[Senate Report 110-395]
[From the U.S. Government Publishing Office]
110th Congress
2d Session SENATE Report
110-395
_______________________________________________________________________
Calendar No. 829
OVER-THE-ROAD BUS TRANSPORTATION ACCESSIBILITY ACT OF 2007
__________
R E P O R T
of the
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
H.R. 3985
June 23, 2008.--Ordered to be printed
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred tenth congress
second session
DANIEL K. INOUYE, Hawaii, Chairman
TED STEVENS, Alaska, Vice-Chairman
JOHN D. ROCKEFELLER IV, West JOHN McCAIN, Arizona
Virginia KAY BAILEY HUTCHISON, Texas
JOHN F. KERRY, Massachusetts OLYMPIA J. SNOWE, Maine
BYRON L. DORGAN, North Dakota GORDON H. SMITH, Oregon
BARBARA BOXER, California JOHN ENSIGN, Nevada
BILL NELSON, Florida JOHN E. SUNUNU, New Hampshire
MARIA CANTWELL, Washington JIM DeMINT, South Carolina
FRANK R. LAUTENBERG, New Jersey DAVID VITTER, Louisiana
MARK PRYOR, Arkansas JOHN THUNE, South Dakota
THOMAS CARPER, Delaware ROGER F. WICKER, Mississippi
CLAIRE McCASKILL, Missouri
AMY KLOBUCHAR, Minnesota
Margaret Cummisky, Staff Director and Chief Counsel
Lila Helms, Deputy Staff Director and Policy Director
Jean Toal Eisen, Senior Advisor and Deputy Policy Director
Christine Kurth, Republican Staff Director and General Counsel
Paul J. Nagle, Republican Chief Counsel
Mimi Braniff, Republican Deputy Chief Counsel
Calendar No. 829
110th Congress Report
SENATE
2d Session 110-395
======================================================================
OVER-THE-ROAD BUS TRANSPORTATION ACCESSIBILITY ACT OF 2007
_______
June 23, 2008.--Ordered to be printed
_______
Mr. Inouye, from the Committee on Commerce, Science, and
Transportation, submitted the following
REPORT
[To accompany H.R. 3985]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (H.R. 3985) to amend title 49,
United States Code, to direct the Secretary of Transportation
to register a person providing transportation by an over-the-
road bus\1\ as a motor carrier of passengers only if the person
is willing and able to comply with certain accessibility
requirements in addition to other existing requirements, and
for other purposes, having considered the same, reports
favorably thereon without amendment and recommends that the
bill do pass.
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\1\An ``over-the-road bus'' is defined as a bus with an elevated
passenger deck over a baggage compartment.
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Purpose of the Bill
The purpose of H.R. 3985, the Over-the-Road Bus
Transportation Accessibility Act of 2007, is to clarify the
Federal Motor Carrier Safety Administration's (FMCSA)
responsibility and authority to enforce compliance with the
Department of Transportation's (DOT) over-the-road bus
passenger accessibility regulations promulgated pursuant to the
Americans with Disabilities Act (ADA, Public Law 101-336).
Background and Needs
H.R. 3985 would clarify the FMCSA's responsibility and
authority to enforce compliance with DOT over-the-road bus
passenger accessibility regulations promulgated pursuant to the
ADA. The FMCSA claims that, under current statutes and through
the interpretation of prior regulations, they do not have the
authority to require that motor carriers, as a condition of
receiving operating authority, operate over-the-road buses that
comply with accessibility regulations promulgated by the DOT
pursuant to the ADA. Rather, the FMCSA has pointed to the
Department of Justice (DOJ), which is generally charged with
the enforcement of the ADA, as the agency responsible for
ensuring motor carrier compliance with the DOT's ADA-related
regulations. The DOJ, however, has generally chosen not to take
enforcement actions against over-the-road bus operators that
fail to comply with the DOT's accessibility regulations,
despite claims of widespread non-compliance by certain over-
the-road bus operators. This situation has stymied adequate
enforcement of the over-the-road accessibility requirements,
and H.R. 3985 would address this by clarifying that the FMCSA
shall consider compliance with accessibility regulations as a
criterion for a motor carrier's fitness for the purpose of
obtaining operating authority.
In 1998, per the requirements of the ADA, the DOT adopted a
final rule requiring all over-the-road bus motor carriers to
accommodate individuals with disabilities. This rule (1)
prohibits discrimination against an individual with a
disability in connection with the provision of transportation
service; (2) requires fixed-route\2\ passenger carriers to
operate vehicles readily accessible to and usable by
individuals with disabilities; and (3) provides that violations
of the ADA by passenger carriers not receiving governmental
assistance be referred to the DOJ for investigation and
enforcement. These accessibility requirements for over-the-road
buses vary by operator size, as determined by gross annual
transportation revenue, and type of transportation service
offered by the carrier, fixed-route or demand-responsive, such
as a charter or tour service. Large fixed-route operators must
ensure that all new purchased or leased over-the-road buses are
accessible and were required to outfit half their fleet with
accessible buses by October 2006, with the remaining half due
to be outfitted by October 2012. Small fixed-route companies
are required to ensure that each new over-the-road bus
purchased or leased is accessible, and while there is no
accessibility deadline for small fixed-route fleets, such motor
carriers must provide an accessible bus upon request, with 48-
hours advance notice, or provide equivalent service until they
become accessible. Both large and small demand-responsive
companies must provide accessible service on a 48-hour advance
notice basis, but small companies are not required to
fundamentally alter reservation practices or displace other
passengers in order to meet these requirements.
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\2\ Fixed-route service is transportation along a prescribed route
according to a fixed schedule.
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The FMCSA's standards for granting a motor carrier operating
authority to transport passengers, established in section
13902(a)(1) of title 49, United States Code, require the
company to be ``willing and able to comply with this part and
applicable regulations of the Secretary'' including safety
regulations and fitness and insurance requirements. The FMCSA
has interpreted this section very narrowly so as to consider
the phrase ``applicable regulations of the Secretary'' as only
applying to regulations relating to part B of subtitle 49,
United State Code, referenced by the proceeding words ``this
part.'' Part B contains the statutory authority that was
transferred to the FMCSA from the Interstate Commerce
Commission (ICC) after the ICC was terminated in 1995. This
narrow reading and the Department's view that the ICC authority
and regulations transferred to it did not include enforcement
of ADA compliance has thus limited the DOT's ability to enforce
its own accessibility requirements through the granting,
denial, or revocation of operating authority. The FMCSA's
interpretation of 13902(a)(1) of title 49, United States Code,
created a lack of enforcement in this area, resulting in a
number of court actions against the agency brought primarily by
over-the-road bus operators who currently comply with the DOT's
accessibility regulations and who are seeking to ensure that
other bus operators are compelled to comply with these
requirements.
In April 2005, Peter Pan Bus Lines, Inc., and Bonanza
Acquisition LLC (Peter Pan) filed a protest with FMCSA
challenging Fung Wah Bus Transportation, Inc.'s (Fung Wah)
operating authority application on the grounds that Fung Wah
was not willing or able to comply with the DOT's accessibility
regulations. The FMCSA rejected Peter Pan's protest on October
26, 2005, concluding that ``applicable regulations'' do not
refer to all regulations promulgated by the Secretary for motor
carriers. Rather, the FMCSA reasoned that the statute should be
narrowly construed to mean only ``applicable regulations'' in
``this part'' of the statute and not regulations found
elsewhere, such as the ADA requirements. The agency claimed
that this interpretation was apparent from the plain language
of the statute and its analysis of legislative history and
required no further investigation. Therefore, because Peter Pan
could not prove Fung Wah was unwilling or unable to comply with
the DOT operating authority requirements, as the FMCSA
construes them to apply, the FMCSA dismissed the case and
subsequently denied a petition for reconsideration.
Peter Pan appealed the FMCSA's decision to the U.S. Court of
Appeals, which issued a ruling on December 19, 2006, reversing
the FMCSA's decision, rejecting that the statute was plain on
its face, and remanding the case back to the FMCSA. The Court
of Appeals found ``this part and applicable regulations'' to be
ambiguous, requiring further interpretation. The concurring
decision also questioned the reasonableness of FMCSA's
principal justification for declining to review bus company ADA
compliance during the registration process, which the court
noted essentially chooses the preservation of motor carrier
competition over the rights of the disabled.
The FMCSA reopened the record in February 2007 and offered
Fung Wah the opportunity to respond to Peter Pan's protest and
for Peter Pan to reply. On February 26, 2007, Fung Wah stated
that Congress did not give the FMCSA the statutory authority to
refuse operating authority based on ADA compliance because ADA
compliance was not a fitness criterion for registration. Even
if the FMCSA had such authority, Fung Wah said it was willing
and able to comply with accessibility requirements. In
response, Peter Pan restated its original argument on March 1,
2007, that ``ADA is a required element of fitness to receive
operating authority'' and Fung Wah did not meet the necessary
fitness criterion.
On July 16, 2007, to indicate its displeasure with the FMCSA
decision in this matter, the Senate Appropriations Committee
included report language in the report accompanying the Fiscal
Year (FY) 2008 Departments of Transportation and Housing and
Urban Development Appropriations Act instructing the Secretary
to enforce the bus accessibility requirements. The House
Appropriations Committee report also contained a similar
admonition. The Senate report language states:
The Committee is greatly dismayed by the [FMCSA's]
continuing failure to exercise the [DOT's] authority to
deny operating authority to interstate bus companies
that are unwilling or unable to comply to comply with
the [ADA]. DOT's regulations under 49 CFR Part 37,
Subpart H requires accessibility to over-the-road buses
for people with disabilities. The U.S. Court of Appeals
for the D.C. Circuit rejected FMCSA's assertion that it
did not have the authority to deny bus operators
registration on these grounds and remanded the case to
FMCSA for further interpretation of the statutory
language. In the many months that have passed since
that decision, no action has been taken by FMCSA. The
Committee expects FMCSA to take immediate action to
implement the Court's decision without further delay.
That action should ensure that discrimination against
people with disabilities precludes bus operators from
registering as interstate motor carriers to the same
extent to which other forms of discrimination and
serious safety violations preclude such registration.
The Committee further directs the Secretary of
Transportation to provide a letter report to the
Committee no later than 30 days following the reporting
of this bill to explain how she and her Federal Motor
Carrier Safety Administrator have implemented the
Circuit Court decision and the Committee's
directive.\3\
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\3\ Senate Report 110-131, page 72.
The FMCSA issued a decision in this case on October 26, 2007.
Despite the Court of Appeals' indication that the FMCSA should
include ADA compliance in its new interpretation of the
statutory language, the FMCSA again rejected Peter Pan's
request to deny Fung Wah operating authority because they were
not ADA compliant. Expanding beyond the FMCSA's first decision,
in this second ruling, the FMCSA argued again that (1) the
authority to enforce ADA compliance rested with a different
agency, the DOJ; (2) the ICC's own ADA accessibility
regulations and any related enforcement authority were
superseded by the ADA before the ICC's authority was
transferred to the DOT; (3) the ICC never conditioned operating
authority on ADA compliance and thus, neither should the DOT;
and (4) the ICC Termination Act of 1995 (ICCTA) limited the
factors that could be considered in granting operating
authority, so a broad reading of the requirements is
inconsistent with the intent of Congress.
According to the FMCSA, the statutory authority transferred
to the FMCSA after the ICC was dismantled through the ICCTA did
not include accessibility compliance in the determination of a
motor carrier's fitness for operation. The FMCSA argued that
Congress, through statute, had limited the fitness elements the
FMCSA could consider in an operating authority case to safety
and financial responsibility. The FMCSA concluded that since
the ICC had incorporated the Secretary's ADA regulation into
its own regulations after 1991, the ICC had thus ``declared
that its regulations were superseded by the ADA and that the
responsibility for regulating service to disabled passengers
now rested with other agencies or departments.'' According to
the DOT, since the disabled accessibility rules were no longer
``ICC regulations,'' DOT could not consider them as part of
granting operating authority after ICCTA transferred that
responsibility to the DOT. Rather, the FMCSA claimed that the
DOJ, as the lead department for enforcing ADA compliance, is
responsible for ensuring that an over-the-road bus company meet
any federal accessibility requirements. Therefore, the FMCSA
concluded that limited reading of the fitness element was
consistent with Congressional intent and that its earlier
decision against Peter Pan in 2005 was ``reasonable.''
The FMCSA's decision has drawn criticism, since many believe
that by modifying its regulations to incorporate by reference
DOT's ADA regulations, the ICC intended to make the DOT
regulations part of the ICC regulations. As such, the FMCSA
should have considered compliance with them as a condition of
granting operating authority for buses and other passenger
carriers. Opponents of the FMCSA's position believe that its
interpretation of the statute and its refusal to ensure that
over-the-road buses comply with the accessibility requirements
call into question the DOT's sincerity towards upholding its
commitments under the ADA. In the final conference report
accompanying the FY 2008 Departments of Transportation and
Housing and Urban Development Appropriations bill issued on
November 13, 2007,\4\ the Conferees stated:
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\4\ House Report 110-446. The bill, H.R. 3074, was subsequently
enacted as part of the FY 2008 Consolidated Appropriations Act (P.L.
110-161).
The conferees reiterate concerns expressed in both the
House and Senate Committee reports regarding DOT's
failure to enforce its own regulations requiring
accessibility to over-the-road buses for people with
disabilities. The U.S. Court of Appeals for the D.C.
Circuit rejected FMCSA's assertion that it did not have
the authority to deny bus operators registration based
on an interstate bus company's unwillingness or
inability to comply with DOT's ADA regulations, and
remanded the case to FMCSA for further interpretation.
On October 26, 2007, FMCSA responded by reasserting its
claim that it lacks the authority to enforce DOT's own
ADA regulations. The conferees find this interpretation
to be mystifying, unacceptable, and deliberately
evasive. It certainly calls into question the
commitment of both the Secretary and the Administrator
to enforcing both the letter and the spirit of Federal
laws designed to protect the rights of the disabled.
The conferees disagree with FMCSA that further
statutory language is needed to clarify FMCSA's
enforcement role in this area. Even so, given the
recalcitrant stance and steadfast refusal of the
Secretary and the Administrator to enforce the law on
this matter, the conferees are supportive of the prompt
enactment of H.R. 3985: the Over-the-Road Bus
Transportation Accessibility Act of 2007. This bill
makes clear, again, that FMCSA has the authority to
enforce compliance with DOT's ADA regulations in this
area. The conferees can only hope that, once this law
is enacted, the Secretary and Administrator will not
concoct still further evasive strategies to avoid their
statutory responsibility.
Summary of Provisions
H.R. 3985 would amend title 49, United States Code, to
``direct the Secretary of Transportation to register a person
providing transportation by an over-the-road bus as a motor
carrier of passengers only if the person is willing and able to
comply with certain accessibility requirements in addition to
other existing requirements.'' The accessibility requirements,
established under title 49, part 37, subpart H of the Code of
Federal Regulations, require over-the-road bus operators to
purchase or lease accessible vehicles or provide accessible
service to passengers with disabilities with 48 hour advance
notice, depending on fleet size and types of service operated
by the carrier. The bill also would require the DOT and the DOJ
to enter into a memorandum of understanding regarding the
enforcement and compliance of over-the-road bus carriers with
the accessibility requirements.
Legislative History
H.R. 3985 was introduced on October 29, 2007, by
Representative DeFazio and cosponsored by Representatives
Oberstar, Mica, and Duncan. On December 12, 2007, the bill
passed the House of Representatives by a vote of 374 to 0 and
was subsequently referred to the Senate Committee on Commerce,
Science, and Transportation for consideration. The Committee
met in an open executive session on April 24, 2008, and ordered
H.R. 3985 reported favorably, without amendment.
Staff assigned to this legislation are Stephen Gardner,
Senior Democratic Professional Staff, Melissa Porter,
Democratic Transportation Counsel, Betsy McDonnell, Republican
Professional Staff, and Suzanne Newhouse, Republican
Transportation Counsel.
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
H.R. 3985--Over-the-Road Bus Transportation Accessibility Act of 2007
H.R. 3985 would require the Federal Motor Carrier Safety
Administration (FMCSA) to ensure that operators of over-the-
road buses comply with the Americans With Disabilities Act
(ADA). (Generally, over-the-road buses are those that have
elevated passenger decks located over baggage compartments.)
Under H.R. 3985, the FMCSA would be required to review
applications for licenses to operate such vehicles to ensure
that the operators comply with federal accessibility
regulations issued under the ADA. In addition to performing
safety audits for new licensees, the agency also would include
ADA requirements in the compliance reviews of bus operators
that it undertakes in the future.
Based on information provided by the FMCSA, CBO estimates
that developing and enforcing new regulations to implement H.R.
3985 would cost the agency about $500,000 in fiscal year 2009
and less than $300,000 each year thereafter. First-year costs
include one-time systems upgrades and training expenses.
Enacting the legislation would not affect direct spending or
revenues.
Section 4 of the Unfunded Mandates Reform Act excludes from
the application of that act any legislative provision that
establishes or enforces statutory rights that prohibit
discrimination on the basis of disability. CBO has determined
that the provisions of H.R. 3985 fall within that exclusion;
therefore, we have not reviewed them for intergovernmental or
private-sector mandates.
On November 9, 2007, CBO transmitted a cost estimate for
H.R. 3985, as ordered reported by the House Committee on
Transportation and Infrastructure. The two versions of the
legislation are identical, and the estimated cost is the same
except that CBO now expects the first-year of cost would be for
fiscal year 2009 instead of 2008.
The CBO staff contact for this estimate is Deborah Reis.
This estimate was approved by Peter H. Fontaine, Assistant
Director for Budget Analysis.
Regulatory Impact Statement
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
NUMBER OF PERSONS COVERED
H.R. 3985 does not impose any additional regulatory or
compliance requirements on over-the-road bus carriers. However,
because the bill clarifies FMCSA's authority to enforce DOT's
over-the-road bus passenger accessibility regulations against
over-the-road bus carriers that are not compliant, any carriers
that are non-compliant as of the date of enactment will be
subject to additional enforcement action. Because no monitoring
of non-compliant carriers has been done to date, it is unknown
how many carriers are non-compliant.
ECONOMIC IMPACT
This legislation would not have an adverse economic impact on
the Nation. It does not introduce new regulations but merely
provides better enforcement. Carriers that are not already
compliant with DOT's ADA regulations will have to spend funds
to purchase or lease an ADA compliant over-the-road bus;
retrofit the old over-the-road bus fleet; provide equivalent
service; or face potential enforcement action by FMCSA. Any
carrier costs that are incurred to ensure compliance with the
DOT's ADA regulations will help avoid the costs associated with
an enforcement action or litigation, including fines and
penalties. Additionally, more passengers with disabilities will
also be able to use more easily these newly compliant carriers'
transportation services, potentially having a positive impact
on carrier revenues.
PRIVACY
H.R. 3985 would have no effect on the privacy rights of
individuals.
PAPERWORK
The Committee does not anticipate a major increase in
paperwork burdens for individuals or business resulting from
the passage of this legislation. Any additional paperwork for
FMCSA that may result from considering ADA compliance as a
condition of receiving operating authority is aimed at ensuring
citizens with disabilities have an equal right to ride on over-
the-road buses, as required by the ADA.
Congressionally Directed Spending
In compliance with paragraph 4(b) of rule XLIV of the
Standing Rules of the Senate, the Committee provides that the
bill, as reported, does not contain any congressionally
directed spending items as defined in the rule.
Section-by-Section Analysis
Section 1. This section would title the bill the ``Over-the-
Road Bus Transportation Accessibility Act of 2007.''
Section 2. This section would require the DOT to consider a
motor carrier's compliance with accessibility regulations when
granting operating authority to provide passenger
transportation by an over-the-road bus. It also would enable
the DOT to suspend, amend, or revoke a motor carrier's
registration for failure to comply with DOT's accessibility
requirements and would add failure to comply with such
accessibility requirements to the list of circumstances under
which the Secretary of Transportation may hear a complaint
regarding a motor carrier's registration.
Section 3. This section would define over-the-road buses as
buses ``characterized by an elevated passenger deck located
over a baggage compartment.''
Section 4. This section would require that, not later than 30
days after the date of enactment of this Act, the Secretary
take necessary actions to implement the changes required by the
Act relating to registration of motor carriers providing
transportation by an over-the-road bus.
Section 5. This section would obligate the DOT and the DOJ to
enter into a memorandum of understanding not later than six
months after the date of enactment of the Act which would
outline the specific roles and responsibilities of each
Department in enforcing compliance of over-the-road bus
carriers with accessibility requirements and recognize the
DOT's statutory responsibility to enforce accessibility
compliance, as clarified by this Act.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill,
as reported, are shown as follows (existing law proposed to be
omitted is enclosed in black brackets, new material is printed
in italic, existing law in which no change is proposed is shown
in roman):
TITLE 49, UNITED STATES CODE
SUBTITLE IV--INTERSTATE TRANSPORTATION
PART B--MOTOR CARRIERS, WATER CARRIERS, BROKERS, AND FREIGHT FORWARDERS
CHAPTER 131--GENERAL PROVISIONS
13102. Definitions
In this part, the following definitions shall apply:
(1) Board.--The term ``Board'' means the Surface
Transportation Board.
(2) Broker.--The term ``broker'' means a person,
other than a motor carrier or an employee or agent of a
motor carrier, that as a principal or agent sells,
offers for sale, negotiates for, or holds itself out by
solicitation, advertisement, or otherwise as selling,
providing, or arranging for, transportation by motor
carrier for compensation.
(3) Carrier.--The term ``carrier'' means a motor
carrier, a water carrier, and a freight forwarder.
(4) Contract carriage.--The term ``contract
carriage'' means--
(A) for transportation provided before
January 1, 1996, service provided pursuant to a
permit issued under section 10923, as in effect
on December 31, 1995; and
(B) for transportation provided after
December 31, 1995, service provided under an
agreement entered into under section 14101(b).
(5) Control.--The term ``control'', when referring to
a relationship between persons, includes actual
control, legal control, and the power to exercise
control, through or by--
(A) common directors, officers, stockholders,
a voting trust, or a holding or investment
company, or
(B) any other means.
(6) Foreign motor carrier.--The term ``foreign motor
carrier'' means a person (including a motor carrier of
property but excluding a motor private carrier)--
(A)(i) that is domiciled in a contiguous
foreign country; or
(ii) that is owned or controlled by persons
of a contiguous foreign country; and
(B) in the case of a person that is not a
motor carrier of property, that provides
interstate transportation of property by
commercial motor vehicle (as defined in section
31132) under an agreement or contract entered
into with a motor carrier of property (other
than a motor private carrier or a motor carrier
of property described in subparagraph (A)).
(7) Foreign motor private carrier.--The term
``foreign motor private carrier'' means a person
(including a motor private carrier but excluding a
motor carrier of property)--
(A)(i) that is domiciled in a contiguous
foreign country; or
(ii) that is owned or controlled by persons
of a contiguous foreign country; and
(B) in the case of a person that is not a
motor private carrier, that provides interstate
transportation of property by commercial motor
vehicle (as defined in section 31132) under an
agreement or contract entered into with a
person (other than a motor carrier of property
or a motor private carrier described in
subparagraph (A)).
(8) Freight forwarder.--The term ``freight
forwarder'' means a person holding itself out to the
general public (other than as a pipeline, rail, motor,
or water carrier) to provide transportation of property
for compensation and in the ordinary course of its
business--
(A) assembles and consolidates, or provides
for assembling and consolidating, shipments and
performs or provides for break-bulk and
distribution operations of the shipments;
(B) assumes responsibility for the
transportation from the place of receipt to the
place of destination; and
(C) uses for any part of the transportation a
carrier subject to jurisdiction under this
subtitle.
The term does not include a person using transportation
of an air carrier subject to part A of subtitle VII.
(9) Highway.--The term ``highway'' means a road,
highway, street, and way in a State.
(10) Household goods.--The term ``household goods'',
as used in connection with transportation, means
personal effects and property used or to be used in a
dwelling, when a part of the equipment or supply of
such dwelling, and similar property if the
transportation of such effects or property is--
(A) arranged and paid for by the householder,
except such term does not include property
moving from a factory or store, other than
property that the householder has purchased
with the intent to use in his or her dwelling
and is transported at the request of, and the
transportation charges are paid to the carrier
by, the householder; or
(B) arranged and paid for by another party.
(11) Household goods freight forwarder.--The term
``household goods freight forwarder'' means a freight
forwarder of one or more of the following items:
household goods, unaccompanied baggage, or used
automobiles.
(12) Household goods motor carrier.--
(A) In general.--The term ``household goods
motor carrier'' means a motor carrier that, in
the ordinary course of its business of
providing transportation of household goods,
offers some or all of the following additional
services:
(i) Binding and nonbinding estimates.
(ii) Inventorying.
(iii) Protective packing and
unpacking of individual items at
personal residences.
(iv) Loading and unloading at
personal residences.
(B) Inclusion.--The term includes any person
that is considered to be a household goods
motor carrier under regulations,
determinations, and decisions of the Federal
Motor Carrier Safety Administration that are in
effect on the date of enactment of the
Household Goods Mover Oversight Enforcement and
Reform Act of 2005.
(C) Limited service exclusion.--The term does
not include a motor carrier when the motor
carrier provides transportation of household
goods in containers or trailers that are
entirely loaded and unloaded by an individual
(other than an employee or agent of the motor
carrier).
(13) Individual shipper.--The term ``individual
shipper'' means any person who--
(A) is the shipper, consignor, or consignee
of a household goods shipment;
(B) is identified as the shipper, consignor,
or consignee on the face of the bill of lading;
(C) owns the goods being transported; and
(D) pays his or her own tariff transportation
charges.
(14) Motor carrier.--The term ``motor carrier'' means
a person providing commercial motor vehicle (as defined
in section 31132) transportation for compensation.
(15) Motor private carrier.--The term ``motor private
carrier'' means a person, other than a motor carrier,
transporting property by commercial motor vehicle (as
defined in section 31132) when--
(A) the transportation is as provided in
section 13501 of this title;
(B) the person is the owner, lessee, or
bailee of the property being transported; and
(C) the property is being transported for
sale, lease, rent, or bailment or to further a
commercial enterprise.
(16) Motor vehicle.--The term ``motor vehicle'' means
a vehicle, machine, tractor, trailer, or semitrailer
propelled or drawn by mechanical power and used on a
highway in transportation, or a combination determined
by the Secretary, but does not include a vehicle,
locomotive, or car operated only on a rail, or a
trolley bus operated by electric power from a fixed
overhead wire, and providing local passenger
transportation similar to street-railway service.
(17) Noncontiguous domestic trade.--The term
``noncontiguous domestic trade'' means transportation
subject to jurisdiction under chapter 135 involving
traffic originating in or destined to Alaska, Hawaii,
or a territory or possession of the United States.
(18) Person.--The term ``person'', in addition to its
meaning under section 1 of title 1, includes a trustee,
receiver, assignee, or personal representative of a
person.
(19) Pre-arranged ground transportation service.--The
term ``pre-arranged ground transportation service''
means transportation for a passenger (or a group of
passengers) that is arranged in advance (or is operated
on a regular route or between specified points) and is
provided in a motor vehicle with a seating capacity not
exceeding 15 passengers (including the driver).
(20) Secretary.--The term ``Secretary'' means the
Secretary of Transportation.
(21) State.--The term ``State'' means the 50 States
of the United States and the District of Columbia.
(22) Taxicab service.--The term ``taxicab service''
means passenger transportation in a motor vehicle
having a capacity of not more than 8 passengers
(including the driver), not operated on a regular route
or between specified places, and that--
(A) is licensed as a taxicab by a State or a
local jurisdiction; or
(B) is offered by a person that--
(i) provides local transportation for
a fare determined (except with respect
to transportation to or from airports)
primarily on the basis of the distance
traveled; and
(ii) does not primarily provide
transportation to or from airports.
(23) Transportation.--The term ``transportation''
includes--
(A) a motor vehicle, vessel, warehouse,
wharf, pier, dock, yard, property, facility,
instrumentality, or equipment of any kind
related to the movement of passengers or
property, or both, regardless of ownership or
an agreement concerning use; and
(B) services related to that movement,
including arranging for, receipt, delivery,
elevation, transfer in transit, refrigeration,
icing, ventilation, storage, handling, packing,
unpacking, and interchange of passengers and
property.
(24) United states.--The term ``United States'' means
the States of the United States and the District of
Columbia.
(25) Vessel.--The term ``vessel'' means a watercraft
or other artificial contrivance that is used, is
capable of being used, or is intended to be used, as a
means of transportation by water.
(26) Water carrier.--The term ``water carrier'' means
a person providing water transportation for
compensation.
(27) Over-the-road bus.--The term ``over-the-road
bus'' means a bus characterized by an elevated
passenger deck located over a baggage compartment.
CHAPTER 139. REGISTRATION
13902. Registration of motor carriers
(a) Motor Carrier Generally.--
(1) In general.--Except as provided in this section,
the Secretary shall register a person to provide
transportation subject to jurisdiction under subchapter
I of chapter 135 of this title as a motor carrier if
the Secretary finds that the person is willing and able
to comply with--
(A) this part and the applicable regulations
of the Secretary and the Board;
(B)(i) any safety regulations imposed by the
Secretary;
(ii) the duties of employers and employees
established by the Secretary under section
31135; and
(iii) the safety fitness requirements
established by the Secretary under section
31144; [and]
(C) the accessibility requirements
established by the Secretary under subpart H of
part 37 of title 49, Code of Federal
Regulations, or such successor regulations to
those accessibility requirements as the
Secretary may issue, for transportation
provided by an over-the-road bus; and
[(C)] (D) the minimum financial
responsibility requirements established by the
Secretary pursuant to sections 13906 and 31138.
(2) Additional registration requirements for
household goods motor carriers.--In addition to meeting
the requirements of paragraph (1), the Secretary may
register a person to provide transportation of
household goods as a household goods motor carrier only
after that person--
(A) provides evidence of participation in an
arbitration program and provides a copy of the
notice of the arbitration program as required
by section 14708(b)(2);
(B) identifies its tariff and provides a copy
of the notice of the availability of that
tariff for inspection as required by section
13702(c);
(C) provides evidence that it has access to,
has read, is familiar with, and will observe
all applicable Federal laws relating to
consumer protection, estimating, consumers'
rights and responsibilities, and options for
limitations of liability for loss and damage;
and
(D) discloses any relationship involving
common stock, common ownership, common
management, or common familial relationships
between that person and any other motor
carrier, freight forwarder, or broker of
household goods within 3 years of the proposed
date of registration.
(3) Consideration of evidence; findings.--The
Secretary shall consider, and to the extent applicable,
make findings on any evidence demonstrating that the
registrant is unable to comply with any applicable
requirement of paragraph (1) or, in the case of a
registrant to which paragraph (2) applies, paragraph
(1) or (2).
(4) Withholding.--If the Secretary determines that a
registrant under this section does not meet, or is not
able to meet, any requirement of paragraph (1) or, in
the case of a registrant to which paragraph (2)
applies, paragraph (1) or (2), the Secretary shall
withhold registration.
(5) Limitation on complaints.--The Secretary may hear
a complaint from any person concerning a registration
under this subsection only on the ground that the
registrant fails or will fail to comply with this part,
the applicable regulations of the Secretary and the
Board (including the accessibility requirements
established by the Secretary under subpart H of part 37
of title 49, Code of Federal Regulations, or such
successor regulations to those accessibility
requirements as the Secretary may issue, for
transportation provided by an over-the-road bus), the
safety regulations of the Secretary, or the safety
fitness or minimum financial responsibility
requirements of paragraph (1) of this subsection. In
the case of a registration for the transportation of
household goods as a household goods motor carrier, the
Secretary may also hear a complaint on the ground that
the registrant fails or will fail to comply with the
requirements of paragraph (2) of this subsection.
(b) Motor Carriers of Passengers.--
(1) Registration of private recipients of
governmental assistance.--The Secretary shall register
under subsection (a)(1) a private recipient of
governmental assistance to provide special or charter
transportation subject to jurisdiction under subchapter
I of chapter 135 as a motor carrier of passengers if
the Secretary finds that the recipient meets the
requirements of subsection (a)(1), unless the Secretary
finds, on the basis of evidence presented by any person
objecting to the registration, that the transportation
to be provided pursuant to the registration is not in
the public interest.
(2) Registration of public recipients of governmental
assistance.--
(A) Charter transportation.--The Secretary
shall register under subsection (a)(1) a public
recipient of governmental assistance to provide
special or charter transportation subject to
jurisdiction under subchapter I of chapter 135
as a motor carrier of passengers if the
Secretary finds that--
(i) the recipient meets the
requirements of subsection (a)(1); and
(ii)(I) no motor carrier of
passengers (other than a motor carrier
of passengers which is a public
recipient of governmental assistance)
is providing, or is willing to provide,
the transportation; or
(II) the transportation is to be
provided entirely in the area in which
the public recipient provides regularly
scheduled mass transportation services.
(B) Regular-route transportation.--The
Secretary shall register under subsection
(a)(1) a public recipient of governmental
assistance to provide regular-route
transportation subject to jurisdiction under
subchapter I of chapter 135 as a motor carrier
of passengers if the Secretary finds that the
recipient meets the requirements of subsection
(a)(1), unless the Secretary finds, on the
basis of evidence presented by any person
objecting to the registration, that the
transportation to be provided pursuant to the
registration is not in the public interest.
(C) Treatment of certain public recipients.--
Any public recipient of governmental assistance
which is providing or seeking to provide
transportation of passengers subject to
jurisdiction under subchapter I of chapter 135
shall, for purposes of this part, be treated as
a person which is providing or seeking to
provide transportation of passengers subject to
such jurisdiction.
(3) Intrastate transportation by interstate
carriers.--A motor carrier of passengers that is
registered by the Secretary under subsection (a) is
authorized to provide regular-route transportation
entirely in one State as a motor carrier of passengers
if such intrastate transportation is to be provided on
a route over which the carrier provides interstate
transportation of passengers.
(4) Preemption of State regulation regarding certain
service.--No State or political subdivision thereof and
no interstate agency or other political agency of 2 or
more States shall enact or enforce any law, rule,
regulation, standard or other provision having the
force and effect of law relating to the provision of
pickup and delivery of express packages, newspapers, or
mail in a commercial zone if the shipment has had or
will have a prior or subsequent movement by bus in
intrastate commerce and, if a city within the
commercial zone, is served by a motor carrier of
passengers providing regular-route transportation of
passengers subject to jurisdiction under subchapter I
of chapter 135.
(5) Jurisdiction over certain intrastate
transportation.--Subject to section 14501(a), any
intrastate transportation authorized by this subsection
shall be treated as transportation subject to
jurisdiction under subchapter I of chapter 135 until
such time as the carrier takes such action as is
necessary to establish under the laws of such State
rates, rules, and practices applicable to such
transportation, but in no case later than the 30th day
following the date on which the motor carrier of
passengers first begins providing transportation
entirely in one State under this paragraph.
(6) Special operations.--This subsection shall not
apply to any regular-route transportation of passengers
provided entirely in one State which is in the nature
of a special operation.
(7) Suspension or revocation.--Intrastate
transportation authorized under this subsection may be
suspended or revoked by the Secretary under section
13905 of this title at any time.
(8) Definitions.--In this subsection, the following
definitions apply:
(A) Public recipient of governmental
assistance.--The term ``public recipient of
governmental assistance'' means--
(i) any State,
(ii) any municipality or other
political subdivision of a State,
(iii) any public agency or
instrumentality of one or more States
and municipalities and political
subdivisions of a State,
(iv) any Indian tribe, and
(v) any corporation, board, or other
person owned or controlled by any
entity described in clause (i), (ii),
(iii), or (iv), which before, on, or
after January 1, 1996, received
governmental assistance for the
purchase or operation of any bus.
(B) Private recipient of government
assistance.--The term ``private recipient of
government assistance'' means any person (other
than a person described in subparagraph (A))
who before, on, or after January 1, 1996,
received governmental financial assistance in
the form of a subsidy for the purchase, lease,
or operation of any bus.
(c) Restrictions on Motor Carriers Domiciled in or Owned or
Controlled by Nationals of a Contiguous Foreign Country.--
(1) Prevention of discriminatory practices.--If the
President, or the delegate thereof, determines that an
act, policy, or practice of a foreign country
contiguous to the United States, or any political
subdivision or any instrumentality of any such country
is unreasonable or discriminatory and burdens or
restricts United States transportation companies
providing, or seeking to provide, motor carrier
transportation to, from, or within such foreign
country, the President or such delegate may--
(A) seek elimination of such practices
through consultations; or
(B) notwithstanding any other provision of
law, suspend, modify, amend, condition, or
restrict operations, including geographical
restriction of operations, in the United States
by motor carriers of property or passengers
domiciled in such foreign country or owned or
controlled by persons of such foreign country.
(2) Equalization of treatment.--Any action taken
under paragraph (1)(A) to eliminate an act, policy, or
practice shall be so devised so as to equal to the
extent possible the burdens or restrictions imposed by
such foreign country on United States transportation
companies.
(3) Removal or modification.--The President, or the
delegate thereof, may remove or modify in whole or in
part any action taken under paragraph (1)(A) if the
President or such delegate determines that such removal
or modification is consistent with the obligations of
the United States under a trade agreement or with
United States transportation policy.
(4) Protection of existing operations.--Unless and
until the President, or the delegate thereof, makes a
determination under paragraph (1) or (3), nothing in
this subsection shall affect--
(A) operations of motor carriers of property
or passengers domiciled in any contiguous
foreign country or owned or controlled by
persons of any contiguous foreign country
permitted in the commercial zones along the
United States-Mexico border as such zones were
defined on December 31, 1995; or
(B) any existing restrictions on operations
of motor carriers of property or passengers
domiciled in any contiguous foreign country or
owned or controlled by persons of any
contiguous foreign country or any modifications
thereof pursuant to section 6 of the Bus
Regulatory Reform Act of 1982.
(5) Publication; comment.--Unless the President, or
the delegate thereof, determines that expeditious
action is required, the President shall publish in the
Federal Register any determination under paragraph (1)
or (3), together with a description of the facts on
which such a determination is based and any proposed
action to be taken pursuant to paragraph (1)(B) or (3),
and provide an opportunity for public comment.
(6) Delegation to Secretary.--The President may
delegate any or all authority under this subsection to
the Secretary, who shall consult with other agencies as
appropriate. In accordance with the directions of the
President, the Secretary may issue regulations to
enforce this subsection.
(7) Civil actions.--Either the Secretary or the
Attorney General may bring a civil action in an
appropriate district court of the United States to
enforce this subsection or a regulation prescribed or
order issued under this subsection. The court may award
appropriate relief, including injunctive relief.
(8) Limitation on statutory construction.--This
subsection shall not be construed as affecting the
requirement for all foreign motor carriers and foreign
motor private carriers operating in the United States
to comply with all applicable laws and regulations
pertaining to fitness, safety of operations, financial
responsibility, and taxes imposed by section 4481 of
the Internal Revenue Code of 1986.
(d) Transition Rule.--
(1) In general.--Pending the implementation of the
rulemaking required by section 13908, the Secretary may
register a person under this section--
(A) as a motor common carrier if such person
would have been issued a certificate to provide
transportation as a motor common carrier under
this subtitle on December 31, 1995; and
(B) as a motor contract carrier if such
person would have been issued a permit to
provide transportation as a motor contract
carrier under this subtitle on such day.
(2) Definitions.--In this subsection, the terms
``motor common carrier'' and ``motor contract carrier''
have the meaning such terms had under section 10102 as
such section was in effect on December 31, 1995.
(3) Termination.--This subsection shall cease to be
in effect on the transition termination date.
(e) Penalties for Failure To Comply with Registration
Requirements.--In addition to other penalties available under
law, motor carriers that fail to register their operations as
required by this section or that operate beyond the scope of
their registrations may be subject to the following penalties:
(1) Out-of-service orders.--If, upon inspection or
investigation, the Secretary determines that a motor
vehicle providing transportation requiring registration
under this section is operating without a registration
or beyond the scope of its registration, the Secretary
may order the vehicle out-of-service. Subsequent to the
issuance of the out-of-service order, the Secretary
shall provide an opportunity for review in accordance
with section 554 of title 5, United States Code; except
that such review shall occur not later than 10 days
after issuance of such order.
(2) Permission for operations.--A person domiciled in
a country contiguous to the United States with respect
to which an action under subsection (c)(1)(A) or
(c)(1)(B) is in effect and providing transportation for
which registration is required under this section shall
maintain evidence of such registration in the motor
vehicle when the person is providing the
transportation. The Secretary shall not permit the
operation in interstate commerce in the United States
of any motor vehicle in which there is not a copy of
the registration issued pursuant to this section.
(f) Modification of Carrier Registration.--
(1) In general.--On and after the transition
termination date, the Secretary--
(A) may not register a motor carrier under
this section as a motor common carrier or a
motor contract carrier;
(B) shall register applicants under this
section as motor carriers; and
(C) shall issue any motor carrier registered
under this section after that date a motor
carrier certificate of registration that
specifies whether the holder of the certificate
may provide transportation of persons,
household goods, other property, or any
combination thereof.
(2) Pre-existing certificates and permits.--The
Secretary shall redesignate any motor carrier
certificate or permit issued before the transition
termination date as a motor carrier certificate of
registration. On and after the transition termination
date, any person holding a motor carrier certificate of
registration redesignated under this paragraph may
provide both contract carriage (as defined in section
13102(4)(B)) and transportation under terms and
conditions meeting the requirements of section
13710(a)(1). The Secretary may not, pursuant to any
regulation or form issued before or after the
transition termination date, make any distinction among
holders of motor carrier certificates of registration
on the basis of whether the holder would have been
classified as a common carrier or as a contract carrier
under--
(A) subsection (d) of this section, as that
section was in effect before the transition
termination date; or
(B) any other provision of this title that
was in effect before the transition termination
date.
(3) Transition termination date defined.--In this
section, the term ``transition termination date'' means
the first day of January occurring more than 12 months
after the date of enactment of the Unified Carrier
Registration Act of 2005.
(g) Motor Carrier Defined.--In this section and sections
13905 and 13906, the term ``motor carrier'' includes foreign
motor private carriers.
* * * * * * *
Sec. 13905. Effective periods of registration
(a) Person Holding ICC Authority.--Any person having
authority to provide transportation or service as a motor
carrier, freight forwarder, or broker under this title, as in
effect on December 31, 1995, shall be deemed, for purposes of
this part, to be registered to provide such transportation or
service under this part.
(b) Person Registered with Secretary.--
(1) In general.--Except as provided in paragraph (2),
any person having registered with the Secretary to
provide transportation or service as a motor carrier or
motor private carrier under this title, as in effect on
January 1, 2005, but not having registered pursuant to
section 13902(a), shall be treated, for purposes of
this part, to be registered to provide such
transportation or service for purposes of sections
13908 and 14504a.
(2) Exclusively intrastate operators.--Paragraph (1)
does not apply to a motor carrier or motor private
carrier (including a transporter of waste or recyclable
materials) engaged exclusively in intrastate
transportation operations.
(c) In General.--Except as otherwise provided in this part,
each registration issued under section 13902, 13903, or 13904
shall be effective from the date specified by the Secretary and
shall remain in effect for such period as the Secretary
determines appropriate by regulation.
(d) Suspension, Amendments, and Revocations.
(1) In general.--On application of the registrant,
the Secretary may amend or revoke a registration. On
complaint or on the Secretary's own initiative and
after notice and an opportunity for a proceeding, the
Secretary may (A) suspend, amend, or revoke any part of
the registration of a motor carrier, broker, or freight
forwarder for willful failure to comply with this part,
an applicable regulation or order of the Secretary or
of the Board (including the accessibility requirements
established by the Secretary under subpart H of part 37
of title 49, Code of Federal Regulations, or such
successor regulations to those accessibility
requirements as the Secretary may issue, for
transportation provided by an over-the-road bus), or a
condition of its registration; and (B) suspend, amend,
or revoke any part of the registration of a motor
carrier, broker, or freight forwarder: (i) for failure
to pay a civil penalty imposed under chapter 5, 51,
149, or 311 of this title; or (ii) for failure to
arrange and abide by an acceptable payment plan for
such civil penalty, within 90 days of the time
specified by order of the Secretary for the payment of
such penalty. Subparagraph (B) shall not apply to any
person who is unable to pay a civil penalty because
such person is a debtor in a case under chapter 11 of
title 11, United States Code.
(2) Regulations.--Not later than 12 months after the
date of the enactment of this paragraph, the Secretary,
after notice and opportunity for public comment, shall
issue regulations to provide for the suspension,
amendment, or revocation of a registration under this
part for failure to pay a civil penalty as provided in
paragraph (1)(B).
(e) Procedure.--Except on application of the registrant, the
Secretary may revoke a registration of a motor carrier, freight
forwarder, or broker, only after--
(1) the Secretary has issued an order to the
registrant under section 14701 requiring compliance
with this part, a regulation of the Secretary, or a
condition of the registration; and
(2) the registrant willfully does not comply with the
order for a period of 30 days.
(f) Expedited Procedure.--
(1) Protection of safety.--Notwithstanding subchapter
II of chapter 5 of title 5, the Secretary--
(A) may suspend the registration of a motor
carrier, a freight forwarder, or a broker for
failure to comply with requirements of the
Secretary pursuant to section 13904(c) or 13906
or an order or regulation of the Secretary
prescribed under those sections; and
(B) shall revoke the registration of a motor
carrier that has been prohibited from operating
in interstate commerce for failure to comply
with the safety fitness requirements of section
31144.
(2) Imminent hazard to public health.--Without regard
to subchapter II of chapter 5 of title 5, the Secretary
shall revoke the registration of a motor carrier of
passengers if the Secretary finds that such carrier has
been conducting unsafe operations which are an imminent
hazard to public health or property.
(3) Notice; period of suspension.--The Secretary may
suspend or revoke under this subsection the
registration only after giving notice of the suspension
or revocation to the registrant. A suspension remains
in effect until the registrant complies with the
applicable sections or, in the case of a suspension
under paragraph (2), until the Secretary revokes the
suspension.