February 1, 2010 (Volume 75, Number 20)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 390
[Docket No. FMCSA-2009-0127]
Safety Requirements for Operators of Small Passenger-Carrying
Commercial Motor Vehicles Used in Interstate Commerce
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule.
SUMMARY: The FMCSA amends the Federal Motor Carrier Safety Regulations
(FMCSRs) to require that motor carriers operating commercial motor
vehicles (CMVs), designed or used to transport between 9 and 15
passengers (including the driver), in interstate commerce for direct
compensation comply with the safety regulations regardless of the
distance traveled. Specifically, this rule makes certain FMCSRs
applicable to the operation of such vehicles when they are operated
within a 75 air-mile radius (86.3 statute miles or 138.9 kilometers)
from the driver's normal work-reporting location. Motor carriers,
drivers, and the vehicles operated by them will be subject to the same
safety requirements imposed upon such vehicles when they are operated
beyond a 75-air-mile radius. This action is required by the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users (SAFETEA-LU).
DATES: Effective: This rule is effective May 3, 2010. Compliance: Motor
carriers must be in compliance with this rule no later than June 1,
FOR FURTHER INFORMATION CONTACT: Ms. Loretta Bitner, Chief, Commercial
Passenger Carrier Safety Division, Office of Enforcement and
Compliance; (202) 385-2428; firstname.lastname@example.org.
Docket: For access to the docket to read background documents
including those referenced in this document go to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov at any time or visit the
U.S. Department of
Transportation Dockets located on the ground floor, Room W12-140, 1200
New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. ET.,
Monday through Friday, except Federal holidays.
Legal Basis for the Rulemaking
Section 4136 of SAFETEA-LU [Pub. L. 109-59, 119 Stat. 1144, 1745,
August 10, 2005] (set out as a note to 49 U.S.C. 31136) states that
"the Federal motor carrier safety regulations that apply to
interstate operations of commercial motor vehicles designed to
transport between 9 and 15 passengers (including the driver) shall
apply to all interstate operations of such carriers regardless of the
The FMCSA notes that the legislative history of this provision of
SAFETEA-LU is sparse and, in some respects, inconsistent with the
mandate of section 4136. The Senate bill (S. 1567, 109th Cong. 1st
Sess. (July 29, 2005)) that contained the provisions relating to motor
carrier safety that became part of SAFETEA-LU included the following
provisions, in section 106(2): "The Secretary of Transportation shall
* * * ensure that Federal motor carrier safety regulations that apply
to interstate operations of commercial motor vehicles designed to
transport between 9 and 15 passengers (including the driver) apply to
all interstate operations of such carries [sic] regardless of the
The committee report accompanying this bill said that this
provision "would ensure that the Secretary enforces Federal motor
carrier safety regulations that apply to interstate CMVs designed to
transport between 9 and 15 passengers, regardless of the distance
traveled." Sen. Report No. 109-120 (109th Cong. 1st Sess., July 29,
2005), at 20.
In the House of Representatives, similar language was found in
section 4130 of an early version H.R. 3 (109th Cong, 1st Sess., 2005),
which stated "the Federal motor carrier safety regulations (other
than regulations relating to commercial drivers license and drug and
alcohol testing requirements) shall apply to all interstate operations
of commercial motor vehicles used to transport between 9 and 15
passengers (including the driver), regardless of the distance
traveled." House Report 109-12 (109th Cong., 1st Sess., March 7,
2005), at 306.
The House committee report described the purpose of this provision
"This section directs the Secretary to extend the
Federal motor carrier safety regulations found in 49 Code of Federal
Regulations, Parts 387, 390 through 399 to all operations of
commercial motor vehicles designed to transport between nine and
fifteen passengers (including the driver), regardless of their
operational distance. This section amends the final rule issued by
DOT on August 12, 2003.
The Committee intends the Secretary to address this
situation through the rulemaking process. As part of the rulemaking,
the Secretary shall amend the final rule addressing commercial motor
vehicles transporting nine to fifteen passengers to specifically
exclude vanpool operations as defined by section 132(f) of the
Internal Revenue Code. The rulemaking also exempts stretch sedan
limousines that are designed to seat nine to fifteen passengers. The
rulemaking does not exempt SUV stretch limousines, or super stretch
sedan limousines that are designed to seat sixteen or more
passengers (including the driver)."
House Report 109-12, at 441.
The House and Senate conferees included in section 4136 of SAFETEA-
LU (as quoted above) a provision very similar to both the Senate and
House bills. But it reconciled the obviously different underlying
intentions of the two bodies with the following: "The conference
adopts the identical House and Senate language applying the Federal
Motor Carrier Safety Regulations to interstate van operations. Further,
the conference agrees to exempt vanpool operations."
House Conference Report No. 109-203 (109th Cong., 1st Sess., 2005)
at 1003. It appears from this history that the central, albeit narrow,
purpose of the statutory language ultimately adopted (which varied
little from the similar House and Senate proposals) was to apply,
regardless of the distance traveled, all FMCSRs applicable to
operations of vehicles designed to transport between 9 and 15
passengers (including the driver). Other than the change relating to
the distance traveled, other criteria determining the applicability of
the FMCSRs to such vehicles are unaffected by section 4136. The effect
of this central purpose on FMCSA's current regulations, and the changes
necessary to put it into effect, are discussed in more detail below.
However, it also appears the House committee's desire to exempt
"vanpool operations as defined in section 132(f) of the Internal
Revenue Code" and "stretch sedan limousines" from the rule required
by section 4136 was not accepted by the conference between the two
chambers, and was not included in the final statutory language.\1\
Moreover, it is not clear if the reference in the Conference Report to
"vanpool operations" was intended to refer to the same type of
operations described in the House report, and again the statutory
language of section 4136 does not include any exception or exemption
for "vanpool operations."
\1\ It is also not clear that the statutory language that passed
the House, which says nothing about any exceptions or exemptions,
would have been sufficient to require the implementation of the two
It is important to note that the Agency, like the courts, does not
have the authority to implement any of the exemptions contemplated by
the Conference Report or other legislative history. "In the absence
of a clearly expressed legislative intention to the contrary, the
language of the statute itself must ordinarily be regarded as
conclusive. * * * Unless exceptional circumstances dictate otherwise,
[w]hen we find the terms of a statute unambiguous, judicial inquiry is
complete." Burlington Northern R. Co. v. Oklahoma Tax Comm., 481 U.S.
454, 461 (1984) (internal quotations and citations omitted). In this
case, the unambiguous language of section 4136 is conclusive, and there
is no evidence of exceptional circumstances that would support a
different view as to the reach of the statute.
On August 12, 2003 (68 FR 47860), FMCSA published a final rule
making the FMCSRs applicable to all motor carriers operating CMVs
designed or used to transport between 9 and 15 passengers (including
the driver) in interstate commerce for direct compensation when the
vehicle is operated beyond a 75 air-mile radius (86.3 statute miles or
138.9 kilometers) from the driver's normal work-reporting location.
These requirements were based on the Agency's: (1) understanding of the
requirements of section 212 of the Motor Carrier Safety Improvement Act
of 1999 [Pub. L. 106-159, 113 Stat. 1764, December 9, 1999]; (2)
analysis of comments submitted in response to previous rulemaking
actions concerning the passenger vehicle component of the CMV
definition at 49 U.S.C. 31132(1). (See section 4008(a)(2) of the
Transportation Equity Act for the 21st Century [Pub. L. 105-178, 112
Stat. 107, June 9, 1998]); and (3) analysis of crash data concerning
large vans. The Agency indicated that it believed this approach would
be more effective than other alternatives for responding to
congressional and public safety concerns about what is commonly
referred to as long-haul van operations for direct compensation
throughout the United States, including for-hire vans operated by
foreign-based motor carriers into and out of the United States for
direct compensation. The 2003 final rule recounted and reviewed the
several legislative changes and regulatory actions that preceded that
All of the requirements adopted in that final rule applicable to
the operations of these smaller passenger-carrying vehicles for direct
compensation beyond a 75-air-mile radius are now made applicable by
this final rule, regardless of the distance traveled. This final rule
does not make any other changes in the applicability of the FMCSRs to
small-passenger-carrying vehicles. This means, for example, that
operators of such vehicles for indirect compensation are not subject to
the safety-related operational regulations in 49 CFR parts 390-399, and
are only subject to the provisions specifically included in amended 49
Similarly, this final rule would not apply to commuter vanpools
which FMCSA has previously indicated it did not believe Congress
intended for the Agency to regulate. Federal Motor Carrier Safety
Regulations; Definition of Commercial Motor Vehicle, 64 FR 48510, 48514
(Sept. 3, 1999) (IFR). The Agency stated in that IFR that the use of
the phrase "for compensation" in the definition of "commercial motor
vehicle" in 49 U.S.C. 31132(1)(B) meant that Congress intended for
regulation to "be limited to vans operated in the furtherance of a
commercial enterprise, which is generally not the case for commuter
vanpools * * * [T]he agency does not intend to regulate commuter
vanpools that are not operated in the furtherance of a commercial
enterprise." During its subsequent consideration of regulations for
small passenger-carrying vehicles, the Agency did not indicate any
change in this view of the scope of its regulatory authority. Federal
Motor Carrier Safety Regulations; Definition of Commercial Motor
Vehicle (CMV); Requirements for Operators of Small Passenger-Carrying
CMVs, 66 FR 2756, 2761, 2763 (Jan. 11, 2001) (final rule); Safety
Requirements for Operators of Small Passenger-Carrying Vehicles Used in
Interstate Commerce, 66 FR 2767, 2769 (Jan. 11, 2001) (notice of
proposed rulemaking); and 68 FR 47860 (Aug. 12, 2003) (final rule).
Therefore, the FMCSRs were and are still not applicable to "commuter
vanpools," and enactment of section 4136 of SAFETEA-LU did not change
this regulatory status.
On the other hand, the statute does have the effect of now applying
all of the operational FMCSRs to vanpools operated in furtherance of a
commercial enterprise within the 75 air-mile limit adopted in 2003.
Such operations would have been excluded from the application of the
FMCSRs only because of the distance traveled, and section 4136 has set
aside that limitation.
Finally, FMCSA also must point out that, as explained in the 1999
interim final rule, the operation of a van by an individual who
receives money from other participants in the vanpool is not considered
to be an operation in furtherance of a commercial enterprise. The
Agency "does not believe that this type of arrangement should be
considered 'for compensation' and does not intend to regulate such
operations." 64 FR 48514.
In summary, certain types of vanpool operations currently are not
subject to the FMCSRs for reasons other than the distance traveled.
Notwithstanding the absence of explicit statutory language in section
4136 concerning the apparent intention of the conference committee to
exempt "vanpool operations," FMCSA believes that many types of
vanpool operations have not been subject to the FMCSRs, and that the
operative language of section 4136 does not change that situation.
Effect of the Final Rule
The FMCSA amends the FMCSRs to require that motor carriers
operating CMVs designed or used to transport between 9 and 15
passengers (including the driver) in interstate commerce for direct
compensation comply with the regulations contained in 49 CFR parts 390,
391, 392, 393, 395 and 396, regardless of the distance traveled.
These motor carriers must comply with the general requirements
under part 390, including but not limited to vehicle marking
requirements. Motor carriers must ensure that every self-propelled CMV
they operate is marked as specified in paragraphs (b), (c), and (d)
under 49 CFR 390.21, including among other things, the requirement to
mark the vehicle with the USDOT Number and the legal name or a single
trade name of the motor carrier operating the vehicle. The final rule
eliminates the exception under Sec. 390.3(f)(6)(ii) which permitted
small passenger-carrying vehicles operated within a 75 air-mile radius
of the normal work reporting location to be marked only with the USDOT
Number and to exclude the legal or trade name.
These motor carriers are required to ensure that each of their
drivers meets all of the minimum qualifications for interstate CMV
drivers prescribed in part 391, including physical qualifications and
maintaining records to document compliance.
The rules in part 392 regarding driving of CMVs also are
applicable. Part 392 requirements include general prohibitions against
the use of alcohol, drugs and other substances while operating a CMV or
operating a CMV while ill or fatigued. The motor carrier must ensure
that its drivers comply with rules governing operation of CMVs at
railroad grade crossings, practices to ensure a CMV is safely stopped,
fueling precautions, and other general prohibited practices such as
transporting unauthorized persons, towing or pushing loaded buses.
Motor carriers must meet all applicable requirements in part 393
concerning parts and accessories necessary for safe operation of a CMV.
Applicable requirements include, among other things, lamps, reflective
devices, and electrical wiring; brakes; glazing and window
construction; fuel systems; and emergency equipment.
Under part 395, motor carriers must ensure that their drivers
comply with the applicable hours-of-service requirements for motor
carriers of passengers. Most, if not all, operators of small-passenger
carrying vehicles within the 75 air-mile limit and their drivers will
be covered by the short-haul operations provisions of 49 CFR Sec.
395.1(e)(1). If the driver operates within a 100 air-mile radius of the
normal work-reporting location and the driver returns to that location
and is released from work within 12 consecutive hours after starting
work, then the driver must not drive more than 10 hours after 8 hours
off duty and must have at least 8 consecutive hours off duty separating
each 12 hours on duty. Drivers covered by these short-haul provisions
are not required to maintain a record-of-duty status (log book).
However, the employer must maintain for 6 months records of each
driver's time of both reporting for and being released from duty, and
the number of hours on duty each day.
In accordance with 49 CFR 395.5, any drivers who operate beyond a
100 air-mile radius from the normal work-reporting location must not
drive more than 10 hours after 8 consecutive hours off duty or operate
CMVs after being on duty more than 15 hours, following 8 consecutive
hours off duty. Furthermore, drivers must not drive after being on duty
60 hours in any 7 consecutive days if the motor carrier does not
operate CMVs every day of the week (60-hour rule), or after being on
duty 70 hours in any eight consecutive days if the motor carrier
operates CMVs every day of the week (70-hour rule). In addition, 49 CFR
395.8 requires these drivers to document the number of hours on duty
and the number of hours driving and record his/her duty status.
Although these hours-of-service requirements will now be applicable
to operators within the 75 air-mile limit, FMCSA does not believe that
they will impose any additional cost burdens, for purposes of assessing
either the costs of this final rule or the burden of information
collection. These operators are most likely not currently allowing
drivers to drive more than 10 hours or to be on duty more than 12 or 15
hours. The information collection requirements are usually and
customarily met by maintenance of payroll records by the operators in
the ordinary course of business for drivers covered by the short-haul
In addition to the requirements described in the preceding
paragraphs, each motor carrier is required under part 396 to have a
systematic inspection, repair, and maintenance program for the CMVs it
operates, and to ensure that vehicles are in safe and proper operating
condition at all times. They are also required to maintain records to
document compliance with these rules. Motor carriers are required to
ensure that each vehicle is inspected at least once every 12 months by
a qualified inspector/mechanic and that any motor carrier employee who
is responsible for the adequacy of any brake-related inspection,
repair, or maintenance work meets certain minimum qualifications. They
must also maintain records to document compliance with these rules.
The FMCSA is not making the commercial driver's license and
controlled substances and alcohol testing requirements applicable to
operators of small passenger-carrying CMVs, because section 4136 does
not change the existing non-application of those requirements that
results from the statutory definition of CMV in 49 U.S.C. 31301(4) used
for those programs. Consequently, the passenger-carrying threshold for
CDL and controlled substances and alcohol testing requirements remains
at 16 passengers (including the driver).
New Entrant Program
The 2003 final rule required all motor carriers that operate CMVs
designed or used to transport between 9 and 15 passengers for direct
compensation to complete a motor carrier identification report (Form
MCS-150), and to obtain a USDOT Number. This included carriers
operating within the 75 air-mile exclusion. 49 CFR 390.3(f)(6). All
such carriers that have fulfilled the requirements of the 2003 final
rule would already be included in FMCSA's census of motor carriers and
would have been considered new entrants and subject to a limited new
entrant review to ensure their compliance with the very limited
requirements of the rule (i.e., maintaining an accident register and
marking of their CMVs).
Any carriers that have already registered will be subject to safety
requirements such as driver qualifications and hours of service and be
required to have appropriate safety management controls in place to
ensure compliance with the FMCSRs. However, any carriers not previously
registered will be considered new entrant motor carriers. Those
carriers will be covered by the revised New Entrant Safety Assurance
Process recently adopted by the Agency. 73 FR 76472 (Dec. 16, 2008).
Applicability of Safety Fitness Procedures to Operators of Small
Part 385 of the FMCSRs establishes procedures to determine the
safety fitness of motor carriers, to assign safety ratings, to take
remedial action when required, and to prohibit motor carriers receiving
a safety rating of "Unsatisfactory" from operating a CMV. As a result
of this final rule, motor carriers operating small passenger-carrying
CMVs within a 75 air-mile radius of the driver's normal work-reporting
location are now covered by the same safety fitness procedures and
standards used to evaluate other interstate motor carriers. This means
that motor carriers affected by this rulemaking are subject to
compliance reviews and will receive safety ratings. Those that receive
an "Unsatisfactory" safety rating will be prohibited from operating
CMVs to transport passengers in interstate commerce. In addition, these
motor carriers will be ineligible to contract or subcontract with any
Federal agency for transportation of passengers in interstate commerce.
The FMCSA is requiring that subject motor carriers comply with the
safety requirements 30 days after the effective date of the final rule.
This means that motor carriers have approximately 120 days after the
date of publication of this rule to comply with the safety regulations.
The Agency believes this is sufficient time for the motor carriers that
will be affected to establish and implement safety management controls
to achieve compliance with the FMCSRs.
Estimated Costs and Benefits of Imposing Safety-Related Requirements
The FMCSA has attempted to evaluate the potential costs of the
final rule. The Agency has considered currently available data
concerning the number of affected motor carriers, CMVs, and drivers.
The FMCSA estimates that approximately 12,200 motor carriers
currently have active authority to operate 9- to 15-passenger vehicles
for direct compensation. These 12,200 motor carriers operate
approximately 43,200 small passenger vehicles and employ roughly 57,900
drivers, all of which could potentially be affected by this rule. The
cost to complete medical examinations and certifications for drivers,
create and maintain driver qualification files, and inspect, repair and
maintain affected vehicles is estimated at $29 million for the first
year and $22 million for each additional year the rule is in effect. A
regulatory evaluation has been prepared and is available in the docket
for this rulemaking.
The FMCSA estimates there are 558 fatal crashes each year involving
large vans with between 9 and 15 passengers aboard at the time of the
crash (at a cost of $6.315 million per crash). The Agency estimates
there are 2,234 injury crashes each year involving 9- to 15-passenger
vehicles (at a cost of $0.336 million per crash). Therefore, the annual
reduction in crashes necessary for the benefits of the proposal to
outweigh the costs is only two-thirds of one percent (0.67%) of all
such crashes for the first year and one-half of one percent (0.51%) for
each additional year thereafter. The Agency believes the increased
focus on passenger carrier operations brought about by this rulemaking
will help to accomplish an improvement in safety.
Rulemaking Analyses and Notices
Under the Administrative Procedure Act (APA) (5 U.S.C. 553(b)), an
Agency may waive the normal notice and comment requirements if it
finds, for good cause, that they are impracticable, unnecessary, or
contrary to the public interest.
In this case, notice and comment are unnecessary. The final rule
amends FMCSA's regulations to make them consistent with section 4136 of
SAFETEA-LU, a provision which makes the FMCSRs applicable to the
operation of 9- to 15-passenger vehicles when such vehicles are
operated for direct compensation, in interstate commerce, regardless of
the distance traveled.
Because the statutory language does not provide FMCSA any
discretion in adopting the necessary changes to its regulations, FMCSA
finds good cause under 5 U.S.C. 553(b) that prior notice and comment on
this final rule is unnecessary.
Executive Order 12866 (Regulatory Planning and Review) and DOT=20
Regulatory Policies and Procedures
The FMCSA has determined that this rulemaking action is a not a
significant regulatory action within the meaning of Executive Order
12866 and is not significant within the meaning of Department of
Transportation regulatory policies and procedures because there has not
been substantial public interest concerning the extension of the
applicability of the FMCSRs to a larger population of for-hire motor
carriers of passengers.
This final rule requires that for hire operators of vehicles
designed or used to carry between 9 and 15 passengers (including the
driver) in interstate commerce comply with applicable provisions of 49
CFR parts 325 and 350-399 when the commercial vehicle is operated
within a 75 air-mile radius (86.3 statute miles or 138.9 kilometers)
from the driver's normal work-reporting location. These regulations
include, but are not limited to, 49 CFR part 391, Qualifications of
drivers; 49 CFR part 392, Driving of commercial motor vehicles; 49 CFR
part 393, Parts and accessories necessary for safe operation; 49 CFR
part 395, Hours of service of drivers; and 49 CFR part 396, Inspection,
repair, and maintenance.
Executive Order 12866 requires that regulatory agencies assess both
the costs and benefits of intended regulations and proposed regulations
on the basis that the benefits justify the costs. Based upon the
information above, the agency anticipates that the economic impact
associated with this rulemaking action will be $29 million for the
first year, and $22 million for each subsequent year. The benefits of
reducing fatal and injury crashes by 0.51% annually (0.67% in the first
year) would outweigh the estimated costs of the rule.
For purposes of Executive Order 12866, this rulemaking does not
impose an economic burden greater than $100 million on these motor
carriers. Therefore, a full regulatory evaluation is not necessary.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), FMCSA has considered the effects of this regulatory action on
small entities and determined that this final rule would not affect a
substantial number of small entities, but would have a significant
impact on those affected.
The FMCSA is requiring that all motor carriers operating CMVs
designed or used to transport between 9 and 15 passengers in interstate
made subject to the safety-related operational FMCSRs when they are
directly compensated for such services. This includes carriers
operating such vehicles within a 75 air-mile radius (86.3 statute miles
or 138.9 kilometers) from the driver's normal work-reporting location.
These motor carriers would be required to comply with 49 CFR parts 390,
391, 392, 393, 395, and 396.
If most or all of these businesses are classified as small
businesses by the Small Business Administration (SBA), the rule could
potentially affect up to approximately 12,200 small entities. However,
some of these small entities may be foreign-based motor carriers that
the agency is not required to include in the Regulatory Flexibility Act
analysis. To avoid underestimating the potential impact on small
entities, FMCSA is using an estimate of 12,200.
As indicated earlier, FMCSA estimates that the sum of all estimated
costs of requiring operators of small passenger-carrying CMVs to comply
with 49 CFR parts 391, 393, and 396 is approximately $29 million for
the first year and $22 million per year thereafter. If the costs of the
rulemaking are distributed evenly among these 12,200 motor carriers,
the costs per carrier would be approximately $2,400 for the first year
the requirements are in effect, and about $1,800 per year thereafter. A
summary of the estimated costs per motor carrier is presented below.
Summary of Costs per Motor Carrier To Comply With the FMCSRs
Medical Exam and Certification......
Create Driver Qualification Files...
Inspection, Repair, Maintenance
Grand Total Cost................
The FMCSA has reviewed data from the SBA to determine the typical
revenues for a motor carrier in the intercity and rural bus
transportation segment of the industry. This category description
appeared to be similar to the types of motor carrier operations that
would be covered by this rulemaking. The SBA's 1997 tables on
"Employer Firms, Employment and Estimated Receipts by Employment Size
of Firm" separated the firms into three groups: Those with less than
20 employees, those with less than 500 employees, and those with 500 or
The FMCSA focused on the group with less than 20 employees to be
consistent with the Agency's estimate of the number of drivers employed
by each of the 12,200 motor carriers likely to be affected by this
rule. The SBA data indicated there are 145 firms in this category with
combined revenues of $41,793,000. For the purpose of this analysis, the
revenues for the businesses in this group were divided by the number of
firms resulting in an estimate of $288,227 in revenues per year for
each carrier [($41,793,000/145 firms)].
The costs per carrier associated with this rule would, on average,
be approximately four-fifths of one percent (0.82%) of their revenues
[($2,369 costs per carrier)/($288,227 revenues per carrier)] for the
first year (and about three-fifths of one percent in any subsequent
year (0.0063 =$1,810/$288,227).
Given the cost per carrier of this rulemaking, it is important to
remember that the new rule, by reducing crashes, could also lower the
costs of operation--and for the average small business, a reduction of
just one injury crash every 142 years ($336,220/$2,369 =142) would be
enough for the benefits to outweigh the cost of this rulemaking.
The Agency believes the estimates presented above are reasonable
given the limited information available about this segment of the motor
carrier industry. Therefore, the Agency has made a determination that
this rule would not affect a substantial number of small entities.
Accordingly, FMCSA has considered the economic impacts of the
requirements on small entities and certifies that this rule will not
have a significant economic impact on a substantial number of small
Executive Order 12372 (Intergovernmental Review)
The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this program.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-
3520), Federal agencies must obtain approval from the Office of
Management and Budget (OMB) for each collection of information they
conduct, sponsor, or require through regulations. FMCSA has determined
that this final rule will impact three currently-approved information
OMB Control No. 2126-0003--Inspection, Repair and Maintenance
Motor carriers operating CMVs designed or used to transport between
9 and 15 passengers for direct compensation will be required to
maintain records of inspection, repair, and maintenance for their CMVs
in accordance with 49 CFR part 396. The information collection
requirements related to inspection, repair and maintenance have been
approved by the OMB under the provisions of the PRA and assigned OMB
Control No. 2126-0003, which expires on May 31, 2012.
The FMCSA estimates that it will take a total annual expenditure of
11 hours and 53 minutes per year per CMV to complete the required
recordkeeping related to vehicular inspection, repair, and maintenance
(48 minutes per vehicle per year for systematic inspection, repair, and
maintenance; 5 minutes per year per vehicle for periodic inspection;
and 11 hours per year per vehicle for driver vehicle inspection
reports). The driver vehicle inspection report component requires 2
minutes 35 seconds to complete and review one report per work day when
a driver finds no defects, and 3 minutes 20 seconds to complete and
review one report and certify that repairs have been made when a driver
finds a defect. FMCSA assumes that defects are discovered in 5 percent
of driver inspections. On average, the annual burden per vehicle for
driver inspection is 11 hours [250 working days per year x ((95% no
defects x 2 minutes 35 seconds) + (5% defects x 3 minutes 20 seconds) /
60 minutes per hour) = 10.92 hours =11 hours rounded].
Evidence of a person's qualifications to perform periodic vehicle
inspections must be retained by the motor carrier. Evidence of a
person's qualifications to be a brake inspector must also be retained.
The creation of these two types of qualification evidence involves an
estimated one-time, non-recurring expenditure of 5 minutes by a safety
director, driver supervisor, or equivalent position for each type of
inspector. Based on an estimate of 12,200 motor carriers that will be
subject to the final rule and on the assumption that each motor carrier
has at least one employee who is a qualified periodic vehicle inspector
and one employee who is a qualified brake inspector, the estimated
total time burden related to the inspector qualifications requirement
is approximately 2,034 hours [(5 minutes for each periodic vehicle
inspector certification x 12,200 motor carriers = 1,016.66 hours =
1,017 hours rounded) + (5 minutes for each brake inspector
certification x 12,200 motor carriers =1,016.66 hours = 1,017 hours
rounded) / 60 minutes per hour].
The FMCSA estimates that the total inspection, repair, and
maintenance recordkeeping burden is approximately 515,394 hours in Year
1 [(43,200 CMVs x 11 hours 53 minutes per year per CMV) / 60 minutes
per hour =513,360 hours + (2,034 hours in the first year for
inspector qualifications) =515,394 hours] and 513,360 hours in subsequent
[515,394 hours - 2,034 hours (one-time, non-recurring requirement)
513,360]. FMCSA has submitted the amended, inspection, repair, and
maintenance information collection to the OMB for review and approval.
OMB Control No. 2126-0004, Driver Qualification Files
The FMCSA estimates that there are currently 7,000,000 CMV drivers
subject to the FMCSRs. This new regulation governing 9-15 passenger
vans will subject approximately 57,900 additional CMV drivers, and
their motor carriers, to the rules pertaining to the driver
qualification file, or "DQ file," for the first time.
The regulations pertinent to the qualifications of CMV drivers are
contained in 49 CFR part 391. The evidence of each driver's
qualifications is housed in a DQ file under that driver's name. This
file must be made available to FMCSA investigators during a compliance
review of the motor carrier. The creation, collection and maintenance
of this evidence impose numerous paperwork burdens. FMCSA has prepared
detailed descriptions of the burden of each of the paperwork-related
tasks. These descriptions are included in the supporting statement
FMCSA has filed with the OMB (OMB Control 2126-0004) contemporaneously
with publication of this final rule. That document provides a full
explanation of the paperwork burden imposed on the 9-15 passenger van
industry today and details its small increase in the overall paperwork
burden of the DQ file requirements. Because current drivers will not
have to re-apply for their positions, the burden associated with
certain aspects of the application process will not be incurred when
the rule becomes effective, but will be incurred in subsequent years as
driver positions become vacant and will need to be filled. Conversely,
current drivers will require driver record and safety performance
investigations when the rule becomes effective, but the annual review
of these qualifications will only occur in subsequent years.
The various tasks of the DQ file requirements fall into 3
categories: Driver hiring, annual review of driving record, and safety
history responsibilities. Driver hiring includes the driver's
employment application, which FMCSA estimates requires 15 minutes on
average for the driver to complete, plus 1 minute for the motor carrier
to review. Driver hiring also includes obtaining a copy of the official
driving record of the driver from the appropriate jurisdiction(s).
FMCSA estimates that this takes an average of 5 minutes. FMCSA
estimates that the background investigation of the driver by the motor
carrier takes an average of 20 minutes, and that the carrier's
notification of the driver of his or her right to review and rebut
elements of the investigation takes 1 minute per driver. The small
percentage of CMV drivers who choose to review their history will, the
Agency estimates, take an average of 5 minutes to do so. The total
revised paperwork burden of these driver hiring tasks is 2,241,491
hours in the first year.
The annual review of driving record includes the certificate of
violations of traffic laws in the past year that is completed by the
CMV driver. This task requires an average of 2 minutes. The motor
carrier's request for the official driving record of the driver, its
review of the record when received, and filing it, takes an average of
5 minutes. For multiple-employer drivers, the Agency estimates only 1
minute is necessary because there is no requirement to obtain the
official driving record on these drivers. When the driver is furnished
to a motor carrier by the driver's regular employer, the Agency
estimates that this task takes 3 minutes. The total revised paperwork
burden of all the tasks related to the review of driving record is
838,834 hours in the first year.
Certain tasks related to the CMV driver's safety performance
history must be performed by the CMV driver, as well as some performed
by the hiring motor carrier, when a driver seeks to rebut the history
that previous employers have provided to the hiring motor carrier.
First, the driver-applicant consumes 3 minutes in drafting his or her
request for a copy of the safety performance history. Second, the
hiring motor carrier consumes an average of 3 minutes per request in
providing that record to the driver. Finally, those CMV drivers who
choose to formally rebut all or portions of the safety performance
history consume approximately 30 minutes in drafting and forwarding the
necessary information. The total revised paperwork burden of all the
tasks related to these driver history tasks is 198,380 hours in the
As stated, the additional DQ file paperwork burden in year one will
differ from that in all subsequent years. The only initial burden
during the first year will be 24,125 hours to obtain driver records (5
minutes) and safety performance histories (20 minutes) on the 57,900
current 9-15-passenger van drivers. In subsequent years, there will be
18,341 hours of additional burden related to hiring drivers to fill
current positions that have become vacant; an additional 6,939
associated with the annual review of driver qualifications; and an
additional 1,641 hours for other tasks associated with the safety
performance history. In sum, the additional paperwork burden incurred
by the 9-15 passenger drivers and motor carriers with respect to DQ
files will be 26,921 hours (18,341 + 6,939 + 1,641) in subsequent
years. When 24,125 hours are added to the currently-approved DQ file
paperwork burden of 3,254,580 hours, the estimated paperwork burden of
the DQ requirements increases to 3,278,705 burden hours, an increase of
less than 1 percent in the first year.
OMB Control No. 2126-0006, Medical Qualification Requirements
Drivers of CMVs designed or used to transport between 9 and 15
passengers for direct compensation will be required to meet the medical
examination and certification requirements at 49 CFR part 391, subpart
E. The information collection requirements related to medical
qualification requirements have been approved by OMB under the
provisions of the PRA and assigned OMB Control No. 2126-0006, which
expires on May 31, 2012.
Under this final rule, approximately 57,900 additional drivers will
be subject to FMCSA physical qualification standards. A medical
certificate usually is valid for 2 years after the date of examination.
However, drivers with certain medical conditions must be certified more
frequently than every 2 years. In addition, some employers require
newly hired drivers to obtain a new medical certification even if the
driver's current certificate is still valid. As a result of these
exceptions to the biennial medical certification schedule, the Agency
estimates that the actual number of medical certifications conducted
annually is 31 percent greater than would be the case if all drivers
were only examined biennially. Biennial examinations would result in
approximately 28,950 medical examinations per year, but the Agency
estimates that approximately 37,925 examinations are conducted annually
[28,950 regular medical examinations x 1.31 (31% out-of-cycle medical
examinations + 28,950 regular medical examinations) =37,925].
It takes a medical examiner approximately 20 minutes to complete,
document, and file the medical examination report and 1 minute to
complete the medical examiner's certificate and furnish one copy to the
person who was examined and one copy to the motor carrier who employs
him or her. It takes a motor carrier approximately 1 minute to file the
medical certificate. Therefore, the annual time burden for the medical
examination and certificate requirement is approximately 13,906 hours
per year [(37,925 certificates x 22 minutes per certificate per year) /
60 minutes per hour =13,905.83 hours =13,906 rounded]. FMCSA has
submitted the amended, medical qualification information collection to
the OMB for review and approval.
The total estimated additional time burden imposed by this final
rule will be 553,425 hours in Year 1 and 554,187 hours in subsequent
years as illustrated in the following table:
OMB control No.
the final rule in
the final rule in
National Environmental Policy Act
The FMCSA has analyzed this rulemaking in accordance with all
statutory and regulatory policies under the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.). A copy of the final
environmental assessment is included in the docket for this rulemaking.
Unfunded Mandates Reform Act of 1995
This final rule does not impose an unfunded Federal mandate, as
defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532 et
seq.), that will result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $141.3
million or more in any one year.
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
to eliminate ambiguity, and to reduce burden.
Executive Order 13045 (Protection of Children)
FMCSA has analyzed this action under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This final rule is not an economically significant rule and does
not concern an environmental risk to health or safety that may
disproportionately affect children.
Executive Order 12630 (Taking of Private Property)
This final rule will not effect a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Executive Order 13132 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132, dated August 4, 1999, and
it has been determined that this rulemaking does not have a substantial
direct effect or sufficient federalism implications on States that
would limit the policymaking discretion of the States. Nothing in this
document directly preempts any State law or regulation. This final rule
does not impose additional costs or burdens on the States.
List of Subjects in 49 CFR Part 390
Highway safety, Motor carriers, Motor vehicle identification and
marking, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, FMCSA amends part 390 of
title 49, Code of Federal Regulations, as follows:
1. The authority citation for part 390 is revised to read as follows:
Authority: 49 U.S.C. 508, 13301, 13902, 31132, 31133, 31136,
31144, 31151, 31502, 31504; sec. 204, Pub. L. 104-88, 109 Stat. 803,
941 (49 U.S.C. 701 note); sec. 114, Pub. L. 103-311, 108 Stat. 1673,
1677; sec. 212, 217, 229, Pub. L. 106-159, 113 Stat. 1748, 1766,
1767, 1773; sec. 4136, Pub. L. 109-59, 119 Stat. 1144, 1745 and 49
Sec. 390.3 [Amended]
2. In Sec. 390.3, remove paragraph (f)(6)(ii) and redesignate
paragraph (f)(6)(i) as paragraph (f)(6).
Issued on: January 26, 2010.
Anne S. Ferro, Administrator.
[FR Doc. 2010-1955 Filed 1-29-10; 8:45 am]
BILLING CODE 4910-EX-P