[Federal Register Volume 59, Number 6 (Monday, January 10, 1994)]
[Notices]
[Pages 1406-1407]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-503]
[[Page Unknown]]
[Federal Register: January 10, 1994]
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INTERSTATE COMMERCE COMMISSION
[Ex Parte No. 55 (Sub-No. 93)]
Passenger Operations by Mexican Motor Carriers--Implementation of
North American Free Trade Agreement
AGENCY: Interstate Commerce Commission.
ACTION: Notice of policy statement.
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SUMMARY: The purpose of this Notice is to announce implementation of
the provisions of the first phase of the North American Free Trade
Agreement (NAFTA) relating to land transportation. Effective January 1,
1994, the Commission will accept and process applications by Mexican
passenger carriers for operating authority to provide charter and tour
bus service across the United States-Mexico International Border line
into the United States.
DATES: The policy announced here will apply to applications filed on or
after January 1, 1994. Comments must be filed by January 18, 1994.
ADDRESSES: Send comments referring to Ex Parte No. 55 (Sub-No. 93) to:
Office of the Secretary, Case Control Branch, Interstate Commerce
Commission, Washington, DC 20423.
FOR FURTHER INFORMATION CONTACT: Joseph B. O'Malley (202) 927-6292, or
Richard B. Felder (202) 927-5610. [TDD for hearing impaired: (202) 927-
5721.]
SUPPLEMENTARY INFORMATION: Section 6 of the Bus Regulatory Reform Act
of 1982 (codified at 49 U.S.C. 10922(l)) imposed a 2-year moratorium
(subject to renewal) on the Commission's issuance of new grants of
operating authority to motor carriers domiciled in or owned or
controlled by persons of Mexico or Canada. Under this statute, the
President has the authority to remove or modify the moratorium if he
determines it to be in the national interest, that is, if overriding
economic or foreign policy considerations make such an action
advisable, or if a negotiated settlement with one country or the other
can be reached. Under the moratorium, the President must notify the
Congress in writing 60 days before the date on which the removal or
modification is to take effect.
Shortly after it went into effect, the President exercised his
authority and removed the moratorium with respect to Canada. The
President indicated in a memorandum to the United States Trade
Representative that the United States and Canada had reached a
bilateral understanding that would ensure fair and equitable treatment
for both U.S. and Mexican motor carriers on both sides of the
International Boundary line. 47 FR 54053.
The moratorium remained in place for Mexican motor carriers because
the Mexican Government continued to restrict U.S. motor carriers'
access to Mexico. Under the terms of the statute, the President
extended the moratorium for 2-year periods in 1984, 1986, 1988, 1990,
and, most recently, in 1992. On November 3, 1993, however, in a
Statement of Administrative Action, the President gave notice to
Congress that he would lift the moratorium with respect to Mexican
charter and other tour services on NAFTA's effective date, that is, on
January 1, 1994.\1\
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\1\This satisfies the 60-day notice period called for under 49
U.S.C. 10922(l). In any event, Congress, in approving NAFTA,
specifically consented to the President's modifying the moratorium
as announced on November 3, 1993.
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Under NAFTA, the moratorium will be lifted in phases.\2\ The
schedule of liberalization is as follows:
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\2\The NAFTA schedule of liberalization does not remove all
barriers for Mexican motor carrier operations in the United States.
The moratorium will remain in place for Mexican carriers in the one
area that was not liberalized, namely, point to point carriage of
domestic cargo in the United States.
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1. Upon entry into force of NAFTA, for access by Mexican charter and
tour bus operators;
2. Three years after signature of NAFTA, for access by Mexican motor
property carriers into United States border States, and for
establishing companies to distribute international cargo within the
United States;
3. Three years after entry into force, for access by Mexican regular-
route passenger carriers;
4. Six years after entry into force, access for cross-border operations
by Mexican motor property carriers.
In Phase 1 of NAFTA, Mexican domiciled or owned or controlled
passenger carriers may now apply for authority under 49 U.S.C. 10922(c)
to transport passengers in charter and tour bus service in the United
States in foreign commerce, that is, the service must begin or end in
Mexico (or Canada). Wholly domestic interstate operations in the United
States cannot be authorized or permitted.
NAFTA authorizes the granting of authority for charter operations
and tour bus service only. By statute, we may authorize motor common
carriers of passengers to operate over either regular or irregular
routes, but irregular-route services must be limited to charter and
special operations. Regular-route operations ordinarily involve the
expeditious transportation of passengers between fixed termini, over
defined routes and according to established schedules. Charter
operations, on the other hand, ordinarily contemplate providing
transportation for a group, assembled by someone other than the
carrier, which group contracts for the exclusive use of certain
equipment for the duration of a particular trip or tour. Generally, a
flat rate for the use of the vehicle is charged, on either a
``mileage'' or an ``hourly'' basis, and the passengers travel together
for the entire trip.
As we recognized most recently in Adirondack Transit Lines, Inc.--
Adirondack Trailways, 8 I.C.C.2d 330, 334 n.5 (1992), special
operations originally were described as services rendered (generally on
weekends, holidays, or other special occasions) to a number of
passengers that the carrier itself has assembled into a travel group
through its own sales of a ticket to each individual passenger covering
a particular trip or tour. Fordham Bus Corp. Common Carrier
Application, 29 M.C.C. 293, 297 (1941). In Asbury Park-N.Y. Transit
Corp. v. Bingler Vacation Tours, 62 M.C.C. 731, 740 (1954) (Bingler),
aff'd sub nom. Bingler Vacation Tours v. United States, 132 F. Supp.
793 (D. N.J. 1955), aff'd per curiam, 350 U.S. 921 (1955), though, the
Commission adopted the position that ``special operations'' is a
catchall classification, which may include almost anything that is
neither charter operations nor the usual operations of a regular-route
carrier.
Accordingly, ``tour service'' is only one form of special
operations, as the Commission discussed in Passenger Transportation in
Special Operations, 112 M.C.C. 160, 165-67, 171-74 (1970), which
clearly distinguishes the requirements of ``tour service'' from those
of ordinary special operations. Thus, under the Bingler criterion, to
constitute a ``tour service'', the carrier must furnish something
substantial in addition to, or different from, bare expeditious
transportation between two points. This contemplates a common interest
of passengers visiting a particular place(s) or event(s) and does not
include ordinary, point-to-point transportation, over either regular or
irregular routes.3 It appears that the ``tour service'' that NAFTA
is intended to cover is this type of special operations.
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\3\Special operations that are not ``tour services'' might
include, for example, limousine services in which door-to-door
service is provided, over irregular routes (according to the
specific locations to be served on any particular trip), to and from
any point in a given territory. Such services will not be authorized
by authority to provide ``tour service''.
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Accordingly, certificates that we issue to Mexican carriers will
usually be framed, in accord with our usual practices with regard to
such authorities, to authorize service
Over irregular routes, in foreign commerce, transporting passengers, in
charter operations and in special operations, in tour service, between
ports of entry on the international boundary between the U.S. and
Mexico, on the one hand, and, on the other, points in the United States
(except Alaska and Hawaii).
Because this notice is occasioned by a partial lifting of the
moratorium, no special rules or rulemaking are necessary. The same
application procedure and regulations apply to Mexican and United
States carriers alike. For example, carriers must abide by all U.S.
Department of Transportation safety regulations, comply with the
Commission's insurance requirements (49 U.S.C. 10927), publish and file
with the Commission applicable tariffs (49 U.S.C. 10761, 10762), and
file with the Commission agents for service of process (49 U.S.C.
10330). We will, however, provide a short comment period to enable
interested persons to submit written views, arguments or
representations regarding this subject. Because we have little or no
discretion in this area, we do not contemplate a subsequent decision
unless we receive comments raising substantial issues it would be
helpful or necessary to address. Notice of this proceeding will be
published in the Federal Register and the ICC Register and interested
parties will have 7 days from the date of publication to comment.
Finally, the current application form OP-1 requires all applicants
for ICC operating authority to certify that they are not domiciled in
Mexico or owned or controlled by persons of Mexico. We will modify that
certification requirement when we revise the application form. For the
present, Mexican charter and special operations applicants should
either disregard the certification section, or simply indicate ``not
applicable.'' Applicants not completing the certification affirmatively
will receive charter and special operations tour service authority
limited to movements in foreign commerce.
Decided: December 30, 1993.
By the Commission, Chairman McDonald, Vice Chairman Simmons,
Commissioners Phillips and Philbin.
Sidney L. Strickland, Jr.,
Secretary.
[FR Doc. 94-503 Filed 1-7-94; 8:45 am]
BILLING CODE 7035-01-P
