Safety Requirements for Operators of Small Passenger-Carrying Commercial Motor Vehicles Used in Interstate Commerce, 4996-5002 [2010-1955]
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Federal Register / Vol. 75, No. 20 / Monday, February 1, 2010 / Rules and Regulations
to reporting under this section for the
significant new uses described in
paragraph (a)(2) of this section.
(2) The significant new uses are:
(i) Industrial, commercial, and
consumer activities. Requirements as
specified in § 721.80(j).
(ii) [Reserved]
(b) Specific requirements. The
provisions of subpart A of this part
apply to this section except as modified
by this paragraph.
(1) Recordkeeping. Recordkeeping
requirements as specified in § 721.125
(a), (b), (c), and (i) are applicable to
manufacturers, importers, and
processors of this substance.
(2) Limitations or revocation of
certain notification requirements. The
provisions of § 721.185 apply to this
section.
(3) Determining whether a specific use
is subject to this section. The provisions
of § 721.1725(b)(1) apply to this section.
■ 17. Add § 721.10182 to subpart E to
read as follows:
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§ 721.10182
1-Propene, 2,3,3,3-tetrafluoro-.
(a) Chemical substance and
significant new uses subject to reporting.
(1) The chemical substance identified as
1-propene, 2,3,3,3-tetrafluoro- (PMN P–
07–601; CAS No. 754–12–1; also known
as HFO–1234yf) is subject to reporting
under this section for the significant
new uses described in paragraph (a)(2)
of this section.
(2) The significant new uses are:
(i) Industrial, commercial, and
consumer activities. Requirements as
specified in § 721.80(j) (use as a motor
vehicle air conditioning (MVAC)
refrigerant in new passenger cars and
vehicles as defined in 40 CFR 82.32 (c)
and (d). The initial charging of MVAC
units with the PMN substance will be
done by the motor vehicle original
equipment manufacturer. All servicing,
maintenance, and disposal involving the
PMN substance will be done only by
Clean Air Act (CAA) section 609
certified technicians using CAA section
609 certified refrigerant handling
equipment. The PMN substance only
will be sold or distributed in 20–pound
(net weight) containers or larger).
(ii) [Reserved]
(b) Specific requirements. The
provisions of subpart A of this part
apply to this section except as modified
by this paragraph.
(1) Recordkeeping. Recordkeeping
requirements as specified in § 721.125
(a), (b), (c), and (i) are applicable to
manufacturers, importers, and
processors of this substance.
(2) Limitations or revocation of
certain notification requirements. The
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provisions of § 721.185 apply to this
section.
[FR Doc. 2010–1936 Filed 1–29–10; 8:45 am]
BILLING CODE 6560–50–S
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
49 CFR Part 390
[Docket No. FMCSA–2009–0127]
RIN 2126–AA98
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.
SUMMARY: The 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 for direct
compensation comply with the safety
regulations regardless of the distance
traveled. Specifically, this rule makes
certain FMCSRs applicable to the
operation of such vehicles when they
are operated within a 75 air-mile radius
(86.3 statute miles or 138.9 kilometers)
from the driver’s normal work-reporting
location. Motor carriers, drivers, and the
vehicles operated by them will be
subject to the same safety requirements
imposed upon such vehicles when they
are operated beyond a 75-air-mile
radius. This action is required by the
Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for
Users (SAFETEA–LU).
DATES: Effective: This rule is effective
May 3, 2010. Compliance: Motor
carriers must be in compliance with this
rule no later than June 1, 2010.
FOR FURTHER INFORMATION CONTACT: Ms.
Loretta Bitner, Chief, Commercial
Passenger Carrier Safety Division, Office
of Enforcement and Compliance; (202)
385–2428; loretta.bitner@dot.gov.
Docket: For access to the docket to
read background documents including
those referenced in this document go to
https://www.regulations.gov at any time
or visit the U.S. Department of
Transportation Dockets located on the
ground floor, Room W12–140, 1200
New Jersey Avenue, SE., Washington,
DC, between 9 a.m. and 5 p.m. ET.,
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Monday through Friday, except Federal
holidays.
SUPPLEMENTARY INFORMATION:
Legal Basis for the Rulemaking
Section 4136 of SAFETEA–LU [Pub.
L. 109–59, 119 Stat. 1144, 1745, August
10, 2005] (set out as a note to 49 U.S.C.
31136) states that ‘‘[t]he Federal motor
carrier safety regulations that apply to
interstate operations of commercial
motor vehicles designed to transport
between 9 and 15 passengers (including
the driver) shall apply to all interstate
operations of such carriers regardless of
the distance traveled.’’
The FMCSA notes that the legislative
history of this provision of SAFETEA–
LU is sparse and, in some respects,
inconsistent with the mandate of section
4136. The Senate bill (S. 1567, 109th
Cong. 1st Sess. (July 29, 2005)) that
contained the provisions relating to
motor carrier safety that became part of
SAFETEA–LU included the following
provisions, in section 106(2): ‘‘The
Secretary of Transportation shall * * *
ensure that Federal motor carrier safety
regulations that apply to interstate
operations of commercial motor
vehicles designed to transport between
9 and 15 passengers (including the
driver) apply to all interstate operations
of such carries [sic] regardless of the
distance traveled.’’
The committee report accompanying
this bill said that this provision ‘‘would
ensure that the Secretary enforces
Federal motor carrier safety regulations
that apply to interstate CMVs designed
to transport between 9 and 15
passengers, regardless of the distance
traveled.’’ Sen. Report No. 109–120
(109th Cong. 1st Sess., July 29, 2005), at
20.
In the House of Representatives,
similar language was found in section
4130 of an early version H.R. 3 (109th
Cong, 1st Sess., 2005), which stated
‘‘[t]he Federal motor carrier safety
regulations (other than regulations
relating to commercial drivers license
and drug and alcohol testing
requirements) shall apply to all
interstate operations of commercial
motor vehicles used to transport
between 9 and 15 passengers (including
the driver), regardless of the distance
traveled.’’ House Report 109–12 (109th
Cong., 1st Sess., March 7, 2005), at 306.
The House committee report
described the purpose of this provision
as follows:
• ‘‘This section directs the Secretary to
extend the Federal motor carrier safety
regulations found in 49 Code of Federal
Regulations, Parts 387, 390 through 399 to all
operations of commercial motor vehicles
designed to transport between nine and
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fifteen passengers (including the driver),
regardless of their operational distance. This
section amends the final rule issued by DOT
on August 12, 2003.
• The Committee intends the Secretary to
address this situation through the rulemaking
process. As part of the rulemaking, the
Secretary shall amend the final rule
addressing commercial motor vehicles
transporting nine to fifteen passengers to
specifically exclude vanpool operations as
defined by section 132(f) of the Internal
Revenue Code. The rulemaking also exempts
stretch sedan limousines that are designed to
seat nine to fifteen passengers. The
rulemaking does not exempt SUV stretch
limousines, or super stretch sedan
limousines that are designed to seat sixteen
or more passengers (including the driver).’’
House Report 109–12, at 441.
The House and Senate conferees
included in section 4136 of SAFETEA–
LU (as quoted above) a provision very
similar to both the Senate and House
bills. But it reconciled the obviously
different underlying intentions of the
two bodies with the following: ‘‘The
conference adopts the identical House
and Senate language applying the
Federal Motor Carrier Safety
Regulations to interstate van operations.
Further, the conference agrees to exempt
vanpool operations.’’
House Conference Report No. 109–
203 (109th Cong., 1st Sess., 2005) at
1003. It appears from this history that
the central, albeit narrow, purpose of
the statutory language ultimately
adopted (which varied little from the
similar House and Senate proposals)
was to apply, regardless of the distance
traveled, all FMCSRs applicable to
operations of vehicles designed to
transport between 9 and 15 passengers
(including the driver). Other than the
change relating to the distance traveled,
other criteria determining the
applicability of the FMCSRs to such
vehicles are unaffected by section 4136.
The effect of this central purpose on
FMCSA’s current regulations, and the
changes necessary to put it into effect,
are discussed in more detail below.
However, it also appears the House
committee’s desire to exempt ‘‘vanpool
operations as defined in section 132(f)
of the Internal Revenue Code’’ and
‘‘stretch sedan limousines’’ from the rule
required by section 4136 was not
accepted by the conference between the
two chambers, and was not included in
the final statutory language.1 Moreover,
it is not clear if the reference in the
Conference Report to ‘‘vanpool
operations’’ was intended to refer to the
1 It is also not clear that the statutory language
that passed the House, which says nothing about
any exceptions or exemptions, would have been
sufficient to require the implementation of the two
desired exemptions.
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same type of operations described in the
House report, and again the statutory
language of section 4136 does not
include any exception or exemption for
‘‘vanpool operations.’’
It is important to note that the
Agency, like the courts, does not have
the authority to implement any of the
exemptions contemplated by the
Conference Report or other legislative
history. ‘‘[I]n the absence of a clearly
expressed legislative intention to the
contrary, the language of the statute
itself must ordinarily be regarded as
conclusive. * * * Unless exceptional
circumstances dictate otherwise, [w]hen
we find the terms of a statute
unambiguous, judicial inquiry is
complete.’’ Burlington Northern R. Co. v.
Oklahoma Tax Comm., 481 U.S. 454,
461 (1984) (internal quotations and
citations omitted). In this case, the
unambiguous language of section 4136
is conclusive, and there is no evidence
of exceptional circumstances that would
support a different view as to the reach
of the statute.
Background
On August 12, 2003 (68 FR 47860),
FMCSA published a final rule making
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. These requirements were
based on the Agency’s: (1)
understanding of the requirements of
section 212 of the Motor Carrier Safety
Improvement Act of 1999 [Pub. L. 106–
159, 113 Stat. 1764, December 9, 1999];
(2) analysis of comments submitted in
response to previous rulemaking actions
concerning the passenger vehicle
component of the CMV definition at 49
U.S.C. 31132(1). (See section 4008(a)(2)
of the Transportation Equity Act for the
21st Century [Pub. L. 105–178, 112 Stat.
107, June 9, 1998]); and (3) analysis of
crash data concerning large vans. The
Agency indicated that it believed this
approach would be more effective than
other alternatives for responding to
congressional and public safety
concerns about what is commonly
referred to as long-haul van operations
for direct compensation throughout the
United States, including for-hire vans
operated by foreign-based motor carriers
into and out of the United States for
direct compensation. The 2003 final
rule recounted and reviewed the several
legislative changes and regulatory
actions that preceded that final rule.
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4997
All of the requirements adopted in
that final rule applicable to the
operations of these smaller passengercarrying vehicles for direct
compensation beyond a 75-air-mile
radius are now made applicable by this
final rule, regardless of the distance
traveled. This final rule does not make
any other changes in the applicability of
the FMCSRs to small-passenger-carrying
vehicles. This means, for example, that
operators of such vehicles for indirect
compensation are not subject to the
safety-related operational regulations in
49 CFR parts 390–399, and are only
subject to the provisions specifically
included in amended 49 CFR
390.3(f)(6).
Similarly, this final rule would not
apply to commuter vanpools which
FMCSA has previously indicated it did
not believe Congress intended for the
Agency to regulate. Federal Motor
Carrier Safety Regulations; Definition of
Commercial Motor Vehicle, 64 FR
48510, 48514 (Sept. 3, 1999) (IFR). The
Agency stated in that IFR that the use
of the phrase ‘‘for compensation’’ in the
definition of ‘‘commercial motor
vehicle’’ in 49 U.S.C. 31132(1)(B) meant
that Congress intended for regulation to
‘‘be limited to vans operated in the
furtherance of a commercial enterprise,
which is generally not the case for
commuter vanpools * * * [T]he agency
does not intend to regulate commuter
vanpools that are not operated in the
furtherance of a commercial enterprise.’’
During its subsequent consideration of
regulations for small passenger-carrying
vehicles, the Agency did not indicate
any change in this view of the scope of
its regulatory authority. Federal Motor
Carrier Safety Regulations; Definition of
Commercial Motor Vehicle (CMV);
Requirements for Operators of Small
Passenger-Carrying CMVs, 66 FR 2756,
2761, 2763 (Jan. 11, 2001) (final rule);
Safety Requirements for Operators of
Small Passenger-Carrying Vehicles Used
in Interstate Commerce, 66 FR 2767,
2769 (Jan. 11, 2001) (notice of proposed
rulemaking); and 68 FR 47860 (Aug. 12,
2003) (final rule). Therefore, the
FMCSRs were and are still not
applicable to ‘‘commuter vanpools,’’ and
enactment of section 4136 of SAFETEA–
LU did not change this regulatory status.
On the other hand, the statute does
have the effect of now applying all of
the operational FMCSRs to vanpools
operated in furtherance of a commercial
enterprise within the 75 air-mile limit
adopted in 2003. Such operations would
have been excluded from the
application of the FMCSRs only because
of the distance traveled, and section
4136 has set aside that limitation.
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Finally, FMCSA also must point out
that, as explained in the 1999 interim
final rule, the operation of a van by an
individual who receives money from
other participants in the vanpool is not
considered to be an operation in
furtherance of a commercial enterprise.
The Agency ‘‘does not believe that this
type of arrangement should be
considered ‘for compensation’ and does
not intend to regulate such operations.’’
64 FR 48514.
In summary, certain types of vanpool
operations currently are not subject to
the FMCSRs for reasons other than the
distance traveled. Notwithstanding the
absence of explicit statutory language in
section 4136 concerning the apparent
intention of the conference committee to
exempt ‘‘vanpool operations,’’ FMCSA
believes that many types of vanpool
operations have not been subject to the
FMCSRs, and that the operative
language of section 4136 does not
change that situation.
Effect of the Final Rule
The FMCSA amends the FMCSRs to
require that motor carriers operating
CMVs designed or used to transport
between 9 and 15 passengers (including
the driver) in interstate commerce for
direct compensation comply with the
regulations contained in 49 CFR parts
390, 391, 392, 393, 395 and 396,
regardless of the distance traveled.
These motor carriers must comply
with the general requirements under
part 390, including but not limited to
vehicle marking requirements. Motor
carriers must ensure that every selfpropelled CMV they operate is marked
as specified in paragraphs (b), (c), and
(d) under 49 CFR 390.21, including
among other things, the requirement to
mark the vehicle with the USDOT
Number and the legal name or a single
trade name of the motor carrier
operating the vehicle. The final rule
eliminates the exception under
§ 390.3(f)(6)(ii) which permitted small
passenger-carrying vehicles operated
within a 75 air-mile radius of the
normal work reporting location to be
marked only with the USDOT Number
and to exclude the legal or trade name.
These motor carriers are required to
ensure that each of their drivers meets
all of the minimum qualifications for
interstate CMV drivers prescribed in
part 391, including physical
qualifications and maintaining records
to document compliance.
The rules in part 392 regarding
driving of CMVs also are applicable.
Part 392 requirements include general
prohibitions against the use of alcohol,
drugs and other substances while
operating a CMV or operating a CMV
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while ill or fatigued. The motor carrier
must ensure that its drivers comply with
rules governing operation of CMVs at
railroad grade crossings, practices to
ensure a CMV is safely stopped, fueling
precautions, and other general
prohibited practices such as
transporting unauthorized persons,
towing or pushing loaded buses.
Motor carriers must meet all
applicable requirements in part 393
concerning parts and accessories
necessary for safe operation of a CMV.
Applicable requirements include,
among other things, lamps, reflective
devices, and electrical wiring; brakes;
glazing and window construction; fuel
systems; and emergency equipment.
Under part 395, motor carriers must
ensure that their drivers comply with
the applicable hours-of-service
requirements for motor carriers of
passengers. Most, if not all, operators of
small-passenger carrying vehicles
within the 75 air-mile limit and their
drivers will be covered by the short-haul
operations provisions of 49 CFR
§ 395.1(e)(1). If the driver operates
within a 100 air-mile radius of the
normal work-reporting location and the
driver returns to that location and is
released from work within 12
consecutive hours after starting work,
then the driver must not drive more
than 10 hours after 8 hours off duty and
must have at least 8 consecutive hours
off duty separating each 12 hours on
duty. Drivers covered by these shorthaul provisions are not required to
maintain a record-of-duty status (log
book). However, the employer must
maintain for 6 months records of each
driver’s time of both reporting for and
being released from duty, and the
number of hours on duty each day.
In accordance with 49 CFR 395.5, any
drivers who operate beyond a 100 airmile radius from the normal workreporting location must not drive more
than 10 hours after 8 consecutive hours
off duty or operate CMVs after being on
duty more than 15 hours, following 8
consecutive hours off duty.
Furthermore, drivers must not drive
after being on duty 60 hours in any 7
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). In
addition, 49 CFR 395.8 requires these
drivers to document the number of
hours on duty and the number of hours
driving and record his/her duty status.
Although these hours-of-service
requirements will now be applicable to
operators within the 75 air-mile limit,
FMCSA does not believe that they will
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impose any additional cost burdens, for
purposes of assessing either the costs of
this final rule or the burden of
information collection. These operators
are most likely not currently allowing
drivers to drive more than 10 hours or
to be on duty more than 12 or 15 hours.
The information collection requirements
are usually and customarily met by
maintenance of payroll records by the
operators in the ordinary course of
business for drivers covered by the
short-haul operations provisions.
In addition to the requirements
described in the preceding paragraphs,
each motor carrier is required under
part 396 to have a systematic inspection,
repair, and maintenance program for the
CMVs it operates, and to ensure that
vehicles are in safe and proper operating
condition at all times. They are also
required to maintain records to
document compliance with these rules.
Motor carriers are required to ensure
that each vehicle is inspected at least
once every 12 months by a qualified
inspector/mechanic and that any motor
carrier employee who is 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.
The FMCSA is not making the
commercial driver’s license and
controlled substances and alcohol
testing requirements applicable to
operators of small passenger-carrying
CMVs, because section 4136 does not
change the existing non-application of
those requirements that results from the
statutory definition of CMV in 49 U.S.C.
31301(4) used for those programs.
Consequently, the passenger-carrying
threshold for CDL and controlled
substances and alcohol testing
requirements remains at 16 passengers
(including the driver).
New Entrant Program
The 2003 final rule required all motor
carriers that operate CMVs designed or
used to transport between 9 and 15
passengers for direct compensation to
complete a motor carrier identification
report (Form MCS–150), and to obtain a
USDOT Number. This included carriers
operating within the 75 air-mile
exclusion. 49 CFR 390.3(f)(6). All such
carriers that have fulfilled the
requirements of the 2003 final rule
would already be included in FMCSA’s
census of motor carriers and would have
been considered new entrants and
subject to a limited new entrant review
to ensure their compliance with the very
limited requirements of the rule (i.e.,
maintaining an accident register and
marking of their CMVs).
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Any carriers that have already
registered will be subject to safety
requirements such as driver
qualifications and hours of service and
be required to have appropriate safety
management controls in place to ensure
compliance with the FMCSRs. However,
any carriers not previously registered
will be considered new entrant motor
carriers. Those carriers will be covered
by the revised New Entrant Safety
Assurance Process recently adopted by
the Agency. 73 FR 76472 (Dec. 16,
2008).
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, to assign safety
ratings, to take remedial action when
required, and to prohibit motor carriers
receiving a safety rating of
‘‘Unsatisfactory’’ from operating a CMV.
As a result of this final rule, motor
carriers operating small passengercarrying CMVs within a 75 air-mile
radius of the driver’s normal workreporting location 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 are subject to compliance
reviews and will receive safety ratings.
Those 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.
Implementation Schedule
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The FMCSA is requiring that subject
motor carriers comply with the safety
requirements 30 days after the effective
date of the final rule. This means that
motor carriers have approximately 120
days after the date of publication of this
rule to comply with the safety
regulations. The Agency believes this is
sufficient time for the motor carriers
that will be affected to establish and
implement safety management controls
to achieve compliance with the
FMCSRs.
Estimated Costs and Benefits of
Imposing Safety-Related Requirements
The 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.
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The FMCSA estimates that
approximately 12,200 motor carriers
currently have active authority to
operate 9- to 15-passenger vehicles for
direct compensation. These 12,200
motor carriers operate approximately
43,200 small passenger vehicles and
employ roughly 57,900 drivers, all of
which could potentially be affected by
this rule. The cost to complete medical
examinations and certifications for
drivers, create and maintain driver
qualification files, and inspect, repair
and maintain affected vehicles is
estimated at $29 million for the first
year and $22 million for each additional
year the rule is in effect. A regulatory
evaluation has been prepared and is
available in the docket for this
rulemaking.
The FMCSA estimates there are 558
fatal crashes each year involving large
vans with between 9 and 15 passengers
aboard at the time of the crash (at a cost
of $6.315 million per crash). The
Agency estimates there are 2,234 injury
crashes each year involving 9- to 15passenger vehicles (at a cost of $0.336
million per crash). Therefore, the annual
reduction in crashes necessary for the
benefits of the proposal to outweigh the
costs is only two-thirds of one percent
(0.67%) of all such crashes for the first
year and one-half of one percent
(0.51%) for each additional year
thereafter. The Agency believes the
increased focus on passenger carrier
operations brought about by this
rulemaking will help to accomplish an
improvement in safety.
Rulemaking Analyses and Notices
Under the Administrative Procedure
Act (APA) (5 U.S.C. 553(b)), an Agency
may waive the normal notice and
comment requirements if it finds, for
good cause, that they are impracticable,
unnecessary, or contrary to the public
interest.
In this case, notice and comment are
unnecessary. The final rule amends
FMCSA’s regulations to make them
consistent with section 4136 of
SAFETEA–LU, a provision which makes
the FMCSRs applicable to the operation
of 9- to 15-passenger vehicles when
such vehicles are operated for direct
compensation, in interstate commerce,
regardless of the distance traveled.
Because the statutory language does
not provide FMCSA any discretion in
adopting the necessary changes to its
regulations, FMCSA finds good cause
under 5 U.S.C. 553(b) that prior notice
and comment on this final rule is
unnecessary.
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4999
Executive Order 12866 (Regulatory
Planning and Review) and DOT
Regulatory Policies and Procedures
The FMCSA has determined that this
rulemaking action is a not a significant
regulatory action within the meaning of
Executive Order 12866 and is not
significant within the meaning of
Department of Transportation regulatory
policies and procedures because there
has not been substantial public interest
concerning the extension of the
applicability of the FMCSRs to a larger
population of for-hire motor carriers of
passengers.
This final rule requires that for hire
operators of vehicles designed or used
to carry between 9 and 15 passengers
(including the driver) in interstate
commerce comply with applicable
provisions of 49 CFR parts 325 and 350–
399 when the commercial vehicle is
operated within a 75 air-mile radius
(86.3 statute miles or 138.9 kilometers)
from the driver’s normal work-reporting
location. These regulations include, but
are not limited to, 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 on the basis that
the benefits justify the costs. Based
upon the information above, the agency
anticipates that the economic impact
associated with this rulemaking action
will be $29 million for the first year, and
$22 million for each subsequent year.
The benefits of reducing fatal and injury
crashes by 0.51% annually (0.67% in
the first year) would outweigh the
estimated costs of the rule.
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 evaluation is
not necessary.
Regulatory Flexibility Act
In compliance with the Regulatory
Flexibility Act (5 U.S.C. 601–612),
FMCSA has considered the effects of
this regulatory action on small entities
and determined that this final rule
would not affect a substantial number of
small entities, but would have a
significant impact on those affected.
The FMCSA is requiring that all
motor carriers operating CMVs designed
or used to transport between 9 and 15
passengers in interstate commerce be
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made subject to the safety-related
operational FMCSRs when they are
directly compensated for such services.
This includes carriers operating such
vehicles within a 75 air-mile radius
(86.3 statute miles or 138.9 kilometers)
from the driver’s normal work-reporting
location. These motor carriers would be
required to comply with 49 CFR parts
390, 391, 392, 393, 395, and 396.
If most or all of these businesses are
classified as small businesses by the
Small Business Administration (SBA),
the rule could potentially affect up to
approximately 12,200 small entities.
However, some of these small entities
may be foreign-based motor carriers that
the agency is not required to include in
the Regulatory Flexibility Act analysis.
To avoid underestimating the potential
impact on small entities, FMCSA is
using an estimate of 12,200.
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, 393, and 396 is
approximately $29 million for the first
year and $22 million per year thereafter.
If the costs of the rulemaking are
distributed evenly among these 12,200
motor carriers, the costs per carrier
would be approximately $2,400 for the
first year the requirements are in effect,
and about $1,800 per year thereafter. A
summary of the estimated costs per
motor carrier is presented below.
SUMMARY OF COSTS PER MOTOR CARRIER TO COMPLY WITH THE FMCSRS
Cost of
First year
Each year
$1,556
62
751
$1,019
40
751
Grand Total Cost ......................................................................................................................................
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Medical Exam and Certification .......................................................................................................................
Create Driver Qualification Files ......................................................................................................................
Inspection, Repair, Maintenance Process .......................................................................................................
2,369
1,810
The FMCSA has reviewed data from
the SBA to determine the typical
revenues for a motor carrier in the
intercity and rural bus transportation
segment of the industry. This category
description appeared to be similar to the
types of motor carrier operations that
would be covered by this rulemaking.
The SBA’s 1997 tables on ‘‘Employer
Firms, Employment and Estimated
Receipts by Employment Size of Firm’’
separated the firms into three groups:
Those with less than 20 employees,
those with less than 500 employees, and
those with 500 or more employees.
The FMCSA focused on the group
with less than 20 employees to be
consistent with the Agency’s estimate of
the number of drivers employed by each
of the 12,200 motor carriers likely to be
affected by this rule. The SBA data
indicated there are 145 firms in this
category with combined revenues of
$41,793,000. For the purpose of this
analysis, the revenues for the businesses
in this group were divided by the
number of firms resulting in an estimate
of $288,227 in revenues per year for
each carrier [($41,793,000/145 firms)].
The costs per carrier associated with
this rule would, on average, be
approximately four-fifths of one percent
(0.82%) of their revenues [($2,369 costs
per carrier)/($288,227 revenues per
carrier)] for the first year (and about
three-fifths of one percent in any
subsequent year (0.0063 = $1,810/
$288,227).
Given the cost per carrier of this
rulemaking, it is important to remember
that the new rule, by reducing crashes,
could also lower the costs of
operation—and for the average small
business, a reduction of just one injury
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crash every 142 years ($336,220/$2,369
= 142) would be enough for the benefits
to outweigh the cost of this rulemaking.
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. 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.
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.
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 has
determined that this final rule will
impact three currently-approved
information collections.
OMB Control No. 2126–0003—
Inspection, Repair and Maintenance
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
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Frm 00028
Fmt 4700
Sfmt 4700
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, 2012.
The FMCSA estimates that it will take
a total annual expenditure of 11 hours
and 53 minutes per year per CMV to
complete the required recordkeeping
related to vehicular inspection, repair,
and maintenance (48 minutes per
vehicle per year for systematic
inspection, repair, and maintenance; 5
minutes per year per vehicle for
periodic inspection; and 11 hours per
year per vehicle for driver vehicle
inspection reports). The driver vehicle
inspection report component requires 2
minutes 35 seconds to complete and
review one report per work day when a
driver finds no defects, and 3 minutes
20 seconds to complete and review one
report and certify that repairs have been
made when a driver finds a defect.
FMCSA assumes that defects are
discovered in 5 percent of driver
inspections. On average, the annual
burden per vehicle for driver inspection
is 11 hours [250 working days per year
× ((95% no defects × 2 minutes 35
seconds) + (5% defects × 3 minutes 20
seconds) ÷ 60 minutes per hour) = 10.92
hours = 11 hours rounded].
Evidence of a person’s qualifications
to perform periodic vehicle inspections
must be retained by the motor carrier.
Evidence of a person’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
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director, driver supervisor, or equivalent
position for each type of inspector.
Based on an estimate of 12,200 motor
carriers that will be subject to the final
rule and on the assumption that each
motor carrier has at least one employee
who is a qualified periodic vehicle
inspector and one employee who is a
qualified brake inspector, the estimated
total time burden related to the
inspector qualifications requirement is
approximately 2,034 hours [(5 minutes
for each periodic vehicle inspector
certification × 12,200 motor carriers =
1,016.66 hours = 1,017 hours rounded)
+ (5 minutes for each brake inspector
certification × 12,200 motor carriers =
1,016.66 hours = 1,017 hours rounded)
÷ 60 minutes per hour].
The FMCSA estimates that the total
inspection, repair, and maintenance
recordkeeping burden is approximately
515,394 hours in Year 1 [(43,200 CMVs
× 11 hours 53 minutes per year per
CMV) ÷ 60 minutes per hour = 513,360
hours + (2,034 hours in the first year for
inspector qualifications) = 515,394
hours] and 513,360 hours in subsequent
years. [515,394 hours ¥ 2,034 hours
(one-time, non-recurring requirement) =
513,360]. FMCSA has submitted the
amended, inspection, repair, and
maintenance information collection to
the OMB for review and approval.
OMB Control No. 2126–0004, Driver
Qualification Files
The FMCSA estimates that there are
currently 7,000,000 CMV drivers subject
to the FMCSRs. This new regulation
governing 9–15 passenger vans will
subject approximately 57,900 additional
CMV drivers, and their motor carriers,
to the rules pertaining to the driver
qualification file, or ‘‘DQ file,’’ for the
first time.
The regulations pertinent to the
qualifications of CMV drivers are
contained in 49 CFR part 391. The
evidence of each driver’s qualifications
is housed in a DQ file under that
driver’s name. This file must be made
available to FMCSA investigators during
a compliance review of the motor
carrier. The creation, collection and
maintenance of this evidence impose
numerous paperwork burdens. FMCSA
has prepared detailed descriptions of
the burden of each of the paperworkrelated tasks. These descriptions are
included in the supporting statement
FMCSA has filed with the OMB (OMB
Control 2126–0004) contemporaneously
with publication of this final rule. That
document provides a full explanation of
the paperwork burden imposed on the
9–15 passenger van industry today and
details its small increase in the overall
paperwork burden of the DQ file
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16:55 Jan 29, 2010
Jkt 220001
requirements. Because current drivers
will not have to re-apply for their
positions, the burden associated with
certain aspects of the application
process will not be incurred when the
rule becomes effective, but will be
incurred in subsequent years as driver
positions become vacant and will need
to be filled. Conversely, current drivers
will require driver record and safety
performance investigations when the
rule becomes effective, but the annual
review of these qualifications will only
occur in subsequent years.
The various tasks of the DQ file
requirements fall into 3 categories:
Driver hiring, annual review of driving
record, and safety history
responsibilities. Driver hiring includes
the driver’s employment application,
which FMCSA estimates requires 15
minutes on average for the driver to
complete, plus 1 minute for the motor
carrier to review. Driver hiring also
includes obtaining a copy of the official
driving record of the driver from the
appropriate jurisdiction(s). FMCSA
estimates that this takes an average of 5
minutes. FMCSA estimates that the
background investigation of the driver
by the motor carrier takes an average of
20 minutes, and that the carrier’s
notification of the driver of his or her
right to review and rebut elements of the
investigation takes 1 minute per driver.
The small percentage of CMV drivers
who choose to review their history will,
the Agency estimates, take an average of
5 minutes to do so. The total revised
paperwork burden of these driver hiring
tasks is 2,241,491 hours in the first year.
The annual review of driving record
includes the certificate of violations of
traffic laws in the past year that is
completed by the CMV driver. This task
requires an average of 2 minutes. The
motor carrier’s request for the official
driving record of the driver, its review
of the record when received, and filing
it, takes an average of 5 minutes. For
multiple-employer drivers, the Agency
estimates only 1 minute is necessary
because there is no requirement to
obtain the official driving record on
these drivers. When the driver is
furnished to a motor carrier by the
driver’s regular employer, the Agency
estimates that this task takes 3 minutes.
The total revised paperwork burden of
all the tasks related to the review of
driving record is 838,834 hours in the
first year.
Certain tasks related to the CMV
driver’s safety performance history must
be performed by the CMV driver, as well
as some performed by the hiring motor
carrier, when a driver seeks to rebut the
history that previous employers have
provided to the hiring motor carrier.
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Frm 00029
Fmt 4700
Sfmt 4700
5001
First, the driver-applicant consumes 3
minutes in drafting his or her request for
a copy of the safety performance history.
Second, the hiring motor carrier
consumes an average of 3 minutes per
request in providing that record to the
driver. Finally, those CMV drivers who
choose to formally rebut all or portions
of the safety performance history
consume approximately 30 minutes in
drafting and forwarding the necessary
information. The total revised
paperwork burden of all the tasks
related to these driver history tasks is
198,380 hours in the first year.
As stated, the additional DQ file
paperwork burden in year one will
differ from that in all subsequent years.
The only initial burden during the first
year will be 24,125 hours to obtain
driver records (5 minutes) and safety
performance histories (20 minutes) on
the 57,900 current 9–15-passenger van
drivers. In subsequent years, there will
be 18,341 hours of additional burden
related to hiring drivers to fill current
positions that have become vacant; an
additional 6,939 associated with the
annual review of driver qualifications;
and an additional 1,641 hours for other
tasks associated with the safety
performance history. In sum, the
additional paperwork burden incurred
by the 9–15 passenger drivers and motor
carriers with respect to DQ files will be
26,921 hours (18,341 + 6,939 + 1,641) in
subsequent years. When 24,125 hours
are added to the currently-approved DQ
file paperwork burden of 3,254,580
hours, the estimated paperwork burden
of the DQ requirements increases to
3,278,705 burden hours, an increase of
less than 1 percent in the first year.
OMB Control No. 2126–0006, Medical
Qualification Requirements
Drivers of CMVs designed or used to
transport between 9 and 15 passengers
for direct compensation will be required
to meet the medical examination and
certification requirements at 49 CFR
part 391, subpart E. The information
collection requirements related to
medical qualification requirements have
been approved by OMB under the
provisions of the PRA and assigned
OMB Control No. 2126–0006, which
expires on May 31, 2012.
Under this final rule, approximately
57,900 additional drivers will be subject
to FMCSA physical qualification
standards. A medical certificate usually
is valid for 2 years after the date of
examination. However, drivers with
certain medical conditions must be
certified more frequently than every 2
years. In addition, some employers
require newly hired drivers to obtain a
new medical certification even if the
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driver’s current certificate is still valid.
As a result of these exceptions to the
biennial medical certification schedule,
the Agency estimates that the actual
number of medical certifications
conducted annually is 31 percent
greater than would be the case if all
drivers were only examined biennially.
Biennial examinations would result in
approximately 28,950 medical
examinations per year, but the Agency
estimates that approximately 37,925
examinations are conducted annually
[28,950 regular medical examinations ×
1.31 (31% out-of-cycle medical
examinations + 28,950 regular medical
examinations) = 37,925].
It takes a medical examiner
approximately 20 minutes to complete,
document, and file the medical
examination report and 1 minute to
complete the medical examiner’s
certificate and furnish one copy to the
person who was examined and one copy
to the motor carrier who employs him
or her. It takes a motor carrier
approximately 1 minute to file the
medical certificate. Therefore, the
annual time burden for the medical
examination and certificate requirement
is approximately 13,906 hours per year
[(37,925 certificates × 22 minutes per
certificate per year) ÷ 60 minutes per
hour = 13,905.83 hours = 13,906
rounded]. FMCSA has submitted the
amended, medical qualification
information collection to the OMB for
review and approval.
The total estimated additional time
burden imposed by this final rule will
be 553,425 hours in Year 1 and 554,187
hours in subsequent years as illustrated
in the following table:
Additional
burden hours
associated with
the final rule in
Year 1
Currently approved annual
burden hours
OMB control No.
Additional
burden hours
associated with
the final rule in
subsequent
years
2126–0003 .......................................................................................................................
2126–0004 .......................................................................................................................
2126–0006 .......................................................................................................................
59,214,494
3,254,580
1,682,701
515,394
24,125
13,906
513,360
26,921
13,906
Total ..........................................................................................................................
64,151,775
553,425
554,187
National Environmental Policy Act
The FMCSA has analyzed this
rulemaking in accordance with all
statutory and regulatory policies under
the National Environmental Policy Act
of 1969 (42 U.S.C. 4321 et seq.). A copy
of the final environmental assessment is
included in the docket for this
rulemaking.
Unfunded Mandates Reform Act of
1995
This final rule does not impose an
unfunded Federal mandate, as defined
by the Unfunded Mandates Reform Act
of 1995 (2 U.S.C. 1532 et seq.), that will
result in the expenditure by State, local,
and tribal governments, in the aggregate,
or by the private sector, of $141.3
million or more in any one year.
Executive Order 12988 (Civil Justice
Reform)
This action meets applicable
standards in sections 3(a) and 3(b)(2) of
Executive Order 12988, Civil Justice
Reform, to minimize litigation, to
eliminate ambiguity, and to reduce
burden.
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Executive Order 13045 (Protection of
Children)
FMCSA has analyzed this action
under Executive Order 13045,
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16:55 Jan 29, 2010
Jkt 220001
Protection of Children from
Environmental Health Risks and Safety
Risks. This final rule is not an
economically significant rule and does
not concern an environmental risk to
health or safety that may
disproportionately affect children.
Executive Order 12630 (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.
Executive Order 13132 (Federalism
Assessment)
This action has been analyzed in
accordance with the principles and
criteria contained in Executive Order
13132, dated August 4, 1999, and it has
been determined that this rulemaking
does not have a substantial direct effect
or sufficient federalism implications on
States that would limit the
policymaking discretion of the States.
Nothing in this document directly
preempts any State law or regulation.
This final rule does not impose
additional costs or burdens on the
States.
PO 00000
Frm 00030
Fmt 4700
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List of Subjects in 49 CFR Part 390
Highway safety, Motor carriers, Motor
vehicle identification and marking,
Reporting and recordkeeping
requirements.
For the reasons set forth in the
preamble, FMCSA amends part 390 of
title 49, Code of Federal Regulations, as
follows:
■
PART 390—[AMENDED]
1. The authority citation for part 390
is revised to read as follows:
■
Authority: 49 U.S.C. 508, 13301, 13902,
31132, 31133, 31136, 31144, 31151, 31502,
31504; sec. 204, Pub. L. 104–88, 109 Stat.
803, 941 (49 U.S.C. 701 note); sec. 114, Pub.
L. 103–311, 108 Stat. 1673, 1677; sec. 212,
217, 229, Pub. L. 106–159, 113 Stat. 1748,
1766, 1767, 1773; sec. 4136, Pub. L. 109–59,
119 Stat. 1144, 1745 and 49 CFR 1.73.
§ 390.3
[Amended]
2. In § 390.3, remove paragraph
(f)(6)(ii) and redesignate paragraph
(f)(6)(i) as paragraph (f)(6).
■
Issued on: January 26, 2010.
Anne S. Ferro,
Administrator.
[FR Doc. 2010–1955 Filed 1–29–10; 8:45 am]
BILLING CODE 4910–EX–P
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Agencies
[Federal Register Volume 75, Number 20 (Monday, February 1, 2010)]
[Rules and Regulations]
[Pages 4996-5002]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-1955]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 390
[Docket No. FMCSA-2009-0127]
RIN 2126-AA98
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.
-----------------------------------------------------------------------
SUMMARY: The 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 for direct
compensation comply with the safety regulations regardless of the
distance traveled. Specifically, this rule makes certain FMCSRs
applicable to the operation of such vehicles when they are operated
within a 75 air-mile radius (86.3 statute miles or 138.9 kilometers)
from the driver's normal work-reporting location. Motor carriers,
drivers, and the vehicles operated by them will be subject to the same
safety requirements imposed upon such vehicles when they are operated
beyond a 75-air-mile radius. This action is required by the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users (SAFETEA-LU).
DATES: Effective: This rule is effective May 3, 2010. Compliance: Motor
carriers must be in compliance with this rule no later than June 1,
2010.
FOR FURTHER INFORMATION CONTACT: Ms. Loretta Bitner, Chief, Commercial
Passenger Carrier Safety Division, Office of Enforcement and
Compliance; (202) 385-2428; loretta.bitner@dot.gov.
Docket: For access to the docket to read background documents
including those referenced in this document go to https://www.regulations.gov at any time or visit the U.S. Department of
Transportation Dockets located on the ground floor, Room W12-140, 1200
New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. ET.,
Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Legal Basis for the Rulemaking
Section 4136 of SAFETEA-LU [Pub. L. 109-59, 119 Stat. 1144, 1745,
August 10, 2005] (set out as a note to 49 U.S.C. 31136) states that
``[t]he Federal motor carrier safety regulations that apply to
interstate operations of commercial motor vehicles designed to
transport between 9 and 15 passengers (including the driver) shall
apply to all interstate operations of such carriers regardless of the
distance traveled.''
The FMCSA notes that the legislative history of this provision of
SAFETEA-LU is sparse and, in some respects, inconsistent with the
mandate of section 4136. The Senate bill (S. 1567, 109th Cong. 1st
Sess. (July 29, 2005)) that contained the provisions relating to motor
carrier safety that became part of SAFETEA-LU included the following
provisions, in section 106(2): ``The Secretary of Transportation shall
* * * ensure that Federal motor carrier safety regulations that apply
to interstate operations of commercial motor vehicles designed to
transport between 9 and 15 passengers (including the driver) apply to
all interstate operations of such carries [sic] regardless of the
distance traveled.''
The committee report accompanying this bill said that this
provision ``would ensure that the Secretary enforces Federal motor
carrier safety regulations that apply to interstate CMVs designed to
transport between 9 and 15 passengers, regardless of the distance
traveled.'' Sen. Report No. 109-120 (109th Cong. 1st Sess., July 29,
2005), at 20.
In the House of Representatives, similar language was found in
section 4130 of an early version H.R. 3 (109th Cong, 1st Sess., 2005),
which stated ``[t]he Federal motor carrier safety regulations (other
than regulations relating to commercial drivers license and drug and
alcohol testing requirements) shall apply to all interstate operations
of commercial motor vehicles used to transport between 9 and 15
passengers (including the driver), regardless of the distance
traveled.'' House Report 109-12 (109th Cong., 1st Sess., March 7,
2005), at 306.
The House committee report described the purpose of this provision
as follows:
``This section directs the Secretary to extend the
Federal motor carrier safety regulations found in 49 Code of Federal
Regulations, Parts 387, 390 through 399 to all operations of
commercial motor vehicles designed to transport between nine and
[[Page 4997]]
fifteen passengers (including the driver), regardless of their
operational distance. This section amends the final rule issued by
DOT on August 12, 2003.
The Committee intends the Secretary to address this
situation through the rulemaking process. As part of the rulemaking,
the Secretary shall amend the final rule addressing commercial motor
vehicles transporting nine to fifteen passengers to specifically
exclude vanpool operations as defined by section 132(f) of the
Internal Revenue Code. The rulemaking also exempts stretch sedan
limousines that are designed to seat nine to fifteen passengers. The
rulemaking does not exempt SUV stretch limousines, or super stretch
sedan limousines that are designed to seat sixteen or more
passengers (including the driver).''
House Report 109-12, at 441.
The House and Senate conferees included in section 4136 of SAFETEA-
LU (as quoted above) a provision very similar to both the Senate and
House bills. But it reconciled the obviously different underlying
intentions of the two bodies with the following: ``The conference
adopts the identical House and Senate language applying the Federal
Motor Carrier Safety Regulations to interstate van operations. Further,
the conference agrees to exempt vanpool operations.''
House Conference Report No. 109-203 (109th Cong., 1st Sess., 2005)
at 1003. It appears from this history that the central, albeit narrow,
purpose of the statutory language ultimately adopted (which varied
little from the similar House and Senate proposals) was to apply,
regardless of the distance traveled, all FMCSRs applicable to
operations of vehicles designed to transport between 9 and 15
passengers (including the driver). Other than the change relating to
the distance traveled, other criteria determining the applicability of
the FMCSRs to such vehicles are unaffected by section 4136. The effect
of this central purpose on FMCSA's current regulations, and the changes
necessary to put it into effect, are discussed in more detail below.
However, it also appears the House committee's desire to exempt
``vanpool operations as defined in section 132(f) of the Internal
Revenue Code'' and ``stretch sedan limousines'' from the rule required
by section 4136 was not accepted by the conference between the two
chambers, and was not included in the final statutory language.\1\
Moreover, it is not clear if the reference in the Conference Report to
``vanpool operations'' was intended to refer to the same type of
operations described in the House report, and again the statutory
language of section 4136 does not include any exception or exemption
for ``vanpool operations.''
---------------------------------------------------------------------------
\1\ It is also not clear that the statutory language that passed
the House, which says nothing about any exceptions or exemptions,
would have been sufficient to require the implementation of the two
desired exemptions.
---------------------------------------------------------------------------
It is important to note that the Agency, like the courts, does not
have the authority to implement any of the exemptions contemplated by
the Conference Report or other legislative history. ``[I]n the absence
of a clearly expressed legislative intention to the contrary, the
language of the statute itself must ordinarily be regarded as
conclusive. * * * Unless exceptional circumstances dictate otherwise,
[w]hen we find the terms of a statute unambiguous, judicial inquiry is
complete.'' Burlington Northern R. Co. v. Oklahoma Tax Comm., 481 U.S.
454, 461 (1984) (internal quotations and citations omitted). In this
case, the unambiguous language of section 4136 is conclusive, and there
is no evidence of exceptional circumstances that would support a
different view as to the reach of the statute.
Background
On August 12, 2003 (68 FR 47860), FMCSA published a final rule
making 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.
These requirements were based on the Agency's: (1) understanding of the
requirements of section 212 of the Motor Carrier Safety Improvement Act
of 1999 [Pub. L. 106-159, 113 Stat. 1764, December 9, 1999]; (2)
analysis of comments submitted in response to previous rulemaking
actions concerning the passenger vehicle component of the CMV
definition at 49 U.S.C. 31132(1). (See section 4008(a)(2) of the
Transportation Equity Act for the 21st Century [Pub. L. 105-178, 112
Stat. 107, June 9, 1998]); and (3) analysis of crash data concerning
large vans. The Agency indicated that it believed this approach would
be more effective than other alternatives for responding to
congressional and public safety concerns about what is commonly
referred to as long-haul van operations for direct compensation
throughout the United States, including for-hire vans operated by
foreign-based motor carriers into and out of the United States for
direct compensation. The 2003 final rule recounted and reviewed the
several legislative changes and regulatory actions that preceded that
final rule.
All of the requirements adopted in that final rule applicable to
the operations of these smaller passenger-carrying vehicles for direct
compensation beyond a 75-air-mile radius are now made applicable by
this final rule, regardless of the distance traveled. This final rule
does not make any other changes in the applicability of the FMCSRs to
small-passenger-carrying vehicles. This means, for example, that
operators of such vehicles for indirect compensation are not subject to
the safety-related operational regulations in 49 CFR parts 390-399, and
are only subject to the provisions specifically included in amended 49
CFR 390.3(f)(6).
Similarly, this final rule would not apply to commuter vanpools
which FMCSA has previously indicated it did not believe Congress
intended for the Agency to regulate. Federal Motor Carrier Safety
Regulations; Definition of Commercial Motor Vehicle, 64 FR 48510, 48514
(Sept. 3, 1999) (IFR). The Agency stated in that IFR that the use of
the phrase ``for compensation'' in the definition of ``commercial motor
vehicle'' in 49 U.S.C. 31132(1)(B) meant that Congress intended for
regulation to ``be limited to vans operated in the furtherance of a
commercial enterprise, which is generally not the case for commuter
vanpools * * * [T]he agency does not intend to regulate commuter
vanpools that are not operated in the furtherance of a commercial
enterprise.'' During its subsequent consideration of regulations for
small passenger-carrying vehicles, the Agency did not indicate any
change in this view of the scope of its regulatory authority. Federal
Motor Carrier Safety Regulations; Definition of Commercial Motor
Vehicle (CMV); Requirements for Operators of Small Passenger-Carrying
CMVs, 66 FR 2756, 2761, 2763 (Jan. 11, 2001) (final rule); Safety
Requirements for Operators of Small Passenger-Carrying Vehicles Used in
Interstate Commerce, 66 FR 2767, 2769 (Jan. 11, 2001) (notice of
proposed rulemaking); and 68 FR 47860 (Aug. 12, 2003) (final rule).
Therefore, the FMCSRs were and are still not applicable to ``commuter
vanpools,'' and enactment of section 4136 of SAFETEA-LU did not change
this regulatory status.
On the other hand, the statute does have the effect of now applying
all of the operational FMCSRs to vanpools operated in furtherance of a
commercial enterprise within the 75 air-mile limit adopted in 2003.
Such operations would have been excluded from the application of the
FMCSRs only because of the distance traveled, and section 4136 has set
aside that limitation.
[[Page 4998]]
Finally, FMCSA also must point out that, as explained in the 1999
interim final rule, the operation of a van by an individual who
receives money from other participants in the vanpool is not considered
to be an operation in furtherance of a commercial enterprise. The
Agency ``does not believe that this type of arrangement should be
considered `for compensation' and does not intend to regulate such
operations.'' 64 FR 48514.
In summary, certain types of vanpool operations currently are not
subject to the FMCSRs for reasons other than the distance traveled.
Notwithstanding the absence of explicit statutory language in section
4136 concerning the apparent intention of the conference committee to
exempt ``vanpool operations,'' FMCSA believes that many types of
vanpool operations have not been subject to the FMCSRs, and that the
operative language of section 4136 does not change that situation.
Effect of the Final Rule
The FMCSA amends the FMCSRs to require that motor carriers
operating CMVs designed or used to transport between 9 and 15
passengers (including the driver) in interstate commerce for direct
compensation comply with the regulations contained in 49 CFR parts 390,
391, 392, 393, 395 and 396, regardless of the distance traveled.
These motor carriers must comply with the general requirements
under part 390, including but not limited to vehicle marking
requirements. Motor carriers must ensure that every self-propelled CMV
they operate is marked as specified in paragraphs (b), (c), and (d)
under 49 CFR 390.21, including among other things, the requirement to
mark the vehicle with the USDOT Number and the legal name or a single
trade name of the motor carrier operating the vehicle. The final rule
eliminates the exception under Sec. 390.3(f)(6)(ii) which permitted
small passenger-carrying vehicles operated within a 75 air-mile radius
of the normal work reporting location to be marked only with the USDOT
Number and to exclude the legal or trade name.
These motor carriers are required to ensure that each of their
drivers meets all of the minimum qualifications for interstate CMV
drivers prescribed in part 391, including physical qualifications and
maintaining records to document compliance.
The rules in part 392 regarding driving of CMVs also are
applicable. Part 392 requirements include general prohibitions against
the use of alcohol, drugs and other substances while operating a CMV or
operating a CMV while ill or fatigued. The motor carrier must ensure
that its drivers comply with rules governing operation of CMVs at
railroad grade crossings, practices to ensure a CMV is safely stopped,
fueling precautions, and other general prohibited practices such as
transporting unauthorized persons, towing or pushing loaded buses.
Motor carriers must meet all applicable requirements in part 393
concerning parts and accessories necessary for safe operation of a CMV.
Applicable requirements include, among other things, lamps, reflective
devices, and electrical wiring; brakes; glazing and window
construction; fuel systems; and emergency equipment.
Under part 395, motor carriers must ensure that their drivers
comply with the applicable hours-of-service requirements for motor
carriers of passengers. Most, if not all, operators of small-passenger
carrying vehicles within the 75 air-mile limit and their drivers will
be covered by the short-haul operations provisions of 49 CFR Sec.
395.1(e)(1). If the driver operates within a 100 air-mile radius of the
normal work-reporting location and the driver returns to that location
and is released from work within 12 consecutive hours after starting
work, then the driver must not drive more than 10 hours after 8 hours
off duty and must have at least 8 consecutive hours off duty separating
each 12 hours on duty. Drivers covered by these short-haul provisions
are not required to maintain a record-of-duty status (log book).
However, the employer must maintain for 6 months records of each
driver's time of both reporting for and being released from duty, and
the number of hours on duty each day.
In accordance with 49 CFR 395.5, any drivers who operate beyond a
100 air-mile radius from the normal work-reporting location must not
drive more than 10 hours after 8 consecutive hours off duty or operate
CMVs after being on duty more than 15 hours, following 8 consecutive
hours off duty. Furthermore, drivers must not drive after being on duty
60 hours in any 7 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). In addition, 49 CFR
395.8 requires these drivers to document the number of hours on duty
and the number of hours driving and record his/her duty status.
Although these hours-of-service requirements will now be applicable
to operators within the 75 air-mile limit, FMCSA does not believe that
they will impose any additional cost burdens, for purposes of assessing
either the costs of this final rule or the burden of information
collection. These operators are most likely not currently allowing
drivers to drive more than 10 hours or to be on duty more than 12 or 15
hours. The information collection requirements are usually and
customarily met by maintenance of payroll records by the operators in
the ordinary course of business for drivers covered by the short-haul
operations provisions.
In addition to the requirements described in the preceding
paragraphs, each motor carrier is required under part 396 to have a
systematic inspection, repair, and maintenance program for the CMVs it
operates, and to ensure that vehicles are in safe and proper operating
condition at all times. They are also required to maintain records to
document compliance with these rules. Motor carriers are required to
ensure that each vehicle is inspected at least once every 12 months by
a qualified inspector/mechanic and that any motor carrier employee who
is 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.
The FMCSA is not making the commercial driver's license and
controlled substances and alcohol testing requirements applicable to
operators of small passenger-carrying CMVs, because section 4136 does
not change the existing non-application of those requirements that
results from the statutory definition of CMV in 49 U.S.C. 31301(4) used
for those programs. Consequently, the passenger-carrying threshold for
CDL and controlled substances and alcohol testing requirements remains
at 16 passengers (including the driver).
New Entrant Program
The 2003 final rule required all motor carriers that operate CMVs
designed or used to transport between 9 and 15 passengers for direct
compensation to complete a motor carrier identification report (Form
MCS-150), and to obtain a USDOT Number. This included carriers
operating within the 75 air-mile exclusion. 49 CFR 390.3(f)(6). All
such carriers that have fulfilled the requirements of the 2003 final
rule would already be included in FMCSA's census of motor carriers and
would have been considered new entrants and subject to a limited new
entrant review to ensure their compliance with the very limited
requirements of the rule (i.e., maintaining an accident register and
marking of their CMVs).
[[Page 4999]]
Any carriers that have already registered will be subject to safety
requirements such as driver qualifications and hours of service and be
required to have appropriate safety management controls in place to
ensure compliance with the FMCSRs. However, any carriers not previously
registered will be considered new entrant motor carriers. Those
carriers will be covered by the revised New Entrant Safety Assurance
Process recently adopted by the Agency. 73 FR 76472 (Dec. 16, 2008).
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, to assign safety ratings, to take
remedial action when required, and to prohibit motor carriers receiving
a safety rating of ``Unsatisfactory'' from operating a CMV. As a result
of this final rule, motor carriers operating small passenger-carrying
CMVs within a 75 air-mile radius of the driver's normal work-reporting
location 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 are subject to
compliance reviews and will receive safety ratings. Those 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.
Implementation Schedule
The FMCSA is requiring that subject motor carriers comply with the
safety requirements 30 days after the effective date of the final rule.
This means that motor carriers have approximately 120 days after the
date of publication of this rule to comply with the safety regulations.
The Agency believes this is sufficient time for the motor carriers that
will be affected to establish and implement safety management controls
to achieve compliance with the FMCSRs.
Estimated Costs and Benefits of Imposing Safety-Related Requirements
The 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 FMCSA estimates that approximately 12,200 motor carriers
currently have active authority to operate 9- to 15-passenger vehicles
for direct compensation. These 12,200 motor carriers operate
approximately 43,200 small passenger vehicles and employ roughly 57,900
drivers, all of which could potentially be affected by this rule. The
cost to complete medical examinations and certifications for drivers,
create and maintain driver qualification files, and inspect, repair and
maintain affected vehicles is estimated at $29 million for the first
year and $22 million for each additional year the rule is in effect. A
regulatory evaluation has been prepared and is available in the docket
for this rulemaking.
The FMCSA estimates there are 558 fatal crashes each year involving
large vans with between 9 and 15 passengers aboard at the time of the
crash (at a cost of $6.315 million per crash). The Agency estimates
there are 2,234 injury crashes each year involving 9- to 15-passenger
vehicles (at a cost of $0.336 million per crash). Therefore, the annual
reduction in crashes necessary for the benefits of the proposal to
outweigh the costs is only two-thirds of one percent (0.67%) of all
such crashes for the first year and one-half of one percent (0.51%) for
each additional year thereafter. The Agency believes the increased
focus on passenger carrier operations brought about by this rulemaking
will help to accomplish an improvement in safety.
Rulemaking Analyses and Notices
Under the Administrative Procedure Act (APA) (5 U.S.C. 553(b)), an
Agency may waive the normal notice and comment requirements if it
finds, for good cause, that they are impracticable, unnecessary, or
contrary to the public interest.
In this case, notice and comment are unnecessary. The final rule
amends FMCSA's regulations to make them consistent with section 4136 of
SAFETEA-LU, a provision which makes the FMCSRs applicable to the
operation of 9- to 15-passenger vehicles when such vehicles are
operated for direct compensation, in interstate commerce, regardless of
the distance traveled.
Because the statutory language does not provide FMCSA any
discretion in adopting the necessary changes to its regulations, FMCSA
finds good cause under 5 U.S.C. 553(b) that prior notice and comment on
this final rule is unnecessary.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FMCSA has determined that this rulemaking action is a not a
significant regulatory action within the meaning of Executive Order
12866 and is not significant within the meaning of Department of
Transportation regulatory policies and procedures because there has not
been substantial public interest concerning the extension of the
applicability of the FMCSRs to a larger population of for-hire motor
carriers of passengers.
This final rule requires that for hire operators of vehicles
designed or used to carry between 9 and 15 passengers (including the
driver) in interstate commerce comply with applicable provisions of 49
CFR parts 325 and 350-399 when the commercial vehicle is operated
within a 75 air-mile radius (86.3 statute miles or 138.9 kilometers)
from the driver's normal work-reporting location. These regulations
include, but are not limited to, 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
on the basis that the benefits justify the costs. Based upon the
information above, the agency anticipates that the economic impact
associated with this rulemaking action will be $29 million for the
first year, and $22 million for each subsequent year. The benefits of
reducing fatal and injury crashes by 0.51% annually (0.67% in the first
year) would outweigh the estimated costs of the rule.
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 evaluation is not necessary.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), FMCSA has considered the effects of this regulatory action on
small entities and determined that this final rule would not affect a
substantial number of small entities, but would have a significant
impact on those affected.
The FMCSA is requiring that all motor carriers operating CMVs
designed or used to transport between 9 and 15 passengers in interstate
commerce be
[[Page 5000]]
made subject to the safety-related operational FMCSRs when they are
directly compensated for such services. This includes carriers
operating such vehicles within a 75 air-mile radius (86.3 statute miles
or 138.9 kilometers) from the driver's normal work-reporting location.
These motor carriers would be required to comply with 49 CFR parts 390,
391, 392, 393, 395, and 396.
If most or all of these businesses are classified as small
businesses by the Small Business Administration (SBA), the rule could
potentially affect up to approximately 12,200 small entities. However,
some of these small entities may be foreign-based motor carriers that
the agency is not required to include in the Regulatory Flexibility Act
analysis. To avoid underestimating the potential impact on small
entities, FMCSA is using an estimate of 12,200.
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, 393, and 396 is approximately $29 million for
the first year and $22 million per year thereafter. If the costs of the
rulemaking are distributed evenly among these 12,200 motor carriers,
the costs per carrier would be approximately $2,400 for the first year
the requirements are in effect, and about $1,800 per year thereafter. A
summary of the estimated costs per motor carrier is presented below.
Summary of Costs per Motor Carrier To Comply With the FMCSRs
------------------------------------------------------------------------
Cost of First year Each year
------------------------------------------------------------------------
Medical Exam and Certification...... $1,556 $1,019
Create Driver Qualification Files... 62 40
Inspection, Repair, Maintenance 751 751
Process............................
-----------------------------------
Grand Total Cost................ 2,369 1,810
------------------------------------------------------------------------
The FMCSA has reviewed data from the SBA to determine the typical
revenues for a motor carrier in the intercity and rural bus
transportation segment of the industry. This category description
appeared to be similar to the types of motor carrier operations that
would be covered by this rulemaking. The SBA's 1997 tables on
``Employer Firms, Employment and Estimated Receipts by Employment Size
of Firm'' separated the firms into three groups: Those with less than
20 employees, those with less than 500 employees, and those with 500 or
more employees.
The FMCSA focused on the group with less than 20 employees to be
consistent with the Agency's estimate of the number of drivers employed
by each of the 12,200 motor carriers likely to be affected by this
rule. The SBA data indicated there are 145 firms in this category with
combined revenues of $41,793,000. For the purpose of this analysis, the
revenues for the businesses in this group were divided by the number of
firms resulting in an estimate of $288,227 in revenues per year for
each carrier [($41,793,000/145 firms)].
The costs per carrier associated with this rule would, on average,
be approximately four-fifths of one percent (0.82%) of their revenues
[($2,369 costs per carrier)/($288,227 revenues per carrier)] for the
first year (and about three-fifths of one percent in any subsequent
year (0.0063 = $1,810/$288,227).
Given the cost per carrier of this rulemaking, it is important to
remember that the new rule, by reducing crashes, could also lower the
costs of operation--and for the average small business, a reduction of
just one injury crash every 142 years ($336,220/$2,369 = 142) would be
enough for the benefits to outweigh the cost of this rulemaking.
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.
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.
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.
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 has determined
that this final rule will impact three currently-approved information
collections.
OMB Control No. 2126-0003--Inspection, Repair and Maintenance
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, 2012.
The FMCSA estimates that it will take a total annual expenditure of
11 hours and 53 minutes per year per CMV to complete the required
recordkeeping related to vehicular inspection, repair, and maintenance
(48 minutes per vehicle per year for systematic inspection, repair, and
maintenance; 5 minutes per year per vehicle for periodic inspection;
and 11 hours per year per vehicle for driver vehicle inspection
reports). The driver vehicle inspection report component requires 2
minutes 35 seconds to complete and review one report per work day when
a driver finds no defects, and 3 minutes 20 seconds to complete and
review one report and certify that repairs have been made when a driver
finds a defect. FMCSA assumes that defects are discovered in 5 percent
of driver inspections. On average, the annual burden per vehicle for
driver inspection is 11 hours [250 working days per year x ((95% no
defects x 2 minutes 35 seconds) + (5% defects x 3 minutes 20 seconds) /
60 minutes per hour) = 10.92 hours = 11 hours rounded].
Evidence of a person's qualifications to perform periodic vehicle
inspections must be retained by the motor carrier. Evidence of a
person'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
[[Page 5001]]
director, driver supervisor, or equivalent position for each type of
inspector. Based on an estimate of 12,200 motor carriers that will be
subject to the final rule and on the assumption that each motor carrier
has at least one employee who is a qualified periodic vehicle inspector
and one employee who is a qualified brake inspector, the estimated
total time burden related to the inspector qualifications requirement
is approximately 2,034 hours [(5 minutes for each periodic vehicle
inspector certification x 12,200 motor carriers = 1,016.66 hours =
1,017 hours rounded) + (5 minutes for each brake inspector
certification x 12,200 motor carriers = 1,016.66 hours = 1,017 hours
rounded) / 60 minutes per hour].
The FMCSA estimates that the total inspection, repair, and
maintenance recordkeeping burden is approximately 515,394 hours in Year
1 [(43,200 CMVs x 11 hours 53 minutes per year per CMV) / 60 minutes
per hour = 513,360 hours + (2,034 hours in the first year for inspector
qualifications) = 515,394 hours] and 513,360 hours in subsequent years.
[515,394 hours - 2,034 hours (one-time, non-recurring requirement) =
513,360]. FMCSA has submitted the amended, inspection, repair, and
maintenance information collection to the OMB for review and approval.
OMB Control No. 2126-0004, Driver Qualification Files
The FMCSA estimates that there are currently 7,000,000 CMV drivers
subject to the FMCSRs. This new regulation governing 9-15 passenger
vans will subject approximately 57,900 additional CMV drivers, and
their motor carriers, to the rules pertaining to the driver
qualification file, or ``DQ file,'' for the first time.
The regulations pertinent to the qualifications of CMV drivers are
contained in 49 CFR part 391. The evidence of each driver's
qualifications is housed in a DQ file under that driver's name. This
file must be made available to FMCSA investigators during a compliance
review of the motor carrier. The creation, collection and maintenance
of this evidence impose numerous paperwork burdens. FMCSA has prepared
detailed descriptions of the burden of each of the paperwork-related
tasks. These descriptions are included in the supporting statement
FMCSA has filed with the OMB (OMB Control 2126-0004) contemporaneously
with publication of this final rule. That document provides a full
explanation of the paperwork burden imposed on the 9-15 passenger van
industry today and details its small increase in the overall paperwork
burden of the DQ file requirements. Because current drivers will not
have to re-apply for their positions, the burden associated with
certain aspects of the application process will not be incurred when
the rule becomes effective, but will be incurred in subsequent years as
driver positions become vacant and will need to be filled. Conversely,
current drivers will require driver record and safety performance
investigations when the rule becomes effective, but the annual review
of these qualifications will only occur in subsequent years.
The various tasks of the DQ file requirements fall into 3
categories: Driver hiring, annual review of driving record, and safety
history responsibilities. Driver hiring includes the driver's
employment application, which FMCSA estimates requires 15 minutes on
average for the driver to complete, plus 1 minute for the motor carrier
to review. Driver hiring also includes obtaining a copy of the official
driving record of the driver from the appropriate jurisdiction(s).
FMCSA estimates that this takes an average of 5 minutes. FMCSA
estimates that the background investigation of the driver by the motor
carrier takes an average of 20 minutes, and that the carrier's
notification of the driver of his or her right to review and rebut
elements of the investigation takes 1 minute per driver. The small
percentage of CMV drivers who choose to review their history will, the
Agency estimates, take an average of 5 minutes to do so. The total
revised paperwork burden of these driver hiring tasks is 2,241,491
hours in the first year.
The annual review of driving record includes the certificate of
violations of traffic laws in the past year that is completed by the
CMV driver. This task requires an average of 2 minutes. The motor
carrier's request for the official driving record of the driver, its
review of the record when received, and filing it, takes an average of
5 minutes. For multiple-employer drivers, the Agency estimates only 1
minute is necessary because there is no requirement to obtain the
official driving record on these drivers. When the driver is furnished
to a motor carrier by the driver's regular employer, the Agency
estimates that this task takes 3 minutes. The total revised paperwork
burden of all the tasks related to the review of driving record is
838,834 hours in the first year.
Certain tasks related to the CMV driver's safety performance
history must be performed by the CMV driver, as well as some performed
by the hiring motor carrier, when a driver seeks to rebut the history
that previous employers have provided to the hiring motor carrier.
First, the driver-applicant consumes 3 minutes in drafting his or her
request for a copy of the safety performance history. Second, the
hiring motor carrier consumes an average of 3 minutes per request in
providing that record to the driver. Finally, those CMV drivers who
choose to formally rebut all or portions of the safety performance
history consume approximately 30 minutes in drafting and forwarding the
necessary information. The total revised paperwork burden of all the
tasks related to these driver history tasks is 198,380 hours in the
first year.
As stated, the additional DQ file paperwork burden in year one will
differ from that in all subsequent years. The only initial burden
during the first year will be 24,125 hours to obtain driver records (5
minutes) and safety performance histories (20 minutes) on the 57,900
current 9-15-passenger van drivers. In subsequent years, there will be
18,341 hours of additional burden related to hiring drivers to fill
current positions that have become vacant; an additional 6,939
associated with the annual review of driver qualifications; and an
additional 1,641 hours for other tasks associated with the safety
performance history. In sum, the additional paperwork burden incurred
by the 9-15 passenger drivers and motor carriers with respect to DQ
files will be 26,921 hours (18,341 + 6,939 + 1,641) in subsequent
years. When 24,125 hours are added to the currently-approved DQ file
paperwork burden of 3,254,580 hours, the estimated paperwork burden of
the DQ requirements increases to 3,278,705 burden hours, an increase of
less than 1 percent in the first year.
OMB Control No. 2126-0006, Medical Qualification Requirements
Drivers of CMVs designed or used to transport between 9 and 15
passengers for direct compensation will be required to meet the medical
examination and certification requirements at 49 CFR part 391, subpart
E. The information collection requirements related to medical
qualification requirements have been approved by OMB under the
provisions of the PRA and assigned OMB Control No. 2126-0006, which
expires on May 31, 2012.
Under this final rule, approximately 57,900 additional drivers will
be subject to FMCSA physical qualification standards. A medical
certificate usually is valid for 2 years after the date of examination.
However, drivers with certain medical conditions must be certified more
frequently than every 2 years. In addition, some employers require
newly hired drivers to obtain a new medical certification even if the
[[Page 5002]]
driver's current certificate is still valid. As a result of these
exceptions to the biennial medical certification schedule, the Agency
estimates that the actual number of medical certifications conducted
annually is 31 percent greater than would be the case if all drivers
were only examined biennially. Biennial examinations would result in
approximately 28,950 medical examinations per year, but the Agency
estimates that approximately 37,925 examinations are conducted annually
[28,950 regular medical examinations x 1.31 (31% out-of-cycle medical
examinations + 28,950 regular medical examinations) = 37,925].
It takes a medical examiner approximately 20 minutes to complete,
document, and file the medical examination report and 1 minute to
complete the medical examiner's certificate and furnish one copy to the
person who was examined and one copy to the motor carrier who employs
him or her. It takes a motor carrier approximately 1 minute to file the
medical certificate. Therefore, the annual time burden for the medical
examination and certificate requirement is approximately 13,906 hours
per year [(37,925 certificates x 22 minutes per certificate per year) /
60 minutes per hour = 13,905.83 hours = 13,906 rounded]. FMCSA has
submitted the amended, medical qualification information collection to
the OMB for review and approval.
The total estimated additional time burden imposed by this final
rule will be 553,425 hours in Year 1 and 554,187 hours in subsequent
years as illustrated in the following table:
----------------------------------------------------------------------------------------------------------------
Additional
Additional burden hours
Currently burden hours associated with
OMB control No. approved annual associated with the final rule
burden hours the final rule in subsequent
in Year 1 years
----------------------------------------------------------------------------------------------------------------
2126-0003................................................. 59,214,494 515,394 513,360
2126-0004................................................. 3,254,580 24,125 26,921
2126-0006................................................. 1,682,701 13,906 13,906
-----------------------------------------------------
Total................................................. 64,151,775 553,425 554,187
----------------------------------------------------------------------------------------------------------------
National Environmental Policy Act
The FMCSA has analyzed this rulemaking in accordance with all
statutory and regulatory policies under the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.). A copy of the final
environmental assessment is included in the docket for this rulemaking.
Unfunded Mandates Reform Act of 1995
This final rule does not impose an unfunded Federal mandate, as
defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532 et
seq.), that will result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $141.3
million or more in any one year.
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
to eliminate ambiguity, and to reduce burden.
Executive Order 13045 (Protection of Children)
FMCSA has analyzed this action under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This final rule is not an economically significant rule and does
not concern an environmental risk to health or safety that may
disproportionately affect children.
Executive Order 12630 (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.
Executive Order 13132 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132, dated August 4, 1999, and
it has been determined that this rulemaking does not have a substantial
direct effect or sufficient federalism implications on States that
would limit the policymaking discretion of the States. Nothing in this
document directly preempts any State law or regulation. This final rule
does not impose additional costs or burdens on the States.
List of Subjects in 49 CFR Part 390
Highway safety, Motor carriers, Motor vehicle identification and
marking, Reporting and recordkeeping requirements.
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For the reasons set forth in the preamble, FMCSA amends part 390 of
title 49, Code of Federal Regulations, as follows:
PART 390--[AMENDED]
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1. The authority citation for part 390 is revised to read as follows:
Authority: 49 U.S.C. 508, 13301, 13902, 31132, 31133, 31136,
31144, 31151, 31502, 31504; sec. 204, Pub. L. 104-88, 109 Stat. 803,
941 (49 U.S.C. 701 note); sec. 114, Pub. L. 103-311, 108 Stat. 1673,
1677; sec. 212, 217, 229, Pub. L. 106-159, 113 Stat. 1748, 1766,
1767, 1773; sec. 4136, Pub. L. 109-59, 119 Stat. 1144, 1745 and 49
CFR 1.73.
Sec. 390.3 [Amended]
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2. In Sec. 390.3, remove paragraph (f)(6)(ii) and redesignate
paragraph (f)(6)(i) as paragraph (f)(6).
Issued on: January 26, 2010.
Anne S. Ferro,
Administrator.
[FR Doc. 2010-1955 Filed 1-29-10; 8:45 am]
BILLING CODE 4910-EX-P