[Federal Register: May 3, 2001 (Volume 66, Number 86)]
[Proposed Rules]
[Page 22415-22420]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03my01-20]
-----------------------------------------------------------------------
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 Mexican
Motor Carriers Operating in the United States
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), (DOT).
ACTION: Notice of proposed rulemaking (NPRM); request for comments.
-----------------------------------------------------------------------
SUMMARY: The FMCSA proposes to implement a safety monitoring system and
compliance initiative to help determine whether Mexican-domiciled
carriers conducting operations anywhere in the United States comply
with applicable safety regulations and conduct safe operations. This
NPRM would revise the safety fitness regulations at 49 CFR part 385 to
implement a safety oversight program designed to evaluate the safety
fitness of Mexican carriers within 18 months after receiving
conditional authority to operate in the United States. This proposal is
necessary to implement the entry provisions of the North American Free
Trade Agreement (NAFTA).
DATES: We must receive your comments by July 2, 2001.
ADDRESSES: You can mail, fax, hand deliver or electronically submit
written comments to the Docket Management Facility, U.S. 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://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://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.
FOR FURTHER INFORMATION CONTACT: Valerie Height, (202) 366-1790,
Federal Motor Carrier Safety Administration, 400 7th Street, SW.,
Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m.,
e.t., Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION: Comments received after the comment closing
date will be included in the docket and we will consider late comments
to the extent practicable. The FMCSA may, however, issue a final rule
at any time after the close of the comment period.
Background
Under the Bus Regulatory Reform Act of 1982 (Public Law No. 97-261,
96 Stat. 1103), Congress imposed a two-year moratorium on the former
Interstate Commerce Commission's (ICC) issuance of new grants of U.S.
operating authority to motor carriers domiciled in a foreign country,
or owned or controlled by persons of a foreign country. The legislation
authorized the President to remove or modify the moratorium upon a
determination that such action was in the national interest. As a
result of legislative and executive extensions, Mexican carriers have
been subject to this moratorium since 1982. Since that time, most
Mexican motor carriers of property seeking to initiate operations in
the United States have been restricted to operating in the
municipalities in the United States on the United States-Mexico border
or within the commercial zones of such municipalities. Additional
information on the implementation of NAFTA is set out in the preamble
to the NPRM entitled Application by Certain Mexican Motor Carriers to
Operate Beyond U.S. Municipalities and Commercial Zones on the U.S.-
Mexico Border, which addresses revisions to the part 365 application
process and the OP-1(MX) application form and is published elsewhere in
today's Federal Register. As we discussed in the NPRM addressing part
365, commercial motor vehicle safety in the United States is regulated
under a comprehensive system of regulations designed to ensure that
drivers are medically qualified; meet applicable licensing standards;
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; and do not operate vehicles while impaired by
drugs or alcohol or excessive fatigue. Our regulations also require
carriers to equip every commercial motor vehicle with certain standard
safety-related equipment and that vehicles be regularly inspected and
maintained to ensure that they remain in safe operating condition.
These regulatory requirements are enforced through roadside inspections
and on-site compliance reviews. Roadside inspections focus on
potentially unsafe vehicle and driver violations that may pose a threat
to public safety unless the vehicle or driver is placed out of service.
A compliance review comprises an examination of carrier records
(including driver logbooks and drug and alcohol testing information),
roadside vehicle inspection data, accident records and other safety
related information to determine whether a motor carrier meets safety
fitness standards as defined in the Federal Motor Carrier Safety
Regulations (FMCSRs) and Hazardous Materials Regulations.
The U.S. DOT has consulted extensively with Mexican transportation
officials in their efforts to strengthen Mexican vehicle safety
regulations, and significant progress has been made in this area.
Mexico has agreed to utilize the Commercial Vehicle Safety Alliance
(CVSA) out-of-service criteria and has issued final regulations based
on these criteria. These standards cannot be fully effective unless
complemented by an adequate safety oversight program, including
systematic roadside inspections, to ensure compliance with and
enforcement of the criteria. U.S. DOT officials have worked extensively
with Mexican transportation officials, but Mexico has not yet completed
implementation of a comprehensive safety inspection program.
With the exception of the border commercial zone drayage
operations, most Mexican carriers have little or no experience
operating under regulations comparable to the FMCSRs. Accordingly, the
FMCSA must be prepared to evaluate the safety fitness of motor carriers
having no experience operating under our comprehensive system of safety
regulations.
Proposed Safety Oversight Program
In this NPRM, the FMCSA proposes a safety oversight program to
address U.S.
[[Page 22416]]
concerns about Mexican motor carrier safety. The initial stage of this
program would entail review of safety information submitted by Mexican
motor carriers when applying for authority under 49 CFR part 365 or
registering under 49 CFR part 368 to operate within the U.S.
municipalities and commercial zones along the U.S.-Mexico border. The
FMCSA proposes to amend Form OP-2 (Application for Mexican Certificate
of Registration for Foreign Motor Carriers and Foreign Private Carriers
Under 49 U.S.C. 13902) and Form OP-1(MX) (Application to Register
Mexican Carriers for Motor Carrier Authority Under the North American
Free Trade Agreement (NAFTA)) to require additional safety related
information and certifications of compliance. Mexican carriers would be
required to submit, concurrently with the application, completed copies
of the Form BOC-3 (Designation of Agents--Motor Carriers, Brokers and
Freight Forwarders) and Form MCS-150 (Motor Carrier Identification
Report, Application for U.S. DOT Number). These proposals are discussed
in two notices published elsewhere in today's Federal Register. The
requirement to submit a completed Form MCS-150 with the application
would ensure that the Mexican carrier obtains a U.S. DOT number and is
placed in the FMCSA safety system before it begins operations in the
United States.
The FMCSA will conduct workshops and also provide written material,
such as handbooks, to help the Mexican applicants understand the
various regulatory requirements and the proper way to complete the
applications. Once Mexican-domiciled carriers commence operations
within the United States, they would be subject to intensified roadside
monitoring through the vehicle inspection process. Data generated as a
result of these inspections would be evaluated frequently to identify
carriers with serious safety problems that warrant immediate attention.
We propose to require that, as a condition of registration, all Mexican
new entrant carriers undergo at least one satisfactory safety review
within 18 months after receiving authority to operate within the United
States. The proposed safety review is designed to enable the FMCSA to
identify any Mexican carriers that may be conducting unsafe operations
or that may lack the basic safety management controls necessary to
ensure protection of the public safety.
Registrations issued to Mexican carriers under 49 CFR parts 365 and
368 would be expressly conditioned upon the carrier successfully
completing the safety oversight program. The safety review component of
the program would evaluate a Mexican carrier's safety performance and
basic safety management controls by reviewing performance-based safety
information in the FMCSA's Motor Carrier Management Information System
(MCMIS) and documents required to be maintained by motor carriers under
the Federal Motor Carrier Safety Regulations, including records related
to driver medical qualifications, driver hours of service, drug and
alcohol testing and vehicle inspection, maintenance and repair.
Specific procedures for the safety review, including the necessary
documentation to be made available for review, are still being
developed and would be provided to carriers when they get approval to
operate. We also contemplate that the safety review process would be
further refined as the result of a future rulemaking proceeding
implementing a safety review requirement for all new entrant motor
carriers under section 210 of the Motor Carrier Safety Improvement Act
of 1999 (MCSIA) (Pub. L. 106-159, 113 Stat. 1748).
We also propose that the safety reviews be conducted either by
reviewing records at the carrier's business premises or by requesting
that Mexican carriers bring designated records to alternative
locations, such as border inspection facilities. If the safety review
determines that the carrier does not satisfactorily exercise basic
safety management controls, its registration would be suspended. The
carrier would then be required to submit a plan for corrective action
within a specified time frame. Upon receipt of the corrective action
plan, the FMCSA would promptly conduct a targeted follow-up safety
review, if necessary, to determine whether the deficiencies have been
corrected. If the carrier satisfactorily corrects the problem(s), the
suspension would be lifted and the carrier would be allowed to resume
operating within the United States. If the carrier fails to submit a
corrective action plan, or if the follow-up safety review determines
that the carrier has not satisfactorily corrected the problem, the
carrier's registration would be revoked in accordance with the
condition of its issuance.
The FMCSA proposes to take expedited action if a Mexican carrier
engages in conduct that poses a potentially serious threat to public
safety. Such conduct would include:
(1) Using drivers not possessing, or operating without, a valid
Licencia Federal de Conductor (LFC) or Commercial Driver's License
(CDL). A non-valid LFC or CDL would include one that is falsified,
revoked, expired, or without a Hazardous Materials endorsement, when
required.
(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 required
repairs.
(3) Being involved in, due to carrier act or omission, a hazardous
materials incident within the United States involving a highway route
controlled quantity of any of the following, as defined in 49 CFR
173.403, 173.50, 173.115, 173.132, and 173.133:
(a) a Class 7 (radioactive) material,
(b) a Class 1, Division 1.1, 1.2, or 1.3 explosive, or
(c) a poison inhalation Hazard Zone A or B material.
(4) Being involved 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 above and defined in 49 CFR
chapter I.
(5) Using a driver who tests positive for drugs or alcohol or who
refuses to submit to required drug or alcohol tests.
(6) Operating within the United States a motor vehicle that is not
insured as required by 49 CFR part 387.
(7) Having an aggregate operations out of service rate of 50
percent based upon three inspections occurring within a consecutive 90-
day period.
The FMCSA believes that these violations pose the greatest threat
to public safety and raise serious questions about a carrier's
willingness and ability to conduct safe operations. FMCSA would take
expedited action either by issuing a deficiency letter requesting a
written response demonstrating that appropriate corrective action has
been taken or scheduling an expedited safety review. Failure to respond
to the deficiency letter or undergo the expedited safety review would
result in the suspension of the carrier's registration. Checking for
these activities would require our State partners to expand the scope
of the roadside inspection and to collect additional safety data.
The Mexican carrier applicants would remain subject to this
oversight program for the entire 18-month initial operations period,
even if they demonstrate compliance with our regulations by undergoing
a satisfactory safety review before the expiration of the period. If a
carrier has not undergone a safety review within 18 months of receiving
authority to operate in the United States, it would retain its
conditional registration status until a satisfactory safety review is
conducted.
[[Page 22417]]
The carrier would also remain within the safety oversight program for
more than 18 months if it received an unsatisfactory safety review
within 18 months but needed additional time beyond the 18-month period
to demonstrate that necessary corrective action was taken.
This proposal is consistent with the new motor carrier entrant
requirements under section 210(a) of the MCSIA, which, among other
things, directs the Secretary of Transportation to require each owner
and each operator granted new operating authority to undergo a safety
review within the first 18 months after beginning operations under that
authority.
Under one of the companion NPRMs appearing in today's Federal
Register, Revision of Regulations and Application Form for Mexican-
Domiciled Motor Carriers to Operate in U.S. Municipalities and
Commercial Zones on the U.S.-Mexico Border, Mexican carriers currently
operating in the U.S. border commercial zones under Certificates of
Registration would be required to re-register by submitting revised
application forms with expanded carrier safety assessment information,
even if not changing the scope of their existing operations. These
carriers would also be subject to the safety monitoring system proposed
in this NPRM.
Finally, we wish to emphasize that the safety oversight program is
intended to supplement, not replace, the regular safety fitness
compliance and enforcement procedures applicable to all motor carriers
within our jurisdiction.
Section-By-Section Analysis
Proposed Sec. 385.21 describes the safety oversight program for
Mexican-domiciled carriers and its components, including the safety
review. The proposed safety review could be conducted at a designated
location in the United States. Failure to provide the necessary
documentation in connection with a safety review may result in the
suspension of the carrier's registration until the documents are
produced.
Section 385.23 would identify seven categories of serious safety
violations which, when identified through roadside inspections or other
means, would cause the FMCSA to take expedited action. Expedited action
could take the form of a safety review or the issuance of a deficiency
letter requesting proof of corrective action for the violations
identified in the roadside inspection. Failure to submit an adequate
written response to the deficiency letter would result in suspension of
the carrier's authority until the carrier makes the required showing of
corrective action.
Section 385.25 would provide for the suspension of a Mexican
carrier's registration if the safety review determines that it does not
exercise basic safety management controls necessary to ensure safe
operations. If the carrier then fails to take necessary corrective
action, either by failing to submit a corrective action plan or by
submitting an inadequate plan, the carrier's registration could be
revoked after notice and an opportunity for a proceeding. This section
would clarify that the carrier would also be subject to the suspension
and revocation provisions of 49 U.S.C. 13905 for repetitive violations
of DOT regulations governing its operations.
Section 385.27 would establish a procedure for administrative
review if a Mexican-domiciled carrier believes a suspension under
Secs. 385.23 and 385.25 is unwarranted. The request for review would be
submitted to the Chief Safety Officer, who would be required to
complete the review within 10 days after the carrier submits its
request.
Section 385.29 would set forth that a Mexican-domiciled carrier
would remain in the safety oversight program for 18 months after
issuance of its conditional registration or Certificate of
Registration. At the end of 18 months, the carrier's authority would
become permanent, provided its most recent safety review was
satisfactory. If the carrier has not undergone a safety review during
the 18-month period, the carrier would remain in the program until a
safety review is conducted. If a carrier's registration is under
suspension at the end of the 18-month period, it would remain in the
safety oversight program until it took the necessary corrective action
or its registration was revoked under Sec. 385.25 (b).
Section 385.31 would clarify that Mexican-domiciled carriers are
subject to the general safety fitness procedures of subpart A of part
385 during the time they are in the safety oversight program.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and Department
of Transportation 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).
The Office of Management and Budget has reviewed this document. This
proposal is based upon existing statutory authority and serves to a
large extent as notice to the affected carriers of procedures that
would be used to enforce the Federal Motor Carrier Safety Regulations.
The anticipated economic impact of this rulemaking would be minimal for
carriers that do not violate applicable safety regulations while
operating in the United States. No additional requirements would be
imposed on carriers that conduct lawful operations in compliance with
these regulations.
Nevertheless, the subject of safe operations by Mexican carriers in
the United States will likely generate considerable public interest
within the meaning of Executive Order 12866. The manner in which the
FMCSA carries out its safety oversight responsibilities with respect to
this international motor carrier transportation may be of substantial
interest to the domestic motor carrier industry, the Congress, and the
public at large. A regulatory evaluation was completed for the three
companion NPRMs (published elsewhere in today's Federal Register) that
implement the NAFTA entry provisions and our proposed safety monitoring
system for Mexican-domiciled carriers conducting operations in the
United States. This evaluation concluded that anywhere between (high
estimate), to 10,000 (medium estimate) to 5,000 (low estimate) Mexican
carriers would file for authority in the first year after the
moratorium is lifted. The FMCSA estimates that in the first year (in
the high estimate scenario), only 3,200 of these carriers would be new
applicants, dropping to 2,500 in subsequent years. In the medium or low
estimate scenarios, only 500 of the first-year applicants would be new,
dropping to 200 in subsequent years. This is because most of the 15,000
to 5,000 Mexican carriers already are operating in the United States.
Please refer to the Regulatory Evaluation for a detailed discussion on
how these estimates were derived. A copy of the Regulatory Evaluation
is in the docket.
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 (Public Law 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
[[Page 22418]]
on a substantial number of small entities.
The FMCSA is issuing this document because of the planned
implementation of the NAFTA's motor carrier access provisions. A NAFTA
dispute resolution tribunal recently ruled that the United States
violated NAFTA by failing to allow Mexican carriers greater access to
the United States.
Mexican carriers would be subject to the same safety regulations as
domestic carriers when operating in the United States. The objective of
this proposal, in conjunction with the two companion NPRMs published
elsewhere in today's Federal Register, is to help determine the
capability of Mexican carriers to operate safely in the United States.
This proposal describes a safety oversight program applicable to
Mexican-domiciled carriers for the 18-month period beginning at the
time they receive authority to operate in the United States.
A review of the MCMIS census file reveals that the vast majority of
Mexican carriers are small. For Mexican carriers with any trucks, the
mean number of trucks was 5.1. That mean was pulled up by a small
number of large carriers. Seventy-five (75) percent of Mexican carriers
had three or fewer trucks, and the 95th percentile carrier had only 15
trucks. These proposals should not have any impact on small U.S.-based
motor carriers.
The FMCSA cannot exempt small carriers from these proposals without
seriously diminishing the agency's ability to ensure the safe
operations of Mexican carriers. The majority of Mexican carriers
operating in the U.S. would be small; exempting them would have the
same impact as not issuing these proposals. The safety oversight plan
simply places Mexican carriers on notice concerning the manner in which
the FMCSA would be enforcing compliance with the FMCSRs. Therefore,
FMCSA certifies that this proposed rule would 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.
Under this proposal, State law enforcement personnel in the four
border States currently performing roadside inspections under the Motor
Carrier Safety Assistance Program (MCSAP) will target for inspection
Mexican carriers whose operations within the United States were
previously limited to U.S. municipalities and commercial zones along
the U.S.-Mexico border. Although the number of carriers subject to
inspection will increase as a result of liberalized entry into the
United States, additional Federal funds have been earmarked for
increased inspection activity in the border States. The FMCSA has
determined that the changes proposed in this rulemaking would not
result in the expenditure by State, local, and tribal governments, in
the aggregate, or by the private sector, of $100 million or more in any
one year.
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
We have analyzed this action under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This proposed rule is not an economically significant rule and
does not concern an environmental risk to health or safety that may
disproportionately affect children.
Executive Order 12630 (Taking of Private Property)
This proposed 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)
This proposed 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). Consultation with States
is not required when a rule is required by statute. The FMCSA, however,
has determined that this action would not have significant Federalism
implications or limit the policy making discretion of the States.
Comments on this conclusion are welcome and should be submitted to the
docket.
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) [49 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. The FMCSA has determined that this
proposed regulation does not constitute an information collection with
the scope or meaning of the PRA.
The 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 Mexican
carriers that comply with the FMCSRs. Any safety data that the 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, the FMCSA has determined that this proposed action would
not affect any requirements under the PRA.
National Environmental Policy Act
The agency has analyzed this proposal under of the National
Environmental Policy Act of 1969 as amended [42 U.S.C. 4321 et seq.]
and has determined under DOT Order 5610.1C (September 18, 1979) that
the proposed action does not require any environmental assessment. An
environmental impact statement is, therefore, not required.
List of Subjects
49 CFR Part 385
Highway Safety, Highways and roads, Motor carriers, Motor vehicle
safety, and Safety fitness procedures.
For the reasons stated in the preamble, the FMCSA proposes to
[[Page 22419]]
amend 49 CFR part 385 as set forth below:
PART 385--SAFETY FITNESS PROCEDURES
1. The authority citation for part 385 is revised to read as
follows:
Authority: 49 U.S.C. 104, 504, 521(b)(5)(A), 5113, 13901-13905,
31136, 31144, 31502, 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. 385.21
through 385.31 to read as follows:
Subpart B--Safety Monitoring System for Mexican Carriers
Sec.
385.21 Safety oversight program.
385.23 Expedited action.
385.25 Suspension and revocation of Mexican carrier registration.
385.27 Administrative review.
385.29 Duration of enhanced safety oversight program.
385.31 Applicability of safety fitness and enforcement procedures.
Subpart B--Safety Monitoring System for Mexican Carriers
Sec. 385.21 Safety oversight program.
(a) Mexican-domiciled carriers issued registrations pursuant to 49
CFR part 365 subpart E or certificates of registration pursuant to 49
CFR part 368 are subject to a safety fitness oversight program to help
determine that they comply with applicable Federal Motor Carrier Safety
Regulations, Motor Vehicle Safety Standards, and Hazardous Materials
Regulations and conduct safe operations. This program includes
intensified monitoring through frequent roadside inspections and an
evaluation of the carrier's compliance with the applicable safety
regulations through a safety review conducted within 18 months after
the carrier is issued a new registration or Certificate of
Registration.
(b) The safety review under this section may be conducted either at
the carrier's business premises or at an alternative location in the
United States designated by the FMCSA. When the safety review is
conducted in the United States, the carrier must make available for
inspection at the designated location all records determined to be
necessary to adequately evaluate the carrier's compliance with the
applicable regulations.
(c) Failure to provide necessary documents upon reasonable request
in connection with a safety review conducted under this section or
Sec. 385.23 will result in the suspension of the carrier's operating
authority until the documents are produced.
Sec. 385.23 Expedited action.
(a) A Mexican motor carrier committing any of the following
violations identified through roadside inspections, or by any other
means, may be subjected to an expedited safety review or issued a
deficiency letter identifying the violations and directing the carrier
to submit a written response demonstrating corrective action:
(1) Using drivers not possessing, or operating without, a valid
Licencia Federal de Conductor (LFC) or Commercial Driver's License
(CDL). A non-valid LFC or CDL includes one that is falsified, revoked,
expired, or without a Hazardous Materials endorsement, when required.
(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 a highway route
controlled quantity of any of the following, as defined in 49 CFR
173.403, 173.50, 173.115, 173.132, and 173.133:
(i) A Class 7 (radioactive) material,
(ii) A Class 1, Division 1.1, 1.2, or 1.3 explosive, or
(iii) A poison inhalation Hazard Zone A or B material.
(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 49 CFR chapter I.
(5) Using a driver who tests positive for drugs or alcohol or who
refuses to submit to required drug or alcohol tests.
(6) Operating within the United States a motor vehicle that is not
insured as required by 49 CFR part 387.
(7) Having an aggregate operations out of service rate of 50
percent based upon three inspections occurring within a consecutive 90-
day period.
(b) Failure to respond to the deficiency letter by submitting a
written response demonstrating corrective action will result in the
suspension of the carrier's registration until the required showing of
corrective action is submitted to the FMCSA.
Sec. 385.25 Suspension and revocation of Mexican carrier registration.
(a) If a safety review conducted under Sec. 385.21 determines that
a Mexican carrier does not exercise the basic safety management
controls necessary to ensure safe operations, the carrier's
registration will be suspended until the FMCSA determines that the
carrier has taken appropriate corrective action necessary to remedy the
violations discovered in the safety review.
(b) If a safety review conducted under Sec. 385.21 determines that
a Mexican carrier does not exercise the basic safety management
controls necessary to ensure safe operations, and the carrier fails to
take necessary corrective action as directed by the FMCSA, or fails to
submit a plan for taking necessary corrective action, the carrier's
registration may be revoked after notice and an opportunity for a
proceeding.
(c) If a carrier operates in violation of a suspension order issued
under this subpart, its registration may be revoked after notice and an
opportunity for a proceeding.
(d) Notwithstanding any provision of this subpart, a Mexican
carrier is subject to the suspension and revocation provisions of 49
U.S.C. 13905 for repeated violations of DOT regulations governing its
motor carrier regulations.
Sec. 385.27 Administrative review
(a) A Mexican-domiciled motor carrier may request the FMCSA to
conduct an administrative review if it believes the FMCSA has committed
an error in suspending the carrier's registration under this subpart.
(b) The motor carrier's request must explain the error it believes
the FMCSA committed in suspending its registration and include any
information or documents that support its argument.
(c) The motor carrier must submit its request in writing to the
Chief Safety Officer, Federal Motor Carrier Safety Administration, 400
Seventh Street, SW., Washington, DC 20590.
(d) Administrative review shall occur no later than 10 days after
the carrier submits its request for review.
Sec. 385.29 Duration of enhanced safety oversight program.
(a) Mexican-domiciled carriers subject to this subpart will remain
in the enhanced safety oversight program for 18 months from the date
their conditional registration or Certificate of Registration is
issued, 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 review was satisfactory and no additional actions are
pending under this subpart, the carrier's conditional registration or
Certificate of Registration will become permanent.
(c) If, at the end of this 18-month period, the carrier has not
undergone a
[[Page 22420]]
safety review, it will remain in the enhanced safety oversight program
until a safety review is conducted. If the results of this safety
review are satisfactory, the carrier's conditional registration or
Certificate of Registration will become permanent.
(d) If, at the end of this 18-month period, the carrier's
registration is suspended under Sec. 385.25 (a), the carrier will
remain in the enhanced safety oversight program until the FMCSA either:
(1) Determines that the carrier has taken corrective action; or
(2) Completes measures to revoke the carrier's authority under
Sec. 385.25(b).
Sec. 385.31 Applicability of safety fitness and enforcement
procedures.
At all times during which a Mexican-domiciled motor carrier is
subject to the enhanced safety oversight program 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.
Issued on: April 27, 2001.
Brian M. McLaughlin,
Associate Administrator for Policy and Program Development.
[FR Doc. 01-11036 Filed 5-1-01; 8:45 am]
BILLING CODE 4910-22-P