[Federal Register Volume 74, Number 163 (Tuesday, August 25, 2009)]
[Proposed Rules]
[Pages 42833-42836]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20393]
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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, [email protected]. 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]
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