Authority of Division of Motor Vehicles Over Private Passenger Buses

Subject:

Requested By: William S. Hiatt Commissioner of Motor Vehicles

Question: Does the Division of Motor Vehicles have any regulatory authority under Article 17, Chapter 20 of the North Carolina General Statutes (Motor Carrier Safety Regulations), over privately owned buses not engaged in for-hire transportation of passengers?

Conclusion: No.

Prior to 1983, regulatory authority over for-hire transportation of passengers was vested in the Utilities Commission under the provisions of Chapter 62. Specifically, G.S. 62-281 provided that the Commission could regulate all for-hire motor vehicles and private motor carriers engaged in the transportation of hazardous waste in interstate or intrastate commerce over the highways of this State. In 1983, that authority was expanded to cover all private carriers, not just those engaged in the transportation of hazardous waste and the responsibility for promulgating any regulations was transferred to the Commissioner of Motor Vehicles. Finally, in 1985 the General Assembly transferred the authority to the Division of Motor Vehicles by the enactment of G.S. 20-384 and simultaneous repeal of G.S. 62-281.

G.S. 20-376(21) defines "private carrier" as any person ". . . which transports in intrastate commerce in its own vehicle or vehicles property of which such person is the owner, lessee or bailee, when such transportation is for the purpose of sale, lease, rent or bailment, or when such transportation is purely an incidental adjunct to some other established private business owned and operated by such person other than the transportation of property for compensation." (Emphasis added). Clearly, there is no inclusion of the category of private carrier of passengers. In G.S. 20-376(4), (5) and (8), the terms are defined to include carriers of property and persons, whereas "private carrier" does not. There is no defined category of "private carrier of passengers", only common carrier, contract carrier and for-hire carrier of passengers. Thus, private carrier as used in G.S. 20-384 covers persons who transport property and not passengers.

It is a basic principle of administrative law that an administrative agency has no power to promulgate rules and regulations which alter or add to the law it was set up to administer or that have the effect of substantive law. 1 NC Index 3d, Administrative Law, § 3. The statute empowering the Division to enact regulations over private carriers could not be altered or added to by the regulations. The Division, however, in Title 19A, Subchapter D, Section .0801(c) of the Administrative Code appears to have done so. That subsection provides that the U.S. Department of Transportation rules and regulations relating to safety of operation and equipment shall apply to "all private motor carrier vehicles on the highways of the State of North Carolina used in commerce to transport passengers or cargo:

(1)

if such vehicle has a gross vehicle weight rating of ten thousand pounds or more;

(2)

if such vehicle is designed to transport more than ten passengers, including the driver; or

(3)

if such vehicle is used in the transportation of materials found to be hazardous in accordance with the Hazardous Materials Transportation Act as amended in Title 49, Code of Federal Regulations." (Emphasis added).

The regulation attempts to add to the definition of "private carrier" found in G.S. 20-376(21) someone who transports passengers. The Division having no statutory basis to so add to the definition, the regulation language regarding private carrier of passengers must be disregarded as outside the scope of the Division’s authority.

The carrier of passengers would have to fall within the definitions of common carrier, contract carrier or for-hire carrier in order to be included within the jurisdiction of the Division’s safety regulations. If the owner of the bus does not engage in the transportation of persons for compensation, the Division has no authority under Article 17 of Chapter 20 of the General Statutes to require the owner to comply with its motor carrier safety regulations.

LACY H. THORNBURG Attorney General

Jane P. Gray Special Deputy Attorney General