
[Federal Register: February 1, 2010 (Volume 75, Number 20)]
[Rules and Regulations]               
[Page 4996-5002]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01fe10-4]                         

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 390

[Docket No. FMCSA-2009-0127]
RIN 2126-AA98

 
Safety Requirements for Operators of Small Passenger-Carrying 
Commercial Motor Vehicles Used in Interstate Commerce

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Final rule.

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SUMMARY: The FMCSA amends the Federal Motor Carrier Safety Regulations 
(FMCSRs) to require that motor carriers operating commercial motor 
vehicles (CMVs), designed or used to transport between 9 and 15 
passengers (including the driver), in interstate commerce for direct 
compensation comply with the safety regulations regardless of the 
distance traveled. Specifically, this rule makes certain FMCSRs 
applicable to the operation of such vehicles when they are operated 
within a 75 air-mile radius (86.3 statute miles or 138.9 kilometers) 
from the driver's normal work-reporting location. Motor carriers, 
drivers, and the vehicles operated by them will be subject to the same 
safety requirements imposed upon such vehicles when they are operated 
beyond a 75-air-mile radius. This action is required by the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
for Users (SAFETEA-LU).

DATES: Effective: This rule is effective May 3, 2010. Compliance: Motor 
carriers must be in compliance with this rule no later than June 1, 
2010.

FOR FURTHER INFORMATION CONTACT: Ms. Loretta Bitner, Chief, Commercial 
Passenger Carrier Safety Division, Office of Enforcement and 
Compliance; (202) 385-2428; loretta.bitner@dot.gov.
    Docket: For access to the docket to read background documents 
including those referenced in this document go to 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.

SUPPLEMENTARY INFORMATION: 

Legal Basis for the Rulemaking

    Section 4136 of SAFETEA-LU [Pub. L. 109-59, 119 Stat. 1144, 1745, 
August 10, 2005] (set out as a note to 49 U.S.C. 31136) states that 
``[t]he Federal motor carrier safety regulations that apply to 
interstate operations of commercial motor vehicles designed to 
transport between 9 and 15 passengers (including the driver) shall 
apply to all interstate operations of such carriers regardless of the 
distance traveled.''
    The FMCSA notes that the legislative history of this provision of 
SAFETEA-LU is sparse and, in some respects, inconsistent with the 
mandate of section 4136. The Senate bill (S. 1567, 109th Cong. 1st 
Sess. (July 29, 2005)) that contained the provisions relating to motor 
carrier safety that became part of SAFETEA-LU included the following 
provisions, in section 106(2): ``The Secretary of Transportation shall 
* * * ensure that Federal motor carrier safety regulations that apply 
to interstate operations of commercial motor vehicles designed to 
transport between 9 and 15 passengers (including the driver) apply to 
all interstate operations of such carries [sic] regardless of the 
distance traveled.''
    The committee report accompanying this bill said that this 
provision ``would ensure that the Secretary enforces Federal motor 
carrier safety regulations that apply to interstate CMVs designed to 
transport between 9 and 15 passengers, regardless of the distance 
traveled.'' Sen. Report No. 109-120 (109th Cong. 1st Sess., July 29, 
2005), at 20.
    In the House of Representatives, similar language was found in 
section 4130 of an early version H.R. 3 (109th Cong, 1st Sess., 2005), 
which stated ``[t]he Federal motor carrier safety regulations (other 
than regulations relating to commercial drivers license and drug and 
alcohol testing requirements) shall apply to all interstate operations 
of commercial motor vehicles used to transport between 9 and 15 
passengers (including the driver), regardless of the distance 
traveled.'' House Report 109-12 (109th Cong., 1st Sess., March 7, 
2005), at 306.
    The House committee report described the purpose of this provision 
as follows:

     ``This section directs the Secretary to extend the 
Federal motor carrier safety regulations found in 49 Code of Federal 
Regulations, Parts 387, 390 through 399 to all operations of 
commercial motor vehicles designed to transport between nine and

[[Page 4997]]

fifteen passengers (including the driver), regardless of their 
operational distance. This section amends the final rule issued by 
DOT on August 12, 2003.
     The Committee intends the Secretary to address this 
situation through the rulemaking process. As part of the rulemaking, 
the Secretary shall amend the final rule addressing commercial motor 
vehicles transporting nine to fifteen passengers to specifically 
exclude vanpool operations as defined by section 132(f) of the 
Internal Revenue Code. The rulemaking also exempts stretch sedan 
limousines that are designed to seat nine to fifteen passengers. The 
rulemaking does not exempt SUV stretch limousines, or super stretch 
sedan limousines that are designed to seat sixteen or more 
passengers (including the driver).''

House Report 109-12, at 441.
    The House and Senate conferees included in section 4136 of SAFETEA-
LU (as quoted above) a provision very similar to both the Senate and 
House bills. But it reconciled the obviously different underlying 
intentions of the two bodies with the following: ``The conference 
adopts the identical House and Senate language applying the Federal 
Motor Carrier Safety Regulations to interstate van operations. Further, 
the conference agrees to exempt vanpool operations.''
    House Conference Report No. 109-203 (109th Cong., 1st Sess., 2005) 
at 1003. It appears from this history that the central, albeit narrow, 
purpose of the statutory language ultimately adopted (which varied 
little from the similar House and Senate proposals) was to apply, 
regardless of the distance traveled, all FMCSRs applicable to 
operations of vehicles designed to transport between 9 and 15 
passengers (including the driver). Other than the change relating to 
the distance traveled, other criteria determining the applicability of 
the FMCSRs to such vehicles are unaffected by section 4136. The effect 
of this central purpose on FMCSA's current regulations, and the changes 
necessary to put it into effect, are discussed in more detail below.
    However, it also appears the House committee's desire to exempt 
``vanpool operations as defined in section 132(f) of the Internal 
Revenue Code'' and ``stretch sedan limousines'' from the rule required 
by section 4136 was not accepted by the conference between the two 
chambers, and was not included in the final statutory language.\1\ 
Moreover, it is not clear if the reference in the Conference Report to 
``vanpool operations'' was intended to refer to the same type of 
operations described in the House report, and again the statutory 
language of section 4136 does not include any exception or exemption 
for ``vanpool operations.''
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    \1\ It is also not clear that the statutory language that passed 
the House, which says nothing about any exceptions or exemptions, 
would have been sufficient to require the implementation of the two 
desired exemptions.
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    It is important to note that the Agency, like the courts, does not 
have the authority to implement any of the exemptions contemplated by 
the Conference Report or other legislative history. ``[I]n the absence 
of a clearly expressed legislative intention to the contrary, the 
language of the statute itself must ordinarily be regarded as 
conclusive. * * * Unless exceptional circumstances dictate otherwise, 
[w]hen we find the terms of a statute unambiguous, judicial inquiry is 
complete.'' Burlington Northern R. Co. v. Oklahoma Tax Comm., 481 U.S. 
454, 461 (1984) (internal quotations and citations omitted). In this 
case, the unambiguous language of section 4136 is conclusive, and there 
is no evidence of exceptional circumstances that would support a 
different view as to the reach of the statute.

Background

    On August 12, 2003 (68 FR 47860), FMCSA published a final rule 
making the FMCSRs applicable to all motor carriers operating CMVs 
designed or used to transport between 9 and 15 passengers (including 
the driver) in interstate commerce for direct compensation when the 
vehicle is operated beyond a 75 air-mile radius (86.3 statute miles or 
138.9 kilometers) from the driver's normal work-reporting location. 
These requirements were based on the Agency's: (1) understanding of the 
requirements of section 212 of the Motor Carrier Safety Improvement Act 
of 1999 [Pub. L. 106-159, 113 Stat. 1764, December 9, 1999]; (2) 
analysis of comments submitted in response to previous rulemaking 
actions concerning the passenger vehicle component of the CMV 
definition at 49 U.S.C. 31132(1). (See section 4008(a)(2) of the 
Transportation Equity Act for the 21st Century [Pub. L. 105-178, 112 
Stat. 107, June 9, 1998]); and (3) analysis of crash data concerning 
large vans. The Agency indicated that it believed this approach would 
be more effective than other alternatives for responding to 
congressional and public safety concerns about what is commonly 
referred to as long-haul van operations for direct compensation 
throughout the United States, including for-hire vans operated by 
foreign-based motor carriers into and out of the United States for 
direct compensation. The 2003 final rule recounted and reviewed the 
several legislative changes and regulatory actions that preceded that 
final rule.
    All of the requirements adopted in that final rule applicable to 
the operations of these smaller passenger-carrying vehicles for direct 
compensation beyond a 75-air-mile radius are now made applicable by 
this final rule, regardless of the distance traveled. This final rule 
does not make any other changes in the applicability of the FMCSRs to 
small-passenger-carrying vehicles. This means, for example, that 
operators of such vehicles for indirect compensation are not subject to 
the safety-related operational regulations in 49 CFR parts 390-399, and 
are only subject to the provisions specifically included in amended 49 
CFR 390.3(f)(6).
    Similarly, this final rule would not apply to commuter vanpools 
which FMCSA has previously indicated it did not believe Congress 
intended for the Agency to regulate. Federal Motor Carrier Safety 
Regulations; Definition of Commercial Motor Vehicle, 64 FR 48510, 48514 
(Sept. 3, 1999) (IFR). The Agency stated in that IFR that the use of 
the phrase ``for compensation'' in the definition of ``commercial motor 
vehicle'' in 49 U.S.C. 31132(1)(B) meant that Congress intended for 
regulation to ``be limited to vans operated in the furtherance of a 
commercial enterprise, which is generally not the case for commuter 
vanpools * * * [T]he agency does not intend to regulate commuter 
vanpools that are not operated in the furtherance of a commercial 
enterprise.'' During its subsequent consideration of regulations for 
small passenger-carrying vehicles, the Agency did not indicate any 
change in this view of the scope of its regulatory authority. Federal 
Motor Carrier Safety Regulations; Definition of Commercial Motor 
Vehicle (CMV); Requirements for Operators of Small Passenger-Carrying 
CMVs, 66 FR 2756, 2761, 2763 (Jan. 11, 2001) (final rule); Safety 
Requirements for Operators of Small Passenger-Carrying Vehicles Used in 
Interstate Commerce, 66 FR 2767, 2769 (Jan. 11, 2001) (notice of 
proposed rulemaking); and 68 FR 47860 (Aug. 12, 2003) (final rule). 
Therefore, the FMCSRs were and are still not applicable to ``commuter 
vanpools,'' and enactment of section 4136 of SAFETEA-LU did not change 
this regulatory status.
    On the other hand, the statute does have the effect of now applying 
all of the operational FMCSRs to vanpools operated in furtherance of a 
commercial enterprise within the 75 air-mile limit adopted in 2003. 
Such operations would have been excluded from the application of the 
FMCSRs only because of the distance traveled, and section 4136 has set 
aside that limitation.

[[Page 4998]]

    Finally, FMCSA also must point out that, as explained in the 1999 
interim final rule, the operation of a van by an individual who 
receives money from other participants in the vanpool is not considered 
to be an operation in furtherance of a commercial enterprise. The 
Agency ``does not believe that this type of arrangement should be 
considered `for compensation' and does not intend to regulate such 
operations.'' 64 FR 48514.
    In summary, certain types of vanpool operations currently are not 
subject to the FMCSRs for reasons other than the distance traveled. 
Notwithstanding the absence of explicit statutory language in section 
4136 concerning the apparent intention of the conference committee to 
exempt ``vanpool operations,'' FMCSA believes that many types of 
vanpool operations have not been subject to the FMCSRs, and that the 
operative language of section 4136 does not change that situation.

Effect of the Final Rule

    The FMCSA amends the FMCSRs to require that motor carriers 
operating CMVs designed or used to transport between 9 and 15 
passengers (including the driver) in interstate commerce for direct 
compensation comply with the regulations contained in 49 CFR parts 390, 
391, 392, 393, 395 and 396, regardless of the distance traveled.
    These motor carriers must comply with the general requirements 
under part 390, including but not limited to vehicle marking 
requirements. Motor carriers must ensure that every self-propelled CMV 
they operate is marked as specified in paragraphs (b), (c), and (d) 
under 49 CFR 390.21, including among other things, the requirement to 
mark the vehicle with the USDOT Number and the legal name or a single 
trade name of the motor carrier operating the vehicle. The final rule 
eliminates the exception under Sec.  390.3(f)(6)(ii) which permitted 
small passenger-carrying vehicles operated within a 75 air-mile radius 
of the normal work reporting location to be marked only with the USDOT 
Number and to exclude the legal or trade name.
    These motor carriers are required to ensure that each of their 
drivers meets all of the minimum qualifications for interstate CMV 
drivers prescribed in part 391, including physical qualifications and 
maintaining records to document compliance.
    The rules in part 392 regarding driving of CMVs also are 
applicable. Part 392 requirements include general prohibitions against 
the use of alcohol, drugs and other substances while operating a CMV or 
operating a CMV while ill or fatigued. The motor carrier must ensure 
that its drivers comply with rules governing operation of CMVs at 
railroad grade crossings, practices to ensure a CMV is safely stopped, 
fueling precautions, and other general prohibited practices such as 
transporting unauthorized persons, towing or pushing loaded buses.
    Motor carriers must meet all applicable requirements in part 393 
concerning parts and accessories necessary for safe operation of a CMV. 
Applicable requirements include, among other things, lamps, reflective 
devices, and electrical wiring; brakes; glazing and window 
construction; fuel systems; and emergency equipment.
    Under part 395, motor carriers must ensure that their drivers 
comply with the applicable hours-of-service requirements for motor 
carriers of passengers. Most, if not all, operators of small-passenger 
carrying vehicles within the 75 air-mile limit and their drivers will 
be covered by the short-haul operations provisions of 49 CFR Sec.  
395.1(e)(1). If the driver operates within a 100 air-mile radius of the 
normal work-reporting location and the driver returns to that location 
and is released from work within 12 consecutive hours after starting 
work, then the driver must not drive more than 10 hours after 8 hours 
off duty and must have at least 8 consecutive hours off duty separating 
each 12 hours on duty. Drivers covered by these short-haul provisions 
are not required to maintain a record-of-duty status (log book). 
However, the employer must maintain for 6 months records of each 
driver's time of both reporting for and being released from duty, and 
the number of hours on duty each day.
    In accordance with 49 CFR 395.5, any drivers who operate beyond a 
100 air-mile radius from the normal work-reporting location must not 
drive more than 10 hours after 8 consecutive hours off duty or operate 
CMVs after being on duty more than 15 hours, following 8 consecutive 
hours off duty. Furthermore, drivers must not drive after being on duty 
60 hours in any 7 consecutive days if the motor carrier does not 
operate CMVs every day of the week (60-hour rule), or after being on 
duty 70 hours in any eight consecutive days if the motor carrier 
operates CMVs every day of the week (70-hour rule). In addition, 49 CFR 
395.8 requires these drivers to document the number of hours on duty 
and the number of hours driving and record his/her duty status.
    Although these hours-of-service requirements will now be applicable 
to operators within the 75 air-mile limit, FMCSA does not believe that 
they will impose any additional cost burdens, for purposes of assessing 
either the costs of this final rule or the burden of information 
collection. These operators are most likely not currently allowing 
drivers to drive more than 10 hours or to be on duty more than 12 or 15 
hours. The information collection requirements are usually and 
customarily met by maintenance of payroll records by the operators in 
the ordinary course of business for drivers covered by the short-haul 
operations provisions.
    In addition to the requirements described in the preceding 
paragraphs, each motor carrier is required under part 396 to have a 
systematic inspection, repair, and maintenance program for the CMVs it 
operates, and to ensure that vehicles are in safe and proper operating 
condition at all times. They are also required to maintain records to 
document compliance with these rules. Motor carriers are required to 
ensure that each vehicle is inspected at least once every 12 months by 
a qualified inspector/mechanic and that any motor carrier employee who 
is responsible for the adequacy of any brake-related inspection, 
repair, or maintenance work meets certain minimum qualifications. They 
must also maintain records to document compliance with these rules.
    The FMCSA is not making the commercial driver's license and 
controlled substances and alcohol testing requirements applicable to 
operators of small passenger-carrying CMVs, because section 4136 does 
not change the existing non-application of those requirements that 
results from the statutory definition of CMV in 49 U.S.C. 31301(4) used 
for those programs. Consequently, the passenger-carrying threshold for 
CDL and controlled substances and alcohol testing requirements remains 
at 16 passengers (including the driver).

New Entrant Program

    The 2003 final rule required all motor carriers that operate CMVs 
designed or used to transport between 9 and 15 passengers for direct 
compensation to complete a motor carrier identification report (Form 
MCS-150), and to obtain a USDOT Number. This included carriers 
operating within the 75 air-mile exclusion. 49 CFR 390.3(f)(6). All 
such carriers that have fulfilled the requirements of the 2003 final 
rule would already be included in FMCSA's census of motor carriers and 
would have been considered new entrants and subject to a limited new 
entrant review to ensure their compliance with the very limited 
requirements of the rule (i.e., maintaining an accident register and 
marking of their CMVs).

[[Page 4999]]

    Any carriers that have already registered will be subject to safety 
requirements such as driver qualifications and hours of service and be 
required to have appropriate safety management controls in place to 
ensure compliance with the FMCSRs. However, any carriers not previously 
registered will be considered new entrant motor carriers. Those 
carriers will be covered by the revised New Entrant Safety Assurance 
Process recently adopted by the Agency. 73 FR 76472 (Dec. 16, 2008).

Applicability of Safety Fitness Procedures to Operators of Small 
Passenger-Carrying CMVs

    Part 385 of the FMCSRs establishes procedures to determine the 
safety fitness of motor carriers, to assign safety ratings, to take 
remedial action when required, and to prohibit motor carriers receiving 
a safety rating of ``Unsatisfactory'' from operating a CMV. As a result 
of this final rule, motor carriers operating small passenger-carrying 
CMVs within a 75 air-mile radius of the driver's normal work-reporting 
location are now covered by the same safety fitness procedures and 
standards used to evaluate other interstate motor carriers. This means 
that motor carriers affected by this rulemaking are subject to 
compliance reviews and will receive safety ratings. Those that receive 
an ``Unsatisfactory'' safety rating will be prohibited from operating 
CMVs to transport passengers in interstate commerce. In addition, these 
motor carriers will be ineligible to contract or subcontract with any 
Federal agency for transportation of passengers in interstate commerce.

Implementation Schedule

    The FMCSA is requiring that subject motor carriers comply with the 
safety requirements 30 days after the effective date of the final rule. 
This means that motor carriers have approximately 120 days after the 
date of publication of this rule to comply with the safety regulations. 
The Agency believes this is sufficient time for the motor carriers that 
will be affected to establish and implement safety management controls 
to achieve compliance with the FMCSRs.

Estimated Costs and Benefits of Imposing Safety-Related Requirements

    The FMCSA has attempted to evaluate the potential costs of the 
final rule. The Agency has considered currently available data 
concerning the number of affected motor carriers, CMVs, and drivers.
    The FMCSA estimates that approximately 12,200 motor carriers 
currently have active authority to operate 9- to 15-passenger vehicles 
for direct compensation. These 12,200 motor carriers operate 
approximately 43,200 small passenger vehicles and employ roughly 57,900 
drivers, all of which could potentially be affected by this rule. The 
cost to complete medical examinations and certifications for drivers, 
create and maintain driver qualification files, and inspect, repair and 
maintain affected vehicles is estimated at $29 million for the first 
year and $22 million for each additional year the rule is in effect. A 
regulatory evaluation has been prepared and is available in the docket 
for this rulemaking.
    The FMCSA estimates there are 558 fatal crashes each year involving 
large vans with between 9 and 15 passengers aboard at the time of the 
crash (at a cost of $6.315 million per crash). The Agency estimates 
there are 2,234 injury crashes each year involving 9- to 15-passenger 
vehicles (at a cost of $0.336 million per crash). Therefore, the annual 
reduction in crashes necessary for the benefits of the proposal to 
outweigh the costs is only two-thirds of one percent (0.67%) of all 
such crashes for the first year and one-half of one percent (0.51%) for 
each additional year thereafter. The Agency believes the increased 
focus on passenger carrier operations brought about by this rulemaking 
will help to accomplish an improvement in safety.

Rulemaking Analyses and Notices

    Under the Administrative Procedure Act (APA) (5 U.S.C. 553(b)), an 
Agency may waive the normal notice and comment requirements if it 
finds, for good cause, that they are impracticable, unnecessary, or 
contrary to the public interest.
    In this case, notice and comment are unnecessary. The final rule 
amends FMCSA's regulations to make them consistent with section 4136 of 
SAFETEA-LU, a provision which makes the FMCSRs applicable to the 
operation of 9- to 15-passenger vehicles when such vehicles are 
operated for direct compensation, in interstate commerce, regardless of 
the distance traveled.
    Because the statutory language does not provide FMCSA any 
discretion in adopting the necessary changes to its regulations, FMCSA 
finds good cause under 5 U.S.C. 553(b) that prior notice and comment on 
this final rule is unnecessary.

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The FMCSA has determined that this rulemaking action is a not a 
significant regulatory action within the meaning of Executive Order 
12866 and is not significant within the meaning of Department of 
Transportation regulatory policies and procedures because there has not 
been substantial public interest concerning the extension of the 
applicability of the FMCSRs to a larger population of for-hire motor 
carriers of passengers.
    This final rule requires that for hire operators of vehicles 
designed or used to carry between 9 and 15 passengers (including the 
driver) in interstate commerce comply with applicable provisions of 49 
CFR parts 325 and 350-399 when the commercial vehicle is operated 
within a 75 air-mile radius (86.3 statute miles or 138.9 kilometers) 
from the driver's normal work-reporting location. These regulations 
include, but are not limited to, 49 CFR part 391, Qualifications of 
drivers; 49 CFR part 392, Driving of commercial motor vehicles; 49 CFR 
part 393, Parts and accessories necessary for safe operation; 49 CFR 
part 395, Hours of service of drivers; and 49 CFR part 396, Inspection, 
repair, and maintenance.
    Executive Order 12866 requires that regulatory agencies assess both 
the costs and benefits of intended regulations and proposed regulations 
on the basis that the benefits justify the costs. Based upon the 
information above, the agency anticipates that the economic impact 
associated with this rulemaking action will be $29 million for the 
first year, and $22 million for each subsequent year. The benefits of 
reducing fatal and injury crashes by 0.51% annually (0.67% in the first 
year) would outweigh the estimated costs of the rule.
    For purposes of Executive Order 12866, this rulemaking does not 
impose an economic burden greater than $100 million on these motor 
carriers. Therefore, a full regulatory evaluation is not necessary.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), FMCSA has considered the effects of this regulatory action on 
small entities and determined that this final rule would not affect a 
substantial number of small entities, but would have a significant 
impact on those affected.
    The FMCSA is requiring that all motor carriers operating CMVs 
designed or used to transport between 9 and 15 passengers in interstate 
commerce be

[[Page 5000]]

made subject to the safety-related operational FMCSRs when they are 
directly compensated for such services. This includes carriers 
operating such vehicles within a 75 air-mile radius (86.3 statute miles 
or 138.9 kilometers) from the driver's normal work-reporting location. 
These motor carriers would be required to comply with 49 CFR parts 390, 
391, 392, 393, 395, and 396.
    If most or all of these businesses are classified as small 
businesses by the Small Business Administration (SBA), the rule could 
potentially affect up to approximately 12,200 small entities. However, 
some of these small entities may be foreign-based motor carriers that 
the agency is not required to include in the Regulatory Flexibility Act 
analysis. To avoid underestimating the potential impact on small 
entities, FMCSA is using an estimate of 12,200.
    As indicated earlier, FMCSA estimates that the sum of all estimated 
costs of requiring operators of small passenger-carrying CMVs to comply 
with 49 CFR parts 391, 393, and 396 is approximately $29 million for 
the first year and $22 million per year thereafter. If the costs of the 
rulemaking are distributed evenly among these 12,200 motor carriers, 
the costs per carrier would be approximately $2,400 for the first year 
the requirements are in effect, and about $1,800 per year thereafter. A 
summary of the estimated costs per motor carrier is presented below.

      Summary of Costs per Motor Carrier To Comply With the FMCSRs
------------------------------------------------------------------------
               Cost of                   First year         Each year
------------------------------------------------------------------------
Medical Exam and Certification......            $1,556            $1,019
Create Driver Qualification Files...                62                40
Inspection, Repair, Maintenance                    751               751
 Process............................
                                     -----------------------------------
    Grand Total Cost................             2,369             1,810
------------------------------------------------------------------------

    The FMCSA has reviewed data from the SBA to determine the typical 
revenues for a motor carrier in the intercity and rural bus 
transportation segment of the industry. This category description 
appeared to be similar to the types of motor carrier operations that 
would be covered by this rulemaking. The SBA's 1997 tables on 
``Employer Firms, Employment and Estimated Receipts by Employment Size 
of Firm'' separated the firms into three groups: Those with less than 
20 employees, those with less than 500 employees, and those with 500 or 
more employees.
    The FMCSA focused on the group with less than 20 employees to be 
consistent with the Agency's estimate of the number of drivers employed 
by each of the 12,200 motor carriers likely to be affected by this 
rule. The SBA data indicated there are 145 firms in this category with 
combined revenues of $41,793,000. For the purpose of this analysis, the 
revenues for the businesses in this group were divided by the number of 
firms resulting in an estimate of $288,227 in revenues per year for 
each carrier [($41,793,000/145 firms)].
    The costs per carrier associated with this rule would, on average, 
be approximately four-fifths of one percent (0.82%) of their revenues 
[($2,369 costs per carrier)/($288,227 revenues per carrier)] for the 
first year (and about three-fifths of one percent in any subsequent 
year (0.0063 = $1,810/$288,227).
    Given the cost per carrier of this rulemaking, it is important to 
remember that the new rule, by reducing crashes, could also lower the 
costs of operation--and for the average small business, a reduction of 
just one injury crash every 142 years ($336,220/$2,369 = 142) would be 
enough for the benefits to outweigh the cost of this rulemaking.
    The Agency believes the estimates presented above are reasonable 
given the limited information available about this segment of the motor 
carrier industry. Therefore, the Agency has made a determination that 
this rule would not affect a substantial number of small entities. 
Accordingly, FMCSA has considered the economic impacts of the 
requirements on small entities and certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities.

Executive Order 12372 (Intergovernmental Review)

    The regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on Federal programs and activities do 
not apply to this program.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-
3520), Federal agencies must obtain approval from the Office of 
Management and Budget (OMB) for each collection of information they 
conduct, sponsor, or require through regulations. FMCSA has determined 
that this final rule will impact three currently-approved information 
collections.

OMB Control No. 2126-0003--Inspection, Repair and Maintenance

    Motor carriers operating CMVs designed or used to transport between 
9 and 15 passengers for direct compensation will be required to 
maintain records of inspection, repair, and maintenance for their CMVs 
in accordance with 49 CFR part 396. The information collection 
requirements related to inspection, repair and maintenance have been 
approved by the OMB under the provisions of the PRA and assigned OMB 
Control No. 2126-0003, which expires on May 31, 2012.
    The FMCSA estimates that it will take a total annual expenditure of 
11 hours and 53 minutes per year per CMV to complete the required 
recordkeeping related to vehicular inspection, repair, and maintenance 
(48 minutes per vehicle per year for systematic inspection, repair, and 
maintenance; 5 minutes per year per vehicle for periodic inspection; 
and 11 hours per year per vehicle for driver vehicle inspection 
reports). The driver vehicle inspection report component requires 2 
minutes 35 seconds to complete and review one report per work day when 
a driver finds no defects, and 3 minutes 20 seconds to complete and 
review one report and certify that repairs have been made when a driver 
finds a defect. FMCSA assumes that defects are discovered in 5 percent 
of driver inspections. On average, the annual burden per vehicle for 
driver inspection is 11 hours [250 working days per year x ((95% no 
defects x 2 minutes 35 seconds) + (5% defects x 3 minutes 20 seconds) / 
60 minutes per hour) = 10.92 hours = 11 hours rounded].
    Evidence of a person's qualifications to perform periodic vehicle 
inspections must be retained by the motor carrier. Evidence of a 
person's qualifications to be a brake inspector must also be retained. 
The creation of these two types of qualification evidence involves an 
estimated one-time, non-recurring expenditure of 5 minutes by a safety

[[Page 5001]]

director, driver supervisor, or equivalent position for each type of 
inspector. Based on an estimate of 12,200 motor carriers that will be 
subject to the final rule and on the assumption that each motor carrier 
has at least one employee who is a qualified periodic vehicle inspector 
and one employee who is a qualified brake inspector, the estimated 
total time burden related to the inspector qualifications requirement 
is approximately 2,034 hours [(5 minutes for each periodic vehicle 
inspector certification x 12,200 motor carriers = 1,016.66 hours = 
1,017 hours rounded) + (5 minutes for each brake inspector 
certification x 12,200 motor carriers = 1,016.66 hours = 1,017 hours 
rounded) / 60 minutes per hour].
    The FMCSA estimates that the total inspection, repair, and 
maintenance recordkeeping burden is approximately 515,394 hours in Year 
1 [(43,200 CMVs x 11 hours 53 minutes per year per CMV) / 60 minutes 
per hour = 513,360 hours + (2,034 hours in the first year for inspector 
qualifications) = 515,394 hours] and 513,360 hours in subsequent years. 
[515,394 hours - 2,034 hours (one-time, non-recurring requirement) = 
513,360]. FMCSA has submitted the amended, inspection, repair, and 
maintenance information collection to the OMB for review and approval.

OMB Control No. 2126-0004, Driver Qualification Files

    The FMCSA estimates that there are currently 7,000,000 CMV drivers 
subject to the FMCSRs. This new regulation governing 9-15 passenger 
vans will subject approximately 57,900 additional CMV drivers, and 
their motor carriers, to the rules pertaining to the driver 
qualification file, or ``DQ file,'' for the first time.
    The regulations pertinent to the qualifications of CMV drivers are 
contained in 49 CFR part 391. The evidence of each driver's 
qualifications is housed in a DQ file under that driver's name. This 
file must be made available to FMCSA investigators during a compliance 
review of the motor carrier. The creation, collection and maintenance 
of this evidence impose numerous paperwork burdens. FMCSA has prepared 
detailed descriptions of the burden of each of the paperwork-related 
tasks. These descriptions are included in the supporting statement 
FMCSA has filed with the OMB (OMB Control 2126-0004) contemporaneously 
with publication of this final rule. That document provides a full 
explanation of the paperwork burden imposed on the 9-15 passenger van 
industry today and details its small increase in the overall paperwork 
burden of the DQ file requirements. Because current drivers will not 
have to re-apply for their positions, the burden associated with 
certain aspects of the application process will not be incurred when 
the rule becomes effective, but will be incurred in subsequent years as 
driver positions become vacant and will need to be filled. Conversely, 
current drivers will require driver record and safety performance 
investigations when the rule becomes effective, but the annual review 
of these qualifications will only occur in subsequent years.
    The various tasks of the DQ file requirements fall into 3 
categories: Driver hiring, annual review of driving record, and safety 
history responsibilities. Driver hiring includes the driver's 
employment application, which FMCSA estimates requires 15 minutes on 
average for the driver to complete, plus 1 minute for the motor carrier 
to review. Driver hiring also includes obtaining a copy of the official 
driving record of the driver from the appropriate jurisdiction(s). 
FMCSA estimates that this takes an average of 5 minutes. FMCSA 
estimates that the background investigation of the driver by the motor 
carrier takes an average of 20 minutes, and that the carrier's 
notification of the driver of his or her right to review and rebut 
elements of the investigation takes 1 minute per driver. The small 
percentage of CMV drivers who choose to review their history will, the 
Agency estimates, take an average of 5 minutes to do so. The total 
revised paperwork burden of these driver hiring tasks is 2,241,491 
hours in the first year.
    The annual review of driving record includes the certificate of 
violations of traffic laws in the past year that is completed by the 
CMV driver. This task requires an average of 2 minutes. The motor 
carrier's request for the official driving record of the driver, its 
review of the record when received, and filing it, takes an average of 
5 minutes. For multiple-employer drivers, the Agency estimates only 1 
minute is necessary because there is no requirement to obtain the 
official driving record on these drivers. When the driver is furnished 
to a motor carrier by the driver's regular employer, the Agency 
estimates that this task takes 3 minutes. The total revised paperwork 
burden of all the tasks related to the review of driving record is 
838,834 hours in the first year.
    Certain tasks related to the CMV driver's safety performance 
history must be performed by the CMV driver, as well as some performed 
by the hiring motor carrier, when a driver seeks to rebut the history 
that previous employers have provided to the hiring motor carrier. 
First, the driver-applicant consumes 3 minutes in drafting his or her 
request for a copy of the safety performance history. Second, the 
hiring motor carrier consumes an average of 3 minutes per request in 
providing that record to the driver. Finally, those CMV drivers who 
choose to formally rebut all or portions of the safety performance 
history consume approximately 30 minutes in drafting and forwarding the 
necessary information. The total revised paperwork burden of all the 
tasks related to these driver history tasks is 198,380 hours in the 
first year.
    As stated, the additional DQ file paperwork burden in year one will 
differ from that in all subsequent years. The only initial burden 
during the first year will be 24,125 hours to obtain driver records (5 
minutes) and safety performance histories (20 minutes) on the 57,900 
current 9-15-passenger van drivers. In subsequent years, there will be 
18,341 hours of additional burden related to hiring drivers to fill 
current positions that have become vacant; an additional 6,939 
associated with the annual review of driver qualifications; and an 
additional 1,641 hours for other tasks associated with the safety 
performance history. In sum, the additional paperwork burden incurred 
by the 9-15 passenger drivers and motor carriers with respect to DQ 
files will be 26,921 hours (18,341 + 6,939 + 1,641) in subsequent 
years. When 24,125 hours are added to the currently-approved DQ file 
paperwork burden of 3,254,580 hours, the estimated paperwork burden of 
the DQ requirements increases to 3,278,705 burden hours, an increase of 
less than 1 percent in the first year.

OMB Control No. 2126-0006, Medical Qualification Requirements

    Drivers of CMVs designed or used to transport between 9 and 15 
passengers for direct compensation will be required to meet the medical 
examination and certification requirements at 49 CFR part 391, subpart 
E. The information collection requirements related to medical 
qualification requirements have been approved by OMB under the 
provisions of the PRA and assigned OMB Control No. 2126-0006, which 
expires on May 31, 2012.
    Under this final rule, approximately 57,900 additional drivers will 
be subject to FMCSA physical qualification standards. A medical 
certificate usually is valid for 2 years after the date of examination. 
However, drivers with certain medical conditions must be certified more 
frequently than every 2 years. In addition, some employers require 
newly hired drivers to obtain a new medical certification even if the

[[Page 5002]]

driver's current certificate is still valid. As a result of these 
exceptions to the biennial medical certification schedule, the Agency 
estimates that the actual number of medical certifications conducted 
annually is 31 percent greater than would be the case if all drivers 
were only examined biennially. Biennial examinations would result in 
approximately 28,950 medical examinations per year, but the Agency 
estimates that approximately 37,925 examinations are conducted annually 
[28,950 regular medical examinations x 1.31 (31% out-of-cycle medical 
examinations + 28,950 regular medical examinations) = 37,925].
    It takes a medical examiner approximately 20 minutes to complete, 
document, and file the medical examination report and 1 minute to 
complete the medical examiner's certificate and furnish one copy to the 
person who was examined and one copy to the motor carrier who employs 
him or her. It takes a motor carrier approximately 1 minute to file the 
medical certificate. Therefore, the annual time burden for the medical 
examination and certificate requirement is approximately 13,906 hours 
per year [(37,925 certificates x 22 minutes per certificate per year) / 
60 minutes per hour = 13,905.83 hours = 13,906 rounded]. FMCSA has 
submitted the amended, medical qualification information collection to 
the OMB for review and approval.
    The total estimated additional time burden imposed by this final 
rule will be 553,425 hours in Year 1 and 554,187 hours in subsequent 
years as illustrated in the following table:

----------------------------------------------------------------------------------------------------------------
                                                                                                   Additional
                                                                                 Additional       burden hours
                                                                Currently       burden hours     associated with
                      OMB control No.                        approved annual   associated with   the final rule
                                                              burden hours     the final rule     in subsequent
                                                                                  in Year 1           years
----------------------------------------------------------------------------------------------------------------
2126-0003.................................................        59,214,494           515,394           513,360
2126-0004.................................................         3,254,580            24,125            26,921
2126-0006.................................................         1,682,701            13,906            13,906
                                                           -----------------------------------------------------
    Total.................................................        64,151,775           553,425           554,187
----------------------------------------------------------------------------------------------------------------

National Environmental Policy Act

    The FMCSA has analyzed this rulemaking in accordance with all 
statutory and regulatory policies under the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321 et seq.). A copy of the final 
environmental assessment is included in the docket for this rulemaking.

Unfunded Mandates Reform Act of 1995

    This final rule does not impose an unfunded Federal mandate, as 
defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532 et 
seq.), that will result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of $141.3 
million or more in any one year.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
to eliminate ambiguity, and to reduce burden.

Executive Order 13045 (Protection of Children)

    FMCSA has analyzed this action under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This final rule is not an economically significant rule and does 
not concern an environmental risk to health or safety that may 
disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    This final rule will not effect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

Executive Order 13132 (Federalism Assessment)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132, dated August 4, 1999, and 
it has been determined that this rulemaking does not have a substantial 
direct effect or sufficient federalism implications on States that 
would limit the policymaking discretion of the States. Nothing in this 
document directly preempts any State law or regulation. This final rule 
does not impose additional costs or burdens on the States.

List of Subjects in 49 CFR Part 390

    Highway safety, Motor carriers, Motor vehicle identification and 
marking, Reporting and recordkeeping requirements.

0
For the reasons set forth in the preamble, FMCSA amends part 390 of 
title 49, Code of Federal Regulations, as follows:

PART 390--[AMENDED]

0
1. The authority citation for part 390 is revised to read as follows:

    Authority:  49 U.S.C. 508, 13301, 13902, 31132, 31133, 31136, 
31144, 31151, 31502, 31504; sec. 204, Pub. L. 104-88, 109 Stat. 803, 
941 (49 U.S.C. 701 note); sec. 114, Pub. L. 103-311, 108 Stat. 1673, 
1677; sec. 212, 217, 229, Pub. L. 106-159, 113 Stat. 1748, 1766, 
1767, 1773; sec. 4136, Pub. L. 109-59, 119 Stat. 1144, 1745 and 49 
CFR 1.73.


Sec.  390.3  [Amended]

0
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

