Cabotage and Other Prohibitions

Prohibition Against Point-to-Point Transportation Services Within the U.S. (Cabotage Rules)

Section 365.501(b) requires that ‘‘a Mexico-domiciled carrier may not provide point-to-point transportation services, including express delivery services, within the United States for goods other than international cargo.’’

The transportation of domestic freight between points in the United States is known as ‘‘cabotage.’’

The provisional operating authority granted to a Mexican domiciled motor carrier to operate beyond the

commercial zone is limited to the transportation of international freight.

Therefore, a carrier providing point-to-point transportation services in the U.S. is operating beyond the scope of its operating authority and is in violation of 49 CFR 392.9a(a). Commercial vehicles found to be operating beyond the scope of the carrier’s provisional operating authority will be placed out of service, and the motor carrier may be subject to penalties.

The FMCSA has trained all State truck inspectors in the enforcement of operating authority restrictions and conducted significant outreach to the law enforcement community to ensure they are aware of these provisions and that they will examine MX trucks to determine if they are violating these restrictions. Additionally, we have and will continue to provide training to State and local law enforcement agencies on conducting roadside vehicle/driver traffic stops and detecting cabotage violations during stops of commercial motor vehicles for traffic violations. This training, aimed at law

enforcement agents who are not full-time truck inspectors, but may encounter a Mexican truck during a

traffic stop, is being conducted in association with the International Association of Chiefs of Police.

The FMCSA’s training on enforcement of operating authority has been successful. In 2006 the Southern border States (California, Arizona, New

Mexico, and Texas) discovered 2,328 instances (from 951,229 inspections) where a Mexico-domiciled carrier was found to be operating outside the scope of its operating authority. While these carriers may have been operating outside the scope of their authority for reasons other than cabotage (i.e.,operating beyond the commercial zones or having not received authority), this data shows State and Federal

enforcement personnel are enforcing this regulation.

The Agency will also use records like logbooks and associated supporting documents, such as bills of lading, during compliance reviews to determine if a Mexican carrier has operated beyond the scope of its authority by engaging in cabotage.

Specific Standards to be Used toEvaluate the Pilot Program

The Secretary has appointed a panel of three transportation experts to assess the safety performance of Mexico domiciled carriers operating beyond the border commercial zone in the United States.

The team is

Mortimer L. DowneyIII, former Deputy Secretary of Transportation,

Kenneth M. Mead, former DOT Inspector General, and

James T. Kolbe, former U.S. Congressman from Arizona.

The FMCSA has entered into a Memorandum of Understanding (MOU) with the Research and Innovative Technology Administration’s Transportation Safety Institute (TSI) to provide independent management of the project.

The evaluation will provide an assessment of whether the safety performance of Mexico-domiciled

carriers operating beyond the border commercial zone in the U.S. differs from the performance exhibited by U.S.-domiciled carriers. Specifically, the evaluation will focus on answering the

following five key safety questions:

• Are the available crash data for Mexico-domiciled carriers participating in the project statistically different from comparable U.S.-domiciled carriers?

• Do Mexico-licensed commercial drivers pose a greater risk to the traveling public than U.S. CDL holders in terms of demonstrated unsafe driving practices, such as speeding, improper lane changes, controlled substances use/ alcohol misuse?

• Are the trucks operated by Mexico domiciled motor carriers maintained at levels similar to those of U.S.-domiciled carriers, or do they have higher out-of-service rates?

• In the course of conducting PASAs, did FMCSA detect violations of the 11 critical safety regulations in any greater proportion than found in new entrant audits of U.S.-domiciled carriers?

• What other safety problems are being experienced by enforcement personnel and others in the course of implementing the demonstration project?

Crash Rate (Recordable Crashes Per Million Miles)

Consistent with the New Entrant Safety Assurance Process, the evaluation will consider whether the

crash rate of a participating carrier is indicative of a carrier with inadequate basic safety management controls.

Driver Behavior (Violations for Unsafe Driving Practices)

The evaluation will assess the number of moving violations, such as excessive speed and unsafe lane changes, and for violations of regulations relating to licenses, hours of service, and controlled substances use/alcohol misuse, compared to the national average for U.S.-domiciled driver.

Violation/Driver Safety Compliance (Number of Out-of-Service Orders)

The evaluation will assess the number of times a motor carrier’s drivers or vehicles are placed out of service for violations of the FMCSRs or compatible State laws and regulations, compared to the average for U.S. carriers.

Carrier Safety Compliance (Number of Pre-Authorization Safety Audit Violations)

Using carrier PASA data, the evaluation will assess the number of carriers that had violations of 11 critical safety regulations, compared to the average found for U.S. carriers. The FMCSA has determined that a violation of any of the following 11 critical regulations is so significant that it merits failure of the safety audit:

1. Failing to implement an alcohol and/or controlled substances testing program.

2. Using a driver who has refused to submit to an alcohol or controlled substances test required under 49 CFR part 382.

3. Using a driver known to have tested positive for a controlled substance.

4. Knowingly allowing, requiring, permitting, or authorizing an employee with a CDL which is suspended, revoked, or canceled by a State or who is disqualified to operate a commercial motor vehicle.

5. Knowingly allowing, requiring, permitting, or authorizing a driver to operate a commercial motor vehicle while the driver is disqualified.

6. Operating a commercial motor vehicle without having in effect the required minimum levels of financial responsibility.

7. Using a disqualified driver.

8. Using a physically unqualified driver.

9. Failing to require a driver to make a record of duty status.

10. Requiring or permitting the operation of a commercial motor vehicle declared ‘‘out of service’’ before repairs are made.

11.Using a commercial motor vehicle that has not been periodically inspected

Carrier Safety Compliance (Number of Post-Authorization Safety Audit Violations)

The evaluation will consider the number of violations of critical safety regulations found when a safety audit is triggered by operating violations, compared to the average found for U.S. carriers. Following the PASA, few carriers are expected to be cited for violations. However, under 49 CFR 385.105, violations of six regulations, identified through roadside inspections or any other established means, may subject the Mexico-domiciled carrier to an expedited safety audit, compliance review, or submission of evidence of correcting the deficiency.

The six violations include:

1. Using a driver without a valid license.

2. Using a vehicle that has been placed out of service without completing the required repairs.

3.Involvement in, due to an act or omission of the carrier, a hazardous materials incident within the U.S.

4.Using a driver who tests positive for controlled substances or alcohol or refuses to submit to required tests.

5.Operating in the U.S. without the required minimum levels of financial responsibility.

6.Having a driver or vehicle out-of-service rate of 50 percent or more, based on at least three inspections occurring within a 90 consecutive-day period.