
[Federal Register: August 25, 2009 (Volume 74, Number 163)]
[Proposed Rules]               
[Page 42833-42836]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25au09-24]                         

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 385

[Docket No. FMCSA-2001-11061]
RIN 2126-AB17

 
New Entrant Safety Assurance Process: Implementation of Section 
210(b) of the Motor Carrier Safety Improvement Act of 1999

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

ACTION: Advance notice of proposed rulemaking (ANPRM); request for 
comments.

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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) 
requests comment on the methods the Agency should consider implementing 
to provide further assurance that a new applicant carrier is 
knowledgeable about the applicable safety requirements before being 
granted New Entrant authority. We are considering whether to implement 
a proficiency examination as part of our revised New Entrant Safety 
Assurance Process and seek information concerning issues that should be 
considered in the development and use of such an examination. In 
addition, the Agency requests comments on other alternatives to a 
proficiency examination to complement the assurances already in place 
that new entrant carriers are knowledgeable about applicable safety 
requirements. This notice responds to issues raised by Advocates for 
Highway and Auto Safety (Advocates) regarding new entrant applicant 
knowledgeability.

DATES: Send your comments on or before October 26, 2009.

ADDRESSES: You may submit comments identified by FDMS Docket ID Number 
FMCSA-2001-11061 by any of the following methods:
     Federal eRulemaking Portal: Go to http://
www.regulations.gov. Follow the online instructions for submitting 
comments.
     Mail: Docket Management Facility: U.S. Department of 
Transportation, 1200 New Jersey Avenue, SE., West Building Ground 
Floor, Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building Ground Floor, Room 
W12-140, 1200 New Jersey Avenue, SE., between 9 a.m. and 5 p.m. ET, 
Monday through Friday, except Federal holidays.
     Fax: 202-493-2251.
    Instructions: For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the Public 
Participation heading under the SUPPLEMENTARY INFORMATION caption of 
this document. Note that all comments received will be posted without 
change to http://www.regulations.gov, including any personal 
information provided. Please see the Privacy Act heading below.
    Privacy Act: Anyone is able to search the electronic form of all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (65 FR 19477) or you may visit http://
DocketInfo.dot.gov.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov or the street 
address listed above. Follow the online instructions for accessing the 
dockets.

FOR FURTHER INFORMATION CONTACT: Mr. Richard Johnson, New Entrant 
Program Specialist, (202) 366-0476, richard.johnson@dot.gov. Business 
hours are from 8 a.m. to 4:30 p.m., e.t., Monday through Friday, except 
Federal holidays.

SUPPLEMENTARY INFORMATION:

Public Participation

    The Federal eRulemaking Portal (http://www.regulations.gov) is 
available 24 hours each day, 365 days each year. You can get electronic 
submission and retrieval help and guidelines under the ``How to Use 
This Site'' menu option.
    Comments received after the comment closing date will be included 
in the docket, and we will consider late comments to the extent 
practicable.

Legal Basis for the Rulemaking

    Under 49 U.S.C. 31144, the Secretary of Transportation (Secretary) 
is required to determine whether a new motor vehicle owner or operator 
is fit to operate safely. Section 210(a) of the Motor Carrier Safety 
Improvement Act of 1999 [Pub. L. 106-159, 113 Stat. 1764, December 9, 
1999] (MCSIA) added

[[Page 42834]]

sec. 31144(g) \1\ directing the Secretary to establish regulations to 
require each owner and operator granted New Entrant authority to 
undergo a safety review within 18 months of starting covered 
operations. In issuing these regulations, the Secretary was required 
to: (1) Establish the elements of the safety review, including basic 
safety management controls; (2) consider their effects on small 
businesses; and (3) consider establishing alternate locations where 
such reviews may be conducted for the convenience of small businesses. 
The Secretary was also required to phase in the new entrant safety 
review requirements in a manner that takes into account the 
availability of certified motor carrier safety auditors. The authority 
to establish such regulations has been delegated to FMCSA (49 CFR 
1.73(g)).
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    \1\ MCSIA originally codified section 31144(g) as Sec.  31144(c) 
and directed that it be added at the end of 49 U.S.C. 31144 
following preexisting subsections (c), (d), and (e). Section 
4114(c)(1) of the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (Pub. L. 109-59, 119 
Stat. 1144, August 10, 2005) (SAFETEA-LU) recodified this provision 
as Sec.  31144(g).
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    Section 210(b) of MCSIA directed the Secretary to ensure applicants 
for New Entrant authority are knowledgeable about applicable Federal 
safety requirements before receiving operating authority. The Secretary 
was required to consider a proficiency examination, as well as other 
requirements, to ensure applicants understand applicable safety 
requirements before being granted operating authority.\2\
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    \2\ Section 210(b) is codified as a note to 49 U.S.C. 31144.
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    Congress mandated increased oversight of new entrants because 
studies indicated these operators had a much higher rate of non-
compliance with basic safety management requirements and were subject 
to less oversight than established operators.
    In addition to expanding the Secretary's authority under sec. 
31144, sec. 210 of MCSIA was a specific statutory directive consistent 
with the more general pre-existing legal authority provided by the 
Motor Carrier Safety Act of 1984 (the 1984 Act) which requires the 
Secretary to prescribe regulations on commercial motor vehicle safety 
[Pub. L. 98-554, 98 Stat. 2834, October 30, 1984]. The regulations 
required by the 1984 Act must prescribe minimum safety standards for 
commercial motor vehicles (CMVs). At a minimum, the regulations shall 
ensure: (1) CMVs are maintained, equipped, loaded, and operated safely; 
(2) the responsibilities imposed on operators of CMVs do not impair 
their ability to operate the vehicles safely; (3) the physical 
condition of operators of CMVs is adequate to enable them to operate 
the vehicles safely; and (4) the operation of CMVs does not have a 
deleterious effect on the physical condition of the operators (49 
U.S.C. 31136(a)).
    This ANPRM solicits information on how the Agency might further 
ensure that an applicant for the new entrant program is knowledgeable 
about applicable safety requirements before being granted New Entrant 
authority. As such, it responds to the sec. 31136(a)(1) mandate that 
FMCSA regulations ensure CMVs are maintained and operated safely. It 
does not propose any new operational responsibilities on drivers 
pursuant to sections 31136(a)(2)-(4).

Background

    As discussed above, sec. 210 of MCSIA took a two-pronged approach 
to improving the safety performance of new entrant motor carriers. 
First, sec. 210(a) amended 49 U.S.C. 31144 to require new entrant motor 
carriers to undergo a safety audit within the first 18 months after 
beginning operations in interstate commerce. Second, sec. 210(b) 
directed the Secretary to initiate a rulemaking to establish minimum 
requirements for applicant motor carriers seeking new entrant 
registration to ensure applicant carriers are knowledgeable about 
applicable Federal motor carrier safety standards before being granted 
registration. The Secretary is required to ``consider the establishment 
of a proficiency examination for applicant motor carriers, as well as 
other requirements,'' to ensure applicant knowledgeability.

2002 Interim Final Rule

    In response to the statutory mandate in MCSIA, on May 13, 2002, 
FMCSA published an interim final rule (IFR) titled ``New Entrant Safety 
Assurance Process'' (67 FR 31978), which became effective January 1, 
2003. The Agency established a new application process for all new 
entrant motor carriers under its jurisdiction and domiciled in the 
United States and Canada. To receive permanent registration, these 
carriers must successfully complete an 18-month safety monitoring 
program, including a safety audit.
    In the IFR, the Agency did not require a proficiency examination as 
a method of ensuring that new entrant carriers were knowledgeable of 
the applicable safety requirements. Instead, FMCSA required applicants 
to certify, on Form MCS-150A--Safety Certification for Application for 
USDOT Number, that they were knowledgeable of the Federal Motor Carrier 
Safety Regulations (FMCSRs) and Hazardous Materials Regulations (HMRs) 
and attest that they had procedures in place to achieve compliance with 
specified regulatory requirements, including driver qualifications, 
hours of service, drug and alcohol testing, and vehicle condition. The 
IFR also provided for an application package containing educational and 
technical assistance (ETA) materials regarding the applicable safety 
requirements. FMCSA decided not to require a proficiency examination 
because it believed that the ETA materials provided to prospective new 
entrants and the safety certifications on the required application 
forms would demonstrate that the new entrants understood applicable 
safety regulations. Further, the Agency noted its ability to confirm 
carrier knowledge of applicable regulations during the safety audit 
required by sec. 210(a) of MCSIA.

2006 Notice of Proposed Rulemaking (NPRM)

    In an effort to make the New Entrant Safety Assurance Process more 
effective, the Agency convened a working group charged with reviewing 
and making specific recommendations for improving the process. To 
implement the working group's recommendations, the Agency published an 
NPRM titled ``New Entrant Safety Assurance Process'' (71 FR 76730) on 
December 21, 2006. In this NPRM, the Agency addressed compliance with 
the new entrant applicant knowledge requirements of sec. 210(b) of 
MCSIA with the following proposals: (1) Updating the ETA materials to 
better inform new entrants about applicable regulatory requirements and 
how to fully comply with these requirements; and (2) raising the 
standard of compliance for passing the new entrant safety audit. The 
Agency identified 11 regulations that are essential elements of basic 
safety management control necessary to operate in interstate commerce 
and proposed that failure to comply with any one of the 11 regulations 
would result in automatic failure of the audit. The current safety 
audit evaluation criteria in Appendix A of 49 CFR part 385 would apply 
if there are no automatic failure violations. The Agency proposed to 
eliminate the Form MCS-150A requirement as ineffective. After careful 
consideration the Agency, based on the enhanced ETA materials and more 
stringent audit standards, concluded that a proficiency exam would not 
be necessary to achieve sufficient new entrant knowledgeability

[[Page 42835]]

of the applicable regulatory requirements.

2008 Final Rule

    The Agency published a final rule on December 16, 2008 (73 FR 
76472). FMCSA raised the standard of compliance for passing the new 
entrant safety audit as follows:
     Adopted an automatic failure component for the safety 
audit. If a new entrant was found to have a single occurrence of any 
one of 16 identified regulatory violations which the Agency deems as 
essential elements of basic safety management controls necessary to 
operate in interstate commerce, it would automatically fail the safety 
audit.
     Strengthened the safety monitoring element of the program 
by identifying seven incidents or regulatory violations which, if 
discovered during a roadside inspection or by any other means than the 
safety audit, would trigger expedited action against the new entrant by 
the Agency.
     Eliminated the requirement to self-certify to pre-
operational knowledge of the Federal safety standards and discontinued 
the associated Form MCS-150A.
     Proposed a new application process and safety monitoring 
system for motor carriers that are not domiciled in North America (the 
U.S., Canada, or Mexico).
    The final rule became effective on February 17, 2009 with a 
compliance date of December 16, 2009.

2009 Petition for Reconsideration

    Advocates for Highway and Auto Safety (Advocates) filed a petition 
for reconsideration on January 15, 2009, alleging, in part, that the 
Agency failed to adequately address sec. 210(b). The Agency granted the 
portion of the petition related to sec. 210(b) and agreed to initiate a 
rulemaking to assess whether additional means are available to further 
ensure new entrant knowledgeability. A copy of the petition decision 
has been placed in the docket for this rulemaking. The Agency continues 
to review the other aspects of the petition. This notice responds to 
issues raised by Advocates regarding new entrant applicant 
knowledgeability. In addition, through this notice, the Agency 
demonstrates its commitment to obtaining data and comments from the 
public to facilitate a thorough and expeditious review intended to 
inform future regulatory decisions regarding sec. 210(b).

Request for Information and Comments

    FMCSA publishes this notice to enable the Agency to continue to 
carefully explore the costs and benefits of proficiency examinations or 
other alternatives to address the statutory mandate of ensuring that 
new applicants are knowledgeable about applicable safety requirements. 
The Agency considered issuing a Supplemental Notice of Proposed 
Rulemaking (SNPRM) to further address the proficiency examination 
issue, but concluded that an SNPRM would delay implementation of 
enhancements to the safety audit component of the New Entrant Safety 
Assurance Process necessary to achieve greater motor carrier safety. We 
believe the public interest is better served by implementing these 
audit changes through the December 16, 2008, final rule and through 
this ANPRM will continue to give careful consideration to pre-
operational carrier knowledgeability requirement in order to determine 
whether additional or alternative means are available to ensure new 
entrant knowledge.
    Therefore, FMCSA requests responses to the following issues and 
questions. Whenever possible, commenters should provide data in support 
of their responses. FMCSA recognizes that an individual commenter may 
choose to respond to all of the issues or only a subset, based on his 
or her area of expertise.
1. Use of a Proficiency Examination
    a. Information on the feasibility of establishing a proficiency 
examination as a component of the New Entrant Safety Assurance Process;
    b. Information about analogous types of examinations used in the 
motor carrier or other industries that could serve as models for a New 
Entrant proficiency examination;
    c. Recommendations on preferred testing protocols;
    d. Recommendations on how the Agency should administer a 
proficiency examination for applicants for New Entrant authority;
    e. Recommendations on which motor carrier employees the Agency 
should require to take a proficiency exam, and the feasibility of motor 
carriers retaining those employees through the duration of the New 
Entrant Safety Assurance Program;
    f. Information on the costs involved to develop, maintain, 
implement and administer a proficiency examination;
    g. Information on anticipated impacts on new entrants if the Agency 
requires a proficiency examination as a condition to receiving new 
entrant authority and beginning operations;
    h. Information on how, and to what degree, a proficiency 
examination would increase carrier knowledge of applicable regulations;
    i. Information on whether, and if so, how the increase in knowledge 
of applicable regulations brought about by the proficiency exam itself 
would lead to improved motor carrier safety;
    j. Other general comments related to establishing a proficiency 
examination as a component of the New Entrant Safety Assurance Process; 
and
    k. Information regarding the particular needs of small entities in 
establishing an assurance process.
2. Other Recommended Alternatives
    a. Ideas on how the Agency can ensure an applicant carrier is 
knowledgeable about the applicable safety requirements before being 
granted New Entrant authority and beginning operations other than 
through a proficiency examination;
    b. Information on estimated costs to create, maintain, and 
administer the recommended alternative to ensure applicant knowledge;
    c. Information on alternative approaches to the regulation that 
would reduce the impact on small entities;
    d. Information on anticipated impacts to new entrants if the Agency 
recommends the alternative; and
    e. Other general comments on the recommended alternatives.
    All comments received before the close of business on the comment 
closing date indicated at the beginning of this notice will be 
considered and will be available for examination in the docket at the 
location listed under the ADDRESSES caption of this notice. Comments 
received after the comment closing date will be included in the docket, 
and we will consider late comments to the extent practicable. In 
addition to late comments, FMCSA will also continue to file, in the 
public docket, relevant information that becomes available after the 
comment closing date. Interested persons should continue to examine the 
public docket for new material.

Regulatory Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    In this ANPRM, FMCSA is soliciting information on what methods the 
Agency might implement, as alternatives or in addition to those already 
in place, to further ensure that a new applicant carrier is 
knowledgeable about the applicable safety requirements before being 
granted New Entrant authority. FMCSA has preliminarily determined this 
ANPRM

[[Page 42836]]

is a significant regulatory action within the meaning of Executive 
Order 12866 and the U.S. Department of Transportation's regulatory 
policies and procedures (DOT Order 2100.5 dated May 22, 1980; 44 FR 
11034, February 26, 1979). FMCSA believes that a notice relating to new 
entrant motor carrier requirements may generate considerable public 
interest and therefore is significant. This notice requests comments on 
a narrow set of issues and is a highly preliminary part of a continuing 
process to inform future regulatory decisions concerning carrier 
knowledgeability under the New Entrant Safety Assurance Process. The 
potential economic impact of actions FMCSA may implement as a result of 
this ANPRM is not known at this time. Therefore, a full regulatory 
evaluation has not yet been prepared. The Agency intends to use the 
information collected from comments to this docket to determine whether 
a notice of proposed rulemaking should be developed, and, if necessary, 
a full regulatory evaluation is appropriate.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) 
requires federal agencies to assess the potential impacts of their 
regulatory proposals on small entities and to consider less burdensome 
alternatives. However, because this rulemaking is still at a 
preliminary stage, the RFA does not yet apply. However, FMCSA is still 
interested in understanding how the potential regulatory changes could 
impact small entities. Accordingly, FMCSA solicits comments, 
information, and data on how these potential changes would impact small 
entities and what alternative approaches would minimize any significant 
impacts to small entities.

Privacy Impact Analysis

    Due to the preliminary nature of this document and the fact that it 
proposes no regulatory changes, FMCSA is unable at this time to 
complete a privacy impact assessment as required by Section 522(a)(5) 
of the FY 2005 Omnibus Appropriations Act, Public Law 108-447, div. H, 
118 Stat. 2809, 3268 (Dec. 8, 2004) [set out as a note to 5 U.S.C. 
552a].
    If FMCSA proposes regulatory changes as a result of this ANPRM, the 
Agency would complete the required analyses.

Unfunded Mandates Reform Act of 1995

    FMCSA will analyze any action implemented in subsequent phases of 
this proceeding to determine whether it would result in the expenditure 
by State, local, and tribal governments, in the aggregate, or by the 
private sector, of $141.3 million or more in any one year, as required 
by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532).

Executive Order 12988 (Civil Justice Reform)

    FMCSA will analyze any action implemented in subsequent phases of 
this proceeding to determine whether it would meet applicable standards 
in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice 
Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    FMCSA will analyze any action implemented in subsequent phases of 
this proceeding to determine whether it would concern an environmental 
risk to health or safety that may disproportionately affect children 
under Executive Order 13045, Protection of Children from Environmental 
Health Risks and Safety Risks.

Executive Order 12630 (Taking of Private Property)

    FMCSA will analyze any action implemented in subsequent phases of 
this proceeding to determine whether it would effect a taking of 
private property or otherwise have taking implications under Executive 
Order 12630, Governmental Actions and Interference with 
Constitutionally Protected Property Rights.

Executive Order 13132 (Federalism)

    FMCSA asks for comments from State and local officials about the 
issues in this ANPRM. FMCSA will analyze any action implemented in 
subsequent phases of this proceeding using the principles and criteria 
contained in Executive Order 13132.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), 
FMCSA must obtain approval from the Office of Management and Budget 
(OMB) for each collection of information it conducts, sponsors, or 
requires through regulations.
    The Agency is not yet in a position to analyze fully any potential 
action it may initiate that may fall within the scope of the Paperwork 
Reduction Act. If FMCSA proposes any information collection 
requirements as a result of this ANPRM, the Agency would seek the 
necessary approval from OMB.

National Environmental Policy Act

    FMCSA will analyze any action implemented in subsequent phases of 
this proceeding for the purposes of the National Environmental Policy 
Act of 1969 (42 U.S.C. 4321, et seq.) to determine whether the action 
would affect the quality of the environment.
    FMCSA will analyze any action implemented in subsequent phases of 
this proceeding under the Clean Air Act, as amended (CAA), section 
176(c) (42 U.S.C. 7401 et seq.), and implementing regulations 
promulgated by the Environmental Protection Agency.

Executive Order 12898 (Environmental Justice)

    FMCSA will evaluate the environmental effects of any action 
implemented in subsequent phases of this proceeding in accordance with 
Executive Order 12898 to determine if there are environmental justice 
issues associated with its provisions or any collective environmental 
impact resulting from its promulgation. Environmental justice issues 
would be raised if there were ``disproportionate'' and ``high and 
adverse impact'' on minority or low-income populations.

Executive Order 13211 (Energy Effects)

    FMCSA will analyze any action implemented in subsequent phases of 
this proceeding under Executive Order 13211, Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use, to determine whether the action would be a ``significant energy 
action'' under that Executive Order.

List of Subjects in 49 CFR Part 385

    Administrative practice and procedure, Highway safety, Motor 
carriers, Motor vehicle safety, Reporting and recordkeeping 
requirements.

    Issued on: August 19, 2009.
Rose A. McMurray,
Acting Deputy Administrator.
[FR Doc. E9-20393 Filed 8-24-09; 8:45 am]

BILLING CODE 4910-EX-P
