Vanpool Regulations

Federal Motor Carrier Safety Regulations: Definition of Commercial Motor Vehicle; Interim Final Rule

The following material was prepared to help describe the applicability of the Commercial Drivers License requirement to vanpooling.

The Federal Highway Administration (FHWA) considered amending the Federal Motor Carrier Safety Regulations (FMCSRs) in response to TEA-21 because Section 4008(a) amends the definition of the term "commercial motor vehicle'' (CMV) in 49 U.S.C. 31132(1) to cover vehicles "designed or used to transport more than 8 passengers (including the driver) for compensation.'' The change could make the FMCSRs applicable to a considerable number of entities, including operators of small commuter vans, not now subject to them.

The Motor Carrier Safety Act of 1984 (MCSA) defined a "commercial motor vehicle'' as one having a gross vehicle weight rating (GVWR) of 10,001 pounds or more; designed to transport more than 15 passengers, including the driver; or transporting hazardous materials in quantities requiring the vehicle to be placarded. This definition was the basis for the regulatory definition of a CMV, which determines the jurisdictional limits and applicability of most of the FMCSRs.

The Senate Committee on Commerce, Science and Transportation, in a report which accompanied the MCSA stated: "The 10,000-pound limit, which is in the current BMCS (Bureau of Motor Carrier Safety, now the FHWA's Office of Motor Carriers) regulations, is proposed to focus enforcement efforts and because small vans and pickup trucks are more analogous to automobiles than to medium and heavy commercial vehicles, and can best be regulated under State automobile licensing, inspection, and traffic surveillance procedures. Although the MCSA demonstrated congressional intent to focus the applicability of the FMCSRs on larger vehicles, Congress did not repeal Sec. 204 of the Motor Carrier Act of 1935. This statute authorizes the FHWA to regulate the safety of all for-hire motor carriers of passengers and property, and private carriers of property without respect to the weight or passenger capacity of the vehicles they operate.

According to the Federal Register, when the Congress enacted the Commercial Motor Vehicle Safety Act of 1986 to require implementation of a single, classified commercial driver's license program, it also limited the motor vehicles subject to the program to those designed to transport more than 15 passengers, including the driver. This, too, revealed the congressional policy of applying available Federal motor carrier safety resources to larger vehicles. The ICC Termination Act of 1995 (ICCTA) changed the MCSA definition of a commercial motor vehicle. As amended, section 31132(1) defined a commercial motor vehicle, in part, as a vehicle that is "designed or used to transport passengers for compensation, but exclud(es) vehicles providing taxicab service and having a capacity of not more than 6 passengers and not operated on a regular route or between specified places; (or) is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation.'' The ICCTA authorized, but did not require, the FHWA to change the FMCSRs accordingly; the agency did not incorporate the amended language into the CMV definition in Sec. 390.5. Section 4008(a)(2) of TEA-21 again amended the passenger-vehicle component of the CMV definition in 49 U.S.C. 31132(1).

Commercial motor vehicle is now defined to mean a self-propelled or towed vehicle used on the highways in interstate commerce to transport passengers or property, if the vehicle-- (1) Has a gross vehicle weight rating or gross vehicle weight of at least 10,001 pounds, whichever is greater; (2) Is designed or used to transport more than 8 passengers (including the driver) for compensation; (3) Is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or (4) Is used in transporting material found by the Secretary of Transportation to be hazardous under section 5103 of this title and transported in a quantity requiring placarding under regulations prescribed by the Secretary under section 5103.

Under Sec. 4008(b), operators of the CMVs defined by section 31132(1)(B) will automatically become subject to the FMCSRs one year after the date of enactment of TEA-21, if they are not already covered, "except to the extent that the Secretary (of Transportation) determines, through a rulemaking proceeding, that it is appropriate to exempt such operators of commercial motor vehicles from the application of those regulations.''

The FHWA viewed section 4008 of TEA-21 as a mandate to impose the FMCSRs on previously unregulated smaller capacity vehicles such as commuter vanpools. Although the House Conference Report on the ICCTA definitional change directed the agency not to impose on the States (as grant conditions under the Motor Carrier Safety Assistance Program (MCSAP)) the burden of regulating a new population of carriers covered by the definition, no such restriction is included in TEA-21 or its legislative history. The mandate of TEA-21 is thus stricter than that of the ICCTA. Still, the FHWA is authorized to undertake rulemaking to exempt some of these passenger vehicles from the FMCSRs.

If the FHWA made the FMCSRs applicable to drivers of small passenger carrying commercial motor vehicles, the drivers of these vehicles (unless an exception was provided), would be required to:

1. Demonstrate that he or she is capable of operating safely the vehicle they are assigned, and they have a valid drivers license. According to FHWA, "the determination of the driver's ability may be based upon experience, training, or both."

2. Successfully complete a road test, or present an operator's license (or a certificate of road test) to the motor carrier for acceptance as an equivalent to a road test. The carrier can accept a CDL in lieu of administering a road test if the driver was required to successfully complete a road test to obtain the license. Small passenger carrying vehicles could be allowed to accept a license other than a CDL, if that license required a road test. Since the operating characteristics of vehicles designed to used to transport 9 to 15 passengers, including the driver, are similar to vehicles most drivers are capable of driving (i.e., vans, full-sized sport utility vehicles, and commuter vans), and the amount of time and effort needed to conduct the road test would be reasonable.

3. Be subject to drug and alcohol testing, which includes pre-screen, reasonable suspicion, random post-accident and follow-up testing Based on an interim final rulemaking released in the Federal Register on September 3, 1999, not for hire vanpool programs and/or individuals operating vanpools are exempt from pending federal regulations.

FHWA issued the following statement in that Federal Register concerning vanpools: "An example of transportation that would not be covered by this rulemaking is commuter vanpools. The FHWA understands that passengers in vanpools pay a monthly fee to an individual who either owns or leases the van. The FHWA does not believe this is a business. The individual uses this money not as a source of income or in the furtherance of a commercial enterprise, but to pay for the van, insurance premiums, fuel and maintenance. There may be surplus funds each month that are put into reserve to cover unexpected costs or losses of revenue during periods in which vanpool membership decreases. The FHWA, however, does not believe that this type of arrangement should be considered "for compensation" and does not intend to regulate such operations. The agency requests comments on the nature of these operations."

The interim final rule means that an exemption from the proposed new requirement for purposes of expanding commercial drivers license has been tentatively been rescinded. However, FHWA has released an interim rulemaking with this vanpool exemption.

Since there are other, yet to be determined, regulatory affects for other parties; the rulemaking continues until a "final rule" is announced.

For more information, read Federal Register (pdf file) for September 3, 1999.

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