023-06/ 

Table%20of%20Size%20Standards_Effective%20

March%2017%2C%202023%20%282%29.pdf 

(accessed Sept. 13, 2023). 

29U.S. Census Bureau. 2017 Economic Census. 

Available at https://data.census.gov/cedsci/table?q=

EC1700&n=48-49&tid=ECNSIZE2017.

EC1700SIZEREVEST&hidePreview=true (accessed 

Sept. 13, 2023). 

30U.S. Census Bureau 2022 NAICS Definition. 

Available at https://www.census.gov/naics/ 

?input=48&year=2022&details=487 (accessed Sept. 

13, 2023). 

small business concern under section 3 

of the Small Business Act. This includes 

any small business concern that is 

independently owned and operated and 

is not dominant in its field of operation. 

Section 601(4), likewise includes within 

the definition of small entities not-forprofit enterprises that are independently 

owned and operated and are not 

dominant in their fields of operation. 

Additionally, section 601(5) defines 

small entities as governments of cities, 

counties, towns, townships, villages, 

school districts, or special districts with 

populations less than 50,000. 

This final rule affects motor carriers 

operating a motor vehicle designed or 

used to transport between 9 and 15 

passengers (including the driver) 

whether operated alone or with a trailer 

attached to the transport vehicle, if the 

motor vehicle is operated by a person 

that provides recreational activities and 

the transportation is provided within a 

150 air-mile radius of the location at 

which passengers initially boarded the 

motor vehicle at the outset of the trip. 

Providers of recreational activities 

affected by this rule operate under many 

different NAICS 27 codes with differing 

size standards. The SBA has released 

updated small entity size standards 

since the publication of the IRFA. The 

new size standards became effective 

March 17, 2023.28 FMCSA has updated 

the estimates and size standards in this 

FRFA where needed. 

In the IRFA for the proposed rule, 

FMCSA provided a wide range of 

NAICS codes in the recreational 

activities industry, in order to capture 

all of the potential NAICS codes that 

providers of recreational activities may 

operate under. In doing so, FMCSA 

highlighted many entities that perform 

various other functions beyond 

transporting passengers to and from 

recreational activities. The Agency also 

requested public comment on the 

NAICS codes analyzed in the IRFA but 

did not receive any such comments. 

Therefore, the Agency assumes the 

NAICS codes analyzed in the IRFA are 

representative of the composition of the 

affected industries and is retaining those 

codes for the purposes of this FRFA. 

As shown in Table 6 below, the SBA 

size standards for providers of 

recreational activities range from $9 

million in revenue per year for the All 

Other Amusement Recreation Industries 

NAICS national industry, to $47 million 

in revenue per year for Racetracks. 

TABLE 6—SBA SIZE STANDARDS FOR SELECTED INDUSTRIES

[in millions of 2023$] 

NAICS code NAICS industry description SBA size standard 

in millions 

Subsector 487—Scenic and Sightseeing Transportation 

487110 ........... Scenic and Sightseeing Transportation, Land .................................................................................................. $20.5 

487210 ........... Scenic and Sightseeing Transportation, Water ................................................................................................ 14.0 

487990 ........... Scenic and Sightseeing Transportation, Other ................................................................................................. 25.0 

Subsector 561—Administrative and Support Services 

561520 ........... Tour Operators .................................................................................................................................................. 25.0 

Subsector 711—Performing Arts, Spectator Sports, and Related Industries 

711212 ........... Racetracks ........................................................................................................................................................ 47.0 

711219 ........... Other Spectator Sports ..................................................................................................................................... 16.5 

Subsector 713—Amusement, Gambling, and Recreation Industries 

713910 ........... Golf Courses and Country Clubs ...................................................................................................................... 19.0 

713920 ........... Skiing Facilities ................................................................................................................................................. 35.0 

713940 ........... Fitness and Recreational Sports Centers ......................................................................................................... 17.5 

713990 ........... All Other Amusement Recreation Industries .................................................................................................... 9.0 

FMCSA examined data from the 2017 

Economic Census, the most recent 

Census for which data were available, to 

determine the percentage of firms that 

have revenue at or below SBA’s 

thresholds within each of the NAICS 

industries.29 Boundaries for the revenue 

categories used in the Economic Census 

do not precisely coincide with the SBA 

thresholds. Instead, the SBA threshold 

generally falls between two different 

revenue categories. However, FMCSA 

was able to make reasonable estimates 

as to the percent of small entities within 

each NAICS code. 

The Agency estimates that many 

entities affected by this rule fall under 

the Scenic and Sightseeing 

Transportation NAICS subsector (487). 

Firms in this subsector utilize 

transportation equipment to provide 

recreation and entertainment. These 

operations are distinct from passenger 

transportation carried out for other 

types of for-hire transportation. The 

recreational activities involved are local 

in nature, usually involving a same-day 

return to the point of departure.30

Industry groups under this subsector 

include Scenic and Sightseeing 

Transportation, Land (4871), Scenic and 

Sightseeing Transportation, Water 

(4872), and Scenic and Sightseeing 

Transportation, Other (4879). 

The Scenic and Sightseeing 

Transportation, Land NAICS national 

industry (487110) has a revenue size 

standard of $20.5 million, which falls 

between two Economic Census revenue 


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31US Census Bureau 2022 NAICS Definition. 

Available at https://www.census.gov/naics/ 

?input=56&year=2022&details=5615 (accessed Sept. 

14, 2023). 

32US Census Bureau 2022 NAICS Definition. 

Available at https://www.census.gov/naics/ 

?input=71&year=2022&details=71 (accessed Sept. 5, 

2023). 

33The Agency presents a high-end estimate of 100 

percent due to limitations in Economic Census data 

availability. Revenue data for firms with revenue 

less than $100,000, which would be considered 

small, are suppressed by the Economic Census to 

avoid disclosing for individual companies. Because 

the Agency is unable to ascertain the revenue for 

the suppressed firms, the high-end estimate 

assumes that all such firms fall under the $47 

million SBA threshold. The low-end estimate 

assumes the suppressed firms are not small. 

34The Agency presents a high-end estimate of 100 

percent due to limitations in Economic Census data 

availability. Revenue data for firms with revenue 

less than $100,000, which would be considered 

small, are suppressed by the Economic Census. 

Because the Agency is unable to ascertain the 

revenue for the suppressed firms, the high-end 

estimate assumes that all such firms fall under the 

$16.5 million SBA threshold. The low-end estimate 

assumes the suppressed firms are not small. 

35US Census Bureau 2022 NAICS Definition. 

Available at https://www.census.gov/naics/ 

?input=71&year=2022&details=713 (accessed Sept. 

5, 2023). 

36US Census Bureau 2022 NAICS Definition. 

Available at https://www.census.gov/naics/ 

?input=71&year=2022&details=7139 (accessed Sept. 

5, 2023). 

categories, $10 million and $25 million. 

This industry comprises firms engaged 

in various outdoor excursions, 

including horse-drawn sightseeing 

rides. The percentages of Scenic and 

Sightseeing Transportation, Land with 

revenue less than these amounts ranged 

from 97 percent to 98 percent. Because 

the SBA threshold is closer to the higher 

of these two boundaries, FMCSA has 

assumed that the percent of Scenic and 

Sightseeing Transportation, Land 

entities that are small will be closer to 

98 percent and is using that figure. 

For Scenic and Sightseeing 

Transportation, Water (487210), the $14 

million SBA threshold falls between 

two Economic Census revenue 

categories, $10 million and $25 million. 

Entities in this national industry are 

primarily engaged in providing scenic 

and sightseeing transportation on water, 

such as fishing boat charter operation. 

The percentages of Scenic and 

Sightseeing Transportation, Water with 

revenue less than these amounts ranged 

from 97 percent to 99 percent. Because 

the SBA threshold is closer to the lower 

of these two boundaries, FMCSA has 

assumed that the percent of these 

entities that are small will be closer to 

97 percent and is using that figure. 

Scenic and Sightseeing 

Transportation, Other (487990) focuses 

on all other scenic and sightseeing 

transportation, such as hot air balloon 

rides and glider excursions. The SBA 

size standard for this national industry 

is $25 million. The $25 million SBA 

threshold falls between two Economic 

Census revenue categories, $10 million 

and $25 million. The percentages of 

these entities with revenue less than 

these amounts were 93 percent and 98 

percent. Because the SBA threshold 

coincides with the higher of these two 

boundaries, FMCSA has assumed that 

the percent of these providers that are 

small will be closer to 98 percent and 

is using that figure. 

Firms falling under the Travel 

Arrangement and Reservation Services 

industry group (5615) may also be 

impacted by this NPRM. This industry 

group comprises the Travel Agencies 

(561510), Tour Operators (561520), and 

Convention and Visitors Bureaus 

(561591) national industries.31 The 

Agency assumes that providers of 

recreational activities fall under the 

Tour Operators national industry. 

Tour Operators (561520) focuses on 

arranging and assembling tours, 

including travel or wholesale tour 

operators. The SBA size standard for 

this national industry is $25 million, 

which falls between two Economic 

Census revenue categories, $25 million 

and $100 million. The percentages of 

Tour Operators with revenue less than 

these amounts were 92 percent and 100 

percent. The Agency presents a highend estimate of 100 percent due to 

limitations in Economic Census data 

availability. Revenue data for firms with 

revenue less than $100,000, which 

would be considered small, are 

suppressed by the Economic Census to 

avoid disclosing for individual 

companies. Because the Agency is 

unable to ascertain the revenue for the 

suppressed firms, the high-end estimate 

assumes that all such firms fall under 

the $25 million SBA threshold and 

would be considered small. The lowend estimate assumes the suppressed 

firms are not small. Because the SBA 

threshold is closer to the lower of these 

two boundaries, FMCSA has assumed 

that the percent of Tour Operators that 

is small will be closer to 92 percent and 

is using that figure. 

The Agency estimates that many 

providers of recreational activities 

affected by this NPRM would also fall 

under the Arts, Entertainment, and 

Recreation sector (71). This sector 

includes a wide range of firms operating 

facilities that meet varied cultural, 

entertainment, and recreational interests 

of patrons.32 Subsectors under this 

group include Performing Arts, 

Spectator Sports, and Related Industries 

(711), Amusement, Gambling, and 

Recreational Industries (713), and 

others. 

The industry groups under the 

Spectator Sports and Related Industries 

(711) subsector cover Spectator Sports 

(7112). Spectator Sports includes the 

Racetracks (711212) and Other Spectator 

Sports (711219) national industries. 

Racetracks (711212) focuses on firms 

operating racetracks without casinos, 

such as auto, motorcycle, snowmobile, 

and horse races. The SBA size standard 

for this national industry is $47 million. 

The $47 million SBA threshold falls 

between two Economic Census revenue 

categories, $25 million and $100 

million. The percentages of these 

entities with revenue less than these 

amounts were 83 percent and 100 

percent.33 Because the SBA threshold is 

closer to the lower of these two 

boundaries, FMCSA has assumed that 

the percent of Racetracks entities that 

are small will be closer to 83 percent 

and is using that figure. 

Other Spectator Sports (711219) 

focuses on independent athletes, owners 

of racing participants (such as cars, 

dogs, and horses), and firms engaged in 

specialized services in support of said 

participants. The SBA size standard for 

this national industry is $16.5 million, 

which falls between two Economic 

Census revenue categories, $10 million 

and $25 million. The percentages of 

these entities with revenue less than 

these amounts were 82 percent and 100 

percent.34 Because the SBA threshold is 

closer to the lower of these two 

boundaries, FMCSA has assumed that 

the percent of Other Spectator Sports 

entities that are small will be closer to 

82 percent and is using that figure. 

The industry groups under the 

Amusement, Gambling, and Recreation 

Industries (713) subsector include 

Amusement Parks and Arcades (7131), 

Gambling Industries (7132), and Other 

Amusement and Recreation Industries 

(7139).35 The Agency estimates the 

entities affected by this NPRM would 

fall into the third industry group, Other 

Amusement and Recreation Industries 

(7139). This group, as detailed below, 

covers firms operating golf courses and 

country clubs, skiing facilities, and all 

other amusement and recreation 

activities.36

Entities falling under Golf Courses 

and Country Clubs (713910) primarily 

engage in operating such facilities, and 

providing food and beverage services, 

equipment rental, or golf instruction. 

The SBA size standard for this national 

industry is $19 million, which falls 

between two Economic Census revenue 

categories, $10 million and $25 million. 

The percentages of Golf Courses and 


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37The Agency presents a high-end estimate of 98 

percent which includes assumptions about 

limitations in Economic Census data. Some revenue 

data for firms that would be considered small 

(revenue categories of $100,000 or more and 

$250,000 to $499,999) are suppressed by the 

Economic Census. Because the Agency is unable to 

ascertain the revenue for the suppressed firms, the 

high-end estimate assumes that all such firms fall 

under the $35 million SBA threshold. The low-end 

estimate assumes the suppressed firms are not 

small. 

Country Clubs with revenue less than 

these amounts were 95 percent and 99 

percent. In the IRFA, FMCSA presented 

the estimated percent of small entities 

using a low-end estimate of 95 percent. 

However, the SBA size standard for this 

national industry increased from $16.5 

million in 2022 to $19 million in 2023, 

making the new threshold closer to the 

higher of the revenue boundaries. 

Therefore, FMCSA has assumed that the 

percent of these entities that are small 

will be closer to 99 percent and is using 

that figure in the FRFA. 

Skiing Facilities (713920) industries 

primarily operate downhill, cross 

country, or related skiing areas, and 

provide food and beverage services, 

equipment rental, and ski instruction. 

The SBA size standard for this national 

industry is $35 million, which falls 

between two Economic Census revenue 

categories, $25 million and $100 

million. The percentages of Skiing 

Facilities with revenue less than these 

amounts were 93 percent and 98 

percent.37 Because the SBA threshold is 

closer to the lower of these two 

boundaries, FMCSA has assumed that 

the percent of these facilities that are 

small will be closer to 93 percent and 

is using that figure. 

The Agency estimates that the 

majority of entities affected by this Final 

Rule would fall under the All Other 

Amusement Recreation Industries 

(713990) national industry. This 

includes whitewater rafting, hunting, 

horseback riding stables, boating clubs, 

canoeing, archery and shooting ranges, 

hiking, and others. The SBA size 

standard for this national industry is $9 

million. The $9 million SBA threshold 

falls between two Economic Census 

revenue categories, $5 million and $10 

million. The percentages of these 

providers with revenue less than these 

amounts were 60 percent and 99.6 

percent. The Agency estimates a wide 

range in estimates due to limitations in 

Economic Census data for this NAICS 

category. Specifically, of the 12,688 

firms in this industry, 12,631 have 

revenue between $100,000 and $10 

million. However, data on small entities 

with revenue under $250,000 are 

suppressed. There are 7,490 small 

entities (59 percent) with revenue 

between $250,000 and $5 million, and 

139 firms with revenue between $5 

million and $10 million (1.1 percent). 

Of the 12,688 firms in All Other 

Amusement Recreation Industries, there 

are 5,002 firms without revenue data 

(39.4 percent). The high-end estimate 

assumes all such firms are small (99.6 

percent) and FMCSA uses that figure. 

Table 7 below shows the complete 

estimates of the number of small entities 

within the national industries affected 

by this rule. 

TABLE 7—ESTIMATES OF NUMBERS OF SMALL ENTITIES

NAICS code Description Total number 

of firms 

Number of 

small entities 

Percent of all 

firms 

487110 ........... Scenic and Sightseeing Transportation, Land ................................................ 520 512 98 

487210 ........... Scenic and Sightseeing Transportation, Water .............................................. 1,129 1,097 97 

487990 ........... Scenic and Sightseeing Transportation, Other ............................................... 169 165 98 

561520 ........... Tour Operators ................................................................................................ 2,175 1,991 92 

711212 ........... Racetracks ...................................................................................................... 299 248 83 

711219 ........... Other Spectator Sports ................................................................................... 1,916 1,577 82 

713910 ........... Golf Courses and Country Clubs .................................................................... 8,076 7,712 99 

713920 ........... Skiing Facilities ............................................................................................... 203 189 93 

713990 ........... All Other Amusement Recreation Industries .................................................. 12,688 7,629 60 

5. A description of the reporting, 

recordkeeping, and other compliance 

requirements of the final rule, including 

an estimate of the classes of small 

entities subject to the requirements and 

the type of professional skills necessary 

for preparation of the report or record. 

This rule will not result in new 

recordkeeping requirements. 

6. A description of the steps the 

agency has taken to minimize the 

significant economic impact on small 

entities consistent with the stated 

objectives of applicable statutes, 

including a statement of the factual, 

policy, and legal reasons for selecting 

the alternative adopted in the final rule 

and why each of the other significant 

alternatives to the rule considered by 

the agency which affect the impact on 

small entities was rejected. 

Given that the recreational activities 

exemption was statutorily mandated, 

FMCSA did not have an alternative or 

discretion as to whether to adopt the 

exemption but did consider whether to 

clarify a definition of the term 

recreational activities or to remain 

silent. FMCSA also considered the 

alternative of adding a definition 

without including non-exhaustive 

examples. However, FMCSA believes 

that remaining silent or proposing a 

definition without such examples could 

result in confusion or inconsistent 

enforcement and that it is better to 

provide a definition with examples 

consistent with the legislative intent to 

minimize any significant economic 

impact on small entities. 

7. Description of steps taken by a 

covered agency to minimize costs of 

credit for small entities. 

FMCSA is not a covered agency as 

defined in section 609(d)(2) of the 

Regulatory Flexibility Act and has taken 

no steps to minimize the additional cost 

of credit for small entities. 

D. Assistance for Small Entities 

In accordance with section 213(a) of 

the Small Business Regulatory 

Enforcement Fairness Act of 1996 (Pub. 

L. 104–121, 110 Stat. 857), FMCSA 

wants to assist small entities in 

understanding this final rule so they can 

better evaluate its effects on themselves 

and participate in the rulemaking 

initiative. If the final rule will affect 

your small business, organization, or 

governmental jurisdiction and you have 

questions concerning its provisions or 

options for compliance, please consult 

the person listed under FOR FURTHER

INFORMATION CONTACT. 

Small businesses may send comments 

on the actions of Federal employees 

who enforce or otherwise determine 

compliance with Federal regulations to 

the Small Business Administration’s 

Small Business and Agriculture 

Regulatory Enforcement Ombudsman 

(Office of the National Ombudsman, see 


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38Public Law 108–447, 118 Stat. 2809, 3268, note 

following 5 U.S.C. 552a (Dec. 4, 2014). 

39Public Law 107–347, sec. 208, 116 Stat. 2899, 

2921 (Dec. 17, 2002). 

https://www.sba.gov/about-sba/ 

oversight-advocacy/office-nationalombudsman) and the Regional Small 

Business Regulatory Fairness Boards. 

The Ombudsman evaluates these 

actions annually and rates each agency’s 

responsiveness to small business. If you 

wish to comment on actions by 

employees of FMCSA, call 1–888–REG– 

FAIR (1–888–734–3247). DOT has a 

policy regarding the rights of small 

entities to regulatory enforcement 

fairness and an explicit policy against 

retaliation for exercising these rights. 

E. Unfunded Mandates Reform Act of 

1995 

The Unfunded Mandates Reform Act 

of 1995 (2 U.S.C. 1531–1538) (UMRA) 

requires Federal agencies to assess the 

effects of their discretionary regulatory 

actions. The Act addresses actions that 

may result in the expenditure by a State, 

local, or Tribal government, in the 

aggregate, or by the private sector of 

$192 million (which is the value 

equivalent of $100 million in 1995, 

adjusted for inflation to 2022 levels) or 

more in any 1 year. Though this final 

rule would not result in such an 

expenditure, and the analytical 

requirements of UMRA do not apply as 

a result, the Agency discusses the effects 

of this rule elsewhere in this preamble. 

F. Paperwork Reduction Act 

This final rule contains no new 

information collection requirements 

under the Paperwork Reduction Act of 

1995 (44 U.S.C. 3501–3520). 

G. E.O. 13132 (Federalism) 

A rule has implications for federalism 

under section 1(a) of E.O. 13132 if it has 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’ 

FMCSA has determined that this rule 

will not have substantial direct costs on 

or for States, nor would it limit the 

policymaking discretion of States. 

Nothing in this document preempts any 

State law or regulation. Therefore, this 

rule does not have sufficient federalism 

implications to warrant the preparation 

of a Federalism Impact Statement. 

H. Privacy 

The Consolidated Appropriations Act, 

2005,38 requires the Agency to assess 

the privacy impact of a regulation that 

will affect the privacy of individuals. 

This rule would not require the 

collection of personally identifiable 

information (PII). 

The Privacy Act (5 U.S.C. 552a) 

applies only to Federal agencies and any 

non-Federal agency that receives 

records contained in a system of records 

from a Federal agency for use in a 

matching program. 

The E-Government Act of 2002,39

requires Federal agencies to conduct a 

PIA for new or substantially changed 

technology that collects, maintains, or 

disseminates information in an 

identifiable form. No new or 

substantially changed technology will 

collect, maintain, or disseminate 

information as a result of this rule. 

Accordingly, FMCSA has not conducted 

a PIA. 

In addition, the Agency submitted a 

Privacy Threshold Assessment (PTA) to 

evaluate the risks and effects the 

proposed rulemaking might have on 

collecting, storing, and sharing 

personally identifiable information. The 

PTA was adjudicated by DOT’s Chief 

Privacy Officer on December 15, 2023. 

I. E.O. 13175 (Indian Tribal 

Governments) 

This rule does not have Tribal 

implications under E.O. 13175, 

Consultation and Coordination with 

Indian Tribal Governments, because it 

does not have a substantial direct effect 

on one or more Indian Tribes, on the 

relationship between the Federal 

Government and Indian Tribes, or on 

the distribution of power and 

responsibilities between the Federal 

Government and Indian Tribes. 

J. National Environmental Policy Act of 

1969 

FMCSA analyzed this rule pursuant to 

the National Environmental Policy Act 

of 1969 (NEPA) (42 U.S.C. 4321 et seq.) 

and determined this action is 

categorically excluded from further 

analysis and documentation in an 

environmental assessment or 

environmental impact statement under 

FMCSA Order 5610.1 (69 FR 9680), 

Appendix 2, (6)(b). The categorical 

exclusion (CE) in paragraph (6)(b) 

covers regulations which are editorial or 

procedural, such as those updating 

addresses or establishing application 

procedures, and procedures for acting 

on petitions for waivers, exemptions 

and reconsiderations, including 

technical or other minor amendments to 

existing FMCSA regulations. The 

requirements in this rule are covered by 

this CE, there are no extraordinary 

circumstances present, and the action 

does not have the potential to 

significantly affect the quality of the 

environment. 

List of Subjects in 49 CFR Part 372 

Agricultural commodities, Buses, 

Cooperatives, Freight forwarders, Motor 

carriers, Moving of household goods, 

Seafood. 

Accordingly, FMCSA amends 49 CFR 

chapter III, part 372 as follows: 

PART 372—EXEMPTIONS, 

COMMERCIAL ZONES, AND 

TERMINAL AREAS 

■ 1. The authority citation for part 372 

continues to read as follows: 

Authority: 49 U.S.C. 13504 and 13506; 

Pub. L. 105–178, sec. 4031, 112 Stat. 418; and 

49 CFR 1.87. 

■ 2. Amend § 372.107 by adding 

paragraph (i) to read as follows: 

§ 372.107 Definitions. 

* * * * * 

(i) Recreational activities. The term 

‘‘recreational activities’’ means activities 

consisting of an outdoor experience or 

excursion typically of a physical or 

athletic nature which require 

transportation for the sole purpose of 

moving customers to another location or 

locations where the outdoor experience 

or excursion will take place and 

collecting those customers to transport 

them back to the place of initial 

boarding or another outpost of the motor 

carrier. Recreational activities include 

but are not limited to hiking, biking, 

horseback riding, canoeing, whitewater 

rafting, water trails, tubing, skiing, 

snowshoeing, snowmobiling, hunting, 

fishing, mountain climbing, swimming, 

and off-highway vehicle driving and 

riding. The term does not include any 

activity: 

(1) for which the activity offered or 

sold is occurring simultaneously with 

the transportation; or 

(2) for which the transportation is the 

primary service offered for sale. 

■ 3. Add § 372.113 to read as follows: 

§ 372.113 Providers of recreational 

activities. 

Transportation by a motor vehicle 

designed or used to transport not fewer 

than 9, and not more than 15, 

passengers (including the driver), 

whether operated alone or with a trailer 

attached for the transport of recreational 

equipment, is exempted from regulation 

promulgated pursuant to Part B of Title 

49 U.S.C. subtitle IV if: 

(a) the motor vehicle is operated by a 

person that provides recreational 

activities; 


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13998 Federal Register / Vol. 89, No. 38 / Monday, February 26, 2024 / Rules and Regulations 

(b) the transportation is provided 

within a 150 air-mile radius of the 

location at which passengers initially 

boarded the motor vehicle at the outset 

of the trip; and 

(c) in the case of a motor vehicle 

transporting passengers over a route 

between a place in a State and a place 

in another State, the person operating 

the motor vehicle is lawfully providing 

transportation of passengers over the 

entire route in accordance with 

applicable State law. 

Issued under authority delegated in 49 CFR 

1.87. 

Sue Lawless, 

Acting Deputy Administrator. 

[FR Doc. 2024–03782 Filed 2–23–24; 8:45 am] 

BILLING CODE 4910–EX–P 


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