[Federal Register: March 19, 2002 (Volume 67, Number 53)]
[Rules and Regulations]
[Page 12757-12774]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19mr02-23]

[[Page 12757]]

-----------------------------------------------------------------------

Part IV

Department of Transportation

-----------------------------------------------------------------------

Federal Motor Carrier Safety Administration

-----------------------------------------------------------------------

49 CFR Part 385

Safety Monitoring System and Compliance Initiative for Mexico-Domiciled
Motor Carriers Operating in the United States; Final Rule

[[Page 12758]]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 385

[Docket No. FMCSA-98-3299]
RIN 2126-AA35

Safety Monitoring System and Compliance Initiative for Mexico-
Domiciled Motor Carriers Operating in the United States

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

ACTION: Interim final rule (IFR); request for comments.

-----------------------------------------------------------------------

SUMMARY: The FMCSA implements a safety monitoring system and compliance
initiative designed to evaluate the continuing safety fitness of all
Mexico-domiciled motor carriers within 18 months after receiving a
provisional Certificate of Registration or provisional authority to
operate in the United States. This rule includes requirements that were
not proposed in the NPRM, but which are necessary to comply with the
Fiscal Year 2002 DOT Appropriations Act enacted into law in December
2001. The rule also establishes suspension and revocation procedures
for provisional Certificates of Registration and operating authority
and incorporates criteria to be used by FMCSA in evaluating whether
Mexico-domiciled carriers exercise basic safety management controls.
Therefore, the FMCSA is publishing this action as an interim final rule
and is delaying the effective date in order to consider additional
public comments regarding the safety monitoring system for Mexico-
domiciled carriers. The revisions in this action are part of FMCSA's
efforts to ensure the safe operation of Mexico-domiciled motor carriers
in the United States.

DATES: This interim final rule is effective May 3, 2002. We must
receive comments by April 18, 2002.

ADDRESSES: You can mail, fax, hand deliver or electronically submit
written comments to the Docket Management Facility, United States
Department of Transportation, Dockets Management Facility, Room PL-401,
400 Seventh Street, SW., Washington, DC 20590-0001 FAX (202) 493-2251,
on-line at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dmses.dot.gov/submit. You must include the docket
number that appears in the heading of this document in your comment.
You can examine and copy all comments at the above address from 9 a.m.
to 5 p.m., e.t., Monday through Friday, except Federal holidays. You
can also view all comments or download an electronic copy of this
document from the DOT Docket Management System (DMS) at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dms.dot.gov/search.htm and typing the last four digits of the docket
number appearing at the heading of this document. The DMS is available
24 hours each day, 365 days each year. You can get electronic
submission and retrieval help and guidelines under the ``help'' section
of the web site. If you want us to notify you that we received your
comments, please include a self-addressed, stamped envelope or postcard
or print the acknowledgement page that appears after submitting
comments on-line.
Comments received after the comment closing date will be included
in the docket and we will consider late comments to the extent
practicable.

FOR FURTHER INFORMATION CONTACT: Mr. Michael Lamm, (202) 366-9699,
FMCSA, 400 Seventh Street, SW., Washington, DC 20590. Office hours are
from 7:45 a.m. to 4:15 p.m., p.t., Monday through Friday, except
Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

FMCSA published the notice of proposed rulemaking (NPRM) for this
action on May 3, 2001 (66 FR 22415) along with two related NPRMs
proposing changes to the forms and procedures for Mexico-domiciled
motor carriers to apply to operate in the United States. FMCSA is
publishing one interim final rule and one final rule for those two
NPRMs concurrently with this action. The preambles to those rules set
out the background and history of the NAFTA issues and are not repeated
here.
On December 18, 2001, the President signed into law the Fiscal Year
2002 DOT Appropriations Act, Public Law 107-87 (the Act). Section 350
of the Act prohibits the expenditure of appropriated funds for
reviewing or processing applications by Mexico-domiciled carriers to
operate beyond the commercial zones of municipalities in the United
States located on the Mexican border (Mexico-domiciled long-haul
carriers) until FMCSA and DOT take several specified actions. These
actions include conducting pre-authorization safety examinations on
Mexico-domiciled long-haul carriers, and complying with certain
inspection, staffing, rulemaking and reporting requirements. As
pertinent to this rulemaking proceeding, Section 350(a)(2) of the Act
requires that FMCSA conduct a full safety compliance review on Mexico-
domiciled long-haul carriers within 18 months after the carrier is
granted provisional operating authority. Section 350(a)(5) requires
mandatory inspection of Mexico-domiciled long-haul commercial vehicles
that do not display a valid Commercial Vehicle Safety Alliance (CVSA)
decal, unless the carrier has been granted permanent operating
authority for three consecutive years. Accordingly, we are revising the
proposed rule to implement the compliance review requirement. We are
also imposing a requirement that all long-haul Mexico-domiciled
carriers entering the United States display a valid CVSA sticker on
their vehicles while operating under provisional status.

Summary of Parties Submitting Comments

The agency received over 200 comments. Many comments were submitted
to one or all three dockets for the May 3 NPRMs. The following
discussion addresses substantive comments relevant to the safety
monitoring and oversight system.
The commenters may be categorized as follows:
(1) Ten United States Senators: Senators Max Baucus, Evan Bayh,
Jeff Bingaman, Thomas A. Daschle, Richard J. Durbin, Tom Harkin, Edward
M. Kennedy, John F. Kerry, John Kyl, and Ron Wyden, submitted one
unified set of comments to the President, who forwarded their comments
to the docket.
(2) More than 180 private citizens. One hundred sixteen of these
citizens submitted an ``Urgent Action Alert'' form letter compiled and
distributed by Citizens for Reliable and Safe Highways (CRASH) or
alluded to recommendations in the form letter. The CRASH suggestions
are discussed later in this document. Comments were also received from
20 Tucson/Green Valley, Arizona citizens.
(3) Four Mexican associations: the Asociacion Nacional De
Transporte Privado (a national private motor carrier association),
Camara Nacional Del Autotransporte De Carga A.C. (CANACAR) (a national
trucking association), Asociacion De Agentes Aduanales De Nuevo Laredo
(a customs broker association), and Central de Servicos de Carga de
Nuevo Laredo (CenSeCar) (a local trucking association of Nuevo Laredo).
(4) Four labor organizations: the American Federation of Labor and
Congress of Industrial Organizations (AFL-CIO), the Amalgamated Transit
Union (ATU), the International Brotherhood of Teamsters (Teamsters),

[[Page 12759]]

and the AFL-CIO's Transportation Trades Department representing 33
unions (TTD). The TTD submitted separate comments from the AFL-CIO, its
parent organization.
(5) Four motor carrier associations: the American Bus Association
(ABA), American Trucking Associations, Inc., (ATA), the California
Trucking Associations (CTA), and the Owner-Operator Independent Drivers
Association (OOIDA).
(6) Three Texas transportation associations: the San Antonio Free
Trade Alliance, Association of Laredo Freight Forwarding Agents, and
Laredo Transportation Association.
(7) Four safety advocacy groups: CRASH, Public Citizen, the
American Automobile Association (AAA), and Advocates for Highway and
Auto Safety (AHAS).
(8) Four environmental groups that submitted one unified response:
Friends of the Earth, the Sierra Club, the Natural Resources Defense
Council and the Center for International Environmental Law.
(9) Three law enforcement agencies: the California Attorney
General, the California Highway Patrol, and the Arizona Department of
Public Safety.
(10) Two associations representing State enforcement and licensing
agencies: the Commercial Vehicle Safety Alliance (CVSA) and the
American Association of Motor Vehicle Administrators (AAMVA).
(11) Three motor carriers: United Parcel Service (UPS), Greyhound
Lines and Transportes Quintanilla S.A. de C.V.
(12) The Transportation Lawyers of America, Air Courier Conference
of America, Transportation Consumer Protection Council, the Laredo
Chamber of Commerce, the National Association of Independent Insurers
(NAII), and the American Insurance Association (AIA) each submitted one
comment.

Discussion of Comments to the NPRM

The municipalities adjacent to Mexico in Texas, New Mexico,
Arizona, and California and the commercial zones of such municipalities
will be referred to as ``border zones'' for the purposes of this
document.

United States Senators

Senators Baucus, Bayh, Bingaman, Daschle, Durbin, Harkin, Kennedy,
Kerry, Kyl and Wyden believe that the Mexican government does not have
a domestic truck safety system equivalent to that provided under U.S.
law. They state that Mexico does not have hours-of-service laws and has
only recently proposed the use of logbooks to record driving history.
Therefore, they believe that cross-border truckers could easily enter
U.S. highways fatigued. They note the DOT Inspector General has stated
repeatedly that ``fatigue is a major factor in commercial vehicle
crashes.''
The Senators believe that a ``lack of sufficient inspection
resources at the border and the proposed 18-month delay between the
approval of general cross-border trucking applications and actual
safety enforcement means that trucks may easily enter the United States
over federal weight and size limits, a condition both inherently more
dangerous to travelers and more stressful to our roadways.''
The Senators urged the President to not grant operating
certificates until the administration completes onsite compliance
reviews and ensures the safety of the American traveler.

CRASH ``Urgent Action Alert'' Form Letter and Excerpts

One hundred sixteen individuals submitted comments repeating one or
more of three standard phrases suggested by CRASH's ``Urgent Action
Alert''. These phrases are as follows:

(1) Allowing Mexican carriers to operate for up to 18 months
before a safety audit is done by U.S. officials is totally
unacceptable. Safety audits must be done before Mexican carriers are
allowed to enter the U.S.
(2) Application forms and processes are important and necessary
but as a member of CRASH and a concerned highway safety advocate,
the U.S./Mexico border should remain closed to increased NAFTA
cross-border trucking until meaningful safety standards and
significantly increased compliance oversight are in place on both
sides of the border.
(3) Not one human life should be sacrificed on the alter [sic]
of NAFTA cross-border trucking.

Individuals

Al Feuer wrote that the border should be opened to truck traffic.
He also believes safety inspections/audits should not be required
before allowing Mexican trucks into the United States. Mr. Feuer
reasoned that advance auditing would be unfair and statistically
impractical because many Mexican drivers would be unable to read road
signs and markings printed in English. He believes ``it would be unfair
to make Mexican truck drivers meet the same safety standards as
American truck drivers--who can read English.'' Mr. Feuer believes
advance auditing would not be cost effective, but it would be more cost
effective to allow Mexico-domiciled motor carriers onto our highways
for 18-months and then audit the results. Mr. Feuer writes ``FMCSA
could easily glean accident investigation data by tapping into
computers at various local and State law enforcement agencies. Then it
would simply be a matter of adding the number of Americans killed and
injured by unsafe Mexican truck drivers. Those who caused more deaths
and injuries than United States truck drivers could be banned from
United States highways; those who caused fewer deaths and injuries than
United States truck drivers could continue driving in the United
States. There's your audit.''
Mark Pizenche, a Land Line magazine reader, believes the
requirements are good, if they can be enforced. He suggests having a
sign in clear sight identifying Mexican trucks, such as a flag on a
plate.

Green Valley, Arizona Residents

Elmer Silaghi, a Green Valley resident, is concerned about the
safety of highway conditions along Interstate 19 near Green Valley, a
retirement community located between Nogales and Tucson, Arizona. He
believes that implementation of the NAFTA access provisions will
exacerbate the community's existing commercial vehicle traffic
congestion. The docket also received 19 comments from Tucson and Green
Valley residents referring to Mr. Silaghi's letter or stating identical
concerns.

Mexican Associations

Camara Nacional Del Autotransporte De Carga A.C. (CANACAR) (a
Mexican Trucking Association representing the Mexican trucking
industry) opposes the proposal. It believes the proposed entrance
requirements are too difficult. It states that ``consciously or
unconsciously, all three of FMCSA's proposals unfortunately are
permeated with anti-Mexican sentiments * * * disguised in the form of
concern for highway safety * * * based on false assumptions.'' CANACAR
believes Mexican trucks are safer than those operated by the U.S.
trucking industry. To support this position, CANACAR stated that the
out-of-service rate for U.S. and Mexican drayage companies are not very
different.
Asociacion De Agentes Aduanales De Nuevo Laredo and Central de
Servicos de Carga de Nuevo Laredo (CenSeCar) had similar comments. Each
believes imposing inspections on short-haul carriers at the border
would impact the efficient flow of traffic as well as be an unfair
practice compared with the northern border. The two borders are
different, they assert, and a single cookie cutter approach should not
be applied. They are also concerned that all government agencies on the
border

[[Page 12760]]

are grossly understaffed. They believe that imposing unfunded mandates
and new procedures without regard to staffing is categorically wrong
and shortsighted.

Labor Organizations

The AFL-CIO, ATU, TTD, and the Teamsters argued that opening the
border is premature because of deficiencies in Mexico's internal safety
standards for motor vehicles, and that a stronger implementation plan
approved by the DOT Office of Inspector General is needed. The ATU
fully supports and agrees with comments submitted by the AFL-CIO. It
also concurs in Greyhound's comments, with one minor exception: ATU
opposes the proposal to allow up to 18 months before a safety audit is
conducted on a Mexico-domiciled carrier. The common viewpoints of ATU
and Greyhound are outlined as follows:
(1) Mexican buses should not be authorized to operate in the United
States absent reciprocal treatment of U.S. buses by Mexico.
(2) Mexican buses must be certified as safe before the first day
they are authorized to operate in the United States.
(3) FMCSA must develop and implement an effective enforcement plan
before opening the border.
(4) U.S. subsidiaries of Mexican companies must be subject to the
same standards and reviews as their Mexican parent companies.
(5) Application and oversight rules must be applied to small
passenger carrying vehicle operations (9 to 15 passengers), as well as
cross-border bus operations.
(6) Application forms must require detailed explanations of
compliance measures to ensure a full understanding of the applicable
laws.

Motor Carrier Associations

American Bus Association (ABA)
The American Bus Association believes there is too little
inspection of buses at the border and that FMCSA should do more border
inspections. It believes FMCSA should enforce compliance with the
Federal Motor Vehicle Safety Standards (FMVSS) maintained and enforced
by the National Highway Traffic Safety Administration.
The ABA believes a final rule imposing the Federal Motor Carrier
Safety Regulations (FMCSR) on 9-to 15-passenger vans is necessary,
alleging that the poor safety record of these small passenger carrying
vehicle operations must be a part of FMCSA's enforcement plan.
ABA argues that the proposed safety monitoring system is inadequate
to protect passengers because the rule would only apply to operators
providing cross border services. It believes FMCSA should provide the
same scrutiny to Mexican-owned, U.S.-domiciled carriers as it does to
Mexican-owned, Mexico-domiciled carriers. ABA contends that these
Mexican-owned companies providing domestic service in the United States
will probably have a greater impact in the United States than any other
type of service. ABA believes that it is critical for these operations
to be included in the safety evaluation process. Although such
operations are subject to the FMCSRs, they are not subject to the
safety monitoring system described in this action or the two NAFTA-
related rulemakings published elsewhere in today's Federal Register.
ABA believes that the NAFTA Arbitral Panel provided FMCSA with the
discretion to apply a heightened level of scrutiny and enforcement
measures toward Mexican companies operating within the United States--
regardless of whether they are based in Mexico or in the United States.
According to ABA, ``the rules and oversight for Mexican-owned companies
providing domestic U.S. service should be at least as stringent as the
rules for Mexican companies providing international service.''
Accordingly, ABA believes that FMCSA must expedite a rulemaking that
would put into place a procedure that ensures the safety of new
entrants to the U.S. market, regardless of whether they are based in
the United States or Mexico, and whether or not they are Mexico-or
U.S.-owned.
ABA believes that conducting an onsite review of a motorcoach
company before the issuance of operating authority would be beneficial,
notwithstanding the lack of complete U.S. compliance data. ABA suggests
there are several items that could be checked during an initial review,
including the Mexican driver's compliance with licensing and medical
certification procedures. Vehicles could also be checked to ensure that
they comply with the FMVSS. ABA believes that, given the lack of safety
data and history for Mexican carriers, FMCSA should consider
establishing procedures that include an expeditious and comprehensive
onsite review of each applicant's safety program. ABA argues that an
expedited safety review procedure conducted by Federal or State
enforcement personnel would do far more to ensure safety than a simple
review of submitted information and the monitoring of data generated by
roadside inspections that may or may not occur. ABA suggests that the
educational ``Safety Review'' procedure established during the late
1980s could be used as a template for trucking operations, as it
afforded an opportunity for motor carrier personnel to interact
directly with enforcement personnel to explain regulatory requirements,
and answer questions. However, ABA does not believe that this procedure
will adequately ensure the safety of passengers.
ABA contends that our rulemaking will do nothing to ensure that the
cross-border provisions of NAFTA are implemented in a reciprocal
manner. It argues the proposed rule outlined how Mexican operators and
drivers will be treated while in the United States, but gave no
assurance that the Mexican government would implement identical
policies. For example, ABA argues the Mexican government has taken the
position that it will grant cross-border service authority for U.S.
carriers to serve only one point in Mexico, and that it will not allow
U.S. carriers to own or operate bus terminals in Mexico. ABA also
states that the Mexican government has indicated that it will not
authorize U.S. carriers to provide incidental package service as part
of their cross-border trips. ABA believes that finalizing the cross-
border access proposal without assurances of reciprocal treatment of
U.S. companies by Mexico would result in unequal treatment in clear
violation of both the letter and spirit of NAFTA.
American Trucking Associations, Inc. (ATA)
The ATA recommended that FMCSA provide specific guidelines for
establishing safety monitoring systems, including defining a ``poorly
performing driver''. The ATA recommends that FMCSA investigate the
possibility that Mexico may consider the proposed safety review program
an ``extraterritorial application of United States law.'' In light of
that possibility, the ATA recommends that FMCSA work jointly with the
Secretaria de Comunicacianos y Transportes (SCT) to establish a joint
safety review program for Mexico-domiciled motor carriers.
Owner Operator Independent Drivers Association (OOIDA)
OOIDA believes there is a lack of Mexican infrastructure,
resources, and the will to promulgate and enforce compatible safety
regulations in Mexico. It contends there is no true equivalent to the
49 CFR Part 383 commercial drivers licensing regulations in Mexico.

[[Page 12761]]

OOIDA cites the DOT OIG report that there is a link between Mexican
truck condition and the level of inspection resources. OOIDA believes
FMCSA must have a minimum of 80 new safety inspectors to do border
crossing inspections and 40 safety investigators to conduct compliance
reviews before granting authority. OOIDA believes the FMCSA goal of
more inspectors is correct, but the plans do not include enough
personnel.
OOIDA believes FMCSA's proposal to review Mexico-domiciled carriers
within 18 months after granting them authority is unrealistic and
dangerous. It recommends that FMCSA conduct onsite reviews in Mexico
and verify whether a Mexico-domiciled motor carrier has been placed
out-of-service in Mexico, has had hazardous material incidents in
Mexico, has a drug and alcohol testing program, and maintains valid
proof of financial responsibility.
California Trucking Association (CTA)
CTA supports the rules as ``well-thought [out] applications and
safety entry standards for Mexico-domiciled motor carriers,'' but sees
a need for more resources to accomplish FMCSA goals. CTA believes the
safety monitoring period should be shorter than 18 months and the
program should include State and local law enforcement agencies in the
review teams. It recommends involving FMCSA field offices in safety
reviews because it believes the field offices know their local
carriers. It also recommends promulgating review standards before the
initial review period. CTA predicates its support of the three NAFTA
rulemakings upon four conditions, including establishing ``a level
playing field for all motor carriers through the application of the
same laws and regulations.''

Safety Advocacy Groups

The safety advocacy groups believe FMCSA should conduct a safety
audit before it allows a Mexico-domiciled motor carrier to operate in
the United States and that FMCSA must have more U.S. inspection sites
and more safety inspectors.

American Automobile Association (AAA)

The AAA's comments are generally representative of the safety
groups. The AAA believes FMCSA must:
(1) Conduct safety audits before Mexico-domiciled trucks cross the
border.
(2) Follow California's incentive to Mexico-domiciled motor
carriers to display a valid CVSA decal on their trucks entering the
United States. If one is not apparent, FMCSA should, like California,
conduct the most rigorous CVSA, or equivalent, inspection at the
border.
(3) Work closely with AAMVA to see that proper licensing procedures
are in place and enforceable.
(4) Weigh trucks at the border.
(5) Demand proof of financial responsibility for every vehicle in
every fleet at the border. Drivers should have to carry an insurance
document unique to their particular vehicle.
(6) Ensure that every one of the 27 U.S.-Mexico border crossing
points has resources to monitor compliance with the FMCSRs.

Public Citizen

Public Citizen contends the proposed rule fails to acknowledge the
inadequacy of the existing enforcement structure and will not protect
the public from unsafe trucks crossing into the United States. It
believes unsafe trucks will inevitably escape detection and travel
freely throughout the United States, endangering motorists and risking
a trade-related debacle.
Public Citizen contends the penalties for Mexico-domiciled carriers
under the safety monitoring program would be weaker than those
currently applicable to U.S.-domiciled carriers. It argues that the
serious infractions listed in proposed Sec. 385.23 would only result in
a carrier receiving a safety review--a review to which it would have to
submit anyway--or a deficiency letter instructing the carrier to notify
FMCSA that the problem has been corrected.
Public Citizen argues that the consequences of such violations for
U.S. carriers are considerably more severe, including civil and
criminal fines or even jail time. It believes allowing Mexican carriers
to receive weak penalties for serious violations fails to communicate
the seriousness of these violations to carriers and will not prepare
them to comply with these regulations at the end of the safety
oversight program.
Public Citizen also believes FMCSA omitted some serious violations
from the list of violations that would trigger an expedited safety
review or deficiency letter. Under the proposal, an accident resulting
in a hazardous materials incident prompts the expedited safety review
or deficiency letter process, but an accident resulting in death, or a
violation of the hours-of-service limit, does not. Public Citizen
believes potential hours-of-service violations are of particular
concern because Mexican carriers require their workers to drive for
much longer periods than the U.S. hours-of-service limit, and Mexican
laws do not include hours-of-service rules. It believes we should add
hours-of-service infractions to the list in proposed Sec. 385.23 and
publish a plan for enforcing hours-of-service limits for drivers
crossing the border who are not subject to any time controls while in
Mexico.
Public Citizen notes the NPRM does not specify a time limit for
carriers to respond to deficiency letters before their provisional
registration is suspended. Public Citizen believes it is also unclear
how soon an expedited safety review would take place after a serious
violation is discovered and how long a carrier can be suspended without
taking corrective action before its registration is revoked. It
contends that without time limits, an unsafe carrier could operate
indefinitely before any limitations are placed on it. It believes we
must revise the NPRM to provide definite time restrictions to ensure
that non-compliant carriers do not slip through the cracks.
Public Citizen also believes that FMCSA suspension or revocation of
provisional registration will not change a carrier's ability to send
trucks across the border. It cites a November 1999 DOT Inspector
General report finding that carriers were able to retain their
certificates of registration in their vehicles and continue operating
across the border even after these certificates were revoked. It
believes no information would be available to inspectors to verify that
a certificate of registration is valid, or to verify that a driver has
a certificate of registration if he or she is not able to present it
upon request.

Environmental Groups

[[Page 12762]]

(a ``conformity determination''), before taking the action (40 CFR
93.150). The Attorney General asserts that the FMCSA must make a
conformity determination before taking final action to implement
regulations that would allow Mexican trucks to operate beyond the
border. The Attorney General provided technical information to support
his assertion that allowing Mexican trucks to operate beyond the border
would likely not be in conformity with California's SIP.

Commercial Vehicle Safety Alliance (CVSA)

CVSA believes the rules will not sufficiently reassure the public.
It makes eight recommendations for strengthening the monitoring program
as key to its support of this rulemaking. CVSA's recommendations
include:
(1) Perform ``case studies'' on Mexico-domiciled motor carriers.
Case studies would facilitate a collaborative safety culture and
provide objective, uniform and quantitative data upon which to base
policy decisions. They would be similar to the proposed safety review,
except case studies would: (a) Be completed before granting operating
authority; (b) be conducted at the motor carrier's place of business;
(c) include both regulatory evaluation and educational components; (d)
include a representative sample of CVSA Level V inspections; and (e)
adopt a collaborative approach that includes U.S., Canadian and Mexican
officials. CVSA believes these case studies should initially be
conducted on all carriers applying for authority to operate beyond the
border zones, then on a sampling of carriers who wish to operate solely
within the border zones.
(2) Require all motor carriers and drivers to renew their valid
Licencia Federal de Conductor and be entered into the Mexican
commercial drivers' licensing database before being granted operating
authority in the United States.
(3) Work with CVSA and the States to develop the necessary
legislative and policy changes for providing States the ability to
enforce operating authority requirements.
(4) Investigate the equipment manufacturing standards in Mexico and
report how they differ from those required in the United States,
specifically with respect to compliance with the FMVSS. CVSA thinks
this is particularly important to the roadside inspection program and
weight enforcement.
(5) Provide clear policy direction on how to address the language
issue in the field. CVSA wants us to apply a reasonable standard to
determine whether a driver ``can read and speak the English language
sufficiently to converse with the general public, understand highway
traffic signs and signals in the English language, to respond to
official inquiries and to make entries on reports and records.''
(6) Coordinate outreach and training programs that are delivered to
Mexican motor carriers, drivers, and enforcement personnel. CVSA
believes a clear and consistent message is important to the education
and learning process.
(7) Make sure appropriate modifications are made to software and
information systems in a timely manner and adequate time and resources
are provided for training enforcement officials for all changes that
are promulgated in the final rule.
(8) Explore multiple technology options (hardware, software, and
communications), conduct the necessary due diligence and pilot test
potential solutions for facilitating throughput at the borders and
performing safety assessments on motor carriers. CVSA wants us to
consider various types of incentives for safe operators and to
encourage technology adoption.

American Association of Motor Vehicle Administrators (AAMVA)

AAMVA believes that Mexico-domiciled motor vehicles should be
inspected for conformance to Federal motor carrier safety regulations
before they are allowed to operate in the United States. Specifically,
it supports periodic motor vehicle safety inspections similar to the
CVSA inspections.
It also suggests conducting complete safety audits of carriers in
Mexico before approving applications for operating authority. It
believes a safety audit and inspection of vehicles before approval of
operating authority will ensure that any vehicle entering the United
States from Mexico comports with applicable safety standards and does
not pose undue risk to citizens on the nation's roadways.

Transportation Consumer Protection Council

The Transportation Consumer Protection Council, representing 500
shippers and receivers of freight, believes FMCSA should require truck
inspections before carriers are allowed into the United States.

National Association of Independent Insurers (NAII)

The NAII believes DOT was unable to do much to prepare for the
beginning of true cross-border trucking during the previous
administration. It believes that preparations must be our top priority
and that we need more people and resources to handle the workload than
were requested for fiscal year 2002. It believes the most pressing need
to keep American roads safe when the border opens is for us to have a
detailed plan showing who will do what and where.

American Insurance Association (AIA)

The AIA alleges that the proposed rules fail to provide for safety
and are inconsistent with law, citing 49 U.S.C. 113(a) as providing for
safety as the ``highest priority.'' It believes follow-up inspections
should be done earlier than 18 months. The AIA also believes conducting
compliance reviews under Sec. 385.13(a) that apply the criteria for
evaluating safety management controls described in Sec. 385.7 would not
be sufficient. It recommends requiring safety reviews to occur on the
Mexico-domiciled motor carrier's premises.
The AIA states that different procedures are expressly permissible
under NAFTA and believes FMCSA could have proposed more stringent motor
carrier safety procedures on Mexican carriers.

FMCSA Response to Comments

The DOT Appropriations Act

The most common recommendation made in the comments was that
Mexico-domiciled carriers undergo a safety review by FMCSA before being
allowed to operate in the United States. This concern was addressed in
Sec. 350(a)(1) of the DOT Appropriations Act. The FMCSA's companion
rule amending our part 365 application procedures will require that
Mexico-domiciled long-haul carriers receive a safety audit before
receiving provisional operating authority. This pre-authorization
safety audit will include verification of performance data, safety
management programs (including hours-of-service compliance, vehicle
inspection and maintenance and drug and alcohol testing programs) and
financial responsibility. The audit will also entail vehicle
inspections, verification of driver qualifications and an interview
with carrier officials to review safety management controls and
evaluate written safety oversight policies and practices.
FMCSA intends to provide all Mexico-domiciled carriers educational
and technical assistance when they apply for provisional operating
authority or a provisional Certificate of Registration. The education
and technical assistance package will consist of material designed to
assist the Mexico-domiciled applicant in

[[Page 12763]]

complying with the FMCSRs and Hazardous Materials Regulations (HMRs)
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.
These materials will help long-haul carriers prepare for the pre-
authorization safety audit.
We are not extending the pre-authorization audit requirement to
carriers seeking to operate solely within the border zones under
Certificates of Registration. Border zone operations have been
permitted for nearly 20 years without a pre-authorization audit
requirement. The most serious safety concerns, as evidenced by the
provisions of Sec. 350 of the Act and reflected in the comments to the
NPRM, involve Mexico-domiciled carriers who will be operating vehicles
beyond the border zones in long-haul service. We believe that the
informational and certification requirements added to the revised OP-2
form in our companion rule and the post-operational audit required by
this rule will be sufficient to protect public safety in the border
zones.
Section 350(a)(2) of the Act requires FMCSA to conduct a full
compliance review of Mexico-domiciled long-haul carriers within 18
months after issuance of provisional operating authority. This review
will be consistent with our existing safety fitness evaluation
procedures set forth in subpart A of part 385 and will result in the
assignment of a safety rating. As required by section 350(a)(2), the
compliance review must result in a ``Satisfactory'' safety rating
before the carrier is granted permanent operating authority to operate
beyond the border zones. We have incorporated these requirements into
this interim final rule. In accordance with section 350(a)(2), at least
50 percent of these compliance reviews will be conducted onsite,
including any compliance review conducted on a Mexico-domiciled carrier
with four or more commercial vehicles that did not undergo an on-site
safety audit before receiving provisional authority.
This rule also addresses the section 350(a)(5) requirement that any
Mexico-domiciled vehicle operated in the United States beyond the
border zones receive a Level 1 inspection if it does not display a
valid CVSA inspection decal, unless the carrier has held permanent
authority for at least three consecutive years. In order to reduce the
burden on State and Federal inspection officials, at least during the
18-month provisional operating period covered by this rule, we will
require all commercial vehicles operated by Mexico-domiciled long-haul
carriers to display a valid CVSA inspection decal when entering the
United States.

Vehicle Size and Weight Issues

In response to the Senators' concern about oversize and overweight
vehicles, section 350(a)(7)(A) of the DOT Appropriations Act requires
FMCSA to:
(1) Equip all United States-Mexico commercial border crossings with
scales suitable for enforcement action;
(2) Equip five of the ten highest volume commercial vehicle traffic
crossings with weigh-in-motion systems before reviewing or processing
applications by Mexico-domiciled carriers to operate beyond the border
zones;
(3) Equip the remaining five of the ten highest volume crossings
with weigh-in-motion systems within 12 months; and
(4) Require inspectors to verify the weight of each Mexico-
domiciled carrier's commercial vehicle entering the United States at
each weigh-in-motion equipped high volume border crossing.
The FMCSA will comply with these requirements and work with the
Federal Highway Administration and States to assure the effective use
of the weigh-in-motion equipment as part of an effective enforcement
program. Enforcement of size and weight requirements is a State
function, under the oversight of the Federal Highway Administration.

Driver Hours-of-Service

In response to the Senators' comments regarding Mexican hours-of-
service laws (also discussed by Public Citizen), we note that the use
of the record of duty status, commonly known as a logbook, is the tool
the FMCSA uses for enforcing compliance with U.S. hours-of-service
requirements. Upon entering the United States, each driver must either:
(a) Have in his/her possession a record of duty status current on the
day of the examination showing the total hours worked for the prior
seven consecutive days, including time spent outside the United States;
or, (b) demonstrate that he/she is operating as a ``100 air-mile (161
air-kilometer) radius driver'' under Sec. 395.1(e).
In addition, section 350(a)(9) of the DOT Appropriations Act
requires Mexico-domiciled carriers to only enter the United States at
commercial border crossings: (1) Where and when a certified motor
carrier safety inspector is on duty; and (2) where adequate capacity
exists to conduct a sufficient number of meaningful vehicle safety
inspections and to accommodate vehicles placed out-of-service as a
result of these meaningful safety inspections. The examination of
drivers resulting from the section 350(a)(9) vehicle inspection
requirements would allow inspection of each Mexico-domiciled carrier's
drivers upon entry and would allow certified motor carrier safety
inspectors to review the driver's logbooks and discover whether hours-
of-service violations have occurred.

Similarity of Regulatory Treatment

In response to the comments of the Mexican trade associations,
FMCSA believes the regulatory requirements imposed in this rule are
within the standards set out in the NAFTA Arbitral Panel Report, a copy
of which is in the docket. The Panel noted that:
(1) The United States is not required to treat applications from
Mexico-domiciled trucking firms in exactly the same manner as
applications from U.S. or Canadian firms, as long as they are reviewed
on a case by case basis; and
(2) Given the different enforcement mechanisms in place in the
United States and Mexico, it may not be unreasonable for the United
States to address legitimate safety concerns. Similarly, the Panel
found it might be reasonable for the United States to implement
different procedures with respect to service providers from another
NAFTA country if necessary to ensure compliance with its own local
standards by these service providers. Although CANACAR believes Mexican
trucks are safer based on out-of-service rates for U.S. and Mexican
drayage companies, the fact remains that Mexico's motor carrier safety
regulatory system lacks several of the components that are central to
the U.S. system. As the Panel found, the United States is responsible
for the safe operation of motor carriers within U.S. territory,
regardless of the carriers' country of origin, and FMCSA believes we
must ensure each carrier is safe to protect U.S. highway users. This
rule, in conjunction with the other rules pertaining to Mexican motor
carriers published elsewhere in today's Federal Register, will provide
FMCSA with the necessary level of assurance, in a manner consistent
with the Panel's findings, that Mexican motor carriers seeking U.S.
operating authority are capable of complying with the U.S. safety
regulatory regime.

[[Page 12764]]

ABA, AHAS, and other commenters cite language from the NAFTA
Arbitral Panel's Final Report to support their comments favoring more
stringent safety measures with regard to Mexico-domiciled carriers. The
Panel stated, among other things, that to the extent that Mexican
licensing and inspection requirements may differ from U.S.
requirements, the United States might be justified in using methods to
ensure Mexico-domiciled carrier compliance with the U.S. regulatory
regime that differ from those used for U.S. and Canadian carriers,
provided that those methods are used in good faith to address
legitimate safety concerns and fully conform with all relevant NAFTA
provisions. FMCSA believes that the more stringent measures in the
rules published today fulfill its statutory obligation to ensure the
safe operation of motor carriers in the United States in a manner that
is consistent with the Panel's construction of NAFTA.

Reciprocal Treatment

ABA urged us not to publish final rules permitting Mexico-domiciled
carriers to operate beyond the border zones until the government of
Mexico guarantees that U.S. carriers operating in Mexico will receive
the same regulatory treatment afforded to Mexican carriers operating in
that country. These regulations are intended to establish procedures to
ensure that Mexico-domiciled carriers operate safely while traveling in
the United States, not to police compliance with the terms of NAFTA.
The NAFTA contains specific procedures designed to resolve disputes
over whether the parties are fulfilling their obligations under the
agreement.

Mexican-Owned, U.S.-Domiciled Motor Carriers

In response to comments by ABA, ATU, and Greyhound urging us to
subject Mexican-owned, U.S.-domiciled passenger carriers to the same
procedures applicable to Mexican-owned, Mexico-domiciled passenger
carriers, we note that President Bush, in June 2001, issued a
Memorandum that, among other things, allows a Mexican citizen to
establish a U.S.-based passenger carrier to provide point-to-point
transportation within the United States under the same procedures
applicable to U.S.-owned, U.S.-domiciled passenger carriers. Mexican
nationals may establish a passenger carrier operation in the United
States by either purchasing an existing motor carrier or establishing a
new motor carrier. Such carriers, as Greyhound itself points out, must
use U.S. citizens or resident aliens to provide passenger service in
the United States. The drivers they employ must possess a Commercial
Drivers License issued in the United States. In addition, these
carriers are subject to the same safety requirements, inspection
procedures, enforcement mechanisms, and fines and out-of-service orders
that apply to any other U.S. carrier. Thus, there is no basis to treat
these carriers any differently from U.S.-owned, U.S.-domiciled carriers
based solely on the owner's nationality. All U.S.-domiciled carriers,
regardless of the owner's nationality, will be subject to an interim
final rule establishing application procedures and safety monitoring
requirements for new entrant carriers, which we expect to publish in
the near future.

Small Passenger Carrying Vehicle Operations

With respect to the small passenger carrying vehicle issues raised
by the ABA, the FMCSA published a Notice of Proposed Rulemaking on
January 11, 2001 (66 FR 2767) that proposed to apply most of the FMCSRs
(except for CDL and drug and alcohol testing requirements) to certain
passenger carriers operating vehicles designed or used to transport
between 9 and 15 passengers. The FMCSA's final small passenger carrying
vehicle rule, which will be published in the near future, will address
the safety issues regarding this type of operation.

Environmental Issues

Friends of the Earth, the Natural Resources Defense Council, the
Sierra Club and The Center for International Law commented that FMCSA
is required to perform additional analysis to meet the requirements of
the National Environmental Policy Act (NEPA) and Executive Order 13045,
concerning the protection of children from environmental health and
safety risks. FMCSA is preparing an agency order to meet the
requirements of DOT Order 5610.1C (that establishes the Department of
Transportation's policy for compliance with NEPA by the Department's
administrations). FMCSA has conducted a programmatic environmental
assessment (PEA) of the three NAFTA-related rulemakings in accordance
with the DOT Order and the regulations of the Council on Environmental
Quality. A discussion of the PEA and its findings is presented later in
the preamble under ``Regulatory Analyses and Notices.'' A copy of the
PEA is in the docket to this rulemaking. Executive Order 13045 is
addressed in the Regulatory Analyses and Notices section of this
preamble.
We have reviewed our obligations under the CAA, and believe that we
are in compliance with the general conformity requirements as
implemented by the U.S. Environmental Protection Agency (EPA). EPA's
implementing regulations exempt certain actions from the general
conformity determination requirements. Actions which would result in no
increase in emissions or clearly a de minimis increase, such as
rulemaking (40 CFR 93.153(c)(iii)), are exempt from requiring a
conformity determination. In addition, actions which do not exceed
certain threshold emissions rates set forth in 40 CFR 93.153(b) are
also exempt from the conformity determination requirements. The FMCSA
rulemakings meet both of these exemption standards. First, as noted
elsewhere in this preamble to this rule, the actions being taken by the
FMCSA are rulemaking actions to improve FMCSA's regulatory oversight,
not an action to modify the moratorium and allow Mexican trucks to
operate beyond the border. Second, the air quality impacts from each of
the FMCSA's rules neither individually nor collectively exceed the
threshold emissions rates established by EPA (see Appendix C of the
Environmental Assessment accompanying these rulemakings for a more
detailed discussion of air quality impacts). As a result, we believe
that FMCSA's rulemaking actions comply with the CAA requirements, and
that no conformity determination is required.

Penalties

We believe Public Citizen did not understand the full range of
penalties available to FMCSA when it made its comments that the
penalties for Mexico-domiciled carriers under the safety monitoring
program would be weaker than those that currently apply to U.S.-
domiciled carriers. In addition to the procedures established by this
rule, Mexico-domiciled carriers are fully subject to the full range of
enforcement actions and sanctions faced by U.S. and Canadian carriers,
including civil and criminal fines and jail time.

Expedited Action Criteria

Although violations of the hours-of-service limits are not
specifically included in the list of violations prompting an expedited
safety or compliance review or demand for corrective action, hours-of-
service violations will be taken into account as part of a carrier's
out-of-service rate, which is a triggering factor for expedited action
under Sec. 385.105(a)(7).
Although a fatal accident is not included on the list of violations
that

[[Page 12765]]

would trigger an expedited safety audit or compliance review or a
demand for corrective action, Mexico-domiciled motor carriers will be
subject to existing FMCSA policy regarding crashes. Under this policy,
FMCSA conducts a basic Crash Inquiry on any motor carrier having a
crash involving two or more fatalities, two or more injuries, or a
combination of fatalities and injuries. This review policy also
includes any crash that may result in the agency acquiring detailed
knowledge that would be beneficial for any unusual post-crash public
interest. The Crash Inquiry would include crashes involving motor
coaches, unqualified drivers, explosions, and substantial fire.
FMCSA policy automatically expands the basic Crash Inquiry into a
full compliance review as soon as practicable when the motor carrier is
not in good standing with FMCSA. A motor carrier is not in good
standing with FMCSA when it is does not have a safety rating (which
would generally be the case for new entrant Mexico-domiciled carriers
prior to the performance of a compliance review), the safety rating is
less than satisfactory, or the carrier is on FMCSA's Safety Status
Measurement System (SafeStat) with a SafeStat category of A, B, C, or
D. For more information about SafeStat, see the FMCSA web page at:
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fmcsa.dot.gov/facts_research/facts_figures/databases/safetstat.htm.
The Mexico-domiciled motor carrier's application will create a new
record attached to its new USDOT identification number without any
safety rating attached to it. The lack of a safety rating for a Mexico-
domiciled motor carrier coupled with a multiple fatality or injury
crash will result in the Mexico-domiciled motor carrier being subject
to a full compliance review as soon as practicable. This procedure is
identical to the current treatment of new entrant U.S.-or Canada-
domiciled motor carriers lacking a safety rating.

Procedural Time Limits

In response to Public Citizen's concern that the rule did not
propose specific time limits for carriers to address identified
problems and respond to letters demanding corrective action, we have
added a provision that failure to respond within 30 days will result in
the suspension of the carrier's provisional registration. Public
Citizen also raised a question concerning the status of an uninsured
carrier operating while the agency performs a safety review or
processes a demand for corrective action. FMCSA has authority, under 49
CFR 387.31(g), to deny entry to any Mexico-domiciled carrier not
carrying the required evidence of financial responsibility in its
vehicles. The agency also has authority, under 49 U.S.C. 14702, to
obtain a court order enjoining a carrier from operating without
insurance independent of the safety monitoring process. Finally,
Mexico-domiciled carriers operating beyond the border zones will be
required to file evidence of insurance with FMCSA as a condition for
retaining their provisional operating authority. As is the case for
U.S. and Canada-domiciled carriers, failure to have a current insurance
filing will result in revocation of authority under existing FMCSA
procedures.
Public Citizen's concerns about the timeliness of an expedited
safety review are valid. The agency will strive to conduct the review
as soon as possible and will give priority in assigning resources to
conduct these reviews. We believe Sec. 385.111 of the final rule
adequately addresses Public Citizen's concerns about the length of time
a carrier can be suspended without taking corrective action before its
registration is revoked. An agency suspension of any carrier's
authority to operate means the carrier cannot operate legally until it
corrects its deficiencies and has received written notice from FMCSA
allowing it to resume operating. The suspension order will provide for
revocation of the provisional registration if necessary corrective
action is not taken within 30 days.
The violations requiring expedited action are warning signs that a
carrier may not have the necessary basic safety management controls in
place, thus generating an immediate response in the form of a
corrective action demand letter, safety audit or compliance review.
FMCSA will take these violations seriously, but they do not necessarily
establish that the carrier is unfit to operate. If the carrier
demonstrates that it has taken steps to correct the identified problems
and that it is otherwise exercising the necessary basic safety
management controls, it does not present a danger to public safety and
should be allowed to continue to operate.
FMCSA is developing a database that will indicate whether a carrier
has had its authority suspended or revoked. Unregistered carriers and
carriers whose registration has been suspended or revoked will be
denied entry into the United States. Use of this data will also help to
ensure that enforcement personnel can place out-of-service at the
roadside those carriers that continue to operate commercial motor
vehicles within the United States after registration has been suspended
or revoked.

Compliance With Federal Motor Vehicle Safety Standards (FMVSS)

FMCSA and its State partners will continue to enforce the FMVSS
through roadside inspections, including inspections at the border.
Roadside inspections provide a means of ensuring that vehicles meet the
applicable FMVSS in effect on the date the vehicle was manufactured.
Part 393 of the FMCSRs currently includes cross-references to most
of the FMVSS applicable to heavy trucks and buses. The rules require
that motor carriers operating in the United States, including Mexico-
domiciled carriers, must maintain the specified safety equipment and
features that the National Highway Traffic Safety Administration
(NHTSA) requires vehicle manufacturers to install. Failure to maintain
these safety devices or features is a violation of the FMCSRs. If the
violations are discovered during a roadside inspection, and they are
serious enough to meet the current out-of-service criteria used in
roadside inspections (i.e., the condition of the vehicle is likely to
cause an accident or a mechanical breakdown), the vehicle would be
placed out of service until the necessary repairs are made. Any FMVSS
violations that involve noncompliance with the standards presently
incorporated into part 393 could subject motor carriers to a maximum
civil penalty of $10,000 per violation. If FMCSA determines that
Mexico-domiciled carriers are operating vehicles that do not comply
with the applicable FMVSS, we could also take appropriate enforcement
action for making a false certification on Form OP-1(MX) or OP-2.
To further strengthen FMVSS enforcement, FMCSA and NHTSA are
initiating several regulatory actions in today's Federal Register to
ensure that all commercial vehicles operated in the United States,
including those operated by Mexican and Canadian carriers, display a
NHTSA-required label certifying compliance with the FMVSS. FMCSA is
publishing a Notice of Proposed Rulemaking proposing to incorporate the
labeling requirement into part 393 and NHTSA is publishing two NPRMs
and one policy statement relating to the certification label.
Many commercial motor vehicles owned by Mexican and Canadian
carriers may comply with the FMVSSs in effect at the time of their
manufacture. However, because these vehicles were not originally
manufactured for use in the United

[[Page 12766]]

States, they are not likely to have FMVSS certification labels. The
NHTSA policy statement permits a vehicle manufacturer to retroactively
apply a label to a commercial motor vehicle certifying, if it has
sufficient basis for doing so, that the vehicle complied with all
applicable FMVSS in effect at the time it was originally manufactured.
In connection with this policy statement, NHTSA is proposing
recordkeeping requirements for foreign manufacturers that choose to
retroactively certify vehicles.
In the third NHTSA document published in today's Federal Register,
NHTSA is proposing to codify, in 49 CFR part 591, its longstanding
interpretation of the term ``import'' as including bringing commercial
vehicles into the United States for the purpose of transporting cargo
or passengers.

Staffing Issues

Several parties expressed concern about whether there are adequate
resources available to conduct the necessary inspections and safety
reviews. Section 350(a)(9) of the Act prohibits Mexico-domiciled motor
carriers from entering the United States at any border crossing where a
certified motor carrier inspector is not on duty or where there is not
adequate capacity to conduct either a sufficient number of meaningful
vehicle safety inspections or accommodate vehicles placed out-of-
service as a result of safety inspections. Congress has appropriated
$57.8 million for FMCSA to handle its responsibilities in connection
with implementing the NAFTA access provisions for Mexico-domiciled
carriers. FMCSA intends to hire over 200 people for this purpose, most
of whom will be conducting vehicle inspections, pre-authorization
safety audits and 18-month safety audits. We believe this significant
augmentation of our existing staff at the southern border will enable
us to fully comply with our safety monitoring responsibilities.

Responses to Other Comments

The individuals who submitted form comments provided by CRASH did
not elaborate on what they considered to be ``meaningful safety
standards and significantly increased compliance oversight.'' We have
addressed those concerns in this and the companion rulemakings
published elsewhere in today's Federal Register.
We recognize the concerns of the Green Valley, Arizona residents
along Interstate 19, but any increase in traffic along this route will
not result from the implementation of this rule and its two companion
rules. These rules do not open the border to Mexico-domiciled trucks,
they impose safety certification and monitoring requirements on Mexico-
domiciled motor carriers operating in the United States under the
provisions of NAFTA.
In response to Mr. Pizenche's comments, 49 CFR 390.21 currently
requires that all motor vehicles, including foreign vehicles, must have
the carrier's name and USDOT number on each side of the power unit, and
must be readable from 50 feet. In addition, our companion rule
establishing application requirements for Mexico-domiciled long-haul
carriers published elsewhere in today's Federal Register, requires that
FMCSA issue a new USDOT identification number to each Mexico-domiciled
motor carrier applicant intending to operate beyond the United States-
Mexico border zones. This new USDOT identification number will have a
suffix that will denote the type of authority held by the Mexico-
domiciled motor carrier and allow FMCSA to monitor the carrier's
performance by inspecting crash and roadside inspection reports.

Section-by-Section Summary

We have changed the section numbers as they appeared in the NPRM.
The sections are now numbered 385.101 through 385.119.

Section 385.101

This section contains the definitions of terms used in new subpart
B. These include:
(1) Provisional certificate of registration, the registration
issued to Mexico-domiciled border zone carriers;
(2) Provisional operating authority, the registration issued to
Mexico-domiciled long-haul carriers; and
(3) Safety audit, the review conducted by FMCSA on a border zone
carrier during the 18-month provisional period to determine whether the
carrier exercises basic safety management controls. Because we will be
conducting compliance reviews on Mexico-domiciled long-haul carriers
during the 18-month provisional period, we have also added a reference
to the existing definition of compliance review in Sec. 385.3.

Section 385.103

This section describes the elements of the safety monitoring
system, which include roadside monitoring, safety audits for border
zone carriers and compliance reviews for long-haul carriers. FMCSA has
added a requirement that all Mexico-domiciled motor vehicles operating
beyond the border zones display a valid CVSA inspection decal
throughout the 18-month provisional operating authority period. A CVSA
inspection is only valid for three months from the date of inspection.
Consequently, Mexico-domiciled long-haul carriers will need to get a
CVSA inspection for their vehicles every three months. FMCSA will work
with CVSA to ensure that this requirement is operational when the
President lifts the moratorium on granting operating authority to
Mexico-domiciled motor carriers.

Section 385.105

Section 385.105(a) lists the serious violations or infractions that
will result in an expedited safety audit or compliance review or, in
the alternative, a demand that the carrier demonstrate in writing that
it has taken immediate corrective action. The infractions listed are
essentially identical to those proposed in the NPRM. We have added
clarifying language regarding what constitutes a valid Licencia
Federal. The type of action taken by FMCSA in response to the
violations will depend upon the specific circumstances of the
violations.
Sections 385.105(b) provides that failure to respond to a request
for a written response demonstrating corrective action within 30 days
will result in suspension of provisional registration until the
required showing of corrective action is made.
Section 385.105(c) clarifies that a carrier that successfully
responds to a demand for corrective action still must undergo a safety
audit or compliance review during the provisional period if it has not
already done so.

Section 385.107

This section describes the safety audit and what follow-up action
will be taken by the agency. Safety audits on Mexico-domiciled carriers
operating only in the border zones under provisional Certificates of
Registration will be conducted by an FMCSA safety specialist, usually
onsite, although FMCSA reserves the right to conduct the audit at an
alternate site. The safety audit will assess the adequacy of the
carrier's basic safety management controls in accordance with the
criteria established in new Appendix A. Appendix A does not
specifically reference Mexico-domiciled motor carriers because we are
considering adopting it eventually for all new entrants, except for
Mexico-domiciled long-haul carriers, who must undergo compliance
reviews.
The audit will consist of a review of the Mexico-domiciled
carrier's safety data, a review of requested motor carrier

[[Page 12767]]

documents, and an interview session with the Mexico-domiciled carrier
by the FMCSA safety specialist. 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: financial responsibility; commercial
driver's license standards; qualification of drivers; controlled
substances and alcohol use and testing; transporting and marking
hazardous materials; requirements applicable to driving a motor
vehicle; hours of service; and vehicle inspection, repair, and
maintenance. A safety audit is different than a compliance review in
that it focuses on providing safety management and technical assistance
and is not intended to result in a safety fitness determination.
However, if the audit demonstrates that the carrier fails to establish
and/or exercise basic safety management controls, FMCSA will ensure
that the necessary corrective action is taken or else the carrier will
not be allowed to continue operating in the United States.
FMCSA Division Administrators or State Directors will make the
initial determination about the adequacy of a Mexico-domiciled
carrier's basic safety management controls and whether necessary
corrective action has been taken.
If the safety audit demonstrates that the carrier is exercising the
necessary basic safety management controls, the carrier will retain its
provisional status and will continue to be closely monitored until the
expiration of the 18-month safety monitoring period. At that time, the
provisional designation will be removed from its registration, provided
its safety record remains in good standing.
FMCSA anticipates that the basic safety management practices of the
large majority of Mexico-domiciled carriers will prove to be adequate
based on the combined effect of:
(1) Providing educational material to the carrier in the
application process;
(2) Requiring the carrier to certify how it will comply with the
FMCSRs;
(3) Requiring long-haul carriers to successfully complete a pre-
authority safety audit; and
(4) Providing notice to the carrier of what items will be covered
in the safety audit or compliance review conducted during the
provisional registration period.
If the safety audit reveals that the Mexico-domiciled carrier's
basic safety management practices are inadequate, FMCSA will initiate a
suspension and revocation proceeding. The carrier will be required to
remedy the deficiencies or else its provisional Certificate of
Registration will be revoked.

Section 385.109

Section 350(a)(2) of the Act requires the compliance review of
Mexico-domiciled long-haul operations to be conducted consistent with
our existing safety fitness evaluation procedures in part 385 and that
the carrier receive a Satisfactory safety rating before receiving
permanent operating authority. Therefore, an FMCSA safety specialist
will conduct compliance reviews of Mexico-domiciled long-haul carriers
applying the evaluation criteria in Appendix B to part 385, the same
criteria now in use for U.S and Canadian carriers. These criteria
provide for the assignment of one of three proposed safety ratings upon
completion of a compliance review: Satisfactory, Conditional, or
Unsatisfactory.
A carrier receiving a Satisfactory rating will continue to operate
under provisional status until the expiration of the 18-month safety
monitoring period. At that time, the provisional designation will be
removed from its registration, provided its safety record remains in
good standing.
The consequences of an Unsatisfactory rating are similar to those
attached to a safety audit in which it is determined that a carrier
does not have adequate safety management controls. The carrier's
provisional operating authority will be suspended and the FMCSA will
notify the carrier that it is required to take action to improve its
practices. Failure to make the necessary changes to remedy inadequate
basic safety management controls will result in revocation of a
carrier's provisional operating authority.
A Conditional rating is indicative of deficiencies in a carrier's
safety management controls which raise concerns about its ability to
operate safely but are not of sufficient magnitude to declare the
carrier unfit. Because the Act requires Mexico-domiciled long-haul
carriers to achieve a Satisfactory rating in order to retain their
provisional operating authority, a revocation proceeding will be
initiated following the assignment of a Conditional rating. However,
because our existing safety rating procedures do not equate a
conditional rating with unfitness and permit conditional-rated carriers
to continue operating, provisional operating authority will not be
suspended at the time a revocation proceeding is initiated.

Section 385.111

In response to comments, we have added procedures incorporating
specific time frames for suspension and revocation of provisional
operating authority and Certificates of Registration. These procedures
are designed to balance the need to protect the public from potentially
unsafe carriers while preserving the carrier's due process rights.
Mexico-domiciled carriers will have 10 days following notification
of an Unsatisfactory rating or an unsuccessful safety audit to
demonstrate that the FMCSA committed material error. If they fail to do
so, the FMCSA will suspend the carrier's provisional operating
authority or provisional Certificate of Registration on the 15th day,
thus placing it out of service. If the carrier fails to demonstrate
that it has taken necessary corrective action within 30 days from the
date of suspension, FMCSA will revoke the carrier's provisional
operating authority or provisional Certificate of Registration.
Carriers assigned a Conditional rating will not have their
provisional operating authority suspended, but will still need to
demonstrate that necessary corrective action has been taken to prevent
their authority from being revoked.
Section 385.111(e) provides for suspension of provisional
registration when the carrier does not provide documents necessary for
the completion of a safety audit or compliance review or does not
submit sufficient evidence of corrective action in response to a
written demand under Sec. 385.105. The suspension will remain in effect
until the necessary documents are produced and the carrier:
(1) Successfully completes the safety audit;
(2) Receives a Satisfactory or Conditional safety rating; or
(3) Demonstrates that it has taken the necessary corrective action
in response to a Sec. 385.105 demand. Although the assignment of a
Conditional rating will be sufficient to lift the suspension, the
carrier will still need to upgrade its rating to Satisfactory in order
to keep its provisional operating authority.
Section 385.111(f) is intended to address the problem of
recidivism, i.e., carriers who, after taking corrective action
resulting in the lifting of a suspension during the provisional
operating or registration period, commit one of the serious safety
infractions listed in Sec. 385.105(a). In these circumstances, the
suspension will be automatically reinstated and the carrier's
provisional operating authority or Certificate of Registration will be

[[Page 12768]]

revoked unless it demonstrates it did not commit the infraction.
In a similar vein, Sec. 385.111(g) provides for the initiation of a
revocation proceeding upon receipt of credible evidence that a carrier
operated in violation of a suspension order, even if that suspension
order was eventually lifted. A Mexico-domiciled motor carrier that
operates a commercial motor vehicle in violation of a suspension or
out-of-service order will also be subject to the penalties provided in
49 U.S.C. 521(b)(2)(A), not to exceed $10,000 for each offense.

Section 385.113

Under this section, a Mexico-domiciled carrier may request FMCSA to
conduct an administrative review if it believes the agency has
committed an error in assigning a safety rating or determining that its
basic safety management controls are inadequate. The carrier's request
must explain the error it believes FMCSA committed and include a list
of all factual and procedural issues in dispute. In addition, the
carrier must include any information or documents that support its
argument. Following the administrative review, which will be conducted
by the FMCSA's Associate Administrator for Enforcement, the agency will
notify the carrier of its decision, which will constitute the final
action of the agency. Administrative review under this section will be
completed in no more than 10 days after the request is received.

Section 385.115

This section prohibits a Mexico-domiciled carrier whose
registration has been revoked from reapplying for provisional operating
authority or a Certificate of Registration for at least 30 days after
the date of revocation. A Mexico-domiciled carrier reapplying for
provisional registration will have to demonstrate to FMCSA's
satisfaction that it has corrected the deficiencies that resulted in
revocation of its registration and that it otherwise has effectively
functioning basic safety management systems in place. Long-haul
carriers will again be required to undergo a pre-authorization safety
audit. FMCSA is obtaining information regarding revocations by
inserting appropriate questions on the application forms developed in
the companion rules amending parts 365 and 368 published elsewhere in
today's Federal Register.

Section 385.117

This section provides that at the end of the 18-month period, the
Mexico-domiciled carrier will receive permanent DOT operating authority
or a Certificate of Registration if it has successfully met the
requirements of the most recent safety audit or has received a
Satisfactory rating, and is not currently under a notice from FMCSA to
remedy its basic safety management practices. Thereafter, it will be
treated like any other non-new-entrant motor carrier. If the Mexico-
domiciled carrier is under a notice to remedy its basic safety
management practices, its provisional designation will continue until
FMCSA determines the carrier is complying with the Federal safety
regulations or revokes its registration under Sec. 385.111.
If a compliance review or safety audit has not been conducted on a
Mexico-domiciled carrier within the 18-month oversight period, the
provisional designation will continue until such time as FMCSA
completes and evaluates a review or audit.
Compliance reviews and safety audits will normally begin within 90
to 120 days after the grant of provisional operating authority or a
provisional Certificate of Registration, so that sufficient records
will be available to review. FMCSA will work to ensure that all Mexico-
domiciled carriers will be scheduled for an audit or compliance review
within the 18-month period.

Section 385.119

This section clarifies that although FMCSA's NAFTA implementation
rules will include a pre-authorization safety audit for long-haul
Mexico-domiciled carriers and at least one post-operational compliance
review or safety audit, this is not the exclusive safety oversight that
FMCSA will apply to Mexico-domiciled carriers. FMCSA will also apply
the full range of oversight and enforcement actions currently
applicable to all non-new-entrant motor carriers, including civil
penalties and the suspension and revocation of registration or
operating authority due to persistent violations of DOT regulations
governing motor carrier operations in interstate commerce.

Appendix A to Part 385

Appendix A is being added to inform Mexico-domiciled motor carriers
what the evaluation criteria will be that FMCSA will use during a
safety audit to rate a carrier's compliance with the FMCSRs and
applicable HMRs, assess its operational safety, and assess its basic
management safety management controls. The safety audit evaluation
criteria are similar to the current safety rating methodology. The
safety audit evaluation criteria looks at the same list of critical and
acute violations as in the safety rating methodology and both use the
same six factors: (1) General: Parts 387 and 390; (2) Driver: Parts
382, 383, and 391; (3) Operational: Parts 392 and 395; (4) Vehicle:
Parts 393, 396, and inspection data for the last 12 months; (5)
Hazardous Materials: Parts 171, 177, 180 and 397; and (6) Recordable
Accident Rate per Million Miles. All Mexico-domiciled motor carriers
who have a provisional Certificate of Registration will receive a
safety audit. These carrier's safety audits will be subject to the
safety audit evaluation criteria in Appendix A to part 385. All Mexico-
domiciled motor carriers who receive a compliance review will be
subject to the safety rating methodology detailed in Appendix B to part
385.
The safety audit evaluation criteria are based on 49 CFR 385.5
(Safety fitness standard) and Sec. 385.7 (Factors to be considered in
determining a safety rating). The FMCSA will use the evaluation process
to ensure that Mexico-domiciled motor carriers have basic safety
management controls in place. The evaluation process will also enable
the FMCSA to focus its limited resources on examining the operations of
carriers needing improvement in their compliance with the FMCSRs and
the applicable HMRs.

Rulemaking Analyses 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)
because of public interest. It has been reviewed by the Office of
Management and Budget. However, it is anticipated that the economic
impact of the revisions in this rulemaking will be minimal.
Nevertheless, the subject of safe operations by Mexico-domiciled
carriers in the United States will likely generate considerable public
interest within the meaning of Executive Order 12866. The manner in
which FMCSA carries out its safety oversight responsibilities with
respect to this cross-border motor carrier transportation may be of
substantial interest to the domestic motor carrier industry, the
Congress, and the public at large.
The Regulatory Evaluation analyzes the costs and benefits of this
rule and the two companion NAFTA-related rules published elsewhere in
today's Federal Register. Because these rules are so closely
interrelated, we did not

[[Page 12769]]

attempt to prepare separate analyses for each rule.
The evaluation estimated costs and benefits based on three
different scenarios, with a high, low and medium number of Mexico-
domiciled carriers assumed covered by the rules. The costs of these
rules are minimal under all three scenarios. Over 10 years, the costs
range from $53 million for the low scenario to approximately $76
million for the high scenario. Forty percent of these costs are borne
by the FMCSA, while the remaining costs are paid by Mexico-domiciled
carriers. The largest costs are those associated with conducting pre-
authorization safety audits, safety audits within 18 months of a
carrier's receiving provisional Certificate of Registration, compliance
reviews within 18 months of a carrier's receiving provisional operating
authority, and the loss of a carrier's ability to operate in the United
States.
The FMCSA used the cost effectiveness approach to determine the
benefits of these rules. This approach involves estimating the number
of crashes that would have to be deterred in order for the proposals to
be cost effective. Over ten years, the low scenario would have to deter
640 forecast crashes to be cost beneficial, the medium scenario would
have to deter 838, and the high scenario would have to deter 929. While
the overall number of crashes to be avoided under the medium and high
scenario is fairly high, the number falls rapidly over the 10-year
analysis period and beyond. The tenth year deterrence rate is one-
quarter to one-sixth the size of the first year's rate.
A copy of the Regulatory Evaluation is in the docket for this
rulemaking.

Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA)(Pub. L. 96-354, 5 U.S.C. 601-
612), as amended by the Small Business Regulatory Enforcement and
Fairness Act (Pub. L. 104-121), requires Federal agencies to analyze
the impact of rulemakings on small entities, unless the Agency
certifies that the rule will not have a significant economic impact on
a substantial number of small entities.
The United States did not have in place a special system to ensure
the safety of Mexico-domiciled carriers operating in the United States.
Mexico-domiciled carriers will be subject to all the same safety
regulations as domestic carriers. However, FMCSA's enforcement of the
FMCSRs has become increasingly data dependent in the last several
years. Several programs have been put in place to continually analyze
crash rates, out-of-service (OOS) rates, compliance review records, and
other data sources to allow the agency to focus on high-risk carriers.
This strategy is only effective if FMCSA has adequate data on carriers'
size, operations, and history. Thus, a key component of FMCSA's three
companion NAFTA-related rules is the requirement that Mexico-domiciled
carriers operating in the United States complete a Form MCS-150 -Motor
Carrier Identification Report, and update the information submitted in
the appropriate application form (OP-1(MX) or OP-2) when key
information changes. This will allow FMCSA to better monitor these
carriers and to quickly determine whether their safety or OOS record
changes.
The more stringent oversight procedures will also allow FMCSA to
respond more quickly when safety problems emerge. The safety audits,
compliance reviews and CVSA inspections will provide FMCSA with more
detailed information about Mexico-domiciled carriers, and allow FMCSA
to act appropriately upon discovering safety problems.
The objective of these rules is to enhance the safety of Mexico-
domiciled carriers operating in the United States. The rules describe
what additional information Mexico-domiciled carriers will have to
submit, and outline the procedure for dealing with possible safety
problems.
The safety monitoring system, combined with the safety
certifications and other information to be submitted in the OP-1(MX)
and OP-2 applications and the pre-authorization safety audit of Mexico-
domiciled carriers seeking to operate beyond the border zones, are a
means of ensuring that:
(1) Mexico-domiciled applicants are sufficiently knowledgeable
about safety requirements before commencing operations (a prerequisite
to being able to comply);
(2) Mexico-domiciled applicants conduct operations in the United
States in accordance with their application certifications and the
conditions of their registrations; and
(3) The safety performance of Mexico-domiciled applicants is at
least equal to that of United States and Canadian carriers operating in
the United States.
These rules will primarily affect Mexico-domiciled small motor
carriers who wish to operate in the United States. The amount of
information these carriers will have to supply to FMCSA has been
increased, and we estimate that they will spend two additional hours
gathering data for the OP-1(MX) and OP-2 application forms. Mexico-
domiciled carriers will also have to undergo safety audits, an
increased number of CVSA roadside inspections and compliance reviews,
if they operate beyond the border zones. We presented three growth
scenarios in the regulatory evaluation: a high option, with 11,787
Mexico-domiciled carriers in the baseline; a medium scenario, with
9,500 Mexico-domiciled carriers in the baseline; and a low scenario,
with 4,500 Mexico-domiciled carriers in the baseline. Under all three
options, the FMCSA believes that the number of applicants will match
approximately that observed in the last few years before this
publication date, approximately 1,365 applicants per year.
A review of the Motor Carrier Management Information System (MCMIS)
census file reveals that the vast majority of Mexico-domiciled carriers
are small, with 75 percent having three or fewer vehicles. Carriers at
the 95th percentile carrier had only 15 trucks or buses.
These rules should not have any impact on small United States based
motor carriers.
FMCSA did not establish any different requirements or timetables
for small entities. As noted above, we do not believe these
requirements are onerous. Most covered carriers will be required to
spend two extra hours to complete the relevant forms, undergo at least
one safety audit at four hours each, have their trucks inspected more
frequently and, if they obtain long-haul authority, undergo a
compliance review taking six hours. This part 385 interim final rule
would not achieve its purposes if small entities were exempt. In order
to ensure the safety of Mexico-domiciled carriers, the rule must have a
consistent procedure for addressing safety problems. Exempting small
motor carriers (which, as was noted above, are the vast majority or
Mexico-domiciled carriers who would operate in the United States) would
defeat the purpose of these rules.
FMCSA did not consolidate or simplify the compliance and reporting
requirements for small carriers. Small United States carriers already
have to comply with the paperwork requirements in part 365. There is no
evidence that domestic carriers find these provisions confusing or
particularly burdensome. Apropos the part 385 provisions, FMCSA
believes the requirements are fairly straightforward, and it would not
be possible to simplify them. A simplification of any substance would
make the rule ineffectual. Given the compelling interest in assuring
the safety of Mexico-domiciled carriers

[[Page 12770]]

operating in the United States, and the fact that the majority of these
carriers are small entities, no special changes were made.
The part 385 requirements include performance standards. A Mexico-
domiciled carrier will need to complete a safety improvement plan if
its performance demonstrates that it is not operating safely, either
through a high OOS rate or other problems.
Therefore, FMCSA certifies that this rule will not have a
significant impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; 2 U.S.C.
1532) requires each agency to assess the effects of its regulatory
actions on State, local, and tribal governments and the private sector.
Any agency promulgating a final rule likely to result in a Federal
mandate requiring expenditures by a State, local, or tribal government
or by the private sector of $100 million or more in any one year must
prepare a written statement incorporating various assessments,
estimates, and descriptions that are delineated in the Act. FMCSA has
determined that the changes proposed in this rulemaking would not have
an impact of $100 million or more in any one year.

Executive Order 12988 (Civil Justice Reform)

This action meets applicable standards in Sections 3(a) and 3(b)(2)
of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate
ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (April 23, 1997, 62 FR 19885), requires
that agencies issuing ``economically significant'' rules that also
concern an environmental health or safety risk that an agency has
reason to believe may disproportionately affect children must include
an evaluation of the environmental health and safety effects of the
regulation on children. Section 5 of Executive Order 13045 directs an
agency to submit for a ``covered regulatory action'' an evaluation of
its environmental health or safety effects on children. The agency has
determined that this rule is not a ``covered regulatory action'' as
defined under Executive Order 13045.
This rule is not economically significant under Executive Order
12866 because the FMCSA has determined that the changes in this
rulemaking would not have an impact of $100 million or more in any one
year. The costs range from $53 to $76 million over 10 years. This rule
also does not concern an environmental health risk or safety risk that
would disproportionately affect children. Mexico-domiciled motor
carriers who intend to operate commercial motor vehicles anywhere in
the United States must comply with current U.S. Environmental
Protection Agency regulations and other United States environmental
laws under this rule and others being published elsewhere in today's
Federal Register. Nonetheless, the agency has conducted a programmatic
environmental assessment as discussed later in this preamble.

Executive Order 12630 (Taking of Private Property)

This final rule would 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 Assessment)

This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132, dated August 4, 1999 (64
FR 43255, August 10, 1999). FMCSA has determined that this action would
not have significant Federalism implications or limit the policymaking
discretion of the States.

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 determine whether requirements contained
in rulemakings are subject to information collection provisions of the
PRA and, if they are, obtain approval from the Office of Management and
Budget for each collection of information they conduct, sponsor or
require through regulations. FMCSA has determined that this regulation
does not constitute an information collection with the scope or meaning
of the PRA.
FMCSA performs safety compliance assessments and enforcement
activities as required by statutes and the FMCSRs. Implementation of
this proposal would create no additional paperwork burden on Mexico-
domiciled carriers that comply with the FMCSRs. Any safety data that
FMCSA solicits from individual motor carriers regarding deficiency and/
or non-compliance is not considered a collection of information because
this type of response is required of such carriers as part of the usual
and customary compliance and enforcement practice under the FMCSRs.
Accordingly, FMCSA has determined that this action would not affect any
requirements under the PRA.

National Environmental Policy Act

FMCSA is a new administration within the Department of
Transportation (DOT). 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.).
FMCSA expects the draft Order to appear in the Federal Register for
public comment in the near future. The framework of the FMCSA Order
will be consistent with and reflect the procedures for considering
environmental impacts under DOT Order 5610.1C. FMCSA has analyzed this
rule under the NEPA and DOT Order 5610.1C, and has issued a Finding Of
No Significant Impact (FONSI). The FONSI and the environmental
assessment are in the docket to this rule.
FMCSA invites comments on the programmatic environmental
assessment.

Executive Order 13211 (Energy Supply, Distribution, or Use)

We have analyzed this action under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. This action is not a significant energy action
within the meaning of section 4(b) of the Executive Order because as a
procedural action it is not economically significant and will not have
a significant adverse effect on the supply, distribution, or use of
energy.

List of Subjects in 49 CFR Part 385

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

For the reasons stated in the preamble, the FMCSA amends 49 CFR
part 385 as set forth below:

[[Page 12771]]

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, 13901-13905, 31136,
31144, 31148, and 31502; Section 350 of Public Law 107-87; and 49
CFR 1.73.

2. Sections 385.1 through 385.19 are designated as Subpart A-
General, and a new Subpart B is added consisting of new Secs. 385.101
through 385.119 to read as follows:
Subpart B--Safety Monitoring System for Mexico-Domiciled Carriers
Sec.
385.101 Definitons.
385.103 Safety monitoring system.
385.105 Expedited action.
385.107 The safety audit.
385.109 The compliance review.
385.111 Suspension and revocation of Mexico-domiciled carrier
registration.
385.113 Administrative review.
385.115 Reapplying for provisional registration.
385.117 Duration of safety monitoring system.
385.119 Applicability of safety fitness and enforcement procedures.

Subpart B--Safety Monitoring System for Mexico-Domiciled Carriers

Sec. 385.101 Definitions

Compliance Review means a compliance review as defined in
Sec. 385.3 of this part.
Provisional certificate of registration means the registration
under Sec. 368.6 of this subchapter that the FMCSA grants to a Mexico-
domiciled motor carrier to provide interstate transportation of
property within the United States solely within the municipalities
along the United States-Mexico border and the commercial zones of such
municipalities. It is provisional because it will be revoked if the
registrant does not demonstrate that it is exercising basic safety
management controls during the safety monitoring period established in
this subpart.
Provisional operating authority means the registration under
Sec. 365.507 of this subchapter that the FMCSA grants to a Mexico-
domiciled motor carrier to provide interstate transportation within the
United States beyond the municipalities along the United States-Mexico
border and the commercial zones of such municipalities. It is
provisional because it will be revoked if the registrant is not
assigned a Satisfactory safety rating following a compliance review
conducted during the safety monitoring period established in this
subpart.
Safety audit means an examination of a motor carrier's operations
to provide educational and technical assistance on safety and the
operational requirements of the FMCSRs and applicable HMRs and to
gather critical safety data needed to make an assessment of the
carrier's safety performance and basic safety management controls.
Safety audits do not result in safety ratings.

Sec. 385.103 Safety monitoring system.

(a) General. Each Mexico-domiciled carrier operating in the United
States will be subject to an oversight program to monitor its
compliance with applicable Federal Motor Carrier Safety Regulations
(FMCSRs), Federal Motor Vehicle Safety Standards (FMVSSs), and
Hazardous Materials Regulations (HMRs).
(b) Roadside monitoring. Each Mexico-domiciled carrier that
receives provisional operating authority or a provisional Certificate
of Registration will be subject to intensified monitoring through
frequent roadside inspections.
(c) CVSA decal. Each Mexico-domiciled carrier granted provisional
operating authority under part 365 of this subchapter must have on
every commercial motor vehicle it operates in the United States a
current decal attesting to a satisfactory inspection by a Commercial
Vehicle Safety Alliance (CVSA) inspector.
(d) Safety audit. The FMCSA will conduct a safety audit on a
Mexico-domiciled carrier within 18 months after the FMCSA issues the
carrier a provisional Certificate of Registration under part 368 of
this subchapter.
(e) Compliance review. The FMCSA will conduct a compliance review
on a Mexico-domiciled carrier within 18 months after the FMCSA issues
the carrier provisional operating authority under part 365 of this
subchapter.

Sec. 385.105 Expedited action.

(a) A Mexico-domiciled motor carrier committing any of the
following violations identified through roadside inspections, or by any
other means, may be subjected to an expedited safety audit or
compliance review, or may be required to submit a written response
demonstrating corrective action:
(1) Using drivers not possessing, or operating without, a valid
Licencia Federal de Conductor. An invalid Licencia Federal de Conductor
includes one that is falsified, revoked, expired, or missing a required
endorsement.
(2) Operating vehicles that have been placed out of service for
violations of the Commercial Vehicle Safety Alliance (CVSA) North
American Standard Out-of-Service Criteria, without making the required
repairs.
(3) Involvement in, due to carrier act or omission, a hazardous
materials incident within the United States involving:
(i) A highway route controlled quantity of a Class 7 (radioactive)
material as defined in Sec. 173.403 of this title;
(ii) Any quantity of a Class 1, Division 1.1, 1.2, or 1.3 explosive
as defined in Sec. 173.50 of this title; or
(iii) Any quantity of a poison inhalation hazard Zone A or B
material as defined in Secs. 173.115, 173.132, or 173.133 of this
title.
(4) Involvement in, due to carrier act or omission, two or more
hazardous material incidents occurring within the United States and
involving any hazardous material not listed in paragraph (a)(3) of this
section and defined in chapter I of this title.
(5) Using a driver who tests positive for controlled substances or
alcohol or who refuses to submit to required controlled substances or
alcohol tests.
(6) Operating within the United States a motor vehicle that is not
insured as required by part 387 of this chapter.
(7) Having a driver or vehicle out-of-service rate of 50 percent or
more based upon at least three inspections occurring within a
consecutive 90-day period.
(b) Failure to respond to an agency demand for a written response
demonstrating corrective action within 30 days will result in the
suspension of the carrier's provisional operating authority or
provisional Certificate of Registration until the required showing of
corrective action is submitted to the FMCSA.
(c) A satisfactory response to a written demand for corrective
action does not excuse a carrier from the requirement that it undergo a
safety audit or compliance review, as appropriate, during the
provisional registration period.

Sec. 385.107 The safety audit.

(a) The criteria used in a safety audit to determine whether a
Mexico-domiciled carrier exercises the necessary basic safety
management controls are specified in Appendix A to this part.
(b) If the FMCSA determines, based on the safety audit, that the
Mexico-domiciled carrier has adequate basic safety management controls,
the FMCSA will provide the carrier written notice of this finding as
soon as practicable, but not later than 45 days after the completion of
the safety audit. The carrier's Certificate of Registration will

[[Page 12772]]

remain provisional and the carrier's on-highway performance will
continue to be closely monitored for the remainder of the 18-month
provisional registration period.
(c) If the FMCSA determines, based on the safety audit, that the
Mexico-domiciled carrier's basic safety management controls are
inadequate, it will initiate a suspension and revocation proceeding in
accordance with Sec. 385.111 of this subpart.
(d) The safety audit is also used to assess the basic safety
management controls of Mexico-domiciled applicants for provisional
operating authority to operate beyond United States municipalities and
commercial zones on the United States-Mexico border under Sec. 365.507
of this subchapter.

Sec. 385.109 The compliance review.

(a) The criteria used in a compliance review to determine whether a
Mexico-domiciled carrier granted provisional operating authority under
Sec. 365.507 of this subchapter exercises the necessary basic safety
management controls are specified in Appendix B to this part.
(b) Satisfactory Rating. If the FMCSA assigns a Mexico-domiciled
carrier a Satisfactory rating following a compliance review conducted
under this subpart, the FMCSA will provide the carrier written notice
as soon as practicable, but not later than 45 days after the completion
of the compliance review. The carrier's operating authority will remain
in provisional status and its on-highway performance will continue to
be closely monitored for the remainder of the 18-month provisional
registration period.
(c) Conditional Rating. If the FMCSA assigns a Mexico-domiciled
carrier a Conditional rating following a compliance review conducted
under this subpart, it will initiate a revocation proceeding in
accordance with Sec. 385.111 of this subpart. The carrier's provisional
operating authority will not be suspended prior to the conclusion of
the revocation proceeding.
(d) Unsatisfactory Rating. If the FMCSA assigns a Mexico-domiciled
carrier an Unsatisfactory rating following a compliance review
conducted under this subpart, it will initiate a suspension and
revocation proceeding in accordance with Sec. 385.111 of this subpart.

Sec. 385.111 Suspension and revocation of Mexico-domiciled carrier
registration.

(a) If a carrier is assigned an ``Unsatisfactory'' safety rating
following a compliance review conducted under this subpart, or a safety
audit conducted under this subpart determines that a carrier does not
exercise the basic safety management controls necessary to ensure safe
operations, the FMCSA will provide the carrier written notice, as soon
as practicable, that its registration will be suspended effective 15
days from the service date of the notice unless the carrier
demonstrates, within 10 days of the service date of the notice, that
the compliance review or safety audit contains material error.
(b) For purposes of this section, material error is a mistake or
series of mistakes that resulted in an erroneous safety rating or an
erroneous determination that the carrier does not exercise the
necessary basic safety management controls.
(c) If the carrier demonstrates that the compliance review or
safety audit contained material error, its registration will not be
suspended. If the carrier fails to show a material error in the safety
audit, the FMCSA will issue an Order:
(1) Suspending the carrier's provisional operating authority or
provisional Certificate of Registration and requiring it to immediately
cease all further operations in the United States; and
(2) Notifying the carrier that its provisional operating authority
or provisional Certificate of Registration will be revoked unless it
presents evidence of necessary corrective action within 30 days from
the service date of the Order.
(d) If a carrier is assigned a ``Conditional'' rating following a
compliance review conducted under this subpart, the provisions of
subparagraphs (a) through (c) of this section will apply, except that
its provisional registration will not be suspended under paragraph
(c)(1) of this section.
(e) If a carrier subject to this subpart fails to provide the
necessary documents for a safety audit or compliance review upon
reasonable request, or fails to submit evidence of the necessary
corrective action as required by Sec. 385.105 of this subpart, the
FMCSA will provide the carrier with written notice, as soon as
practicable, that its registration will be suspended 15 days from the
service date of the notice unless it provides all necessary documents
or information. This suspension will remain in effect until the
necessary documents or information are produced and:
(1) A safety audit determines that the carrier exercises basic
safety management controls necessary for safe operations;
(2) The carrier is rated Satisfactory or Conditional after a
compliance review; or
(3) The FMCSA determines, following review of the carrier's
response to a demand for corrective action under Sec. 385.105, that the
carrier has taken the necessary corrective action.
(f) If a carrier commits any of the violations specified in
Sec. 385.105(a) of this subpart after the removal of a suspension
issued under this section, the suspension will be automatically
reinstated. The FMCSA will issue an Order requiring the carrier to
cease further operations in the United States and demonstrate, within
15 days from the service date of the Order, that it did not commit the
alleged violation(s). If the carrier fails to demonstrate that it did
not commit the violation(s), the FMCSA will issue an Order revoking its
provisional operating authority or provisional Certificate of
Registration.
(g) If the FMCSA receives credible evidence that a carrier has
operated in violation of a suspension order issued under this section,
it will issue an Order requiring the carrier to show cause, within 10
days of the service date of the Order, why its provisional operating
authority or provisional Certificate of Registration should not be
revoked. If the carrier fails to make the necessary showing, the FMCSA
will revoke its registration.
(h) If a Mexico-domiciled motor carrier operates a commercial motor
vehicle in violation of a suspension or out-of-service order, it is
subject to the penalty provisions in 49 U.S.C. 521(b)(2)(A), not to
exceed $10,000 for each offense.
(i) Notwithstanding any provision of this subpart, a carrier
subject to this subpart is also subject to the suspension and
revocation provisions of 49 U.S.C. 13905 for repeated violations of DOT
regulations governing its motor carrier operations.

Sec. 385.113 Administrative review.

(a) A Mexico-domiciled motor carrier may request the FMCSA to
conduct an administrative review if it believes the FMCSA has committed
an error in assigning a safety rating or suspending or revoking the
carrier's provisional operating authority or provisional Certificate of
Registration under this subpart.
(b) The carrier must submit its request in writing, in English, to
the Associate Administrator for Enforcement, Federal Motor Carrier
Safety Administration, 400 Seventh Street, SW., Washington DC 20590.
(c) The carrier's request must explain the error it believes the
FMCSA committed in assigning the safety rating or suspending or
revoking the carrier's provisional operating authority or

[[Page 12773]]

provisional Certificate of Registration and include any information or
documents that support its argument.
(d) The FMCSA will complete its administrative review no later than
10 days after the carrier submits its request for review. The Associate
Administrator's decision will constitute the final agency action.

Sec. 385.115 Reapplying for provisional registration.

(a) A Mexico-domiciled motor carrier whose provisional operating
authority or provisional Certificate of Registration has been revoked
may reapply under part 365 or 368 of this subchapter, as appropriate,
no sooner than 30 days after the date of revocation.
(b) The Mexico-domiciled motor carrier will be required to initiate
the application process from the beginning. The carrier will be
required to demonstrate how it has corrected the deficiencies that
resulted in revocation of its registration and how it will ensure that
it will have adequate basic safety management controls. It will also
have to undergo a pre-authorization safety audit if it applies for
provisional operating authority under part 365 of this subchapter.

Sec. 385.117 Duration of safety monitoring system.

(a) Each Mexico-domiciled carrier subject to this subpart will
remain in the safety monitoring system for at least 18 months from the
date FMCSA issues its provisional Certificate of Registration or
provisional operating authority, except as provided in paragraphs (c)
and (d) of this section.
(b) If, at the end of this 18-month period, the carrier's most
recent safety audit or safety rating was Satisfactory and no additional
enforcement or safety improvement actions are pending under this
subpart, the Mexico-domiciled carrier's provisional operating authority
or provisional Certificate of Registration will become permanent.
(c) If, at the end of this 18-month period, the FMCSA has not been
able to conduct a safety audit or compliance review, the carrier will
remain in the safety monitoring system until a safety audit or
compliance review is conducted. If the results of the safety audit or
compliance review are satisfactory, the carrier's provisional operating
authority or provisional Certificate of Registration will become
permanent.
(d) If, at the end of this 18-month period, the carrier's
provisional operating authority or provisional Certificate of
Registration is suspended under Sec. 385.111(a) of this subpart, the
carrier will remain in the safety monitoring system until the FMCSA
either:
(1) Determines that the carrier has taken corrective action; or
(2) Completes measures to revoke the carrier's provisional
operating authority or provisional Certificate of Registration under
Sec. 385.111(c) of this subpart.

Sec. 385.119 Applicability of safety fitness and enforcement
procedures.

At all times during which a Mexico-domiciled motor carrier is
subject to the safety monitoring system in this subpart, it is also
subject to the general safety fitness procedures established in subpart
A of this part and to compliance and enforcement procedures applicable
to all carriers regulated by the FMCSA.

3. Part 385 is amended by adding a new Appendix A to read as
follows:

Appendix A to Part 385--Explanation of Safety Audit Evaluation Criteria

I. General

(a) Section 210 of the Motor Carrier Safety Improvement Act (49
U.S.C. 31144) directed the Secretary to establish a procedure
whereby each owner and each operator granted new authority must
undergo a safety review within 18 months after the owner or operator
begins operations. The Secretary was also required to establish the
elements of this safety review, including basic safety management
controls. The Secretary, in turn, delegated this to the FMCSA.
(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 a
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.
(c) The safety audit evaluation process developed by the FMCSA
is used to:
1. Evaluate basic safety management controls and determine if
each owner and each operator is able to operate safely in interstate
commerce; and
2. Identify owners and operators who are having safety problems
and need improvement in their compliance with the FMCSRs and the
HMRs, before they are granted permanent registration.

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

(a) The FMCSA's evaluation criteria are built upon the
operational tool known as the safety audit. This tool was developed
to assist auditors and investigators in assessing the adequacy of a
new entrant's basic safety management controls.
(b) The safety audit is a review of a Mexico-domiciled motor
carrier's operation and is used to:
1. Determine if a carrier has the basic safety management
controls required by 49 U.S.C. 31144;
2. Meet the requirements of Section 350 of the DOT
Appropriations Act; and
3. In the event that a carrier is found not to be in compliance
with applicable FMCSRs and HMRs, the safety audit can be used to
educate the carrier on how to comply with U.S. safety rules.
(c) Documents such as those contained in the driver
qualification files, records of duty status, vehicle maintenance
records, and other records are reviewed for compliance with the
FMCSRs and HMRs. Violations are cited on the safety audit.
Performance-based information, when available, is utilized to
evaluate the carrier's compliance with the vehicle regulations.
Recordable accident information is also collected.

III. Determining if the Carrier Has Basic Safety Management Controls

(a) During the safety audit, the FMCSA gathers information by
reviewing a motor carrier's compliance with ``acute'' and
``critical'' regulations of the FMCSRs and HMRs.
(b) Acute regulations are those where noncompliance is so severe
as to require immediate corrective actions by a motor carrier
regardless of the overall basic safety management controls of the
motor carrier.
(c) Critical regulations are those where noncompliance relates
to management and/or operational controls. These are indicative of
breakdowns in a carrier's management controls.
(d) The list of the acute and critical regulations, which are
used in determining if a carrier has basic safety management
controls in place, is included in Appendix B, VII. List of Acute and
Critical Regulations.
(e) Noncompliance with acute and critical regulations are
indicators of inadequate safety management controls and usually
higher than average accident rates.
(f) Parts of the FMCSRs and the HMRs having similar
characteristics are combined together into six regulatory areas
called ``factors.'' The regulatory factors, evaluated on the basis
of the adequacy of the carrier's safety management controls, are:
1. Factor 1--General: Parts 387 and 390;
2. Factor 2--Driver: Parts 382, 383 and 391;
3. Factor 3--Operational: Parts 392 and 395;
4. Factor 4--Vehicle: Part 393, 396 and inspection data for the
last 12 months;
5. Factor 5--Hazardous Materials: Parts 171, 177, 180 and 397;
and
6. Factor 6--Accident: Recordable Accident Rate per Million
Miles.
(g) For each instance of noncompliance with an acute regulation,
1.5 points will be assessed.
(h) For each instance of noncompliance with a critical
regulation, 1 point will be assessed.

[[Page 12774]]

A. Vehicle Factor

(a) When at least three vehicle inspections are recorded in the
Motor Carrier Management Information System (MCMIS) during the
twelve months before the safety audit or performed at the time of
the review, the Vehicle Factor (Part 396) will be evaluated on the
basis of the Out-of-Service (OOS) rates and noncompliance with acute
and critical regulations. The results of the review of the OOS rate
will affect the Vehicle Factor as follows:
1. If the motor carrier has had at least three roadside
inspections in the twelve months before the safety audit, and the
vehicle OOS rate is 34 percent or higher, one point will be assessed
against the carrier. That point will be added to any other points
assessed for discovered noncompliance with acute and critical
regulations of part 396 to determine the carrier's level of safety
management control for that factor; and
2. If the motor carrier's vehicle OOS rate is less than 34
percent, or if there are less than three inspections, the
determination of the carrier's level of safety management controls
will only be based on discovered noncompliance with the acute and
critical regulations of part 396.
(b) Over two million inspections occur on the roadside each
year. This vehicle inspection information is retained in the MCMIS
and is integral to evaluating motor carriers' ability to
successfully maintain their vehicles, thus preventing them from
being placed OOS during roadside inspections. Each safety audit will
continue to have the requirements of part 396, Inspection, Repair,
and Maintenance, reviewed as indicated by the above explanation.

B. The Accident Factor

(a) In addition to the five regulatory factors, a sixth factor
is included in the process to address the accident history of the
motor carrier. This factor is the recordable accident rate, which
the carrier has experienced during the past 12 months. Recordable
accident, as defined in 49 CFR 390.5, means an accident involving a
commercial motor vehicle operating on a public road in interstate or
intrastate commerce which results in a fatality; a bodily injury to
a person who, as a result of the injury, immediately receives
medical treatment away from the scene of the accident; or one or
more motor vehicles incurring disabling damage as a result of the
accident requiring the motor vehicle to be transported away from the
scene by a tow truck or other motor vehicle.
(b) Experience has shown that urban carriers, those motor
carriers operating entirely within a radius of less than 100 air
miles (normally urban areas), have a higher exposure to accident
situations because of their environment and normally have higher
accident rates.
(c) The recordable accident rate will be used in determining the
carrier's basic safety management controls in Factor 6, Accident. It
will be used only when a carrier incurs two or more recordable
accidents within the 12 months before the safety audit. An urban
carrier (a carrier operating entirely within a radius of 100 air
miles) with a recordable rate per million miles greater than 1.7
will be deemed to have inadequate basic safety management controls
for the accident factor. All other carriers with a recordable
accident rate per million miles greater than 1.5 will be deemed to
have inadequate basic safety management controls for the accident
factor. The rates are the result of roughly doubling the national
average accident rate in Fiscal Years 1994, 1995, and 1996.
(d) The FMCSA will continue to consider preventability when a
new entrant contests the evaluation of the accident factor by
presenting compelling evidence that the recordable rate is not a
fair means of evaluating its accident factor. Preventability will be
determined according to the following standard: ``If a driver, who
exercises normal judgment and foresight, could have foreseen the
possibility of the accident that in fact occurred, and avoided it by
taking steps within his/her control which would not have risked
causing another kind of mishap, the accident was preventable.''

C. Factor Ratings

For Factors 1 through 5, if the combined violations of acute and
or critical regulations for each factor is equal to three or more
points, the carrier is determined not to have basic safety
management controls for that individual factor.
If the recordable accident rate is greater than 1.7 recordable
accidents per million miles for an urban carrier (1.5 for all other
carriers), the carrier is determined to have inadequate basic safety
management controls.

IV. Overall Determination of the Carrier's Basic Safety Management
Controls

If the carrier is evaluated as having inadequate basic safety
management controls in at least three separate factors, the carrier
will be considered to have inadequate safety management controls in
place and corrective action will be necessary in order to avoid
having its provisional operating authority or provisional
Certificate of Registration revoked.
For example, FMCSA evaluates a carrier finding:
(1) One instance of noncompliance with a critical regulation in
part 387 scoring one point for Factor 1;
(2) Two instances of noncompliance with acute regulations in
part 382 scoring three points for Factor 2;
(3) Three instances of noncompliance with critical regulations
in part 396 scoring three points for Factor 4; and
(4) Three instances of noncompliance with acute regulations in
parts 171 and 397 scoring four and one-half (4.5) points for Factor
5.
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 require corrective action in order to avoid having the
carrier's provisional operating authority or provisional Certificate
of Registration suspended and possibly revoked.

Issued on: March 7, 2002.
Joseph M. Clapp,
Administrator.
[FR Doc. 02-5892 Filed 3-14-02; 8:45 am]
BILLING CODE 4910-EX-P