[Federal Register: August 12, 2003 (Volume 68, Number 155)]

[Rules and Regulations]               

[Page 47860-47875]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr12au03-12]                         

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 390 and 398

[Docket No. FMCSA-2000-7017]

RIN 2126-AA52

Safety Requirements for Operators of Small Passenger-Carrying 

Commercial Motor Vehicles Used In Interstate Commerce

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

ACTION: Final rule.

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SUMMARY: FMCSA amends the Federal Motor Carrier Safety Regulations 

(FMCSRs) to require that motor carriers operating commercial motor 

vehicles (CMVs), designed or used to transport between 9 and 15 

passengers (including the driver) in interstate commerce, must comply 

with the applicable safety regulations when they are directly 

compensated for such services and the vehicle is operated beyond a 75 

air mile radius (86.3 statute miles or 138.9 kilometers) from the 

driver's normal work-reporting location. The agency has revised its 

proposed distance threshold to focus on the distance that the driver 

operates the vehicle, as opposed to the distance that the passengers 

are transported. These motor carriers, drivers, and vehicles are now, 

through this rule, subject to the same safety requirements as motor 

coach operators, except for the commercial driver's license, and 

controlled substances and alcohol testing regulations. This rule 

implements section 212 of the Motor Carrier Safety Improvement Act of 

1999 (MCSIA).

DATES: This final rule is effective on September 11, 2003. Compliance 

Date. Affected motor carriers must be in compliance with this rule no 

later than November 10, 2003.

ADDRESSES:

    Assistance for Small Entities: The Small Business Regulatory 

Enforcement Fairness Act of 1996 (Pub. L. 104-121) requires the FMCSA 

to comply with small entity requests for information or advice about 

compliance with statutes and regulations within FMCSA's jurisdiction. 

Thus, if any small entity, organization, or governmental jurisdiction 

has a question regarding this document, please contact an FMCSA 

Division office in your State or an FMCSA Service Center for a given 

geographic area. For phone numbers and addresses, go to http://www.fmcsa.dot.gov/about_fmcsa/who_we_are/offices/fieldoffs.htm

, or call 1-800-832-5660, or Fax 

(202) 366-8842, FMCSA, Attn: Commercial Passenger Carrier Safety 

Division (MC-PSB), Washington, DC 20590.

    Docket: For access to the docket to read background documents or 

comments received, go to http://dms.dot.gov at any time or to Room PL-

401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., 

Washington, DC, between 9 am and 5 pm, Monday through Friday, except 

Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Mr. Larry W. Minor, (202) 366-4009, 

Chief, Vehicle and Roadside Operations Division (MC-PSV); or Mr. Philip 

J. Hanley, (202) 366-9131, Commercial Passenger Carrier Safety Division 

(MC-PSB), Federal Motor Carrier Safety 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: 

Background

Congressional Mandate to Regulate Small Passenger-Carrying Commercial 

Motor Vehicles (CMVs)

    Section 212 of the Motor Carrier Safety Improvement Act of 1999 

(MCSIA), (Pub. L. 106-159, 113 Stat. 1748, December 9, 1999), requires 

that the FMCSA make its safety regulations applicable to: (1) 

Commercial vans referred to as ``camionetas,'' and (2) those commercial 

vans operating in interstate commerce outside of commercial zones that 

have been determined to pose serious safety risks.

    Prior to enactment of the MCSIA, section 4008(a)(2) of the 

Transportation Equity Act for the 21st Century (TEA-21) Public Law 105-

178, 112 Stat. 107, June 9, 1998) amended the passenger-vehicle 

component of the commercial motor vehicle (CMV) definition in 49 U.S.C. 

31132(1). CMV is now defined statutorily 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;

[[Page 47861]]

    (C) is designed or used to transport more than 15 passengers, 

including the driver, and is not used to transport passengers for 

compensation; or

    (D) is used in transporting material found by the Secretary of 

Transportation to be hazardous under section 5103 of this title and 

transported in a quantity requiring placarding under regulations 

prescribed by the Secretary under section 5103.

    Under section 4008(b) of the TEA-21, operators of the CMVs defined 

by section 31132(1)(B) would automatically become subject to the FMCSRs 

one year after the date of enactment of the TEA-21, if they were not 

already covered, ``except to the extent that the Secretary [of 

Transportation] determines, through a rulemaking, that it is 

appropriate to exempt such operators of commercial motor vehicles from 

the application of those regulations.'' Section 4008(b) of the TEA-21 

is a mandate either to impose the FMCSRs on previously unregulated 

smaller-capacity passenger vehicles, or to exempt through notice and 

comment rulemaking some or all of the operators of such vehicles.

    On September 3, 1999, the Federal Highway Administration (FHWA) 

published an interim final rule to adopt the new statutory definition 

of a CMV (64 FR 48510).\1\ The agency revised its regulatory definition 

of CMV to be consistent with the statute, but exempted the operation of 

these small passenger-carrying vehicles from all of the FMCSRs pending 

the completion of a separate rulemaking in which the agency proposed 

requiring operators of such vehicles to file a motor carrier 

identification report, mark their CMVs with a USDOT identification 

number and certain other information, and maintain an accident 

register. The notice of proposed rulemaking (NPRM) for that rule was 

also published on September 3, 1999, at 64 FR 48518.

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    \1\ The MCSIA established the FMCSA in the Department of 

Transportation. On January 4, 2000, the Office of the Secretary 

published a final rule rescinding the authority previously delegated 

to the former Office of Motor Carrier Safety (OMCS) within FHWA (65 

FR 220). This authority is now delegated to the FMCSA. Rulemaking, 

enforcement, and other activities of the former OMCS while part of 

the FHWA are now administered by the FMCSA.

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    On January 11, 2001 (66 FR 2756), the FMCSA published a final rule 

that amended 49 CFR 390.5 to adopt the statutory definition of 

``commercial motor vehicle'' published in the interim final rule on 

September 3, 1999. The final rule also revised Sec.  390.3(f)(6) to 

require that all operators of CMVs designed or used to transport 

between 9 and 15 passengers for compensation (1) complete a motor 

carrier identification report (Form MCS-150) (49 CFR 390.19); (2) 

comply with certain provisions of the CMV marking regulation (49 CFR 

390.21); and (3) maintain an accident register (49 CFR 390.15). These 

actions were intended to enable the agency to monitor the operational 

safety of all motor carriers operating small passenger-carrying 

vehicles for compensation. In addition, the three requirements were 

intended to help the agency compile information on the number of motor 

carriers operating small passenger-carrying vehicles for compensation, 

the location of their principal places of business, the number of 

vehicles operated, and the number of drivers employed.

    On January 11, 2001 (66 FR 2767), FMCSA also published an NPRM for 

this proceeding. Section 212 of MCSIA required FMCSA to complete a 

rulemaking to determine whether motor carriers operating motor vehicles 

designed or used to transport between 9 and 15 passengers (including 

the driver) for compensation should be covered by the FMCSRs. Congress 

directed that, as a minimum, the regulations shall apply to (1) 

commercial vans referred to as ``camionetas,'' and (2) those commercial 

vans operating in interstate commerce outside of commercial zones that 

have been determined to pose serious safety risks.

    This final rule makes the FMCSRs applicable to all motor carriers 

operating CMVs, designed or used to transport between 9 and 15 

passengers (including the driver), in interstate commerce for ``direct 

compensation'' when the vehicle is operated beyond a 75 air mile radius 

(86.3 statute miles or 138.9 kilometers) from the driver's normal work-

reporting location. This decision is based on: (1) The FMCSA's 

understanding of Congress's and the commercial passenger carrier 

industry's usage of the term ``camionetas''; (2) analysis of comments 

submitted in response to the agency's August 5, 1998 (63 FR 41766) 

advance notice of proposed rulemaking (ANPRM) concerning the definition 

of CMV; (3) analysis of comments submitted in response to the September 

3, 1999 interim final rule and NPRM; (4) analysis of comments submitted 

in response to the January 11, 2001 NPRM; and (5) an analysis of 

accident data concerning commercial van transportation of passengers. 

The agency believes that this approach will be more effective than 

other alternatives for responding to congressional and public safety 

concerns about the use of small passenger-carrying CMVs in long-haul 

for-hire operations throughout the United States, including such 

operations for compensation by foreign-based motor carriers to and from 

the United States.

Covered Camioneta Operations

    Furthermore, section 212 of the MCSIA requires the agency to make 

the safety regulations applicable to camioneta operations. The statute 

did not define the term camioneta, but Congress issued an explanatory 

statement (see 145 Cong. Rec. H12868, at H12873, November 18, 1999) 

that suggests camioneta operations are those that involve transporting 

passengers from Mexico to the United States and vice versa.

    FMCSA does not have information concerning the number of motor 

carriers with CMV operations that fit the description of camioneta. The 

Texas Department of Public Safety, in comments to the September 3, 1999 

interim final rule and NPRM published on the same day, described 

camioneta operations as those transporting passengers ``between major 

cities in Texas and the other southern States to and from our borders 

with Mexico.'' Based on analysis of the National Highway Traffic Safety 

Administration (NHTSA) Fatality Analysis Reporting System (FARS), the 

agency believes the accident data suggest that, if there are fatal 

accidents involving these operators, the vast majority of vehicles 

appear to be registered in the United States. While they may travel 

between points in Mexico and the United States, the vehicles are not 

necessarily based in Mexico.

    Rather than adopting a rule that specifically targets, in part, 

vehicles that actually cross the border, FMCSA continues to believe 

section 212 should be implemented by focusing on the distance traveled. 

The distance-based approach used in this final rule will capture CMV 

operators that transport passengers from the U.S.-Mexico border to 

major cities in Texas and other States. Carriers that actually cross 

the border will also be covered, but only in those instances where the 

driver operates the vehicle beyond a 75 air-mile radius from his or her 

normal work-reporting location. The distance the driver operates could 

be determined by enforcement personnel, by questioning the drivers 

about their employers, and by reviewing any available paperwork 

concerning the origin and the destination, regardless of which side of 

the U.S.-Mexico border the trip begins or ends.

Alternatives Considered

    Several alternatives or options to implement section 212 of MCSIA 

were

[[Page 47862]]

considered. They included making the safety-related operational FMCSRs 

applicable to: (1) All motor carriers operating small passenger-

carrying CMVs in interstate commerce for compensation (direct and 

indirect), irrespective of the distance traveled; (2) all motor 

carriers operating small passenger-carrying CMVs in interstate commerce 

that are directly compensated, irrespective of the distance traveled; 

and (3) only those motor carriers operating small passenger-carrying 

CMVs across the U.S.-Mexico border for compensation. FMCSA believes the 

alternative being implemented through this final rule will improve the 

safety performance of for-hire motor carriers that pose a serious 

safety risk to their customers and the traveling public, while avoiding 

to the greatest extent practicable, the imposition of Federal safety 

regulations on van operations that are local in nature and appear to 

pose a significantly lower level of safety risk.

Summary of Proposed Rulemaking

    In the NPRM (66 FR 2767, January 11, 2001), the FMCSA requested 

public comment on making the safety regulations in parts 390, 391, 392, 

393, 395 and 396, and the safety fitness rules in part 385, applicable 

to motor carriers operating CMVs designed or used to transport between 

9 and 15 passengers (including the driver) in interstate commerce, when 

they are directly compensated for such services and the transportation 

of any passenger covers a distance greater than 75 air miles (86.3 

statute miles or 138.9 kilometers). The agency made clear that the 

operators of these small passenger-carrying vehicles would be subject 

to the same safety requirements as motorcoach operations, with the 

exception of the commercial driver's license, and controlled substances 

and alcohol testing regulations.

Commenters

    FMCSA received 29 comments in response to the NPRM. The commenters 

were: Academy Bus Co. (Academy); Advocates for Highway and Auto Safety 

(Advocates); AFL-CIO Transportation Trades Department (AFL-CIO); 

Amalgamated Transit Union (ATU); American Bus Association (ABA); the 

Association for Commuter Transportation (ACT); California Highway 

Patrol (CHP); Colorado Department of Public Safety (CDPS); the 

Commercial Vehicle Safety Alliance (CVSA); Farmworkers Justice Fund 

(FJF); Greyhound Lines, Inc. (Greyhound); League of United Latin 

American Citizens (LULAC); Pennsylvania Bus Association (PBA); Mr. Alan 

Jay Pomerance, a concerned citizen; National Association of State 

Directors of Pupil Transportation Services (State Directors); National 

Automobile Dealers Association (NADA); National Council of La Raza 

(NCLR); National Limousine Association (NLA); National School 

Transportation Association (NSTA); New Jersey Department of 

Transportation (NJDOT); Taxicab, Limousine & Paratransit Association 

(TLPA); Texas Bus Association (TBA); Texas Department of Public Safety 

(TXDPS); United Motorcoach Association (UMA); and four college 

students.

    TXDPS, PBA, LULAC, NCLR and FJF fully supported the proposal as 

published. ABA, TBA, Greyhound, Academy, CHP, CDPS, CVSA, Advocates, 

ATU, NJDOT, AFL-CIO, NSTA, State Directors, Mr. Pomerance, and the four 

students were in favor of the FMCSA's rulemaking, although they 

generally believed that more remains to be done to protect public 

safety and help level the playing field. Advocates and UMA opposed the 

exclusion of small passenger-carrying vehicle operations within the 

proposed 75 air mile range. NLA, TLPA, NADA, and ACT, on the other 

hand, opposed making the safety regulations applicable to their 

members.

Discussion of Comments and FMCSA Responses

Direct Compensation Criterion

    Eight commenters opposed the direct compensation criterion for 

determining the applicability of the safety requirements. Five 

commenters supported making safety-related operational regulations 

applicable to vehicles designed or used to transport between 9 and 15 

passengers when the company holds itself out to the public as providers 

of transportation services, or when a company is primarily engaged in 

providing surface transportation. ABA suggested that the agency use the 

phrase ``primarily engaged in for-hire transportation.'' ABA points out 

that in applying requirements of the Americans with Disabilities Act 

for over-the-road buses, DOT used the terminology ``primarily engaged 

in transportation'' in 1998 regulations (63 FR 51670, 51692; September 

1998).

Greyhound Stated

    Greyhound's major concern is that by limiting applicability of 

the FMCSRs to smaller passenger-carrying commercial motor vehicles, 

the operators of which are ``directly compensated'' for their 

transportation services, FMCSA may be creating unnecessary confusion 

and an inappropriate loophole. We agree that only carriers that are 

``compensated'' for transportation be regulated, it is the modifier, 

``directly'' that causes the potential problem.

ATU Stated:

    [W]e urge the agency to then adopt one of the alternative 

definitions provided by Greyhound Lines, Inc. in its comments to the 

proposed rule. Specifically, Greyhound suggests that the regulations 

be applied to transportation for compensation in smaller vehicles 

provided by entities that either ``hold themselves out to the public 

as providers of transportation services'' or ``are primarily engaged 

in providing surface transportation.'' We prefer the latter 

formulation, but either one would provide a clearer and more precise 

definition of the regulated class than the ``directly'' compensated 

test, which would allow organizations to avoid regulation by masking 

the transportation fee within a ``total package charge'' that 

includes other incidental services.

    NJDOT, CHP, and CDPS generally contend that the proposed 

definition will lead to additional regulatory and enforcement 

problems.

    Response: FMCSA agrees with commenters that the rule should focus 

first and foremost on motor carriers of passengers that offer their 

services to the general public. However, the agency disagrees with 

commenters' assertions that the term ``primarily engaged in providing 

surface transportation'' is a better criterion for determining the 

applicability of the FMCSRs to these motor carriers. The term 

``primarily engaged in providing surface transportation'' requires that 

both the motor carrier and enforcement officials consider all of the 

motor carrier's business activities before determining whether the 

safety regulations apply. Each entity that operates small passenger-

carrying vehicles for compensation in interstate commerce, regardless 

of the distance traveled, is considered a motor carrier, as defined in 

49 CFR 390.5. Motor carriers and enforcement officials would have to 

determine whether the percentage of business that concerns the for-hire 

transportation of passengers is sufficient for the motor carrier to be 

primarily engaged in providing surface transportation. This may vary 

from season to season, or year to year. Generally, enforcement 

opportunities would be limited to carrier visits, unless enforcement 

officials conducting destination inspections or similar activities 

knew, or had reason to believe, that the entity responsible for the 

operation of the vehicle was primarily engaged in providing surface 

transportation of passengers.

[[Page 47863]]

    By contrast, the approach FMCSA proposed and adopts makes the 

FMCSRs applicable for each interstate trip beyond a 75 air mile radius 

of the driver's normal work-reporting location, regardless of the 

percentage of the motor carrier's business involving the for-hire 

transportation of passengers. Motor carriers and enforcement officials 

need only determine the distance that the vehicle would be operated (in 

the case of the motor carrier planning a trip) or was operated (in the 

case of the enforcement official), and whether the vehicle was being 

operated for direct compensation. This could be accomplished by 

interviewing the driver and passengers to determine the nature of the 

trip. The inspector need not know about, and the motor carrier need not 

estimate, the percentages of the company's business operations 

involving for-hire passenger transportation in order to determine 

whether the FMCSRs are applicable to the trip in question.

    We believe that our approach establishes a higher standard of 

safety for the operators of small passenger carrying vehicles than the 

approach recommended by the commenters. FMCSA's approach makes the 

rules applicable to every trip that meets the criterion, regardless of 

whether the entity is primarily engaged in transportation. Conversely, 

commenters would permit potentially unsafe operators to legally 

continue their long-haul van operations, provided they were not 

primarily engaged in the for-hire transportation of passengers. FMCSA 

believes that the approach adopted by this rule achieves a higher 

standard of safety.

    Generally, only entities that assess a fee, monetary or otherwise, 

directly for the transportation of passengers would be subject to the 

safety regulations. The use of small passenger-carrying CMVs for 

compensation, by such operators as hotel/motel shuttle, rental car 

shuttle, and whitewater river rafter transporter services, using small 

passenger-carrying CMVs, would not be subject to the safety-related 

operational regulations, irrespective of the distance traveled. Since 

these businesses do not hold themselves out to the public as providers 

of transportation services and generally operate over short distances, 

FMCSA continues to believe that it is not necessary to impose safety-

related operational regulations on them.

    In response to Greyhound, the ATU, and other commenter assertions 

that the proposed rule would enable some motor carriers to avoid safety 

oversight by structuring their fees or fares as a total package charge, 

FMCSA does not believe the nature of most of these carrier operations 

is such that their identity as for-hire motor carriers of passengers 

can be effectively concealed. In such instances, carriers would have to 

devise a scheme wherein they would provide some other substantive 

service so that the transportation by motor vehicle of the passenger is 

incidental to some other function. Given that most passengers of these 

motor carriers expect to depart specific locations at specific times, 

and arrive at their destinations in a timely manner, it is unlikely the 

motor carriers this rule is intended to cover could maintain effective 

customer relationships by engaging in activities that would increase 

significantly the time required to complete a trip, or the fares 

customers must pay for the transportation service. In addition to 

differences in the nature of the transportation service, FMCSA believes 

the market forces of supply and demand and competitive pricing would 

discourage a commercial operator of a small passenger-carrying vehicle 

from employing this strategy to avoid regulation. Motor carriers that 

employ this strategy would place themselves at an economic disadvantage 

with other for-hire carriers that provide transportation services 

between the same locations.

75 Air-Mile Criterion

    FMCSA proposed making the safety regulations applicable when the 

transportation of any passenger covers a distance greater than 75 air 

miles. Greyhound and the ABA supported the 75 air-mile standard. 

However, fifteen commenters opposed the standard.

    The CVSA argued that commercial motor vehicles should be subject to 

the FMCSRs regardless of how far they travel. The State Directors 

stated a distance-based approach to applying the FMCSRs to commercial 

vans is neither reasonable nor feasible. The State Directors opined 

that the 37 percent of fatal van crashes at distances less than 75 

miles is a substantial number and should not be ignored.

    Response: FMCSA carefully analyzed accident data from the NHTSA 

Fatality Analysis Reporting System (FARS). Based on this analysis, 

FMCSA determined, to the greatest extent practicable, that vans most 

likely to pose a safety risk were those operating at a distance 

approximately 75 air miles or more from the driver's work-reporting 

location. The methodology for estimating this distance is explained 

below.

    FMCSA reviewed the data fields in FARS to determine whether it 

would be possible to estimate the distance a large van may have 

traveled prior to being involved in the fatal accident, and if there 

was any way to identify those accidents most likely to have involved 

interstate transportation. The agency determined that FARS could 

provide potentially useful information to help identify the accidents 

most likely to have involved interstate transportation, based on a 

comparison of data fields for the State in which the vehicle crashed, 

the State in which the vehicle was registered, and the State of the 

driver's license.

    FMCSA estimated the approximate distance between the geographic 

area of the driver's residential zip code and the county and State in 

which the crash took place. The distances were computed for almost all 

fatal accidents involving a large van transporting 9 or more people at 

the time of the accident for calendar years 1996, 1997, and 1998. The 

agency operated under the assumption that the most likely trips to be 

considered interstate in nature are ones in which the State of 

registration of the vehicle and State of issuance for the driver's 

license differ from the State where the vehicle crashed.

    There were 161 fatal accidents between 1996 and 1998 (49 crashes in 

1996, 54 crashes in 1997, and 58 crashes in 1998) in which the vehicle 

was transporting 9 or more passengers at the time of the crash. The 

FARS information for seven of the accidents lacked one or more of the 

data items needed for the analysis. Two of the accidents involved U.S. 

Government vehicles and were excluded from the analysis since they 

would not be covered by the rulemaking--the FMCSRs include an exception 

for transportation performed by the Federal government, a State, or any 

political subdivision of a State (49 CFR 390.3(f)). Five of the 

accidents involved Mexico-licensed drivers operating vehicles 

registered in the United States and one involved a Mexico-licensed 

driver operating a vehicle for which the database did not include 

registration information. It was not possible to complete the distance 

analysis for those accidents.

    Of the remaining 146 fatal accidents in which the large van was 

transporting 9 or more people at the time of the crash, 45 of them 

(approximately 31 percent) appear to have been interstate trips with 

the crash taking place in a State other than the State where the driver 

was licensed, and at a distance greater than 100 statute miles from the 

driver's residence. The shortest distance among the likely interstate 

trips was just over 100 statute miles, while the longest was more than 

2,100 statute miles (a trip

[[Page 47864]]

involving a driver licensed in California, a large van registered in 

Oregon, and a fatal crash in Louisiana).

    Forty-seven of the 146 fatal accidents (approximately 32 percent) 

appear to have been intrastate trips with the fatal accident taking 

place in the State where the driver was licensed and where the vehicle 

was registered, and at a distance greater than 100 statute miles from 

the driver's residence. The shortest distance among the likely 

intrastate trips was just over 100 statute miles, while the longest was 

more than 550 statute miles (a trip involving a driver licensed in 

California, a large van registered in California, and a fatal crash in 

California).

    Fifty-four of the accidents (37 percent) occurred within 100 

statute miles of the driver's residence with only a small percentage 

(seven out of 54 crashes, approximately 13 percent) involving what 

appears to be an interstate trip.

    Overall, approximately 63 percent of the fatal accidents involving 

large vans occurred between 100 and 2,200 statute miles from the 

driver's residence with the longest distances linked typically to the 

trips that were most likely interstate in nature.

    It is not possible to determine the distance the driver may have 

traveled to get to the work-reporting location, or to determine whether 

the van was operated by an individual working from home. However, FMCSA 

has factored into the analysis a maximum distance of 25 statute miles 

between the driver's residence and a possible work-reporting location. 

The Federal Highway Administration (FHWA) ``Summary of Travel Trends 

1995 Nationwide Personal Transportation Survey,'' FHWA-PL-00-006, 

December 1999, discussed in the NPRM, indicates that the average 

commute to work among the individuals participating in the survey was 

11.63 miles. To decrease the likelihood of underestimating the average 

commuting distances of drivers of small passenger-carrying CMVs, the 

agency used an estimate of 25 miles, a little more than twice the 

average in the nationwide survey. When the estimated 25 statute miles 

for commuting to work is deducted from the estimates of the distance 

between the driver's residence and the crash location, the result is an 

estimate of 75 statute miles as the distance the driver may have 

traveled from the work reporting location to the crash site.

    For simplicity, the agency used 75 air miles, which is equivalent 

to 86.3 statute miles, because the motor carrier industry and 

enforcement community have experience using air-miles, and the hours-

of-service rules include an exemption from the records-of-duty status 

requirement for drivers operating within a 100 air-mile radius of their 

work-reporting location.

    As discussed in the above analysis that was the basis for the NPRM, 

the agency continues to believe a mileage threshold of 75 air miles 

(86.3 statute miles or 138.9 kilometers) should be used for determining 

the applicability of the safety regulations to for-hire operations of 

small passenger-carrying vehicles operating in interstate commerce. The 

analysis indicates that approximately 63 percent of 146 fatal 

accidents, in which a large van was actually transporting 9 or more 

occupants at the time of the crash, involved drivers that apparently 

traveled more than 75 statute miles from their work-reporting location. 

While the agency certainly agrees with commenters' concerns that the 

remaining 37 percent of the fatal accidents should not be ignored, this 

rule would not affect most of those accidents, given that they appear 

to be primarily intrastate in nature. Section 212 of the MCSIA does not 

extend FMCSA's jurisdiction to regulate intrastate passenger-carrier 

operations. Accordingly, the final rule adopts a 75 air-mile threshold.

    However, in this final rule, the agency is revising its proposed 

distance threshold to focus on the distance that the driver operates 

the vehicle, as opposed to the distance that the passengers are 

transported. The agency is aware of the potential complexities involved 

with the 75 air-mile standard proposed in the NPRM. In many cases, it 

would be difficult to determine the distance the passengers were 

transported in order to determine whether the safety-related 

operational regulations apply to the motor carrier. This is especially 

true when passengers are picked up or dropped off at multiple 

locations. To simplify compliance and enforcement, FMCSA will apply its 

safety regulations whenever a vehicle that is designed or used to 

transport between 9 and 15 passengers (including the driver) for direct 

compensation is operated beyond a 75 air mile radius from the driver's 

normal work-reporting location. The agency believes that use of the 

driver's normal work reporting location provides an easier means for 

motor carriers and enforcement personnel to determine the applicability 

of the safety regulations, and will help to promote greater levels of 

compliance and ensure consistency in the enforcement of the rules.

State Adoption of Compatible Safety Regulations

    FMCSA requested public comment on the feasibility of making the 

adoption and enforcement of compatible safety regulations applicable to 

small passenger-carrying CMVs operated in interstate commerce a 

condition of receiving Motor Carrier Safety Assistance Program (MCSAP) 

funds. The agency also requested comments on whether the variances from 

the FMCSRs allowed in State laws and regulations should be amended to 

require the adoption and enforcement of intrastate regulations 

applicable to the intrastate operation of these types of vehicles. Six 

commenters believed FMCSA should require the States to adopt compatible 

safety regulations concerning the operation of small passenger carrying 

commercial vehicles.

    Response: Although FMCSA agrees with the commenters that States 

should have compatible regulations, the agency does not believe it is 

necessary to require that all States adopt intrastate requirements that 

are compatible with this final rule. The agency continues to believe 

that State agencies should be given flexibility in responding to unique 

safety issues or concerns involving the intrastate operation of small 

passenger-carrying vehicles.

    The MCSAP is a Federal grant program that provides financial 

assistance to States to reduce the number and severity of accidents and 

hazardous materials incidents involving CMVs. The goal of the MCSAP is 

to reduce CMV-involved accidents, fatalities, and injuries through 

consistent, uniform, and effective CMV safety programs. The MCSAP sets 

forth the conditions for participation by States and local 

jurisdictions and promotes the adoption and uniform enforcement of 

safety rules, regulations, and standards compatible with the FMCSRs and 

Federal Hazardous Materials Regulations (HMRs) for both interstate and 

intrastate motor carriers and drivers. The MCSAP rules are codified in 

49 CFR parts 350 and 355.

    As a condition of participation in the MCSAP, States are required 

to adopt and enforce compatible regulations concerning the interstate 

operation of small passenger-carrying CMVs since FMCSA is adopting 

regulations applicable to these operations. The agency is not amending 

the variances under Sec.  350.341, which means that the States are not 

required to adopt and enforce regulations concerning the intrastate 

operation of small passenger-carrying CMVs. However, FMCSA encourages 

the States to adopt and

[[Page 47865]]

enforce intrastate laws and regulations concerning the operation of 

these CMVs if their accident data warrants such action.

    Based on the agency's analysis of the FARS data for 1996, 1997, and 

1998, approximately 32 percent (51 out of 161) of all fatal crashes 

involving large vans transporting 9 or more passengers at the time of 

the accident during those three years occurred in just three States 

(California (24 fatal accidents), Texas (15 fatal accidents), and 

Florida (12 fatal accidents)). This suggests that it may not be 

necessary for each State to adopt and enforce intrastate regulations 

concerning small passenger-carrying CMVs. However, States such as 

California, Texas, and Florida should give strong consideration to 

adopting and enforcing intrastate regulations given the FARS data.

Commercial Driver's License, and Controlled Substances and Alcohol 

Testing Regulations

    Seven commenters supported making the commercial driver's license 

(CDL), and controlled substances and alcohol testing regulations 

applicable to commercial van operations.

    Response: While FMCSA understands commenter concerns, section 212 

of the MCSIA did not expand the agency's statutory authority concerning 

the establishment and enforcement of the CDL and controlled substances 

and alcohol testing rules. Congress did not amend the statutory 

definition of ``commercial motor vehicle'' in chapter 313 of title 49, 

United States Code, which governs the applicability of the CDL and 

controlled substances and alcohol testing requirements. Therefore, 

FMCSA does not have the statutory authority to apply these requirements 

to commercial van operations. The passenger-carrying threshold that 

Congress provided under that statutory definition remains at 16 or more 

passengers, including the driver.

Applicability of Safety Fitness Procedures

    The proposed rule requested comments on making the safety fitness 

procedures under part 385 applicable to motor carriers operating small 

passenger-carrying CMVs. The safety fitness procedures in 49 CFR part 

385 provide guidance in assessing the safety management controls that 

motor carriers use to ensure compliance with the FMCSRs. Five 

commenters supported applicability of safety fitness procedures to such 

carriers. No commenter expressed specific opposition in relation to 

this proposal.

    Response: FMCSA continues to believe that it is appropriate to make 

the safety fitness procedures applicable to motor carriers that operate 

vehicles designed or used to transport between 9 and 15 passengers, 

when the carrier is directly compensated for its transportation 

services, and the commercial vehicle is operated beyond a 75 air mile 

radius from the driver's normal work-reporting location. Motor carriers 

operating small passenger-carrying CMVs are now subject to compliance 

reviews and the same safety fitness procedures and standards used to 

evaluate other interstate motor carriers. Therefore, section 385.1, as 

amended on May 13, 2002 (67 FR 31978), by the interim final rule 

concerning new entrant motor carriers, made part 385 applicable to all 

motor carriers subject to the FMCSRs, except non-business private motor 

carriers of passengers. Carriers that operate small passenger-carrying 

vehicles, and that receive an ``Unsatisfactory'' safety rating will be 

prohibited from operating CMVs to transport passengers in interstate 

commerce. In addition, these motor carriers will be ineligible to 

contract or subcontract with any Federal agency for transportation of 

passengers in interstate commerce.

Discussion of the Final Rule

    The FMCSA is revising the FMCSRs to require that motor carriers 

operating CMVs that are designed or used to transport between 9 and 15 

passengers (including the driver) for direct compensation in interstate 

commerce (including transportation between points in Canada or Mexico, 

and points in the United States) comply with the regulations contained 

in 49 CFR parts 390, 391, 392, 393, 395 and 396, and the safety fitness 

procedures in part 385, when the driver of the vehicle operates it 

beyond a 75 air mile radius (86.3 statute miles or 138.9 kilometers) 

from his/her normal work-reporting location. This means the motor 

carriers are required to ensure that each of their drivers meet all of 

the minimum qualifications for interstate CMV drivers, including 

physical qualifications prescribed in part 391, and maintain records to 

document compliance. The driver disqualification provisions of 49 CFR 

391.15 are also applicable. Motor carriers and their drivers must also 

comply with the driving rules of part 392, and vehicles must meet all 

applicable requirements in part 393 concerning parts and accessories 

necessary for safe operation.

    To avoid potential confusion, the exception under Sec.  390.3(f)(6) 

has been revised to exempt the operation of CMVs designed or used to 

transport between 9 and 15 passengers, not for direct compensation, 

provided the vehicle does not otherwise meet the definition of a 

commercial motor vehicle (emphasis added). The agency believes that the 

proposed regulatory language could have been misunderstood to imply 

that vehicles designed or used to transport between 9 and 15 

passengers, not for direct compensation, are exempt from the FMCSRs, 

even if the CMV meets the 10,001-pound weight threshold for 

applicability of the safety regulations, or is used to transport 

hazardous materials in a quantity requiring the use of placards.

    Part 396 requires that each motor carrier must have a systematic 

inspection, repair, and maintenance program for the CMVs it operates, 

and must ensure that vehicles are in safe and proper operating 

condition at all times. They must also maintain records to document 

compliance with these rules.

    In addition, motor carriers must ensure that each vehicle is 

inspected at least once every 12 months by a qualified inspector/

mechanic and that any motor carrier employee responsible for the 

adequacy of any brake-related inspection, repair, or maintenance work 

meets certain minimum qualifications. They must also maintain records 

to document compliance with these rules.

    Motor carriers must ensure that their drivers comply with the 

hours-of-service requirements of part 395, including reporting, 

recordkeeping, verifying, and responding to law enforcement requests. 

No driver of a passenger-carrying CMV may drive more than 10 hours 

following 8 consecutive hours off duty. No driver may operate a 

passenger-carrying CMV if the driver has been on duty more than 15 

hours following 8 consecutive hours off duty (regardless of whether he 

or she drove). Furthermore, drivers of passenger-carrying CMVs must not 

drive after being on duty 60 hours in any seven consecutive days if the 

motor carrier does not operate CMVs every day of the week (60-hour 

rule), or after being on duty 70 hours in any eight consecutive days if 

the motor carrier operates CMVs every day of the week (70-hour rule). 

For drivers that operate passenger-carrying CMVs beyond a 100 air-mile 

radius of the normal work-reporting location, a record of duty status 

(log book) is required to document the number of hours on duty and the 

number of hours driving.

    The hours of service rules include a 100 air-mile radius exemption 

from the log book requirement for drivers who operate passenger-

carrying vehicles

[[Page 47866]]

within a 100 air-mile radius of their normal work reporting location, 

provided the driver: returns to the work reporting location and is 

released from work within 12 consecutive hours; has at least 8 

consecutive hours off duty separating each 12 hours on duty; and does 

not exceed 10 hours maximum driving time following 8 consecutive hours 

off duty. As an alternative to the log book, motor carriers of 

passengers must maintain accurate time records showing the time the 

driver reports for duty each day, the total number of hours the driver 

is on duty each day, the time the driver is released from duty each 

day, and the total time for the preceding 7 days for drivers used for 

the first time or intermittently.

    As discussed above, the agency is not (emphasis added) making the 

CDL and controlled substances and alcohol testing requirements 

applicable to operators of small passenger-carrying CMVs, because 

neither section 4008 of the TEA-21 nor section 212 of the MCSIA amended 

the statutory definition of CMV used for those regulations (49 U.S.C. 

31301). Consequently, the passenger-carrying threshold for CDL, and 

controlled substances and alcohol testing requirements remains at 16 

(including the driver).

Compliance Schedule

    After the effective date of this rule, motor carriers will have 90 

days (or 120 days from the Federal Register publication date) to comply 

with the safety regulations. The agency believes this is sufficient 

time for the affected motor carriers to establish and implement safety 

management controls to achieve compliance with the FMCSRs. Furthermore, 

the agency believes that NHTSA FARS data suggest that it is in the 

public interest to require compliance with the FMCSRs as soon as 

practicable.

Relationship Between Final Rules and Transportation of Migrant Workers

    The FMCSA has determined that some of the motor carriers covered by 

this rulemaking may also be subject to the agency's rules for 

transporters of migrant workers in 49 CFR part 398. The agency 

prescribes certain requirements for motor carriers that transport 

migrant workers a total distance of more than 75 miles in interstate or 

foreign commerce. Section 398.1 defines a migrant worker as any 

individual proceeding to or returning from employment in agriculture as 

defined in section 3(f) of the Fair Labor Standards Act of 1938, as 

amended (29 U.S.C. 203(f)) or section 3121(g) of the Internal Revenue 

Code of 1986 (26 U.S.C. 3121(g)). The term ``carrier of migrant workers 

by motor vehicle'' means any person, with certain limited exceptions, 

who transports in interstate or foreign commerce at any one time three 

or more migrant workers to or from their employment by any motor 

vehicle other than a passenger automobile or station wagon.

    Carriers of migrant workers that are directly compensated for their 

transportation services and that operate vehicles designed or used to 

transport between 9 and 15 passengers, in interstate commerce, are 

covered by this final rule if the driver operates beyond a 75 air-mile 

radius from their normal work reporting location. The final rule 

generally establishes more stringent safety requirements than those 

found in 49 CFR part 398. This is not the case, however, with Sec.  

398.6, which prohibits motor carriers from permitting or requiring 

drivers to operate vehicles for more than 10 hours in any 24-hour 

period, unless the driver is given eight hours rest immediately 

following the 10 hours driving time. This daily limit is more 

restrictive than the comparable provision for drivers of larger 

passenger-carrying CMVs (Sec.  395.5(a)(1)), which allows a driver to 

drive up to 16 hours out of 24 under certain circumstances.

    Although compliance with part 395 would result in a less 

restrictive requirement in this instance, FMCSA does not believe this 

deviation is significant in terms of highway safety. The restriction in 

part 398 is based only on the amount of time the driver operates the 

vehicle that transports the migrant workers but does not take into 

account other activities that may affect the driver's fitness for duty 

and level of alertness. Part 395 includes rules to prohibit driving 

after being on-duty (both driving time and time spent performing other 

tasks) for more than 15 hours following at least eight consecutive 

hours off-duty. Part 395 also takes into account any compensated work, 

irrespective of whether the work was performed for the motor carrier. 

For example, if the driver has a part-time job, the time spent on the 

part-time job must be factored into the calculations to determine the 

available driving time. FMCSA believes that overall, part 395 is more 

stringent than part 398 and that compliance with all of the 

requirements of part 395 will improve safety.

    FMCSA believes that it is appropriate to require more rigorous 

safety standards for carriers of migrant workers if their operations 

are conducted in a manner similar to intercity motorcoach businesses. 

Therefore, the agency is amending Sec.  398.2, Applicability, of the 

transporters of migrant worker rules to make it clear to the affected 

motor carriers when they must comply with the same FMCSRs as intercity 

motorcoach operations.

Applicability of Safety Fitness Procedures to Operators of Small 

Passenger-Carrying CMVs

    Part 385 of the FMCSRs establishes procedures to determine the 

safety fitness of motor carriers, assign safety ratings, take remedial 

action when required, and prohibit motor carriers receiving an 

``Unsatisfactory'' safety rating from operating a CMV. As a result of 

this final rule, motor carriers operating small passenger-carrying CMVs 

are now covered by the same safety fitness procedures and standards 

used to evaluate other interstate motor carriers. This means that motor 

carriers affected by this rulemaking will be subject to compliance 

reviews and receive safety ratings. Those receiving an 

``Unsatisfactory'' safety rating will be prohibited from operating CMVs 

to transport passengers in interstate commerce. In addition, these 

motor carriers will be ineligible to contract or subcontract with any 

Federal agency for transportation of passengers in interstate commerce. 

The agency is amending Sec.  385.1, Purpose and scope, to reflect the 

new passenger-carrying threshold for the applicability of the FMCSRs 

and the safety fitness procedures.

Itemization of the Estimated Costs of Imposing Safety-Related 

Requirements

    FMCSA has attempted to evaluate the potential costs of the final 

rule. The agency has considered currently available data concerning the 

number of affected motor carriers, CMVs, and drivers. The agency 

estimates that this rulemaking could affect up to 1,843 for-hire motor 

carriers of passengers with active operating authority who operate only 

CMVs with a seating capacity of 15 passengers or less.

    Each of these motor carriers has on file with the FMCSA proof of 

financial responsibility at the minimum level required for the 

operation of vehicles designed to transport less than 16 passengers. 

This number does not include the following: (1) motor carriers that may 

have pending applications for operating authority; (2) passenger 

carriers shown as inactive because their authority was revoked for 

failure to maintain evidence of the required minimum levels of 

financial responsibility; (3) private motor carriers of passengers; or 

(4) carriers which also operate larger vehicles, as well as smaller 

vehicles. This number may also

[[Page 47867]]

overstate the population of affected carriers since some of the 

licensed carriers may be exclusively operating equipment carrying less 

than 9 passengers.

    With regard to the number of drivers and vehicles that would be 

covered by the safety regulations, FMCSA does not have a definitive 

source for this information at this time because for-hire small 

passenger motor carriers were only recently required to complete the 

Form MCS-150, Motor Carrier Identification Report, which is used to 

gather information about motor carriers subject to the FMCSRs. However, 

the agency is now gathering data to better estimate the number of 

affected carriers, drivers, and vehicles.

    In the absence of other sources of information, the agency believes 

certain estimates provided by the Taxicab, Limousine & Paratransit 

Association (TLPA) is useful in helping to estimate the number of 

drivers and vehicles that will be covered by this final rule. In 

comments submitted in response to the August 5, 1998, ANPRM (63 FR 

41766) on the subject of safety requirements for the operators of small 

passenger-carrying CMVs, the TLPA estimated that there are 74,000 vans 

nationwide being operated for compensation. The TLPA estimated that van 

fleets average less than 10 vans. In addition, the TLPA estimated that 

if the agency made the FMCSRs applicable to the operation of small 

passenger-carrying vehicles, approximately 14,000 companies, 125,000 

vehicles, and 165,000 drivers would be covered.

    FMCSA believes most of the estimates provided by the TLPA appear to 

be representative of businesses that would not be covered by this rule, 

because this rulemaking applies to long-haul van operations, not for-

hire operations that are local in nature. However, the agency will use 

the TLPA's previous estimate of the number of vehicles per fleet (10 

vans) as a baseline estimate for the number of vehicles that would be 

covered. This means that approximately 18,430 small passenger-carrying 

vehicles (10 vans per fleet x 1,843 for-hire operations) would be 

covered under the FMCSRs.

    The use of the estimates above is not intended to serve as a 

determination whether the passenger-carrying operations are small 

businesses. The estimates are used solely for the purpose of estimating 

the potential costs of this rulemaking action. TLPA's comments 

concerning the agency's estimate of the number of small businesses that 

could be affected by this rulemaking are addressed in the rulemaking 

analysis portion of this notice.

    The agency estimates that the number of drivers affected will be a 

fraction of the 165,000 drivers in the TLPA estimate since the proposal 

is targeted at drivers in the long-haul segment of the small passenger 

carrier industry. The agency believes the total number of drivers will 

be approximately 22,000 (165,000 divided by 7.5) since the number of 

motor carriers currently operating as for-hire motor carriers of 

passengers with small passenger-carrying vehicles is approximately one-

seventh of the TLPA's estimate of all for-hire motor carriers.

Earnings of Commercial Van Drivers, Mechanics, and Supervisors

    In order to evaluate accurately the cost implications of the 

proposed rule, FMCSA reviewed earnings information from the 

``Occupational Outlook Handbook,'' 2000-01 Edition, Bulletin 2520, 

published by the U.S. Department of Labor. We are using the earnings 

information to determine the costs of requiring motor carrier employees 

and individuals who perform services for motor carriers to complete 

certain records that would not otherwise be completed in the normal 

course of business, and to perform certain tasks associated with 

complying with the requirements.

    The agency is using the earnings figures for taxi-drivers and 

chauffeurs because the drivers in question generally do not meet the 

qualifications requirements for intercity bus drivers. The median 

hourly earnings of taxi drivers and chauffeurs, excluding tips, were 

$7.48 in 1998. The middle 50 percent earned between $6.02 and $9.79 an 

hour. The lowest 10 percent earned less than $5.55 and the highest 10 

percent earned more than $12.44 an hour. For the purpose of preparing 

cost estimates for imposing safety-related operational rules, the 

agency will use $12.44 an hour to decrease the likelihood of 

underestimating the impact of this rulemaking.

    The ``Occupational Outlook Handbook'' shows the estimated median 

hourly earnings for automotive mechanics and service technicians, 

including commission, were $13.16 in 1998. The middle 50 percent earned 

between $10.02 and $17.14 an hour. The lowest 10 percent earned less 

than $7.44 and the highest 10 percent earned more than $21.25 an hour. 

For the purpose of preparing cost estimates for this rulemaking the 

agency is using $21.25 an hour.

    FMCSA is using $22 an hour as the estimated earnings for 

supervisors and managers of transportation. The ``Occupational Outlook 

Handbook'' did not include a specific category for transportation 

supervisors so the agency is operating under the assumption that these 

supervisors are paid more than the individuals they supervise. The 

agency estimated that the supervisors are paid $ 0.75 an hour more than 

the service technicians, or $22.

Medical Examination and Certification

    Drivers subject to the rule are required to obtain a medical 

examiner's certificate. FMCSA estimates that the average cost of a 

comprehensive medical examination is $300. This cost includes an 

estimate of the driver's out-of-pocket expenses or co-payment and an 

estimate of the amount the driver's health insurance company would pay 

the medical examiner. Since a medical examiner's certificate is usually 

valid for 24 months, the FMCSA estimates the prorated annual cost of 

CMV driver medical certifications to be approximately $3,300,000 [($300 

per exam per driver ) x (22,000 drivers) = $6,600,000 every two years] 

based on an estimated 22,000 drivers who would be subject to the rule.

    Generally, it takes a medical examiner, such as a physician, doctor 

of osteopathy, physician assistant, advance practice nurse, or doctor 

of chiropractic, about 20 minutes to complete a medical examination 

form and one minute to fill out the medical certificate. Based on the 

$132,000 median annual earning of a general/family practice physician 

listed in the Department of Labor's ``Occupational Outlook Handbook'' 

and an estimated 2,080 hours of work per year, the earnings are equal 

to approximately $63 an hour. The estimated costs to the industry for 

having medical examiners complete the required paperwork would be 

$485,100 ($63 an hour x (21 minutes x 1 hour per 60 minutes) x 22,000 

medical exams performed for drivers). This is the cost every two years. 

The cost each year would be $242,550.

    Therefore, the total annual costs for the physical exam would be 

approximately $3,542,550.

Driver Qualification Files

    FMCSA estimates that the operators of small passenger-carrying CMVs 

will have to create 22,000 driver qualifications files during the first 

year and create approximately 2,860 new files (13 percent of 22,000) 

each year thereafter as a result of driver turnover, retirement, etc. 

The estimate of driver turnover is the same used for previous 

information collection burden estimates for driver qualifications 

files. This means that motor carriers will be responsible for 

maintaining

[[Page 47868]]

approximately 19,140 existing files (22,000 - 2,860) every year after 

the first year this rule is in effect and creating 2,860 new files per 

year.

    The creation of a single, complete driver qualification file 

involves an annual expenditure of approximately 25 minutes, which is 

the sum of 21 minutes of paperwork by a safety director, driver 

supervisor, or equivalent position, and 4 minutes of paperwork by a 

driver. For the first year, the cost would be $188,557 (0.35 hours per 

driver employed x 22,000 drivers x $22 an hour per supervisor) plus 

(0.07 hours per driver employed x 22,000 drivers x $12.44 an hour per 

driver), or $169,400 for the time supervisors spend on this task and 

$19,157 for drivers. For subsequent years the cost for creating new 

driver qualification files would be $24,512 (0.35 hours per driver 

employed x 2,860 drivers x $22 an hour per supervisor) plus (0.07 hours 

per driver employed x 2,860 driver x $12.44 an hour per driver), or 

$22,022 for the time supervisors spend on this task and $2,490 for 

drivers.

    Each driver is required by Sec.  391.27 to furnish their employing 

motor carrier with a list of traffic violations. FMCSA estimates that 

it takes a driver approximately 2 minutes to complete the list. Motor 

carriers are required to conduct an annual review of their drivers' 

records. The agency estimates that it takes approximately 5 minutes per 

driver to complete this task. The cost of complying with the list of 

traffic violations is $7,143 [19,140 drivers x (0.03 hours per driver) 

x ($12.44 an hour for a driver)]. The cost of complying with the annual 

review is $33,686 [(19,140 drivers) x (0.08 hours per driver) x ($22 an 

hour for a supervisor)]. The total cost per year for the annual list of 

violations and the review of the driving record is $40,829.

    Therefore, the estimated cost for driver qualification files is 

$188,557 for the first year carriers are required to comply with the 

safety-related operational provisions of the FMCSRs, and $65,341 for 

each subsequent year ($24,512 for creating new qualification files, 

$7,143 for the list of traffic violations, and $33,686 for the driving 

record review).

Records of Duty Status

    As indicated above, FMCSA believes the final rule will apply to 

22,000 drivers. It is estimated that each driver would spend 

approximately 6.5 minutes per workday to complete a record of duty 

status and work 240 workdays a year. The information collection burden 

for completing the record of duty status would be approximately 571,999 

hours [22,000 drivers x (6.5 minutes per day x 1 hour per 60 minutes) x 

(240 workdays)]. The estimated total cost burden related to completing 

the record of duty status is approximately $7,115,667 based on an 

estimated time burden of 571,999 hours at $12.44 an hour for drivers. 

This time and cost burden estimate takes into consideration two weeks 

of sick/vacation leave for these drivers.

    FMCSA estimates that each motor carrier, affected by this rule, 

will need a supervisor responsible for reviewing its drivers' records 

of duty status and that the supervisor will spend approximately three 

minutes per day reviewing each driver's records to ensure compliance 

with the hours-of-service rules. The information collection burden for 

reviewing the record of duty status would be approximately 264,000 

hours [22,000 drivers x (3 minutes per day per driver's log x 1 hour 

per 60 minutes) x (240 workdays)]. Using the earnings estimate 

presented above (i.e., $22 per hour for supervisors), the annual cost 

would be $5,808,000.

    Therefore, the total costs for requiring motor carriers to comply 

with part 395 would be $12,923,667.

Vehicle Inspection, Repair, and Maintenance

    FMCSA estimates the various recordkeeping requirements in part 396 

related to vehicle inspection, repair, and maintenance would involve an 

estimated total annual expenditure of 12 hours and 57 minutes per CMV 

(48 minutes for systematic inspection, repair, and maintenance; 724 

minutes for driver vehicle inspection reports; and 5 minutes for 

periodic inspection). Evidence of an individual's qualifications to 

perform periodic vehicle inspections must be retained by the motor 

carrier. Evidence of an individual's qualifications to be a brake 

inspector must also be retained. The creation of these two types of 

qualification evidence involves an estimated one-time, non-recurring 

expenditure of 5 minutes by a safety director, driver supervisor, or 

equivalent position for each type of qualification.

    The systematic inspection, repair, and maintenance records would be 

completed by a mechanic. The periodic inspection records would also be 

prepared by a mechanic. The estimated hourly earnings for a mechanic is 

$21.25 as indicated above. If the mechanic must spend approximately 53 

minutes per year per vehicle, the cost per year per vehicle for 

recordkeeping would be approximately $18.77. If there are 18,430 

vehicles that would be covered by the proposed rule, the total cost for 

systematic inspection, repair, and maintenance, and periodic inspection 

records would be $345,931.

    Drivers must prepare vehicle inspection reports at the end of each 

workday. It is estimated that each driver would spend 724 minutes per 

year, or 12.06 hours per year completing the paperwork. Using the 

earnings estimate of $12.44 an hour, the cost for having drivers 

prepare vehicle inspection reports would be $150 per driver per year. 

Based on an estimate of 22,000 drivers, the cost per year for the 

industry would be $3,300,000.

    Finally, looking at the cost for inspector qualifications, FMCSA 

believes the paperwork would be completed by a supervisor. Using the 

earnings estimate of $22 an hour, and an information collection burden 

of 10 minutes (five minutes for each certification of qualifications), 

the cost per carrier would be $3.66. The total non-recurring cost would 

be approximately $6,745.

    Therefore, the estimated total cost burden related to the vehicle 

inspection, repair, and maintenance recordkeeping is approximately 

$3,652,676 per year.

Total Costs and Qualitative Estimate of Benefits

Costs

    The sum of all estimated costs of requiring operators of small 

passenger-carrying CMVs to comply with parts 391, 395, and 396 is 

$23,850,000 for the first year and $20,184,234 each year thereafter. A 

summary of the first-year costs is presented below:

[[Page 47869]]

[GRAPHIC] [TIFF OMITTED] TR12AU03.000

Benefits

    FMCSA is not able to quantify the benefits at this time because the 

agency does not have detailed accident causation data. However, the 

agency believes that operational safety will be improved through 

compliance with the FMCSRs. Furthermore, section 212 of the MCSIA 

requires that the agency make its safety regulations applicable to: (1) 

Commercial vans referred to as ``camionetas,'' and (2) those commercial 

vans operating in interstate commerce outside of commercial zones that 

have been determined to pose serious safety risks.

    The agency believes the benefits of this rulemaking outweigh the 

estimated costs. The benefit of preventing as few as 8 of the 58 fatal 

accidents in 1998 involving large vans transporting 9 or more 

passengers at the time of the crash would outweigh the estimated costs. 

This is especially the case when consideration is also given to the 

prevention of injury and property-damage only accidents that occur 

annually.

    FMCSA has considered the accident information submitted by 

commenters. The agency also considered data from the NHTSA FARS. The 

data suggests that there may be serious safety management control 

problems with some commercial van operations that transport passengers 

for compensation in interstate commerce. Having the FMCSRs apply to 

these operations should help to reduce the incidence of crashes 

involving large vans thereby reducing to some extent the number of 

fatalities and injuries.

Rulemaking Analyses

Privacy Act Statement

    Anyone is able to search the electronic form of all comments 

received into any of DOT's dockets by the name of the individual 

submitting the comment (or signing the comment, if submitted on behalf 

of an association, business, labor union, etc.). You may review DOT's 

complete Privacy Act Statement in the Federal Register published on 

April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit 

http://dms.dot.gov.

Regulatory Planning and Review and DOT Regulatory Policies and 

Procedures

    We have determined that this rulemaking action is a significant 

regulatory action under Executive Order 12866, Regulatory Planning and 

Review, and significant under Department of Transportation regulatory 

policies and procedures because of the substantial public interest 

concerning extending the FMCSRs to a larger population of for-hire 

motor carriers of passengers. This final rule requires that operators 

of vehicles designed or used to carry between 9 and 15 passengers 

(including the driver) for direct compensation, in interstate commerce 

comply with the following rules when the commercial vehicle is operated 

beyond a 75 air mile radius (86.3 statute miles or 138.9 kilometers) 

from the driver's normal work-reporting location: 49 CFR part 391, 

Qualifications of drivers; 49 CFR part 392, Driving of commercial motor 

vehicles; 49 CFR part 393, Parts and accessories necessary for safe 

operation; 49 CFR part 395, Hours of service of drivers; and 49 CFR 

part 396, Inspection, repair, and maintenance.

    Executive Order 12866 requires that regulatory agencies assess both 

the costs and benefits of intended regulations and proposed 

regulations. Based upon the information above, the agency anticipates 

that the economic impact associated with this rulemaking action will be 

$23,850,000 for the first year, and $20,184,234 for each subsequent 

year. The benefit of preventing as few as 8 of the 58 fatal accidents 

in 1998 involving large vans transporting 9 or more passengers at the 

time of the crash would outweigh the estimated costs. The agency 

estimates that each fatality prevented would be equivalent to a benefit 

of $3 million, based on the Department of Transportation's guidance 

memorandum on ``Treatment of Value of Life and Injuries in Preparing 

Economic Evaluations.''

[[Page 47870]]

Preventing 8 single-fatality accidents per year would result in at 

least $24 million in benefits per year. Additional benefits would be 

achieved through reductions in injuries and property-damage only 

accidents involving small passenger-carrying CMVs.

    For purposes of Executive Order 12866, this rulemaking does not 

impose an economic burden greater than $100 million on these motor 

carriers. Therefore, a full Regulatory Impact Statement is not 

necessary.

Regulatory Flexibility Act Analysis

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-

612), FMCSA considered the effects of this regulatory action on small 

entities and determined that this final rule will not affect a 

substantial number of small entities that operate CMVs designed or used 

to transport between 9 and 15 passengers, for compensation, in 

interstate commerce. However, the agency believes the rule will have a 

significant impact on some of the small entities operating such 

vehicles.

    FMCSA is requiring motor carriers that operate CMVs, designed or 

used to transport between 9 and 15 passengers, in interstate commerce, 

to be made subject to the safety-related operational FMCSRs when they 

are directly compensated for such services and the vehicle is operated 

beyond 75 air miles (86.3 statute miles or 138.9 kilometers) from the 

driver's normal work-reporting location. These motor carriers will be 

required to comply with 49 CFR parts 390, 391, 392, 393, 395, and 396. 

FMCSA estimates that this rule will affect 1,843 of the estimated 

14,000 entities that operate CMVs designed or used to transport between 

9 and 15 passengers for compensation, and that most, if not all, of 

these 14,000 businesses are small entities based on criteria 

established by the Small Business Administration (SBA).\2\

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

    \2\ The SBA's Office of Size Standards publishes a list of Small 

Business Size Standards matched to the North American Industry 

Classification System (NAICS). The U.S. Office of Management and 

Budget (OMB) classifies approximately 1,000 activities as industries 

under NAICS. For each industry, except those in public 

administration, SBA has established a size standard. Industries are 

described in detail in North American Industry Classification 

System--United States, 1997. It can be found in many libraries or 

purchased from the National Technical Information Service, by 

calling (800) 553-6847 or (703) 605-6000. Subsector 485 of the NAICS 

covers transit and ground passenger transportation. SBA has 

established $6,000,000 in annual receipts as the maximum size for a 

small business for all of the classifications under this subsector 

(e.g., interurban and rural bus transportation, bus service, taxi 

service, limousine service, charter bus industry). Gross receipts 

are averaged over a firm's latest 3 completed fiscal years to 

determine its average annual receipts. ``Receipts'' means the firm's 

gross or total income, plus cost of goods sold, as defined by or 

reported on the firm's Federal Income Tax return. Therefore, only 

those motor carriers of passengers that averaged $6,000,000 or less 

in annual receipts for the past 3 fiscal years would be considered 

small businesses for the purposes of the regulatory flexibility 

analysis.

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

    The estimate of 1,843 is based on the current number of for-hire 

motor carriers of passengers with active authority that operate only 

CMVs with a seating capacity of 15 passengers or less. Although the 

universe of for-hire motor carriers of passengers potentially subject 

to this rule consists of approximately 14,000 entities, we estimate 

that the final rule will apply to only the 1,843 carriers whose 

operations require interstate operating authority under the FMCSA's 

commercial regulations. Each of these motor carriers has on file with 

the FMCSA proof of financial responsibility at the minimum level 

required for the operation of vehicles designed to transport less than 

16 passengers. This number may overstate the population of affected 

carriers since some of the licensed carriers may be exclusively 

operating equipment carrying less than 9 passengers. However, FMCSA's 

estimate does not include the following: (1) Motor carriers that may 

have pending applications for operating authority; (2) passenger 

carriers shown as inactive because their authority was revoked for 

failure to maintain evidence of the required minimum levels of 

financial responsibility; (3) private motor carriers of passengers; or 

(4) carriers which also operate larger vehicles, as well as smaller 

vehicles. Therefore, the agency believes its estimate of 1,843 motor 

carriers of passengers is a reasonable estimate of the number of 

entities that will be subject to this rule.

    This final rule is the last in a series of rulemaking actions 

intended to improve the safety of operation of vehicles designed or 

used to transport between 9 and 15 passengers, for compensation, in 

interstate commerce. After reviewing the public comments received in 

response to previous rulemaking notices in this series, and completing 

an analysis of accident data, the agency continues to believe that it 

is appropriate to limit the applicability of the rule to those motor 

carriers that are most likely to have safety performance problems. 

Therefore, this rule involves 1,843 out of the 14,000 small entities 

that the agency is authorized to regulate under section 212 of MCSIA.

    The rulemaking series mentioned above began with the August 5, 1998 

(63 FR 41766) ANPRM in which the agency requested public comment from 

all interested parties concerning the potential impact of amending the 

definition of ``commercial motor vehicle'' to make the FMCSRs 

applicable to the operation of small passenger-carrying CMVs. The 

agency specifically asked for comments concerning the types and numbers 

of passenger carriers that would be covered by the safety regulations 

under the revised definition of CMV provided in section 4008(a) of TEA-

21. At that time, we indicated that due to the preliminary nature of 

the ANPRM and the lack of information about the potential costs of the 

rulemaking, the agency could not evaluate the potential regulatory 

changes on small entities. The agency solicited comments, information, 

and data on these potential impacts on small entities.

    On September 3, 1999, the agency published an interim final rule 

(64 FR 48510) and a NPRM (64 FR 48518) based on the comments received 

in response to the ANPRM. The agency used the interim final rule to 

adopt the statutory definition of CMV provided by TEA-21, and 

temporarily exempt the operation of small passenger-carrying vehicles 

from all of the FMCSRs pending completion of a companion rulemaking 

that would help the agency gather additional information about the 

entities operating vehicles designed or used to transport between 9 and 

15 passengers. The exemption was necessary because the agency viewed 

section 4008(a) of TEA-21 as a mandate either to impose the FMCSRs on 

previously unregulated smaller capacity vehicles, or to exempt through 

a rulemaking proceeding some or all of the operators of such vehicles. 

The statute provided that operators of small passenger-carrying 

vehicles would automatically become subject to the FMCSRs unless the 

agency, through a rulemaking proceeding, determines that it is 

appropriate to exempt such operators from the safety regulations.

    While none of the commenters responded to the request for 

information about potential impacts of the rulemaking on small 

entities, the TLPA estimated that if the agency made the FMCSRs 

applicable to the operation of small passenger-carrying vehicles, 

approximately 14,000 companies, 125,000 vehicles, and 165,000 drivers 

would be covered. The agency reviewed its database of for-hire 

interstate motor carriers of passengers to determine whether TLPA's 

estimate was reasonable. At that time, we indicated there were 1,636 

for-hire motor carriers of passengers with active operating authority 

that had on file with the

[[Page 47871]]

agency proof of financial responsibility at the minimum level required 

for the operation of vehicles designed to transport less than 16 

passengers. Recognizing that TLPA's estimate included a wide range of 

passenger-carrying operations that far exceeded the limited number of 

carriers with active operating authority, the agency stated that it 

could not confirm the accuracy of the number.

    The September 3, 1999 NPRM proposed that each motor carrier 

operating small passenger-carrying vehicles submit a Motor Carrier 

Identification Report (FMCSA Form MCS-150), maintain an accident 

register, and mark their CMVs with the motor carrier identification 

number assigned by the agency (64 FR 48518). The agency stated that 

this would provide it with information about the number of passenger 

carriers, their business locations, and the number of drivers employed 

and vehicles operated. We believed that the proposal could affect a 

substantial number of small entities, but would not have a significant 

impact on them. The agency stated that if the TLPA's estimate of 14,000 

interstate motor carriers operating CMVs designed or used to transport 

9- to 15- passengers was accurate, and most or all of these businesses 

are classified as small businesses by SBA, the rulemaking would affect 

up to 14,000 small entities. The agency provided examples of the 

potential costs to mark each vehicle, in accordance with 49 CFR 390.21, 

with a worse case scenario of a one-time cost of $420 for a carrier 

with a fleet of 20 vehicles.

    With the enactment of MCSIA, the agency was required to take a more 

aggressive regulatory approach and impose safety requirements on: (1) 

Commercial vans referred to as ``camionetas,'' and (2) those commercial 

vans operating in interstate commerce outside of commercial zones that 

have been determined to pose serious safety risks. Therefore, the 

agency was required to continue the series of rulemaking actions in the 

absence of definitive industry characteristic and safety performance 

data, including data concerning the potential impact on small 

businesses that would be made subject to the FMCSRs.

    On January 11, 2001, FMCSA issued a final rule adopting the 

statutory definition of CMV as revised by section 4008 of TEA-21, and 

requiring motor carriers operating small passenger-carrying vehicles to 

submit the identification report, mark their vehicles, and maintain an 

accident register (66 FR 2756). On the same day, in response to section 

212 of MCSIA, the agency issued an NPRM (66 FR 2767) proposing that 

motor carriers operating vehicles designed or used to transport between 

9 and 15 passengers (including the driver) in interstate commerce 

comply with the safety regulations when they are directly compensated 

for such services, and the transportation of any of the passengers 

covers a distance greater than 75 air miles (86.3 statute miles).

    FMCSA indicated that in order to avoid underestimating the 

potential impact of the rule on small entities, it estimated that 1,648 

passenger carriers would be subject to the proposed requirements. This 

estimate was based on the number of for-hire motor carriers of 

passengers with active authority to operate CMVs with a seating 

capacity of 15 passengers or less. The agency argued that using the 

estimate of 1,648 carriers from the database of motor carriers of 

passengers provided a reasonable estimate of the number of entities 

that could be subject to the proposed rules. The agency estimated that 

the costs per carrier would be $6,200 for the first year the 

requirements are in effect, and $6,100 per year thereafter, if the 

costs are distributed evenly among the carriers.

    FMCSA estimated that the costs per carrier associated with the NPRM 

would, on average, be 2.2 percent of their revenues based on data from 

the SBA's 1997 ``Employer Firms, Employment and Estimated Receipts by 

Employment Size of Firm'' tables. The agency reviewed revenues for 

motor carriers in the intercity and rural bus transportation segment of 

the industry. The SBA data indicated there are 145 firms in this 

category with less than 20 employees--the 20-employee threshold was 

chosen by FMCSA to be consistent with its estimate of the average 

number of drivers likely to be employed by the 1,648 for-hire passenger 

carriers. These 145 carriers had combined revenues of $41,793,000. The 

average revenues were considered by dividing the combined revenues by 

the total number of firms, or $288,227 in revenues per year for each 

carrier.

    FMCSA made a preliminary determination that the proposed rule would 

not affect a substantial number of small entities because it would be 

applicable to only a fraction of the 14,000 entities operating 9- to 

15-passenger vehicles for compensation. However, the agency recognized 

that the NPRM would have a significant impact on some of the small 

entities, especially in those cases where the profit margins are 

approximately 2.2 percent or less. The agency indicated that there is a 

possibility for failure of some small passenger-carrying CMV 

operations, especially those with profit margins of 2.2 percent or 

less. Because it was limiting the applicability of the rules to only a 

fraction of the universe of eligible small entities (thus minimizing 

the overall impact), and the estimated costs of the rule would be 2.2 

percent of the revenues of the affected small entities, the agency did 

not believe that a more comprehensive analysis was needed to ensure 

compliance with the Regulatory Flexibility Act. This was particularly 

in view of the fact that the agency was statutorily required to 

regulate operators of 9- to 15-passenger vehicles and had exercised its 

discretion, as limited by MCSIA, to minimize the impact on small 

entities.

    After publication of the January 11, 2001 NPRM, the agency 

increased its estimate of the potential costs of the rule for small 

entities based on: (1) A revision of the estimated information 

collection burden for driver records of duty status; (2) a correction 

of the estimate of the costs for medical examinations for drivers; and 

(3) consultation with SBA about the number of small businesses and 

their revenues.

    First, the agency revised the estimated costs associated with the 

information collection burden for drivers' records of duty status, and 

submitted the revised estimate to OMB for approval. The agency 

estimated that the information collection burden for the records of 

duty status (required by 49 CFR part 395) for the operators of 9- to 

15-passenger vehicles would be 137,250 hours, based on an estimated 

18,300 drivers being subject to the requirements. Using the new 

estimates, approved by OMB [OMB Control No. 2126-0001] on information 

collection burden for the records of duty status, and applying the 

burden per driver and carrier to the entities that would operate small 

passenger-carrying CMVs, the agency now believes the additional burden 

would be 836,000 annual burden hours, for approximately 22,000 drivers. 

The result of the increased estimate of the annual burden hours for 

completing and retaining the records of duty status, and an increase in 

the number of drivers that would be subject to the hours of service 

rules, is an increase from $2,539 per carrier per year for such records 

to $7,012 per carrier per year.

    FMCSA also revised its estimates of the costs for medical 

examinations of drivers. The agency's previous calculations included an 

error resulting in an estimate of $1,718 per carrier per year. A 

correction of the error, plus a revision of the estimate of the number

[[Page 47872]]

of drivers yields an estimate of $3,844 per carrier per year for 

medical examinations.

    As indicated earlier, FMCSA estimates that the sum of all estimated 

costs of requiring operators of small passenger-carrying CMVs to comply 

with 49 CFR parts 391, 395, and 396 is approximately $23,850,000 for 

the first year and $20,184,234 per year thereafter. If the costs of the 

rulemaking are distributed evenly among these 1,843 motor carriers, the 

costs per carrier would be approximately $12,940 for the first year the 

requirements are in effect, and a little more than $10,952 per year 

thereafter.

    A summary of the estimated first-year costs per motor carrier is 

presented below:

[GRAPHIC] [TIFF OMITTED] TR12AU03.001

    The actual costs each individual fleet would experience depend on 

the number of drivers employed and the number of small passenger-

carrying CMVs operated. The above estimates are intended to serve as a 

baseline of 10 CMVs per fleet and about 11 drivers per business. 

Driver-related costs, such as driver qualifications and hours-of-

service, for each business would decrease or increase as the number of 

drivers employed decreases below the baseline or increases above the 

baseline. The same holds true for vehicle-related costs.

    In order to better determine the potential impact on small 

businesses, FMCSA met with representatives of SBA. As a result of that 

meeting, the FMCSA reviewed the U.S. Department of Commerce's 1997 

Economic Census, Transportation and Warehousing (Publication No. EC 

97T48S-LS, Issued August 2000) to better determine the revenues of 

businesses under the NAICS subsector 485, which covers transit and 

ground transportation, and more accurately assess the number of small 

entities based on SBA's $6,000,000 threshold for defining a small 

business in the passenger transportation industry.

    For businesses covered by NAICS code 4852, interurban and rural bus 

transportation, the 1997 census data indicate there are 407 firms with 

combined revenues of $1,147,432,000. For the purposes of this analysis, 

the revenues for the businesses in this group were divided by the 

number of firms resulting in an estimate of $2,819,243 in revenues per 

year for each carrier [$1,147,432,000/407 firms = $2,819,243].

    The agency also considered businesses covered by NAICS code 4853, 

taxi and limousine service. The 1997 census data indicate there are 

6,418 firms with combined revenues of $3,154,521,000. For purposes of 

this analysis, the revenues for businesses in this group were also 

divided by the number of firms resulting in an estimate of $491,511 in 

revenues per year for each carrier [($3,154,521,000/6,418) = $491,511].

    Based on the estimates above for the revenues per firm for 

interurban and rural bus transportation businesses, and revenues per 

firm for taxi and limousine service businesses, FMCSA believes that 

most, if not all, of the firms in these categories appear to be small 

businesses based on SBA's $6,000,000 threshold.

    The costs per carrier associated with this rule would, on average, 

be approximately 0.45 percent of the revenues for interurban and rural 

bus services [($12,940 costs per carrier)/($2,819,243 revenues per 

carrier) x 100 = 0.45 percent], and 2.6 percent of the revenues for 

taxi and limousine services [($12,940 costs per carrier)/$491,511 

revenues per carrier) x 100 = 2.6 percent].

    For interurban and rural bus services with a profit margin greater 

than 0.45 percent, the new rule will decrease their profits but the 

businesses would maintain some level of profit. For bus services with 

profit margins of 0.45 percent or less, the rule could result in the 

failure of the business. Likewise, for taxi and limousine services with 

a profit margin greater than 2.6 percent, the rule would decrease their 

profits but the businesses would maintain some level of profit. For 

taxi and limousine businesses with profit margins of 2.6

[[Page 47873]]

percent or less, the rule could result in failure of the business.

    FMCSA does not have data on the revenues or profit margins of the 

1,843 motor carriers likely to be impacted by the rule or more precise 

information about their revenues. Also, the agency does not have 

sufficient data about these motor carriers to determine the 

distribution of drivers and vehicles, such as the number of carriers 

with 1 to 5 vehicles, the number of carriers with 6 to 10 vehicles, the 

number of carriers with 11 to 20 vehicles, and similar data for the 

number of drivers, to make more precise its estimates concerning 

revenues. However, the agency believes it is appropriate to consider 

all 1,843 motor carriers of passengers likely to be affected by this 

rulemaking to be small entities to avoid underestimating the impact 

this rule will have on them. The agency believes the estimates 

presented above are reasonable given the limited information available 

about this segment of the motor carrier industry. Therefore, the agency 

has made a determination that this rule would not affect a substantial 

number of small entities. However, it could have a significant impact 

on some of these 1,843 small entities, especially in those cases where 

the profit margins are approximately 2.6 percent or less.

    FMCSA has considered the comments to the previous rulemaking 

documents concerning the regulation of small passenger-carrying CMVs, 

and believes this group of motor carriers provides an important service 

to its clients. These motor carriers provide services to individuals 

for whom motor coach services are not available, those who may not be 

able to afford to use motor coach operators, or individuals who choose, 

for whatever reason, not to use motor coach operators for their 

intercity travel. The agency believes the industry is very important to 

those who rely on it. There is a possibility for failure of some small 

passenger-carrying CMV operations, especially those with profit margins 

of 2.6 percent or less. However, the number of failures among the 

estimated 1,843 motor carriers operating small passenger-carrying CMVs 

is expected to be small. Therefore, the agency believes there could be 

a small degree of disruption in the services provided by small 

passenger-carrying CMV operations that are not capable of putting into 

place the safety management controls necessary to achieve compliance 

with 49 CFR parts 390, 391, 392, 393, 395, and 396.

    FMCSA has considered other regulatory alternatives as described 

earlier, and determined that this action is necessary to fulfill 

section 212 of the MCSIA and respond to the safety problem indicated by 

the FARS and General Estimates System (GES) data. It is unlikely that a 

rule establishing less stringent requirements would have the same 

potential for improving the safety of operations of these CMVs.

    Accordingly, FMCSA has considered the economic impacts of the 

requirements on small entities and certifies that this rule will not 

have a significant economic impact on a substantial number of small 

entities.

Intergovernmental Review

    Catalog of Federal Domestic Assistance Program Number 20.217, Motor 

Carrier Safety. The regulations implementing Executive Order 12372 

regarding intergovernmental consultation on Federal programs and 

activities do not apply to this program.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-

3520), Federal agencies must obtain approval from the Office of 

Management and Budget (OMB) for each collection of information they 

conduct, sponsor, or require through regulations. FMCSA determined that 

the requirements in this final rule will impact four currently-approved 

information collections. FMCSA is requiring that motor carriers 

operating CMVs designed or used to transport 9- to 15- passengers be 

required to meet the recordkeeping requirements of 49 CFR parts 391, 

395, and 396.

Medical Examination and Certification--OMB Control No. 2126-0006

    Drivers operating CMVs designed or used to transport between 9 and 

15 passengers will be required to meet the medical examination and 

certification requirements at 49 CFR part 391, subpart E. The 

information collection requirements related to that subpart have been 

approved by the OMB under provisions of the PRA and assigned the OMB 

Control No. 2126-0006, which is currently due to expire on October 31, 

2003. FMCSA estimates it takes a medical examiner approximately 20 

minutes to complete and document the medical examination and 1 minute 

to complete the medical certificate, and that it takes a motor carrier 

approximately 1 minute to make a copy of the medical certificate and 

file it. Therefore, the total time associated with this information 

collection, per driver, is 22 minutes. FMCSA estimates that 

approximately 22,000 drivers will be subject to the final rule. The 

estimated burden for the first year will be 8,067 burden hours [22,000 

drivers x 22 minutes per driver, divided by 60 minutes in an hour]. 

Since the medical examiner's certificate is usually made valid for 24 

months, the prorated annual burden will be approximately half that 

amount. Therefore, the annual burden hours will be 4,034. FMCSA 

submitted the amended medical qualification information collection to 

the OMB for review and approval.

Driver Qualification Files--OMB Approval No. 2126-0004

    Motor carriers that employ drivers of CMVs designed or used to 

transport between 9 and 15 passengers will be required to maintain a 

complete driver qualification file for each driver in accordance with 

49 CFR 391.51. The information collection requirements related to 

driver qualification files have been approved by the OMB under the 

provisions of the PRA and assigned the OMB Control No. 2126-0004, which 

is currently due to expire on August 31, 2004. The following components 

are involved in this information collection: driver's employment 

application (2 minutes for drivers), review of driver's employment 

application (1 minute for motor carriers), initial inquiry of driving 

record and investigation of employment (15 minutes for motor carriers), 

list or certification of violations (2 minutes for drivers), and annual 

review of driving record (5 minutes for motor carriers). The burden 

hour estimate associated with this information collection is 25 minutes 

per driver, which includes 21 minutes for motor carriers and 4 minutes 

for drivers. Therefore, FMCSA estimates that the addition of the 22,000 

drivers who will be subject to this final rule will increase the burden 

hours of this information collection by 9,167 [22,000 drivers x 25 

minutes, divided by 60 minutes in an hour]. FMCSA submitted the amended 

driver qualification information collection to OMB for review and 

approval.

Records of Duty Status--OMB Control No. 2126-0001

    Drivers operating CMVs designed or used to transport between 9 and 

15 passengers will be required to record their duty status in 

accordance with 49 CFR 395.8. The information collection requirements 

related to records of duty status have been approved by the OMB under 

the provisions of the PRA and assigned the OMB Control No. 2126-0001, 

which expires on March 31, 2005. FMCSA estimates the annual burden on 

each CMV driver to be approximately 26 hours [6 minutes and 30 seconds 

for each daily log x 240 workdays a year, divided by 60 minutes in an 

hour]. The

[[Page 47874]]

total burden for the 22,000 drivers affected by this rule will be 

572,000 [22,000 drivers x 26 hours per year]. In addition, each motor 

carrier affected by this rule will have a supervisor responsible for 

reviewing its driver records of duty status and that the supervisor 

will spend approximately 12 hours per year reviewing these records to 

ensure compliance with the hours-of-service rules [3 minutes per day to 

review logs x 240 workdays]. The total burden for the supervisors of 

the 22,000 drivers affected by this rule will be 264,000 [22,000 

drivers x 12 hours per year]. Therefore, the total additional burden 

for OMB Control No. 2126-0001 will be 836,000 annual burden hours 

[572,000 + 264,000]. FMCSA submitted the amended driver records of duty 

status information collection to OMB for review and approval.

Vehicle Inspection, Repair, and Maintenance--OMB Control No. 2126-0003

    Motor carriers operating CMVs designed or used to transport between 

9 and 15 passengers for direct compensation will be required to 

maintain records of inspection, repair, and maintenance for their CMVs 

in accordance with 49 CFR part 396. The information collection 

requirements related to inspection, repair, and maintenance have been 

approved by the OMB under the provisions of the PRA and assigned OMB 

Control No. 2126-0003, which expires on May 31, 2004. FMCSA estimates 

that it will take a total expenditure of 12 hours and 57 minutes (or 

777 minutes) per year per CMV to complete the required recordkeeping 

related to vehicular inspection, repair, and maintenance (48 minutes 

per vehicle for systematic inspection, repair, and maintenance; 12 

hours and 4 minutes per year per vehicle for driver vehicle inspection 

reports; and 5 minutes per year per vehicle for periodic inspection).

    Evidence of an individual's qualifications to perform periodic 

vehicle inspections must be retained by the motor carrier. Evidence of 

an individual's qualifications to be a brake inspector must also be 

retained. The creation of these two types of qualification evidence 

involves an estimated one-time, non-recurring expenditure of 5 minutes 

by a safety director, driver supervisor, or equivalent position for 

each type of inspector. Based on an estimate of 1,843 motor carriers 

that will be subject to the rule and on the assumption that each motor 

carrier has at least (1) one employee who is a qualified periodic 

vehicle inspector and (2) one employee who is a qualified brake 

inspector, the estimated total time burden related to the inspector 

qualifications rules is approximately 307 annual burden hours [(5 

minutes for each periodic vehicle inspector certification x 1,843 motor 

carriers) + (5 minutes for each brake inspector certification x 1,843 

motor carriers) = 18,430 minutes, divided by 60 minutes in an hour = 

307 hours].

    FMCSA estimates that the total inspection, repair, and maintenance 

recordkeeping burden is approximately 238,976 burden hours per year 

[18,430 CMVs x 777 minutes (or 12 hours and 57 minutes) per year per 

CMV, divided by 60 minutes in an hour = 238,669, plus an additional 307 

= 238,976]. FMCSA submitted the amended inspection, repair, and 

maintenance information to OMB for review and approval.

    The total estimated additional burden hours imposed by this rule 

will be 1,088,177 [4,034 (associated with OMB Control No. 2126-0006) + 

9,167 (associated with OMB Control No. 2126-0004) + 836,000 (associated 

with OMB Control No. 2126-0001) + 238,976 (associated with OMB Control 

No. 2126-0003)]. The following table displays this information:

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

                                                            Additional

                                            Currently-     burden hours

             OMB control No.                 approved       associated

                                           annual burden     with this

                                               hours        final rule

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

2126-0006...............................       1,180,792           4,034

2126-0004...............................         941,856           9,167

2126-0001...............................     161,364,492         836,000

2126-0003...............................      35,107,856         238,976

=========================================

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

    In the NPRM stage, we requested comments regarding the information 

collection burden hour estimates. However, no comments were received 

during the NPRM comment period regarding the estimated information 

collection burdens.

National Environmental Policy Act

    The agency has analyzed this rulemaking for purposes of the 

National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and 

has determined that this action does not have any effect on the quality 

of the environment.

Energy Effects

    We have analyzed this action under Executive Order 13211, Actions 

Concerning Regulations That Significantly Affect Energy Supply, 

Distribution, or Use. We have determined that it is not a ``significant 

energy action'' under that order because it is not economically 

significant and is not likely to have a significant adverse effect on 

the supply, distribution, or use of energy.

Unfunded Mandates Reform Act of 1995

    This final rule does not impose an unfunded mandate, as defined by 

the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532 et seq.), that 

will result in a $100 million or more expenditure (adjusted annually 

for inflation) in any one year by State, local, and tribal governments, 

in the aggregate, or by the private sector.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 

of Executive Order 12988, Civil Justice Reform, to minimize litigation, 

eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this action under Executive Order 13045, 

Protection of Children from Environmental Health Risks and Safety 

Risks. This rule is not an economically significant rule and does not 

concern an environmental risk to health or safety that may 

disproportionately affect children.

Taking of Private Property

    This final rule will not effect a taking of private property or 

otherwise have taking implications under Executive Order 12630, 

Governmental Actions and Interference with Constitutionally Protected 

Property Rights.

Federalism Assessment

    We have analyzed this rule in accordance with the principles and 

criteria of Executive Order 13132, Federalism. We have determined that 

this action does not have a substantial direct effect on States or 

impose additional costs or burdens on the States. Nothing in this 

document limits the policymaking discretion of the States or directly 

preempts any State law or regulation. Therefore, we have determined 

that this final rule does not have federalism implications.

List of Subjects

49 CFR Part 390

    Highway safety, Intermodal transportation, Motor carriers, Motor 

vehicle safety, Reporting and recordkeeping requirements.

49 CFR Part 398

    Highway safety, Migrant labor, Motor carriers, Motor vehicle 

safety, Reporting and recordkeeping requirements.

0

For the reasons discussed in the preamble, the Federal Motor Carrier 

Safety Administration amends title 49,

[[Page 47875]]

Code of Federal Regulations, parts 385, 390, and 398 as follows:

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

0

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

    Authority: 49 U.S.C. 13301, 13902, 31132, 31133, 31136, 31502, 

and 31504; sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C. 

701 note); secs. 212 and 217, Pub. L. 106-159, 113 Stat. 1748, 1766, 

1767; and 49 CFR 1.73.

0

2. Amend Sec.  390.3 by revising paragraph (f)(6) to read as follows:

Sec.  390.3  General applicability.

    (f) * * *

    (6)(i) The operation of commercial motor vehicles designed or used 

to transport between 9 and 15 passengers (including the driver), not 

for direct compensation, provided the vehicle does not otherwise meet 

the definition of a commercial motor vehicle, except that motor 

carriers operating such vehicles are required to comply with Sec. Sec.  

390.15, 390.19, and 390.21(a) and (b)(2).

    (ii) The operation of commercial motor vehicles designed or used to 

transport between 9 and 15 passengers (including the driver) for direct 

compensation, provided the vehicle is not being operated beyond a 75 

air-mile radius (86.3 statute miles or 138.9 kilometers) from the 

driver's normal work-reporting location, and provided the vehicle does 

not otherwise meet the definition of a commercial motor vehicle, except 

that motor carriers operating such vehicles are required to comply with 

Sec. Sec.  390.15, 390.19, and 390.21(a) and (b)(2).

0

3. Amend Sec.  390.5 by adding a definition for ``direct 

compensation,'' in alphabetical order to read as follows:

Sec.  390.5  Definitions.

* * * * *

    Direct compensation means payment made to the motor carrier by the 

passengers or a person acting on behalf of the passengers for the 

transportation services provided, and not included in a total package 

charge or other assessment for highway transportation services.

* * * * *

PART 398--TRANSPORTATION OF MIGRANT WORKERS

0

4. The authority citation for part 398 is revised to read as follows:

    Authority: 49 U.S.C. 13301, 13902, 31132, 31133, 31136, 31502, 

and 31504; sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C. 

701 note); sec. 212, Pub. L. 106-159, 113 Stat. 1748, 1766; and 49 

CFR 1.73.

0

5. Revise Sec.  398.2 to read as follows:

Sec.  398.2  Applicability.

    (a) General. The regulations prescribed in this part are applicable 

to carriers of migrant workers by motor vehicle, as defined in Sec.  

398.1(b), but only in the case of transportation of any migrant worker 

for a total distance of more than 75 miles (120.7 kilometers) in 

interstate commerce, as defined in 49 CFR 390.5.

    (b) Exception.

    (1) The regulations prescribed in this part are not applicable to 

carriers of migrant workers by motor vehicle, as defined in Sec.  

398.1(b), when:

    (i) The motor vehicle is designed or used to transport between 9 

and 15 passengers (including the driver);

    (ii) The motor carrier is directly compensated for the 

transportation service; and

    (iii) The vehicle used to transport mirgrant workers is operated 

beyond a 75 air-mile radius (86.3 statute miles or 138.9 kilometers) 

from the driver's normal work-reporting location.

    (2) Carriers of migrant workers by motor vehicle that operate 

vehicles, designed or used to transport between 9 and 15 passengers 

(including the driver) for direct compensation, in interstate commerce, 

must comply with the applicable requirements of 49 CFR parts 385, 390, 

391, 392, 393, 395, and 396, when the motor vehicle is operated beyond 

a 75 air-mile radius (86.3 statute miles or 138.9 kilometers) from the 

driver's normal work-reporting location.

* * * * *

    Issued on: August 5, 2003.

Annette M. Sandberg.

Administrator.

[FR Doc. 03-20369 Filed 8-11-03; 8:45 am]