Federal Register / Vol. 66, No. 86 / Thursday, May 3, 2001 / Proposed Rules 22415

Issued on: April 27, 2001.

Brian M. McLaughlin,

Associate Administrator for Policy and

Program Development.

[FR Doc. 01–11035 Filed 5–1–01; 8:45 am]

BILLING CODE 4910–22–C

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 selfaddressed, 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 StatesMexico 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.

22416 Federal Register / Vol. 66, No. 86 / Thursday, May 3, 2001 / Proposed Rules

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 Outof-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.

Federal Register / Vol. 66, No. 86 / Thursday, May 3, 2001 / Proposed Rules 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 § 385.21 describes the safety

oversight program for Mexicandomiciled 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 §§ 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 § 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 Mexicandomiciled 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

22418 Federal Register / Vol. 66, No. 86 / Thursday, May 3, 2001 / Proposed Rules

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 Mexicandomiciled 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

Federal Register / Vol. 66, No. 86 / Thursday, May 3, 2001 / Proposed Rules 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 §§ 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

§ 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 § 385.23

will result in the suspension of the

carrier’s operating authority until the

documents are produced.

§ 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 Outof-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.

§ 385.25 Suspension and revocation of

Mexican carrier registration.

(a) If a safety review conducted under

§ 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

§ 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.

§ 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.

§ 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

22420 Federal Register / Vol. 66, No. 86 / Thursday, May 3, 2001 / Proposed Rules

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 § 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 § 385.25(b).

§ 385.31 Applicability of safety fitness and

enforcement procedures.

At all times during which a Mexicandomiciled 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