IFR, New Entrant Safety Assurance Process

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obtaining additional, more detailed
information. These possible actions are
not government regulations or
mandates. However, we strongly suggest
that shippers and carriers consider
implementation of security measures
that are appropriate to their industry
and operations. There are certain cargo
security regulations already in place,
such as the Federal Aviation
Administration’s Indirect Air Carrier
Security Program set forth under 14 CFR
part 109.
VI. Training of Hazmat Employees
We estimate that over 85 percent of all
hazardous materials incidents are
caused by human error. Insufficient
function-specific training of hazmat
employees has been identified as a
major contributor in hazmat related
incidents. Before any hazmat employee
performs a function subject to the HMR,
that person must be trained in the
performance of that function. Effective
training of hazmat employees reduces
the potential for incidents and
accidents. Training is essential for the
protection of people, property, and the
environment.
Training is a systematic program
(consistent approach, testing, and
documentation) that ensures a hazmat
employee has knowledge of hazardous
materials and the HMR, and can
perform assigned hazmat functions
properly. The terms ‘‘hazmat employee’’
and ‘‘hazmat employer’’ are defined in
detail in § 171.8. Stated briefly, a
hazmat employee is anyone who
directly affects hazardous material
transportation safety. A hazmat
employer is anyone who uses
employees in connection with
transporting hazardous materials in
commerce, causing hazardous materials
to be transported, or manufacturing or
offering packagings as authorized for
use in transportation of hazardous
materials. Each hazmat employee must
be initially trained, and periodically
retrained every three years in three
areas: (1) General awareness/
familiarization training designed to
provide familiarity with requirements of
the HMR and to enable the employee to
recognize and identify hazardous
materials; (2) function-specific training
concerning requirements of the HMR
which are specifically applicable to the
functions the employee performs; and
(3) safety training concerning emergency
response information, measures to
protect the employee from the hazards
posed by materials, and methods and
procedures for avoiding accidents.

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VII. Obtaining Federal Assistance
You may obtain information on
hazardous material incidents, most of
which involve ‘‘spills’’ (the
unintentional release of a hazardous
material during transportation), from
RSPA’s database which is accessible
from our website at http://
hazmat.dot.gov. You can search this
database to make sure that you are
aware of incidents involving your
shipments. To ensure that shippers are
informed of incidents involving their
shipments, RSPA has proposed to
amend the HMR to require a carrier to
notify the shipper of any incident
required to be reported to RSPA. (See
RSPA’s notice of proposed rulemaking
published in the Federal Register on
July 3, 2001; 66 FR 35155.)
Our Hazardous Materials Information
Center (HMIC) may be reached toll-free
at 800–467–4922. The HMIC provides
informal guidance concerning
requirements of the HMR. The HMIC is
staffed with information specialists from
9 am until 5 pm, Eastern time, Monday
through Friday, except Federal holidays.
When the information line is not staffed,
callers may leave a recorded message,
which will be answered the next
business day. This toll-free number may
also be used to voluntarily report
suspected violations of the HMR.
Reported violations of hazardous
materials regulations are forwarded to
the Office of Hazardous Materials
Enforcement or the appropriate DOT
modal administration for appropriate
action.
Modal-specific information may be
obtained directly from DOT’s modal
administrations (i.e., the Federal
Aviation Administration, the Federal
Motor Carrier Safety Administration, the
Federal Railroad Administration, the
U.S. Coast Guard, and the
Transportation Security Administration)
at their Washington, DC headquarters or
field offices.
You may request an informal written
interpretation, a regulatory clarification,
a response to a question, or offer an
opinion concerning hazardous materials
transportation by submitting a written
request to the RSPA Office of Hazardous
Materials Standards (DHM–10), U.S.
Department of Transportation, 400
Seventh Street, SW., Washington, DC
20590–0001.
We have a variety of training
materials and compliance guides
available in limited quantities to
interested persons. Information on those
publications and related materials is
available through our website at http://
hazmat.dot.gov/. In addition our website
provides: (1) A complete copy of the

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HMR; (2) recently published
rulemakings; (3) hyperlinks to
government and private vendors who
offer training, consulting and other
contracted services; (4) our multi-modal
training seminar schedule; (5)
complementary on-line training
modules; and (6) informal
interpretations and guidance
documents.
Issued in Washington, DC, on May 6, 2002.
Frits Wybenga,
Deputy Associate Administrator for
Hazardous Materials Safety.
[FR Doc. 02–11659 Filed 5–10–02; 8:45 am]
BILLING CODE 4910–60–P

DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
49 CFR Part 385
[Docket No. FMCSA–2001–11061]
RIN 2126–AA59

New Entrant Safety Assurance Process
AGENCY: Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Interim Final Rule (IFR); request
for comments.
SUMMARY: The FMCSA establishes
minimum requirements for new entrant
motor carriers to ensure that they are
knowledgeable about applicable Federal
motor carrier safety standards. After
ensuring that they are knowledgeable
through the application process, the
new entrants will operate for 18 months
in which time they must pass a safety
audit in order to receive permanent
DOT registration.
DATES: This rule is effective January 1,
2003. Comments must be received on or
before July 12, 2002.
ADDRESSES: You can submit comments
by mail or by delivery service to the
U.S. DOT Docket Management Facility
(DMS), Room PL–401, 400 Seventh
Street, SW., Washington, DC 20590–
0001, and your signed written
comments must refer to the docket
number appearing at the top of this
document. Comments received from the
public will become part of this docket
and will be available for inspection and
copying at the DMS between 9 a.m. and
5 p.m., Monday through Friday, except
Federal holidays. Those desiring
acknowledgement of receipt of your
comments should include a selfaddressed stamped envelope or
postcard, or after submitting comments
electronically, print the
acknowledgment page.

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Comments may also be submitted on
the Internet by using the universal
resource locator (URL) at: http://
dmses.dot.gov/submit, or by fax to (202)
493–2251. Internet users may view all
comments received by the DMS on the
Internet at: http://dms.dot.gov. Please
follow the instructions online for more
information and help. In addition, an
electronic copy of this document may be
downloaded by accessing Federal
Register publications through the
Government Printing Office (GPO)
Access service (http://
www.access.gpo.gov/nara).
All comments received before the
close of business on the comment
closing date indicated above will be
considered and will be available for
examination using the docket number
appearing at the top of this document in
the docket room at the above address.
The FMCSA will file comments
received after the comment closing date
in the docket and will consider late
comments to the extent practicable. The
FMCSA may, however, issue a final rule
at any time after the close of the
comment period.
FOR FURTHER INFORMATION CONTACT: Mr.
Larry Minor, 202–366–4009, Acting
Chief, Driver and Carrier Operations
Division, Federal Motor Carrier Safety
Administration (MC–PSD), 400 Seventh
Street, SW., Washington, DC 20590–
0001. Office hours are from 7:45 a.m. to
4:15 p.m., e.t., Monday through Friday,
except Federal holidays.
SUPPLEMENTARY INFORMATION:
Regulatory Information
This rule is being published as an
interim final rule and is being made
effective on January 1, 2003. A notice of
proposed rulemaking does not precede
this rule.
In the fiscal year 2002 Department of
Transportation Appropriations Act
(Public Law 107–87; December 18,
2001), Congress directed that as a
condition of processing applications of
Mexico-domiciled motor carriers for
authority to operate beyond the
commercial zones and municipalities
located along the U.S.-Mexico border,
the FMCSA must issue an interim final
rule to ensure that new entrant carriers
are knowledgeable about Federal safety
standards. The FMCSA is making the
effective date of the rule January 1, 2003
in order to allow the agency sufficient
time to put in place the necessary
resources to conduct the safety audits
prescribed by the rule. Additionally, the
FMCSA will need the funds generated
by its final fee structure under the Motor
Carrier Replacement Information/
Registration System to run the program.

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It expects to complete that rulemaking
by the January 2003 effective date.
Because of Congress’ direction, the
FMCSA finds that there is good cause
that notice and comment are contrary to
the public interest under 5 U.S.C.
553(b)(3)(B).
Background
On December 9, 1999, the President
signed the Motor Carrier Safety
Improvement Act of 1999 (Public Law
106–159). Section 210(a) of MCSIA, now
codified as 49 U.S.C. 31144(f), requires
the Secretary of Transportation to
establish regulations specifying
minimum requirements for applicant
motor carriers seeking federal interstate
operating authority, including a
requirement that new entrants undergo
a safety audit within the first 18 months
of operations.
Although operating authority has
generally been construed in the past to
mean registration of for-hire carriers
subject to the jurisdiction transferred
from the Interstate Commerce
Commission following enactment of the
ICC Termination Act of 1995 (ICCTA)
(Public Law 104–88) (referred to herein
as authorized for-hire motor carriers),
the FMCSA believes section 210 extends
this concept to all carriers subject to
Federal safety jurisdiction. In other
words, all new entrants, regardless of
whether they need to register with the
FMCSA under 49 U.S.C. 13901, will be
required to meet certain minimum
safety standards in order to continue
operating in interstate commerce during
and after the 18-month period following
their receipt of a USDOT number.
The FMCSA intends to improve the
safety performance of new entrants by
providing educational and technical
assistance to new carriers as they begin
their new business. The intent of the
safety audit and 18-month monitoring
period is to provide new carriers the
opportunity to understand their safety
obligations under the Federal Motor
Carrier Safety Regulations (FMCSRs)
and applicable Hazardous Materials
Regulations (HMRs). The safety audit
will consist of a review of the new
entrant’s safety data, a review of
requested motor carrier documents, and
an interview session with the motor
carrier by an individual certified under
FMCSA regulations to perform safety
audits. The objective of the safety audit
is both to educate the carrier on
compliance with the FMCSRs and
HMRs and to determine areas where the
carrier might be deficient in terms of
compliance. Areas covered include the
qualification of drivers; driving a
commercial motor vehicle; hours of
service; vehicle inspection, repair, and

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31979

maintenance; transporting and marking
hazardous materials; controlled
substances and alcohol use and testing;
commercial driver’s license standards;
and financial responsibility. When
presented with evidence that carriers
cannot or will not exercise basic safety
management controls, the FMCSA will
require corrective action. If the
necessary corrective action is not taken,
a carrier will be denied the privilege of
operating in interstate commerce.
However, the safety enforcement
remedies addressed in the rule are not
the exclusive enforcement tools
available to the agency to ensure safe
operations by new entrants. New entrant
carriers are subject, like any other
carrier operating in the United States, to
all Federal Motor Carrier Safety
Regulations and operating requirements.
The agency can and will, where
necessary, apply the full range of
enforcement actions to new entrant
carriers. These include, but are not
limited to, compliance reviews, civil
penalties, and revocation of new entrant
registration for serious safety violations.
Currently, an applicant who wishes to
begin commercial vehicle operations in
interstate commerce is required to
submit the Motor Carrier Identification
Report, Form MCS–150, to FMCSA
before commencing operations.
Additionally, unless providing
transportation exempt from ICCTA
registration requirements, a for-hire
motor carrier must also apply for the
appropriate operating authority, make
the necessary administrative filings as
required by the ICCTA, and pay a fee.
This regulation establishes new
minimum requirements for all applicant
motor carriers domiciled in the United
States and Canada seeking to operate in
interstate commerce for the first time.
Applicants will be provided educational
and technical assistance material to
assist them in complying with the
FMCSRs and applicable HMRs, and will
be required to certify that they are
knowledgeable about, and will comply,
with these regulations. This will help
ensure they are knowledgeable about
applicable Federal motor carrier safety
standards before being granted ‘‘new
entrant registration’’ that will continue
for a minimum of 18 months. During the
18-month period, FMCSA will evaluate
the new entrant’s safety management
practices through a safety audit and
monitor its on-road performance prior to
granting the new entrant permanent
registration.
Section 210(b) of the MCSIA required
the Secretary to consider establishing a
proficiency examination as well as other
requirements to ensure applicants
understand applicable safety regulations

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before being granted operating
authority. The FMCSA is not requiring
a proficiency examination because it
believes that the educational and
technical assistance materials provided
to the new entrants and the safety
certifications on the required
application forms will demonstrate the
new entrants understand applicable
safety regulations.
The new MCS–150A form requires the
new entrant to certify that it has a
system(s) in place to ensure compliance
with applicable requirements covering
driver qualifications, hours of service,
controlled substance and alcohol
testing, vehicle condition, accident
monitoring, and hazardous materials
transportation. The certification
reminds the new entrant of its statutory
and regulatory responsibilities, which if
neglected or violated, may subject the
applicant to civil penalties and/or lead
to the revocation of the new entrant
registration.
Motor carriers domiciled in Mexico
seeking to operate in the United States
will not be subject to this rule. The
FMCSA adopted separate application
and safety monitoring procedures for
Mexico-domiciled carriers on March 19,
2002, (67 FR 12652, 67 FR 12702, and
67 FR 12758). The FMCSA believes it is
necessary to maintain separate
procedures for Mexico-domiciled
carriers because of: (1) The differences
between the Mexican and U. S.
regulatory systems, which present
unique circumstances in ensuring
compliance with the FMCSRs and
HMRs by Mexico-domiciled carriers;
and (2) the unique requirements
imposed on certain Mexico-domiciled
carriers by the Department of
Transportation Appropriations Act.
These differences are discussed in detail
in the preambles to the notices of
proposed rulemakings for the Mexican
carrier rules published on May 3, 2001
(66 FR 22238, 22371 and 22415).
Under the new requirements, an
applicant may request an application
package by contacting the FMCSA
website (www.fmcsa.dot.gov); or by
contacting the FMCSA’s Washington,
DC headquarters by mail, fax or
telephone. Applicants are strongly
encouraged to complete the applications
on line. The application package will
contain the following:
1. Educational and technical
assistance material regarding the
requirements of the FMCSRs and HMRs,
if applicable.
2. The Form MCS–150, The Motor
Carrier Identification Report.
3. The Form MCS–150A, Safety
Certification for Applications for U.S.
DOT Number. A copy of Form MCS–

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150A is available in the docket
described above under ADDRESSES.
For-hire motor carriers are also
required to complete the application
forms OP–1 or OP–1(P), as appropriate,
and must submit them to the FMCSA at
the same time as the Forms MCS–150
and MCS–150A. The FMCSA is
planning to update these forms in the
future to implement the provisions of
the ICC Termination Act of 1995
(ICCTA).
The educational and technical
assistance package will consist of
material designed to assist the applicant
in complying with the FMCSRs and
establishing good safety management
practices. It will include information on
driver qualifications; controlled
substances and alcohol use testing;
commercial drivers licenses; minimum
levels of financial responsibility;
accident reports; requirements
applicable to the driving of motor
vehicles; vehicle inspection, repair and
maintenance; hours of service and
records of duty status of drivers; and
requirements applicable to the
transportation of hazardous materials.
Following completion of the
application forms, FMCSA will register
the new entrant and assign a United
States Department of Transportation
(USDOT) number. For-hire motor
carriers, unless providing transportation
exempt from ICCTA registration
requirements, are required to obtain
operating authority prior to
commencing operations. The new
entrant registration begins with the
issuance of the USDOT number and will
continue for 18 months. During the 18month new entrant registration period,
the new entrant will be required to
undergo a safety audit designed to
evaluate the adequacy of its safety
management practices and to offer
guidance and assistance in enhancing
those practices. The agency is treating
the term ‘‘safety audit,’’ which is used
in Sec. 211 of the MCSIA regarding the
certification of an individual under
FMCSA regulations to perform safety
audits, as equivalent to the ‘‘safety
review’’ mandated by Sec. 210 of
MCSIA. The statutory purpose of a
‘‘safety review’’ and a ‘‘safety audit’’
appears to be very similar. In addition,
the term ‘‘safety audit’’ avoids any
possible confusion with the safety
reviews previously conducted by the
agency, which were discontinued on
September 30, 1994.
The safety audit will generally occur
at the new entrant’s place of business,
upon reasonable notice to the new
entrant, which will include notice of
what the audit will consist of and when

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it will take place. The safety audit will
be an assessment of the adequacy of the
new entrant’s basic safety management
controls. It will include, but not be
limited to, a review of selected carrier
records and operational practices, e.g.,
driver qualification records, driver
records of duty status, and vehicle
maintenance files. The safety audit is
different than a compliance review in
that it focuses on providing safety
management and technical assistance
and will not result in a safety fitness
determination, i.e., a safety rating of
satisfactory, conditional, or
unsatisfactory. Safety ratings are
assigned only after a compliance review.
However, the safety audit could result
in the new entrant having its new
entrant registration revoked if it is found
to have inadequate basic safety
management controls and fails to take
corrective action required by the
FMCSA. Appendix A—Explanation of
Safety Audit Evaluation Criteria will be
used to determine the adequacy of the
new entrant’s basic safety management
controls.
The FMCSA is interested in
comments on the advisability of
conducting some safety audits at
alternate locations. This would enable
the agency to provide educational and
technical assistance to a number of new
entrants at one time and also perform
the audits of the systems and records
the new entrants will be required to
provide. The FMCSA also invites
comments on whether it is appropriate
for private contractors certified by the
FMCSA to conduct safety audits.
Following completion of the safety
audit, the auditor will review the
findings with the new entrant. If the
safety audit reveals that the carrier has
basic safety management controls in
place that are functioning adequately,
the FMCSA will notify the new entrant
in writing within 45 days that it has
successfully met the safety audit
requirements. However, the new entrant
registration will remain in place and the
carrier’s performance will remain
closely monitored by the FMCSA until
the end of the 18-month period. If a
safety audit has not been conducted on
a new entrant, through no fault of the
carrier, the new entrant designation will
continue until such time as a safety
audit is conducted. However, a new
entrant who has not undergone a safety
audit within the 18 months because it
has refused to allow the FMCSA to
conduct the safety audit may have its
new entrant registration revoked ten
days after receiving notice from the
FMCSA.
The FMCSA anticipates that the safety
management practices of the large

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majority of new entrants will prove to
be adequate because of the combined
effect of: (1) Providing educational
material to the new entrant in the
application process; (2) requiring the
new entrant to certify that it
understands and that it will comply
with the FMCSRs; and (3) providing
notice to the new entrant of the content
of the safety audit. However, in those
cases in which the safety audit reveals
that the new entrant’s safety
management practices are inadequate,
the FMCSA will notify the new entrant
that it is required to take action to
improve its practices. The new entrant
will have 60 days to take the necessary
remedial action, unless it transports
passengers or carries hazardous
materials, in which case it will have 45
days. These time periods are consistent
with the period currently provided to
motor carriers to improve proposed
safety ratings following a compliance
review. Failure by the carrier to make
the necessary changes to remedy
inadequate basic safety management
controls will result in revocation of its
new entrant registration and imposition
of an out-of-service order (OOS)
prohibiting operations in interstate
commerce. The FMCSA is interested in
comments on the resource cost to the
economy of denying permanent
registration.
If a new entrant provides the FMCSA
with a written response demonstrating
that corrective action likely to achieve
compliance with the requirements of the
FMCSRs and applicable HMRs has been
taken, and the FMCSA determines the
new entrant’s basic safety management
controls are adequate, the new entrant
will be notified in writing that its safety
management practices are acceptable
and that its new entrant registration will
remain in place until the end of the 18month period.
The FMCSA believes that in most
cases in which corrective action is
needed, the remedial action will be
taken in the required time frame.
However, in those cases in which the
new entrant does not take any remedial
action, or takes action unlikely to
improve its safety performance to an
acceptable level, the FMCSA will
initiate a proceeding to revoke the new
entrant registration.
The FMCSA Division Administrators
or State Directors will make the initial
determination about the adequacy of a
new entrant’s basic safety management
controls and whether necessary
corrective action has been taken. The
Field Administrator of the appropriate
FMCSA Service Center will conduct
administrative review of this decision.

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A new entrant may request the
FMCSA to conduct an administrative
review if it believes the FMCSA has
committed an error in determining that
its basic safety management controls are
inadequate. The new entrant’s request
must explain the error it believes the
FMCSA committed in its determination
and include a list of all factual and
procedural issues in dispute. In
addition, the new entrant must include
any information or documents that
support its argument. Following the
administrative review, the FMCSA will
notify the new entrant of its decision,
which will constitute the final action of
the agency.
A new entrant whose registration has
been revoked is prohibited from
operating a CMV in interstate commerce
and may not reapply for new entrant
registration sooner than 30 days after
the date of revocation. A new entrant
reapplicant will be required to
demonstrate to the FMCSA’s satisfaction
that it has corrected the deficiencies that
resulted in revocation and otherwise has
in place safety management systems that
will function effectively.
The rule provides that at the end of
the 18-month period, if the new entrant
has successfully met the requirements of
the safety audit and is not currently
under a notice from the FMCSA to
remedy its safety management practices,
its DOT registration will become
permanent. Thereafter, it will be treated
like any other motor carrier. If the
carrier is under a notice to remedy its
safety management practices, its new
entrant designation will continue until
FMCSA determines the new entrant has
implemented actions necessary to
achieve adequate safety management
practices.
Rulemaking Analysis and Notices
Executive Order 12866 (Regulatory
Planning and Review) and DOT
Regulatory Policies and Procedures
The FMCSA has determined that this
action is a significant regulatory action
within the meaning of Executive Order
12866, and is significant within the
meaning of Department of
Transportation regulatory policies and
procedures (44 FR 11034, February 26,
1979). It has been reviewed by the
Office of Management and Budget. The
subject of requirements for new entrant
motor carriers will likely generate
considerable public interest within the
meaning of Executive Order 12866. We
have classified the rule as significant
because of the high level of public and
congressional interest in the new
entrant safety assurance process. OMB
has designated the rule as economically

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31981

significant. A regulatory evaluation has
been prepared and placed in the docket.
A series of analyses and reports have
demonstrated that new motor carriers
are less likely to comply with safety
regulations, and are more likely to be
involved in crashes, than established
motor carriers. In response to this,
Congress directed the FMCSA to
develop a program to ensure the safety
of new entrants.
The centerpiece of the new entrant
program is the safety audit, which will
be performed on all new entrants within
18 months of their registration.
Individuals certified under the FMCSA
regulations will perform these audits.
The FMCSA anticipates a volume of
approximately 40,000 new entrant
safety audits each year. A copy of the
complete regulatory evaluation is
available in the docket described above
under ADDRESSES.
Regulatory Flexibility Act
In compliance with the Regulatory
Flexibility Act (5 U.S.C. 601–612), the
FMCSA has considered the effects of
this regulatory action on small entities
and determined that such entities would
not be adversely affected by this rule.
We therefore certify that it would not
have a significant impact on a
substantial number of small entities.
Executive Order 12988 (Civil Justice
Reform)
This action meets 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)
We have analyzed this rule under
Executive Order 13045, ‘‘Protection of
Children from Environmental Health
Risks and Safety Risks.’’ This rule does
not concern an environmental risk to
health or safety that would
disproportionately affect children.
Executive Order 12630 (Taking of
Private Property)
This rule will not 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)
This action has been analyzed in
accordance with the principles and
criteria contained in Executive Order
13132 dated August 4, 1999, and it has
been determined that this action does

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not have a substantial direct effect or
sufficient federalism implications on
States that would limit the
policymaking discretion of the States.
Nothing in this document directly
preempts any State law or regulation. It
will not impose additional costs or
burdens on the States. This action will
not have a significant effect on the
States’ ability to execute traditional
State governmental functions. To the
extent that States incur costs for
conducting these safety audits, they will
be reimbursed with federal funds under
the Motor Carrier Safety Assistance
Program (MCSAP). Since the MCSAP is
an ‘‘80/20’’ program, FMCSA would
reimburse the States for 80% of the
costs incurred in conducting safety
audits.
Executive Order 12372
(Intergovernmental Review)
Catalog of Federal Domestic
Assistance Program Number 20.217,
Motor Carrier Safety. The regulations
implementing Executive Order 12372
regarding intergovernmental
consultation on Federal programs and
activities do not apply to this program.
Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995 (PRA) (44 U.S.C. 3501–3520),
Federal agencies must obtain approval
from the Office of Management and
Budget (OMB) for each collection of
information they conduct, sponsor, or
require through regulations. An analysis
of this interim final rule has been made
by the FMCSA, and it has been
determined that it will affect a
currently-approved information
collection covered by OMB Control No.
2126–0013 (Motor Carrier Identification
Report). Information collection 2126–
0013, with an annual burden of 68,250
hours, expires on May 31, 2004.
In addition to completing form MCS–
150 (Motor Carrier Identification
Report), this interim final rule will also
require new entrants to complete a new
supplemental form, entitled Safety
Certification for Applications for U.S.
DOT Number (MCS–150A). The
completion of the supplemental form is
the only portion of this interim final
rule with PRA implications.
Although the rule also involves two
other forms new entrants must
complete—the BOC–3 and OP forms,
there is no impact on burden hours for
those information collections resulting
from this rule. The BOC–3 form is
covered by 2126–0015 (Designation of
Agents, Motor Carriers, Brokers and
Freight Forwarders), which expires on
November 30, 2004. The OP series forms
are covered by 2126–0016 (Revision of

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Licensing Application Forms of
Application Procedures and
Corresponding Regulations), which
expires on March 31, 2005. However,
this rule does not affect the burden
hours involved with these two
information collections.
The FMCSA estimates that
approximately 40,000 new entrants
annually will be required to complete
this supplemental form (MCS–150A)
and that the supplemental form takes
approximately 9 minutes to complete.
Therefore, we estimate the total annual
burden of this interim final rule to be
6,000 burden hours (9 minutes × 40,000,
divided by 60 minutes). The new total
burden for information collection 2126–
0013 would be 74,250 hours (the
currently-approved 68,250 hours for
completing the MCS–150, plus 6,000
hours for completing the MCS–150A).
We particularly request your
comments on whether the collection of
information is necessary for the FMCSA
to meet its goal of reducing truck
crashes, including (1) whether the
information is useful to this goal; (2) the
accuracy of the estimate of the burden
of the information collection; (3) ways
to enhance the quality, utility and
clarity of the information collected; and
(4) ways to minimize the burden of the
collection of information on
respondents, including the use of
automated collection techniques or
other forms of information technology.
You may submit comments on the
information collection burden
addressed by this interim final rule to
the Office of Management and Budget
(OMB). The OMB must receive your
comments by June 27, 2002. You must
mail or hand deliver your comments to:
Attention: Desk Officer for the
Department of Transportation, Docket
Library, Office of Information and
Regulatory Affairs, Office of
Management and Budget, Room 10102,
725 17th Street, NW., Washington, DC
20503.

procedures for considering
environmental impacts under DOT
Order 5610.1C. The FMCSA analyzed
this interim final rule under the NEPA
and DOT Order 5610.1C. We believe it
would be among the type of regulations
that would be categorically excluded
from any environmental assessment.

National Environmental Policy Act
The Federal Motor Carrier Safety
Administration (FMCSA) is a new
administration within the Department of
Transportation (DOT). We are striving to
meet all of the statutory and executive
branch requirements on rulemaking.
The FMCSA is currently developing an
agency order that will comply with all
statutory and regulatory policies under
the National Environmental Policy Act
of 1969 (42 U.S.C. 4321 et seq.). We
expect the draft FMCSA Order to appear
in the Federal Register for public
comment in the near future. The
framework of the FMCSA Order is
consistent with and reflects the

In consideration of the foregoing, Title
49, Code of Federal Regulations,
Chapter III, part 385 is amended as set
forth below:

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Energy Effects
We have analyzed this rule under
Executive Order 13211, Actions
Concerning Regulations that
Significantly Affect Energy Supply,
Distribution, or Use. We have
determined that it is not a ‘‘significant
energy action’’ under that order because
it is not likely to have a significant
adverse effect on the supply,
distribution, or use of energy because it
sets standards for new entrant motor
carriers and has no direct relation to
energy consumption. The Administrator
of the Office of Information and
Regulatory Affairs has not designated it
as a significant energy action. Therefore,
it does not require a Statement of Energy
Effects under Executive Order 13211.
Unfunded Mandates
This rule does not impose an
unfunded Federal mandate resulting in
the expenditure by State, local, and
tribal governments, in the aggregate, or
by the private sector, of $100 million or
more in any one year. (2 U.S.C. 1531 et
seq.) Any costs incurred by the States
are reimbursable under the Motor
Carrier Safety Assistance Program
(MCSAP). To the extent that States incur
costs for conducting these safety audits,
they will be reimbursed with federal
funds under MCSAP.
List of Subjects in 49 CFR Part 385
Administrative practice and
procedure, Highway safety, Motor
carriers, Motor vehicle safety, Reporting
and recordkeeping requirements, Safety
fitness procedures.

PART 385—SAFETY FITNESS
PROCEDURES
1. The authority citation for part 385
is revised to read as follows:
Authority: 49 U.S.C. 113, 504, 521(b),
5113, 31136, 31144, 31148, and 31502; and
49 CFR 1.73.

2. Amend § 385.1 by redesignating
paragraph (b) as paragraph (c) and
revising it, and by adding new
paragraph (b) to read as follows:

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§ 385.1

Purpose and scope.

*

*
*
*
*
(b) This part establishes the safety
assurance program for a new entrant
motor carrier initially seeking to register
with FMCSA to conduct interstate
operations. It also describes the
consequences that will occur if the new
entrant fails to maintain adequate basic
safety management controls.
(c) The provisions of this part apply
to all motor carriers subject to the
requirements of this subchapter, except
non-business private motor carriers of
passengers.
3. Amend § 385.3 by revising the
section heading and adding definitions
and acronyms in alphabetical order to
read as follows:
§ 385.3

Definitions and acronyms.

*

*
*
*
*
CMV means a commercial motor
vehicle as defined in § 390.5 of this
subchapter.
*
*
*
*
*
FMCSA means the Federal Motor
Carrier Safety Administration.
FMCSRs mean Federal Motor Carrier
Safety Regulations (49 CFR parts 350–
399).
HMRs means the Hazardous Materials
Regulations (49 CFR parts 100–178).
New entrant is a motor carrier not
domiciled in Mexico that applies for a
United States Department of
Transportation (DOT) identification
number in order to initiate operations in
interstate commerce.
New entrant registration is the
registration (US DOT number) granted a
new entrant before it can begin
interstate operations in an 18-month
monitoring period. A safety audit must
be performed on a new entrant’s
operations within 18 months after
receipt of its US DOT number and it
must be found to have adequate basic
safety management controls to continue
operating in interstate commerce at the
end of the 18-month period.
*
*
*
*
*
4. Part 385 is amended by adding a
new subpart D to read as follows:
Subpart D—New Entrant Safety Assurance
Program
Sec.
385.301 What is a motor carrier required to
do before beginning interstate
operations?
385.303 How does a motor carrier register
with the FMCSA?
385.305 What happens after the FMCSA
receives a request for new entrant
registration?
385.307 What happens after a motor carrier
begins operations as a new entrant?
385.309 What is the purpose of the safety
audit?

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385.311 What will the safety audit consist
of?
385.313 Who will conduct the safety audit?
385.315 Where will the safety audit be
conducted?
385.317 Will a safety audit result in a safety
fitness determination by the FMCSA?
385.319 What happens after the completion
of the safety audit?
385.321 What failures of safety management
practices disclosed by the safety audit
will result in a notice to a new entrant
that its DOT new entrant registration will
be revoked?
385.323 May the FMCSA extend the period
under § 385.319(c) for a new entrant to
take corrective action to remedy its
safety management practices?
385.325 What happens after a new entrant
has been notified under 385.319(c) to
take corrective action to remedy its
safety management practices?
385.327 What happens when a new entrant
receives a notice under § 385.319(c) that
its new entrant registration will be
revoked and it believes the FMCSA made
an error in its determination?
385.329 May a new entrant that has had its
U.S. DOT registration revoked and its
operations placed out of service (OOS)
reapply?
385.331 What happens if a new entrant
operates a CMV after having been issued
an order placing its interstate operations
out of service (OOS)?
385.333 What happens at the end of the 18month safety monitoring period?
385.335 If the FMCSA conducts a
compliance review on a new entrant,
will the new entrant also be subject to a
safety audit?
385.337 What happens if a new entrant
refuses to permit a safety audit to be
performed on its operations?

Subpart D—New Entrant Safety
Assurance Program
§ 385.301 What is a motor carrier required
to do before beginning interstate
operations?

(a) Before a motor carrier of property
or passengers begins interstate
operations, it must register with the
FMCSA and receive a USDOT number.
In addition, for-hire motor carriers must
obtain operating authority from FMCSA
following the registration procedures
described in 49 CFR part 365, unless
providing transportation exempt from
49 CFR part 365 registration
requirements.
(b) This subpart applies to motor
carriers domiciled in the United States
and Canada.
(c) A Mexico-domiciled motor carrier
of property or passengers must register
with the FMCSA by following the
registration procedures described in 49
CFR part 365 or 368, as appropriate. The
regulations in this subpart do not apply
to Mexico-domiciled carriers.

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31983

§ 385.303 How does a motor carrier
register with the FMCSA?

A motor carrier may contact the
FMCSA by internet
(www.fmcsa.dot.gov); or Washington,
DC headquarters by mail at, FMCSA,
400 7th Street SW., Washington, DC
20590; fax (703) 280–4003; or telephone
1–800–832–5660, and request the
application materials for a new entrant
motor carrier.
§ 385.305 What happens after the FMCSA
receives a request for new entrant
registration?

(a) The requester for new entrant
registration will be directed to the
FMCSA Internet website
(www.fmcsa.dot.gov) to secure and/or
complete the application package
online.
(b) The application package will
contain the following:
(1) Educational and technical
assistance material regarding the
requirements of the FMCSRs and HMRs,
if applicable.
(2) The Form MCS–150, The Motor
Carrier Identification Report.
(3) The Form MCS–150A, The Safety
Certification for Applications for U.S.
DOT Number.
(4) Application forms to obtain
operating authority under 49 CFR 365,
as appropriate.
(c) Upon completion of the
application forms, the new entrant will
be issued a USDOT number.
(d) For-hire motor carriers, unless
providing transportation exempt from
49 CFR part 365 registration
requirements, must also comply with
the procedures established in 49 CFR
part 365 to obtain operating authority
before operating in interstate commerce.
§ 385.307 What happens after a motor
carrier begins operations as a new entrant?

After a new entrant satisfies all
applicable pre-operational
requirements, it will be subject to the
new entrant safety monitoring
procedures for a period of 18 months.
During this 18-month period:
(a) The new entrant’s roadside safety
performance will be closely monitored
to ensure the new entrant has basic
safety management controls that are
operating effectively. An accident rate
or driver or vehicle violation rate that is
higher than the industry average for
similar motor carrier operations may
cause the FMCSA to conduct an
expedited safety audit or compliance
review at any time.
(b) A safety audit will be conducted
on the new entrant, once it has been in
operation for enough time to have
sufficient records to allow the agency to

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evaluate the adequacy of its basic safety
management controls. This period will
generally be at least 3 months.
(c) All records and documents
required for the safety audit shall be
made available for inspection upon
request by an individual certified under
FMCSA regulations to perform safety
audits.
§ 385.309 What is the purpose of the
safety audit?

The purpose of a safety audit is to:
(a) Provide educational and technical
assistance to the new entrant; and
(b) Gather safety data needed to make
an assessment of the new entrant’s
safety performance and adequacy of its
basic safety management controls.
§ 385.311 What will the safety audit
consist of?

The safety audit will consist of a
review of the new entrant’s safety
management systems and a sample of
required records to assess compliance
with the FMCSRs, applicable HMRs and
related record-keeping requirements as
specified in Appendix A of this part.
The areas for review include, but are not
limited to, the following:
(a) Driver qualification;
(b) Driver duty status;
(c) Vehicle maintenance;
(d) Accident register; and
(e) Controlled substances and alcohol
use and testing requirements.
§ 385.313
audit?

Who will conduct the safety

§ 385.315 Where will the safety audit be
conducted?

The safety audit will generally be
conducted at the new entrant’s business
premises.
§ 385.317 Will a safety audit result in a
safety fitness determination by the FMCSA?

A safety audit will not result in a
safety fitness determination. Safety
fitness determinations follow
completion of a compliance review.
§ 385.319 What happens after the
completion of the safety audit?

(a) Upon the completion of the safety
audit, the auditor will review the
findings with the new entrant.
(b) If the FMCSA determines that the
safety audit discloses that the new
entrant has adequate basic safety
management controls, the FMCSA will
provide the new entrant written notice
as soon as practicable, but not later than
45 days after the completion of the
safety audit, that it has adequate basic

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§ 385.321 What failures of safety
management practices disclosed by the
safety audit will result in a notice to a new
entrant that its DOT new entrant registration
will be revoked?

The failures of safety management
practices consist of a lack of basic safety
management controls as described in
Appendix A of this part and will result
in a notice to a new entrant that its DOT
new entrant registration will be revoked.
§ 385.323 May the FMCSA extend the
period under § 385.319(c) for a new entrant
to take corrective action to remedy its
safety management practices?

An individual certified under the
FMCSA regulations to perform safety
audits will conduct the safety audit.

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safety management controls. The new
entrant’s safety performance will
continue to be closely monitored for the
remainder of the 18-month period of
new entrant registration.
(c) If the FMCSA determines that the
findings of the safety audit disclose that
the new entrant’s basic safety
management controls are inadequate, it
will provide the new entrant written
notice, as soon as practicable, but not
later than 45 days after the completion
of the safety audit, that its USDOT new
entrant registration will be revoked and
its operations placed out-of-service
unless it takes the actions specified in
the notice to remedy its safety
management practices within:
(1) 45 days of the date of the notice
if the new entrant transports passengers
in a CMV designed or used to transport
16 or more passengers, including the
driver, or transports hazardous materials
requiring placarding; or
(2) 60 days of the date of the notice
for all other new entrants.

(a) If a new entrant that transports
passengers in a CMV designed or used
to transport 16 or more passengers,
including the driver, or transports
hazardous materials in quantities
requiring placarding, has submitted
evidence that corrective actions have
been taken pursuant to § 385.319(c) and
the FMCSA cannot make a
determination regarding the adequacy of
the corrective actions within the 45 day
period, the period may be extended for
up to 10 days at the discretion of the
FMCSA.
(b) The FMCSA may extend the 60day period in § 385.319(c)(2), for up to
an additional 60 days provided FMCSA
determines that the new entrant is
making a good faith effort to remedy its
safety management practices.
§ 385.325 What happens after a new
entrant has been notified under § 385.319(c)
to take corrective action to remedy its
safety management practices?

(a) If the new entrant provides
evidence of corrective action acceptable

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to the FMCSA within the time period
provided in § 385.319(c), including any
extension of that period authorized
under § 385.323, the FMCSA will
provide written notification to the new
entrant that its DOT new entrant
registration will not be revoked and it
may continue operations.
(b) If a new entrant, after being
notified that it is required to take
corrective action to improve its safety
management practices, fails to submit a
written response demonstrating
corrective action acceptable to FMCSA
within the time specified in
§ 385.319(c), including any extension of
that period authorized under § 385.323,
the FMCSA will revoke its new entrant
registration and issue an out-of-service
order effective on:
(1) Day 46 from the date of
notification if the new entrant transports
passengers in a CMV designed to
transport 16 or more passengers,
including the driver, or transports
hazardous materials in quantities
requiring placarding; or
(2) Day 61 from the date of
notification for all other new entrants;
or
(3) If an extension has been granted
under § 385.323, the day following the
expiration of the extension date.
(c) The new entrant may not operate
in interstate commerce on or after the
effective date of the out-of-service order.
§ 385.327 What happens when a new
entrant receives a notice under § 385.319(c)
that its new entrant registration will be
revoked and it believes the FMCSA made an
error in its determination?

(a) If a new entrant receives a
revocation notice, it may request the
FMCSA to conduct an administrative
review if it believes the FMCSA has
committed an error in determining that
its basic safety management controls
were inadequate.
(1) The request must be made to the
Field Administrator of the appropriate
FMCSA Service Center.
(2) The request must explain the error
the new entrant believes the FMCSA
committed in its determination.
(3) The request must include a list of
all factual and procedural issues in
dispute, and any information or
documents that support the new
entrant’s argument.
(b) The new entrant should submit its
request no later than 15 days from the
date of the notice of the inadequacy of
its basic safety management controls.
Submitting the request within 15 days
will allow the FMCSA to issue a written
decision before the prohibitions
outlined in § 385.319(c) take effect.
Failure to petition within this 15-day

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period may prevent the FMCSA from
issuing a final decision before the
prohibitions take effect.
(c) The FMCSA may request that the
new entrant submit additional data and
attend a conference to discuss the
issue(s) in dispute. If the new entrant
does not attend the conference, or does
not submit the requested data, the
FMCSA may dismiss the new entrant’s
request for review.
(d) The FMCSA will complete its
review and notify the new entrant in
writing of its decision within 30 days
after receiving a request for review from
a hazardous materials or passenger new
entrant and within 45 days from any
other new entrant.
(e) A new entrant must make a request
for an administrative review within:
(1) 90 days of the date when it was
initially notified under § 385.319(c) that
its basic safety management controls
were inadequate; or
(2) 90 days after it was notified that
its corrective action under § 385.319(c)
was insufficient and its basic safety
management controls remain
inadequate.
(f) The Field Administrator’s decision
constitutes the final agency action.
(g) Notwithstanding this subpart, a
new entrant is subject to the suspension
and revocation provisions of 49 U.S.C.
13905 for violations of DOT regulations
governing motor carrier operations.
§ 385.329 May a new entrant that has had
its U.S. DOT registration revoked and its
operations placed out of service (OOS)
reapply?

(a) A new entrant whose U.S. DOT
registration has been revoked and whose
operations have been placed OOS by the
FMCSA may reapply under § 385.301 no
sooner than 30 days after the date of
revocation.
(b) The motor carrier will be required
to initiate the process from the
beginning, and will be required to
demonstrate that it has corrected the
deficiencies that resulted in revocation
of its registration and otherwise will
ensure that it will have adequate basic
safety management controls.
§ 385.331 What happens if a new entrant
operates a CMV after having been issued an
order placing its interstate operations out of
service (OOS)?

If a new entrant operates a CMV in
violation of an out-of-service (OOS)
order and § 385.325(b), it is subject to
the penalty provisions in 49 U.S.C.
521(b)(2)(A), not to exceed $10,000 for
each offense.

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§ 385.333 What happens at the end of the
18-month safety monitoring period?

(a) If a safety audit has been
performed within the 18-month period,
and the new entrant is not currently
subject to an order placing its operations
out-of-service under § 385.325(b) or
under a notice ordering it to take
specified actions to remedy its safety
management controls under
§ 385.319(c), the FMCSA will remove
the new entrant designation and notify
the new entrant in writing that its
registration has become permanent.
Thereafter, the FMCSA will evaluate the
motor carrier on the same basis as any
other carrier.
(b) If a new entrant is determined to
be ‘‘unfit’’ after a compliance review its
new entrant registration will be revoked.
(See § 385.13)
(c) A new entrant that has reached the
conclusion of the 18-month period but
is under an order to correct its safety
management practices under
§ 385.319(c) will have its new entrant
registration removed following
FMCSA’s determination that the
specified actions have been taken to
remedy its safety management practices.
The motor carrier will be notified in
writing that its new entrant designation
is removed and that its registration has
become permanent. Thereafter, the
FMCSA will evaluate the motor carrier
on the same basis as any other carrier.
(d) If a safety audit or compliance
review has not been performed by the
end of the 18-month monitoring period
through no fault of the motor carrier, the
carrier will be permitted to continue
operating as a new entrant until a safety
audit or compliance review is
performed and a final determination is
made regarding the adequacy of its
safety management controls. Based on
the results of the safety audit or
compliance review, the FMCSA will
either:
(1) Remove the new entrant
designation and notify the new entrant
in writing that its registration has
become permanent; or
(2) Revoke the new entrant
registration in accordance with
§ 385.319(c).
§ 385.335 If the FMCSA conducts a
compliance review on a new entrant, will
the new entrant also be subject to a safety
audit?

If the FMCSA conducts a compliance
review on a new entrant that has not
previously been subject to a safety audit
and issues a safety fitness
determination, the new entrant will not
have to undergo a safety audit under
this subpart. However, the new entrant
will continue to be subject to the 18-

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31985

month safety-monitoring period prior to
removal of the new entrant designation.
§ 385.337 What happens if a new entrant
refuses to permit a safety audit to be
performed on its operations?

(a) If a new entrant refuses to permit
a safety audit to be performed on its
operations, the FMCSA will provide the
carrier with written notice that its
registration will be revoked and its
operations placed out of service unless
the new entrant agrees in writing,
within 10 days from the service date of
the notice, to permit the safety audit to
be performed. The initial refusal to
permit a safety audit to be performed
may subject the new entrant to the
penalty provisions in 49 U.S.C.
521(b)(2)(A).
(b) If the new entrant does not agree
to undergo a safety audit as specified in
paragraph (a) of this section, its
registration will be revoked and its
interstate operations placed out of
service effective on the 11th day from
the service date of the notice issued
under paragraph (a) of this section.
5. Amend appendix A to part 385 as
follows:
a. In section I. General, revise
paragraph (b);
b. In section II. Source of the Data for
the Safety Audit Evaluation Criteria,
revise the introductory text of paragraph
(b);
c. In section IV. Overall
Determination of the Carrier’s Basic
Safety Management Controls, designate
the first paragraph as paragraph (a) and
revise it, designate the second paragraph
as paragraph (b), and designate the last
paragraph as paragraph (c) and revise it.
The revisions read as follows:
Appendix A to Part 385—Explanation
of Safety Audit Evaluation Criteria
I. General

*

*

*

*

*

(b) To meet the safety standard, a motor
carrier must demonstrate to the FMCSA that
it has basic safety management controls in
place which function adequately to ensure
minimum acceptable compliance with the
applicable safety requirements. A ‘‘safety
audit evaluation criteria’’ was developed by
the FMCSA, which uses data from the safety
audit and roadside inspections to determine
that each owner and each operator applicant
for new entrant registration, provisional
operating authority, or provisional Certificate
of Registration has basic safety management
controls in place. The term ‘‘safety audit’’ is
the equivalent to the ‘‘safety review’’
required by Sec. 210. Using ‘‘safety audit’’
avoids any possible confusion with the safety
reviews previously conducted by the agency
that were discontinued on September 30,
1994.

*

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*

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II. Source of the Data for the Safety Audit
Evaluation Criteria

*

*

*

*

*

(b) The safety audit is a review of a
Mexico-domiciled or new entrant motor
carrier’s operation and is used to:

*

*

*

*

*

IV. Overall Determination of the Carrier’s
Basic Safety Management Controls
(a) If the carrier is evaluated as having
inadequate basic safety management controls
in at least three separate factors, the carrier

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will be considered to have inadequate safety
management controls in place and corrective
action will be necessary in order to avoid
having its new entrant registration,
provisional operating authority, or
provisional Certificate of Registration
revoked.

require corrective action in order to avoid
having the carrier’s new entrant registration
revoked, or having the provisional operating
authority or provisional Certificate of
Registration suspended and possibly
revoked.

*

Issued on: May 6, 2002.
Joseph M. Clapp,
Administrator.
[FR Doc. 02–11730 Filed 5–10–02; 8:45 am]

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(c) In this example, the carrier scored three
or more points for Factors 2, 4 and 5 and
FMCSA determined the carrier had
inadequate basic safety management controls
in at least three separate factors. FMCSA will

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BILLING CODE 4910–EX–P

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