[Federal Register Volume 73, Number 153 (Thursday, August 7, 2008)]
[Proposed Rules]
[Pages 45929-45935]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-18173]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 356, 365, and 374

[Docket No. FMCSA-2008-0235]
RIN 2126-AB16


Elimination of Route Designation Requirement for Motor Carriers 
Transporting Passengers Over Regular Routes

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

ACTION: Notice of proposed rulemaking (NPRM); request for comments.

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SUMMARY: FMCSA proposes to discontinue its current requirement that 
applicants seeking authority to transport passengers over regular 
routes submit a detailed description and a map of the route(s) over 
which they propose to operate. The Agency would register such carriers 
as regular-route carriers without requiring designation of specific 
regular routes and fixed end-points. Once these regular-route motor 
carriers have obtained operating authority from FMCSA, they would no 
longer need to seek additional FMCSA approval in order to change or add 
routes. By eliminating the need to file and process multiple requests 
concerning routes, the Agency believes this action will decrease the 
paperwork burden on regular-route motor carriers seeking to expand or 
change their routes without compromising safety. It will also decrease 
the Agency's own paperwork burden. Each registered regular-route motor 
carrier of passengers would continue to be subject to the full safety 
oversight and enforcement program of FMCSA and its State and local 
partners.

DATES: FMCSA must receive your comments by September 22, 2008.

ADDRESSES: You may submit comments identified by the Federal Docket 
Management System Number in the heading of this document by any of the 
following methods. Do not submit the same comments by more than one 
method. The Federal eRulemaking portal is the preferred method for 
submitting comments, and we urge you to use it.
    Federal eRulemaking Portal: Go to http://www.regulations.gov. 
Follow the online instructions for submitting comments. In the Comment 
or Submission section, type Docket ID Number ``FMCSA-2008-0235'', 
select ``Go'', and then click on ``Send a Comment or Submission.'' You 
will receive a tracking number when you submit a comment.
    Telefax: 1-202-493-2251.
    Mail, Courier, or Hand-Deliver: Docket Management Facility, U.S. 
Department of Transportation, Room W12-140, 1200 New Jersey Avenue, 
SE., Washington, DC 20590-0001. Office hours are between 9 a.m. and 5 
p.m., E.T., Monday through Friday, except Federal holidays.
    Privacy Act: Regardless of the method used for submitting comments, 
all comments will be posted without change to the Federal Docket 
Management System (FDMS) at http://www.regulations.gov. Anyone can 
search the electronic form of all our dockets in FDMS, by the name of 
the individual submitting the comment (or signing the comment, if 
submitted on behalf of an association, business, labor union, etc.). 
DOT's complete Privacy Act Statement was published in the Federal 
Register on April 11, 2000 (65 FR 19476), and can be viewed at the URL 
http://docketsinfo.dot.gov.

FOR FURTHER INFORMATION CONTACT: Mr. David Miller, Regulatory 
Development Division, (202) 366-5370 or by e-mail at: 
<a href="/cdn-cgi/l/email-protection#fcbab1bfafbd8e999b8fbc989388d29b938a"><span class="__cf_email__" data-cfemail="c98f848a9a88bbacaeba89ada6bde7aea6bf">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This section is organized as follows:

I. Description of the Rulemaking
II. Legal Basis for the Rulemaking
III. Background
    A. Introduction
    B. Impact on State Regulation of Intrastate Regular-Route 
Transportation by Interstate Carriers
    C. Registration of Governmental Entities Providing Interstate 
Regular-Route Transportation
IV. The Proposed Rule
V. Other Approaches Considered
VI. Regulatory Analyses and Notices

I. Description of the Rulemaking

    FMCSA is discontinuing the administrative requirement that motor 
carriers must describe specific routes when seeking authority to 
provide regular-route transportation of passengers in interstate 
commerce. Except for carriers who are public recipients of governmental 
assistance, regular-route passenger carriers will be registered as such 
without any specific route designations. Carriers currently holding 
route-specific operating authority will be issued motor carrier 
certificates of registration that are not route-specific which will 
supersede their existing authority.
    Designation of regular routes is no longer required by statute and 
discontinuing this requirement will streamline the registration process 
by eliminating the need for motor carriers to file new applications 
when seeking to change or expand their routes. It will also benefit new 
entrants by simplifying the application for operating authority. 
Designation of regular routes is an administrative requirement based on 
economic regulation which is considered to have limited safety benefits 
to the public or the transportation community.
    However, the Agency will continue to require public recipients of 
governmental assistance to designate specific routes when applying for 
regular-route authority because its governing statute permits persons 
to challenge specific regular-route transportation service provided by 
public entities on the ground that authorizing such service is not 
consistent with the public interest. Eliminating the route designation 
requirement would prevent the Agency from evaluating proposed 
transportation services under the public interest standard, in 
violation of its statutory mandate.
    This rulemaking amends several FMCSA regulations that reference 
authorized routes or points of service in order to make them consistent 
with the

[[Page 45930]]

Agency's discontinuation of the route designation requirement. The OP-
1(P) application form would also be changed to eliminate the current 
route-designation and mapping requirements.

II. Legal Basis for the Rulemaking

    Regular-route passenger service predates the Motor Carrier Act of 
1935 (MCA) (Pub. L. 74-255, 49 Stat. 543, Aug. 9, 1935). The MCA, which 
placed interstate motor carriers under Federal regulation for the first 
time, authorized the Interstate Commerce Commission (ICC) to regulate 
motor carriers by, among other things, issuing certificates of 
operating authority to motor carriers of property and passengers 
operating in interstate commerce. Many motor carriers providing 
regular-route service before 1935 received ``grandfathered'' operating 
authority in the MCA. Section 207(a) of the MCA stated that ``no 
certificate shall be issued to any common carrier of passengers for 
operations over other than a regular route or regular routes, and 
between fixed termini [end-points], except as such carriers may be 
authorized to engage in special or charter operations.'' Section 208(a) 
required that certificates issued to regular-route passenger carriers 
specify the routes, end-points, and intermediate points to be served 
under the certificate. Section 208(b) permitted occasional deviations 
from authorized routes, if permitted by ICC regulations. The ICC did 
not issue regulations codifying sections 207(a) and 208(a) of the MCA, 
although it did permit minor deviations from authorized routes in rules 
now codified at 49 CFR 356.3.
    The above MCA provisions were recodified without substantive change 
as 49 U.S.C. 10922(f)(1)-(3); however, the provisions were then 
repealed by the ICC Termination Act of 1995 (ICCTA) (Pub. L. 104-88, 
109 Stat. 888, Dec. 29, 1995). As discussed later in this preamble, 
section 103 of the ICCTA amended subtitle IV of title 49, United States 
Code, including section 10922 of title 49. In particular, the ICCTA 
retained some of the former registration requirements of section 10922 
applicable to regular-route passenger carriers but eliminated many 
others, including sections 10922(f)(1)-(3). Consequently, the Agency is 
no longer required to issue operating authority to regular-route 
passenger carriers specifying routes and fixed end-points. However, the 
Agency has continued to require applicants seeking regular-route 
authority to submit maps and a detailed description of proposed 
operating route(s) as attachments to the Form OP-1(P) application.
    The Agency is proposing to discontinue this requirement and amend 
its regulations and Form OP-1(P) to reflect the change in statute, 
i.e., it would no longer require carriers to specify, in applications 
for regular-route operating authority, the routes, end-points, and 
intermediate points to be served. Under 49 U.S.C. 13301(a), the 
Secretary of Transportation (Secretary) may prescribe regulations to 
carry out title 49, subtitle IV, part B, which includes registration 
requirements for motor carriers transporting passengers in interstate 
commerce for compensation. The Secretary has delegated this authority 
to the Administrator of FMCSA under 49 CFR 1.73(a).

III. Background

A. Introduction

    FMCSA currently registers for-hire passenger carriers in two 
distinct operational categories: (1) Carriers providing service over 
regular routes, and (2) carriers providing charter and special 
transportation. Regular-route carriers perform regularly scheduled 
service over named roads or highways. Applicants seeking regular-route 
authority must currently submit a ``detailed narrative description of 
the route(s) and a corresponding map that graphically displays the path 
of the route'' over which they propose to operate. If a carrier 
proposes to add routes to its operating system, it must file a new 
application in order to do so. A carrier is not limited in the number 
of routes it may include in any particular application.
    The route descriptions submitted by an applicant are published in 
the FMCSA Register (see http://li-public.fmcsa.dot.gov/LIVIEW/pkg_menu.prc_ menu). Interested parties may file protests to an 
application within 10 days of publication. The Agency must deny the 
application if a protest or information independently developed by the 
Agency demonstrates that the applicant is not willing and able to 
comply with the Agency's safety fitness requirements or with the 
applicable commercial, safety, or financial responsibility regulations 
(49 CFR parts 356 through 396). As discussed later, a protesting party 
may object to a regular-route application filed by a public recipient 
of governmental assistance on the additional ground that the 
transportation proposed is not in the public interest.
    As of July 2008, there were 272 active regular-route carriers in 
FMCSA's Licensing and Insurance database. In 2007, FMCSA received 94 
applications for regular-route authority from new entrants and 34 
applications from registered motor carriers of passengers with existing 
regular-route authority. The number of protests received is generally 
very small; they averaged one per year between 2003 and 2007.
    FMCSA believes its current requirement for route designation no 
longer serves a useful purpose. Congress enacted the statutory 
requirement in the MCA primarily to protect existing carriers, serving 
a particular route, from competition. Subsequent legislative changes, 
including those in the ICCTA, have limited the ability of existing 
carriers to protest applications based on economic grounds. If Congress 
believed the requirement for route designation served a useful purpose, 
it presumably would have retained the requirement in the ICCTA, as it 
did with numerous other provisions of the former Interstate Commerce 
Act.
    The requirement that regular-route carriers file new applications 
when seeking to expand or change routes is not based on motor carrier 
safety considerations--it is grounded in economic regulation. 
Eliminating the multiple application requirement would not have an 
adverse impact on safety because the motor carriers will still be 
required to comply with all applicable safety rules. New entrants would 
still be subject to the ``fitness standard,'' and existing regular-
route passenger carriers would be treated the same as property carriers 
and passenger carriers that provide charter and special transportation. 
These latter carriers normally receive nationwide operating authority 
and generally need file only a single application in order to provide 
interstate transportation. Potential safety problems are generally 
determined through new entrant safety audits, compliance reviews, or 
roadside inspections, and are addressed through the Agency's 
enforcement program. The Agency believes there is no reason for 
regular-route passenger carriers to be treated differently from other 
carriers to ensure their compliance with the Federal Motor Carrier 
Safety Regulations.
    Each new entrant regular-route motor carrier of passengers is 
subject to the full safety oversight and enforcement programs of the 
FMCSA and its State and local partners. As required by 49 U.S.C. 31144, 
FMCSA determines whether each owner and operator is fit to operate 
safely. This section requires each owner and operator granted operating 
authority to undergo a new entrant safety audit within 18 months of 
starting operations. These new entrant

[[Page 45931]]

safety audits identify new motor carriers that are operating in 
violation of FMCSA regulations and, therefore, may have a high risk of 
causing crashes that could result in fatalities, injuries, and property 
damage. The safety audit process in 49 CFR part 385, subpart D 
(Sec. Sec.  385.301 through 385.337) allows the Agency to evaluate new 
motor carriers before granting them permanent registration.
    In addition to the new entrant safety audit, FMCSA conducts 
continual oversight of regular-route motor carriers of passengers under 
its general, pre-existing legal authority provided by section 206 of 
the Motor Carrier Safety Act of 1984 (codified at 49 U.S.C. 31136) (the 
1984 Act). The 1984 Act requires regulations that prescribe minimum 
safety standards for commercial motor vehicles (CMVs) that ensure: (1) 
CMVs are maintained, equipped, loaded, and operated safely; (2) the 
responsibilities imposed on operators of CMVs do not impair their 
ability to operate the vehicles safely; (3) the physical condition of 
operators of CMVs is adequate to enable them to operate the vehicles 
safely; and (4) the operation of CMVs does not have a deleterious 
effect on the physical condition of the operators (49 U.S.C. 31136(a)).
    FMCSA would continue to monitor and enforce its commercial, safety, 
and financial responsibility regulations on all regular-route motor 
carriers of passengers. It would also require and ensure its State 
motor carrier safety enforcement partners continue their monitoring and 
enforcement activities as required in their grant funding agreements 
under the Motor Carrier Safety Assistance Program. Therefore, regular-
route motor carriers of passengers would continue to be subject to the 
full requirements of the Federal Motor Carrier Safety Regulations that 
require CMVs to be maintained and operated safely.
    The Agency concludes that the current route designation 
requirement, and its related requirement that registered carriers file 
new applications when adding or changing routes, has no discernible 
safety benefit. It does, however, continue to burden the industry and 
the Agency with unnecessary paperwork.

B. Impact on State Regulation of Intrastate Regular-Route 
Transportation by Interstate Carriers

    Although the ICCTA repealed 49 U.S.C. 10922(f)(1)-(3), Congress 
carried forward other preexisting statutory requirements applicable to 
regular-route passenger carriers. The most significant of these 
provisions is now codified in 49 U.S.C. 13902(b)(3) and provides:

    Intrastate transportation by interstate carriers.--A motor 
carrier of passengers that is registered by the Secretary under 
subsection [13902] (a) is authorized to provide regular-route 
transportation entirely in one State as a motor carrier of 
passengers if such intrastate transportation is to be provided on a 
route over which the carrier provides interstate transportation of 
passengers.

Section 13902(b)(3) codifies section 6 of the Bus Regulatory Reform Act 
of 1982 (Bus Act) (Pub. L. 97-261, 96 Stat. 1102, Sept. 20, 1982), 
which amended former section 10922 in numerous respects. Section 6 
preempted States from regulating intrastate service provided by 
interstate regular-route passenger carriers over interstate routes.
    Congress concluded that burdensome State regulation was one of 
several significant factors contributing to the declining financial 
health of the interstate regular-route bus industry. This conclusion 
was based largely on: (1) The inability of interstate carriers to 
discontinue unprofitable intrastate routes due to State regulatory 
restrictions on entry, exit, or service frequency over these routes; 
and (2) the inability of interstate carriers to maximize operational 
efficiency due to State ``closed door'' policies prohibiting them from 
picking up and dropping off intrastate passengers along interstate 
routes.
    If a regular-route passenger carrier obtains operating authority 
from FMCSA, a State is prohibited from requiring the carrier to obtain 
operating authority to provide intrastate service on that route. In 
H.R. Conf. Rep. 100-27 accompanying the Surface Transportation and 
Uniform Relocation Assistance Act of 1987 (STURAA) (Pub. L. 100-17, 101 
Stat. 132, Apr. 2, 1987), Congress noted that the preemption is 
limited; that is, grants of intrastate authority must have a nexus to 
legitimate interstate service provided along interstate routes. The 
STURAA amended the Bus Act by clarifying that interstate service 
provided along the route must be a substantial, bona fide service 
involving actual service in more than one State. Because the preemption 
is route-specific, FMCSA requests comment on whether elimination of 
route designations in FMCSA operating certificates would make this 
preemption provision more difficult to enforce and perhaps result in 
increased State regulation of intrastate regular-route transportation.
    Under 49 U.S.C. 14501(a)(1)(A), States are also preempted from 
regulating the scheduling of interstate or intrastate transportation 
(including discontinuance of or reduction in the level of service) on 
an interstate route. FMCSA specifically requests comment on whether 
elimination of route designations will affect this preemption 
provision.
    A related statutory provision, 49 U.S.C. 13902(b)(4), concerns the 
ability of States to regulate express packages, newspapers, or mail 
carried on buses. Section 13902(b)(4) provides:

    Preemption of State regulation regarding certain service.--No 
State or political subdivision thereof and no interstate agency or 
other political agency of 2 or more States shall enact or enforce 
any law, rule, regulation, standard or other provision having the 
force and effect of law relating to the provision of pickup and 
delivery of express packages, newspapers, or mail in a commercial 
zone if the shipment has had or will have a prior or subsequent 
movement by bus in intrastate commerce and, if a city within the 
commercial zone, is served by a motor carrier of passengers 
providing regular-route transportation of passengers subject to 
jurisdiction under subchapter I of chapter 135.

    This provision, which was enacted by the Bus Act, essentially 
extends the preemption of State regulation of intrastate passenger 
transportation in section 13902(b)(3) to express packages, newspapers, 
or mail carried in the buses. As with section 13902(b)(3), FMCSA 
requests comment on whether elimination of route designations in FMCSA 
operating certificates would make this preemption provision more 
difficult to enforce and perhaps result in increased State regulation 
of the transportation of express packages, newspapers, or mail in a 
commercial zone.

C. Registration of Governmental Entities Providing Interstate Regular-
Route Transportation

    Additional statutory provisions applicable to interstate regular-
route transportation include 49 U.S.C. 13902(b)(2)(B), which provides:

    Regular-route transportation.--The Secretary shall register 
under subsection [13902] (a)(1) a public recipient of governmental 
assistance to provide regular-route transportation subject to 
jurisdiction under subchapter I of chapter 135 as a motor carrier of 
passengers if the Secretary finds that the recipient meets the 
requirements of subsection (a)(1), unless the Secretary finds, on 
the basis of evidence presented by any person objecting to the 
registration, that the transportation to be provided pursuant to the 
registration is not in the public interest.

    This subsection mandates registration of governmental entities 
providing regular-route transportation if they meet Agency fitness 
standards, unless the

[[Page 45932]]

Agency finds the transportation is not in the public interest (but only 
if someone objects to the application and submits the necessary 
evidence).
    Title 49 U.S.C. 13902(b)(8) defines ``public recipient of 
governmental assistance'' as:

    (i) any State, (ii) any municipality or other political 
subdivision of a State, (iii) any public agency or instrumentality 
of one or more States and municipalities and political subdivisions 
of a State, (iv) any Indian tribe, and (v) any corporation, board, 
or other person owned or controlled by any entity described in 
clause (i), (ii), (iii), or (iv), which before, on, or after January 
1, 1996, received governmental assistance for the purchase or 
operation of any bus.

This subsection essentially recodifies a requirement enacted by the 
STURAA. According to H.R. Conf. Rep. 100-27, this provision was 
intended to permit the Secretary to deny applications for regular-route 
authority filed by public entities if they propose specific operations 
that will not be in the public interest because of the potential 
adverse financial impact on existing private operations.
    Consequently, applications filed by public entities seeking to 
provide regular-route transportation are subject to more registration 
criteria than those applicable to private entities. Removing the route-
designation requirement for applications for regular route authority 
filed by public entities would prevent persons from protesting the 
specific transportation to be provided. Accordingly, the Agency is 
retaining the existing route-designation requirements for public 
recipients of governmental assistance filing applications subject to 
section 13902(b)(2)(B).

IV. The Proposed Rule

    FMCSA is proposing to register passenger carriers as regular-route 
carriers without designating specific regular routes or fixed end-
points. Thus, registered regular-route passenger carriers would no 
longer be required to submit a new application to add new or change 
existing routes. By eliminating the need to file and process multiple 
applications containing detailed routes, this change would decrease the 
paperwork burden on regular-route carriers seeking to expand or change 
their routes. It would also reduce the Agency's own administrative and 
paperwork burden.
    FMCSA would modify existing certificates of regular-route authority 
upon issuance of a final rule. Carriers holding existing certificates 
would not be required to file new OP-1(P) applications in order to seek 
the broader regular-route authority proposed by the Agency. The broader 
authority would automatically supersede any route-specific authority 
issued by FMCSA or its predecessor agencies. FMCSA would issue and mail 
to all active motor carriers of passengers registered as having 
regular-route authority new certificates showing the broader authority. 
Such certificates would become effective on the effective date of a 
final rule in this proceeding.
    In order to implement this proposal, FMCSA proposes to amend 
various sections of Title 49 of the Code of Federal Regulations (CFR) 
to make them consistent with the Agency's proposed registration 
procedures. First, 49 CFR 356.3 prescribes the extent to which 
passenger carriers may serve points not located on their ``authorized 
routes.'' Except for motor carriers authorized to operate in designated 
parts of the New York City metropolitan area, passenger carriers are 
allowed to serve municipalities, unincorporated areas, military posts, 
airports, schools, and ``similar establishments'' located within 1 
airline mile of the authorized route. The Agency proposes to eliminate 
this section, as authorization for specific regular routes would no 
longer be required.
    Section 365.101 identifies the types of operating authority 
applications filed with the Agency. Under Sec.  365.101(e), these 
applications include ``[a]pplications for certificates under 49 U.S.C. 
13902(b)(3) to operate as a motor common carrier of passengers in 
intrastate commerce on a route over which applicant holds interstate 
authority as of November 19, 1982.'' Similarly, current Sec.  
365.101(f) includes: ``[a]pplications for certificates under 49 U.S.C. 
13902(b)(3) to operate as a motor common carrier of passengers in 
intrastate commerce on a route over which applicant has been granted or 
will be granted interstate authority after November 19, 1982.'' The 
regulations implicitly tie authority to operate in intrastate commerce 
to authority to operate over specific interstate routes granted by 
FMCSA. The Agency proposes to consolidate these paragraphs to reflect 
that the Agency would no longer be granting authority to passenger 
carriers to operate over specific routes.
    Subpart C to 49 CFR part 374 contains regulations governing the 
adequacy of intercity regular-route passenger service. Three sections 
contain language referencing the Agency's authority over ``points'' or 
``routes.'' Current Sec.  374.303(f) defines ``service'' as passenger 
transportation by bus between ``authorized points'' or over 
``authorized routes.'' Current Sec.  374.311(a) requires carriers to 
establish schedules that can be reasonably met to adequately serve 
``all authorized points.'' Current Sec.  374.311(b) requires carriers 
to report all schedule changes on routes to FMCSA and to post notices 
for the convenience of their passengers. These regulations indicate 
that passenger carriers must receive authority from FMCSA to operate 
over specific routes. We propose to amend Sec. Sec.  374.303(f) and 
374.311(a) by removing the specific language indicating that the Agency 
grants authority to operate over specific routes. We propose to amend 
Sec.  374.311(b) by removing the requirement that carriers must file 
with FMCSA notices of schedule and route changes.
    FMCSA would continue to require regular-route motor passenger 
carriers to post notices of schedule changes in each affected bus and 
carrier facility for the convenience of their passengers.

V. Other Approaches Considered

    FMCSA considered alternatives to eliminating the existing route 
designation requirement, including: (1) Registering all passenger 
carriers in the same manner, not distinguishing between regular-route, 
charter, and special operations passenger carriers; and (2) registering 
passenger carriers as regular-route carriers between fixed end-points 
without requiring designation of specific regular routes.
    If passenger carriers were registered in the same manner, they 
would only be required to file a single application with a single 
filing fee to provide any type of passenger service. If passenger 
carriers were only required to designate fixed end-points, they would 
not be required to file a new application to add or change routes 
between end-points. This would also decrease the burden on Agency staff 
in transcribing routes and processing applications.
    Registering all passenger carriers in the same manner would require 
statutory changes to sections 13902 and 14501 to maintain preemption of 
State regulation of intrastate regular-route service, which is 
expressly based on interstate regular-route operations. It would also 
require revisions to, or the elimination of, regulations linked to the 
regular-route operational designation, particularly in 49 CFR part 374, 
subpart C, regarding adequacy of service.
    Although requiring carriers to file new applications only when 
adding end-points would be less burdensome than the current practice, 
carriers would still be required to file multiple applications under 
this option in order to expand existing routes. Thus, it

[[Page 45933]]

would be more burdensome than the Agency's proposal.
    The Agency invites comment on this proposal, as well as other 
possible alternatives to the current route-designation requirement.

VI. Regulatory Analyses and Notices

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

    FMCSA determined that this action is not significant under 
Executive Order 12866. This proposal does not have an annual effect on 
the economy of $100 million or more and does not adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or tribal governments or communities. The proposal does not 
create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency, does not materially alter the 
budgetary impact of entitlements, grants, user fees, or loan programs 
or the rights and obligations of recipients, and does not raise novel 
legal or policy issues arising out of legal mandates or the 
Administration's priorities. FMCSA prepared a regulatory impact 
assessment for this NPRM as required by Executive Order 12866, but the 
NPRM and the regulatory impact assessment have not been reviewed by the 
Office of Management and Budget (OMB) because it was determined to be 
not significant under the Executive Order.
    The Agency's regulatory impact assessment in the docket, identified 
in the heading of this NPRM, notes that the intercity passenger 
industry may be experiencing structural changes in terms of the number 
of new firms and market share of carriers. Therefore, the Agency 
evaluated the route deregulation options under three industry growth/
change scenarios. FMCSA based each scenario on the number of regular-
route authority applications filed over the past 3 to 5 years.
    Based on these scenarios, FMCSA estimates annual net benefits to 
the industry of $36,000 to $44,000 from avoided costs related to the 
elimination of the route designation application requirement. Evaluated 
over a 10-year period, the estimated net present value of the industry 
cost savings is in a range from $222,000 to $341,000 based on discount 
rates of 3 to 7 percent depending on whether one uses a 3-year average, 
5-year average, or 5-year median.

Regulatory Flexibility Act, as Amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996

    The Regulatory Flexibility Act (RFA) (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), requires Federal agencies, as a part of 
each rulemaking, to consider regulatory alternatives that minimize the 
impact on small entities while achieving the objectives of the 
rulemaking. FMCSA has evaluated the effects of this proposed rule on 
small entities as required by the RFA.
    All new entrant regular-route carriers are affected by the proposed 
rulemaking action because all such carriers must file an OP-1(P) 
application to obtain regular-route authority. Existing regular-route 
carriers are affected only if they seek to expand their routes. New 
entrants and existing carriers submitted an average of 92 regular-route 
authority applications each year between 2003 and 2005. Currently, 
there are 272 active regular route authority carriers in total. The 
Small Business Administration (SBA) Small Business Size Standard for 
Interurban and Rural Bus Transportation is no more than $6.5 million in 
gross annual revenue. Based on U.S. industry statistics for 2002 
provided by the SBA Office of Advocacy, 279 out of 323 firms in the 
interurban and rural bus transportation industry (roughly 86 percent) 
reported annual receipts of less than $5 million. Additionally, 
carriers with annual gross revenues between $5 million and $6.5 million 
would also be classified as small businesses, though FMCSA is unable to 
quantify the number of carriers within this range. Absent more current 
detailed data, the Initial Regulatory Flexibility Analysis assumes that 
approximately 86 percent of regular route authority carriers are small 
entities.
    The proposed rulemaking is a deregulatory action implementing a 
policy change intended to provide relief to industry. There are no 
additional costs specific to these entities as a result of this 
rulemaking, and the underlying policy change provides applicants with a 
cost saving of approximately $300 for each application.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531 et seq.) 
requires each agency to assess the effects of its regulatory actions on 
State, local, and tribal governments and the private sector. Any agency 
promulgating a final rule likely to result in a Federal mandate 
requiring expenditures by State, local, or tribal governments, in the 
aggregate, or by the private sector, of $136.1 million or more in any 1 
year must prepare a written statement incorporating various 
assessments, estimates, and descriptions that are delineated in the 
Act. FMCSA determined that this proposal would not have an impact of 
$136.1 million or more in any 1 year.

Environmental Impacts

    The Agency analyzed this proposed rule for the purpose of the 
National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et 
seq.), the Council on Environmental Quality regulations implementing 
NEPA (40 CFR 1500-1508), and FMCSA's NEPA Implementation Order 5610.1 
published March 1, 2004 (69 FR 9680). This action is categorically 
excluded under Appendix 2, paragraph 6.d of the Order (regulations 
governing applications for operating authority) from further 
environmental documentation. The Agency believes that the action 
includes no extraordinary circumstances that would have any effect on 
the quality of the environment. Thus, the action does not require an 
environmental assessment or an environmental impact statement.
    FMCSA also analyzed this proposed rule under the Clean Air Act, as 
amended (CAA) section 176(c), (42 U.S.C. 7401 et seq.) and implementing 
regulations promulgated by the Environmental Protection Agency. 
Approval of this action is exempt from the CAA's general conformity 
requirement since it involves rulemaking and policy development and 
issuance. (See 40 CFR 93.153(c)(2).) It would not result in any 
emissions increase nor would it have any potential to result in 
emissions that are above the general conformity rule's de minimis 
emission threshold levels. Moreover, it is reasonably foreseeable that 
the rule would not increase total CMV mileage, how CMVs operate, or the 
CMV fleet-mix of motor carriers. This action merely allows passenger 
carriers to make changes to their regular routes without FMCSA 
approval. Such alterations are routinely approved under current Agency 
procedures.

Environmental Justice

    The FMCSA evaluated the environmental effects of this NPRM in 
accordance with Executive Order 12898 and determined that there are no 
environmental justice issues associated with its provisions nor any 
collective environmental impact resulting from its promulgation. 
Environmental justice issues would be raised if there were 
``disproportionate'' and ``high and

[[Page 45934]]

adverse impact'' on minority or low-income populations. None of the 
alternatives analyzed in the Agency's categorical exclusion 
determination, discussed under National Environmental Policy Act, would 
result in high and adverse environmental impacts.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-
3520), a Federal agency must obtain approval from OMB for each 
collection of information it conducts, sponsors, or requires. This 
rulemaking would affect a currently-approved information collection 
request (ICR) covered by OMB Control Number 2126-0016, entitled 
``Licensing Applications for Motor Carrier Operating Authority.'' This 
ICR has an annual burden of 55,738 burden hours, and will expire on 
August 31, 2008.
    FMCSA is authorized to register for-hire motor passenger carriers 
under the provisions of 49 U.S.C. 13902. The form used to apply for 
operating authority with FMCSA is Form OP-1(P) for motor passenger 
carriers. This form requests information on the applicant's identity, 
location, familiarity with safety requirements, and type of proposed 
operations.
    The Agency proposes to discontinue its current requirement that 
motor carriers seeking authority to transport passengers over regular 
routes submit to FMCSA a detailed description and map of the proposed 
route(s) for approval. The proposal would reduce the currently approved 
ICR annual burden by 180 hours [2 hours to provide description and map 
of regular routes in Form OP-1(P) x 90 regular route applications per 
year = 180 hours]. The estimated annual burden for this ICR would 
decrease to 55,558 hours [55,738 currently approved annual burden hours 
- 180 hours less time to complete Form OP-1(P) regular route 
applications = 55,558].
    Public Comments Invited: You are asked to comment on any aspect of 
this information collection, including: (1) Whether the proposed 
collection is necessary for the Agency to perform its mission, (2) the 
accuracy of the estimated burden, (3) ways for FMCSA to enhance the 
quality, usefulness, and clarity of the collected information, and (4) 
ways that the burden could be minimized without reducing the quality of 
the collected information. The Agency will summarize or include your 
comments in the request for OMB's clearance of this information 
collection.

Executive Order 12988 (Civil Justice Reform)

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

Executive Order 12630 (Taking of Private Property)

    FMCSA has analyzed this proposed rule under Executive Order 12630, 
entitled ``Governmental Actions and Interference with Constitutionally 
Protected Property Rights.'' We do not anticipate that this proposed 
action would effect a taking of private property or otherwise have 
taking implications under Executive Order 12630.

Executive Order 13132 (Federalism)

    This proposed action has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132, and FMCSA 
has preliminarily determined that this rulemaking would not warrant the 
preparation of a Federalism assessment. We have determined that this 
proposed action would not affect the States' ability to discharge 
traditional State government functions.

Executive Order 13211 (Energy Effects)

    FMCSA has analyzed this proposed action under Executive Order 
13211, entitled ``Actions Concerning Regulations That Significantly 
Affect Energy Supply, Distribution, or Use.'' The Agency has determined 
that it is not a significant energy action within the meaning of 
section 4(b) of the Executive Order and is not likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy. Therefore, a Statement of Energy Effects is not required.

Executive Order 12372 (Intergovernmental Review)

    The regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on Federal programs and activities do 
not apply to this NPRM.

Executive Order 13175 (Tribal Consultation)

    FMCSA has analyzed this action under Executive Order 13175, dated 
November 6, 2000, and believes that the proposed action would not have 
substantial direct effects on one or more Indian tribes; would not 
impose substantial compliance costs on Indian tribal governments; and 
would not preempt tribal law. Therefore, a tribal summary impact 
statement is not required.

List of Subjects

49 CFR Part 356

    Administrative practice and procedure, Routing, Motor carriers.

49 CFR Part 365

    Administrative practice and procedure, Brokers, Buses, Freight 
forwarders, Motor carriers, Moving of household goods, Reporting and 
recordkeeping requirements.

49 CFR Part 374

    Aged, Blind, Buses, Civil rights, Freight, Individuals with 
disabilities, Motor carriers, Smoking.

    For the reasons discussed above, FMCSA proposes to amend title 49, 
Code of Federal Regulations, chapter III, subchapter B, as set forth 
below:

PART 356--MOTOR CARRIER ROUTING REGULATIONS

    1. The authority citation for part 356 continues to read as 
follows:

    Authority: 5 U.S.C. 553; 49 U.S.C. 13301 and 13902; and 49 CFR 
1.73.


Sec.  356.3  [Removed and Reserved].

    2. Remove and reserve Sec.  356.3.

PART 365--RULES GOVERNING APPLICATIONS FOR OPERATING AUTHORITY

    3. The authority citation for part 365 continues to read as 
follows:

    Authority: 5 U.S.C. 553 and 559; 16 U.S.C. 1456; 49 U.S.C. 
13101, 13301, 13901-13906, 14708, 31138, and 31144; 49 CFR 1.73.

    4. Amend Sec.  365.101 by removing paragraph (f), redesignating 
paragraphs (g) and (h) as paragraphs (f) and (g), and revising 
paragraph (e) to read as follows:


Sec.  365.101  Applications governed by these rules.

* * * * *
    (e) Applications for certificates under 49 U.S.C. 13902(b)(3) to 
operate as a motor carrier of passengers in intrastate commerce over 
regular routes if such intrastate transportation is to be provided on a 
route over which the carrier provides interstate transportation of 
passengers.
* * * * *

PART 374--PASSENGER CARRIER REGULATIONS

    5. The authority citation for part 374 continues to read as 
follows:

    Authority: 49 U.S.C. 13301 and 14101; and 49 CFR 1.73.


[[Page 45935]]


    6. Amend Sec.  374.303 by revising paragraph (f) to read as 
follows:


Sec.  374.303  Definitions.

* * * * *
    (f) Service means passenger transportation by bus over regular 
routes.
* * * * *
    7. Amend Sec.  374.311 by revising paragraphs (a) and (b) to read 
as follows:


Sec.  374.311  Service responsibility.

    (a) Schedules. Carriers shall establish schedules that can be 
reasonably met, including connections at junction points, to serve 
adequately all points.
    (b) Continuity of service. No carrier shall change an existing 
regular-route schedule without first displaying conspicuously a notice 
in each facility and on each bus affected. Such notice shall be 
displayed for a reasonable time before it becomes effective and shall 
contain the carrier's name, a description of the proposed schedule 
change, the effective date thereof, the reasons for the change, the 
availability of alternate service, and the name and address of the 
carrier representative passengers may contact.
* * * * *

    Issued on: July 31, 2008.
John H. Hill,
Administrator.
[FR Doc. E8-18173 Filed 8-6-08; 8:45 am]
BILLING CODE 4910-EX-P


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