[Federal Register Volume 66, Number 204 (Monday, October 22, 2001)]
[Proposed Rules]
[Pages 53373-53376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26562]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 390, 391, 392, 393, 395, and 396
[FMCSA Docket No. FMCSA-2000-7174]
RIN 2126-AA53
Interstate School Bus Safety
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Advance notice of proposed rulemaking (ANPRM); request for
comments.
-----------------------------------------------------------------------
SUMMARY: The FMCSA requests comments on whether to extend the
applicability of the Federal Motor Carrier Safety Regulations (FMCSRs)
to all interstate school transportation operations (thus excluding
home-to-school or school-to-home transportation) by local
governmentally-operated educational agencies. This action responds to
section 4024 of the Transportation Equity Act for the 21st Century
(TEA-21) which directs the FMCSA to determine whether the FMSCRs should
apply to these operations. The FMCSA requests comments, data, and
information to assist the agency in making the determination.
DATES: Comments must be received on or before January 22, 2002.
ADDRESSES: You can mail, fax, hand deliver, or electronically submit
written comments to the Docket Management Facility, U.S. Department of
Transportation, Document Management Facility, Room PL-401, 400 Seventh
Street, SW., Washington, DC 20590-0001. The fax number is (202) 493-
2251. You can comment to the Web site (http://dmses.dot.gov/submit).
You must include the docket number that appears in the heading of this
document in your comment. You can examine and copy all comments at the
above address from 9 a.m. to 5 p.m., et., Monday through Friday, except
Federal holidays. You may also review the docket on the Internet at
http://dms.dot.gov. If you want us to notify you that we received your
comments, please include a self-addressed, stamped envelope or
postcard, or after submitting comments electronically, print the
acknowledgment page.
FOR FURTHER INFORMATION CONTACT: Mr. Philip J. Hanley, Jr., Office of
Bus and Truck Standards and Operations, (202) 366-6811, Federal Motor
Carrier Safety Administration, Department of Transportation, 400
Seventh Street, SW., Washington, DC 20590-0001. Office hours are from
7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal
holidays.
SUPPLEMENTARY INFORMATION:
Background
The ANPRM responds to section 4024 of the TEA-21 (Pub. L. 105-128,
112 Stat. 107, at 416), which directs FMCSA to initiate a rulemaking
proceeding on whether or not the FMSCRs should apply to all interstate
school transportation operations by local
[[Page 53374]]
educational agencies. The definition of the term ``local educational
agency'' at 20 U.S.C. 8801(18) is applicable to Sec. 4024:
(A) The term ``local educational agency'' means a public board
of education or other public authority legally constituted within a
State for either administrative control or direction of, or to
perform a service function for, public elementary or secondary
schools in a city, county, township, school district, or other
political subdivision of a State, or for such combination of school
districts or counties as are recognized in a State as an
administrative agency for its public elementary or secondary
schools.
(B) The term includes any other public institution or agency
having administrative control and direction of a public elementary
or secondary school.
(C) The term includes an elementary or secondary school funded
by the Bureau of Indian Affairs but only to the extent that such
inclusion makes such school eligible for programs for which specific
eligibility is not provided to such school in another provision of
law and such school does not have a student population that is
smaller than the student population of the local educational agency
receiving assistance under this chapter with the smallest student
population, except that such school shall not be subject to the
jurisdiction of any State educational agency other than the Bureau
of Indian Affairs.
The FMCSA must determine whether Federal regulatory involvement in
interstate school bus transportation operations by local educational
agencies is necessary to enhance the safety of those passengers and
that of the general public. The FMCSA is also considering whether the
interstate transportation (other than home to school and school to
home) by all governmental educational entities such as public
universities should be subject to the FMCSRs.
At present, there are two exceptions in the FMCSRs relating to
school bus operations. The first (49 CFR 390.3(f)(1)) exempts all
school bus operations, whether by a for-hire carrier of passengers
operating under a contract with the educational agency or local
educational agencies, that transport only school children and/or school
personnel from home to school and from school to home. This exception
originated from section 206(f) of the Motor Carrier Safety Act of 1984
(MCSA) (Pub. L. 98-554, 98 Stat. 2832) formerly codified at 49 U.S.C.
31136(e)(1) which specifically directed the Secretary of Transportation
(Secretary) to waive application of the regulations issued under
section 206 with respect to school buses, unless the Secretary
determined that making such regulations applicable to school buses was
necessary for public safety taking into account all Federal and State
laws applicable to school buses. This statutory language was
subsequently repealed by section 4007(c) of the Transportation Equity
Act for the 21st Century (TEA-21) in 1998. However, section 4007(d)
provided that amendments made by 4007 shall not apply to or otherwise
affect a waiver, exemption, or pilot program in effect on the date of
enactment of TEA-21. In 1988, the agency indicated that the
transportation of school children and school personnel from home to
school and back again involved problems which are common to the States,
and which, in accordance with the then-current Executive Order on
Federalism (Executive Order 12612), could best be left to the
individual States (see 53 FR 18043, May 19, 1988).
The second exception is contained in 49 CFR 390.3(f)(2), which
makes transportation by a government entity exempt from the FMCSRs.
This exemption also originated from section 206 of the MCSA, which
specifically authorized the Secretary to waive application of the
regulations to any person or class of persons if the Secretary
determines that such waiver is not contrary to the public interest and
is consistent with the safe operation of CMVs. Although safety on the
public highways is an area that must not be compromised, the FMCSA has
historically exempted some segments of transportation. Transportation
by government entities has been one such segment.
Currently, some pupil transportation for school-related purposes
(e.g., field trips) may be subject to the FMCSRs. One example is where
a private school or contractor transports passengers in a commercial
motor vehicle (CMV) across a state line outside the scope of home to
school and school to home. These operations are subject to the
applicable provisions of 49 CFR parts 350-399 of the FMCSRs.
At the present time, most school bus drivers, including those
employed by private schools, contractors, and educational agencies, are
subject to the commercial driver's license requirements in 49 CFR part
383 and the drug and alcohol requirements in 49 CFR part 382 because
most medium to large school buses meet the regulatory definition of a
CMV (i.e. designed to transport 16 or more passengers, including the
driver). School bus drivers are required to hold a commercial driver's
license, and their employers are required to have a controlled
substances and alcohol testing program for the drivers.
Under this ANPRM, the FMCSA is considering holding the educational
agencies to the same standards that the private schools and contractors
are required to meet when operating in interstate commerce in other
than home to school and school to home-type operations. Examples of
these standards include qualifications of drivers, hours of service,
and maintenance of vehicles.
The primary goal of the FMCSRs is to promote the safe operation of
CMVs. The goal of the FMCSA's Passenger Carrier Safety Program is to
reduce bus crashes and thereby decrease fatalities, bodily injuries and
property losses. School bus operations are distinguished from other
types of passenger transportation operations because of their highly
specialized type of service. For the most part, the operation of a
school bus entails the transportation of school children and/or school
personnel from home to school and school to home. This type of
transportation generally involves the regularly scheduled operation of
school buses into and through residential, rural, and business areas,
which collectively encompass a relatively small geographic area within
the confines of a single State. The routes are, in most circumstances,
predetermined and of a ``stop and go'' nature during specific morning
and afternoon hours. The other users of the highways have generally
come to expect and accept the ``stop and go'' operations of school
buses during those specific hours of operation.
When transporting children, school personnel and (sometimes)
parents on other kinds of trips, school buses often travel the same
highways `` many of them high-speed arteries `` that are used by large
CMVs. The speeds that are maintained are considerably greater than
those attained in ``stop and go'' pickup or drop-off operations. The
actual time spent driving is generally greater, as is the possibility
of fatigue.
The FMCSA is aware that some local jurisdictions and/or school
systems have imposed specific requirements on drivers who transport
school children. The FMCSA believes that most States have established
programs to review the qualifications of school bus operators and the
maintenance of school bus vehicles involved in home-to-school and
school-to-home movements. The FMCSA is interested in obtaining
information about the present extent of safety oversight of school bus
operations by local educational agencies. The FMCSA requests States,
counties, and localities to submit information about their safety
standards and oversight programs to the docket. The FMCSA is primarily
interested in the safety standards concerning driver qualification,
vehicular parts and
[[Page 53375]]
accessories, hours-of-service controls, and vehicular inspection,
repair, and maintenance. Public comment on the issues raised in this
ANPRM will assist the FMCSA in determining whether any further
regulatory action is required.
Discussion of Government Crash Data
The FMCSA has reviewed the current data from the National Highway
Traffic Safety Administration's Fatal Analysis Reporting System (FARS)
and General Estimates System (GES) for 1998 and 1999. The data is
located in the docket for this ANPRM. The FARS shows there were 111
school buses involved in a fatal crash in calendar year 1998. There
were 303 school bus occupants on these 111 school buses and 4 of these
occupants were killed . The FARS shows there were 138 school buses
involved in a fatal crash in calendar year 1999. There were 469 school
bus occupants on these 138 school buses and 8 of these occupants were
killed. As the name implies, the GES contains only estimates for the
number of injuries resulting from school bus crashes. The GES indicates
15,000 estimated injuries resulting from school bus crashes in 1999.
The FARS and the GES do not provide a means to separate crash
statistics for interstate school bus transportation or for school buses
operated by local educational agencies. The FMCSA strongly encourages
the submission of crash data and information involving interstate
school bus transportation by local educational agencies to the docket.
Request for Comments
The purpose of this ANPRM is to gather information, data, and
recommendations from a broad spectrum of commenters to assist the FMCSA
in evaluating the potential safety benefits and the potential costs of
making the FMCSRs applicable to interstate school bus transportation by
local educational agencies. The FMCSA requests views and supporting
information about whether only certain, but not all, parts of the
FMCSRs should apply to interstate school bus transportation by local
educational agencies. For example, a commenter might assert that the
hours-of-service limitations contained in 49 CFR part 395 should apply
to the interstate school bus drivers of local educational agencies, but
that the driving rules in 49 CFR part 392 should not because adequate
local traffic safety laws already exist. The FMCSA requests all
commenters to support their positions with data and factual
information.
Commenters may include in their comments to the docket discussions
of any other issues that they believe are relevant to this rulemaking.
In addition, the FMCSA encourages all interested parties to respond to
the specific questions posed below:
1. How many local educational agencies that operate school buses
would be impacted if the FMCSRs applied to their interstate school bus
transportation (but not home-to-school or school-to-home) operations,
e.g., interstate class trips? How many school buses and drivers working
for local educational agencies are involved in the interstate
transportation? (These questions assume that the public school students
are not bused across State lines in the course of home-to-school or
school-to-home transportation. It is possible, however, that school
districts in rural areas of adjacent States may have reciprocal
agreements to accept each other's students where the closest in-State
school is much farther away than a school just across the State line.
If so, we would like to know where this occurs and how many students,
drivers and buses are involved.)
2. What requirements of the FMCSRs are not addressed by State or
local school bus safety standards? For example, to what extent do local
educational agencies require their interstate school bus drivers to
undergo periodic physical examinations? Is there a systematic
inspection, repair and maintenance program in place for school buses?
3. Are there limits to the number of hours that a driver may
operate a school bus during school-related activities (e.g., field
trips, etc.)? Are there any limitations on on-duty time by local
educational agencies?
4. What would be the incremental cost (if any) for local
educational agencies of complying with the FMCSRs for interstate trips,
over and above the safety program and regulatory compliance costs that
are already expended? Keep in mind that the FMCSRs include driver
qualifications, medical qualifications, hours-of-service limits, and
vehicle requirements (including inspection, repair, and maintenance
provisions). Please describe the nature and extent of the impact upon
operations and procedures.
5. What are the potential safety benefits of applying all or
selected FMCSRs to interstate school bus transportation by educational
agencies? Please provide data and information to support your position.
6. Should the FMCSA require that States receiving Motor Carrier
Safety Assistance Program (MCSAP) funds adopt State laws and
regulations that are compatible with the FMCSRs for intrastate school
bus transportation by educational agencies?
7. If the States adopt safety standards that are equivalent to the
FMCSRs for interstate school bus transportation by local educational
agencies, how would they enforce them? Would more personnel be
required? Please provide cost estimates if available.
8. Should the FMCSRs be applied uniformly for all providers of
transportation whether they are local educational agencies, private
schools, or contractors?
9. Should the FMCSRs be made applicable to all educational
institutions beyond the secondary level that transport students to
after-school type activities?
10. Should the FMCSA apply the FMCSRs to all interstate
transportation of school children, even school-to-home and home-to-
school? (see Question 1)
Rulemaking Analyses and Notices
We will consider all comments received before the close of business
on the comment closing due date indicated above. We will file comments
received after the comment closing date in the docket and will consider
them to the extent possible.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
This ANPRM is not a significant regulatory action under section
3(f) of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that Order. It
has not been reviewed by the Office of Management and Budget under that
Order. It is not significant under the regulatory policies and
procedures of the Department of Transportation (DOT) (44 FR 11040,
February 26, 1979).
Regulatory Flexibility Act
Due to the preliminary nature of this document and the lack of
necessary information on costs, the FMCSA is unable at this time to
evaluate the effects of the potential regulatory changes on small
entities. Based on the information received in response to the ANPRM,
the FMCSA intends, in compliance with the Regulatory Flexibility Act (5
U.S.C. 601-612) to carefully consider the economic impact of these
potential changes on small entities. The FMCSA solicits comments,
information, and data on these potential impacts.
Unfunded Mandates Reform Act
The FMCSA will analyze any proposed rule to determine whether it
would result in the expenditure by
[[Page 53376]]
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more in any one year (2 U.S.C. 1531
et seq.).
Executive Order 13045 (Protection of Children)
This publication is not a covered regulatory action under Executive
Order 13045 because it would not affect in a material way the economy,
a sector of the economy, productivity, competition, jobs, the
environment, public health or safety of State, local, or tribal
governments or communities.
Executive Order 12630 (Taking of Private Property)
This publication will not affect the taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.
Executive Order 13132 (Federalism)
This action will be analyzed in accordance with the principles and
criteria contained in Executive Order 13132 dated August 4, 1999, to
determine if this action has federalism implications. Nothing in this
document directly preempts any State law or regulation.
Executive Order 12372 (Intergovernmental Review)
The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this program. Catalog of Federal Domestic Assistance
Program Number 20.217, Motor Carrier Safety.
Paperwork Reduction Act
This action, if taken beyond the ANPRM stage, could have an impact
on 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 FMCSA is a new administration within the Department of
Transportation (DOT). We are striving to meet all of the statutory and
executive branch requirements on rulemaking. The FMCSA is currently
developing an agency order that will comply with all statutory and
regulatory policies under the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.). We expect the draft FMCSA Order to appear in
the Federal Register for public comment in the near future. The
framework of the FMCSA Order will be consistent with and reflect the
procedures for considering environmental impacts under DOT Order
5610.1C. Due to the preliminary nature of this document and the lack of
necessary information, the FMCSA is unable to evaluate the effects of
the potential regulatory changes on the environment at this time.
Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
On November 6, 2000, the President issued Executive Order 13175 (65
FR 67249) entitled, ``Consultation and Coordination with Indian Tribal
Governments.'' Executive Order 13175 took effect on January 6, 2001,
and revoked Executive Order 13084 (Tribal Consultation) as of that
date. E.O. 13175 requires the DOT to develop an accountable process to
ensure ``meaningful and timely input by tribal officials in the
development of regulatory policies that have tribal implications.'' At
this time, we are only soliciting data to develop a rulemaking. Due to
the preliminary nature of this document and the lack of necessary
information, the FMCSA is unable to evaluate the effects of the
potential regulatory changes on Indian Tribal Governments.
Issued on: October 16, 2001.
Brian M. McLaughlin,
Associate Administrator, Policy and Program Development.
[FR Doc. 01-26562 Filed 10-19-01; 8:45 am]
BILLING CODE 4910-22-P