FMCSA Policy on the Timeliness of New Entrant Corrective Action Submissions

Anne S. Ferro
Federal Motor Carrier Safety Administration
August 16, 2012

[Federal Register Volume 77, Number 159 (Thursday, August 16, 2012)]
[Rules and Regulations]
[Pages 49384-49385]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-20233]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 385


FMCSA Policy on the Timeliness of New Entrant Corrective Action 
Submissions

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

ACTION: Notice of policy.

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SUMMARY: FMCSA provides notice of the Agency's policy that it must 
receive a new entrant motor carrier's evidence of corrective action 
within 15 days of the date of a new entrant safety audit failure notice 
or within 10 days of the date of an expedited action notice. A new 
entrant motor carrier that does not submit evidence of corrective 
action within these time periods could have its registration revoked 
and be placed out of service.

DATES: This decision became effective on July 20, 2012 for expedited 
action notices and will become effective on August 20, 2012 for safety 
audit failure notices.

FOR FURTHER INFORMATION CONTACT: Thomas Kelly, Office of Enforcement 
and Program Delivery, Federal Motor Carrier Safety Administration, 1200 
New Jersey Avenue SE., Washington, DC 20590, (202) 366-1812; email 
Thomas.Kelly@dot.gov.

SUPPLEMENTARY INFORMATION:

Background

    FMCSA's New Entrant Safety Assurance Program, 49 CFR Part 385, 
subpart D, applies to new entrant motor carriers domiciled in the 
United States and Canada. FMCSA published an interim final rule on May 
13, 2002 (67 FR 31978), establishing the safety audit process for new 
entrant motor carriers. In order to improve the effectiveness of the 
program, FMCSA published a Final Rule on December 16, 2008 (73 FR 
76472), amending the regulations to raise the standard of compliance 
for passing the new entrant safety audit. Appendix A to 49 CFR part 385 
explains the safety audit evaluation criteria. In addition, there are 
sixteen regulations that FMCSA has identified as essential elements of 
basic safety management controls necessary to operating in interstate 
commerce. A violation of any one of these sixteen regulations will 
result in automatic failure of the new entrant safety audit (49 CFR 
385.321(b)). A new entrant must successfully comply with the Appendix A 
criteria and have no violations of the sixteen automatic failure 
regulation in order to pass the safety audit (49 CFR 385.321(a)).
    A new entrant motor carrier that fails the safety audit must 
provide evidence demonstrating corrective action for all violations 
contributing to the carrier's failure. Except for certain passenger 
carriers and hazardous materials carriers which must take corrective 
action within 45 days, new entrants must take corrective action within 
60 days (49 CFR 385.319(c)). If the new entrant fails to submit timely 
evidence of corrective action that is acceptable to FMCSA, its new 
entrant registration will be revoked and its interstate motor carrier

[[Page 49385]]

operations ordered out of service (49 CFR 385.325(b)).
    In addition, a new entrant that commits certain violations listed 
at 49 CFR 385.308(a) may be subject to an expedited action which may 
include being subjected to an expedited safety audit or compliance 
review, or being required to submit evidence demonstrating corrective 
action (49 CFR 385.308). If the new entrant has already had a safety 
audit or compliance review, FMCSA will send it a letter advising that 
it must submit evidence of corrective action within 30 days (49 CFR 
385.308(b)(2)). If the new entrant does not respond demonstrating 
corrective action on the expedited actions within 30 days, its 
registration will be revoked (49 CFR 385.308(d)).

Policy

    FMCSA must receive a new entrant motor carrier's corrective action 
plan within 15 days of the date of a new entrant safety audit failure 
notice or within 10 days of the date of an expedited action notice, in 
order to ensure adequate time for review. Otherwise, the motor carrier 
risks having its registration revoked and being placed out of service. 
FMCSA has observed that a number of new entrant carriers have waited 
until the end of the corrective action periods established in 49 CFR 
385.308(b) and 385.319(c) to submit evidence of corrective action, 
leaving Agency officials little to no time for review. However, Sec.  
385.308 requires the carrier to submit evidence demonstrating 
corrective action within 30 days. Similarly, Sec.  385.325(a) requires 
the new entrant to submit evidence that is acceptable to FMCSA within 
the specified corrective action period. If Agency officials do not have 
sufficient time for review, the Agency cannot make a determination 
within the appropriate time period as to whether evidence of corrective 
action has been properly demonstrated, as required by Sec.  385.308, or 
is acceptable, as required by Sec.  385.325(a).
    If FMCSA receives evidence of corrective action within 15 days of 
the date of the new entrant safety audit failure notice or within 10 
days of the date of the expedited action notice, Agency officials will 
either review and make a decision on whether it is acceptable before 
the end of the corrective action period or, in the case of new entrant 
safety audit failures, grant an extension of time to complete the 
review if the Agency determines that the motor carrier is making a good 
faith effort to remedy deficiencies. The Agency will not grant an 
extension in the case of an expedited action notice or for motor 
carriers that transport passengers or hazardous materials, as defined 
in 49 CFR 390.5.
    If FMCSA receives evidence of corrective action more than 15 days 
after the date of the new entrant safety audit failure notice or more 
than 10 days after the date of the expedited action notice, the Agency 
will not guarantee that the evidence will be considered prior to the 
expiration of the corrective action period. If the corrective action 
period expires before the Agency makes a determination, the carrier's 
registration will be revoked. If the Agency subsequently determines 
that the corrective action plan is acceptable, the carrier's 
registration will be immediately reinstated. However, if the Agency 
subsequently determines that the corrective action plan is not 
acceptable, the carrier will be required to wait the requisite 30 days 
before reapplying for new entrant registration in accordance with 49 
CFR 385.329.

    Issued on: August 8, 2012.
Anne S. Ferro,
Administrator.
[FR Doc. 2012-20233 Filed 8-15-12; 8:45 am]
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