[Federal Register: August 7, 2008 (Volume 73, Number 153)]
[Proposed Rules]
[Page 45929-45935]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07au08-28]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 356, 365, and 374
[Docket No. FMCSA-2008-0235]
RIN 2126-AB16
Elimination of Route Designation Requirement for Motor Carriers
Transporting Passengers Over Regular Routes
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of proposed rulemaking (NPRM); request for comments.
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SUMMARY: FMCSA proposes to discontinue its current requirement that
applicants seeking authority to transport passengers over regular
routes submit a detailed description and a map of the route(s) over
which they propose to operate. The Agency would register such carriers
as regular-route carriers without requiring designation of specific
regular routes and fixed end-points. Once these regular-route motor
carriers have obtained operating authority from FMCSA, they would no
longer need to seek additional FMCSA approval in order to change or add
routes. By eliminating the need to file and process multiple requests
concerning routes, the Agency believes this action will decrease the
paperwork burden on regular-route motor carriers seeking to expand or
change their routes without compromising safety. It will also decrease
the Agency's own paperwork burden. Each registered regular-route motor
carrier of passengers would continue to be subject to the full safety
oversight and enforcement program of FMCSA and its State and local
partners.
DATES: FMCSA must receive your comments by September 22, 2008.
ADDRESSES: You may submit comments identified by the Federal Docket
Management System Number in the heading of this document by any of the
following methods. Do not submit the same comments by more than one
method. The Federal eRulemaking portal is the preferred method for
submitting comments, and we urge you to use it.
Federal eRulemaking Portal: Go to http://www.regulations.gov.
Follow the online instructions for submitting comments. In the Comment
or Submission section, type Docket ID Number ``FMCSA-2008-0235'',
select ``Go'', and then click on ``Send a Comment or Submission.'' You
will receive a tracking number when you submit a comment.
Telefax: 1-202-493-2251.
Mail, Courier, or Hand-Deliver: Docket Management Facility, U.S.
Department of Transportation, Room W12-140, 1200 New Jersey Avenue,
SE., Washington, DC 20590-0001. Office hours are between 9 a.m. and 5
p.m., E.T., Monday through Friday, except Federal holidays.
Privacy Act: Regardless of the method used for submitting comments,
all comments will be posted without change to the Federal Docket
Management System (FDMS) at http://www.regulations.gov. Anyone can
search the electronic form of all our dockets in FDMS, by the name of
the individual submitting the comment (or signing the comment, if
submitted on behalf of an association, business, labor union, etc.).
DOT's complete Privacy Act Statement was published in the Federal
Register on April 11, 2000 (65 FR 19476), and can be viewed at the URL
http://docketsinfo.dot.gov.
FOR FURTHER INFORMATION CONTACT: Mr. David Miller, Regulatory
Development Division, (202) 366-5370 or by e-mail at:
FMCSAregs@dot.gov.
SUPPLEMENTARY INFORMATION: This section is organized as follows:
I. Description of the Rulemaking
II. Legal Basis for the Rulemaking
III. Background
A. Introduction
B. Impact on State Regulation of Intrastate Regular-Route
Transportation by Interstate Carriers
C. Registration of Governmental Entities Providing Interstate
Regular-Route Transportation
IV. The Proposed Rule
V. Other Approaches Considered
VI. Regulatory Analyses and Notices
I. Description of the Rulemaking
FMCSA is discontinuing the administrative requirement that motor
carriers must describe specific routes when seeking authority to
provide regular-route transportation of passengers in interstate
commerce. Except for carriers who are public recipients of governmental
assistance, regular-route passenger carriers will be registered as such
without any specific route designations. Carriers currently holding
route-specific operating authority will be issued motor carrier
certificates of registration that are not route-specific which will
supersede their existing authority.
Designation of regular routes is no longer required by statute and
discontinuing this requirement will streamline the registration process
by eliminating the need for motor carriers to file new applications
when seeking to change or expand their routes. It will also benefit new
entrants by simplifying the application for operating authority.
Designation of regular routes is an administrative requirement based on
economic regulation which is considered to have limited safety benefits
to the public or the transportation community.
However, the Agency will continue to require public recipients of
governmental assistance to designate specific routes when applying for
regular-route authority because its governing statute permits persons
to challenge specific regular-route transportation service provided by
public entities on the ground that authorizing such service is not
consistent with the public interest. Eliminating the route designation
requirement would prevent the Agency from evaluating proposed
transportation services under the public interest standard, in
violation of its statutory mandate.
This rulemaking amends several FMCSA regulations that reference
authorized routes or points of service in order to make them consistent
with the
[[Page 45930]]
Agency's discontinuation of the route designation requirement. The OP-
1(P) application form would also be changed to eliminate the current
route-designation and mapping requirements.
II. Legal Basis for the Rulemaking
Regular-route passenger service predates the Motor Carrier Act of
1935 (MCA) (Pub. L. 74-255, 49 Stat. 543, Aug. 9, 1935). The MCA, which
placed interstate motor carriers under Federal regulation for the first
time, authorized the Interstate Commerce Commission (ICC) to regulate
motor carriers by, among other things, issuing certificates of
operating authority to motor carriers of property and passengers
operating in interstate commerce. Many motor carriers providing
regular-route service before 1935 received ``grandfathered'' operating
authority in the MCA. Section 207(a) of the MCA stated that ``no
certificate shall be issued to any common carrier of passengers for
operations over other than a regular route or regular routes, and
between fixed termini [end-points], except as such carriers may be
authorized to engage in special or charter operations.'' Section 208(a)
required that certificates issued to regular-route passenger carriers
specify the routes, end-points, and intermediate points to be served
under the certificate. Section 208(b) permitted occasional deviations
from authorized routes, if permitted by ICC regulations. The ICC did
not issue regulations codifying sections 207(a) and 208(a) of the MCA,
although it did permit minor deviations from authorized routes in rules
now codified at 49 CFR 356.3.
The above MCA provisions were recodified without substantive change
as 49 U.S.C. 10922(f)(1)-(3); however, the provisions were then
repealed by the ICC Termination Act of 1995 (ICCTA) (Pub. L. 104-88,
109 Stat. 888, Dec. 29, 1995). As discussed later in this preamble,
section 103 of the ICCTA amended subtitle IV of title 49, United States
Code, including section 10922 of title 49. In particular, the ICCTA
retained some of the former registration requirements of section 10922
applicable to regular-route passenger carriers but eliminated many
others, including sections 10922(f)(1)-(3). Consequently, the Agency is
no longer required to issue operating authority to regular-route
passenger carriers specifying routes and fixed end-points. However, the
Agency has continued to require applicants seeking regular-route
authority to submit maps and a detailed description of proposed
operating route(s) as attachments to the Form OP-1(P) application.
The Agency is proposing to discontinue this requirement and amend
its regulations and Form OP-1(P) to reflect the change in statute,
i.e., it would no longer require carriers to specify, in applications
for regular-route operating authority, the routes, end-points, and
intermediate points to be served. Under 49 U.S.C. 13301(a), the
Secretary of Transportation (Secretary) may prescribe regulations to
carry out title 49, subtitle IV, part B, which includes registration
requirements for motor carriers transporting passengers in interstate
commerce for compensation. The Secretary has delegated this authority
to the Administrator of FMCSA under 49 CFR 1.73(a).
III. Background
A. Introduction
FMCSA currently registers for-hire passenger carriers in two
distinct operational categories: (1) Carriers providing service over
regular routes, and (2) carriers providing charter and special
transportation. Regular-route carriers perform regularly scheduled
service over named roads or highways. Applicants seeking regular-route
authority must currently submit a ``detailed narrative description of
the route(s) and a corresponding map that graphically displays the path
of the route'' over which they propose to operate. If a carrier
proposes to add routes to its operating system, it must file a new
application in order to do so. A carrier is not limited in the number
of routes it may include in any particular application.
The route descriptions submitted by an applicant are published in
the FMCSA Register (see http://li-public.fmcsa.dot.gov/LIVIEW/pkg_menu.prc_ menu). Interested parties may file protests to an
application within 10 days of publication. The Agency must deny the
application if a protest or information independently developed by the
Agency demonstrates that the applicant is not willing and able to
comply with the Agency's safety fitness requirements or with the
applicable commercial, safety, or financial responsibility regulations
(49 CFR parts 356 through 396). As discussed later, a protesting party
may object to a regular-route application filed by a public recipient
of governmental assistance on the additional ground that the
transportation proposed is not in the public interest.
As of July 2008, there were 272 active regular-route carriers in
FMCSA's Licensing and Insurance database. In 2007, FMCSA received 94
applications for regular-route authority from new entrants and 34
applications from registered motor carriers of passengers with existing
regular-route authority. The number of protests received is generally
very small; they averaged one per year between 2003 and 2007.
FMCSA believes its current requirement for route designation no
longer serves a useful purpose. Congress enacted the statutory
requirement in the MCA primarily to protect existing carriers, serving
a particular route, from competition. Subsequent legislative changes,
including those in the ICCTA, have limited the ability of existing
carriers to protest applications based on economic grounds. If Congress
believed the requirement for route designation served a useful purpose,
it presumably would have retained the requirement in the ICCTA, as it
did with numerous other provisions of the former Interstate Commerce
Act.
The requirement that regular-route carriers file new applications
when seeking to expand or change routes is not based on motor carrier
safety considerations--it is grounded in economic regulation.
Eliminating the multiple application requirement would not have an
adverse impact on safety because the motor carriers will still be
required to comply with all applicable safety rules. New entrants would
still be subject to the ``fitness standard,'' and existing regular-
route passenger carriers would be treated the same as property carriers
and passenger carriers that provide charter and special transportation.
These latter carriers normally receive nationwide operating authority
and generally need file only a single application in order to provide
interstate transportation. Potential safety problems are generally
determined through new entrant safety audits, compliance reviews, or
roadside inspections, and are addressed through the Agency's
enforcement program. The Agency believes there is no reason for
regular-route passenger carriers to be treated differently from other
carriers to ensure their compliance with the Federal Motor Carrier
Safety Regulations.
Each new entrant regular-route motor carrier of passengers is
subject to the full safety oversight and enforcement programs of the
FMCSA and its State and local partners. As required by 49 U.S.C. 31144,
FMCSA determines whether each owner and operator is fit to operate
safely. This section requires each owner and operator granted operating
authority to undergo a new entrant safety audit within 18 months of
starting operations. These new entrant
[[Page 45931]]
safety audits identify new motor carriers that are operating in
violation of FMCSA regulations and, therefore, may have a high risk of
causing crashes that could result in fatalities, injuries, and property
damage. The safety audit process in 49 CFR part 385, subpart D
(Sec. Sec. 385.301 through 385.337) allows the Agency to evaluate new
motor carriers before granting them permanent registration.
In addition to the new entrant safety audit, FMCSA conducts
continual oversight of regular-route motor carriers of passengers under
its general, pre-existing legal authority provided by section 206 of
the Motor Carrier Safety Act of 1984 (codified at 49 U.S.C. 31136) (the
1984 Act). The 1984 Act requires regulations that prescribe minimum
safety standards for commercial motor vehicles (CMVs) that ensure: (1)
CMVs are maintained, equipped, loaded, and operated safely; (2) the
responsibilities imposed on operators of CMVs do not impair their
ability to operate the vehicles safely; (3) the physical condition of
operators of CMVs is adequate to enable them to operate the vehicles
safely; and (4) the operation of CMVs does not have a deleterious
effect on the physical condition of the operators (49 U.S.C. 31136(a)).
FMCSA would continue to monitor and enforce its commercial, safety,
and financial responsibility regulations on all regular-route motor
carriers of passengers. It would also require and ensure its State
motor carrier safety enforcement partners continue their monitoring and
enforcement activities as required in their grant funding agreements
under the Motor Carrier Safety Assistance Program. Therefore, regular-
route motor carriers of passengers would continue to be subject to the
full requirements of the Federal Motor Carrier Safety Regulations that
require CMVs to be maintained and operated safely.
The Agency concludes that the current route designation
requirement, and its related requirement that registered carriers file
new applications when adding or changing routes, has no discernible
safety benefit. It does, however, continue to burden the industry and
the Agency with unnecessary paperwork.
B. Impact on State Regulation of Intrastate Regular-Route
Transportation by Interstate Carriers
Although the ICCTA repealed 49 U.S.C. 10922(f)(1)-(3), Congress
carried forward other preexisting statutory requirements applicable to
regular-route passenger carriers. The most significant of these
provisions is now codified in 49 U.S.C. 13902(b)(3) and provides:
Intrastate transportation by interstate carriers.--A motor
carrier of passengers that is registered by the Secretary under
subsection [13902] (a) is authorized to provide regular-route
transportation entirely in one State as a motor carrier of
passengers if such intrastate transportation is to be provided on a
route over which the carrier provides interstate transportation of
passengers.
Section 13902(b)(3) codifies section 6 of the Bus Regulatory Reform Act
of 1982 (Bus Act) (Pub. L. 97-261, 96 Stat. 1102, Sept. 20, 1982),
which amended former section 10922 in numerous respects. Section 6
preempted States from regulating intrastate service provided by
interstate regular-route passenger carriers over interstate routes.
Congress concluded that burdensome State regulation was one of
several significant factors contributing to the declining financial
health of the interstate regular-route bus industry. This conclusion
was based largely on: (1) The inability of interstate carriers to
discontinue unprofitable intrastate routes due to State regulatory
restrictions on entry, exit, or service frequency over these routes;
and (2) the inability of interstate carriers to maximize operational
efficiency due to State ``closed door'' policies prohibiting them from
picking up and dropping off intrastate passengers along interstate
routes.
If a regular-route passenger carrier obtains operating authority
from FMCSA, a State is prohibited from requiring the carrier to obtain
operating authority to provide intrastate service on that route. In
H.R. Conf. Rep. 100-27 accompanying the Surface Transportation and
Uniform Relocation Assistance Act of 1987 (STURAA) (Pub. L. 100-17, 101
Stat. 132, Apr. 2, 1987), Congress noted that the preemption is
limited; that is, grants of intrastate authority must have a nexus to
legitimate interstate service provided along interstate routes. The
STURAA amended the Bus Act by clarifying that interstate service
provided along the route must be a substantial, bona fide service
involving actual service in more than one State. Because the preemption
is route-specific, FMCSA requests comment on whether elimination of
route designations in FMCSA operating certificates would make this
preemption provision more difficult to enforce and perhaps result in
increased State regulation of intrastate regular-route transportation.
Under 49 U.S.C. 14501(a)(1)(A), States are also preempted from
regulating the scheduling of interstate or intrastate transportation
(including discontinuance of or reduction in the level of service) on
an interstate route. FMCSA specifically requests comment on whether
elimination of route designations will affect this preemption
provision.
A related statutory provision, 49 U.S.C. 13902(b)(4), concerns the
ability of States to regulate express packages, newspapers, or mail
carried on buses. Section 13902(b)(4) provides:
Preemption of State regulation regarding certain service.--No
State or political subdivision thereof and no interstate agency or
other political agency of 2 or more States shall enact or enforce
any law, rule, regulation, standard or other provision having the
force and effect of law relating to the provision of pickup and
delivery of express packages, newspapers, or mail in a commercial
zone if the shipment has had or will have a prior or subsequent
movement by bus in intrastate commerce and, if a city within the
commercial zone, is served by a motor carrier of passengers
providing regular-route transportation of passengers subject to
jurisdiction under subchapter I of chapter 135.
This provision, which was enacted by the Bus Act, essentially
extends the preemption of State regulation of intrastate passenger
transportation in section 13902(b)(3) to express packages, newspapers,
or mail carried in the buses. As with section 13902(b)(3), FMCSA
requests comment on whether elimination of route designations in FMCSA
operating certificates would make this preemption provision more
difficult to enforce and perhaps result in increased State regulation
of the transportation of express packages, newspapers, or mail in a
commercial zone.
C. Registration of Governmental Entities Providing Interstate Regular-
Route Transportation
Additional statutory provisions applicable to interstate regular-
route transportation include 49 U.S.C. 13902(b)(2)(B), which provides:
Regular-route transportation.--The Secretary shall register
under subsection [13902] (a)(1) a public recipient of governmental
assistance to provide regular-route transportation subject to
jurisdiction under subchapter I of chapter 135 as a motor carrier of
passengers if the Secretary finds that the recipient meets the
requirements of subsection (a)(1), unless the Secretary finds, on
the basis of evidence presented by any person objecting to the
registration, that the transportation to be provided pursuant to the
registration is not in the public interest.
This subsection mandates registration of governmental entities
providing regular-route transportation if they meet Agency fitness
standards, unless the
[[Page 45932]]
Agency finds the transportation is not in the public interest (but only
if someone objects to the application and submits the necessary
evidence).
Title 49 U.S.C. 13902(b)(8) defines ``public recipient of
governmental assistance'' as:
(i) any State, (ii) any municipality or other political
subdivision of a State, (iii) any public agency or instrumentality
of one or more States and municipalities and political subdivisions
of a State, (iv) any Indian tribe, and (v) any corporation, board,
or other person owned or controlled by any entity described in
clause (i), (ii), (iii), or (iv), which before, on, or after January
1, 1996, received governmental assistance for the purchase or
operation of any bus.
This subsection essentially recodifies a requirement enacted by the
STURAA. According to H.R. Conf. Rep. 100-27, this provision was
intended to permit the Secretary to deny applications for regular-route
authority filed by public entities if they propose specific operations
that will not be in the public interest because of the potential
adverse financial impact on existing private operations.
Consequently, applications filed by public entities seeking to
provide regular-route transportation are subject to more registration
criteria than those applicable to private entities. Removing the route-
designation requirement for applications for regular route authority
filed by public entities would prevent persons from protesting the
specific transportation to be provided. Accordingly, the Agency is
retaining the existing route-designation requirements for public
recipients of governmental assistance filing applications subject to
section 13902(b)(2)(B).
IV. The Proposed Rule
FMCSA is proposing to register passenger carriers as regular-route
carriers without designating specific regular routes or fixed end-
points. Thus, registered regular-route passenger carriers would no
longer be required to submit a new application to add new or change
existing routes. By eliminating the need to file and process multiple
applications containing detailed routes, this change would decrease the
paperwork burden on regular-route carriers seeking to expand or change
their routes. It would also reduce the Agency's own administrative and
paperwork burden.
FMCSA would modify existing certificates of regular-route authority
upon issuance of a final rule. Carriers holding existing certificates
would not be required to file new OP-1(P) applications in order to seek
the broader regular-route authority proposed by the Agency. The broader
authority would automatically supersede any route-specific authority
issued by FMCSA or its predecessor agencies. FMCSA would issue and mail
to all active motor carriers of passengers registered as having
regular-route authority new certificates showing the broader authority.
Such certificates would become effective on the effective date of a
final rule in this proceeding.
In order to implement this proposal, FMCSA proposes to amend
various sections of Title 49 of the Code of Federal Regulations (CFR)
to make them consistent with the Agency's proposed registration
procedures. First, 49 CFR 356.3 prescribes the extent to which
passenger carriers may serve points not located on their ``authorized
routes.'' Except for motor carriers authorized to operate in designated
parts of the New York City metropolitan area, passenger carriers are
allowed to serve municipalities, unincorporated areas, military posts,
airports, schools, and ``similar establishments'' located within 1
airline mile of the authorized route. The Agency proposes to eliminate
this section, as authorization for specific regular routes would no
longer be required.
Section 365.101 identifies the types of operating authority
applications filed with the Agency. Under Sec. 365.101(e), these
applications include ``[a]pplications for certificates under 49 U.S.C.
13902(b)(3) to operate as a motor common carrier of passengers in
intrastate commerce on a route over which applicant holds interstate
authority as of November 19, 1982.'' Similarly, current Sec.
365.101(f) includes: ``[a]pplications for certificates under 49 U.S.C.
13902(b)(3) to operate as a motor common carrier of passengers in
intrastate commerce on a route over which applicant has been granted or
will be granted interstate authority after November 19, 1982.'' The
regulations implicitly tie authority to operate in intrastate commerce
to authority to operate over specific interstate routes granted by
FMCSA. The Agency proposes to consolidate these paragraphs to reflect
that the Agency would no longer be granting authority to passenger
carriers to operate over specific routes.
Subpart C to 49 CFR part 374 contains regulations governing the
adequacy of intercity regular-route passenger service. Three sections
contain language referencing the Agency's authority over ``points'' or
``routes.'' Current Sec. 374.303(f) defines ``service'' as passenger
transportation by bus between ``authorized points'' or over
``authorized routes.'' Current Sec. 374.311(a) requires carriers to
establish schedules that can be reasonably met to adequately serve
``all authorized points.'' Current Sec. 374.311(b) requires carriers
to report all schedule changes on routes to FMCSA and to post notices
for the convenience of their passengers. These regulations indicate
that passenger carriers must receive authority from FMCSA to operate
over specific routes. We propose to amend Sec. Sec. 374.303(f) and
374.311(a) by removing the specific language indicating that the Agency
grants authority to operate over specific routes. We propose to amend
Sec. 374.311(b) by removing the requirement that carriers must file
with FMCSA notices of schedule and route changes.
FMCSA would continue to require regular-route motor passenger
carriers to post notices of schedule changes in each affected bus and
carrier facility for the convenience of their passengers.
V. Other Approaches Considered
FMCSA considered alternatives to eliminating the existing route
designation requirement, including: (1) Registering all passenger
carriers in the same manner, not distinguishing between regular-route,
charter, and special operations passenger carriers; and (2) registering
passenger carriers as regular-route carriers between fixed end-points
without requiring designation of specific regular routes.
If passenger carriers were registered in the same manner, they
would only be required to file a single application with a single
filing fee to provide any type of passenger service. If passenger
carriers were only required to designate fixed end-points, they would
not be required to file a new application to add or change routes
between end-points. This would also decrease the burden on Agency staff
in transcribing routes and processing applications.
Registering all passenger carriers in the same manner would require
statutory changes to sections 13902 and 14501 to maintain preemption of
State regulation of intrastate regular-route service, which is
expressly based on interstate regular-route operations. It would also
require revisions to, or the elimination of, regulations linked to the
regular-route operational designation, particularly in 49 CFR part 374,
subpart C, regarding adequacy of service.
Although requiring carriers to file new applications only when
adding end-points would be less burdensome than the current practice,
carriers would still be required to file multiple applications under
this option in order to expand existing routes. Thus, it
[[Page 45933]]
would be more burdensome than the Agency's proposal.
The Agency invites comment on this proposal, as well as other
possible alternatives to the current route-designation requirement.
VI. Regulatory Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review); DOT Regulatory
Policies and Procedures
FMCSA determined that this action is not significant under
Executive Order 12866. This proposal does not have an annual effect on
the economy of $100 million or more and does not adversely affect in a
material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities. The proposal does not
create a serious inconsistency or otherwise interfere with an action
taken or planned by another agency, does not materially alter the
budgetary impact of entitlements, grants, user fees, or loan programs
or the rights and obligations of recipients, and does not raise novel
legal or policy issues arising out of legal mandates or the
Administration's priorities. FMCSA prepared a regulatory impact
assessment for this NPRM as required by Executive Order 12866, but the
NPRM and the regulatory impact assessment have not been reviewed by the
Office of Management and Budget (OMB) because it was determined to be
not significant under the Executive Order.
The Agency's regulatory impact assessment in the docket, identified
in the heading of this NPRM, notes that the intercity passenger
industry may be experiencing structural changes in terms of the number
of new firms and market share of carriers. Therefore, the Agency
evaluated the route deregulation options under three industry growth/
change scenarios. FMCSA based each scenario on the number of regular-
route authority applications filed over the past 3 to 5 years.
Based on these scenarios, FMCSA estimates annual net benefits to
the industry of $36,000 to $44,000 from avoided costs related to the
elimination of the route designation application requirement. Evaluated
over a 10-year period, the estimated net present value of the industry
cost savings is in a range from $222,000 to $341,000 based on discount
rates of 3 to 7 percent depending on whether one uses a 3-year average,
5-year average, or 5-year median.
Regulatory Flexibility Act, as Amended by the Small Business Regulatory
Enforcement Fairness Act of 1996
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), as amended
by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub.
L. 104-121, 110 Stat. 857), requires Federal agencies, as a part of
each rulemaking, to consider regulatory alternatives that minimize the
impact on small entities while achieving the objectives of the
rulemaking. FMCSA has evaluated the effects of this proposed rule on
small entities as required by the RFA.
All new entrant regular-route carriers are affected by the proposed
rulemaking action because all such carriers must file an OP-1(P)
application to obtain regular-route authority. Existing regular-route
carriers are affected only if they seek to expand their routes. New
entrants and existing carriers submitted an average of 92 regular-route
authority applications each year between 2003 and 2005. Currently,
there are 272 active regular route authority carriers in total. The
Small Business Administration (SBA) Small Business Size Standard for
Interurban and Rural Bus Transportation is no more than $6.5 million in
gross annual revenue. Based on U.S. industry statistics for 2002
provided by the SBA Office of Advocacy, 279 out of 323 firms in the
interurban and rural bus transportation industry (roughly 86 percent)
reported annual receipts of less than $5 million. Additionally,
carriers with annual gross revenues between $5 million and $6.5 million
would also be classified as small businesses, though FMCSA is unable to
quantify the number of carriers within this range. Absent more current
detailed data, the Initial Regulatory Flexibility Analysis assumes that
approximately 86 percent of regular route authority carriers are small
entities.
The proposed rulemaking is a deregulatory action implementing a
policy change intended to provide relief to industry. There are no
additional costs specific to these entities as a result of this
rulemaking, and the underlying policy change provides applicants with a
cost saving of approximately $300 for each application.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531 et seq.)
requires each agency to assess the effects of its regulatory actions on
State, local, and tribal governments and the private sector. Any agency
promulgating a final rule likely to result in a Federal mandate
requiring expenditures by State, local, or tribal governments, in the
aggregate, or by the private sector, of $136.1 million or more in any 1
year must prepare a written statement incorporating various
assessments, estimates, and descriptions that are delineated in the
Act. FMCSA determined that this proposal would not have an impact of
$136.1 million or more in any 1 year.
Environmental Impacts
The Agency analyzed this proposed rule for the purpose of the
National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et
seq.), the Council on Environmental Quality regulations implementing
NEPA (40 CFR 1500-1508), and FMCSA's NEPA Implementation Order 5610.1
published March 1, 2004 (69 FR 9680). This action is categorically
excluded under Appendix 2, paragraph 6.d of the Order (regulations
governing applications for operating authority) from further
environmental documentation. The Agency believes that the action
includes no extraordinary circumstances that would have any effect on
the quality of the environment. Thus, the action does not require an
environmental assessment or an environmental impact statement.
FMCSA also analyzed this proposed rule under the Clean Air Act, as
amended (CAA) section 176(c), (42 U.S.C. 7401 et seq.) and implementing
regulations promulgated by the Environmental Protection Agency.
Approval of this action is exempt from the CAA's general conformity
requirement since it involves rulemaking and policy development and
issuance. (See 40 CFR 93.153(c)(2).) It would not result in any
emissions increase nor would it have any potential to result in
emissions that are above the general conformity rule's de minimis
emission threshold levels. Moreover, it is reasonably foreseeable that
the rule would not increase total CMV mileage, how CMVs operate, or the
CMV fleet-mix of motor carriers. This action merely allows passenger
carriers to make changes to their regular routes without FMCSA
approval. Such alterations are routinely approved under current Agency
procedures.
Environmental Justice
The FMCSA evaluated the environmental effects of this NPRM in
accordance with Executive Order 12898 and determined that there are no
environmental justice issues associated with its provisions nor any
collective environmental impact resulting from its promulgation.
Environmental justice issues would be raised if there were
``disproportionate'' and ``high and
[[Page 45934]]
adverse impact'' on minority or low-income populations. None of the
alternatives analyzed in the Agency's categorical exclusion
determination, discussed under National Environmental Policy Act, would
result in high and adverse environmental impacts.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-
3520), a Federal agency must obtain approval from OMB for each
collection of information it conducts, sponsors, or requires. This
rulemaking would affect a currently-approved information collection
request (ICR) covered by OMB Control Number 2126-0016, entitled
``Licensing Applications for Motor Carrier Operating Authority.'' This
ICR has an annual burden of 55,738 burden hours, and will expire on
August 31, 2008.
FMCSA is authorized to register for-hire motor passenger carriers
under the provisions of 49 U.S.C. 13902. The form used to apply for
operating authority with FMCSA is Form OP-1(P) for motor passenger
carriers. This form requests information on the applicant's identity,
location, familiarity with safety requirements, and type of proposed
operations.
The Agency proposes to discontinue its current requirement that
motor carriers seeking authority to transport passengers over regular
routes submit to FMCSA a detailed description and map of the proposed
route(s) for approval. The proposal would reduce the currently approved
ICR annual burden by 180 hours [2 hours to provide description and map
of regular routes in Form OP-1(P) x 90 regular route applications per
year = 180 hours]. The estimated annual burden for this ICR would
decrease to 55,558 hours [55,738 currently approved annual burden hours
- 180 hours less time to complete Form OP-1(P) regular route
applications = 55,558].
Public Comments Invited: You are asked to comment on any aspect of
this information collection, including: (1) Whether the proposed
collection is necessary for the Agency to perform its mission, (2) the
accuracy of the estimated burden, (3) ways for FMCSA to enhance the
quality, usefulness, and clarity of the collected information, and (4)
ways that the burden could be minimized without reducing the quality of
the collected information. The Agency will summarize or include your
comments in the request for OMB's clearance of this information
collection.
Executive Order 12988 (Civil Justice Reform)
This rulemaking meets applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988, entitled ``Civil Justice Reform,'' to
minimize litigation, eliminate ambiguity, and reduce burden.
Executive Order 12630 (Taking of Private Property)
FMCSA has analyzed this proposed rule under Executive Order 12630,
entitled ``Governmental Actions and Interference with Constitutionally
Protected Property Rights.'' We do not anticipate that this proposed
action would effect a taking of private property or otherwise have
taking implications under Executive Order 12630.
Executive Order 13132 (Federalism)
This proposed action has been analyzed in accordance with the
principles and criteria contained in Executive Order 13132, and FMCSA
has preliminarily determined that this rulemaking would not warrant the
preparation of a Federalism assessment. We have determined that this
proposed action would not affect the States' ability to discharge
traditional State government functions.
Executive Order 13211 (Energy Effects)
FMCSA has analyzed this proposed action under Executive Order
13211, entitled ``Actions Concerning Regulations That Significantly
Affect Energy Supply, Distribution, or Use.'' The Agency has determined
that it is not a significant energy action within the meaning of
section 4(b) of the Executive Order and is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy. Therefore, a Statement of Energy Effects is not required.
Executive Order 12372 (Intergovernmental Review)
The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this NPRM.
Executive Order 13175 (Tribal Consultation)
FMCSA has analyzed this action under Executive Order 13175, dated
November 6, 2000, and believes that the proposed action would not have
substantial direct effects on one or more Indian tribes; would not
impose substantial compliance costs on Indian tribal governments; and
would not preempt tribal law. Therefore, a tribal summary impact
statement is not required.
List of Subjects
49 CFR Part 356
Administrative practice and procedure, Routing, Motor carriers.
49 CFR Part 365
Administrative practice and procedure, Brokers, Buses, Freight
forwarders, Motor carriers, Moving of household goods, Reporting and
recordkeeping requirements.
49 CFR Part 374
Aged, Blind, Buses, Civil rights, Freight, Individuals with
disabilities, Motor carriers, Smoking.
For the reasons discussed above, FMCSA proposes to amend title 49,
Code of Federal Regulations, chapter III, subchapter B, as set forth
below:
PART 356--MOTOR CARRIER ROUTING REGULATIONS
1. The authority citation for part 356 continues to read as
follows:
Authority: 5 U.S.C. 553; 49 U.S.C. 13301 and 13902; and 49 CFR
1.73.
Sec. 356.3 [Removed and Reserved].
2. Remove and reserve Sec. 356.3.
PART 365--RULES GOVERNING APPLICATIONS FOR OPERATING AUTHORITY
3. The authority citation for part 365 continues to read as
follows:
Authority: 5 U.S.C. 553 and 559; 16 U.S.C. 1456; 49 U.S.C.
13101, 13301, 13901-13906, 14708, 31138, and 31144; 49 CFR 1.73.
4. Amend Sec. 365.101 by removing paragraph (f), redesignating
paragraphs (g) and (h) as paragraphs (f) and (g), and revising
paragraph (e) to read as follows:
Sec. 365.101 Applications governed by these rules.
* * * * *
(e) Applications for certificates under 49 U.S.C. 13902(b)(3) to
operate as a motor carrier of passengers in intrastate commerce over
regular routes if such intrastate transportation is to be provided on a
route over which the carrier provides interstate transportation of
passengers.
* * * * *
PART 374--PASSENGER CARRIER REGULATIONS
5. The authority citation for part 374 continues to read as
follows:
Authority: 49 U.S.C. 13301 and 14101; and 49 CFR 1.73.
[[Page 45935]]
6. Amend Sec. 374.303 by revising paragraph (f) to read as
follows:
Sec. 374.303 Definitions.
* * * * *
(f) Service means passenger transportation by bus over regular
routes.
* * * * *
7. Amend Sec. 374.311 by revising paragraphs (a) and (b) to read
as follows:
Sec. 374.311 Service responsibility.
(a) Schedules. Carriers shall establish schedules that can be
reasonably met, including connections at junction points, to serve
adequately all points.
(b) Continuity of service. No carrier shall change an existing
regular-route schedule without first displaying conspicuously a notice
in each facility and on each bus affected. Such notice shall be
displayed for a reasonable time before it becomes effective and shall
contain the carrier's name, a description of the proposed schedule
change, the effective date thereof, the reasons for the change, the
availability of alternate service, and the name and address of the
carrier representative passengers may contact.
* * * * *
Issued on: July 31, 2008.
John H. Hill,
Administrator.
[FR Doc. E8-18173 Filed 8-6-08; 8:45 am]
BILLING CODE 4910-EX-P
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