Raising the Bar on Small Vehicle Safety

On August 12, 2003, in yet another bold step in its commitment to cut motorcoach-related fatalities in half, the Federal Motor Carrier Safety Administration capped off a marathon, five-year examination of small vehicle safety by releasing final rulemaking: Safety Requirements for Operators of Small Passenger-Carrying Commercial Motor Vehicles Used in Interstate Commerce (49 CFR Parts 390 and 398 [Docket No. FMCSA-2000-7017, RIN 2126-AA52; 47860 Federal Register/Vol. 68, No. 155].

In summary, all commercial motor vehicles (CMVs) designed to carry between nine and 15 passengers (including the driver) must now comply with the same regulations governing motorcoach operations (with two exceptions related to alcohol/drug-testing and CDLs) when (a) directly compensated for service, and (b) the vehicle is operated beyond a 75-mile air radius (86.3 “statute miles”) from the driver’s normal work-reporting location. While a few interpretations may appear fuzzy at the outset, there are essentially no exceptions other than the two noted. The 75-mile rule refines and replaces the ANPRM concept of “for interstate commerce.” The FMCSA felt that most services for which commenters sought exceptions (airport/hotel shuttles, transportation of migrant workers, ancillary recreational services) would be provided less than 75 miles away from their storage yards, and would receive their fair share of exemptions for that reason – not because of any special interests. Beyond fair and straightforward, the rulemaking’s striking lack of exceptions suggests a commitment to across-the-board application of rigorous analysis and scientifically-valid principles to the regulatory process. Reflecting the rulemaking’s clarity, entire sections of this author’s overview are lifted verbatim from the rulemaking.

The new rule implements section 212 of the Motor Carrier Safety Improvement Act of 1999 (MCSIA), which arose as a Congressional Mandate, and was incorporated into subsequent transit legislation (TEA-21) with two primary goals: Regulate those commercial vans known as “camionetas,” and regulate small vehicles operating in interstate commerce outside of commercial zones, and which have been determined to pose serious safety risks. So in one sense, this rulemaking is part of the ongoing refinement of NAFTA.

Action and Angst

The Administration’s urgency in this matter – and the message it sends about the agency’s seriousness about its goals – may be inferred from both the implementation timetable and the rulemaking’s content: Full compliance is required for all vehicles covered by November 10, 2003 – a mere 90 days from the rulemaking’s announcement. Full compliance involves a lot of change.

While motorcoaches are half-heartedly promoted as yachts on wheels, it is surprising to learn how many industry vehicles and services are not consistent with this vision. When the new rulemaking began unfolding in 1998, the Taxicab, Limousine & Paratransit Association estimated the operation of 74,000 vans nationwide, with an average fleet size fewer than 10 vehicles (by comparison, the median motorcoach fleet contains only four vehicles). The TLPA argued that approximately 14,000 companies, 125,000 vehicles and 165,000 drivers would be affected by the rulemaking envisioned. In its recent analysis, the FMCSA estimated that roughly 1843 vehicles and 22,000 drivers would be affected. Nevertheless, compliance with parts 391, 395, and 396 of the rulemaking is estimated to cost $23,850,000 for the first year and $20,184,234 each year thereafter. And the “total additional hour burden was estimated to be 1,088,177 hours.

Shake-Ups and Shake-Outs

One interest surprise was the rulemaking’s focus on the distance threshold traveled by drivers, rather than that traveled by the passengers. At the same time, some subtleties may yet be sorted out during implementation and start-up.

One of the rulemaking’s components which makes it somewhat complex stems from the history of its development. The decision for promulgate the rulemaking was based on: (1) The FMCSA’s understanding of Congress’s and the commercial passenger carrier industry’s usage of the term ‘‘camionetas,”; (2) analysis of comments submitted in response to the agency’s August 5, 1998 (63 FR 41766) Advance Notice of Proposed Rulemaking (ANPRM) concerning the definition of CMV; (3) analysis of comments submitted in response to the September 3, 1999 interim final rule and NPRM; (4) analysis of comments submitted in response to the January 11, 2001 NPRM; and (5) an analysis of accident data concerning commercial van transportation of passengers.

As defined statutorily, “CMV” means “… a self-propelled or towed vehicle used on the highways in interstate commerce to transport passengers or property, if the vehicle – (a) has a gross vehicle weight rating or gross vehicle weight of at least 10,001 pounds, whichever is greater; (b) is designed or used to transport more than 8 passengers (including the driver) for compensation; (c) is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; OR (d) is used in transporting material found by the Secretary of transportation to be hazardous under section 5103 of this title and transported in a quantity requiring placarding under regulations prescribed by the Secretary under section 5103. The pejorative term is ‘or’ – which appears to close the loophole for large vehicles configured to transport fewer than 15 passengers – a configuration common among mid- or large-size accessible van conversions, cutaway vans and cab-and-chassis conversions with multiple wheelchair securement positions. Particularly as many such vehicles are still powered by gasoline (some with engines inside the passenger compartment), and the resulting emergency evacuation challenges they represent, these new regulations help close some of the safety gaps which mobility-impaired passengers were forced to experience in the past. Further, the rulemaking will also help enforce the prohibition against home-to-school trips (or at least long ones) provided in “non-conforming vans” – a prohibition which many operators have skirted simply by deploying smaller vehicles.

The most problematic adjustment to this rulemaking is likely to occur as states react to it by creating intrastate counterparts which may mirror or conflict with it. Indeed, the FMCSA anticipates such adjustments: “Although FMCSA agrees with the [many] commenters that States should have compatible regulations, the agency does not believe it is necessary to require that all States adopt intrastate requirements that are compatible with this final rule. The agency continues to believe that State agencies should be given flexibility in responding to unique safety issues or concerns involving the intrastate operation of small passenger carrying vehicles.”

As a practical matter, state counterparts to this rulemaking are likely to be vividly different: One hardly expects the legislatures in land-locked farm country or northern Rust Belt states to react with the same scope, force, message or urgency as those in Mexican border states. The variation of intrastate rulemaking is likely to pose some difficulties for national and large regional operators – although most of these operators likely manage their small vehicle operations according to the same or similar principles and practices they apply to those involving larger vehicles. Mimicry of the FMCSA rulemaking, particularly by large carriers, could reinforce the goals, and accelerate the progress, which FMCSA apparently hopes for and intend.

Some nifty thinking is also needed to reconcile the definition of a CMV with that of the rulemaking. The CMV definition applies to vehicles operated (a) more than 75 miles from the drivers’ report-to-work location and (b) for compensation. This discrepancy appears to cast some ambiguity over operations like school-owned motorcoaches providing field trips (for which they do not charge the students), or ancillary transportation services provided in-house by social service agencies, camps or social/recreational organizations. Presumably trying to reconcile such issues, FMCSA in its rulemaking states, “To avoid potential confusion, the exception under §390.3(f)(6) has been revised to exempt the operation of CMVs designed or used to transport between 9 and 15 passengers, not for direct compensation, provided the vehicle does not otherwise meet the definition of a commercial motor vehicle (emphasis added). The agency believes that the proposed regulatory language could have been misunderstood to imply that vehicles designed or used to transport between 9 and 15 passengers, not for direct compensation, are exempt from the FMCSRs, even if the CMV meets the 10,001-pound weight threshold for applicability of the safety regulations, or is used to transport hazardous materials in a quantity requiring the use of placards.” My reaction: Huh?! Methinks some clarification adventures lie in the FMCSA’s future.

Leashing or Lashing the Laggards

In summarizing FMCSA’s objectives, the rulemaking states, “These actions were intended to enable the agency to monitor the operational safety of all motor carriers operating small passenger-carrying vehicles for compensation. In addition, the … requirements were intended to help the agency compile information on the number of motor carriers operating small passenger-carrying vehicles for compensation, the location of their principal places of business, the number of vehicles operated, and the number of drivers employed. The agency believes that this approach will be more effective than other alternatives for responding to congressional and public safety concerns about the use of small passenger-carrying CMVs in long-haul for-hire operations throughout the United States, including such operations for compensation by foreign-based motor carriers to and from the United States.”

Clarifying these objectives, the rulemaking identifies a range of practices and procedures to which small vehicle operators will now be subject – affecting both drivers and vehicles. These provisions include:

  • The disqualification provisions of 49 CFR 391.15
  • Compliance with the driving rules of Part 392
  • Vehicles must meet all applicable requirements in Part 393 concerning parts and accessories necessary for safe operation
  • Operators must file a motor carrier identification report (Form MCS–150) (49 CFR 390.19)
  • Vehicles must be marked with a USDOT identification number (49 CFR 390.21)
  • Operators must maintain an accident register (49 CFR 390.15)
  • Operators must comply with the Safety Fitness Procedures (section 385.1, as amended on May 13, 2002 [67 FR 31978], by the interim final rule concerning new entrant motor carriers
  • Part 385 is now applicable to all motor carriers subject to the FMCSRs, except non-business private motor carriers of passengers
  • Part 396 requires that each motor carrier have a systematic inspection, repair, and maintenance program for the CMVs it operates, and must ensure that vehicles are in safe and proper operating condition at all times (and operators must maintain records to document compliance with these rules)
  • Operators must ensure that each vehicle is inspected at least once every 12 months by a qualified inspector/mechanic, and that any motor carrier employee responsible for the adequacy of any brake-related inspection, repair, or maintenance work meets certain minimum qualifications (and must maintain records to document compliance with these rules)
  • Operators must ensure that their drivers comply with the hours-of-service requirements of part 395, including reporting, recordkeeping, verifying, and responding to law enforcement requests.
  • Drivers subject to the rule are required to obtain a medical examiner’s certificate.
  • Operators must maintain Driver Qualification Files
  • Operators must maintain records of each driver’s duty status

Whimpering While Winning

For those whining about these changes – largely those who operate smaller vehicles – it must be noted that the FMCSA received only 29 comments to its NPRM, although both the ABA and UMA were among them. Taking the long view, one cannot in fairness complain about rate-cutting or other demons of deregulation while simultaneously criticizing the FMCSA’s efforts to remove them from the playing field. One might argue that the enforcement of existing regulations has hardly been exhausted. A more constructive view might argue that the new rulemaking provides yet another tool targeted at the same common problems.

The threads which inexorably links together regulators and their constituents is the need to improve and enforce safety standards, limit exposure, and decrease rates for insurance premiums. Apart from their obvious safety and liability payoffs, these themes are also arrows in the quiver targeted to raising fares and increasing profits. Since motorcoach operators seem unable to either lower costs or increase fares, the most workable course of action seems to be to raise standards fore the competition. The new rulemaking promises to accomplish this – although, as always, promises must be kept to have meaning.

Safety and Liability

In a general emergency like the Blackout, standards for safety and liability are, and should be, suspended. However, what dangers otherwise emerged were greatly compounded by the public sector’s failure to control pedestrian and vehicular movement on streets and intersections.

As a practical reality, private companies are far more vulnerable to liability than public agencies. To begin with, many public agencies have a broad degree of immunity. In many states, damages are limited. Even more significantly, most victims’ attorneys do not understand lead agency complicity in negligence, and have an even lower opinion of a juror’s understanding of or appreciation for it. Because of their insurance requirements, and “common carrier” responsibility, private companies are generally viewed as “deep pockets” – even though their operating environments are conditioned largely by public agency efforts or failures. Signalization, lighting and traffic control comprise three primary elements of this environment, all of which were non-existent or severely deficient during the Blackout. As a consequence, most private transportation providers not only lost money – expending additional resources while charging no fares – but did so at considerable risk.

Beyond the Blips

All serious members of the motorcoach industry are urged to review the rulemaking in its entirety, and to seek clarification of those sections which are unclear, and additional information needed for implementation or compliance:

  • For access to the docket, in order to read background documents or comments received, go to http://dms.dot.gov
  • For phone numbers and addresses, go to http://www.fmcsa.dot.gov/aboutus/fieldoffs, or call 1–800–832–5660, or Fax (202) 366–8842, FMCSA, Attn: Commercial Passenger Carrier Safety Division (MC–PSB), Washington, DC 20590.
Publications: National Bus Trader.