# Appendix — Department of Transportation v. Public Citizen > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0706%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2004 - **Citation:** 541 U.S. 752 ## Text 03 358 SEP 6 2003 No. In the Supreme Court of the United States UNITED STATES DEPARTMENT OF TRANSPORTATION, ET AL., PETITIONERS D. PUBLIC CITIZEN, ETAL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT APPENDIX TO THE PETITION FOR A WRIT OF CERTIORARI THEODORE B. OLSON Solicitor General KIRK K. VAN TINE Counsel of Record General Counsel THOMAS L. SANSONETT! PAUL M. GEIER Assistant Attorney General Assistant General Counsel EDWIN S. KNEEDLER PETER J. PLOCKI Deputy Solicitor General Senior Trial Attorne * JEFFREY BOSSERT CLARK BRIGHAM A. MCCOWN Deputy Assistant Attorney Chief Counsel General MICHAEL J. FALK AUSTIN C. SCHLICK Trial Attorney Assistant to the Solicitor Federal Motor Carrier Safety General Administration JOHN L. SMELTZER Department of Transportation DAVID C. SHILTON Washington, D.C. 20590 Attorneys JOHN K. VERONEAU Department of Justice General Counsel Washington, D.C. 20530-0001 Office of the United States (202) 514-2217 Trade Representative Executive Office of the President Washington, D.C. 20508 TABLE OF CONTENTS Page Appendix A (Court of appeals opinion filed Jan. 16, 2003) ........ . — — — — 1a Appendix B (DOT rulemaking documents) Applicaton Rule . 832 Safety Monitoring Rule ...... 125a Auditor Certification Rule 203a Appendix C (Court of appeals rehearing Order dated Apr. 10, 2003) 221a Appendix D (Statutes and regulations involved) 223a Appendix E (Memorandum for the Secretary of Transportation dated Nov. 27, 2002) . 232a APPENDIX A UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Nos. 02-70986, 02-71249 PUBLIC CITIZEN; BROTHERHOOD OF TEAMSTERS, AUTO AND TRUCK DRIVERS, LOCAL 70; CALIFORNIA LABOR FEDERATION; CALIFORNIA TRUCKING ASSOCIATION; ENVIRONMENTAL LAW FOUNDATION; INTERNATIONAL BROTHERHOOD OF TEAMSTERS, PETITIONERS NATURAL RESOURCES DEFENSE COUNCIL; PLANNING AND CONSERVATION LEAGUE, PETITIONERS-INTERVENORS Vv. DEPARTMENT OF TRANSPORTATION; FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION; NICHOLAS R. WALSH, RESPONDENTS INTERNATIONAL BROTHERHOOD OF TEAMSTERS; BROTHERHOOD OF TEAMSTERS, AUTO AND TRUCK DRIVERS, LOCAL 70; CALIFORNIA LABOR FEDERATION; CALIFORNIA TRUCKING ASSOCIATION; ENVIRONMENTAL LAW FOUNDATION; PUBLIC CITIZEN, PETITIONERS NATURAL RESOURCES DEFENSE COUNCIL; PLANNING AND CONSERVATION LEAGUE, PETITIONERS-INTERVENORS V. U.S. DEPARTMENT OF TRANSPORTATION; FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION; JOSEPH M. CLAPP; NICHOLAS R. WALSH, RESPONDENTS (la) 2a Argued and submitted: Oct. 8, 2002 Filed: Jan. 16, 2003 Before: D.W. NELSON, HAWKINS and WARDLAW, Cir- cuit Judges OPINION WARDLAW, Circuit Judge. Petitioners’ challenge the Department of Transporta- tion’s failure to conduct the requisite environmental analyses prior to promulgating three regulations, the combined effect of which will permit Mexico-domiciled motor carriers to operate within the United States beyond the current limited border zones, thus fulfilling the United States’ obligations under the North Ameri- can Free Trade Agreement. Upon completion of a preliminary Environmental Assessment for two of the three regulations, the Department of Transportation decided that there was no need for further environ- mental analysis. Petitioners claim that the Department of Transportation’s failure to prepare an in-depth Environmental Impact Statement for all three regula- tions violates the National Environmental Policy Act of 1969, and that its further failure to conduct a “conform- ity determination” to ensure that the regulations do not disrupt applicable State Implementation Plans violates the Clean Air Act. Although we agree with the impor- 1 The petitioners in this case are Public Citizen; the Brother- hood of Teamsters, Auto and Truck Drivers, Local 70; the Cali- fornia Labor Federation; the California Trucking Association; the Environmental Law Foundation; and the International Brother- hood of Teamsters. We will refer to them (as well as the Peti- tioners Intervenors, discussed below) collectively, as “Petitioners” unless otherwise noted. 3a tance of the United States’ compliance with its treaty obligations with its southern neighbor, Mexico, such compliance cannot come at the cost of violating United States law. Because we conclude that the Department of Transportation acted without regard to well- established United States environmental laws, we grant the petitions. I. LEGAL BACKGROUND Before proceeding to the regulations at issue, it is useful to examine the legal and regulatory context in which they were promulgated. These regulations can only be considered against the historical backdrop of the National Environmental Policy Act of 1969, Pub.L. No. 91-190, 83 Stat. 852 (1970) (codified as amended at 42 U.S.C. §§ 4321-4370f) (“NEPA”), the Clean Air Act, 42 U.S.C. §§ 7401-7671q (“CAA”), and the North American Free Trade Agreement, Dec. 17, 1992, U.S.- Can.-Mex., 32 I. L. M. 289 (chs. 1-9), 32 I. L. M. 605 (ehs. 10-22) (1993) (“NAFTA”). A. National Environmental Policy Act of 1969 On January 1, 1970, President Richard Nixon signed NEPA into law. Although various state and federal environmental measures had been in place for decades, this statute marked the first nationwide comprehensive approach to regulating the interaction between Ameri- cans and their environment. Prompted by a series of environmental crises in the late 1960s, NEPA’s sweep- ing reach reflected Congress’s conviction that “our Nation’s present state of knowledge, our established public policies, and our existing governmental insti- tutions are not adequate to deal with the growing environmental problems and crises the Nation faces.” S. Rep. No. 91-296, at 4 (1969). 4a Such broad policy creation was also reflected in the statute’s first section, containing the congressional dec- laration of purpose: The purposes of this chapter are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environ- ment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality. 42 U.S.C. § 4321. To accomplish these ends, Congress imposed extensive procedural requirements on govern- ment action affecting the environment. Paramount among these were the requirements that all federal agencies shall, “to the fullest extent possible”: (A) utilize a systematic, interdisciplinary ap- proach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man’s environment; (B) identify and develop methods and pro- cedures . . . which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations; (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality 5a of the human environment, a detailed statement by the responsible official on— (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commit- ments of resources which would be involved in the proposed action should it be implemented. Id. § 4332(2). Congress further directed that, again “to the fullest extent possible,” “the policies, regulations, and public laws of the United States shall be inter- preted and administered in accordance with the policies set forth in this chapter.” Jd. § 4332(1). This unequi- vocal command has guided the United States’ environ- mental policy for more than thirty years, and pervades every aspect of government decisionmaking. B. Clean Air Act Federal air quality legislation dates back to at least the wnid 19508, and the CAA itself to 1963, Pub.L. No. 88-206, 77 Stat. 393, but it was the substantial amend- ment in 1970, Pub.L. No. 91-604, 84 Stat. 1713, that gave the Act its modern, far-reaching scope. The Act was amended again to further broaden its reach in 1977, Pub.L. No. 95-95, 91 Stat. 749, and in 1990, Pub.L. No. 6a 101-549, 104 Stat. 2399. Before the 1970 Amendments, there existed no federal air pollution standards, nor mandatory enforcement mechanisms; federal officials could only encourage states to develop air-quality enforcement programs. All this was dramatically altered by the 1970 Amendments, which mandated national air quality standards and deadlines for their attainment. Pub.L. No. 91-604, § 4, 84 Stat. at 1678-89. These amendments also created an innovative federal- state partnership structure whereby states were to develop individual “implementation plans” to attain compliance with federal standards, and the newly created Environmental Protection Agency (“EPA”) was charged with evaluating, overseeing, and enforcing state compliance with these plans. Jd. The 1970 Amendments specifically addressed for the first time hazardous pollutants and automobile exhausts, bringing these “mobile sources” within the scope of the EPA’s authority. Id. §§ 6-9, 84 Stat. at 1690-700. The 1977 Amendments added an important pro- cedural safeguard: they forbade the federal government and its agencies from “engag{ing] in, supportling] in any way or providling!] financial assistance for, licens[ing] or permit [ting], or approv[ing], any activity which does not conform to [an approved state] imple- mentation plan.” 42 U.S.C. § 7506(c)(1). The Act defined “conformity” broadly to include a restriction on such things as “increas[ing] the frequency and severity of any existing violation of any standard in any area,” or “delay[ing] timely attainment of any standard . . in any area.” Id. § 7506(c)(1)(B). This prevented the federal government from hindering states’ abilities to comply with the Act’s requirements. Finally, the 1990 Amendments vastly increased the list of regulated 7a pollutants, as well as the EPA's eivil and eriminal enforcement capabilities. C. North American Free Trade Agreement On December 17, 1992, President William J. Clinton signed NAFTA, establishing a free-trade zone encom- passing the United States, Canada, and Mexico. Upon submission to Congress, it was enacted into law as the North American Free Trade Agreement Implementa- tion Act, Pub.L. No. 103-182, 107 Stat. 2057 (1993) (codified as amended at 19 U.S.C. §§ 3301-3473) (effec- tive Jan. 1, 1994). NAFTA aimed to “CONTRIBUTE to the harmonious development and expansion of world trade and provide a catalyst to broader international cooperation” while “STRENGTHEN[ING] the development and enforce- ment of environmental laws and regulations.” Id. pmbl., 32 I. L. M. at 297. Indeed, environmental con- cerns dominated the debate over NAFTA in the United States. President Clinton waited for over a year to submit the agreement to Congress while the parties negotiated a side agreement, the North American Agreement on Environmental Cooperation, Sept. 14, 1993, U.S.-Can.-Mex., 32 I.L.M. 1480. The NAFTA agreement itself explicitly permits member states to adopt or maintain standards-related measures, including any such measure relating to safety, the protection of human, animal or plant life or health, the environment or consumers . . . includ{ing] those to prohibit the importation of a good of another Party or the pro- vision of a service by a service provider of another Party that fails to comply with the applicable 8a requirements of those measures or to complete the Party’s approval procedures. NAFTA art. 904(1), 32 L. L. M. at 387. The treaty as enacted into United States law specifi- cally determined that in the case of a conflict between the treaty and federal law, federal law would prevail. 19 U.S.C. § 3312(a)(1) (“No provision of the Agreement . which is inconsistent with any law of the United States shall have effect.”). Congress also made clear that NAFTA cannot be construed “to amend or modify any law of the United States, including any law regarding . . . the protection of human, animal, or plant life or health [or] the protection of the environ- ment.” Jd. § 3312(a)(2). II. PROCEDURAL HISTORY Before us are three regulations, all promulgated on March 19, 2002 by the Federal Motor Carrier Safety Administration (“FMCSA”), an agency within the Department of Transportation (collectively DOT“). These regulations will permit complying Mexico- domiciled trucks to operate in the United States beyond specified border zones. They are: (1) Application by Certain Mexico Domiciled Motor Carriers to Operate Beyond United States Municipalities and Commercial Zones on the United States Mexico Border, 67 Fed. Reg. 12,702 (Mar. 19, 2002) (“Application Rule”); (2) Safety Monitoring System and Compliance Initiative for Mexico Domiciled Motor Carriers Operating in the United States, 67 Fed. Reg. 12,758 (Mar. 19, 2002) (“Safety Rule”); and (3) Certification of Safety Audi- tors, Safety Investigators, and Safety Inspectors, 67 Fed. Reg. 12,776 (Mar. 19, 2002) (“Certification Rule”). Under current law, such vehicles are allowed only in so- 9a called “border zones”—specially designated areas near the United States-Mexico border. Application Rule, 67 Fed. Reg. at 12,702. The regulations were issued in compliance with a rider to the 2002 Appropriations Act for DOT, which conditioned funding for permitting Mexican truck traffic into the United States on DOT’s issuance of appropriate safety and inspection rules. See Department of Transportation and Related Agencies Appropriations Act, 2002, § 350, Pub.L. No. 107-87, 115 Stat. 833, 864 (2001) (“Appropriations Act”). Peti- tioners assert that DOT failed to examine adequately the environmental consequences of these regulations, as required by NEPA and CAA. Foreign trucks are permitted to enter the United States only if they are authorized to do so. See generally 49 U.S.C. §§ 13501-13541, 13901-13908; 49 C.F.R. § 365.101-.511. DOT is generally required to grant such permission to any carrier that is “willing and able to comply with” certain statutes and regulations. 49 U.S.C. § 13902(a)(1). In 1982, however, Congress enacted the Bus Regulatory Reform Act of 1982, which imposed a two-year moratorium on the entry of motor carriers domiciled in a “contiguous foreign country,” Pub.L. No. 97-261, § 6(g), 96 Stat. 1102, 1107-08, such as Mexico. This moratorium was renewable for subse- quent two-year intervals by the President “in the national interest.” Jd., 96 Stat. at 1108. The morato- rium remained in place, through a series of presidential orders, until September 19, 1996. 2 See 60 Fed. Reg. 12,393 (Mar. 2, 1995); 57 Fed. Reg. 44,647 (Sept. 25, 1992); 55 Fed. Reg. 38,657 (Sept. 17, 1990); 53 Fed. Reg. 36,430 (Sept. 15, 1988); 51 Fed. Reg. 34,079 (Sept. 23, 1986); and 49 Fed. Reg. 35,001 (Aug. 30, 1984). 10a Before the last two-year extension expired, the ICC Termination Act of 1995 was signed into law, causing all “existing restrictions on operations of motor carriers domiciled in any contiguous foreign country pursuant to section 6 of the Bus Regulatory Reform Act of 1982” to remain in effect unless and until the President expressly rescinded them for a statuto- rily acceptable reason, including “obligations of the United States under a trade agreement.” 49 U.S.C. § 13902(c). On February 6, 2001, a specially convened treaty arbitral panel determined that the United States’ continued refusal to permit the entry of Mexican trucks beyond the restricted border zones violated NAFTA. Thereafter, as recited in the EA prepared by DOT, President George W. Bush “announced his intent to comply [with this ruling] by modifying the moratorium, pursuant to his statutory authority, once FMCSA [was] ready to issue. regulations governing Mexico- domiciled [trucks] seeking United States operating authority.” After the NAFTA arbitral panel issued its opinion, DOT published Notices of Rulemaking for the Appli- cation and Safety Rules on May 3, 2001. See 66 Fed. Reg. 22,371 (May 3, 2001) (Application Rule); 66 Fed. Reg. 22,415 (May 3, 2001) (Safety Rule). Meanwhile, in 1999, Congress had enacted the Motor Carrier Safety Improvement Act, mandating that DOT “complete a rulemaking to improve training and provide for the certification of motor carrier safety auditors . . . to conduct safety inspection audits and reviews.” 49 U.S.C. § 31148(a). The FMCSA was in the process of preparing these rules in 2001. lla On December 18, 2001, the 2002 DOT Appropriations Act was signed into law. Pub.L. No. 107-87, 115 Stat. at 833. Section 350 of that Act provides: (a) No funds limited or appropriated in this Act may be obligated or expended for the review or pro- cessing of an application by a Mexican motor carrier for authority to operate beyond [the border zone} until the Federal Motor Carrier Safety Admini- stration [issues safety and auditor-certification regulations, and conducts safety studies that meet certain specified criteria]. (c) No vehicles owned or leased by a Mexican motor carrier may be permitted to operate beyond [the border zone] under conditional or permanent operating authority granted by the Federal Motor Carrier Safety Administration until— (1) the Department of Transportation Inspector General conducts a comprehensive review of border operations. . land] (2) [t]he Secretary of Transportation certifies in writing in a manner addressing the Inspector General’s findings . . that the opening of the border does not pose an unacceptable safety risk to the American public. Id. § 350, 115 Stat. at 864-68 (codified at 49 U.S.C. § 13902 note). DOT subsequently modified the Application, Safety, and Certification Rules to comply with the require- ments of the Appropriations Act. Recognizing the need 12a to comply with the regulations implementing NEPA, DOT prepared a preliminary Environmental Assess- ment (“EA”) for the Application and Safety Rules evaluating their likely environmental impact. DOT determined that a full Environmental Impact State- ment (“EIS”) was not required, concluding that the proposed rules did not “significantly affect{ ] the quality of the human environment.” 42 U.S.C. § 4332(2)(C). Thus, it issued a Finding of No Significant Impact (“FONSI”) along with the EA on January 16, 2002. DOT did not prepare an EA for the Certification Rule because it determined that this regulation fell into the categorical exclusions from the EA/EIS requirement in the NEPA regulations. As a result, DOT also did not include the Certification Rule in its FONSI. Nor did DOT prepare a CAA conformity determination for any of the regulations because it determined that certain categorical exceptions to the conformity-determination requirement applied to them. All three regulations were published in the Federal Register as “Interim Final Rules” on March 19, 2002. The Application Rule updates the requirements for Mexican carriers applying to use United States roads including the applicants’ ability to comply with certain United States truck safety regulations. See Application Rule, 67 Fed. Reg. at 12,735-40. Furthermore, the appli- cation form requires the carriers to agree to undergo pre-authorization safety audits, provide proof of in- surance, and submit to inspection every three months. Id. at 12,715. The Safety Rule extends “provisional” operating authority to Mexican carriers for the first eighteen months they are licensed to enter the United States, subjecting them to intensified inspection during that period. Safety Rule, 67 Fed. Reg. at 12,771-73. 13a Upon successful completion of this initial period, car- riers become eligible to receive “permanent” operating authority, under which they remain subject to less intensive monitoring and inspection. See id. The Certification Rule establishes certification procedures for the requisite personnel to conduct safety and compliance inspections. Certification Rule, 67 Fed. Reg. at 12,779. Petitioners filed a timely petition challenging the validity of the Application and Safety Rules on May 2, 2002 (No. 02-70986), and a timely petition challenging the validity of the Certification Rule on May 14, 2002 (No. 02-71249). Both petitions, alleging violations of the procedural requirements of NEPA and the CAA, were brought pursuant to the judicial review provision of the Administrative Procedures Act, 5 U.S.C. 88 701-706 (“APA”). We have jurisdiction to review the petitions under 28 U.S.C. § 2342(3)(A), which provides for direct review in the court of appeals of certain administrative actions. We consolidated the petitions by an order dated May 22, 2002. On June 14, 2002, we permitted the Natural Resources Defense Council and the Planning and Conservation League to intervene on behalf of Petitioners. The DOT Inspector General filed a report regarding his “comprehensive review of border operations” on June 25, 2002, and the Secretary of Transportation issued his written certification on November 20, 2002. As promised, following DOT’s certification of its read- iness to issue the regulations, President Bush modified the trucking moratorium (subsequent to oral argument) to permit Mexico-domiciled motor carriers to provide l4a cross-border services.“ See Memorandum of November 27, 2002, 67 Fed. Reg. 71,795 (2002). The moratorium remains in place now only as to Mexico-domiciled motor carrier services between points in the United States. Id. III. STANDING We must first address Petitioners’ standing to sue. Even though standing was not an issue in the admini- strative proceedings, “federal courts are under an independent obligation to examine their own juris- diction, and standing’ is perhaps the most important of the jurisdictional] doctrines.’” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S. Ct. 596, 107 L. Ed.2d 603 (1990) (quoting Allen v. Wright, 468 U.S. 737, 750, 104 S. Ct. 3315, 82 L. Ed.2d 556 (1984)) (alteration in original). We need only find that one petitioner has standing to allow a case to proceed. See, e.g., Chief Probation Officers v. Shalala, 118 F.3d 1327, 1331 (9th Cir. 1997) (White, Justice, by designation) (evaluation of the standing of a second plaintiff is “unnecessary to resolution of the case”); see also Watt v. Energy Action Educ. Found., 454 U.S. 151, 160, 102 S. Ct. 205, 70 L.Ed.2d 309 (1981) (“There are three groups of plaintiffs in this litigation. . . . Because we find [that We ordered the parties to submit supplemental briefing ad- dressing the effect of the President’s order modifying the Mexican- domiciled motor carrier moratorium on the issues presented in this case. Simultaneous supplemental briefs were filed on December 13, 2002. * President Bush had previously modified the moratorium, in a manner not affecting this case, by permitting United States- domiciled Mexican-owned or -controlled motor carriers to provide services within the United States. See Memorandum, 66 Fed. Reg. 30,799 (2001). 15a one of the groups] has standing, we do not consider the standing of the other plaintiffs.”). Thus, at Petitioners suggestion, we consider only the standing of Public Citizen. We look first to Public Citizen’s ability to satisfy the constitutional requirements for standing, then turn to the requirements for organizational and statutory standing under the APA. [Tjo satisfy Article III’s standing requirements, a plaintiff must show (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as Op- posed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Ad 528 U.S. 167, 180-81, 120 S. Ct. 693, 145 L.Ed.2d 610 (2000) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed.2d 351 (1992)). We address these constitutional minima in turn. A. Injury in Fact “To satisfy the injury in fact requirement, a plaintiff asserting a procedural injury must show that ‘the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing. Cantrell v. City of Long Beach, 241 F.3d 674, 679 (9th Cir. 2001) (quoting Defenders of Wildlife, 504 U.S. at 573 n. 8, 112 S. Ct. 2130). The “procedures in question” here require federal agencies to perform certain types of environmental analysis 16a before promulgating regulations. Publie Citizen has adequately alleged that DOT failed to properly follow these procedures. “In NEPA cases, we have described [the] ‘concrete interest’ test as requiring a ‘geographic nexus’ between the individual asserting the claim and the location suffering an environmental impact.” Id. (quoting Douglas County v. Babbitt, 48 F.3d 1495, 1500 n. 5 (9th Cir. 1995)). The same inquiry is appropriate in a CAA case, such as this, where a federal agency has allegedly failed to conduct a conformity determination. That is, environmental petitioners must allege that they will suffer harm by virtue of their geographic proximity to the situs of the claimed pollution. Public Citizen describes itself as an organization whose “members include residents who reside along the Mexican border area in the United States and will be negatively affected by increases in emissions” from Mexico-domiciled trucks if they are allowed into this country. This includes “2,567 . . members [who] live in greater Los Angeles, 1,205 [who] live in the San Diego area, . . . [and] 1,094 [who] live in the greater Houston area.” These are the geographic areas most likely to be affected by increased truck traffic from Mexico. Public Citizen further alleges that its “members [who] live and work in [these] areas . . . that will be most affected by increased emissions from Mexico- domiciled trucks . . . will be exposed to such emissions, and as a result may suffer adverse health effects.” An individual member of Public Citizen from Houstonꝰ has submitted a declaration informing us that We note that, according to the U.S. Geological Survey’s Na- tional Biological Information Infrastructure, Houston has sur- 17a he monitors smog levels due to diesel truck traffic via e- mail alerts and that he limits his family’s outdoor recreational activity when such alerts occur out of concern for their health. We have held that “evidence of a credible threat to the plaintiff's physical well-being from airborne pollu- tants falls well within the range of injuries to cognizable interests that may confer standing.” Hall v. Norton, 266 F.3d 969, 976 (9th Cir. 2001); cf. Natural Res. De- fense Council v. Southwest Marine, Inc., 236 F. 3d 985, 994 (9th Cir. 2000) (Plaintiffs alleged sufficient injury in fact when they testified that “they have derived recreational and aesthetic benefit from their use of the (affected area] . „ but that their use has been curtailed because of their concerns about pollution, contaminated fish, and the like.”). Cognizable “credible threat[s]” include “ ‘increased traffic, pollution, and noise, Hall, 266 F.3d at 976 n. 6 (quoting Soc Hill Towers Owners’ Ass n v. Rendell, 210 F.3d 168, 176 (3d Cir. 2000)), and “increased auto emissions,” id. (citing Sierra Club v. EPA, 129 F.3d 137, 139 (D.C. Cir. 1997)). This jurisprudence is consistent with the Supreme Court’s rule that “environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.” Laidlaw, 528 U.S. at 183, 120 S. Ct. 693 (quoting Sierra Club v. Morton, 405 US. 727, 735, 92 S. Ct. 1361, 31 L.Ed.2d 636 (1972)). Accordingly, Public Citizen’s allegations and supporting evidence fall squarely within our rule, and satisfy the injury-in-fact requirement. passed Los Angeles as the most air-polluted city in the United States. See http://eswgcin.nbii.gov/urban/urban.html. 18a B. Causation “Once a plaintiff has established an injury in fact under NEPA, the causation and redressability require- ments are relaxed.” Cantrell, 241 F.3d at 682; accord Hall, 266 F.3d at 975 (Petitioners “ seeking to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs,’ . . establish standing ‘without meeting all the normal standards for redressability and immediacy.’” (quoting Defenders of Wildlife, 504 U.S. at 572 & n. 7, 112 S. Ct. 2130)). Unlike in an ordinary causation analysis, a peti- tioner asserting a procedural injury “need only establish ‘the reasonable probability of the challenged action’s threat to{his] concrete interest“ Hall, 266 F.3d at 977 (quoting Churchill County v. Babbitt, 150 F.3d 1072, 1078 (9th Cir. 1998)) (emphasis added) (al- teration in original). Both in its briefing and at argument, DOT asserted that Public Citizen had not sufficiently established causation because the challenged regulations would not have permitted cross-border Mexican truck traffic unless the President of the United States lifted the moratorium. The President’s November 27, 2002 order modifying the moratorium rendered this assertion moot. Even before the President acted, however, Public Citizen’s asserted injury could reasonably be linked to DOT’s action. Thus, constitutionally adequate causation existed at the time the petitions were filed. See Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S. Ct. 1055, 137 L.Ed.2d 170 (1997) (“To qualify as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of review... .”). 19a DOT’s argument hinged on the fact that the President, an independent actor not before this Court, had the ability to stop Mexican trucks at the border even if DOT’s regulations were implemented. See Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1152 (9th Cir.2000) (“(T]he causal connection put forward for standing purposes cannot be too specu- lative, or rely on conjecture about the behavior of other parties . . . .” (emphasis added)); cf. Bennett v. Spear, 520 U.S. 154, 167, 117 S. Ct. 1154, 137 L.Ed.2d 281 (1997) (“(T]he injury must . . not [be] the result of the independent action of some third party not before the court.”). Thus, two parties had to act before the effect com- plained of would have come about: the President, who had already indicated his intention to comply with NAFTA by lifting the trucking moratorium, and DOT, which had been obligated by Congress, on penalty of budgetary restrictions, to promulgate safety and in- spection regulations governing Mexican trucks. Peti- tioners and DOT engaged extensively over what would be the appropriate metaphor for such an unusual situa- tion, in which two independent parties had the ability to stop an event from occurring, but both had to take action for the event to occur. Public Citizen suggested that the situation was like a door with two locks, where two independent parties each had to use their keys to open the door, or it would have remained shut. DOT asserted that although it had used its key on one of the locks, the President had the more critical key because its use was entirely within his discretion, and not de- pendent upon a temporary appropriations rider. These metaphorical approaches did not help to clarify the situation. The existence of constitutionally suffi- 20a cient causation does not hinge on keys, doors, or locks. We do not adjudicate imagined hypotheticals or magical metaphors—we must decide the case presented to us. The only relevant question is whether there was a “reasonable probability” that DOT’s promulgation of the regulations would result in increased pollution and adverse health effects to Public Citizen and its members. Even before the recent presidential action, we would have had to conclude that it was reasonably likely that after these regulations became effective, the President would lift the moratorium. “{WJhen standing hinges on choices made by a third party, [a] plaintiff must ‘adduce facts showing that those choices have been or will be made in such manner as to produce causation and per- mit redressibility of injury.“ Yesler Terrace Cmty. Council v. Cisneros, 37 F.3d 442, 447 (9th Cir. 1994) (quoting Defenders of Wildlife, 504 U.S. at 562, 112 S. Ct. 2130). Public Citizen pointed to the introductory text of the regulations, in which DOT stated that it was issuing the regulations “in anticipation of a presidential order lifting the current statutory moratorium on authorizing such operations.” Application Rule, 67 Fed. Reg. at 12,702. Public Citizen also pointed to the finding of the NAFTA arbitral panel that the United States’ consistent refusal to allow entry to Mexican trucks violated the treaty, and the President’s conse- quent announced intent to modify the moratorium once the regulations were issued. The argument the other way, however, had some force. “[{I}t usually is difficult to establish causation and redressibility when a plaintiff's alleged injury depends on the actions of a third party not before the court.” Yesler Terrace, 37 F.3d at 446. The Supreme Court 21a tells us that an acceptable causation analysis cannot rely on “the independent action of some third party not before the court.” Bennett, 520 U.S. at 167, 117 S. Ct. 1154. Certainly the President is an independent actor. Nevertheless, we find dispositive the lower threshold for causation in procedural injury cases, which often involve third parties whose independent actions are necessary for constitutional injury to occur. For instance, to use the Supreme Court’s example, a person living adjacent to the site for a proposed construc- tion of a federally licensed dam has standing to challenge mental impact statement, even though he cannot establish with any certainty that the statement will cause the license to be withheld or altered, and even though the dam will not be completed for many years, Defenders of Wildlife, 504 U.S. at 572 n. 7, 112 S. Ct. 2130, and, perhaps more importantly, even though there can be no certainty that the company will ever build the dam even were the license granted. Certainly the fact that the dam construction company applied for a license is an indication that it wishes to build the dam, but a myriad of circumstances—financial, political, or meteorological—could intervene to prevent it from actually following through with its plans. Nevertheless, the Supreme Court considers such a case to contain the requisite level of causation, because it is a procedural injury case, requiring only a “reasonable probability” of causation. Here, the President of the United States had com- mitted himself to a course of action to which the United States was obligated under an important international 22a treaty, passage of which was hard-fought and not without controversy, and as to which it was then in default. There were, of course, a number of develop- ments that could have changed the President’s mind on this issue - political, diplomatic, military, or economic— but that cannot detract from his announced intent to comply with the treaty (at least as far as this standing analysis is concerned). President Bush’s public state- ment that he would lift the moratorium is sufficient for these purposes. Thus, it is no metaphysical exercise to conclude that it was reasonably probable, even before the action actually occurred, that the President would rescind the moratorium. We must next look at the likelihood of harm to Public Citizen if it does not prevail in this action. If Public Citizen’s petition is denied, then there is nothing to keep the regulations from going into effect. Once this occurs, Mexico-domiciled truck companies will apply for licenses to operate in the United States beyond the border zone, Application Rule, 67 Fed. Reg. at 12,714 (creating 49 C. F. R. § 365.503), and DOT will issue per- mits to those companies that satisfy the requirements of the challenged regulations, id. at 12,715 (creating 49 C.F.R. § 365.507). Those companies will then begin to operate their trucks in the United States, emitting pollutants that contaminate the air Public Citizen’s members breathe and that could potentially cause them myriad adverse health effects. Although DOT and Public Citizen dispute the number of Mexican trucks that will in fact be granted entry, and the quantity of consequent pollutant emissions, both agree that at least some Mexico-domiciled trucks will enter the United States if the regulations are put into effect, and at least some pollutants will be emitted. This is a sufficient 23a causal link between DOT’s acts and Public Citizen’s alleged injury. C. Redressability The third prong of the constitutional standing inquiry requires us to determine whether we possess the ability to remedy the harm that a petitioner alleges. In most procedural injury cases involving environmental analy- sis, a petitioner “who asserts inadequacy of a govern- ment agency’s environmental studies. need not show that further analysis by the government would result in a different conclusion. It suffices that the [agency’s] decision could be influenced by the en- vironmental considerations that [the relevant statute] requires an agency to study.” Hall, 266 F.3d at 977 (emphasis added). Thus, Public Citizen bears a rela- tively easy burden. If DOT conducted the type of environmental analysis that Public Citizen suggests, its decision could be influenced. Indeed, DOT is required by statute to “insure that . . environmental amenities and values . . be given appropriate con- sideration in [administrative] decisionmaking.” 42 U.S.C. § 4332(2)(B). As the case now stands, if we grant Public Citizen’s petitions, no Mexico-domiciled trucks will be permitted into the United States beyond the border zones until DOT conducts the required analyses; and if we deny the petitions, Mexico-domiciled trucks will be permitted into the United States as soon as they complete the registration and certification process provided in the challenged regulations. Thus, the case presents the very paradigm of constitutional redressability: Public Citizen will suffer harm if we deny its petitions, but the harm will be avoided entirely if we grant the petitions. 24a D. Organizational Standing A further necessary standing inquiry is whether Public Citizen is entitled to bring suit on behalf of its members. “An association has standing to bring suit on behalf of its members when its members would other- wise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the elaim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Laidlaw, 528 U.S. at 181, 120 S. Ct. 693 (citing Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343, 97 S. Ct. 2434, 53 L.Ed.2d 383 (1977)). We conclude that Public Citizen has organi- zational standing. It has adequately alleged injury to its members. The interests at stake—potential adverse health consequences due to increased pollution from diesel truck exhaust—are pertinent to the interests of environmental organizations and other organizations concerned with the physical well-being of their mem- bership. Finally, there is no indication that resolving this case would require, or even be assisted by the participation of individual members of Public Citizen. E. Statutory Standing Under the APA In addition to constitutional standing, a petitioner who: brings a statutory enforcement action under the [APA] must meet its statutory requirements for standing. [A petitioner] must establish (1) that there has been final agency action adversely affect- ing lit], and (2) that, as a result, it suffers legal wrong or that its injury falls within the “zone of interests” of the statutory provision the [petitioner] claims was violated. 25a Churchill County, 150 F.3d at 1078 (quoting Lujan v. Nat'l Wildlife Fed’n, 497 U.S. 871, 882-83, 110 S. Ct. 3177, 111 L.Ed.2d 695 (1990)) (internal citations omitted), as amended, 158 F.3d 491 (9th Cir. 1998). Public Citizen satisfies the first requirement. Though the regulations at issue are styled as “Interim Final Rulels],“ see, e.g., Application Rule, 67 Fed. Reg. at 12,702, the term “interim” refers “only to the Rule’s intended duration—not its-tentative nature,” Career Coll. Ass’n v. Riley, 74 F.3d 1265, 1268-69 (D. C. Cir. 1996) (“Any other construction would suggest that the publication [of the rule] was without legal significance at all (a senseless repetition of the notice of proposed rulemaking).”). As for the second prong, we have held that the APA “require[s] that the ‘interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or consti- tutional guarantee in question.’” Presidio Golf Club v. Nat! Park Serv., 155 F.3d 1153, 1158 (9th Cir. 1998) (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153, 90 S. Ct. 827, 25 L.Ed.2d 184 (1970)). As might be expected, NEPA's purpose is to protect the environment, not the economic interests of those adversely affected by agency decisions.“ Id. (quoting W. Radio Servs. Co. v. Espy, 79 F.3d 896, 902- 03 (9th Cir. 1996)). Here, Public Citizen is attempting to protect the environment. indeed, many of the Petitioners and Petitioners-Intervenors in this case are environmental organizations, or general public interest organizations like Public Citizen that fight] for a broad range of public interest issues[,][mJany of [which] relate directly or indirectly to environmental concerns.” DOT claims that some of the other Petitioners, labor 26a and trucking organizations—whose standing is irrele- vant in any instance—are alleging impermissible economic injuries, but this does not eliminate standing as long as they also assert economic/ health concerns. See id. at 1158-59. * * * In response to our post- argument request for briefing on the significance of the President's modifi- cation of the moratorium, DOT makes two additional arguments, neither of which has merit. It first suggests that were we to grant Public Citizen the relief it seeks, that would be tantamount to enjoining Presidential action. We disagree. The President of the United States is not a party to this action, and the issues before us do not touch on his clear, unreviewable discretionary authority to modify the moratorium pursuant to 49 U.S.C. § 13902(c). We similarly reject DOT’s assertion that the relief Public Citizen seeks will somehow affect NAFTA’s viability. Again, neither the validity of nor the United States’ compliance with NAFTA is before us. Our task here is relatively narrow: we are asked only to review the adequacy of the environmental analyses conducted by DOT before promulgating the three regulations. Thus, we conclude that Public Citizen has standing to bring these petitions. IV. STANDARD OF REVIEW Review of agency action to determine its conformity with NEPA and the CAA provisions at issue is governed by the judicial review provisions of the APA, 5 U.S.C. §§ 701-706. See Hells Canyon Alliance v. United States Forest Serv., 227 F.3d 1170, 1176-77 (9th 27a Cir.2000) (NEPA); City of Olmsted Falls v. FAA, 292 F.3d 261, 269 (D. C. Cir. 2002) (CAA); see also City of S. Pasadena v. Slater, 56 F. Supp.2d 1106, 1134-35 (C. D. Cal. 1999) (CAA review uses same standard as NEPA review). The reviewing court must determine that agency actions are not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). In considering whether an agency acted in an arbitrary and capricious manner, a court “must determine whether the agency articulated a rational connection between the facts found and the choice made.” Ariz. Cattle Growers’ Ass’n v. United States Fish & Wildlife, 273 F.3d 1229, 1236 (9th Cir. 2001). Furthermore, courts must “carefully review the record to ‘ensure that agency decisions are founded on a reasoned evaluation of the relevant factors,’” id. (quot- ing Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S. Ct. 1851, 104 L. Ed. 2d 377 (1989)), and may not “‘rubber-stamp . . . administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute,’” id. (quoting NLRB v. Brown, 380 U.S. 278, 291-92, 85 S. Ct. 980, 13 L.Ed.2d 839 (1965)) (omission in original). In the context of the procedural environmental re- quirements imposed by NEPA and CAA, “(t]he arbi- trary and capricious standard requires a court to ensure that an agency has taken the requisite hard look at the environmental consequences of its proposed action, carefully reviewing the record to ascertain whether the agency decision is founded on a reasoned evaluation of the relevant factors.” Wetlands Action Network v. United States Army Corps of Eng’rs, 222 F.3d 1105, 1114 (9th Cir. 2000) (internal quotation marks omitted), 28a cert. denied, 534 U.S. 815, 122 S. Ct. 41, 151 L.Ed.2d 14 (2001). A reviewing court is not permitted to substitute its judgment for that of the agency, but rather must simply. . . ensure that({the agency] has adequately considered and disclosed the environmental impact of its actions.’” Am. Rivers v. FERC, 201 F.3d 1186, 1194- 95 (9th Cir. 1999) (quoting Ass’n of Pub. Agency Customers, Inc. v. Bonneville Power Admin., 126 F.3d 1158, 1183 (9th Cir. 1997)). This means that we “must defer to an agency’s decision that is fully informed and well-considered,” Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir. 1998) (in- ternal quotation marks omitted), but “need not forgive a ‘clear error of judgment,’” id. (citing Marsh, 490 U.S. at 378, 109-S. Ct. 1851), or credit “conclusions that do not have a basis in fact,” Ariz. Cattle, 273 F.3d at 1236. V. ENVIRONMENTAL ANALYSIS UNDER NEPA A. DOT’s Decision Not to Prepare an EIS We next determine whether DOT acted in an arbitrary and capricious manner when it failed to prepare an Environmental Impact Statement on the basis of its Environmental Assessment. By its own terms, NEPA intended to reorganize the priorities of the federal government, to integrate “environmental amenities and values” alongside more traditional “eco- nomic and technical considerations.” 42 U.S.C. § 4332(2)(B). Congress directed that the statute and its implementing regulations be used toward this end in government decisionmaking “to the fullest extent possible.” Id. § 4332. To achieve its goal of including environmental con- cerns in government decisionmaking, NEPA requires that an EIS be prepared for all “major Federal actions 29a significantly affecting the . . . human environment.” Id. § 4332(2)(C). In certain circumstances, agencies may first prepare an EA to make a preliminary deter- mination whether the proposed action will have a significant environmental effect. See Nat! Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 730 (9th Cir. 2001) (citing 40 C.F.R. § 1501.4), cert. denied, 534 U.S. 1104, 122 S. Ct. 903, 151 L.Ed.2d 872 (2002). “If the EA establishes that the agency’s action ‘may have a significant effect upon the . . . environment, an EIS must be prepared.“ Id. (quoting Found. for N. Am. Wild Sheep v. United States Dep’t of Agric., 681 F.2d 1172, 1178 (9th Cir. 1982)) (emphasis and alteration in original). “If not, the agency must issue a Finding of No Significant Impact (FONSI), accompanied by ‘a convincing statement of reasons to explain why a pro- ject’s impacts are insignificant.’” Id. (quoting Blue Mountains, 161 F.3d at 1212) (internal citations and quotation marks omitted). Thus, to decide whether an EIS is required, we must determine: (1) whether the challenged rules constitute “major” federal actions; and (2) whether they may significantly affect the environment. We find that DOT’s rules are major federal actions that may significantly affect the environment, and thus we hold that DOT acted in an arbitrary and capricious manner in failing to prepare an EIS for the challenged regu- lations. 1. “Major Federal Action” The Council on Environmental Quality (“CEQ”), a body established by NEPA, 42 U.S.C. §§ 4342- 4347, has issued regulations implementing NEPA. We rely on these regulations to “guide our review of an agency’s 30a compliance with NEPA,” Native Ecosystems Council v. Dombeck, 304 F.3d 886, 894 n. 1 (9th Cir. 2002), and the Supreme Court has held that they are entitled to substantial deference, Marsh, 490 U.S. at 372, 109 S. Ct. 1851. The relevant CEQ regulations implementing NEPA define “major Federal action{s]” as “actions with effects that may be major and which are po- tentially subject to Federal control and responsibility,” including “{a]doption of official policy, such as rules, regulations, and interpretations.” 40 C.F.R. § 1508.18. DOT, of course, does not dispute that its actions are “federal,” but does dispute Petitioners’ allegations regarding the regulations’ “effects.” DOT alleges that the effects of the Application and Safety Rules are limited to the increased diesel emissions of Mexican trucks during the road-side inspections and safety monitoring mandated by the regulations. It thus pre- dicts that there will be no increase in Mexican truck traffic resulting from the regulations. DOT’s analysis goes on to suggest that even if such an increase might occur, its effects would not require consideration because it would be a result of presidential rescission of the moratorium, not the regulations themselves. This novel parsing of the regulations’ effects fails to meet NEPA standards. DOT’s argument here echoes its earlier causation argument in the standing context. It is equally un- availing here for a similar reason. The CEQ regulations make clear that the “effects” of fed2ral actions include “{ilndirect effects, which are caused by the action and are later in time . . . but are still reasonably foreseeable,” id. § 1508.8(b), as well as “[cjumulative impact . . which results from the incremental impact of the action when added to other . . . reasonably fore- 3la seeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions,” id. § 1508.7. We have already concluded that the President’s rescission of the moratorium was “reasonably foresee- able” at the time the EA was prepared and the decision not to prepare an EIS was made. Cf. Native Eco- systems, 304 F.3d at 896 (holding that a memorandum that “evidences a decision to consider . . . seriously” taking certain actions renders those actions “reasonably foreseeable”). To restrict consideration of the regu- lations’ “effects” in the way DOT proposes would con- travene not only the plain language of the CEQ regulations, but also the statutory command of NEPA, that environmental effects of government action be — “to the fullest extent possible.” 42 U.S.C. As for the requirement that the federal action be “major,” the CEQ regulations tell us that “[mJajor rein- forces 734 but does not have a meaning independent of significantly,” 40 C.F.R. § 1508.18, meaning that a federal action is “major” whenever it has “significant” environmental effects. See City of Davis v. Coleman, 521 F.2d 661, 673 n. 15 (9th Cir. 1975). 2. “Significantly Affecting the Human Environment” The CEQ regulations also define the crucial term “significantly,” to clarify the situations in which an agency must prepare an EIS: “Significantly” as used in NEPA requires considera- tions of both context and intensity: (a) Context. This means that the significance of an action must be analyzed in several contexts such as 32a society as a whole (human, national), the affected region, the affected interests, and the locality. Significance varies with the setting of the proposed action. For instance, in the case of a site-specific action, significance would usually depend upon the effects in the locale rather than in the world as a whole. Both short-and long-term effects are rele- vant. (b) Intensity. This refers to the severity of impact. . . . The following should be considered in evaluating intensity: (2) The degree to which the proposed action affects public health or safety. (4) The degree to which the effects on the quality of the human environment are likely to be highly controversial. (5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks. (10) Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment. 40 C.F.R. § 1508.27. If DOT’s action is environmentally “significant” according to any of these criteria, then DOT erred in failing to prepare an EIS. See Nat'l Parks, 241 F.3d at 731. An examination of these criteria reveal that the challenged regulations are 33a environmentally “significant,” and an EIS should have been prepared. (a) Context The CEQ regulations explain that the proposed federal action must be analyzed with regard to several contexts—national, regional, and local—as well as by looking at the short- and long-term effects of the proposed action. Measured against this standard, DOT’s EA is woefully inadequate. The EA calculates likely emissions increases if the Application and Safety Rules are implemented. It dismisses those increases as insignificant, however, because they are “very small relative to national levels of emissions.” It does not conduct any analysis regarding whether these increases may be localized in certain areas near the Mexican border, including such likely destinations as Southern California or Texas. Amicus ATA considers it “unreasonable” that DOT should have to “make a determination of the expected routes of 34,000 hypothetical [Mexican trucks].” Regardless of the law’s “reasonableness” (a question properly addressed by Congress—not us), this is pre- cisely what NEPA and the CEQ regulations require. The law requires DOT to consider the most likely locali- ties to be affected by increased Mexican truck traffic and to perform more localized analyses for these areas. Indeed, comments submitted to FMCSA during the notice-and-comment period analyzed publicly available government data to predict, not surprisingly, that major cities near the Mexican border would likely suffer the greatest environmental impact as a result of the regulations. The fact that commenters performed such an analysis does not indicate that their analysis 34a was correct, but rather that it was possible to conduct such an analysis. DOT’s failure to do so indicates that it did not take a sufficiently “hard look” at the environ- mental effects of its actions or at the public comments it received. Furthermore, DOT failed to address adequately the long-term effects of its actions. In conducting its EA, DOT limited its analysis to the environmental impact of Mexican trucks in the year 2002. This is anomalous in itself, considering that the regulations were scheduled to become effective only as of May 3, 2002. More signi- ficantly, the EA offered no projections of the increase (or decrease) in Mexican truck traffic after 2002, though the regulations were certainly expected to continue in effect beyond the end of last year; indeed they would be in effect now absent this action. ATA contends that increases in Mexican truck traffic in years subsequent to 2002 would be attributable to the “success of NAFTA,” rather than to the regulations themselves. This argument is beside the point, as it is impossible to separate increases in truck traffic due to the opening of the border from increases in truck traffic due to successful international trade; it is precisely this desired increase in international trade that prompted DOT to issue regulations facilitating cross-border truck traffic in the first place. Once again, DOT received this very criticism in pub- lic comments during its rulemaking process. The com- menters used available government data to estimate future increases in Mexican truck traffic after 2002. This alone should have prompted DOT to conduct a long-term analysis, as required by the CEQ regulations, or at the very least, to convineinglly . . . explain” its absence. Nat! Parks, 241 F.3d at 730. (b) Intensity (i) Effect on Public Health and Safety Petitioners contend that DOT must prepare an EIS, in part due to the potential effect of the challenged regulations on public health and safety. Although we have never discussed this requirement in the context of air pollution, other courts have considered “even [the] marginal degradation of drinking water” to be environ- mentally significant for purposes of this regulation. See United States v. 27.09 Acres of Land, 760 F.Supp. 345, 353 (S. D. N. Y. 1991). The same could easily be said of a “marginal degradation” of the quality of the air we breathe. The pollutants at issue are oxides of nitrogen (“NOx”) and airborne particulate matter (“PM-10”). These compounds are emitted into the air as part of the exhaust fumes of diesel trucks, such as those that are the subject of the challenged regulations. Petitioners- Intervenors have pointed to a wealth of government and private studies showing that diesel exhaust and its components constitute a major threat to the health of children, contribute to respiratory illnesses such as asthma and bronchitis, and are likely carcinogenic. While these studies were not placed in the admini- strative record, that does not excuse DOT’s failure even to consider whether any negative health effects could be associated with increased diesel exhaust emissions. (ii) Uncertainty If the environmental effects of a proposed agency action are uncertain, the agency must usually prepare an EIS: 36a Preparation of an EIS is mandated where uncer- tainty may be resolved by further collection of data, or where the collection of such data may prevent “speculation on potential . . . effects. The purpose of an EIS is to obviate the need for speculation by insuring that available data are gathered and analyzed prior to the implementation of the pro- posed action.” Nat'l Parks, 241 F.3d at 732 (quoting Sierra Club v. United States Forest Serv., 843 F.2d 1190, 1195 (9th Cir. 1988)) (internal citation omitted) (omission in original). There are a number of areas of uncertainty regarding DOT’s EA that merit additional investigation. The most significant of these is whether, and to what extent, cross-border Mexican truck traffic will increase if DOT implements the regulations. A related question is whether, and to what extent, such increased Mexican truck traffic will consist of trucks producing more dangerous emissions than their United States counter- parts. DOT acknowledges that “there are reasons to believe that [increased traffic and pollution] might occur,” but it contends that these increases will be smaller than Petitioners suggest. Strangely, despite DOT’s “reasons to believe” that such increases will occur, its EA does not address them. In fact, the EA specifically assumed for the purposes of its study that “the implementation of [the regulations) would not affect the trade volume between the United States [and] Mexico.” It contends instead that any increases “would be the result of the modification of the moratorium and not the imple- mentation of the [regulations].” Indeed, the EA asserts that the number of Mexican trucks in the United States will likely decrease as a result of the new regulations 37a alone, because not all existing Mexican trucks currently operating in the border zone could or will comply with them. This illogical parsing of the cause of increased pollution, i.e., that decreases in truck traffic are credited to DOT’s action, but the potentially much larger expected increases in the same traffic are attri- buted to the President’s modification of the morato- rium, dictates the EA’s overall conclusions. The EA goes on to evaluate the environmental effects of the regulations—attempting to segregate them from those attributable to the rescission of the moratorium—and concludes that the regulations will actually slightly reduce emissions by Mexican trucks within the border zone, and have no significant effect on air quality beyond the border zone, when evaluated on a national scale. This emissions analysis, in turn, is based on the EA’s further assumptions regarding the quality and age of the Mexican truck fleet. The EA assumes, without stating any basis there- fore, that it “considered” approximately one-third of Mexican trucks to be identical to United States trucks manufactured after 1994, while considering the re- maining trucks identical to United States trucks manu- factured in 1986. (More precisely, the EA “considered” 130,000 of 400,000 Mexican trucks to be manufactured after 1994, and the rest in 1986, and then lamented the “significant confounding variable” in its study, that the analysis programs it used “were based on United States vehicles.”) These years are significant because 1994 is the year after which Mexican emissions standards be- came equivalent to United States standards. The year 1986 was selected, according to DOT, because it was the last year when neither Mexico nor the United States had any relevant emissions regulations in place. 38a There are two problems with this analysis. First, the EA provides no basis whatsoever for its selection of one-third as the proportion of Mexican trucks manu- factured after 1994. Other studies, though not part of the administrative record, have concluded that this per- centage is closer to 20% (study by the General Account- ing Office) or even 10% (private study commissioned by the California Attorney General). While we do not consider such studies to be conclusive, they are at least founded on some analysis of raw data, and based on some ascertainable methodology. The EA, on the other hand, seems to have randomly selected one-third as its preferred proportion, citing no authority or study for that number. The second analytical defect echoes our concern re- garding the EA’s failure to consider long-term effects. The United States has already adopted much stricter emissions regulations that will become effective in 2004 and 2007. See 40 C. F. R. § 86.004-11 (2004); id. § 86.007- 11 (2007). In addition, six major United States diesel truck engine manufacturers have entered into consent decrees in the District Court for the District of Columbia in settlement of CAA violations, in which they have agreed to abide by certain of the 2004 emissions regulations as of October 1, 2002. See, e. g., Consent Decree, United States v. Caterpillar, Inc., No. 98-02544(HHK) (D.D.C. 1999). Neither the EA nor DOT cite to any known plans of the Mexican govern- ment to tighten its emissions standards beyond those currently in place. Indeed, the EA never even con- sidered this issue because, as discussed above, it limited its analysis to the year 2002. The existence of regu- lations and consent decrees that will significantly alter the relative environmental impact of Mexican truck 39a traffic in the near future would further strengthen the need for the EA to have considered future implications of its actions. Thus, the EA—assuming no increase in Mexican truck traffic, making an arbitrary assumption about the percentage of newer, “cleaner” Mexican trucks on the roads, and failing to take account of future increasing discrepancies in emissions rules—conducted an environmental analysis that found no increase in emis- sions due to the regulations’ implementation. Our law mandates that an agency complete an EIS “where uncertainty may be resolved by further collection of data, or where the collection of such data may prevent ‘speculation on potential . . effects“ Nat'l Parks, 241 F.3d at 732 (quoting Sierra Club, 843 F.2d at 1195) (internal citation omitted) (omission in original). Peti- tioners raise many uncertainties about the EA, as does amicus the Attorney General of the State of California, see infra, and there is no suggestion that these uncer- tainties do not lend themselves to quantification. (Indeed, Petitioners have submitted a number of studies attempting precisely what DOT should have done.) Once again, we do not wish to dictate the outcome of the analysis that DOT must perform. Perhaps DOT will determine that the new regulations will have only a minor impact—one which will be negligible in light of other factors. In the absence of such analysis, however, we cannot defer to the agency’s assessment. (iii) Threat of Illegality The California Attorney General asserts that DOT failed to take account of California’s emissions regula- tions, which are “more stringent than the federal 40a standards.” In its determination of whether its pro- posed action is significant, an agency must consider “(wJhether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment.“ 40 C. F. R. § 1508.27 b)(10) accord Sierra Club, 843 F. 2d at 1195. In Sierra Club, we faulted the Forest Service’s EA for its failure to consider, or even mention, California’s water quality standards, which might have been threatened by proposed timber sales. See Sierra Club, 843 F.2d at 1195. The same fault is present here. California has mandated the adoption of airborne pollutant standards for the state, Cal. Health & Safety Code § 39606 (West 2002), and has adopted rules setting specific limits for airborne pollutants, including NOx and PM-10, Cal. Code Regs., tit. 17, §§ 70100-200 (2002). Regardless of whether the influx of Mexican trucks will cause the levels of these pollutants to rise beyond California’s air quality limits—an issue on which the record before us is insufficient—DOT had an obligation to consider whether its regulations might violate these rules. The California Attorney General also points out that DOT’s actions could violate the CAA, thus further trig- gering the illegality prong of the significance analysis. Because we find that DOT violated the CAA, see infra, this further strengthens our conclusion that DOT’s actions are environmentally significant for NEPA purposes. (iv) Controversy “Controversy” sufficient to require preparation of an EIS occurs “when substantial questions are raised as to whether a project . . . may cause significant degrada- 4la tion of some human environmental factor, or there is a substantial dispute [about] the size, nature, or effect of the major Federal action.” Nat’l Parks, 241 F.3d at 736 (internal citations omitted and alterations in original). The evidence establishing such a controversy must be brought to the agency’s attention while the agency is conducting its deliberations, not post hoc. See id. Thus, the controversy requirement is two-fold: Petitioners must show that there was a “substantial dispute” about DOT’s actions and that this dispute raised “substantial questions” about their validity. The burden then shifts to DOT to provide a “convincing” explanation why no controversy exists. See id. Petitioners’ claim satisfies the first requirement. We have held that an “‘outpouring of public protest’” —where, for example, 85% of public comments opposed the proposed agency action—constitutes a substantial dispute. Jd. (quoting Greenpeace Action v. Franklin, 14 F.3d 1324, 1334 (9th Cir. 1992)). Here, “[o]ver 90 per- cent of the comments opposed” DOT’s regulations. Application Rule, 67 Fed. Reg. at 12,704. DOT timely received these comments, and duly noted their exis- tence in the comments accompanying the final regula- tions. See id. Petitioners’ claim also satisfies the second require- ment. A substantial portion of the negative comments offered real criticism of DOT’s action and its failure to adequately assess its 743 environmental impact. These comments, several of which were made by the future litigants here, as well as by other national environ- mental organizations, describe many of the defects discussed above. Because many of these criticisms have merit, and DOT failed to adequately account for its failure to act on them, its action is “controversial” 42a under the CEQ regulations and requires preparation of an EIS. (e) Convincing Statement of Reasons In sum, Petitioners have successfully demonstrated that DOT’s proposed regulations may have a “signifi- cant” environmental impact, mandating the preparation of an EIS. DOT has failed to demonstrate that its EA contains anything close to the statutorily required “con- vincing statement of reasons” sufficient to support a decision not to prepare an EIS. We are similarly unpersuaded by DOT’s last-ditch argument that, as an agency with no jurisdiction over environmental mat- ters, it need not consider the environmental conse- quences of its actions. This argument flies in the face of the text of NEPA, which requires that “all agencies of the Federal Government shall. . include in every . . . major Federal action{ ] significantly affecting the quality of the human environment, a detailed statement by the responsible official on . . . the environmental impact of the proposed action.” 42 U.S.C. § 4332(2) (emphasis added). One final point regarding the shortcomings of DOT’s EA is that its analysis is limited to comparing the status quo (the “Baseline Scenario”) to the situation in which the regulations had been implemented (the “Pro- posed-Action Scenario”). By not considering additional alternatives (such as, for example, proposing more stringent controls on incoming Mexican trucks), DOT further failed to abide by NEPA’s statutory command to prepare a “detailed statement on... alternatives to the proposed action.” 42 U.S.C. § 4332(2)(C); see also 40 C. F. R. § 1508.25(b)(2) (defining Aallternatives“ to include “({o]ther reasonable courses 43a of actions [sic]”). Indeed, the CEQ regulations state that consideration of alternatives “is the heart of the environmental impact statement.” 40 C.F.R. § 1502.14. “The rule of reason guides ‘both the choice of alterna- tives as well as the extent to which the Environmental Impact Statement must discuss each alternative.’” Am. Rivers, 201 F.3d at 1200 (quoting City of Carmel- by-the Sea v. United States Dep’t of Transp., 123 F.3d 1142, 1155 (9th Cir. 1997)). “(Flor alternatives which were eliminated from detailed study, [an agency must] briefly discuss the reasons for their having been eliminated.’” Jd. (quoting 40 C.F.R. § 1502.14(a)) (emp- hasis omitted). Thus, in preparing its EIS, DOT should explore a wider range of alternatives. B. Categorical Exclusion of the Certification Rule We next must determine whether DOT acted arbitrarily and capriciously in failing to conduct any NEPA environmental analysis at all for the Certifi- cation Rule. DOT contends that this rule falls within an exception to the generally applicable requirements of NEPA. The CEQ regulations allow categorical ex- clusion of actions “which do not individually or cumu- latively have a significant effect on the human environ- ment and which have been found to have no such effect in procedures adopted by a Federal agency in imple- mentation of these regulations.” 40 C.F.R. § 1508.4 (citing 40 C.F.R. § 1507.3) (emphasis added). For such actions, “neither an environmental assessment nor an environmental impact statement is required.” Id. Agencies are required to develop guidelines as to which of their actions do or do not require the pre- paration of an EA or an EIS. See id. § 1507.3. FMCSA, as a constituent agency, is subject to DOT’s guidelines. 44a See Dep’t of Transp., Order 5610.1C, at J 20(a)(2) (Sept. 18, 1979), as amended (July 13, 1982 and July 30, 1985), available at http://isdde.dot.gov [hereinafter “DOT Order 5610.1C”]. Individual agencies within DOT are permitted to issue their own guidelines, id. 1 20(a)(1), but FMCSA has not done so. Therefore, we must examine DOT’s Order to determine whether the Certification Rule falls within those categories of actions that it has “found to have no environmental] effect.” 40 C.F.R. § 1508.4. Paragraph 4(c) of the order specifies the categorical exclusions DOT employs. See DOT Order 5610.1C, at 1 4(c). The list includes such actions as Jaldministra- tive procurements,” Iplersonnel actions,” and “[p]ro- ject amendments (e.g. increases in costs) which do not significantly alter the environmental impact of the action.” Jd. There is no categorical exclusion that seems even plausibly capable of encompassing the Certification Rule.’ In effect, DOT is arguing that, 6 The “categorical exclusions” paragraph of DOT Order 5610.1C reads as follows: c. Categorical Exclusions. The following actions are not Federal actions with a significant impact on the environment, and do not require either an environmental assessment or an environmental impact statement: (1) Administrative procurements (e.g. general supplies) and contracts for personal services; (2) Personnel actions (e.g. promotions, hirings), (3) Project amendments (e.g. increases in costs) which do not significantly alter the environmental impact of the action; (4) Operating or maintenance subsidies when the subsidy will not result in a change in the effect on the environment; and 45a even though the Certification Rule is not subject to any of DOT’s categorical exclusions, it should be categori- cally excluded from the EA/EIS requirement because it has no significant environmental impact. This cannot be the case. ä We review an agency’s determination that a parti- cular action falls within one of its categorical exclusions under the arbitrary and capricious standard. Alaska Ctr. for Env’t v. United States Forest Serv., 189 F.3d 851, 857 (9th Cir. 1999); see also California v. Norton, 311 F.3d 1162, 1176 (9th Cir. 2002). [An agency’s interpretation of the meaning of its own categorical exclusion should be given controlling weight unless plainly erroneous or inconsistent with the terms used in the regulation.” Alaska Ctr., 189 F.3d at 857. DOT has failed to identify any particular categorical exclusion applicable to the Certification Rule and may not do so post hoc. Norton, 311 F.3d at 1175. Even if it could, any claim that one of these exclusions applied would be contrary to the plain text of the DOT Order, and thus “inconsistent with the terms used in the regulation,” and not entitled to our deference. Thus, DOT acted in an arbitrary and capricious manner by failing to prepare an EIS, or at least in failing to prepare an EA for the Certification Rule and then determining on that basis whether to prepare an EIS. (5) Other actions identified by [individual] administrations as categorical exclusions pursuant to paragraph 20. (6) The following actions relating to economic regulation of DOT Order 5610.1C, at J 4(c). As noted above, FMCSA has not promulgated its own supplemental rules pursuant to J 4(c)(5). 46a VI. CONFORMITY DETERMINATION UNDER THE CAA Petitioners also contend that DOT acted arbitrarily and capriciously in failing to conduct a conformity determination under the CAA. The CAA requires EPA to establish air quality standards for certain pollu- tants, 42 U.S.C. § 7409, and it has done so with respect to NOx and PM-10, the pollutants most at issue here, 40 C. F. R. § 50.6, .7,.11. Each state, in turn, is required to adopt and submit for EPA approval a State Imple- mentation Plan (“SIP”) for each pollutant. 42 U.S.C. § 7410(a)(1). Each state is divided into “air quality control regions,” which are classified as “attainment” or “nonattainment” with respect to each pollutant for which there exists an air quality standard. Id. § 7407. SIPs must contain emissions limitations and other measures designed to bring “nonattainment” regions into attainment. Id. § 7410(a)(2). To ensure compliance with these plans, the CAA contains a “conformity” requirement, mandating that Injo department, agency, or instrumentality of the Federal Government shall engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform to [a SIP].” Id. § 7506(c)(1). Most federal actions affecting levels of pollutants in nonattainment regions require that the responsible agency conduct a “con- formity determination.” 40 C.F.R. § 93.150-.160. How- ever, two categories of federal action are exempted from this requirement: (1) Jaletions where the total of direct and indirect emissions are below the emissions level specified in [the regulations],” id. § 93.153(c)(1); and (2) “[ajetions which would result in no emissions increase or an increase in emissions that is clearly de 47a minimis,” including “[rjulemaking and policy develop- ment and issuance,” id. § 93.153(c)(2). DOT argues that its regulations fall within both of the above-listed ex- ceptions: that the total emissions caused by the regu- lations fall below the specified amount, and that the regulations are categorically excluded from the statu- tory requirements because they are “rulemaking.” We review under the arbitrary and capricious standard an agency's decisions regarding SIP conformity deter- minations, as well as its decisions that certain projects do not require conformity determinations. Olmsted Falls, 292 F. 3d at 270. DOT’s assessment that its regulations will cause emissions below the amounts specified in 40 C.F.R. § 93.153(b)(1), thus excusing it from making a con- formity dete. mination, is based on the predicted emis- sions in its EA. As we have already determined, how- ever, DOT failed to conduct a reliable environmental analysis. Because of its illusory distinction between the effects of the regulations themselves and the effects of the presidential rescission of the moratorium on Mexican truck entry, DOT systematically underesti- mated the emissions that would result from its regu- lations. Furthermore, there were a number of metho- dological flaws in DOT’s EA, including, most relevantly for CAA purposes, the failure to consider its regula- tions’ environmental impact on a local or regional basis. The CAA mandates that each state be divided into “air quality control regions,” which are evaluated individually as to their compliance with air quality standards. 42 U.S.C. § 7407. Thus, proper CAA analysis must be conducted at the local and regional levels. The national emissions analysis in DOT’s EA is inadequate to comply with the CAA. Because DOT is 48a required to perform a new, more thorough region-by- region environmental analysis to achieve compliance with NEPA, it should also determine, as a result of its new analysis, whether the emissions resulting from its actions will truly fall below the levels established in § 93.153(b)(1). Cf. Olmsted Falls, 292 F.3d at 270-73 (holding that petitioners did not meet their burden of proof on whether a conformity determination was re- quired by simply suggesting that it was an “open question” whether the emissions limits would be exceeded). Second, DOT claims that by listing “[rJulemaking” as a type of “[a)ction [] which would result in no emissions increase or an increase in emissions that is clearly de minimis,” 40 C. F. R. § 93.153(c)(2), the EPA intended to exempt all federal regulations from the requirements of the CAA. Petitioners respond that the exception encompasses only the process of rulemaking itself, but not the agency’s implementation and execution of validly promulgated regulations. A careful reading of the EPA regulations, keeping the statutory purpose in mind, dispenses with DOT’s erroneous, albeit novel, assertion. The first striking element is that “rulemaking” is listed as a type of “[a)ction[ ] which would result in no emissions increase or an increase in emissions that is clearly de minimis.” Jd. If the EPA drafters truly intended to exempt all federal regulations from the con- formity determination requirement, they certainly would have been aware that some federal regulations do in fact result in an increase in emissions (or an in- crease that is not merely de minimis). Indeed, the EPA regulations specify that there are two kinds of 49a emissions, “direct emissions” and “indirect emissions.” Id. § 93.152. Indirect emissions are defined as: those emissions . . . that . . . [aJre caused by the Federal action, but may occur later in tine from the action itself but are still reasonably foreseeable; and . . . [t]he Federal agency can practicably control and will maintain control over due to a continuing program responsibility of the Federal agency. Id. “Caused by” was used to refer to a that would not otherwise occur in the absence of the Federal action.” Jd. Using the but-for analysis suggested by the EPA regulations, a substantial number of federal regulations would result in emissions above de minimis levels. If the EPA had wished to exclude all federal regulations from the scope of this requirement, it easily could have made a bolder statement exempting all federal regu- lations, regardless of whether they cause direct or indirect emissions. Another clue as to the proper interpretation of the de minimis exception is the fact that the exception is for “rulemaking and policy development and issuance.” Id. § 93.153(c)(2)(iii). This juxtaposition strongly suggests that Petitioners are correct in arguing that the “rule- making” exception should apply only to the process of developing and issuing federal regulations, as opposed to the substantive result produced by the actual implementation of the final rules. Finally, it is relatively easy to imagine federal regulations or “policies” that could have drastic effects 50a on emissions of regulated substances. Even assuming that it is possible the EPA intended these regulations to exclude such actions from the ambit of the CAA’s statutory requirements, such a reading would conflict with the basic command of the statute: “No depart- ment, agency, or instrumentality of the Federal Government shall engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform to [a SIP].” 42 U.S.C. S 7506(c)(1). “A federal regulation in conflict with a federal statute is invalid as a matter of law.” Watson v. Proctor (In re Watson), 161 F.3d 593, 598 (9th Cir. 1998) (citing Chem. Mfrs. Ass n v. Natural Res. Defense Council, Inc., 470 U.S. 116, 126, 105 S. Ct. 1102, 84 L. Ed. 2d 90 (1985)) (emphasis in original). Con- sequently, the Supreme Court has held that an agency’s interpretation of a regulation that conflicts with the plain language of the statute is entitled to “no de- ference.” Pub. Employees Ret. Sys. v. Betts, 492 US. 158, 171, 109 S. Ct. 2854, 106 L.Ed.2d 134 (1989). Thus, we read the EPA regulation, to preserve its validity, so that the categorical exception encompasses only the “development and issuance” of federal regulations, not the substantive results of their promulgation and imple- mentation. This conclusion does not conflict with Environmental Defense Fund, Inc. v. EPA, 82 F.3d 451 (D. C. Cir.) (per curiam), as amended, 92 F.3d 1209 (D. C. Cir. 1996). In Environmental Defense Fund, the D.C. Circuit ex- amined the validity of EPA regulations nearly identical to those here, and specifically concluded that the “de 1 The Environmental Defense decision analyzed 40 C.F.R. § 51.850-.860, which concerned CAA conformity determinations of SIPs with DOT programs under Title 23 of the United States Code 5la minimis” exceptions were “an appropriate exercise of the EPA’s authority, inherent in the statutory scheme.” Id. at 467. In examining the regulations, the court con- sidered the conclusion “that the categorical exemptions are de minimis [to be] entirely self-evident; the EPA has concluded that these activities ‘would result in no emissions increase or an increase in emissions that is clearly de minimis,’ and we neither see nor would ex- pect to find any evidence to the contrary.” Jd. (quoting 40 CF. R. § 51.853(c)(2)). Had the D. C. Circuit been reading the EPA regulations in the manner DOT sug- gests, it certainly “would expect to find” at least some evidence tending to contradict such a premise. Though it did not discuss the “rulemaking” exception specifi- cally, the D.C. Circuit suggests that it would have invalidated the EPA regulation as conflicting with the CAA had the language or context suggested such a broad reading of the regulation. Thus. we decline DOT’s suggestion to read the EPA regulation in a way that would tend to under-mine its validity. Vil. CONCLUSION We have jurisdiction over the petitions for review. We emphasize that we draw no conclusions about the actions of the President of the United States nor the validity of NAFTA, neither of which is before us. The only question before us is whether a federal agency failed to comply with our nation’s long-established en- vironmental laws. We hold that the Department of Transportation acted arbitrarily and capriciously in failing to prepare a full Environmental Impact State- ment under the National Environmental Protection or the Urban Mass Transportation Act, 49 U.S.C. §§ 5301-5338, neither of which are implicated in this case. 52a Act, as well as a conformity determination under the Clean Air Act. Therefore, we grant the petitions, and remand this matter to the Department of Transporta- tion so that it may prepare a full Environmental Impact Statement and Clean Air Act conformity determination for all three regulations. GRANTED AND REMANDED. 53a APPENDIX B RULES and REGULATIONS DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Part 365 [Docket No. FMCSA-98-3298] RIN 2126-AA34 Application by Certain Mexico-Domiciled Motor Carriers To Operate Beyond United States Municipalities and Commercial Zones on the United States-Mexico Border Tuesday, March 19, 2002 AGENCY: Federal Motor Carrier Safety Administra- tion (FMCSA), DOT. ACTION: Interim final rule; request for comments. SUMMARY: The FMCSA revises its regulations and form, OP-1(MX), governing applications by Mexico- domiciled carriers who want to operate within the United States beyond the municipalities adjacent to Mexico in Texas, New Mexico, Arizona and California and beyond the commercial zones of such municipalities (“border zones”). This interim rule includes require- ments that were not proposed in the NPRM, but which are necessary to comply with the Fiscal Year 2002 DOT 54a Appropriations Act enacted into law in December 2001. This action is taken in anticipation of a presidential order lifting the current statutory moratorium on authorizing such operations. The form requires addi- tional information about the applicant’s business and operating practices to help the FMCSA to determine if the applicant will be able to meet the safety standards established for operating in interstate commerce in the United States. Carriers that previously submitted an application to operate beyond the border zones must submit the updated form. Any Mexico-domiciled motor carrier (of property) that wants to operate within the United States solely within the border zones must apply under separate FMCSA regulations that we are issuing elsewhere in today’s Federal Register. The revisions in this action are part of FMCSA’s efforts to ensure the safe operation of Mexico-domiciled motor carriers in the United States and implement the 2002 DOT Appropriations Act. This action will ensure that FMCSA receives adequate information to assess an applicant’s ability to comply with U.S. safety standards. It requires that all Mexico-domiciled carriers subject to this rule undergo a safety audit before receiving pro- visional authority to operate in the United States. Therefore, the FMCSA is publishing this action as an interim final rule and is delaying the effective date in order to consider additional public comments regarding pre-authorization safety audits before grants of pro- visional authority. These changes will result in the FMCSA being able to better maintain an accurate census of Mexico-domiciled carriers operating beyond the border zones. DATES: This interim final rule is effective May 3, 2002. We must receive comments by April 18, 2002. 55a ADDRESSES: You can mail, fax, hand deliver or elec- tronically submit written comments to the Docket Management Facility, United States 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 com- ments 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 elec- tronic 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. Comments received after the comment closing date will be included in the docket and we will consider late comments to the extent practicable. FMCSA may, however, issue a finai rule at any time after the close of the comment period. FOR FURTHER INFORMATION CONTACT: Joanne Cisneros, (909) 653-2299, Transborder Office, FMCSA, P.O. Box 530870, San Diego, CA 92153-0870. Office hours are from 7:45 a.m. to 4:15 p.m., p.t., Monday through Friday, except Federal holidays. 56a SUPPLEMENTARY INFORMATION: Background Before 1982, Mexico-domiciled motor carriers could apply for authority to operate within the United States by filing an application for such authority with the former Interstate Commerce Commission (ICC). Under the Bus Regulatory Reform Act of 1982 (the Act), Congress imposed a 2-year moratorium on the issuance of new grants of U.S. operating authority to motor carriers domiciled in a contiguous foreign country, or owned or controlled by persons of a contiguous foreign country. The legislation authorized the President to remove or modify the moratorium upon a determination that such action was in the national interest. The Act was developed in response to complaints that neither Mexico nor Canada were per- mitting U.S. motor carriers the same access to their markets as Mexican and Canadian motor carriers had to U.S. markets. While the trade issues with Canada were resolved quickly, resulting in the moratorium being lifted for Canada-domiciled motor carriers, the trade issues with Mexico were not addressed until the North American Free Trade Agreement (NAFTA) was nego- tiated in the early 1990s. Legislative and executive extensions have maintained the moratorium for Mexico- domiciled motor carriers since 1982. A number of Mexico-domiciled motor carriers have been permitted to operate in the United States because they are not covered by the moratorium. The mora- torium only applies to new grants of operating author- ity. Thus, the operations of Mexico-domiciled motor carriers that had obtained unrestricted operating authority before the moratorium was enacted were 57a unaffected by the moratorium. Additionally, access has been allowed for certain motor carriers whose opera- tions fell outside the ICC’s licensing jurisdiction. These carriers receive Certificates of Registration by filing Form OP-2 under the provisions of what is now 49 CFR part 368. These carriers include those that operate solely within the border zones. Also included among these are certain types of carriers whose operations are not restricted to the border zones: U.S.-owned, Mexico- domiciled private carriers; U.S.-owned, Mexico-domi- ciled carriers of exempt goods; and Mexico-domiciled carriers that only traverse the United States to deliver or pick up cargo or passengers in Canada. The terms of NAFTA, Annex I, provide that the United States would incrementally lift the moratorium on licensing Mexico-domiciled motor carriers to operate beyond the border zones. Pursuant to the first phase of NAFTA, on January 1, 1994, the President modified the moratorium and the ICC began accepting applications from Mexico-domiciled passenger carriers to conduct international charter and tour bus operations in the United States. In December 1995, ICC promulgated a rule and a revised application form for the processing of Mexico-domiciled property carrier applications. These rules anticipated the implementation of the second phase of NAFTA, providing Mexico-domiciled property carriers with access to the four U.S. States bordering Mexico, and the third phase, providing access throughout the United States. The ICC designated the revised application form OP-1(MX). Through the ICC Termination Act of 1995 (ICCTA), Congress authorized the President to remove or modify the moratorium upon the President’s determination that such action is consistent with United States obliga- 58a tions under a trade agreement or with United States transportation policy. The ICCTA also dissolved the ICC and transferred the authority to issue new grants of U.S. operating authority for motor carriers and some other of its regulatory functions to the Secretary of Transportation, who delegated this authority to the Office of Motor Carriers (OMC) of the Federal Highway Administration (FHWA). On December 15, 1995, the International Brother- hood of Teamsters (Teamsters) sought an emergency stay of the ICC rule in the United States Court of Appeals for the District of Columbia. The Teamsters contended that the ICC rule was arbitrary and capri- cious because it failed to address concerns regarding the safe operation of Mexico-domiciled motor carriers. In their comments on the ICC rule, the Teamsters had requested the ICC to add additional safety questions to the applications filed by Mexico-domiciled carriers to ensure that the applicants were willing and able to comply with applicable safety regulations. On December 18, 1995, the Secretary of Transporta- tion announced an indefinite delay in implementing the NAFTA motor carrier access provisions. The Court of Appeals subsequently denied the Teamsters’ request for an emergency stay of the ICC rule, which became an FHWA regulation upon the termination of the ICC, and set the case for briefing and argument. After the Teamsters’ case was briefed and argued, the court ordered the case held in abeyance until the Department decided to commence processing applications of Mexico- domiciled motor carriers seeking authority to operate beyond the border zones. Approximately 190 Mexico- domiciled carriers have filed OP-1(MX) applications with the Department. 59a Mexico filed complaints against the United States under NAFTA’s dispute resolution provisions, chal- enging the United States’ decision to deny further trucking, investment, and bus access. An arbitration panel comprised of five individuals with international trade expertise chosen by the United States and Mexico met in May 2000 to hear the trucking and in- vestment case. The parties engaged in extensive pre- and post-hearing briefing on safety and legal issues. The panel issued a final report on February 6, 2001, that unanimously concluded that the blanket refusal to process applications of Mexico-domiciled motor carriers seeking U.S. operating authority out of concerns over the carriers’ safety was in breach of NAFTA obliga- tions of the United States, specifically NAFTA’s pro- visions ensuring national treatment and most-favored- nation treatment for cross-border services. The panel also unanimously decided that the United States’ re- fusal to permit Mexican nationals to invest in U.S. enterprises that provide transportation of international cargo within the United States violated the United States’ NAFTA obligations. In June 2001, the Pre- sident lifted this part of the moratorium. With respect to its decision on the U.S. refusal to implement NAFTA’s truck access provisions, the panel stated that it did not disagree that truck safety is a legitimate regulatory objective and that it was not limiting U.S. application of its truck safety standards to Mexican carriers operating in the United States pro- vided that they are applied in a manner that is con- sistent with the United States’ NAFTA obligations. The panel noted that compliance with NAFTA obliga- tions did not require the granting of operating author- ity to Mexican trucking companies that might be unable 60a to comply with U.S. safety regulations. The panel observed that the United States might not be required to treat applications for operating authority from Mexican trucking firms in exactly the same manner as applications from U.S. or Canadian firms, as long as the applications are reviewed on a case-by-case basis. The panel stated that to the extent that Mexican licensing and inspection requirements might not be like U.S. requirements, the United States might be justified in using methods to ensure Mexican carrier compliance with the U.S. regulatory regime that differ from those used for U.S. and Canadian carriers, provided that such different methods are used in good faith to address legitimate safety concerns and fully conform with all relevant NAFTA provisions. It is important to note that this interim final rule and the two related rules published elsewhere in today’s Federal Register represent only part of the FMCSA’s effort to ensure the safe operation of Mexico-domiciled motor carriers in the United States. For example, Mexico-domiciled motor carriers, their vehicles, and their drivers operating in the United States have been and will continue to be subject to all of FMCSA’s safety requirements, inspection procedures, enforcement mechanisms, and fines and out-of-service orders. In addition to being subject to the various safety audits and compliance reviews contained in these rules, these carriers and their vehicles and drivers will continue to be subject to roadside vehicle inspections performed at the border and throughout the United States by FMCSA inspectors and their State partners. FMCSA has received additional funding from Congress to enhance its inspection capabilities at the border. The FMCSA is also conducting seminars in Spanish for 6la Mexican carriers to help ensure that they understand U.S. safety requirements. FMCSA personnel also ex- pect to continue their cooperative efforts with their Mexican Government counterparts toward enhancing Mexico’s motor carrier regulatory regime. The DOT’s Research and Special Programs Admini- stration (RSPA) has made considerable progress in harmonizing the hazardous materials standards of the United States and Mexico. Though Mexican hazardous materials standards are not as comprehensive as U.S. standards, those in place are compatible with U.S. standards. RSPA has also made significant strides in educating Mexico-domiciled hazardous materials shippers and carriers in hazardous materials safety. In 1993, it translated the U.S. Emergency Response Guide into Spanish. Since then, Mexican emergency response information requirements have been harmonized with existing U.S. emergency response information require- ments. The U.S., Mexican and Canadian Governments now jointly issue an Emergency Response Guide. RSPA has also translated various hazardous materials brochures and pamphlets into Spanish as well as identified free hazardous materials industry resources to assist the Mexican Government’s Secretaria de Comunicaciones y Transportes (SCT) in providing haz- ardous materials and emergency response training for its inspectors. Section 350 of the 2002 DOT Appropriations Act, Public Law 107-87 (Act), prohibits the Secretary of Transportation from obligating or expending funds for reviewing or processing applications of Mexico- domiciled motor carriers for authority to operate beyond the United States municipalities and com- 62a mercial zones on the United States-Mexico inter- national border until the FMCSA and DOT complete several enumerated actions. Many of the requirements of the Act have been incorporated into this interim final rule and the two companion rules published elsewhere in today’s Federal Register. Under this interim final rule FMCSA will: (1) Conduct safety examinations or audits on Mexico-domiciled carriers seeking author- ity to ope. ate beyond the border zones encompassing the nine areas of inquiry required by section 350(a)(1)(B); (2) assign a distinctive U.S. DOT number to each Mexico-domiciled motor carrier operating beyond the border zones, in accordance with section 350(a)(4); (3) require Mexico-domiciled motor carriers operating beyond the border zones to certify that they will have their vehicles inspected by Commercial Ve- hicle Safety Alliance (CVSA)-certified inspectors every three months, in accordance with section 350(a)(5); and (4) require Mexico-domiciled carriers to provide proof of valid insurance issued by an insurance company licensed in the United States before granting them authority to operate beyond the border zones, in accordance with section 350(a)(8). FMCSA invites comments about how the interim final rule incorporates these new section 350 provisions into the application and approval process. Summary of Notice of Proposed Rulemaking (NPRM) The FMCSA proposed changes to its regulations and application procedures for Mexico-domiciled motor 63a cants wanting to conduct transportation servi ithi the United States beyond the border zones ao mit a redesigned Form OP-1(MX). The proposed appli- cation solicited information to indicate the nature of the — demonstrate the applicant’s knowledge of je requirements of the Federal Motor Carrier — Regulations (FMC SRS) and describe how it — to comply with these regulations. Further- >, we proposed to require each applicant to make specific certifications of compliance, such as requirin = applicant to submit verification from the — vernment that it is a registered Mexico-domiciled carrier authorized to conduct motor carrier operations oP .. the United States-Mexico border and that all — = operate in the United States have a valid — neia Federal de Conductor (LF C) issued by the — —— of Mexico. The applications would also be — — ayy gory set forth in part 365 for publication in the FMCSA Register). —- Discussion of Comments to the NPRM . In response to the three NPRMs relati implementation, the FMCSA ene pn hy 900 come —— Over 90 percent of the comments opposed the — — monitoring system or the border opening. Most — e comments focused on the proposed safety moni- — system (66 FR 22415) and will be fully discussed elsewhere in today’s Federal Register. A large — of the commenters addressed all three — 22 in a single submission that may have been — in one or all three public dockets. We have care- y considered them and have revised the Form 64a OP-1(MX) application form and the regulations govern- ing the application process as noted in the preamble sections titled “Discussion of the Interim Final Rule” and “Final Revisions to Form OP-1(MXA).” In this section, FMCSA responds to the comments on Form OP-1(MX) (and common elements to Form OP-2) and part 365. The Friends of the Earth, Natural Resources Defense Council, Sierra Club, and Center for Inter- national Law (Friends of the Earth et al.) jointly com- mented that FMCSA is required to perform additional analysis to meet the requirements of the National Environmental Policy Act (NEPA) and Executive Order 13045, concerning the protection of children from environmental and health and safety risks. The Inter- national Brotherhood of Teamsters (Teamsters) also expressed this viewpoint. The Friends of the Earth et al. believe that 40 CFR 1501.3(b) requires that if DOT is not certain that an environmental impact statement is required, then it must first prepare an environmental assessment. Regarding compliance with Executive Order 13045, the Friends of the Earth et al. believe that this action presents increased pollution and safety concerns that pose a disproportionate risk to children. The FMCSA is preparing an agency order to meet the requirements of DOT Order 5610.1C (that estab- lishes the Department of Transportation’s policy for compliance with NEPA by the Department’s admini- strations). The FMCSA has conducted a programmatic environmental assessment (PEA) of the three rule- makings in accordance with the DOT Order and the regulations of the Council on Environmental Quality. A discussion of the PEA and its findings and the FMCSA’s responsibilities under E. O. 13045 is pre- 65a sented later in the preamble under “Regulatory Analyses and Notices.” A copy of the PEA is in the docket to this rulemaking. The Attorney General for the State of California submitted a comment in which he asserted that the FMCSA would be required to perform a “conformity determination” pursuant to the Clean Air Act (CAA), before finalizing these rulemakings. Under the CAA, Federal agencies are prohibited from supporting in any way, any activity that does not conform to an approved State Implementation Plan (SIP), (42 U.S.C. 7006). EPA regulations implementing this provision require Federal agencies to determine whether an action would conform with the SIP (a “conformity determination”), before taking the action (40 CFR 93.150). The Attorney General asserts that the FMCSA must make a conformity determination before taking final action to implement regulations that would allow Mexican trucks to operate beyond the border. The Attorney General provided technical information to support his assertion that allowing Mexican trucks to operate beyond the border would likely not be in conformity with Cali- fornia’s SIP. We have reviewed our obligations under the CAA, and believe that we are in compliance with the general conformity requirements as implemented by the U.S. Environmental Protection Agency (EPA). EPA's im- plementing regulations exempt certain actions from the general conformity determination requirements. Actions which would result in no increase in emissions or clearly a de minimis increase, such as rulemaking (40 CFR 93.153(c)(iii)), are exempt from requiring a con- formity determination. In addition, actions which do not exceed certain threshold emissions rates set forth in 40 66a CFR 93.153(b) are also exempt from the conformity determination requirements. The FMCSA rulemakings meet both of these exemption standards. First, as noted elsewhere in this preamble to this rule, the actions being taken by the FMCSA are rulemaking actions to improve FMCSA’s regulatory oversight, not an action to modify the moratorium and allow Mexican trucks to operate beyond the border. Second, the air quality impacts from each of the FMCSA’s rules neither individually nor collectively exceed the threshold emissions rates established by EPA (see Appendix C of the Environmental Assessment accompanying these rulemakings for a more detailed discussion of air quality impacts). As a result, we believe that FMCSA’s rulemaking actions comply with the CAA require- ments, and that no conformity determination is re- quired. The American Insurance Association (AIA) com- mented that the OP-1(MX) form does not make clear the fact that layered insurance filings (primary and excess securities) are acceptable. The AIA suggested modifying the form to make it clear. The FMCSA does not find this modification to be necessary because the acceptability of layered insurance filings is clearly explained in 49 CFR part 387, subpart C. The International Brotherhood of Teamsters (Team- sters) commented that the financial responsibility section of the form should be modified to make clear that we would not grant provisional operating authority until we receive the appropriate filings for financial responsibility and service of process agents from the applicant and its financial responsibility agent(s). The AFL-CIO’s Transportation Trades Department (TTD) commented that various statements and certifications 67a could be made more understandable. The FMCSA will verify that a carrier has the necessary financial respon- sibility as part of the pre-authorization safety audit. However, there will be no DOT number issued at that time under which a filing may be made. Therefore, we will permit insurance companies to file evidence of insurance with FMCSA after provisional authority is granted. However, provisional operating authority will not be valid, and the carrier may not operate under that authority, until an insurance filing is made with, and accepted by, the agency. This is consistent with the procedure applicable to U.S. and Canadian carriers required to obtain operating authority under 49 U.S.C. 13901. In a similar vein, we are giving applicants the option of including with the application a notification that a process agent service will electronically file the necessary process agent information within 90 days. As is the case with U.S. and Canadian carriers subject to 49 U.S.C. 13901, a Mexico-domiciled carrier may not operate in the United States until the process agent filing is made with, and accepted by, the agency. United Parcel Service (UPS) commented that the application and regulations for Mexico-domiciled car- riers requesting operating authority should identify express delivery as a separate kind of carrier operation. UPS explains that this distinction would enable the United States to accelerate the timeline for lifting the moratorium for express delivery services, without awaiting action on general trucking. We do not see the need at this time for the rules to distinguish between express delivery services and general trucking services. We do not expect that the moratorium will be lifted for express delivery services before the lifting of the moratorium on general truck- 68a ing. In addition, the United States maintains a reserva- tion under the NAFTA on the transportation of goods other than international cargo between points in the United States, and the reservation covers both express delivery services and other motor carrier services. The Owner-Operator Independent Drivers Associa- tion, Inc. (OOIDA) and the California Trucking Associa- tion (CTA) recommended that the form specify the additional U.S. laws to which Mexico-domiciled carriers would be subject. The OOIDA commented that since NAFTA requires Mexico-domiciled carriers to comply with U.S. laws and all applicable State laws when operating within the United States, the FMCSA should set forth the particular U.S. laws to which applicants are subject. They believe form references to other laws are too vague and should be more fully enumerated. The CTA recommends modifying the form to require an applicant to certify that it will comply with the laws of other U.S. agencies. The FMCSA believes that it is beyond the scope of this rulemaking to provide an exhaustive listing and explanation on the OP-1(MX) form of all Federal and State laws to which carriers are subject when operating within the United States. However, we are conducting information sessions for potential applicants where, among other things, we discuss additional information provided by other Federal agencies and State registra- tion requirements. This information will also be on the FMCSA web site. We have worked closely with other Federal agencies, including the U.S. Department of Labor (DOL), U.S. Environmental Protection Agency (EPA) and others, in drafting and clarifying the statement that appears after the signature line of Section VIII—Compliance Certifi- 69a cations. This statement underscores the importance of complying with all pertinent Federal, State, local and tribal statutory and regulatory requirements, including labor, environmental, and immigration laws. Such compliance includes producing requested records for review and inspection. It also includes compliance by drivers who must meet the requirements under the Immigration and Nationality Act, 8 U.S.C. 1101 et seq., and pass inspection by inspectors of the Immigration and Naturalization Service at the port of entry. The American Trucking Associations, Inc. (ATA) OOIDA, the Teamsters, and the TTD expressed con- _ cern that the hazardous materials requirements listed in the safety certification statements were incomplete, suggesting a more comprehensive listing of require- ments, including the hazardous material registration requirement. They suggested additional hazardous materials documentation to be submitted with the application. The Transportation Lawyers Association (TLA) believes that the current and proposed applica- tion procedures have a loophole regarding identification of hazardous materials carriers. It contends that the check the block” system, and the fact that none of the information described in the hazardous materials certification statements must be submitted with the ap- plication, enable the hazardous materials transporter to escape detection. Neither the form nor application procedures require a carrier who later decides to transport hazardous materials to notify the FMCSA or provide evidence of knowledge of hazardous materials standards—only to increase the amount of insurance carried. We have corrected and modified the h material certifications in response to these — 70a The hazardous materials certification statements have been revised to more thoroughly reference applicable hazardous materials requirements and request the supplemental information required by the Hazardous Materials Regulations. Please reference the section “Final Revisions to the Form OP-1(MX)” for a detailed discussion of revisions to the certification statements. Information regarding hazardous materials operations will be verified during the pre-authorization safety audit established in this interim final rule pursuant to section 350 of the DOT Appropriations Act. Section 350 of the Act prohibits Mexico-domiciled motor carriers from transporting hazardous materials in a placardable quantity beyond the border zones until the United States has completed an agreement with the Government of Mexico ensuring that drivers of such placardable quantities of hazardous materials meet substantially the same requirements as U.S. drivers carrying such materials. Section 1012(b) of the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001” (USA PATRIOT Act) [Pub. L. 107-56, October 26, 2001] amended the Hazardous Materials Transportation Act (49 U.S.C. 5101-5127) and the Commercial Motor Vehicle Safety Act of 1986 (49 U.S.C. 31301-31317) by placing limitations on the issuance or renewal of hazardous materials licenses. (The DOT interprets the term “hazardous materials licenses” to mean a hazardous materials endorsement for a commercial driver’s license because of the refer- ence to section 31305 in section 1012(b).) The OP-1(MX) form will require additional information regarding cargo tank certification, hazardous materials training, 71a and persons responsible for ensuring compliance with the Hazardous Materials Regulations. The CTA commented that the FMCSA should distri- bute an applicant’s Single State Registration System (SSRS) filing to the appropriate SSRS members. The FMCSA does not have the resources to coordinate the SSRS filings for Mexico-domiciled carriers. We have also removed specific references to the SSRS from the form instructions (although the requirement still re- mains), because it is one of many State requirements. We do not wish to imply that the SSRS requirement is the sole State requirement for Mexico-domiciled car- riers or that it has greater importance than other laws or regulations. The TLA commented that the definition of private carrier in the instructions to the application form includes a phrase that has historically described a for- hire carrier and suggests that the form be modified. In Section III of the instructions, a motor private carrier is defined as an entity that is “transporting its own good, including an entity that is performing such operations under an agreement or contract with a U.S. shipper or other business.” This definition is an attempt to rephrase, in plain language, the text of 49 U.S.C. 13102(7). Section 13102(7) defines foreign motor private carrier to include persons (except motor carriers of property or motor private carriers) that provide interstate transportation of property by motor vehicle under agreements or contracts with persons who are not motor carriers of property or motor private carriers. The form instruc- tions may be confusing because they do not reference the for-hire motor carrier exclusion in defining a 72a private carrier. Therefore, we have modified the form to provide clarity. Camara Nacional del Autotransporte de Cargo (CANACAR) commented that we must more fully explain the need for a process agent in the United States and link this requiremei. directly to safety and NAFTA. CANACAR believes we should require only one process agent in the United States. It commented that requiring more than one would violate NAFTA. Contrary to CANACAR’s suggestion, nothing in the NAFTA limits the rights of the United States to require firms to designate more than one process agent. Requiring Mexico-domiciled carriers to comply with 49 CFR part 366 would not violate NAFTA because the same requirement applies to U.S. and Canadian motor carriers. A process agent service may be used to maintain service of process agents in multiple States, thus eliminating the need for carriers themselves to retain agents in each State. A process agent service is an association or corporation that files with the FMCSA a list of process agents for each State in which the carrier intends to operate. CANACAR believes that FMCSA must remove registration requirements for agricultural, private, and exempt carriers, because we do not require U.S. and Canadian agricultural, private, and exempt carriers to register under 49 U.S.C. chapter 139. The Motor Carrier Safety Act of 1984, Public Law 98-554, 98 Stat. 2832, required Mexican motor carriers conducting operations otherwise exempt from the economic regulation requirements (i.e., for-hire carriers of exempt commodities, agricultural and private car- riers) to register with the Interstate Commerce Com- 73a mission to conduct operations in the United States. These requirements are an important element of FMCSA’s effort to ensure the safe operation of Mexican motor carriers on U.S. highways. From a safety stand- point, there is no distinction between agricultural, pri- vate, and exempt carriers and the Mexican carriers that would otherwise be required to register. CANACAR also believes that the OP-1(MX) and [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0706%3A03. Public record. Not legal advice.