[Federal Register Volume 66, Number 86 (Thursday, May 3, 2001)]
[Proposed Rules]
[Pages 22415-22420]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-11036]


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

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