Final Rule entitled Safety Requiements for Operators of Small Passenger-Carrying Commercial Motor Vehicles Used in Interstate Commerce

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comply with the requirements in
§§ 2.1091 and 2.1093 of this chapter for
Satellite Communications Services
devices. Applications for equipment
authorization of mobile or portable
devices operating under this section
must contain a statement confirming
compliance with these requirements for
both fundamental emissions and
unwanted emissions. Technical
information showing the basis for this
statement must be submitted to the
Commission upon request.
(d) Applicants for an ancillary
terrestrial component authority shall
demonstrate that the applicant does or
will comply with the provisions of
§§ 1.924 and 25.203(e) through 25.203(g)
and with §§ 25.252, 25.253, or 25.254, as
appropriate, through certification or
explanatory technical exhibit.
(e) Except as provided for in
paragraph (f) of this section, no
application for an ancillary terrestrial
component shall be granted until the
applicant has demonstrated actual
compliance with the provisions of
paragraph (b) of this section. Upon
receipt of ATC authority, all ATC
licensees must ensure continued
compliance with this section and
§§ 25.252, 25.253, or 25.254, as
appropriate.
(f) Special provision for operational
MSS systems. Applicants for MSS ATC
authority with operational MSS systems
that are in actual compliance with the
requirements prescribed in paragraphs
(b)(1), (b)(2), and (b)(3) of this section at
the time of application may elect to
satisfy the requirements of paragraphs
(b)(4) and (b)(5) of this section
prospectively by providing a substantial
showing in its certification regarding
how the applicant will comply with the
requirements of paragraphs (b)(4) and
(b)(5) of this section. Notwithstanding
§ 25.117(f) and paragraph (e) of this
section, the Commission may grant an
application for ATC authority based on
such a prospective substantial showing
if the Commission finds that operations
consistent with the substantial showing
will result in actual compliance with
the requirements prescribed in
paragraphs (b)(4) and (b)(5) of this
section. An MSS ATC applicant that
receives a grant of ATC authority
pursuant to this paragraph (f) shall
notify the Commission within 30 days
once it begins providing ATC service.
This notification must take the form of
a letter formally filed with the
Commission in the appropriate MSS
license docket and shall contain a

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certification that the MSS ATC service
is consistent with its ATC authority.
[FR Doc. 03–20325 Filed 8–11–03; 8:45 am]
BILLING CODE 6712–01–P

DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
49 CFR Parts 390 and 398
[Docket No. FMCSA–2000–7017]
RIN 2126–AA52

Safety Requirements for Operators of
Small Passenger-Carrying Commercial
Motor Vehicles Used In Interstate
Commerce
AGENCY: Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Final rule.
SUMMARY: FMCSA amends the Federal
Motor Carrier Safety Regulations
(FMCSRs) to require that motor carriers
operating commercial motor vehicles
(CMVs), designed or used to transport
between 9 and 15 passengers (including
the driver) in interstate commerce, must
comply with the applicable safety
regulations when they are directly
compensated for such services and the
vehicle is operated beyond a 75 air mile
radius (86.3 statute miles or 138.9
kilometers) from the driver’s normal
work-reporting location. The agency has
revised its proposed distance threshold
to focus on the distance that the driver
operates the vehicle, as opposed to the
distance that the passengers are
transported. These motor carriers,
drivers, and vehicles are now, through
this rule, subject to the same safety
requirements as motor coach operators,
except for the commercial driver’s
license, and controlled substances and
alcohol testing regulations. This rule
implements section 212 of the Motor
Carrier Safety Improvement Act of 1999
(MCSIA).
DATES: This final rule is effective on
September 11, 2003. Compliance Date.
Affected motor carriers must be in
compliance with this rule no later than
November 10, 2003.
ADDRESSES:
Assistance for Small Entities: The
Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104–121)
requires the FMCSA to comply with
small entity requests for information or
advice about compliance with statutes
and regulations within FMCSA’s
jurisdiction. Thus, if any small entity,
organization, or governmental

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jurisdiction has a question regarding
this document, please contact an
FMCSA Division office in your State or
an FMCSA Service Center for a given
geographic area. For phone numbers
and addresses, go to http://
www.fmcsa.dot.gov/aboutus/fieldoffs, or
call 1–800–832–5660, or Fax (202) 366–
8842, FMCSA, Attn: Commercial
Passenger Carrier Safety Division (MC–
PSB), Washington, DC 20590.
Docket: For access to the docket to
read background documents or
comments received, go to http://
dms.dot.gov at any time or to Room PL–
401 on the plaza level of the Nassif
Building, 400 Seventh Street, SW.,
Washington, DC, between 9 am and 5
pm, Monday through Friday, except
Federal Holidays.
FOR FURTHER INFORMATION CONTACT: Mr.
Larry W. Minor, (202) 366–4009, Chief,
Vehicle and Roadside Operations
Division (MC–PSV); or Mr. Philip J.
Hanley, (202) 366–9131, Commercial
Passenger Carrier Safety Division (MC–
PSB), Federal Motor Carrier Safety
Administration, 400 Seventh Street,
SW., Washington, DC 20590. Office
hours are from 7:45 a.m. to 4:15 p.m.,
e.t., Monday through Friday, except
Federal holidays.
SUPPLEMENTARY INFORMATION:
Background
Congressional Mandate to Regulate
Small Passenger-Carrying Commercial
Motor Vehicles (CMVs)
Section 212 of the Motor Carrier
Safety Improvement Act of 1999
(MCSIA), (Pub. L. 106–159, 113 Stat.
1748, December 9, 1999), requires that
the FMCSA make its safety regulations
applicable to: (1) Commercial vans
referred to as ‘‘camionetas,’’ and (2)
those commercial vans operating in
interstate commerce outside of
commercial zones that have been
determined to pose serious safety risks.
Prior to enactment of the MCSIA,
section 4008(a)(2) of the Transportation
Equity Act for the 21st Century (TEA–
21) Public Law 105–178, 112 Stat. 107,
June 9, 1998) amended the passengervehicle component of the commercial
motor vehicle (CMV) definition in 49
U.S.C. 31132(1). CMV is now defined
statutorily to mean a self-propelled or
towed vehicle used on the highways in
interstate commerce to transport
passengers or property, if the vehicle—
(A) has a gross vehicle weight rating
or gross vehicle weight of at least 10,001
pounds, whichever is greater;
(B) is designed or used to transport
more than 8 passengers (including the
driver) for compensation;

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(C) is designed or used to transport
more than 15 passengers, including the
driver, and is not used to transport
passengers for compensation; or
(D) is used in transporting material
found by the Secretary of Transportation
to be hazardous under section 5103 of
this title and transported in a quantity
requiring placarding under regulations
prescribed by the Secretary under
section 5103.
Under section 4008(b) of the TEA–21,
operators of the CMVs defined by
section 31132(1)(B) would automatically
become subject to the FMCSRs one year
after the date of enactment of the TEA–
21, if they were not already covered,
‘‘except to the extent that the Secretary
[of Transportation] determines, through
a rulemaking, that it is appropriate to
exempt such operators of commercial
motor vehicles from the application of
those regulations.’’ Section 4008(b) of
the TEA–21 is a mandate either to
impose the FMCSRs on previously
unregulated smaller-capacity passenger
vehicles, or to exempt through notice
and comment rulemaking some or all of
the operators of such vehicles.
On September 3, 1999, the Federal
Highway Administration (FHWA)
published an interim final rule to adopt
the new statutory definition of a CMV
(64 FR 48510).1 The agency revised its
regulatory definition of CMV to be
consistent with the statute, but
exempted the operation of these small
passenger-carrying vehicles from all of
the FMCSRs pending the completion of
a separate rulemaking in which the
agency proposed requiring operators of
such vehicles to file a motor carrier
identification report, mark their CMVs
with a USDOT identification number
and certain other information, and
maintain an accident register. The
notice of proposed rulemaking (NPRM)
for that rule was also published on
September 3, 1999, at 64 FR 48518.
On January 11, 2001 (66 FR 2756), the
FMCSA published a final rule that
amended 49 CFR 390.5 to adopt the
statutory definition of ‘‘commercial
motor vehicle’’ published in the interim
final rule on September 3, 1999. The
final rule also revised § 390.3(f)(6) to
require that all operators of CMVs
designed or used to transport between 9
and 15 passengers for compensation (1)
complete a motor carrier identification
1 The MCSIA established the FMCSA in the
Department of Transportation. On January 4, 2000,
the Office of the Secretary published a final rule
rescinding the authority previously delegated to the
former Office of Motor Carrier Safety (OMCS)
within FHWA (65 FR 220). This authority is now
delegated to the FMCSA. Rulemaking, enforcement,
and other activities of the former OMCS while part
of the FHWA are now administered by the FMCSA.

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report (Form MCS–150) (49 CFR
390.19); (2) comply with certain
provisions of the CMV marking
regulation (49 CFR 390.21); and (3)
maintain an accident register (49 CFR
390.15). These actions were intended to
enable the agency to monitor the
operational safety of all motor carriers
operating small passenger-carrying
vehicles for compensation. In addition,
the three requirements were intended to
help the agency compile information on
the number of motor carriers operating
small passenger-carrying vehicles for
compensation, the location of their
principal places of business, the number
of vehicles operated, and the number of
drivers employed.
On January 11, 2001 (66 FR 2767),
FMCSA also published an NPRM for
this proceeding. Section 212 of MCSIA
required FMCSA to complete a
rulemaking to determine whether motor
carriers operating motor vehicles
designed or used to transport between 9
and 15 passengers (including the driver)
for compensation should be covered by
the FMCSRs. Congress directed that, as
a minimum, the regulations shall apply
to (1) commercial vans referred to as
‘‘camionetas,’’ and (2) those commercial
vans operating in interstate commerce
outside of commercial zones that have
been determined to pose serious safety
risks.
This final rule makes the FMCSRs
applicable to all motor carriers
operating CMVs, designed or used to
transport between 9 and 15 passengers
(including the driver), in interstate
commerce for ‘‘direct compensation’’
when the vehicle is operated beyond a
75 air mile radius (86.3 statute miles or
138.9 kilometers) from the driver’s
normal work-reporting location. This
decision is based on: (1) The FMCSA’s
understanding of Congress’s and the
commercial passenger carrier industry’s
usage of the term ‘‘camionetas’’; (2)
analysis of comments submitted in
response to the agency’s August 5, 1998
(63 FR 41766) advance notice of
proposed rulemaking (ANPRM)
concerning the definition of CMV; (3)
analysis of comments submitted in
response to the September 3, 1999
interim final rule and NPRM; (4)
analysis of comments submitted in
response to the January 11, 2001 NPRM;
and (5) an analysis of accident data
concerning commercial van
transportation of passengers. The agency
believes that this approach will be more
effective than other alternatives for
responding to congressional and public
safety concerns about the use of small
passenger-carrying CMVs in long-haul
for-hire operations throughout the
United States, including such

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operations for compensation by foreignbased motor carriers to and from the
United States.
Covered Camioneta Operations
Furthermore, section 212 of the
MCSIA requires the agency to make the
safety regulations applicable to
camioneta operations. The statute did
not define the term camioneta, but
Congress issued an explanatory
statement (see 145 Cong. Rec. H12868,
at H12873, November 18, 1999) that
suggests camioneta operations are those
that involve transporting passengers
from Mexico to the United States and
vice versa.
FMCSA does not have information
concerning the number of motor carriers
with CMV operations that fit the
description of camioneta. The Texas
Department of Public Safety, in
comments to the September 3, 1999
interim final rule and NPRM published
on the same day, described camioneta
operations as those transporting
passengers ‘‘between major cities in
Texas and the other southern States to
and from our borders with Mexico.’’
Based on analysis of the National
Highway Traffic Safety Administration
(NHTSA) Fatality Analysis Reporting
System (FARS), the agency believes the
accident data suggest that, if there are
fatal accidents involving these
operators, the vast majority of vehicles
appear to be registered in the United
States. While they may travel between
points in Mexico and the United States,
the vehicles are not necessarily based in
Mexico.
Rather than adopting a rule that
specifically targets, in part, vehicles that
actually cross the border, FMCSA
continues to believe section 212 should
be implemented by focusing on the
distance traveled. The distance-based
approach used in this final rule will
capture CMV operators that transport
passengers from the U.S.-Mexico border
to major cities in Texas and other States.
Carriers that actually cross the border
will also be covered, but only in those
instances where the driver operates the
vehicle beyond a 75 air-mile radius from
his or her normal work-reporting
location. The distance the driver
operates could be determined by
enforcement personnel, by questioning
the drivers about their employers, and
by reviewing any available paperwork
concerning the origin and the
destination, regardless of which side of
the U.S.-Mexico border the trip begins
or ends.
Alternatives Considered
Several alternatives or options to
implement section 212 of MCSIA were

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considered. They included making the
safety-related operational FMCSRs
applicable to: (1) All motor carriers
operating small passenger-carrying
CMVs in interstate commerce for
compensation (direct and indirect),
irrespective of the distance traveled; (2)
all motor carriers operating small
passenger-carrying CMVs in interstate
commerce that are directly
compensated, irrespective of the
distance traveled; and (3) only those
motor carriers operating small
passenger-carrying CMVs across the
U.S.-Mexico border for compensation.
FMCSA believes the alternative being
implemented through this final rule will
improve the safety performance of forhire motor carriers that pose a serious
safety risk to their customers and the
traveling public, while avoiding to the
greatest extent practicable, the
imposition of Federal safety regulations
on van operations that are local in
nature and appear to pose a significantly
lower level of safety risk.
Summary of Proposed Rulemaking
In the NPRM (66 FR 2767, January 11,
2001), the FMCSA requested public
comment on making the safety
regulations in parts 390, 391, 392, 393,
395 and 396, and the safety fitness rules
in part 385, applicable to motor carriers
operating CMVs designed or used to
transport between 9 and 15 passengers
(including the driver) in interstate
commerce, when they are directly
compensated for such services and the
transportation of any passenger covers a
distance greater than 75 air miles (86.3
statute miles or 138.9 kilometers). The
agency made clear that the operators of
these small passenger-carrying vehicles
would be subject to the same safety
requirements as motorcoach operations,
with the exception of the commercial
driver’s license, and controlled
substances and alcohol testing
regulations.
Commenters
FMCSA received 29 comments in
response to the NPRM. The commenters
were: Academy Bus Co. (Academy);
Advocates for Highway and Auto Safety
(Advocates); AFL-CIO Transportation
Trades Department (AFL-CIO);
Amalgamated Transit Union (ATU);
American Bus Association (ABA); the
Association for Commuter
Transportation (ACT); California
Highway Patrol (CHP); Colorado
Department of Public Safety (CDPS); the
Commercial Vehicle Safety Alliance
(CVSA); Farmworkers Justice Fund
(FJF); Greyhound Lines, Inc.
(Greyhound); League of United Latin
American Citizens (LULAC);

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Pennsylvania Bus Association (PBA);
Mr. Alan Jay Pomerance, a concerned
citizen; National Association of State
Directors of Pupil Transportation
Services (State Directors); National
Automobile Dealers Association
(NADA); National Council of La Raza
(NCLR); National Limousine
Association (NLA); National School
Transportation Association (NSTA);
New Jersey Department of
Transportation (NJDOT); Taxicab,
Limousine & Paratransit Association
(TLPA); Texas Bus Association (TBA);
Texas Department of Public Safety
(TXDPS); United Motorcoach
Association (UMA); and four college
students.
TXDPS, PBA, LULAC, NCLR and FJF
fully supported the proposal as
published. ABA, TBA, Greyhound,
Academy, CHP, CDPS, CVSA,
Advocates, ATU, NJDOT, AFL-CIO,
NSTA, State Directors, Mr. Pomerance,
and the four students were in favor of
the FMCSA’s rulemaking, although they
generally believed that more remains to
be done to protect public safety and
help level the playing field. Advocates
and UMA opposed the exclusion of
small passenger-carrying vehicle
operations within the proposed 75 air
mile range. NLA, TLPA, NADA, and
ACT, on the other hand, opposed
making the safety regulations applicable
to their members.
Discussion of Comments and FMCSA
Responses
Direct Compensation Criterion
Eight commenters opposed the direct
compensation criterion for determining
the applicability of the safety
requirements. Five commenters
supported making safety-related
operational regulations applicable to
vehicles designed or used to transport
between 9 and 15 passengers when the
company holds itself out to the public
as providers of transportation services,
or when a company is primarily
engaged in providing surface
transportation. ABA suggested that the
agency use the phrase ‘‘primarily
engaged in for-hire transportation.’’
ABA points out that in applying
requirements of the Americans with
Disabilities Act for over-the-road buses,
DOT used the terminology ‘‘primarily
engaged in transportation’’ in 1998
regulations (63 FR 51670, 51692;
September 1998).
Greyhound Stated
Greyhound’s major concern is that by
limiting applicability of the FMCSRs to
smaller passenger-carrying commercial motor
vehicles, the operators of which are ‘‘directly
compensated’’ for their transportation

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services, FMCSA may be creating
unnecessary confusion and an inappropriate
loophole. We agree that only carriers that are
‘‘compensated’’ for transportation be
regulated, it is the modifier, ‘‘directly’’ that
causes the potential problem.
ATU Stated:
[W]e urge the agency to then adopt one of
the alternative definitions provided by
Greyhound Lines, Inc. in its comments to the
proposed rule. Specifically, Greyhound
suggests that the regulations be applied to
transportation for compensation in smaller
vehicles provided by entities that either
‘‘hold themselves out to the public as
providers of transportation services’’ or ‘‘are
primarily engaged in providing surface
transportation.’’ We prefer the latter
formulation, but either one would provide a
clearer and more precise definition of the
regulated class than the ‘‘directly’’
compensated test, which would allow
organizations to avoid regulation by masking
the transportation fee within a ‘‘total package
charge’’ that includes other incidental
services.
NJDOT, CHP, and CDPS generally contend
that the proposed definition will lead to
additional regulatory and enforcement
problems.

Response: FMCSA agrees with
commenters that the rule should focus
first and foremost on motor carriers of
passengers that offer their services to the
general public. However, the agency
disagrees with commenters’ assertions
that the term ‘‘primarily engaged in
providing surface transportation’’ is a
better criterion for determining the
applicability of the FMCSRs to these
motor carriers. The term ‘‘primarily
engaged in providing surface
transportation’’ requires that both the
motor carrier and enforcement officials
consider all of the motor carrier’s
business activities before determining
whether the safety regulations apply.
Each entity that operates small
passenger-carrying vehicles for
compensation in interstate commerce,
regardless of the distance traveled, is
considered a motor carrier, as defined in
49 CFR 390.5. Motor carriers and
enforcement officials would have to
determine whether the percentage of
business that concerns the for-hire
transportation of passengers is sufficient
for the motor carrier to be primarily
engaged in providing surface
transportation. This may vary from
season to season, or year to year.
Generally, enforcement opportunities
would be limited to carrier visits, unless
enforcement officials conducting
destination inspections or similar
activities knew, or had reason to
believe, that the entity responsible for
the operation of the vehicle was
primarily engaged in providing surface
transportation of passengers.

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By contrast, the approach FMCSA
proposed and adopts makes the
FMCSRs applicable for each interstate
trip beyond a 75 air mile radius of the
driver’s normal work-reporting location,
regardless of the percentage of the motor
carrier’s business involving the for-hire
transportation of passengers. Motor
carriers and enforcement officials need
only determine the distance that the
vehicle would be operated (in the case
of the motor carrier planning a trip) or
was operated (in the case of the
enforcement official), and whether the
vehicle was being operated for direct
compensation. This could be
accomplished by interviewing the driver
and passengers to determine the nature
of the trip. The inspector need not know
about, and the motor carrier need not
estimate, the percentages of the
company’s business operations
involving for-hire passenger
transportation in order to determine
whether the FMCSRs are applicable to
the trip in question.
We believe that our approach
establishes a higher standard of safety
for the operators of small passenger
carrying vehicles than the approach
recommended by the commenters.
FMCSA’s approach makes the rules
applicable to every trip that meets the
criterion, regardless of whether the
entity is primarily engaged in
transportation. Conversely, commenters
would permit potentially unsafe
operators to legally continue their longhaul van operations, provided they were
not primarily engaged in the for-hire
transportation of passengers. FMCSA
believes that the approach adopted by
this rule achieves a higher standard of
safety.
Generally, only entities that assess a
fee, monetary or otherwise, directly for
the transportation of passengers would
be subject to the safety regulations. The
use of small passenger-carrying CMVs
for compensation, by such operators as
hotel/motel shuttle, rental car shuttle,
and whitewater river rafter transporter
services, using small passenger-carrying
CMVs, would not be subject to the
safety-related operational regulations,
irrespective of the distance traveled.
Since these businesses do not hold
themselves out to the public as
providers of transportation services and
generally operate over short distances,
FMCSA continues to believe that it is
not necessary to impose safety-related
operational regulations on them.
In response to Greyhound, the ATU,
and other commenter assertions that the
proposed rule would enable some motor
carriers to avoid safety oversight by
structuring their fees or fares as a total
package charge, FMCSA does not

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believe the nature of most of these
carrier operations is such that their
identity as for-hire motor carriers of
passengers can be effectively concealed.
In such instances, carriers would have
to devise a scheme wherein they would
provide some other substantive service
so that the transportation by motor
vehicle of the passenger is incidental to
some other function. Given that most
passengers of these motor carriers
expect to depart specific locations at
specific times, and arrive at their
destinations in a timely manner, it is
unlikely the motor carriers this rule is
intended to cover could maintain
effective customer relationships by
engaging in activities that would
increase significantly the time required
to complete a trip, or the fares
customers must pay for the
transportation service. In addition to
differences in the nature of the
transportation service, FMCSA believes
the market forces of supply and demand
and competitive pricing would
discourage a commercial operator of a
small passenger-carrying vehicle from
employing this strategy to avoid
regulation. Motor carriers that employ
this strategy would place themselves at
an economic disadvantage with other
for-hire carriers that provide
transportation services between the
same locations.
75 Air-Mile Criterion
FMCSA proposed making the safety
regulations applicable when the
transportation of any passenger covers a
distance greater than 75 air miles.
Greyhound and the ABA supported the
75 air-mile standard. However, fifteen
commenters opposed the standard.
The CVSA argued that commercial
motor vehicles should be subject to the
FMCSRs regardless of how far they
travel. The State Directors stated a
distance-based approach to applying the
FMCSRs to commercial vans is neither
reasonable nor feasible. The State
Directors opined that the 37 percent of
fatal van crashes at distances less than
75 miles is a substantial number and
should not be ignored.
Response: FMCSA carefully analyzed
accident data from the NHTSA Fatality
Analysis Reporting System (FARS).
Based on this analysis, FMCSA
determined, to the greatest extent
practicable, that vans most likely to
pose a safety risk were those operating
at a distance approximately 75 air miles
or more from the driver’s work-reporting
location. The methodology for
estimating this distance is explained
below.
FMCSA reviewed the data fields in
FARS to determine whether it would be

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possible to estimate the distance a large
van may have traveled prior to being
involved in the fatal accident, and if
there was any way to identify those
accidents most likely to have involved
interstate transportation. The agency
determined that FARS could provide
potentially useful information to help
identify the accidents most likely to
have involved interstate transportation,
based on a comparison of data fields for
the State in which the vehicle crashed,
the State in which the vehicle was
registered, and the State of the driver’s
license.
FMCSA estimated the approximate
distance between the geographic area of
the driver’s residential zip code and the
county and State in which the crash
took place. The distances were
computed for almost all fatal accidents
involving a large van transporting 9 or
more people at the time of the accident
for calendar years 1996, 1997, and 1998.
The agency operated under the
assumption that the most likely trips to
be considered interstate in nature are
ones in which the State of registration
of the vehicle and State of issuance for
the driver’s license differ from the State
where the vehicle crashed.
There were 161 fatal accidents
between 1996 and 1998 (49 crashes in
1996, 54 crashes in 1997, and 58 crashes
in 1998) in which the vehicle was
transporting 9 or more passengers at the
time of the crash. The FARS information
for seven of the accidents lacked one or
more of the data items needed for the
analysis. Two of the accidents involved
U.S. Government vehicles and were
excluded from the analysis since they
would not be covered by the
rulemaking—the FMCSRs include an
exception for transportation performed
by the Federal government, a State, or
any political subdivision of a State (49
CFR 390.3(f)). Five of the accidents
involved Mexico-licensed drivers
operating vehicles registered in the
United States and one involved a
Mexico-licensed driver operating a
vehicle for which the database did not
include registration information. It was
not possible to complete the distance
analysis for those accidents.
Of the remaining 146 fatal accidents
in which the large van was transporting
9 or more people at the time of the
crash, 45 of them (approximately 31
percent) appear to have been interstate
trips with the crash taking place in a
State other than the State where the
driver was licensed, and at a distance
greater than 100 statute miles from the
driver’s residence. The shortest distance
among the likely interstate trips was just
over 100 statute miles, while the longest
was more than 2,100 statute miles (a trip

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involving a driver licensed in California,
a large van registered in Oregon, and a
fatal crash in Louisiana).
Forty-seven of the 146 fatal accidents
(approximately 32 percent) appear to
have been intrastate trips with the fatal
accident taking place in the State where
the driver was licensed and where the
vehicle was registered, and at a distance
greater than 100 statute miles from the
driver’s residence. The shortest distance
among the likely intrastate trips was just
over 100 statute miles, while the longest
was more than 550 statute miles (a trip
involving a driver licensed in California,
a large van registered in California, and
a fatal crash in California).
Fifty-four of the accidents (37 percent)
occurred within 100 statute miles of the
driver’s residence with only a small
percentage (seven out of 54 crashes,
approximately 13 percent) involving
what appears to be an interstate trip.
Overall, approximately 63 percent of
the fatal accidents involving large vans
occurred between 100 and 2,200 statute
miles from the driver’s residence with
the longest distances linked typically to
the trips that were most likely interstate
in nature.
It is not possible to determine the
distance the driver may have traveled to
get to the work-reporting location, or to
determine whether the van was
operated by an individual working from
home. However, FMCSA has factored
into the analysis a maximum distance of
25 statute miles between the driver’s
residence and a possible work-reporting
location. The Federal Highway
Administration (FHWA) ‘‘Summary of
Travel Trends 1995 Nationwide
Personal Transportation Survey,’’
FHWA–PL–00–006, December 1999,
discussed in the NPRM, indicates that
the average commute to work among the
individuals participating in the survey
was 11.63 miles. To decrease the
likelihood of underestimating the
average commuting distances of drivers
of small passenger-carrying CMVs, the
agency used an estimate of 25 miles, a
little more than twice the average in the
nationwide survey. When the estimated
25 statute miles for commuting to work
is deducted from the estimates of the
distance between the driver’s residence
and the crash location, the result is an
estimate of 75 statute miles as the
distance the driver may have traveled
from the work reporting location to the
crash site.
For simplicity, the agency used 75 air
miles, which is equivalent to 86.3
statute miles, because the motor carrier
industry and enforcement community
have experience using air-miles, and the
hours-of-service rules include an
exemption from the records-of-duty

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status requirement for drivers operating
within a 100 air-mile radius of their
work-reporting location.
As discussed in the above analysis
that was the basis for the NPRM, the
agency continues to believe a mileage
threshold of 75 air miles (86.3 statute
miles or 138.9 kilometers) should be
used for determining the applicability of
the safety regulations to for-hire
operations of small passenger-carrying
vehicles operating in interstate
commerce. The analysis indicates that
approximately 63 percent of 146 fatal
accidents, in which a large van was
actually transporting 9 or more
occupants at the time of the crash,
involved drivers that apparently
traveled more than 75 statute miles from
their work-reporting location. While the
agency certainly agrees with
commenters’ concerns that the
remaining 37 percent of the fatal
accidents should not be ignored, this
rule would not affect most of those
accidents, given that they appear to be
primarily intrastate in nature. Section
212 of the MCSIA does not extend
FMCSA’s jurisdiction to regulate
intrastate passenger-carrier operations.
Accordingly, the final rule adopts a 75
air-mile threshold.
However, in this final rule, the agency
is revising its proposed distance
threshold to focus on the distance that
the driver operates the vehicle, as
opposed to the distance that the
passengers are transported. The agency
is aware of the potential complexities
involved with the 75 air-mile standard
proposed in the NPRM. In many cases,
it would be difficult to determine the
distance the passengers were
transported in order to determine
whether the safety-related operational
regulations apply to the motor carrier.
This is especially true when passengers
are picked up or dropped off at multiple
locations. To simplify compliance and
enforcement, FMCSA will apply its
safety regulations whenever a vehicle
that is designed or used to transport
between 9 and 15 passengers (including
the driver) for direct compensation is
operated beyond a 75 air mile radius
from the driver’s normal work-reporting
location. The agency believes that use of
the driver’s normal work reporting
location provides an easier means for
motor carriers and enforcement
personnel to determine the applicability
of the safety regulations, and will help
to promote greater levels of compliance
and ensure consistency in the
enforcement of the rules.

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State Adoption of Compatible Safety
Regulations
FMCSA requested public comment on
the feasibility of making the adoption
and enforcement of compatible safety
regulations applicable to small
passenger-carrying CMVs operated in
interstate commerce a condition of
receiving Motor Carrier Safety
Assistance Program (MCSAP) funds.
The agency also requested comments on
whether the variances from the FMCSRs
allowed in State laws and regulations
should be amended to require the
adoption and enforcement of intrastate
regulations applicable to the intrastate
operation of these types of vehicles. Six
commenters believed FMCSA should
require the States to adopt compatible
safety regulations concerning the
operation of small passenger carrying
commercial vehicles.
Response: Although FMCSA agrees
with the commenters that States should
have compatible regulations, the agency
does not believe it is necessary to
require that all States adopt intrastate
requirements that are compatible with
this final rule. The agency continues to
believe that State agencies should be
given flexibility in responding to unique
safety issues or concerns involving the
intrastate operation of small passengercarrying vehicles.
The MCSAP is a Federal grant
program that provides financial
assistance to States to reduce the
number and severity of accidents and
hazardous materials incidents involving
CMVs. The goal of the MCSAP is to
reduce CMV-involved accidents,
fatalities, and injuries through
consistent, uniform, and effective CMV
safety programs. The MCSAP sets forth
the conditions for participation by
States and local jurisdictions and
promotes the adoption and uniform
enforcement of safety rules, regulations,
and standards compatible with the
FMCSRs and Federal Hazardous
Materials Regulations (HMRs) for both
interstate and intrastate motor carriers
and drivers. The MCSAP rules are
codified in 49 CFR parts 350 and 355.
As a condition of participation in the
MCSAP, States are required to adopt
and enforce compatible regulations
concerning the interstate operation of
small passenger-carrying CMVs since
FMCSA is adopting regulations
applicable to these operations. The
agency is not amending the variances
under § 350.341, which means that the
States are not required to adopt and
enforce regulations concerning the
intrastate operation of small passengercarrying CMVs. However, FMCSA
encourages the States to adopt and

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Federal Register / Vol. 68, No. 155 / Tuesday, August 12, 2003 / Rules and Regulations
enforce intrastate laws and regulations
concerning the operation of these CMVs
if their accident data warrants such
action.
Based on the agency’s analysis of the
FARS data for 1996, 1997, and 1998,
approximately 32 percent (51 out of
161) of all fatal crashes involving large
vans transporting 9 or more passengers
at the time of the accident during those
three years occurred in just three States
(California (24 fatal accidents), Texas
(15 fatal accidents), and Florida (12 fatal
accidents)). This suggests that it may not
be necessary for each State to adopt and
enforce intrastate regulations
concerning small passenger-carrying
CMVs. However, States such as
California, Texas, and Florida should
give strong consideration to adopting
and enforcing intrastate regulations
given the FARS data.
Commercial Driver’s License, and
Controlled Substances and Alcohol
Testing Regulations
Seven commenters supported making
the commercial driver’s license (CDL),
and controlled substances and alcohol
testing regulations applicable to
commercial van operations.
Response: While FMCSA understands
commenter concerns, section 212 of the
MCSIA did not expand the agency’s
statutory authority concerning the
establishment and enforcement of the
CDL and controlled substances and
alcohol testing rules. Congress did not
amend the statutory definition of
‘‘commercial motor vehicle’’ in chapter
313 of title 49, United States Code,
which governs the applicability of the
CDL and controlled substances and
alcohol testing requirements. Therefore,
FMCSA does not have the statutory
authority to apply these requirements to
commercial van operations. The
passenger-carrying threshold that
Congress provided under that statutory
definition remains at 16 or more
passengers, including the driver.
Applicability of Safety Fitness
Procedures
The proposed rule requested
comments on making the safety fitness
procedures under part 385 applicable to
motor carriers operating small
passenger-carrying CMVs. The safety
fitness procedures in 49 CFR part 385
provide guidance in assessing the safety
management controls that motor carriers
use to ensure compliance with the
FMCSRs. Five commenters supported
applicability of safety fitness procedures
to such carriers. No commenter
expressed specific opposition in relation
to this proposal.

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Response: FMCSA continues to
believe that it is appropriate to make the
safety fitness procedures applicable to
motor carriers that operate vehicles
designed or used to transport between 9
and 15 passengers, when the carrier is
directly compensated for its
transportation services, and the
commercial vehicle is operated beyond
a 75 air mile radius from the driver’s
normal work-reporting location. Motor
carriers operating small passengercarrying CMVs are now subject to
compliance reviews and the same safety
fitness procedures and standards used
to evaluate other interstate motor
carriers. Therefore, section 385.1, as
amended on May 13, 2002 (67 FR
31978), by the interim final rule
concerning new entrant motor carriers,
made part 385 applicable to all motor
carriers subject to the FMCSRs, except
non-business private motor carriers of
passengers. Carriers that operate small
passenger-carrying vehicles, and that
receive an ‘‘Unsatisfactory’’ safety rating
will be prohibited from operating CMVs
to transport passengers in interstate
commerce. In addition, these motor
carriers will be ineligible to contract or
subcontract with any Federal agency for
transportation of passengers in interstate
commerce.
Discussion of the Final Rule
The FMCSA is revising the FMCSRs
to require that motor carriers operating
CMVs that are designed or used to
transport between 9 and 15 passengers
(including the driver) for direct
compensation in interstate commerce
(including transportation between
points in Canada or Mexico, and points
in the United States) comply with the
regulations contained in 49 CFR parts
390, 391, 392, 393, 395 and 396, and the
safety fitness procedures in part 385,
when the driver of the vehicle operates
it beyond a 75 air mile radius (86.3
statute miles or 138.9 kilometers) from
his/her normal work-reporting location.
This means the motor carriers are
required to ensure that each of their
drivers meet all of the minimum
qualifications for interstate CMV
drivers, including physical
qualifications prescribed in part 391,
and maintain records to document
compliance. The driver disqualification
provisions of 49 CFR 391.15 are also
applicable. Motor carriers and their
drivers must also comply with the
driving rules of part 392, and vehicles
must meet all applicable requirements
in part 393 concerning parts and
accessories necessary for safe operation.
To avoid potential confusion, the
exception under § 390.3(f)(6) has been
revised to exempt the operation of

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47865

CMVs designed or used to transport
between 9 and 15 passengers, not for
direct compensation, provided the
vehicle does not otherwise meet the
definition of a commercial motor
vehicle (emphasis added). The agency
believes that the proposed regulatory
language could have been
misunderstood to imply that vehicles
designed or used to transport between 9
and 15 passengers, not for direct
compensation, are exempt from the
FMCSRs, even if the CMV meets the
10,001-pound weight threshold for
applicability of the safety regulations, or
is used to transport hazardous materials
in a quantity requiring the use of
placards.
Part 396 requires that each motor
carrier must have a systematic
inspection, repair, and maintenance
program for the CMVs it operates, and
must ensure that vehicles are in safe and
proper operating condition at all times.
They must also maintain records to
document compliance with these rules.
In addition, motor carriers must
ensure that each vehicle is inspected at
least once every 12 months by a
qualified inspector/mechanic and that
any motor carrier employee responsible
for the adequacy of any brake-related
inspection, repair, or maintenance work
meets certain minimum qualifications.
They must also maintain records to
document compliance with these rules.
Motor carriers must ensure that their
drivers comply with the hours-ofservice requirements of part 395,
including reporting, recordkeeping,
verifying, and responding to law
enforcement requests. No driver of a
passenger-carrying CMV may drive
more than 10 hours following 8
consecutive hours off duty. No driver
may operate a passenger-carrying CMV
if the driver has been on duty more than
15 hours following 8 consecutive hours
off duty (regardless of whether he or she
drove). Furthermore, drivers of
passenger-carrying CMVs must not drive
after being on duty 60 hours in any
seven consecutive days if the motor
carrier does not operate CMVs every day
of the week (60-hour rule), or after being
on duty 70 hours in any eight
consecutive days if the motor carrier
operates CMVs every day of the week
(70-hour rule). For drivers that operate
passenger-carrying CMVs beyond a 100
air-mile radius of the normal workreporting location, a record of duty
status (log book) is required to
document the number of hours on duty
and the number of hours driving.
The hours of service rules include a
100 air-mile radius exemption from the
log book requirement for drivers who
operate passenger-carrying vehicles

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within a 100 air-mile radius of their
normal work reporting location,
provided the driver: returns to the work
reporting location and is released from
work within 12 consecutive hours; has
at least 8 consecutive hours off duty
separating each 12 hours on duty; and
does not exceed 10 hours maximum
driving time following 8 consecutive
hours off duty. As an alternative to the
log book, motor carriers of passengers
must maintain accurate time records
showing the time the driver reports for
duty each day, the total number of hours
the driver is on duty each day, the time
the driver is released from duty each
day, and the total time for the preceding
7 days for drivers used for the first time
or intermittently.
As discussed above, the agency is not
(emphasis added) making the CDL and
controlled substances and alcohol
testing requirements applicable to
operators of small passenger-carrying
CMVs, because neither section 4008 of
the TEA–21 nor section 212 of the
MCSIA amended the statutory
definition of CMV used for those
regulations (49 U.S.C. 31301).
Consequently, the passenger-carrying
threshold for CDL, and controlled
substances and alcohol testing
requirements remains at 16 (including
the driver).
Compliance Schedule
After the effective date of this rule,
motor carriers will have 90 days (or 120
days from the Federal Register
publication date) to comply with the
safety regulations. The agency believes
this is sufficient time for the affected
motor carriers to establish and
implement safety management controls
to achieve compliance with the
FMCSRs. Furthermore, the agency
believes that NHTSA FARS data suggest
that it is in the public interest to require
compliance with the FMCSRs as soon as
practicable.
Relationship Between Final Rules and
Transportation of Migrant Workers
The FMCSA has determined that
some of the motor carriers covered by
this rulemaking may also be subject to
the agency’s rules for transporters of
migrant workers in 49 CFR part 398.
The agency prescribes certain
requirements for motor carriers that
transport migrant workers a total
distance of more than 75 miles in
interstate or foreign commerce. Section
398.1 defines a migrant worker as any
individual proceeding to or returning
from employment in agriculture as
defined in section 3(f) of the Fair Labor
Standards Act of 1938, as amended (29
U.S.C. 203(f)) or section 3121(g) of the

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Internal Revenue Code of 1986 (26
U.S.C. 3121(g)). The term ‘‘carrier of
migrant workers by motor vehicle’’
means any person, with certain limited
exceptions, who transports in interstate
or foreign commerce at any one time
three or more migrant workers to or
from their employment by any motor
vehicle other than a passenger
automobile or station wagon.
Carriers of migrant workers that are
directly compensated for their
transportation services and that operate
vehicles designed or used to transport
between 9 and 15 passengers, in
interstate commerce, are covered by this
final rule if the driver operates beyond
a 75 air-mile radius from their normal
work reporting location. The final rule
generally establishes more stringent
safety requirements than those found in
49 CFR part 398. This is not the case,
however, with § 398.6, which prohibits
motor carriers from permitting or
requiring drivers to operate vehicles for
more than 10 hours in any 24-hour
period, unless the driver is given eight
hours rest immediately following the 10
hours driving time. This daily limit is
more restrictive than the comparable
provision for drivers of larger passengercarrying CMVs (§ 395.5(a)(1)), which
allows a driver to drive up to 16 hours
out of 24 under certain circumstances.
Although compliance with part 395
would result in a less restrictive
requirement in this instance, FMCSA
does not believe this deviation is
significant in terms of highway safety.
The restriction in part 398 is based only
on the amount of time the driver
operates the vehicle that transports the
migrant workers but does not take into
account other activities that may affect
the driver’s fitness for duty and level of
alertness. Part 395 includes rules to
prohibit driving after being on-duty
(both driving time and time spent
performing other tasks) for more than 15
hours following at least eight
consecutive hours off-duty. Part 395
also takes into account any
compensated work, irrespective of
whether the work was performed for the
motor carrier. For example, if the driver
has a part-time job, the time spent on
the part-time job must be factored into
the calculations to determine the
available driving time. FMCSA believes
that overall, part 395 is more stringent
than part 398 and that compliance with
all of the requirements of part 395 will
improve safety.
FMCSA believes that it is appropriate
to require more rigorous safety
standards for carriers of migrant workers
if their operations are conducted in a
manner similar to intercity motorcoach
businesses. Therefore, the agency is

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amending § 398.2, Applicability, of the
transporters of migrant worker rules to
make it clear to the affected motor
carriers when they must comply with
the same FMCSRs as intercity
motorcoach operations.
Applicability of Safety Fitness
Procedures to Operators of Small
Passenger-Carrying CMVs
Part 385 of the FMCSRs establishes
procedures to determine the safety
fitness of motor carriers, assign safety
ratings, take remedial action when
required, and prohibit motor carriers
receiving an ‘‘Unsatisfactory’’ safety
rating from operating a CMV. As a result
of this final rule, motor carriers
operating small passenger-carrying
CMVs are now covered by the same
safety fitness procedures and standards
used to evaluate other interstate motor
carriers. This means that motor carriers
affected by this rulemaking will be
subject to compliance reviews and
receive safety ratings. Those receiving
an ‘‘Unsatisfactory’’ safety rating will be
prohibited from operating CMVs to
transport passengers in interstate
commerce. In addition, these motor
carriers will be ineligible to contract or
subcontract with any Federal agency for
transportation of passengers in interstate
commerce. The agency is amending
§ 385.1, Purpose and scope, to reflect
the new passenger-carrying threshold
for the applicability of the FMCSRs and
the safety fitness procedures.
Itemization of the Estimated Costs of
Imposing Safety-Related Requirements
FMCSA has attempted to evaluate the
potential costs of the final rule. The
agency has considered currently
available data concerning the number of
affected motor carriers, CMVs, and
drivers. The agency estimates that this
rulemaking could affect up to 1,843 forhire motor carriers of passengers with
active operating authority who operate
only CMVs with a seating capacity of 15
passengers or less.
Each of these motor carriers has on
file with the FMCSA proof of financial
responsibility at the minimum level
required for the operation of vehicles
designed to transport less than 16
passengers. This number does not
include the following: (1) motor carriers
that may have pending applications for
operating authority; (2) passenger
carriers shown as inactive because their
authority was revoked for failure to
maintain evidence of the required
minimum levels of financial
responsibility; (3) private motor carriers
of passengers; or (4) carriers which also
operate larger vehicles, as well as
smaller vehicles. This number may also

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Federal Register / Vol. 68, No. 155 / Tuesday, August 12, 2003 / Rules and Regulations
overstate the population of affected
carriers since some of the licensed
carriers may be exclusively operating
equipment carrying less than 9
passengers.
With regard to the number of drivers
and vehicles that would be covered by
the safety regulations, FMCSA does not
have a definitive source for this
information at this time because for-hire
small passenger motor carriers were
only recently required to complete the
Form MCS–150, Motor Carrier
Identification Report, which is used to
gather information about motor carriers
subject to the FMCSRs. However, the
agency is now gathering data to better
estimate the number of affected carriers,
drivers, and vehicles.
In the absence of other sources of
information, the agency believes certain
estimates provided by the Taxicab,
Limousine & Paratransit Association
(TLPA) is useful in helping to estimate
the number of drivers and vehicles that
will be covered by this final rule. In
comments submitted in response to the
August 5, 1998, ANPRM (63 FR 41766)
on the subject of safety requirements for
the operators of small passengercarrying CMVs, the TLPA estimated that
there are 74,000 vans nationwide being
operated for compensation. The TLPA
estimated that van fleets average less
than 10 vans. In addition, the TLPA
estimated that if the agency made the
FMCSRs applicable to the operation of
small passenger-carrying vehicles,
approximately 14,000 companies,
125,000 vehicles, and 165,000 drivers
would be covered.
FMCSA believes most of the estimates
provided by the TLPA appear to be
representative of businesses that would
not be covered by this rule, because this
rulemaking applies to long-haul van
operations, not for-hire operations that
are local in nature. However, the agency
will use the TLPA’s previous estimate of
the number of vehicles per fleet (10
vans) as a baseline estimate for the
number of vehicles that would be
covered. This means that approximately
18,430 small passenger-carrying
vehicles (10 vans per fleet × 1,843 forhire operations) would be covered
under the FMCSRs.
The use of the estimates above is not
intended to serve as a determination
whether the passenger-carrying
operations are small businesses. The
estimates are used solely for the purpose
of estimating the potential costs of this
rulemaking action. TLPA’s comments
concerning the agency’s estimate of the
number of small businesses that could
be affected by this rulemaking are
addressed in the rulemaking analysis
portion of this notice.

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The agency estimates that the number
of drivers affected will be a fraction of
the 165,000 drivers in the TLPA
estimate since the proposal is targeted at
drivers in the long-haul segment of the
small passenger carrier industry. The
agency believes the total number of
drivers will be approximately 22,000
(165,000 divided by 7.5) since the
number of motor carriers currently
operating as for-hire motor carriers of
passengers with small passengercarrying vehicles is approximately oneseventh of the TLPA’s estimate of all
for-hire motor carriers.
Earnings of Commercial Van Drivers,
Mechanics, and Supervisors
In order to evaluate accurately the
cost implications of the proposed rule,
FMCSA reviewed earnings information
from the ‘‘Occupational Outlook
Handbook,’’ 2000–01 Edition, Bulletin
2520, published by the U.S. Department
of Labor. We are using the earnings
information to determine the costs of
requiring motor carrier employees and
individuals who perform services for
motor carriers to complete certain
records that would not otherwise be
completed in the normal course of
business, and to perform certain tasks
associated with complying with the
requirements.
The agency is using the earnings
figures for taxi-drivers and chauffeurs
because the drivers in question
generally do not meet the qualifications
requirements for intercity bus drivers.
The median hourly earnings of taxi
drivers and chauffeurs, excluding tips,
were $7.48 in 1998. The middle 50
percent earned between $6.02 and $9.79
an hour. The lowest 10 percent earned
less than $5.55 and the highest 10
percent earned more than $12.44 an
hour. For the purpose of preparing cost
estimates for imposing safety-related
operational rules, the agency will use
$12.44 an hour to decrease the
likelihood of underestimating the
impact of this rulemaking.
The ‘‘Occupational Outlook
Handbook’’ shows the estimated median
hourly earnings for automotive
mechanics and service technicians,
including commission, were $13.16 in
1998. The middle 50 percent earned
between $10.02 and $17.14 an hour. The
lowest 10 percent earned less than $7.44
and the highest 10 percent earned more
than $21.25 an hour. For the purpose of
preparing cost estimates for this
rulemaking the agency is using $21.25
an hour.
FMCSA is using $22 an hour as the
estimated earnings for supervisors and
managers of transportation. The
‘‘Occupational Outlook Handbook’’ did

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47867

not include a specific category for
transportation supervisors so the agency
is operating under the assumption that
these supervisors are paid more than the
individuals they supervise. The agency
estimated that the supervisors are paid
$ 0.75 an hour more than the service
technicians, or $22.
Medical Examination and Certification
Drivers subject to the rule are required
to obtain a medical examiner’s
certificate. FMCSA estimates that the
average cost of a comprehensive
medical examination is $300. This cost
includes an estimate of the driver’s outof-pocket expenses or co-payment and
an estimate of the amount the driver’s
health insurance company would pay
the medical examiner. Since a medical
examiner’s certificate is usually valid
for 24 months, the FMCSA estimates the
prorated annual cost of CMV driver
medical certifications to be
approximately $3,300,000 [($300 per
exam per driver ) × (22,000 drivers) =
$6,600,000 every two years] based on an
estimated 22,000 drivers who would be
subject to the rule.
Generally, it takes a medical
examiner, such as a physician, doctor of
osteopathy, physician assistant, advance
practice nurse, or doctor of chiropractic,
about 20 minutes to complete a medical
examination form and one minute to fill
out the medical certificate. Based on the
$132,000 median annual earning of a
general/family practice physician listed
in the Department of Labor’s
‘‘Occupational Outlook Handbook’’ and
an estimated 2,080 hours of work per
year, the earnings are equal to
approximately $63 an hour. The
estimated costs to the industry for
having medical examiners complete the
required paperwork would be $485,100
($63 an hour × (21 minutes × 1 hour per
60 minutes) × 22,000 medical exams
performed for drivers). This is the cost
every two years. The cost each year
would be $242,550.
Therefore, the total annual costs for
the physical exam would be
approximately $3,542,550.
Driver Qualification Files
FMCSA estimates that the operators of
small passenger-carrying CMVs will
have to create 22,000 driver
qualifications files during the first year
and create approximately 2,860 new
files (13 percent of 22,000) each year
thereafter as a result of driver turnover,
retirement, etc. The estimate of driver
turnover is the same used for previous
information collection burden estimates
for driver qualifications files. This
means that motor carriers will be
responsible for maintaining

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approximately 19,140 existing files
(22,000 ¥ 2,860) every year after the
first year this rule is in effect and
creating 2,860 new files per year.
The creation of a single, complete
driver qualification file involves an
annual expenditure of approximately 25
minutes, which is the sum of 21
minutes of paperwork by a safety
director, driver supervisor, or equivalent
position, and 4 minutes of paperwork by
a driver. For the first year, the cost
would be $188,557 (0.35 hours per
driver employed × 22,000 drivers × $22
an hour per supervisor) plus (0.07 hours
per driver employed × 22,000 drivers ×
$12.44 an hour per driver), or $169,400
for the time supervisors spend on this
task and $19,157 for drivers. For
subsequent years the cost for creating
new driver qualification files would be
$24,512 (0.35 hours per driver
employed × 2,860 drivers × $22 an hour
per supervisor) plus (0.07 hours per
driver employed × 2,860 driver × $12.44
an hour per driver), or $22,022 for the
time supervisors spend on this task and
$2,490 for drivers.
Each driver is required by § 391.27 to
furnish their employing motor carrier
with a list of traffic violations. FMCSA
estimates that it takes a driver
approximately 2 minutes to complete
the list. Motor carriers are required to
conduct an annual review of their
drivers’ records. The agency estimates
that it takes approximately 5 minutes
per driver to complete this task. The
cost of complying with the list of traffic
violations is $7,143 [19,140 drivers ×
(0.03 hours per driver) × ($12.44 an hour
for a driver)]. The cost of complying
with the annual review is $33,686
[(19,140 drivers) × (0.08 hours per
driver) × ($22 an hour for a supervisor)].
The total cost per year for the annual list
of violations and the review of the
driving record is $40,829.
Therefore, the estimated cost for
driver qualification files is $188,557 for
the first year carriers are required to
comply with the safety-related
operational provisions of the FMCSRs,
and $65,341 for each subsequent year
($24,512 for creating new qualification
files, $7,143 for the list of traffic
violations, and $33,686 for the driving
record review).

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Records of Duty Status
As indicated above, FMCSA believes
the final rule will apply to 22,000
drivers. It is estimated that each driver
would spend approximately 6.5 minutes
per workday to complete a record of
duty status and work 240 workdays a
year. The information collection burden
for completing the record of duty status
would be approximately 571,999 hours
[22,000 drivers × (6.5 minutes per day
× 1 hour per 60 minutes) × (240
workdays)]. The estimated total cost
burden related to completing the record
of duty status is approximately
$7,115,667 based on an estimated time
burden of 571,999 hours at $12.44 an
hour for drivers. This time and cost
burden estimate takes into consideration
two weeks of sick/vacation leave for
these drivers.
FMCSA estimates that each motor
carrier, affected by this rule, will need
a supervisor responsible for reviewing
its drivers’ records of duty status and
that the supervisor will spend
approximately three minutes per day
reviewing each driver’s records to
ensure compliance with the hours-ofservice rules. The information collection
burden for reviewing the record of duty
status would be approximately 264,000
hours [22,000 drivers x (3 minutes per
day per driver’s log x 1 hour per 60
minutes) x (240 workdays)]. Using the
earnings estimate presented above (i.e.,
$22 per hour for supervisors), the
annual cost would be $5,808,000.
Therefore, the total costs for requiring
motor carriers to comply with part 395
would be $12,923,667.
Vehicle Inspection, Repair, and
Maintenance
FMCSA estimates the various
recordkeeping requirements in part 396
related to vehicle inspection, repair, and
maintenance would involve an
estimated total annual expenditure of 12
hours and 57 minutes per CMV (48
minutes for systematic inspection,
repair, and maintenance; 724 minutes
for driver vehicle inspection reports;
and 5 minutes for periodic inspection).
Evidence of an individual’s
qualifications to perform periodic
vehicle inspections must be retained by
the motor carrier. Evidence of an
individual’s qualifications to be a brake
inspector must also be retained. The
creation of these two types of

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qualification evidence involves an
estimated one-time, non-recurring
expenditure of 5 minutes by a safety
director, driver supervisor, or equivalent
position for each type of qualification.
The systematic inspection, repair, and
maintenance records would be
completed by a mechanic. The periodic
inspection records would also be
prepared by a mechanic. The estimated
hourly earnings for a mechanic is $21.25
as indicated above. If the mechanic
must spend approximately 53 minutes
per year per vehicle, the cost per year
per vehicle for recordkeeping would be
approximately $18.77. If there are
18,430 vehicles that would be covered
by the proposed rule, the total cost for
systematic inspection, repair, and
maintenance, and periodic inspection
records would be $345,931.
Drivers must prepare vehicle
inspection reports at the end of each
workday. It is estimated that each driver
would spend 724 minutes per year, or
12.06 hours per year completing the
paperwork. Using the earnings estimate
of $12.44 an hour, the cost for having
drivers prepare vehicle inspection
reports would be $150 per driver per
year. Based on an estimate of 22,000
drivers, the cost per year for the
industry would be $3,300,000.
Finally, looking at the cost for
inspector qualifications, FMCSA
believes the paperwork would be
completed by a supervisor. Using the
earnings estimate of $22 an hour, and an
information collection burden of 10
minutes (five minutes for each
certification of qualifications), the cost
per carrier would be $3.66. The total
non-recurring cost would be
approximately $6,745.
Therefore, the estimated total cost
burden related to the vehicle inspection,
repair, and maintenance recordkeeping
is approximately $3,652,676 per year.
Total Costs and Qualitative Estimate of
Benefits
Costs
The sum of all estimated costs of
requiring operators of small passengercarrying CMVs to comply with parts
391, 395, and 396 is $23,850,000 for the
first year and $20,184,234 each year
thereafter. A summary of the first-year
costs is presented below:

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Benefits
FMCSA is not able to quantify the
benefits at this time because the agency
does not have detailed accident
causation data. However, the agency
believes that operational safety will be
improved through compliance with the
FMCSRs. Furthermore, section 212 of
the MCSIA requires that the agency
make its safety regulations applicable to:
(1) Commercial vans referred to as
‘‘camionetas,’’ and (2) those commercial
vans operating in interstate commerce
outside of commercial zones that have
been determined to pose serious safety
risks.
The agency believes the benefits of
this rulemaking outweigh the estimated
costs. The benefit of preventing as few
as 8 of the 58 fatal accidents in 1998
involving large vans transporting 9 or
more passengers at the time of the crash
would outweigh the estimated costs.
This is especially the case when
consideration is also given to the
prevention of injury and propertydamage only accidents that occur
annually.
FMCSA has considered the accident
information submitted by commenters.
The agency also considered data from
the NHTSA FARS. The data suggests
that there may be serious safety
management control problems with
some commercial van operations that
transport passengers for compensation

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in interstate commerce. Having the
FMCSRs apply to these operations
should help to reduce the incidence of
crashes involving large vans thereby
reducing to some extent the number of
fatalities and injuries.
Rulemaking Analyses
Privacy Act Statement
Anyone is able to search the
electronic form of all comments
received into any of DOT’s dockets by
the name of the individual submitting
the comment (or signing the comment,
if submitted on behalf of an association,
business, labor union, etc.). You may
review DOT’s complete Privacy Act
Statement in the Federal Register
published on April 11, 2000 (Volume
65, Number 70; Pages 19477–78) or you
may visit http://dms.dot.gov.
Regulatory Planning and Review and
DOT Regulatory Policies and Procedures
We have determined that this
rulemaking action is a significant
regulatory action under Executive Order
12866, Regulatory Planning and Review,
and significant under Department of
Transportation regulatory policies and
procedures because of the substantial
public interest concerning extending the
FMCSRs to a larger population of forhire motor carriers of passengers. This
final rule requires that operators of
vehicles designed or used to carry

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47869

between 9 and 15 passengers (including
the driver) for direct compensation, in
interstate commerce comply with the
following rules when the commercial
vehicle is operated beyond a 75 air mile
radius (86.3 statute miles or 138.9
kilometers) from the driver’s normal
work-reporting location: 49 CFR part
391, Qualifications of drivers; 49 CFR
part 392, Driving of commercial motor
vehicles; 49 CFR part 393, Parts and
accessories necessary for safe operation;
49 CFR part 395, Hours of service of
drivers; and 49 CFR part 396,
Inspection, repair, and maintenance.
Executive Order 12866 requires that
regulatory agencies assess both the costs
and benefits of intended regulations and
proposed regulations. Based upon the
information above, the agency
anticipates that the economic impact
associated with this rulemaking action
will be $23,850,000 for the first year,
and $20,184,234 for each subsequent
year. The benefit of preventing as few as
8 of the 58 fatal accidents in 1998
involving large vans transporting 9 or
more passengers at the time of the crash
would outweigh the estimated costs.
The agency estimates that each fatality
prevented would be equivalent to a
benefit of $3 million, based on the
Department of Transportation’s
guidance memorandum on ‘‘Treatment
of Value of Life and Injuries in
Preparing Economic Evaluations.’’

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Preventing 8 single-fatality accidents
per year would result in at least $24
million in benefits per year. Additional
benefits would be achieved through
reductions in injuries and propertydamage only accidents involving small
passenger-carrying CMVs.
For purposes of Executive Order
12866, this rulemaking does not impose
an economic burden greater than $100
million on these motor carriers.
Therefore, a full Regulatory Impact
Statement is not necessary.
Regulatory Flexibility Act Analysis
In compliance with the Regulatory
Flexibility Act (5 U.S.C. 601–612),
FMCSA considered the effects of this
regulatory action on small entities and
determined that this final rule will not
affect a substantial number of small
entities that operate CMVs designed or
used to transport between 9 and 15
passengers, for compensation, in
interstate commerce. However, the
agency believes the rule will have a
significant impact on some of the small
entities operating such vehicles.
FMCSA is requiring motor carriers
that operate CMVs, designed or used to
transport between 9 and 15 passengers,
in interstate commerce, to be made
subject to the safety-related operational
FMCSRs when they are directly
compensated for such services and the
vehicle is operated beyond 75 air miles
(86.3 statute miles or 138.9 kilometers)
from the driver’s normal work-reporting
location. These motor carriers will be
required to comply with 49 CFR parts
390, 391, 392, 393, 395, and 396.
FMCSA estimates that this rule will
affect 1,843 of the estimated 14,000
entities that operate CMVs designed or
used to transport between 9 and 15
passengers for compensation, and that
most, if not all, of these 14,000
businesses are small entities based on
criteria established by the Small
Business Administration (SBA).2
2 The SBA’s Office of Size Standards publishes a
list of Small Business Size Standards matched to
the North American Industry Classification System
(NAICS). The U.S. Office of Management and
Budget (OMB) classifies approximately 1,000
activities as industries under NAICS. For each
industry, except those in public administration,
SBA has established a size standard. Industries are
described in detail in North American Industry
Classification System—United States, 1997. It can
be found in many libraries or purchased from the
National Technical Information Service, by calling
(800) 553–6847 or (703) 605–6000. Subsector 485 of
the NAICS covers transit and ground passenger
transportation. SBA has established $6,000,000 in
annual receipts as the maximum size for a small
business for all of the classifications under this
subsector (e.g., interurban and rural bus
transportation, bus service, taxi service, limousine
service, charter bus industry). Gross receipts are
averaged over a firm’s latest 3 completed fiscal
years to determine its average annual receipts.

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The estimate of 1,843 is based on the
current number of for-hire motor
carriers of passengers with active
authority that operate only CMVs with
a seating capacity of 15 passengers or
less. Although the universe of for-hire
motor carriers of passengers potentially
subject to this rule consists of
approximately 14,000 entities, we
estimate that the final rule will apply to
only the 1,843 carriers whose operations
require interstate operating authority
under the FMCSA’s commercial
regulations. Each of these motor carriers
has on file with the FMCSA proof of
financial responsibility at the minimum
level required for the operation of
vehicles designed to transport less than
16 passengers. This number may
overstate the population of affected
carriers since some of the licensed
carriers may be exclusively operating
equipment carrying less than 9
passengers. However, FMCSA’s estimate
does not include the following: (1)
Motor carriers that may have pending
applications for operating authority; (2)
passenger carriers shown as inactive
because their authority was revoked for
failure to maintain evidence of the
required minimum levels of financial
responsibility; (3) private motor carriers
of passengers; or (4) carriers which also
operate larger vehicles, as well as
smaller vehicles. Therefore, the agency
believes its estimate of 1,843 motor
carriers of passengers is a reasonable
estimate of the number of entities that
will be subject to this rule.
This final rule is the last in a series
of rulemaking actions intended to
improve the safety of operation of
vehicles designed or used to transport
between 9 and 15 passengers, for
compensation, in interstate commerce.
After reviewing the public comments
received in response to previous
rulemaking notices in this series, and
completing an analysis of accident data,
the agency continues to believe that it
is appropriate to limit the applicability
of the rule to those motor carriers that
are most likely to have safety
performance problems. Therefore, this
rule involves 1,843 out of the 14,000
small entities that the agency is
authorized to regulate under section 212
of MCSIA.
The rulemaking series mentioned
above began with the August 5, 1998 (63
FR 41766) ANPRM in which the agency
‘‘Receipts’’ means the firm’s gross or total income,
plus cost of goods sold, as defined by or reported
on the firm’s Federal Income Tax return. Therefore,
only those motor carriers of passengers that
averaged $6,000,000 or less in annual receipts for
the past 3 fiscal years would be considered small
businesses for the purposes of the regulatory
flexibility analysis.

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requested public comment from all
interested parties concerning the
potential impact of amending the
definition of ‘‘commercial motor
vehicle’’ to make the FMCSRs
applicable to the operation of small
passenger-carrying CMVs. The agency
specifically asked for comments
concerning the types and numbers of
passenger carriers that would be
covered by the safety regulations under
the revised definition of CMV provided
in section 4008(a) of TEA–21. At that
time, we indicated that due to the
preliminary nature of the ANPRM and
the lack of information about the
potential costs of the rulemaking, the
agency could not evaluate the potential
regulatory changes on small entities.
The agency solicited comments,
information, and data on these potential
impacts on small entities.
On September 3, 1999, the agency
published an interim final rule (64 FR
48510) and a NPRM (64 FR 48518)
based on the comments received in
response to the ANPRM. The agency
used the interim final rule to adopt the
statutory definition of CMV provided by
TEA–21, and temporarily exempt the
operation of small passenger-carrying
vehicles from all of the FMCSRs
pending completion of a companion
rulemaking that would help the agency
gather additional information about the
entities operating vehicles designed or
used to transport between 9 and 15
passengers. The exemption was
necessary because the agency viewed
section 4008(a) of TEA–21 as a mandate
either to impose the FMCSRs on
previously unregulated smaller capacity
vehicles, or to exempt through a
rulemaking proceeding some or all of
the operators of such vehicles. The
statute provided that operators of small
passenger-carrying vehicles would
automatically become subject to the
FMCSRs unless the agency, through a
rulemaking proceeding, determines that
it is appropriate to exempt such
operators from the safety regulations.
While none of the commenters
responded to the request for information
about potential impacts of the
rulemaking on small entities, the TLPA
estimated that if the agency made the
FMCSRs applicable to the operation of
small passenger-carrying vehicles,
approximately 14,000 companies,
125,000 vehicles, and 165,000 drivers
would be covered. The agency reviewed
its database of for-hire interstate motor
carriers of passengers to determine
whether TLPA’s estimate was
reasonable. At that time, we indicated
there were 1,636 for-hire motor carriers
of passengers with active operating
authority that had on file with the

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agency proof of financial responsibility
at the minimum level required for the
operation of vehicles designed to
transport less than 16 passengers.
Recognizing that TLPA’s estimate
included a wide range of passengercarrying operations that far exceeded
the limited number of carriers with
active operating authority, the agency
stated that it could not confirm the
accuracy of the number.
The September 3, 1999 NPRM
proposed that each motor carrier
operating small passenger-carrying
vehicles submit a Motor Carrier
Identification Report (FMCSA Form
MCS–150), maintain an accident
register, and mark their CMVs with the
motor carrier identification number
assigned by the agency (64 FR 48518).
The agency stated that this would
provide it with information about the
number of passenger carriers, their
business locations, and the number of
drivers employed and vehicles operated.
We believed that the proposal could
affect a substantial number of small
entities, but would not have a
significant impact on them. The agency
stated that if the TLPA’s estimate of
14,000 interstate motor carriers
operating CMVs designed or used to
transport 9- to 15- passengers was
accurate, and most or all of these
businesses are classified as small
businesses by SBA, the rulemaking
would affect up to 14,000 small entities.
The agency provided examples of the
potential costs to mark each vehicle, in
accordance with 49 CFR 390.21, with a
worse case scenario of a one-time cost
of $420 for a carrier with a fleet of 20
vehicles.
With the enactment of MCSIA, the
agency was required to take a more
aggressive regulatory approach and
impose safety requirements on: (1)
Commercial vans referred to as
‘‘camionetas,’’ and (2) those commercial
vans operating in interstate commerce
outside of commercial zones that have
been determined to pose serious safety
risks. Therefore, the agency was
required to continue the series of
rulemaking actions in the absence of
definitive industry characteristic and
safety performance data, including data
concerning the potential impact on
small businesses that would be made
subject to the FMCSRs.
On January 11, 2001, FMCSA issued
a final rule adopting the statutory
definition of CMV as revised by section
4008 of TEA–21, and requiring motor
carriers operating small passengercarrying vehicles to submit the
identification report, mark their
vehicles, and maintain an accident
register (66 FR 2756). On the same day,

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in response to section 212 of MCSIA,
the agency issued an NPRM (66 FR
2767) proposing that motor carriers
operating vehicles designed or used to
transport between 9 and 15 passengers
(including the driver) in interstate
commerce comply with the safety
regulations when they are directly
compensated for such services, and the
transportation of any of the passengers
covers a distance greater than 75 air
miles (86.3 statute miles).
FMCSA indicated that in order to
avoid underestimating the potential
impact of the rule on small entities, it
estimated that 1,648 passenger carriers
would be subject to the proposed
requirements. This estimate was based
on the number of for-hire motor carriers
of passengers with active authority to
operate CMVs with a seating capacity of
15 passengers or less. The agency
argued that using the estimate of 1,648
carriers from the database of motor
carriers of passengers provided a
reasonable estimate of the number of
entities that could be subject to the
proposed rules. The agency estimated
that the costs per carrier would be
$6,200 for the first year the
requirements are in effect, and $6,100
per year thereafter, if the costs are
distributed evenly among the carriers.
FMCSA estimated that the costs per
carrier associated with the NPRM
would, on average, be 2.2 percent of
their revenues based on data from the
SBA’s 1997 ‘‘Employer Firms,
Employment and Estimated Receipts by
Employment Size of Firm’’ tables. The
agency reviewed revenues for motor
carriers in the intercity and rural bus
transportation segment of the industry.
The SBA data indicated there are 145
firms in this category with less than 20
employees—the 20-employee threshold
was chosen by FMCSA to be consistent
with its estimate of the average number
of drivers likely to be employed by the
1,648 for-hire passenger carriers. These
145 carriers had combined revenues of
$41,793,000. The average revenues were
considered by dividing the combined
revenues by the total number of firms,
or $288,227 in revenues per year for
each carrier.
FMCSA made a preliminary
determination that the proposed rule
would not affect a substantial number of
small entities because it would be
applicable to only a fraction of the
14,000 entities operating 9- to 15passenger vehicles for compensation.
However, the agency recognized that the
NPRM would have a significant impact
on some of the small entities, especially
in those cases where the profit margins
are approximately 2.2 percent or less.
The agency indicated that there is a

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47871

possibility for failure of some small
passenger-carrying CMV operations,
especially those with profit margins of
2.2 percent or less. Because it was
limiting the applicability of the rules to
only a fraction of the universe of eligible
small entities (thus minimizing the
overall impact), and the estimated costs
of the rule would be 2.2 percent of the
revenues of the affected small entities,
the agency did not believe that a more
comprehensive analysis was needed to
ensure compliance with the Regulatory
Flexibility Act. This was particularly in
view of the fact that the agency was
statutorily required to regulate operators
of 9- to 15-passenger vehicles and had
exercised its discretion, as limited by
MCSIA, to minimize the impact on
small entities.
After publication of the January 11,
2001 NPRM, the agency increased its
estimate of the potential costs of the rule
for small entities based on: (1) A
revision of the estimated information
collection burden for driver records of
duty status; (2) a correction of the
estimate of the costs for medical
examinations for drivers; and (3)
consultation with SBA about the
number of small businesses and their
revenues.
First, the agency revised the estimated
costs associated with the information
collection burden for drivers’ records of
duty status, and submitted the revised
estimate to OMB for approval. The
agency estimated that the information
collection burden for the records of duty
status (required by 49 CFR part 395) for
the operators of 9- to 15-passenger
vehicles would be 137,250 hours, based
on an estimated 18,300 drivers being
subject to the requirements. Using the
new estimates, approved by OMB [OMB
Control No. 2126–0001] on information
collection burden for the records of duty
status, and applying the burden per
driver and carrier to the entities that
would operate small passenger-carrying
CMVs, the agency now believes the
additional burden would be 836,000
annual burden hours, for approximately
22,000 drivers. The result of the
increased estimate of the annual burden
hours for completing and retaining the
records of duty status, and an increase
in the number of drivers that would be
subject to the hours of service rules, is
an increase from $2,539 per carrier per
year for such records to $7,012 per
carrier per year.
FMCSA also revised its estimates of
the costs for medical examinations of
drivers. The agency’s previous
calculations included an error resulting
in an estimate of $1,718 per carrier per
year. A correction of the error, plus a
revision of the estimate of the number

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of drivers yields an estimate of $3,844
per carrier per year for medical
examinations.
As indicated earlier, FMCSA
estimates that the sum of all estimated
costs of requiring operators of small
passenger-carrying CMVs to comply

with 49 CFR parts 391, 395, and 396 is
approximately $23,850,000 for the first
year and $20,184,234 per year
thereafter. If the costs of the rulemaking
are distributed evenly among these
1,843 motor carriers, the costs per
carrier would be approximately $12,940

for the first year the requirements are in
effect, and a little more than $10,952 per
year thereafter.
A summary of the estimated first-year
costs per motor carrier is presented
below:

The actual costs each individual fleet
would experience depend on the
number of drivers employed and the
number of small passenger-carrying
CMVs operated. The above estimates are
intended to serve as a baseline of 10
CMVs per fleet and about 11 drivers per
business. Driver-related costs, such as
driver qualifications and hours-ofservice, for each business would
decrease or increase as the number of
drivers employed decreases below the
baseline or increases above the baseline.
The same holds true for vehicle-related
costs.
In order to better determine the
potential impact on small businesses,
FMCSA met with representatives of
SBA. As a result of that meeting, the
FMCSA reviewed the U.S. Department
of Commerce’s 1997 Economic Census,
Transportation and Warehousing
(Publication No. EC 97T48S–LS, Issued
August 2000) to better determine the
revenues of businesses under the NAICS
subsector 485, which covers transit and
ground transportation, and more
accurately assess the number of small
entities based on SBA’s $6,000,000

threshold for defining a small business
in the passenger transportation industry.
For businesses covered by NAICS
code 4852, interurban and rural bus
transportation, the 1997 census data
indicate there are 407 firms with
combined revenues of $1,147,432,000.
For the purposes of this analysis, the
revenues for the businesses in this
group were divided by the number of
firms resulting in an estimate of
$2,819,243 in revenues per year for each
carrier [$1,147,432,000/407 firms =
$2,819,243].
The agency also considered
businesses covered by NAICS code
4853, taxi and limousine service. The
1997 census data indicate there are
6,418 firms with combined revenues of
$3,154,521,000. For purposes of this
analysis, the revenues for businesses in
this group were also divided by the
number of firms resulting in an estimate
of $491,511 in revenues per year for
each carrier [($3,154,521,000/6,418) =
$491,511].
Based on the estimates above for the
revenues per firm for interurban and
rural bus transportation businesses, and
revenues per firm for taxi and limousine

service businesses, FMCSA believes that
most, if not all, of the firms in these
categories appear to be small businesses
based on SBA’s $6,000,000 threshold.
The costs per carrier associated with
this rule would, on average, be
approximately 0.45 percent of the
revenues for interurban and rural bus
services [($12,940 costs per carrier)/
($2,819,243 revenues per carrier) x 100
= 0.45 percent], and 2.6 percent of the
revenues for taxi and limousine services
[($12,940 costs per carrier)/$491,511
revenues per carrier) x 100 = 2.6
percent].
For interurban and rural bus services
with a profit margin greater than 0.45
percent, the new rule will decrease their
profits but the businesses would
maintain some level of profit. For bus
services with profit margins of 0.45
percent or less, the rule could result in
the failure of the business. Likewise, for
taxi and limousine services with a profit
margin greater than 2.6 percent, the rule
would decrease their profits but the
businesses would maintain some level
of profit. For taxi and limousine
businesses with profit margins of 2.6

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percent or less, the rule could result in
failure of the business.
FMCSA does not have data on the
revenues or profit margins of the 1,843
motor carriers likely to be impacted by
the rule or more precise information
about their revenues. Also, the agency
does not have sufficient data about these
motor carriers to determine the
distribution of drivers and vehicles,
such as the number of carriers with 1 to
5 vehicles, the number of carriers with
6 to 10 vehicles, the number of carriers
with 11 to 20 vehicles, and similar data
for the number of drivers, to make more
precise its estimates concerning
revenues. However, the agency believes
it is appropriate to consider all 1,843
motor carriers of passengers likely to be
affected by this rulemaking to be small
entities to avoid underestimating the
impact this rule will have on them. The
agency believes the estimates presented
above are reasonable given the limited
information available about this
segment of the motor carrier industry.
Therefore, the agency has made a
determination that this rule would not
affect a substantial number of small
entities. However, it could have a
significant impact on some of these
1,843 small entities, especially in those
cases where the profit margins are
approximately 2.6 percent or less.
FMCSA has considered the comments
to the previous rulemaking documents
concerning the regulation of small
passenger-carrying CMVs, and believes
this group of motor carriers provides an
important service to its clients. These
motor carriers provide services to
individuals for whom motor coach
services are not available, those who
may not be able to afford to use motor
coach operators, or individuals who
choose, for whatever reason, not to use
motor coach operators for their intercity
travel. The agency believes the industry
is very important to those who rely on
it. There is a possibility for failure of
some small passenger-carrying CMV
operations, especially those with profit
margins of 2.6 percent or less. However,
the number of failures among the
estimated 1,843 motor carriers operating
small passenger-carrying CMVs is
expected to be small. Therefore, the
agency believes there could be a small
degree of disruption in the services
provided by small passenger-carrying
CMV operations that are not capable of
putting into place the safety
management controls necessary to
achieve compliance with 49 CFR parts
390, 391, 392, 393, 395, and 396.
FMCSA has considered other
regulatory alternatives as described
earlier, and determined that this action
is necessary to fulfill section 212 of the

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MCSIA and respond to the safety
problem indicated by the FARS and
General Estimates System (GES) data. It
is unlikely that a rule establishing less
stringent requirements would have the
same potential for improving the safety
of operations of these CMVs.
Accordingly, FMCSA has considered
the economic impacts of the
requirements on small entities and
certifies that this rule will not have a
significant economic impact on a
substantial number of small entities.
Intergovernmental Review
Catalog of Federal Domestic
Assistance Program Number 20.217,
Motor Carrier Safety. The regulations
implementing Executive Order 12372
regarding intergovernmental
consultation on Federal programs and
activities do not apply to this program.
Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995 (PRA) (44 U.S.C. 3501–3520),
Federal agencies must obtain approval
from the Office of Management and
Budget (OMB) for each collection of
information they conduct, sponsor, or
require through regulations. FMCSA
determined that the requirements in this
final rule will impact four currentlyapproved information collections.
FMCSA is requiring that motor carriers
operating CMVs designed or used to
transport 9- to 15- passengers be
required to meet the recordkeeping
requirements of 49 CFR parts 391, 395,
and 396.
Medical Examination and
Certification—OMB Control No. 2126–
0006
Drivers operating CMVs designed or
used to transport between 9 and 15
passengers will be required to meet the
medical examination and certification
requirements at 49 CFR part 391,
subpart E. The information collection
requirements related to that subpart
have been approved by the OMB under
provisions of the PRA and assigned the
OMB Control No. 2126–0006, which is
currently due to expire on October 31,
2003. FMCSA estimates it takes a
medical examiner approximately 20
minutes to complete and document the
medical examination and 1 minute to
complete the medical certificate, and
that it takes a motor carrier
approximately 1 minute to make a copy
of the medical certificate and file it.
Therefore, the total time associated with
this information collection, per driver,
is 22 minutes. FMCSA estimates that
approximately 22,000 drivers will be
subject to the final rule. The estimated
burden for the first year will be 8,067

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47873

burden hours [22,000 drivers × 22
minutes per driver, divided by 60
minutes in an hour]. Since the medical
examiner’s certificate is usually made
valid for 24 months, the prorated annual
burden will be approximately half that
amount. Therefore, the annual burden
hours will be 4,034. FMCSA submitted
the amended medical qualification
information collection to the OMB for
review and approval.
Driver Qualification Files—OMB
Approval No. 2126–0004
Motor carriers that employ drivers of
CMVs designed or used to transport
between 9 and 15 passengers will be
required to maintain a complete driver
qualification file for each driver in
accordance with 49 CFR 391.51. The
information collection requirements
related to driver qualification files have
been approved by the OMB under the
provisions of the PRA and assigned the
OMB Control No. 2126–0004, which is
currently due to expire on August 31,
2004. The following components are
involved in this information collection:
driver’s employment application (2
minutes for drivers), review of driver’s
employment application (1 minute for
motor carriers), initial inquiry of driving
record and investigation of employment
(15 minutes for motor carriers), list or
certification of violations (2 minutes for
drivers), and annual review of driving
record (5 minutes for motor carriers).
The burden hour estimate associated
with this information collection is 25
minutes per driver, which includes 21
minutes for motor carriers and 4
minutes for drivers. Therefore, FMCSA
estimates that the addition of the 22,000
drivers who will be subject to this final
rule will increase the burden hours of
this information collection by 9,167
[22,000 drivers × 25 minutes, divided by
60 minutes in an hour]. FMCSA
submitted the amended driver
qualification information collection to
OMB for review and approval.
Records of Duty Status—OMB Control
No. 2126–0001
Drivers operating CMVs designed or
used to transport between 9 and 15
passengers will be required to record
their duty status in accordance with 49
CFR 395.8. The information collection
requirements related to records of duty
status have been approved by the OMB
under the provisions of the PRA and
assigned the OMB Control No. 2126–
0001, which expires on March 31, 2005.
FMCSA estimates the annual burden on
each CMV driver to be approximately 26
hours [6 minutes and 30 seconds for
each daily log × 240 workdays a year,
divided by 60 minutes in an hour]. The

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Federal Register / Vol. 68, No. 155 / Tuesday, August 12, 2003 / Rules and Regulations

total burden for the 22,000 drivers
affected by this rule will be 572,000
[22,000 drivers × 26 hours per year]. In
addition, each motor carrier affected by
this rule will have a supervisor
responsible for reviewing its driver
records of duty status and that the
supervisor will spend approximately 12
hours per year reviewing these records
to ensure compliance with the hours-ofservice rules [3 minutes per day to
review logs × 240 workdays]. The total
burden for the supervisors of the 22,000
drivers affected by this rule will be
264,000 [22,000 drivers × 12 hours per
year]. Therefore, the total additional
burden for OMB Control No. 2126–0001
will be 836,000 annual burden hours
[572,000 + 264,000]. FMCSA submitted
the amended driver records of duty
status information collection to OMB for
review and approval.
Vehicle Inspection, Repair, and
Maintenance—OMB Control No. 2126–
0003
Motor carriers operating CMVs
designed or used to transport between 9
and 15 passengers for direct
compensation will be required to
maintain records of inspection, repair,
and maintenance for their CMVs in
accordance with 49 CFR part 396. The
information collection requirements
related to inspection, repair, and
maintenance have been approved by the
OMB under the provisions of the PRA
and assigned OMB Control No. 2126–
0003, which expires on May 31, 2004.
FMCSA estimates that it will take a total
expenditure of 12 hours and 57 minutes
(or 777 minutes) per year per CMV to
complete the required recordkeeping
related to vehicular inspection, repair,
and maintenance (48 minutes per
vehicle for systematic inspection, repair,
and maintenance; 12 hours and 4
minutes per year per vehicle for driver
vehicle inspection reports; and 5
minutes per year per vehicle for
periodic inspection).
Evidence of an individual’s
qualifications to perform periodic
vehicle inspections must be retained by
the motor carrier. Evidence of an
individual’s qualifications to be a brake
inspector must also be retained. The
creation of these two types of
qualification evidence involves an
estimated one-time, non-recurring
expenditure of 5 minutes by a safety
director, driver supervisor, or equivalent
position for each type of inspector.
Based on an estimate of 1,843 motor
carriers that will be subject to the rule
and on the assumption that each motor
carrier has at least (1) one employee
who is a qualified periodic vehicle
inspector and (2) one employee who is

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a qualified brake inspector, the
estimated total time burden related to
the inspector qualifications rules is
approximately 307 annual burden hours
[(5 minutes for each periodic vehicle
inspector certification × 1,843 motor
carriers) + (5 minutes for each brake
inspector certification × 1,843 motor
carriers) = 18,430 minutes, divided by
60 minutes in an hour = 307 hours].
FMCSA estimates that the total
inspection, repair, and maintenance
recordkeeping burden is approximately
238,976 burden hours per year [18,430
CMVs × 777 minutes (or 12 hours and
57 minutes) per year per CMV, divided
by 60 minutes in an hour = 238,669,
plus an additional 307 = 238,976].
FMCSA submitted the amended
inspection, repair, and maintenance
information to OMB for review and
approval.
The total estimated additional burden
hours imposed by this rule will be
1,088,177 [4,034 (associated with OMB
Control No. 2126–0006) + 9,167
(associated with OMB Control No.
2126–0004) + 836,000 (associated with
OMB Control No. 2126–0001) + 238,976
(associated with OMB Control No.
2126–0003)]. The following table
displays this information:
OMB control No.

Currently-approved annual
burden hours

Additional burden hours associated with
this final rule

2126–0006
2126–0004
2126–0001
2126–0003

1,180,792
941,856
161,364,492
35,107,856

4,034
9,167
836,000
238,976

not likely to have a significant adverse
effect on the supply, distribution, or use
of energy.
Unfunded Mandates Reform Act of 1995
This final rule does not impose an
unfunded mandate, as defined by the
Unfunded Mandates Reform Act of 1995
(2 U.S.C. 1532 et seq.), that will result
in a $100 million or more expenditure
(adjusted annually for inflation) in any
one year by State, local, and tribal
governments, in the aggregate, or by the
private sector.
Civil Justice Reform
This rule meets applicable standards
in sections 3(a) and 3(b)(2) of Executive
Order 12988, Civil Justice Reform, to
minimize litigation, eliminate
ambiguity, and reduce burden.
Protection of Children
We have analyzed this action under
Executive Order 13045, Protection of
Children from Environmental Health
Risks and Safety Risks. This rule is not
an economically significant rule and
does not concern an environmental risk
to health or safety that may
disproportionately affect children.
Taking of Private Property
This final rule will not effect a taking
of private property or otherwise have
taking implications under Executive
Order 12630, Governmental Actions and
Interference with Constitutionally
Protected Property Rights.

Federalism Assessment
We have analyzed this rule in
accordance
with the principles and
Total ...
198,594,996
1,088,177
criteria of Executive Order 13132,
Federalism. We have determined that
In the NPRM stage, we requested
this action does not have a substantial
comments regarding the information
direct effect on States or impose
collection burden hour estimates.
additional costs or burdens on the
However, no comments were received
States. Nothing in this document limits
during the NPRM comment period
the policymaking discretion of the
regarding the estimated information
States or directly preempts any State
collection burdens.
law or regulation. Therefore, we have
National Environmental Policy Act
determined that this final rule does not
have federalism implications.
The agency has analyzed this
rulemaking for purposes of the National List of Subjects
Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.) and has determined 49 CFR Part 390
that this action does not have any effect
Highway safety, Intermodal
on the quality of the environment.
transportation, Motor carriers, Motor
vehicle safety, Reporting and
Energy Effects
recordkeeping requirements.
We have analyzed this action under
49 CFR Part 398
Executive Order 13211, Actions
Highway safety, Migrant labor, Motor
Concerning Regulations That
carriers, Motor vehicle safety, Reporting
Significantly Affect Energy Supply,
and recordkeeping requirements.
Distribution, or Use. We have
determined that it is not a ‘‘significant
■ For the reasons discussed in the
energy action’’ under that order because preamble, the Federal Motor Carrier
it is not economically significant and is
Safety Administration amends title 49,

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Federal Register / Vol. 68, No. 155 / Tuesday, August 12, 2003 / Rules and Regulations
Code of Federal Regulations, parts 385,
390, and 398 as follows:

Pub. L. 104–88, 109 Stat. 803, 941 (49 U.S.C.
701 note); sec. 212, Pub. L. 106–159, 113 Stat.
1748, 1766; and 49 CFR 1.73.

PART 390—FEDERAL MOTOR
CARRIER SAFETY REGULATIONS;
GENERAL

■

§ 398.2

1. The authority citation for part 390 is
revised to read as follows:

■

Authority: 49 U.S.C. 13301, 13902, 31132,
31133, 31136, 31502, and 31504; sec. 204,
Pub. L. 104–88, 109 Stat. 803, 941 (49 U.S.C.
701 note); secs. 212 and 217, Pub. L. 106–
159, 113 Stat. 1748, 1766, 1767; and 49 CFR
1.73.
■ 2. Amend § 390.3 by revising
paragraph (f)(6) to read as follows:

§ 390.3

General applicability.

(f) * * *
(6)(i) The operation of commercial
motor vehicles designed or used to
transport between 9 and 15 passengers
(including the driver), not for direct
compensation, provided the vehicle
does not otherwise meet the definition
of a commercial motor vehicle, except
that motor carriers operating such
vehicles are required to comply with
§§ 390.15, 390.19, and 390.21(a) and
(b)(2).
(ii) The operation of commercial
motor vehicles designed or used to
transport between 9 and 15 passengers
(including the driver) for direct
compensation, provided the vehicle is
not being operated beyond a 75 air-mile
radius (86.3 statute miles or 138.9
kilometers) from the driver’s normal
work-reporting location, and provided
the vehicle does not otherwise meet the
definition of a commercial motor
vehicle, except that motor carriers
operating such vehicles are required to
comply with §§ 390.15, 390.19, and
390.21(a) and (b)(2).
■ 3. Amend § 390.5 by adding a
definition for ‘‘direct compensation,’’ in
alphabetical order to read as follows:
§ 390.5

5. Revise § 398.2 to read as follows:
Applicability.

(a) General. The regulations
prescribed in this part are applicable to
carriers of migrant workers by motor
vehicle, as defined in § 398.1(b), but
only in the case of transportation of any
migrant worker for a total distance of
more than 75 miles (120.7 kilometers) in
interstate commerce, as defined in 49
CFR 390.5.
(b) Exception.
(1) The regulations prescribed in this
part are not applicable to carriers of
migrant workers by motor vehicle, as
defined in § 398.1(b), when:
(i) The motor vehicle is designed or
used to transport between 9 and 15
passengers (including the driver);
(ii) The motor carrier is directly
compensated for the transportation
service; and
(iii) The vehicle used to transport
mirgrant workers is operated beyond a
75 air-mile radius (86.3 statute miles or
138.9 kilometers) from the driver’s
normal work-reporting location.
(2) Carriers of migrant workers by
motor vehicle that operate vehicles,
designed or used to transport between 9
and 15 passengers (including the driver)
for direct compensation, in interstate
commerce, must comply with the
applicable requirements of 49 CFR parts
385, 390, 391, 392, 393, 395, and 396,
when the motor vehicle is operated
beyond a 75 air-mile radius (86.3 statute
miles or 138.9 kilometers) from the
driver’s normal work-reporting location.
*
*
*
*
*
Issued on: August 5, 2003.
Annette M. Sandberg.
Administrator.
[FR Doc. 03–20369 Filed 8–11–03; 8:45 am]
BILLING CODE 4910–EX–P

Definitions.

*

*
*
*
*
Direct compensation means payment
made to the motor carrier by the
passengers or a person acting on behalf
of the passengers for the transportation
services provided, and not included in
a total package charge or other
assessment for highway transportation
services.
*
*
*
*
*

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 679
[Docket No. 021212307–3037–02; I.D.
080103C]

4. The authority citation for part 398 is
revised to read as follows:

Fisheries of the Exclusive Economic
Zone Off Alaska; Non-Community
Development Quota Pollock with Trawl
Gear in the Chinook Salmon Savings
Areas of the Bering Sea and Aleutian
Islands Management Area

Authority: 49 U.S.C. 13301, 13902, 31132,
31133, 31136, 31502, and 31504; sec. 204,

AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and

PART 398—TRANSPORTATION OF
MIGRANT WORKERS
■

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47875

Atmospheric Administration (NOAA),
Commerce.
ACTION: Closure.
SUMMARY: NMFS is prohibiting directed
fishing for non-Community
Development Quota (CDQ) pollock with
trawl gear in the Chinook Salmon
Savings Areas of the Bering Sea and
Aleutian Islands management area
(BSAI). This action is necessary to
prevent exceeding the 2003 non-CDQ
limit of chinook salmon caught by
vessels using trawl gear while directed
fishing for pollock in the BSAI.
DATES: Effective 1200 hrs, Alaska local
time (A.l.t.), September 1, 2003, through
2400 hrs, A.l.t., December 31, 2003.
FOR FURTHER INFORMATION CONTACT:
Mary Furuness, 907–586–7228.
SUPPLEMENTARY INFORMATION: NMFS
manages the groundfish fishery in the
BSAI exclusive economic zone
according to the Fishery Management
Plan for the Groundfish Fishery of the
Bering Sea and Aleutian Islands Area
(FMP) prepared by the North Pacific
Fishery Management Council under
authority of the Magnuson-Stevens
Fishery Conservation and Management
Act. Regulations governing fishing by
U.S. vessels in accordance with the FMP
appear at subpart H of 50 CFR part 600
and 50 CFR part 679.
For 2003, the chinook salmon PSC
limit for the pollock fishery was set at
33,000 fish (68 FR 9907, March 3, 2003).
Of that limit, 7.5 percent is allocated to
the groundfish CDQ program as
prohibited species quota reserve.
Consequently, the 2003 non-CDQ limit
of chinook salmon caught by vessels
using trawl gear while directed fishing
for pollock in the BSAI, is 30,525
animals (§ 679.21(e)(1)(i) and (vii)).
In accordance with
§ 679.21(e)(7)(viii), the Administrator,
Alaska Region, NMFS (Regional
Administrator), has determined that the
2003 non-CDQ limit of chinook salmon
caught by vessels using trawl gear while
directed fishing for pollock in the BSAI
has been reached. Consequently, the
Regional Administrator is prohibiting
directed fishing for non-CDQ pollock
with trawl gear in the Chinook Salmon
Savings Areas defined at Figure 8 to 50
CFR part 679.
Maximum retainable amounts may be
found in the regulations at § 679.20(e)
and (f).

Classification
This action responds to the best
available information recently obtained
from the fishery. The Assistant
Administrator for Fisheries, NOAA,
finds good cause to waive the

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