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Federal Motor Carrier Safety Administration (FMCSA), DOT.
Final rule; interim final rule and request for comments.
FMCSA issues a final rule establishing the New Mexico Commercial Zone in Dona Ana County and Luna County, NM. This action is required by the Transportation Equity Act for the 21st Century (TEA-21). The Agency also issues an interim final rule establishing an expanded commercial zone for the City of El Paso, TX, which now includes the new Tornillo-Guadalupe international bridge and port of entry on the border with Mexico. Additionally, through this action, FMCSA provides clarification on the definition of the San Luis, AZ commercial zone. The Agency is interested in receiving public comments regarding what should constitute the eastern boundary for the FMCSA's commercial zone for the City of El Paso, TX, that would include the new Tornillo-Guadalupe international bridge, port of entry, and public access roads O.T. Smith Road and Texas Farm-to-Market Road 3380 (M.F. Aguilera Highway) to Interstate Highway 10.
Effective Date: The additions of 49 CFR 372.245 (final rule) and 372.247 (interim final rule) are both effective on February 24, 2016.
Comment Period Date: Comments only on the amendments to § 372.247 (interim final rule), related to the City of El Paso, TX's commercial zone, must be received on or before March 25, 2016.
You may submit comments bearing the Federal Docket Management System Docket ID [FMCSA-2015-0372] using any of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments.
Mail: Docket Management Facility; U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 0590-0001.
Hand Delivery or Courier: West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., ET, Monday through Friday, except Federal holidays.
Each submission must include the Agency name and the docket number for this notice. Note that DOT posts all comments received without change to www.regulations.gov, including any personal information included in a comment. Please see the Privacy Act heading below.
Docket: For access to the docket to read background documents or comments, go to www.regulations.gov at any time or visit Room W12-140 on the ground level of the West Building, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The online Federal document management system is available 24 hours each day, 365 days each year. If you want acknowledgment that we received your comments, please include a self-addressed, stamped envelope or postcard or print the acknowledgement page that appears after submitting comments online.
Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.
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FOR FURTHER INFORMATION CONTACT:
Bryan Price, Chief, North American Borders Division, FMCSA, 1200 New Jersey Avenue SE., Washington, DC 20590-0001. Telephone (202) 680-4831; email firstname.lastname@example.org.
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The statutes authorizing FMCSA to regulate certain economic activities of motor carriers provide for several exemptions. One of them, the “commercial zone” exemption, now set out in 49 U.S.C. 13506(b)(1), provides that, except to the extent FMCSA finds it necessary to exercise jurisdiction to carry out the transportation policy of 49 U.S.C. 13101, FMCSA has no jurisdiction under 49 U.S.C. subtitle IV, part B
over transportation provided entirely in a municipality, in contiguous municipalities, or in a zone that is adjacent to, and commercially a part of, the municipality or municipalities, except when the transportation is under common control, management, or arrangement for a continuous carriage or shipment to or from a place outside the municipality, municipalities, or zone. The statute does not specify the geographic limits of a commercial zone. From the outset commercial zone limits have usually been established by agency rulemaking under authority provided by 49 U.S.C. 13301(a). Authority to administer the provisions of 49 U.S.C. 13506 has been delegated by the Secretary to the Administrator of FMCSA. 49 CFR 1.87(a)(3).
Although the promulgation of a rule to establish a commercial zone would ordinarily involve the issuance of a notice of proposed rulemaking and an opportunity for public comment, the Administrative Procedure Act does permit their omission for good cause, when “notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(B). In addition, a final rule that is “a substantive rule which grants or recognizes an exemption” may be made effective on less than the 30 days' notice that is usually required. 5 U.S.C. 553(d).
The establishment of the New Mexico Commercial Zone changes is a nondiscretionary ministerial action that can be taken without issuing a notice of proposed rulemaking and receiving public comment, in accordance with the good cause exception available to Federal agencies under the Administrative Procedure Act.
Due to the imminent opening of the Tornillo-Guadalupe port of entry to commercial traffic to and from Mexico, it is critical that motor carriers, drivers, and law enforcement recognize the expanded commercial zone for the City of El Paso. However, the Agency is still interested in receiving public comments related to establishing boundaries specific to this commercial zone. Therefore, this second action is published as an interim final rule also in accordance with the good cause exception available to Federal agencies under the Administrative Procedure Act.Start Printed Page 9118
In the 1930s, the Interstate Commerce Commission (ICC) established commercial zones under authority of the Motor Carrier Act of 1935.
Originally, the ICC defined commercial zones on a case-by-case basis. According to a June 26, 1978, report by the U.S. General Accounting Office titled, “ICC's Expansion of Unregulated Motor Carrier Commercial Zones Has Had Little or No Effect on Carriers and Shippers, CED-78-124”,
the ICC established a population-mileage formula by rule in 1946,
with the idea that population and mileage “provided a reasonably accurate definition of commercial zones because urban development normally expands in all directions from the central city.” Those general rules, which were revised by the ICC in 1976,
are now found at 49 CFR 372.239, 372.241 and 372.243. The ICC also allowed municipalities “to request specifically defined zones if [the municipalities] believed the territory included by the population-mileage formula was too small.” A number of such specifically defined commercial zones are established in 49 CFR part 372.
When the ICC was dissolved (ICC Termination Act of 1995, Public Law 104-88, 109 Stat. 803, (December 29, 1995)), its remaining authorities to regulate motor carrier transportation were transferred to the U.S. Department of Transportation's Federal Highway Administration (FHWA) as the successor agency. Responsibility for administration of these authorities was later transferred to FMCSA in the Motor Carrier Safety Improvement Act of 1999, Public Law 106-159, 113 Stat. 1748 (Dec. 9, 1999).
New Mexico Commercial Zone
Section 4031 of Transportation Equity Act for the 21st Century, Public Law 105-178, 112 Stat. 419 (June 9, 1998) (TEA-21) provided for the designation of a New Mexico Commercial Zone, comprised of two counties in New Mexico: Dona Ana County and Luna County. The new zone is limited to use by motor carriers of property. There are two border crossings between Mexico and the United States within this commercial zone; Santa Teresa, and Columbus, NM. This new commercial zone went into effect on the date of enactment of the TEA-21 Act, June 9, 1998. However, FHWA did not codify these changes in its regulations at that time.
The responsibilities of the ICC, first transferred to FHWA, were subsequently transferred to FMCSA upon its establishment on January 1, 2000. When FMCSA became aware of the fact that the regulations at 49 CFR part 372, subpart B—Commercial Zones, were not updated to include the New Mexico Commercial Zone comprising these two counties in New Mexico, the Agency included the codification of this commercial zone in the “Unified Registration System” (URS) notice of proposed rulemaking.
No comments were received on this issue. However, this codification was not included in the Oct. 23, 2013, final rule.
Today's final rule corrects that oversight.
FMCSA finds that there is good cause for omitting notice and an opportunity for public comment on the rule codifying the New Mexico Commercial Zone. Notice and comment is unnecessary because TEA-21 established the commercial zone in 1998. In any case, an opportunity for public comment was already provided in the URS rulemaking and no comments were received.
City of El Paso, TX Commercial Zone
The County of El Paso submitted a Presidential Permit application on April 14, 2003, to the U.S. Department of State for review/approval of a replacement port of entry location for the Fabens-Caseta International Bridge (connecting Fabens, TX to Caseta, Chihuahua, Mexico). The Department of State issued the Presidential Permit on March 16, 2005, for the construction, maintenance, and operation of the bridge pursuant to Executive Order 11423, “Delegation of Functions to Secretary of State Respecting Certain Facilities Constructed and Maintained on United States Borders.” 
Presidential Permit 05-01 is titled “Authorizing the County of El Paso, TX, to Construct, Operate, and Maintain an International Bridge, Its Approaches and Facilities, at the International Boundary Between the United States and Mexico.” This permit, with conditions, granted El Paso County the authority to construct, operate, and maintain an international bridge. The permit noted that the name of the bridge was proposed as the “Tornillo-Guadalupe New International Bridge.” The bridge was to be constructed, “approximately 1,950 feet upstream” from the existing Fabens-Caseta International Bridge. The permit specified that, “[T]he proposed Tornillo International Bridge will facilitate passenger vehicles, commercial trucks, and pedestrian traffic.” In June 2011, the General Services Administration (GSA) announced the kick-off of construction of the new port facility, including a six-lane replacement bridge. The scope of this project required GSA to secure Congressional approval of the project's prospectus.
The new bridge and port of entry facilities on both sides of the international border have been completed and were opened to personally owned vehicles and pedestrians on February 4, 2016. The new bridge and port of entry facilities are expected to be opened to commercial traffic in March 2016.
The commercial zone of the City of El Paso is currently defined by the general provisions of 49 CFR 372.239, 372.241 and 372.243 to include the municipality, all municipalities contiguous to the City of El Paso, and all other municipalities and all unincorporated areas that are adjacent to the City of El Paso including, “when the base municipality has a population of 500,000 but less than 1 million [El Paso had a population of 649,121 as of the 2010 census], all unincorporated areas within 15 miles of its corporate limits and all of any other municipality any part of which is within 15 miles of the corporate limits of the base municipality.” 49 CFR 372.241(c)(6). The unincorporated communities of Tornillo, TX, the intersection 
of Interstate Highway 10 with O.T. Smith Road and Texas Farm-to-Market Road 3380 (M.F. Aguilera Highway), as well as the area near the location of the new port of entry, are more than 15 miles from the closest municipal boundary of the City of El Paso. Those areas are thus not included as part of the current El Paso commercial zone.
As a result, FMCSA must establish a commercial zone for the City of El Paso that clearly includes the new border crossing, which, unlike the current border crossing, will be used by motor carriers of both property and passengers. The expanded commercial zone must also include the intersection of Interstate 10 with O.T. Smith Road and Texas Farm-to-Market Road 3380 so that trucks and buses that have FMCSA authority to operate only within the current El Paso commercial zone may use the new international bridge and Start Printed Page 9119will be able to drive to and from the intersection of Interstate 10 and O.T. Smith Road/Farm-to-Market Road 3380.
The specific description of the commercial zone for the City of El Paso set out below in new 49 CFR 372.247 includes all of the area presently within the commercial zone under the general rule in 49 CFR 372.241. It adds a provision expanding the zone to include all unincorporated areas within 15 miles of the corporate boundaries of the City of San Elizario. The City of San Elizario (located southeast of the City of El Paso) was incorporated on November 18, 2013, under the general laws of TX and is thus included within the present commercial zone of the City of El Paso because it is within 15 miles of the boundary of the City of El Paso. By expanding the zone to include those unincorporated areas within 15 miles of the boundaries of San Elizario, the new commercial port of entry and the roads and highways providing access to the port of entry will be within the commercial zone of the City of El Paso. This expanded commercial zone 
would add 84 square miles to the existing El Paso commercial zone.
FMCSA seeks comment on whether the boundary of the expanded commercial zone should instead be the eastern boundary 
of the County of El Paso (except where the current commercial zone extends beyond the eastern county boundary—these areas would still be included). This expanded commercial zone alternative would add 106 square miles to the existing commercial zone, about 22 square miles more than the unincorporated areas within 15 miles of the boundaries of San Elizario in this interim final rule. Those are areas not included in either the current or the expanded commercial zone established by this interim final rule.
This change will also provide enforcement personnel with the direction needed to determine if motor carriers are operating within the proper commercial zone. In view of the imminent opening of the new port of entry to commercial motor vehicle traffic, FMCSA is establishing this specifically defined commercial zone for the City of El Paso as an interim final rule but, as indicated above, with an opportunity for public comment before the Agency issues a final rule on this commercial zone. FMCSA finds that because of the imminent opening of the expanded port of entry to commercial traffic, it would be in the public interest to issue this interim final rule.
Effective Date of Final Rules
The final rule recognizing the statutory creation of the New Mexico Commercial Zone and the interim final rule establishing the expanded commercial zone for the City of El Paso either recognize or grant an exemption, and therefore are made effective upon publication, as authorized by 5 U.S.C. 553(d)(1).
City of San Luis, AZ Commercial Zone
On October 22, 2014, FMCSA received a letter from the Southwest Arizona Port User Association (SWAPUA) requesting confirmation that the City of Yuma, AZ is included in the commercial zone of San Luis, AZ as a “contiguous municipality” with the city of San Luis, AZ. The San Luis, AZ commercial zone is not one of the named commercial zones in Part 372. However, San Luis is a “municipality” as defined in § 372.239. FMCSA confirmed that the City of San Luis and the City of Yuma have common boundaries and, therefore, are determined to be contiguous. As a result, it is the determination of the FMCSA that the San Luis commercial zone extends throughout the City of Yuma (49 CFR 372.241(b)) and extends 6 air-miles beyond the corporate boundaries of the municipality of San Luis in other areas.
No amendment to existing regulation is needed to address the interpretation requested regarding the Cities of San Luis and Yuma, AZ.
Executive Order 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures
FMCSA has determined that this action is not a significant regulatory action within the meaning of Executive Order 12866, as supplemented by Executive Order 13563 (76 FR 3821, Jan. 18, 2011), or within the meaning of the DOT regulatory policies and procedures (44 FR 1103, Feb. 26, 1979). Thus, the Office of Management and Budget (OMB) did not review this document. We expect the final rule and the interim final rule will have no costs, as they exempt motor carriers from obtaining FMCSA operating authority when they operate in interstate or foreign commerce wholly within the New Mexico, or El Paso commercial zones; therefore, a full regulatory evaluation is unnecessary.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612), FMCSA is not required to complete a regulatory flexibility analysis, because, as discussed earlier in the legal basis section, this action is not subject to notice and comment under section 553(b) of the Administrative Procedure Act.
Unfunded Mandates Reform Act
The final rule and interim final rule will not impose an unfunded Federal mandate, as defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532, et seq.), that will result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $155 million (which is the value of $100 million in 1995 dollars after adjusting for inflation to 2014 dollars) or more in any 1 year.
A rule has implications for Federalism under section 1(a) of Executive Order 13132 if it has “substantial direct effects on the States, on the relationship between national government and the States, or on the distribution of power and responsibilities among various levels of government.” FMCSA has determined that this rule will not have substantial direct effects on States, nor will it limit the policymaking discretion of States. Nothing in this document preempts or modifies any provision of State law or regulation, imposes substantial direct unreimbursed compliance costs on any State, or diminishes the power of any State to enforce its own laws. Accordingly, the final rule and the interim final rule do not have Federalism implications warranting the application of E.O. 13132.
E.O. 12372 (Intergovernmental Review)
The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this final rule and interim final rule.
Indian Tribal Governments
This final rule and interim final rule do not have tribal implications under Executive Order 13175 titled, “Consultation and Coordination with Indian Tribal Governments,” because they would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and Start Printed Page 9120responsibilities between the Federal Government and Indian tribes.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct, sponsor, or require through regulations. FMCSA determined that no new information collection requirements are associated with this final rule and interim final rule, nor are there any revisions to existing, approved collections of information.
National Environmental Policy Act and Clean Air Act
The National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) requires Federal agencies to integrate environmental values into their decision-making processes by requiring Federal agencies to consider the potential environmental impacts of their proposed actions. In accordance with FMCSA's Order 5610.1, NEPA Implementing Procedures and Policy for Considering Environmental Impacts, and other applicable requirements, FMCSA prepared an Environmental Assessment (EA) to analyze the potential impacts of the interim final rule for the expansion of the City of El Paso, TX, commercial zone. FMCSA published a notice of availability of the draft EA, giving the public an opportunity to comment on it, on January 15, 2016 (81 FR 2291). No comments were received by the end of the comment period. Because the implementation of this action will only expand an existing commercial zone, FMCSA found that endangered species, cultural resources protected under the National Historic Preservation Act, wetlands, and resources protected under Section 4(f) of the DOT Act of 1966, 49 U.S.C. 303, as amended by Public Law 109-59 (Aug. 10, 2005), are not impacted. The impact areas that may be affected and were evaluated in this EA included air quality, noise, socioeconomics, environmental justice, public health and safety, and hazardous materials. FMCSA anticipates that expanding the El Paso commercial zone will have certain impacts related principally to air emissions and land use from economic growth; however, neither of these impacts individually or collectively will cause significant impacts. In addition, the economic impact will have beneficial impacts to the quality of life in terms of job creation.
A final EA has been prepared and a Finding of No Significant Impact (FONSI) has been issued for this action. The final EA and FONSI are also available for inspection or copying in the Regulations.gov Web site at http://www.regulations.gov.
FMCSA also analyzed this rule under the Clean Air Act, as amended (CAA), section 176(c) (42 U.S.C. 7506(c)), and implementing regulations promulgated by the Environmental Protection Agency. None of the alternatives considered in the EA is located in a nonattainment or maintenance area for any of the criteria pollutants; therefore, FMCSA has determined that it is not required to perform a CAA general conformity analysis.
E.O. 12898 (Environmental Justice)
E.O. 12898 (59 FR 7629, Feb. 16, 1994), Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, establishes Federal executive policy on environmental justice. The E.O.'s main provision directs Federal agencies to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. FMCSA evaluated the environmental effects of this final rule and interim final rule in accordance with E.O. 12898 and determined that there are no environmental justice issues associated with its provisions, nor any collective environmental impact resulting from its promulgation. None of the alternatives analyzed in the EA will result in high and adverse environmental impacts on minority or low-income populations.
FMCSA has analyzed this final rule and interim final rule under Executive Order 13211, titled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.” The Agency has determined that the rule(s) are not a “significant energy action” under that Executive Order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, no Statement of Energy Effects is required.
E.O. 13045 (Protection of Children)
Executive Order 13045 titled, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, Apr. 23, 1997), requires agencies issuing “economically significant” rules, if the regulation also concerns an environmental health or safety risk that an agency has reason to believe may disproportionately affect children, to include an evaluation of the regulation's environmental health and safety effects on children. As discussed previously, the final rule and interim final rule are not economically significant. Therefore, no analysis of the impacts on children is required.
E.O. 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988 titled, “Civil Justice Reform,” to minimize litigation, eliminate ambiguity, and reduce burden.
E.O. 12630 (Taking of Private Property)
This final rule and interim final rule will not effect a taking of private property or otherwise have taking implications under E.O. 12630 titled, “Governmental Actions and Interference with Constitutionally Protected Property Rights.”
National Technology Transfer and Advancement Act
The National Technology Transfer and Advancement Act (15 U.S.C. 272 note) requires Federal agencies proposing to adopt technical standards to consider whether voluntary consensus standards are available. If the Agency chooses to adopt its own standards in place of existing voluntary consensus standards, it must explain its decision in a separate statement to OMB. Because FMCSA does not intend to adopt technical standards, there is no need to submit a separate statement to OMB on this matter.
Privacy Impact Assessment
Section 522(a)(5) of the Transportation, Treasury, Independent Agencies, and General Government Appropriations Act, 2005 (Pub. L. 108- 447, Division H, Title I, 118 Stat. 2809 at 3268, Dec. 8, 2004) requires DOT and certain other Federal agencies to conduct a privacy impact assessment of each rule that will affect the privacy of individuals. Because this final rule and interim final rule will not affect the privacy of individuals, FMCSA did not conduct a separate privacy impact assessment.
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- Agricultural commodities
- Freight forwarders
For reasons set forth in the preamble, FMCSA amends title 49, Code of Federal Regulations, chapter III, subchapter B, part 372 as follows:
PART 372—EXEMPTIONS, COMMERCIAL ZONES, AND TERMINAL AREAS
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1. The authority citation for part 372 is revised to read as follows: End Amendment Part
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2. Add §§ 372.245 and 372.247 to read as follows: End Amendment Part
New Mexico Commercial Zone.
(a) Transportation within a zone comprised of Dona Ana and Luna Counties, NM, by motor carriers of property, in interstate or foreign commerce, not under common control, management, or arrangement for shipment to or from points beyond such zone is partially exempt from regulation under 49 U.S.C. 13506(b)(1).
(b) To the extent that commercial zones of municipalities within the two counties (as determined under § 372.241) extend beyond the boundaries of this two county zone, the areas of such commercial zones shall be considered to be part of the zone and partially exempted from regulation under 49 U.S.C. 13506(b)(1).
City of El Paso, TX.
The zone adjacent to, and commercially a part of El Paso, TX, within which transportation of passengers or property by motor carriers in interstate or foreign commerce, not under common control, management, or arrangement for a continuous carriage or shipment to or from a point beyond such zone, is partially exempt from regulation under 49 U.S.C. 13506(b)(1), includes and is comprised of all points as follows:
(a) The municipality of the City of El Paso, TX;
(b) All municipalities which are contiguous to the City of El Paso;
(c) All of any other municipalities and all unincorporated areas within the United States which are adjacent to the City of El Paso as follows:
(1) Within 15 miles of the corporate limits of the City of El Paso; or
(2) Within 15 miles of the corporate limits of the City of San Elizario, TX; and
(d) All municipalities wholly surrounded, or so surrounded except for a water boundary, by the City of El Paso, by any municipality contiguous thereto, or by any municipality adjacent thereto which is included in the commercial zone of the City of El Paso under the provisions of paragraph (c) of this section.
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Issued pursuant to authority delegated in 49 CFR 1.87 on February 22, 2016.
T.F. Scott Darling, III,
[FR Doc. 2016-04029 Filed 2-23-16; 8:45 am]
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