[Federal Register Volume 63, Number 150 (Wednesday, August 5, 1998)]
[Proposed Rules]
[Pages 41766-41769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-20920]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

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

[FHWA Docket No. FHWA-97-2858]
RIN 2125-AE 22


Federal Motor Carrier Safety Regulations; Definition of 
Commercial Motor Vehicle

AGENCY: Federal Highway Administration (FHWA); DOT.

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

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

SUMMARY: The Federal Highway Administration is considering amending the 
Federal Motor Carrier Safety Regulations (FMCSRs) in response to the 
Transportation Equity Act for the 21st Century (hereinafter referred as 
``TEA-21''). Section 4008(a) of TEA-21 amends the definition of the 
term ``commercial motor vehicle'' (CMV) in 49 U.S.C. 31132(1) to cover 
vehicles ``designed or used to transport more than 8 passengers 
(including the driver) for compensation.'' The change could make the 
FMCSRs applicable to a considerable number of entities, including 
operators of small commuter vans or airport shuttle buses, not now 
subject to them. This ANPRM requests comment and information to help 
the FHWA identify such operators and

[[Page 41767]]

determine whether the regulations should be applied to all of them or 
whether exemptions should be granted.

DATES: Comments must be received on or before October 5, 1998.

ADDRESSES: Submit written, signed comments to FHWA Docket No. FHWA-97-
2858, the Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh 
Street, SW., Washington, DC 20590-0001. All comments received will be 
available for examination at the above address from 10 a.m. to 5 p.m., 
e.t., Monday through Friday, except Federal holidays. Those desiring 
notification of receipt of comments must include a self-addressed, 
stamped envelope or postcard.

FOR FURTHER INFORMATION CONTACT: Mr. David M. Lehrman, Office of Motor 
Carrier Research and Standards, (202) 366-0994, Mr. Charles E. Medalen, 
Office of the Chief Counsel, (202) 366-1354, Federal Highway 
Administration, 400 Seventh Street, SW., Washington, DC 20590. Office 
hours are from 7:45 a.m. to 4:15 p.m. e.t., Monday through Friday, 
except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Internet users can access all comments received by the U.S. DOT 
Dockets, Room PL-401, by using the universal resource locator (URL): 
http://dms.dot.gov. It is available 24 hours each day, 365 days each 
year. Please follow the instructions online for more information and 
help.
    An electronic copy of this document may be downloaded using a modem 
and suitable communications software from the Federal Register 
Electronic Bulletin Board Service at (202) 512-1661. Internet users may 
reach the Federal Register's home page at: <a href="http://www.nara.gov/nara/
fedreg">http://www.nara.gov/nara/
fedreg</a> and the Government Printing Office's database at: <a href="http://
www.access.gpo.gov/su__docs">http://
www.access.gpo.gov/su__docs</a>.

Background

    Section 204 of the Motor Carrier Safety Act of 1984 (MCSA) (Pub. L. 
98-554, Title II, 98 Stat. 2832, at 2833) defined a ``commercial motor 
vehicle'' as one having a gross vehicle weight rating (GVWR) of 10,001 
pounds or more; designed to transport more than 15 passengers, 
including the driver; or transporting hazardous materials in quantities 
requiring the vehicle to be placarded. This definition, codified at 49 
U.S.C. 31132(1), was the basis for the regulatory definition of a CMV 
in 49 CFR 390.5, which determines the jurisdictional limits and 
applicability of most of the FMCSRs. The Senate Committee on Commerce, 
Science and Transportation, in a report which accompanied the MCSA 
stated: ``The 10,000-pound limit, which is in the current BMCS (Bureau 
of Motor Carrier Safety, now the FHWA's Office of Motor Carriers) 
regulations, is proposed to focus enforcement efforts and because small 
vans and pickup trucks are more analogous to automobiles than to medium 
and heavy commercial vehicles, and can best be regulated under State 
automobile licensing, inspection, and traffic surveillance 
procedures.'' S. Rep. No. 98-424, at 6-7 (1984), reprinted in 1984 
U.S.C.C.A.N. 4785, 4790-91.
    Although the MCSA demonstrated congressional intent to focus the 
applicability of the FMCSRs on larger vehicles, Congress did not repeal 
Sec. 204 of the Motor Carrier Act of 1935 (Chapter 498, 49 Stat. 543, 
546). This statute, now codified at 49 U.S.C. 31502, authorizes the 
FHWA to regulate the safety of all for-hire motor carriers of 
passengers and property, and private carriers of property without 
respect to the weight or passenger capacity of the vehicles they 
operate.
    When the Congress enacted the Commercial Motor Vehicle Safety Act 
of 1986 (CMVSA) (Pub. L. 99-570, Title XII, 100 Stat. 3207-170) to 
require implementation of a single, classified commercial driver's 
license program, it also limited the motor vehicles subject to the 
program to those designed to transport more than 15 passengers, 
including the driver (now codified at 49 U.S.C. 31301(4)(B) with 
slightly different wording). This, too, revealed the congressional 
policy of applying available Federal motor carrier safety resources to 
larger vehicles.
    The ICC Termination Act of 1995 (ICCTA) (Pub. L. 104-88, 109 Stat. 
803, 919) changed the MCSA definition of a commercial motor vehicle. As 
amended, section 31132(1) defined a commercial motor vehicle, in part, 
as a vehicle that is ``designed or used to transport passengers for 
compensation, but exclud(es) vehicles providing taxicab service and 
having a capacity of not more than 6 passengers and not operated on a 
regular route or between specified places; (or) is designed or used to 
transport more than 15 passengers, including the driver, and is not 
used to transport passengers for compensation.'' The ICCTA authorized, 
but did not require, the FHWA to change the FMCSRs accordingly; the 
agency did not incorporate the amended language into the CMV definition 
in Sec. 390.5.
    Section 4008(a)(2) of TEA-21 (Pub. L. 105-178, 112 Stat. 107, June 
9, 1998) again amended the passenger-vehicle component of the CMV 
definition in 49 U.S.C. 31132(1).
    Commercial motor vehicle is now defined to mean a self-propelled or 
towed vehicle used on the highways in interstate commerce to transport 
passengers or property, if the vehicle--
    (A) Has a gross vehicle weight rating or gross vehicle weight of at 
least 10,001 pounds, whichever is greater;
    (B) Is designed or used to transport more than 8 passengers 
(including the driver) for compensation;
    (C) Is designed or used to transport more than 15 passengers, 
including the driver, and is not used to transport passengers for 
compensation; or
    (D) Is used in transporting material found by the Secretary of 
Transportation to be hazardous under section 5103 of this title and 
transported in a quantity requiring placarding under regulations 
prescribed by the Secretary under section 5103.
    Under Sec. 4008(b), operators of the CMVs defined by section 
31132(1)(B) will automatically become subject to the FMCSRs one year 
after the date of enactment of TEA-21, if they are not already covered, 
``except to the extent that the Secretary (of Transportation) 
determines, through a rulemaking proceeding, that it is appropriate to 
exempt such operators of commercial motor vehicles from the application 
of those regulations.''
    The FHWA views section 4008 of TEA-21 as a mandate to impose the 
FMCSRs on previously unregulated smaller capacity vehicles. Although 
the House Conference Report on the ICCTA definitional change directed 
the agency not to impose on the States (as grant conditions under the 
Motor Carrier Safety Assistance Program (MCSAP)) the burden of 
regulating a new population of carriers covered by the definition, no 
such restriction is included in TEA-21 or its legislative history. The 
mandate of TEA-21 is thus stricter than that of the ICCTA. Still, the 
FHWA is authorized to undertake rulemaking to exempt some of these 
passenger vehicles from the FMCSRs. One of the purposes of this ANPRM 
is to ask for information about the potential reach of the TEA-21 
definition and comments on the question whether any class of vehicles 
should be exempted. We would also like to determine whether the term 
``for compensation'' may be interpreted to distinguish among the types 
of van services currently in existence (see question 6 below).

Request for Comments

    The purpose of this ANPRM is to gather information from a broad

[[Page 41768]]

spectrum of commenters. While some of the questions are intended for 
specific audiences, all interested parties are encouraged to answer any 
of the questions posed. In addition, commenters should include a 
discussion of any other issues that they believe are relevant to this 
rulemaking.
    1. What types and numbers of passenger carriers that are not 
currently subject to Federal regulation would be covered by the FMCSRs 
when the new TEA-21 definition of a CMV becomes effective? For example, 
are there day care centers or senior citizen facilities/communities 
utilizing for-hire contractors in interstate commerce? How many car or 
van pools would be subject to the regulations?
    2. What would be the safety benefits of applying the FMCSRs to all 
interstate operations of for-hire vehicles with a seated passenger 
capacity of more than 8 passengers (including the driver), as in the 
TEA-21 definition? Please provide data and information to support your 
position.
    3. What would be the economic impact--positive or negative--of 
extending the applicability of the FMCSRs to businesses engaged in the 
interstate operation of vehicles designed or used to transport 9-15 
passengers? Keep in mind that the FMCSRs include driver qualifications, 
medical qualifications, hours of service limits, and vehicle 
requirements (including inspection, repair and maintenance provisions). 
Would complying with the FMCSRs impact on current daily business 
operations and procedures?
    4. With the exception of FHWA recordkeeping requirements (e.g., 
driver qualification files, medical reports, records of duty status, 
etc.), what provisions of the FMCSRs are not currently met by 
businesses operating small capacity passenger vehicles in interstate 
commerce? For example, do these businesses, as a matter of good 
operating practice, require their drivers periodically to undergo a 
physical examination? Are there limits to the number of hours that a 
driver may operate a vehicle? Is there a systematic inspection, repair 
and maintenance program in place for the vehicles?
    5. What would be the incremental cost (if any) of complying with 
the non-recordkeeping provisions of the FMCSRs for interstate operators 
of small capacity passenger vehicles?
    6. Should the FHWA require States receiving MCSAP funds to make the 
State equivalents of the FMCSRs applicable to for-hire carriers 
operating passenger vehicles with a capacity of 9-15 in intrastate 
commerce? Some States may wish to enforce the revised TEA-21 definition 
on businesses operating those vehicles either in interstate or 
intrastate commerce, or both. The FHWA requests each State to indicate 
whether it already regulates this class of vehicles or whether it would 
adopt the new TEA-21 definition voluntarily. We recognize that many 
State MCSAP agencies would need additional legislative authority to 
adopt the new definition; we are simply asking for their best guess as 
to the reaction of their legislatures to such a proposition.
    An issue which requires clarification is the meaning of ``for 
compensation.'' If a hotel offers an airport shuttle service to its 
paying guests, yet passes the cost of such service on to the guest 
without itemizing it on the bill, is that transportation ``for 
compensation?'' If a van-pool requires each passenger to contribute 
his/her proportionate share of expenses, is that transportation ``for 
compensation?'' States, other governmental entities, and any interested 
parties are invited to offer their comments regarding an appropriate 
application of ``for compensation.''
    7. How would States likely to adopt the new TEA-21 definition 
enforce it? For example, would the State restrict enforcement to 
roadside inspections of the vehicles and drivers? Would more personnel 
be required?
    8. For State agencies and industry associations that have 
statistics on the use of vehicles designed or used to transport between 
9 and 15 passengers in interstate commerce, approximately how many 
additional businesses would be subject to the FMCSRs or State 
equivalent under the amended statutory definition of a CMV? How many 
drivers are employed by these businesses and how many vehicles are 
operated by them?
    9. In light of the fact that TEA-21 provides the FHWA with explicit 
direction to apply the FMCSRs to smaller capacity passenger vehicles 
designed ``or used'' to carry passengers, what effect do you foresee if 
the FHWA's current regulatory definition at Sec. 390.5 were so changed? 
(Use the above questions as a reference when evaluating the impact.)
    All commenters are asked to provide information, data, and 
recommendations, based upon their own experience with transportation 
issues, to assist the FHWA in evaluating the potential safety benefits 
and the costs of implementing the CMV definition enacted by TEA-21. The 
FHWA especially encourages the submission of accident data on small 
passenger vehicles. Since Department of Transportation statistics do 
not distinguish between private and commercial light weight vehicles, 
such data would be useful if available.

Rulemaking Analyses

    All comments received before the close of business on the comment 
closing due date indicated above will be considered and will be 
available for examination in the docket at the above address. Comments 
received after the comment closing date will be filed in the docket and 
will be considered to the extent practicable. In addition to late 
comments, the FHWA will also continue to file relevant information in 
the docket as it becomes available after the comment period closing 
date, and interested persons should continue to examine the docket for 
new material.

Executive Order 12866 (Federal Regulation) and DOT Regulatory 
Policies and Procedures

    In this rulemaking, the FHWA is considering changes to the 
definition of a commercial motor vehicle which would extend the FMCSRs 
to vehicles designed or used to carry more than 8 passengers (including 
the driver), for compensation in interstate compensation as mandated by 
the TEA-21. The regulatory action under consideration is significant 
under Executive Order 12866 and significant under the regulatory 
policies and procedures of the Department of Transportation because of 
the substantial public interest anticipated if the agency expands the 
applicability of the FMCSRs to an expanded population of regulated 
commercial motor vehicles as in the previously cited instances. The 
potential economic impact of expanding the applicability of the FMCSRs 
is not known at this time. Therefore, a full regulatory evaluation has 
not yet been prepared. The agency intends to use the information 
collected from comments to this docket to determine whether a notice of 
proposed rulemaking should be developed, and, if necessary, a full 
regulatory evaluation.

Regulatory Flexibility Act

    Due to the preliminary nature of this document and the lack of 
necessary information on costs, the FHWA is unable at this time to 
evaluate the effects of the potential regulatory changes on small 
entities. The FHWA solicits comments, information, and data on these 
potential impacts.

Unfunded Mandates Reform Act

    The FHWA will analyze any proposed rule to determine whether it 
would result in the expenditure by state, local, and tribal 
governments, in the aggregate,

[[Page 41769]]

or by the private sector, of $100 million or more in any one year, as 
required by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532).

Executive Order 12612 (Federalism Assessment)

    This action will be analyzed in accordance with the principles and 
criteria contained in Executive Order 12612 to determine if this action 
has sufficient federalism implications to warrant the preparation of a 
federalism assessment. Nothing in this document directly preempts any 
State law or regulation.

Executive Order 12372 (Intergovernmental Review)

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

Paperwork Reduction Act

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

National Environmental Policy Act

    The agency will analyze this action for purposes of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) to determine 
whether would have any effect on the quality of the environment.

Regulation Identification Number

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

List of Subjects

49 CFR Part 390

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

49 CFR Part 391

    Highways and roads, Motor carriers--driver qualifications, Motor 
vehicle safety, Reporting and record keeping requirements.

49 CFR Part 392

    Highway safety, Highways and roads, Motor carriers--driving 
practices.

49 CFR Part 393

    Highways and roads, Motor carriers, Motor vehicle equipment, Motor 
vehicle safety.

49 CFR Part 395

    Global positioning systems, Highways and roads, Highway safety, 
Motor carriers--driver hours of service.

49 CFR Part 396

    Highways and roads, Motor carriers, Motor vehicle maintenance, 
Motor vehicle safety.

(49 U.S.C. 31132, 31136, and 31502; and 49 CFR 1.48)

    Issued: July 27, 1998.
Kenneth R. Wykle,
Federal Highway Administrator.
[FR Doc. 98-20920 Filed 8-4-98; 8:45 am]
BILLING CODE 4910-22-P