Lease and Interchange of Vehicles; Motor Carriers of Passengers

T.F. Scott Darling, III
Federal Motor Carrier Safety Administration
31 August 2016

[Federal Register Volume 81, Number 169 (Wednesday, August 31, 2016)]
[Proposed Rules]
[Pages 59951-59952]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-20609]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 390

[Docket No. FMCSA-2012-0103]
RIN 2126-AB90


Lease and Interchange of Vehicles; Motor Carriers of Passengers

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

ACTION: Notice of intent.

-----------------------------------------------------------------------

SUMMARY: FMCSA announces its intent to issue a rulemaking concerning 
revisions to its May 27, 2015, final rule titled ``Lease and 
Interchange of Vehicles; Motor Carriers of Passengers.'' The Agency 
received numerous petitions for reconsideration of the final rule and 
determined that amendments should be considered in response to some of 
the petitions. The aspects of the 2015 final rule to be reconsidered 
are discussed later in this document. In addition, FMCSA will hold a 
roundtable discussion on the scope of the issues to be addressed in the 
forthcoming rulemaking. The meeting will be public and will seek public 
input regarding the assignment of responsibility for safety violations 
to the correct party. Individuals with diverse experience, expertise, 
and perspectives are encouraged to attend. If all comments have been 
exhausted prior to the end of the session, the session may conclude 
early. The Agency intends to complete any regulatory action(s) taken in 
response to the petitions before January 1, 2018.

FOR FURTHER INFORMATION CONTACT: Ms. Loretta Bitner, (202) 385-2428, 
loretta.bitner@dot.gov, Office of Enforcement and Compliance. FMCSA 
office hours are from 9 a.m. to 5 p.m. ET, Monday through Friday, 
except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

    On May 27, 2015, FMCSA published a final rule concerning the lease 
and interchange of passenger-carrying commercial motor vehicles (CMVs) 
(80 FR 30164). The purpose of the rule is to identify the motor carrier 
operating a passenger-carrying CMV that is responsible for compliance 
with the Federal Motor Carrier Safety Regulations (FMCSRs) and ensure 
that a lessor surrenders control of the CMV for the full term of the 
lease or temporary exchange of CMV(s) and driver(s). The Agency 
received 37 petitions for reconsideration which have been filed in the 
public docket referenced above. Upon review of these requests, FMCSA 
concluded that some have merit. FMCSA, therefore, extended the 
compliance date of the final rule from January 1, 2017, to January 1, 
2018 (82 FR 13998; March 16, 2016) to allow the Agency time to complete 
its analysis and amend the rule where necessary.
    Petitioners made the following substantive arguments, which the 
Agency will address in subsequent rulemaking.

General Objections

    The petitioners generally argued that FMCSA has taken a regulatory 
scheme from the trucking industry and applied it to the bus industry, 
which has a vastly different operating structure and liability regimen. 
Moreover, the application of these truck regulations to the bus 
industry offers no additional protection to the public from illegal or 
unsafe bus operators. Instead, the final rule simply adds 
administrative costs and reduces operational flexibility for bus 
operators.
    Petitioners further stated that the final rule creates an economic 
and regulatory burden on passenger carriers that already operate safely 
and have a high degree of compliance. Some of the petitioners argue 
that those lease requirements will not stop carriers that choose to 
violate the regulations, yet will burden those who already operate 
safely and compliantly.
    A petitioner stated that while it supports efforts to identify and 
address chameleon carriers or carriers that may try to operate under 
the cloak of another carrier, the final rule does not accomplish this 
goal and in fact provides a roadmap for irresponsible carriers to 
operate legally under the authority of another carrier.
    One carrier stated that it had identified several instances where 
the final rule lacks sufficient clarity to enable it to comply, and 
that these issue areas have an effect on all of its operations. The 
final rule also adds administrative costs and reduces operational 
flexibility for charter and tour bus operations, which will, in the 
end, reduce connectivity and transportation options for the traveling 
public.
    Another carrier argued that the three 2008 crashes cited in the 
September 20, 2013 notice of proposed rulemaking (NPRM) involved a tire 
failure, driver error, and an insurance issue (78 FR 57822), and that 
nothing in the final rule would have prevented any of these crashes. 
The commenter also named two insurance companies that have restrictions 
in their policies that prohibit the use of non-owned equipment and non-
employed drivers, which were major concerns of the NPRM.
    Many of the objections raised by petitioners can be addressed by 
providing additional explanation. However, some of the issues discussed 
below may require regulatory changes; they fall into four major 
categories.

Four Changes Under Consideration

    (1) Exclusion of ``chartering'' (i.e., subcontracting) from the 
leasing

[[Page 59952]]

requirements. The 2015 rule merged the concepts of leasing with 
``chartering'' (subcontracting). Carriers routinely subcontract work to 
other registered carriers to handle demand surges, emergencies, or 
events that require more than the available capacity. Subcontractors 
with their own operating authority have traditionally assumed 
responsibility for their own vehicles/drivers. Under the 2015 rule, 
however, a passenger carrier that subcontracted work to another carrier 
would be responsible for that second carrier's compliance with the 
regulations. Petitioners claim that making a carrier responsible for 
the subcontractor's vehicles, drivers, and liability would make most 
short-term subcontracts impossible.
    (2) Amending the CMV requirements for the location of temporary 
markings for leased/interchanged vehicles. The petitioners argued that 
the frequent marking changes needed during leases or interchanges would 
be impractical and unnecessary because the information required is 
recorded on the driver's records of duty status for roadside inspectors 
and safety investigators to review; carriers will have to depend 
completely on their drivers to properly change vehicle markings dozens 
of times per day in remote locations; and it is unlikely that a member 
of the public is going to understand the significance of the markings 
in the event that he or she focuses on the temporary ``operated by'' 
markings rather than the permanent markings on the bus representing the 
vehicle owner.
    (3) Changing the requirement that carriers notify customers within 
24 hours when they subcontract service to other carriers. Petitioners 
argued that a 24-hour deadline is impractical because if an emergency 
maintenance issue occurs, it may not be possible to notify the customer 
in a timely manner, particularly if the issue occurs on the weekend, 
when the customer's offices are closed, and the start time is before 
the customer's Monday opening time.
    (4) Expanding the 48-hour delay in preparing a lease to include 
emergencies when passengers are not actually on board a bus. Sometimes 
events requiring a replacement vehicle might occur when there are no 
passengers on a vehicle, such as when Amtrak or airline service is 
suspended or disrupted and buses are needed to transport stranded 
passengers. A bus operator contracted to provide the rescue service 
might need to obtain additional drivers and vehicles from other 
carriers to meet the demand. There might be a last minute maintenance 
or mechanical issue, or driver illness, that arises late in the evening 
or during the night (such as on a multi-day charter or tour trip), or 
just prior to picking up a group for a charter or scheduled service 
run.
FMCSA Decision
    FMCSA plans to issue a rulemaking notice to address the four areas 
of concern listed above. The Agency believes that less burdensome 
regulatory alternatives that would not adversely impact safety could be 
adopted before the January 1, 2018. The Agency denies the petitions for 
reconsideration of all other aspects of the final rule. These petitions 
either would have impaired the purpose of the final rule or did not 
include practical alternatives.
    The Agency will provide petitioners with written notification of 
these decisions at a later date.
Public Roundtable
    FMCSA will hold a public roundtable to discuss the four issue areas 
discussed above. The public will have an opportunity to speak about 
these issues and provide the Agency with information on how to address 
them. All public comments will be placed in the docket of this 
rulemaking. Details concerning the schedule and location of the 
roundtable, as well as procedural information for participants, will 
follow in a subsequent Federal Register notice.

    Issued on: August 19, 2016.
T.F. Scott Darling, III,
Administrator.
[FR Doc. 2016-20609 Filed 8-30-16; 8:45 am]
 BILLING CODE 4910-EX-P