[Federal Register Volume 63, Number 150 (Wednesday, August 5, 1998)] [Proposed Rules] [Pages 41766-41769] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 98-20920] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Highway Administration 49 CFR Parts 390, 391, 392, 393, 395, and 396 [FHWA Docket No. FHWA-97-2858] RIN 2125-AE 22 Federal Motor Carrier Safety Regulations; Definition of Commercial Motor Vehicle AGENCY: Federal Highway Administration (FHWA); DOT. ACTION: Advance notice of proposed rulemaking (ANPRM); request for comments. ----------------------------------------------------------------------- SUMMARY: The Federal Highway Administration is considering amending the Federal Motor Carrier Safety Regulations (FMCSRs) in response to the Transportation Equity Act for the 21st Century (hereinafter referred as ``TEA-21''). Section 4008(a) of TEA-21 amends the definition of the term ``commercial motor vehicle'' (CMV) in 49 U.S.C. 31132(1) to cover vehicles ``designed or used to transport more than 8 passengers (including the driver) for compensation.'' The change could make the FMCSRs applicable to a considerable number of entities, including operators of small commuter vans or airport shuttle buses, not now subject to them. This ANPRM requests comment and information to help the FHWA identify such operators and [[Page 41767]] determine whether the regulations should be applied to all of them or whether exemptions should be granted. DATES: Comments must be received on or before October 5, 1998. ADDRESSES: Submit written, signed comments to FHWA Docket No. FHWA-97- 2858, the Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001. All comments received will be available for examination at the above address from 10 a.m. to 5 p.m., e.t., Monday through Friday, except Federal holidays. Those desiring notification of receipt of comments must include a self-addressed, stamped envelope or postcard. FOR FURTHER INFORMATION CONTACT: Mr. David M. Lehrman, Office of Motor Carrier Research and Standards, (202) 366-0994, Mr. Charles E. Medalen, Office of the Chief Counsel, (202) 366-1354, Federal Highway Administration, 400 Seventh Street, SW., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m. e.t., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: Electronic Access Internet users can access all comments received by the U.S. DOT Dockets, Room PL-401, by using the universal resource locator (URL): http://dms.dot.gov. It is available 24 hours each day, 365 days each year. Please follow the instructions online for more information and help. An electronic copy of this document may be downloaded using a modem and suitable communications software from the Federal Register Electronic Bulletin Board Service at (202) 512-1661. Internet users may reach the Federal Register's home page at: http://www.nara.gov/nara/ fedreg and the Government Printing Office's database at: http:// www.access.gpo.gov/su__docs. Background Section 204 of the Motor Carrier Safety Act of 1984 (MCSA) (Pub. L. 98-554, Title II, 98 Stat. 2832, at 2833) defined a ``commercial motor vehicle'' as one having a gross vehicle weight rating (GVWR) of 10,001 pounds or more; designed to transport more than 15 passengers, including the driver; or transporting hazardous materials in quantities requiring the vehicle to be placarded. This definition, codified at 49 U.S.C. 31132(1), was the basis for the regulatory definition of a CMV in 49 CFR 390.5, which determines the jurisdictional limits and applicability of most of the FMCSRs. The Senate Committee on Commerce, Science and Transportation, in a report which accompanied the MCSA stated: ``The 10,000-pound limit, which is in the current BMCS (Bureau of Motor Carrier Safety, now the FHWA's Office of Motor Carriers) regulations, is proposed to focus enforcement efforts and because small vans and pickup trucks are more analogous to automobiles than to medium and heavy commercial vehicles, and can best be regulated under State automobile licensing, inspection, and traffic surveillance procedures.'' S. Rep. No. 98-424, at 6-7 (1984), reprinted in 1984 U.S.C.C.A.N. 4785, 4790-91. Although the MCSA demonstrated congressional intent to focus the applicability of the FMCSRs on larger vehicles, Congress did not repeal Sec. 204 of the Motor Carrier Act of 1935 (Chapter 498, 49 Stat. 543, 546). This statute, now codified at 49 U.S.C. 31502, authorizes the FHWA to regulate the safety of all for-hire motor carriers of passengers and property, and private carriers of property without respect to the weight or passenger capacity of the vehicles they operate. When the Congress enacted the Commercial Motor Vehicle Safety Act of 1986 (CMVSA) (Pub. L. 99-570, Title XII, 100 Stat. 3207-170) to require implementation of a single, classified commercial driver's license program, it also limited the motor vehicles subject to the program to those designed to transport more than 15 passengers, including the driver (now codified at 49 U.S.C. 31301(4)(B) with slightly different wording). This, too, revealed the congressional policy of applying available Federal motor carrier safety resources to larger vehicles. The ICC Termination Act of 1995 (ICCTA) (Pub. L. 104-88, 109 Stat. 803, 919) changed the MCSA definition of a commercial motor vehicle. As amended, section 31132(1) defined a commercial motor vehicle, in part, as a vehicle that is ``designed or used to transport passengers for compensation, but exclud(es) vehicles providing taxicab service and having a capacity of not more than 6 passengers and not operated on a regular route or between specified places; (or) is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation.'' The ICCTA authorized, but did not require, the FHWA to change the FMCSRs accordingly; the agency did not incorporate the amended language into the CMV definition in Sec. 390.5. Section 4008(a)(2) of TEA-21 (Pub. L. 105-178, 112 Stat. 107, June 9, 1998) again amended the passenger-vehicle component of the CMV definition in 49 U.S.C. 31132(1). Commercial motor vehicle is now defined to mean a self-propelled or towed vehicle used on the highways in interstate commerce to transport passengers or property, if the vehicle-- (A) Has a gross vehicle weight rating or gross vehicle weight of at least 10,001 pounds, whichever is greater; (B) Is designed or used to transport more than 8 passengers (including the driver) for compensation; (C) Is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or (D) Is used in transporting material found by the Secretary of Transportation to be hazardous under section 5103 of this title and transported in a quantity requiring placarding under regulations prescribed by the Secretary under section 5103. Under Sec. 4008(b), operators of the CMVs defined by section 31132(1)(B) will automatically become subject to the FMCSRs one year after the date of enactment of TEA-21, if they are not already covered, ``except to the extent that the Secretary (of Transportation) determines, through a rulemaking proceeding, that it is appropriate to exempt such operators of commercial motor vehicles from the application of those regulations.'' The FHWA views section 4008 of TEA-21 as a mandate to impose the FMCSRs on previously unregulated smaller capacity vehicles. Although the House Conference Report on the ICCTA definitional change directed the agency not to impose on the States (as grant conditions under the Motor Carrier Safety Assistance Program (MCSAP)) the burden of regulating a new population of carriers covered by the definition, no such restriction is included in TEA-21 or its legislative history. The mandate of TEA-21 is thus stricter than that of the ICCTA. Still, the FHWA is authorized to undertake rulemaking to exempt some of these passenger vehicles from the FMCSRs. One of the purposes of this ANPRM is to ask for information about the potential reach of the TEA-21 definition and comments on the question whether any class of vehicles should be exempted. We would also like to determine whether the term ``for compensation'' may be interpreted to distinguish among the types of van services currently in existence (see question 6 below). Request for Comments The purpose of this ANPRM is to gather information from a broad [[Page 41768]] spectrum of commenters. While some of the questions are intended for specific audiences, all interested parties are encouraged to answer any of the questions posed. In addition, commenters should include a discussion of any other issues that they believe are relevant to this rulemaking. 1. What types and numbers of passenger carriers that are not currently subject to Federal regulation would be covered by the FMCSRs when the new TEA-21 definition of a CMV becomes effective? For example, are there day care centers or senior citizen facilities/communities utilizing for-hire contractors in interstate commerce? How many car or van pools would be subject to the regulations? 2. What would be the safety benefits of applying the FMCSRs to all interstate operations of for-hire vehicles with a seated passenger capacity of more than 8 passengers (including the driver), as in the TEA-21 definition? Please provide data and information to support your position. 3. What would be the economic impact--positive or negative--of extending the applicability of the FMCSRs to businesses engaged in the interstate operation of vehicles designed or used to transport 9-15 passengers? Keep in mind that the FMCSRs include driver qualifications, medical qualifications, hours of service limits, and vehicle requirements (including inspection, repair and maintenance provisions). Would complying with the FMCSRs impact on current daily business operations and procedures? 4. With the exception of FHWA recordkeeping requirements (e.g., driver qualification files, medical reports, records of duty status, etc.), what provisions of the FMCSRs are not currently met by businesses operating small capacity passenger vehicles in interstate commerce? For example, do these businesses, as a matter of good operating practice, require their drivers periodically to undergo a physical examination? Are there limits to the number of hours that a driver may operate a vehicle? Is there a systematic inspection, repair and maintenance program in place for the vehicles? 5. What would be the incremental cost (if any) of complying with the non-recordkeeping provisions of the FMCSRs for interstate operators of small capacity passenger vehicles? 6. Should the FHWA require States receiving MCSAP funds to make the State equivalents of the FMCSRs applicable to for-hire carriers operating passenger vehicles with a capacity of 9-15 in intrastate commerce? Some States may wish to enforce the revised TEA-21 definition on businesses operating those vehicles either in interstate or intrastate commerce, or both. The FHWA requests each State to indicate whether it already regulates this class of vehicles or whether it would adopt the new TEA-21 definition voluntarily. We recognize that many State MCSAP agencies would need additional legislative authority to adopt the new definition; we are simply asking for their best guess as to the reaction of their legislatures to such a proposition. An issue which requires clarification is the meaning of ``for compensation.'' If a hotel offers an airport shuttle service to its paying guests, yet passes the cost of such service on to the guest without itemizing it on the bill, is that transportation ``for compensation?'' If a van-pool requires each passenger to contribute his/her proportionate share of expenses, is that transportation ``for compensation?'' States, other governmental entities, and any interested parties are invited to offer their comments regarding an appropriate application of ``for compensation.'' 7. How would States likely to adopt the new TEA-21 definition enforce it? For example, would the State restrict enforcement to roadside inspections of the vehicles and drivers? Would more personnel be required? 8. For State agencies and industry associations that have statistics on the use of vehicles designed or used to transport between 9 and 15 passengers in interstate commerce, approximately how many additional businesses would be subject to the FMCSRs or State equivalent under the amended statutory definition of a CMV? How many drivers are employed by these businesses and how many vehicles are operated by them? 9. In light of the fact that TEA-21 provides the FHWA with explicit direction to apply the FMCSRs to smaller capacity passenger vehicles designed ``or used'' to carry passengers, what effect do you foresee if the FHWA's current regulatory definition at Sec. 390.5 were so changed? (Use the above questions as a reference when evaluating the impact.) All commenters are asked to provide information, data, and recommendations, based upon their own experience with transportation issues, to assist the FHWA in evaluating the potential safety benefits and the costs of implementing the CMV definition enacted by TEA-21. The FHWA especially encourages the submission of accident data on small passenger vehicles. Since Department of Transportation statistics do not distinguish between private and commercial light weight vehicles, such data would be useful if available. Rulemaking Analyses All comments received before the close of business on the comment closing due date indicated above will be considered and will be available for examination in the docket at the above address. Comments received after the comment closing date will be filed in the docket and will be considered to the extent practicable. In addition to late comments, the FHWA will also continue to file relevant information in the docket as it becomes available after the comment period closing date, and interested persons should continue to examine the docket for new material. Executive Order 12866 (Federal Regulation) and DOT Regulatory Policies and Procedures In this rulemaking, the FHWA is considering changes to the definition of a commercial motor vehicle which would extend the FMCSRs to vehicles designed or used to carry more than 8 passengers (including the driver), for compensation in interstate compensation as mandated by the TEA-21. The regulatory action under consideration is significant under Executive Order 12866 and significant under the regulatory policies and procedures of the Department of Transportation because of the substantial public interest anticipated if the agency expands the applicability of the FMCSRs to an expanded population of regulated commercial motor vehicles as in the previously cited instances. The potential economic impact of expanding the applicability of the FMCSRs is not known at this time. Therefore, a full regulatory evaluation has not yet been prepared. The agency intends to use the information collected from comments to this docket to determine whether a notice of proposed rulemaking should be developed, and, if necessary, a full regulatory evaluation. Regulatory Flexibility Act Due to the preliminary nature of this document and the lack of necessary information on costs, the FHWA is unable at this time to evaluate the effects of the potential regulatory changes on small entities. The FHWA solicits comments, information, and data on these potential impacts. Unfunded Mandates Reform Act The FHWA will analyze any proposed rule to determine whether it would result in the expenditure by state, local, and tribal governments, in the aggregate, [[Page 41769]] or by the private sector, of $100 million or more in any one year, as required by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532). Executive Order 12612 (Federalism Assessment) This action will be analyzed in accordance with the principles and criteria contained in Executive Order 12612 to determine if this action has sufficient federalism implications to warrant the preparation of a federalism assessment. Nothing in this document directly preempts any State law or regulation. Executive Order 12372 (Intergovernmental Review) Catalog of Federal Domestic Assistance Program Number 20.217, Motor Carrier Safety. The regulations implementing Executive Order 12372 regarding intergovernmental consultation of Federal programs and activities do not apply to this program. Paperwork Reduction Act This action, if taken beyond the ANPRM stage, would in all likelihood impact existing collection of information requirements for the purposes of the Paperwork Reduction Act of 1995 (49 U.S.C. 3501- 3520). Office of Management and Budget (OMB) reviews and approvals would be required if regulatory changes were proposed and promulgated National Environmental Policy Act The agency will analyze this action for purposes of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) to determine whether would have any effect on the quality of the environment. Regulation Identification Number A regulatory identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda. List of Subjects 49 CFR Part 390 Highway safety, Highways and roads, Motor carriers, Motor vehicle identification and marking, Reporting and record keeping requirements. 49 CFR Part 391 Highways and roads, Motor carriers--driver qualifications, Motor vehicle safety, Reporting and record keeping requirements. 49 CFR Part 392 Highway safety, Highways and roads, Motor carriers--driving practices. 49 CFR Part 393 Highways and roads, Motor carriers, Motor vehicle equipment, Motor vehicle safety. 49 CFR Part 395 Global positioning systems, Highways and roads, Highway safety, Motor carriers--driver hours of service. 49 CFR Part 396 Highways and roads, Motor carriers, Motor vehicle maintenance, Motor vehicle safety. (49 U.S.C. 31132, 31136, and 31502; and 49 CFR 1.48) Issued: July 27, 1998. Kenneth R. Wykle, Federal Highway Administrator. [FR Doc. 98-20920 Filed 8-4-98; 8:45 am] BILLING CODE 4910-22-P