Federal Register / Vol. 66, No. 86 / Thursday, May 3, 2001 / Proposed Rules 22371

PART 387—MINIMUM LEVELS OF

FINANCIAL RESPONSIBILITY FOR

MOTOR CARRIERS

2. The authority citation for part 387

is revised to read as follows:

Authority: 49 U.S.C. 13101,13301,13906,

14701, 31138, and 31139; and 49 CFR 1.73.

3. In § 387.7, revise the first sentence

of paragraph (b)(3) introductory text to

read as follows:

§ 387.7 Financial responsibility required.

* * * * *

(b) * * *

(3) Exception. A Mexican motor

carrier operating solely in the

commercial zones with a certificate of

registration issued under part 368 may

meet the minimum financial

responsibility requirements of this

subpart by obtaining insurance

coverage, in the required amounts, for

periods of 24 hours or longer, from

insurers that meet the requirements of

§ 387.11 of this subpart. * * *

* * * * *

Issued on: April 27, 2001.

Brian M. McLaughlin,

Associate Administrator for Policy and

Program Development.

[FR Doc. 01–11034 Filed 5–1–01; 8:45 am]

BILLING CODE 4910–EX–P

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety

Administration

49 CFR Part 365

[Docket No. FMCSA–98–3298]

RIN 2126–AA34

Application by Certain Mexican Motor

Carriers To Operate Beyond U.S.

Municipalities and Commercial Zones

on the U.S.-Mexico Border

AGENCY: Federal Motor Carrier Safety

Administration (FMCSA), DOT.

ACTION: Notice of proposed rulemaking

(NPRM); request for comments.

SUMMARY: The FMCSA proposes

changes in its regulations to govern

applications by Mexican carriers to

operate beyond municipalities and

commercial zones at the United StatesMexico border. The FMCSA also

proposes to revise the application form,

OP–1(MX), to be filed by these Mexican

motor carriers. The proposed form

would require additional information

about the applicant’s business and

operating practices to allow the FMCSA

to determine if the applicant could meet

the safety standards established for

operating in interstate commerce in the

United States. Carriers that had

previously submitted an application

would have to submit the updated form.

These proposed changes are needed to

implement part of the North American

Free Trade Agreement (NAFTA).

DATES: We must receive your comments

by July 2, 2001.

ADDRESSES: You can mail, fax, hand

deliver or electronically submit written

comments to the Docket Management

Facility, U.S. Department of

Transportation, Dockets Management

Facility, Room PL–401, 400 Seventh

Street, SW., Washington, DC 20590–

0001 FAX (202) 493–2251, on-line at

http://dmses.dot.gov/submit. You must

include in your comment the docket

number that appears in the heading of

this document. You can examine and

copy all comments at the above address

from 9 a.m. to 5 p.m., e.t., Monday

through Friday, except Federal holidays.

You can also view all comments or

download an electronic copy of this

document from the DOT Docket

Management System (DMS) at http://

dms.dot.gov/search.htm and typing the

last four digits of the docket number

appearing at the heading of this

document. The DMS is available 24

hours each day, 365 days each year. You

can get electronic submission and

retrieval help and guidelines at the

‘‘Help’’ section of the web site. If you

want us to notify you that we received

your comments, please include a selfaddressed, stamped envelope or

postcard, or print the acknowledgement

page that appears after submitting

comments on-line.

FOR FURTHER INFORMATION CONTACT: Ms.

Valerie Height, (202) 366–1790,

Regulatory Development Division,

FMCSA, 400 Seventh Street, SW.,

Washington, DC 20590. Office hours are

from 7:45 a.m. to 4:15 p.m., e.t., Monday

through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: We will

include comments received after the

comment closing date in the docket, and

we will consider late comments to the

extent practicable. The FMCSA may,

however, issue a final rule at any time

after the close of the comment period.

Background

Under the Bus Regulatory Reform Act

of 1982, (Pub. L. No. 97–261, 96 Stat.

1103) Congress imposed a two-year

moratorium on issuance by the former

Interstate Commerce Commission (ICC)

of new grants of operating authority to

motor carriers domiciled in a foreign

country, or owned or controlled by

persons of a foreign country. The

legislation authorized the President to

remove or modify the moratorium upon

a determination that such action was in

the national interest. As a result of

legislative and executive extensions of

the moratorium, only a limited class of

Mexican motor carriers have operated in

the United States on Certificates of

Registration issued under what is now

49 CFR part 368.

The terms of NAFTA, Annex I,

provide that the moratorium on

licensing Mexican motor carriers to

operate within the United States would

be lifted by the President in phases

under the following schedule:

(1) When NAFTA took effect on

January 1, 1994, applications by

Mexican bus operators to conduct cross

border charter and tour bus services in

international transportation service

between Mexico and all points in the

United States were to be accepted and

processed by the ICC, and suitable

authority issued.

(2) In the second stage, beginning

December 17, 1995, Mexican trucking

companies engaged in the transportation

of property were to be permitted to file

applications for cross border operations

between Mexico and four United States

border states and establish companies

within the United States to distribute

international cargo within the United

States

(3) In the third phase, beginning

January 1, 1997, applications were to be

accepted and processed for Mexican

passenger carriers to conduct regular

route passenger operations in

international service from Mexico to all

points in the United States.

(4) In the fourth phase, beginning

January 1, 2000, Mexican property

carriers were to be allowed to file

applications for cross border operations

from Mexico to all points in the United

States (except for point-to-point carriage

of domestic cargo within the United

States, for which the moratorium has

not been removed under NAFTA).

(5) Finally, in the last phase,

beginning on January 1, 2001, Mexican

nationals were to be allowed to establish

companies in the United States to

provide point-to-point bus services in

the United States.

Pursuant to the first phase of NAFTA,

on January 1, 1994, the ICC began

accepting applications from Mexican

passenger carriers to conduct

international charter and tour bus

operations into the United States. The

ICC promulgated rules and a revised

application form to effect the processing

of Mexican applications (Ex Parte No.

55 (Sub-No. 96), Freight Operations by

Mexican Motor Carriers—

Implementation of the North American

Trade Agreement, 10 I.C.C. 2d 854

22372 Federal Register / Vol. 66, No. 86 / Thursday, May 3, 2001 / Proposed Rules

(1995). These rules were anticipating

the implementation of the second phase

of NAFTA providing Mexican property

carriers with additional access to the

United States. A copy of the decision is

in the public docket for this rulemaking.

The ICC designated the revised

application form OP–1(MX). On

December 15, 1995, the International

Brotherhood of Teamsters sought an

emergency stay of the ICC decision in

the United States Court of Appeals for

the District of Columbia. International

Brotherhood of Teamsters v. Secretary

of Transportation, No. 95–1603 (D.C.

Cir., filed Dec. 15, 1995). The Teamsters

contended that the ICC decision was

arbitrary and capricious because it

failed to address serious concerns

regarding the safe operation of Mexican

motor carriers. The Teamsters had

requested the ICC to add additional

safety questions to the applications filed

by Mexican carriers to ensure that the

applicants were willing and able to

comply with applicable safety

regulations.

On December 18, 1995, the DOT

announced a delay in implementing the

NAFTA motor carrier access provisions.

Because of safety concerns related to the

operations of Mexican motor carriers

and the lack of a motor carrier safety

regulation and compliance program in

Mexico, the ICC decided not to process

applications from Mexican motor

carriers for authority to operate in the

United States border States in

accordance with NAFTA’s liberalization

schedule. The FHWA continued this

decision after the January 1, 1996,

termination of the ICC and transfer of

responsibilities to the FHWA.

Mexico filed complaints against the

United States under NAFTA’s dispute

resolution provisions, challenging the

United States decision to deny further

trucking, investment, and bus access.

An arbitration panel met in May 2000 to

hear the trucking and investment case,

which was the subject of extensive preand post-hearing briefings on safety and

legal issues.

The panel issued a final report on

February 6, 2001. A copy of the report

is in the docket. The report

unanimously concluded that the blanket

refusal to process applications of

Mexican motor carriers seeking United

States operating authority out of

concerns over the carriers’ safety was in

breach of NAFTA obligations of the

United States, specifically NAFTA’s

liberalization provisions and provisions

ensuring national treatment and mostfavored-nation treatment for crossborder services. The panel also

concluded that alleged deficiencies in

Mexico’s regulation of motor carrier

safety did not relieve the United States

of those NAFTA obligations. The panel

stated, however, that the Department

could subject Mexican motor carriers

seeking to operate in the United States

to different requirements than it applies

to United States and Canadian carriers.

The United States and Mexico have

engaged in negotiations regarding the

implementation of the liberalization

provisions in light of the panel’s

decision.

The FMCSA regulates commercial

motor vehicle (CMV) safety in the

United States under a comprehensive

system of regulations designed to ensure

that drivers are medically qualified;,

meet applicable licensing standards; can

read and speak the English language

sufficiently to converse with the general

public, understand highway traffic signs

and signals in the English language,

respond to official inquiries and make

entries on reports and records; and do

not operate vehicles while impaired by

drugs, alcohol or excessive fatigue. We

require that every CMV be equipped

with certain standard safety-related

equipment and that vehicles be

regularly inspected and maintained to

ensure that they remain in safe

operating condition. We enforce these

regulatory requirements through

roadside inspections and on-site

compliance reviews. Roadside

inspections focus on potentially unsafe

vehicle and driver violations that may

pose a threat to public safety, unless the

vehicle or driver is placed out of

service. Our compliance reviews entail

a review of a carrier’s overall

compliance with the Federal Motor

Carrier Safety Regulations (FMCSRs)

and Hazardous Materials Regulations.

Our investigators examine carrier

records (including driver logbooks and

drug and alcohol testing information)

and evaluate roadside vehicle

inspection data, accident records, and

other safety related information to

determine whether a motor carrier

meets safety fitness standards.

The DOT has consulted extensively

with Mexican transportation officials

regarding the strengthening of Mexican

truck safety regulation, and significant

progress has been made in this area.

Mexico has agreed to utilize the

Commercial Vehicle Safety Alliance

(CVSA) out-of-service (OOS) criteria and

has issued final regulations based on

these criteria. These standards cannot be

effective without a safety oversight

program, including systematic roadside

inspections, to ensure compliance with

and enforcement of the standards. The

DOT officials have worked extensively

with Mexican transportation officials on

the establishment of such a program.

However, Mexico has not yet completed

implementation of a comprehensive

safety inspection program.

With the exception of border

commercial zone drayage operations,

Mexican carriers have, for the most part,

little or no experience operating under

regulations comparable to the FMCSRs.

The FMCSA must be prepared to

evaluate the safety fitness of motor

carriers having no experience operating

under a comprehensive system of safety

regulation like ours.

The FMCSA asks for public comment

on proposed regulations and a revised

Form OP–1(MX) that would require

additional safety information and

certifications of compliance with

applicable safety requirements from all

Mexican motor carrier applicants

operating beyond the commercial zones.

In another NPRM published

elsewhere in today’s Federal Register,

RIN 2126–AA33 Revision of Regulations

and Application Form for MexicanDomiciled Motor Carriers to Operate in

U.S. Municipalities and Commercial

Zones on the U.S.-Mexico Border, the

FMCSA is proposing changes to the

process and form (OP–2) used to obtain

a Certificate of Registration. The

changes would limit a Certificate of

Registration to Mexican-domiciled

motor carriers that operate, or will

operate, only in the commercial zones

adjoining the United States-Mexico

border. All other Mexican carriers,

including current holders of Certificates

of Registration who operate beyond the

commercial zones, would be subject to

the proposals in this NPRM.

The FMCSA proposes to revise the

OP–1(MX) application form by requiring

each motor carrier applicant to answer

questions to demonstrate its basic

knowledge of the FMCSRs and to

indicate how it intends to comply with

these regulations. In addition, the

FMCSA proposes to require each

applicant to make specific certifications

of compliance. This additional

information will enable the FMCSA to

determine that each applicant is willing

and able to comply with the FMCSRs

while conducting operations in the

United States. In addition, the FMCSA

would require applicants to submit

verification from the Mexican

government that the applicant is a

registered Mexican carrier authorized to

conduct motor carrier operations up to

the United States-Mexico border and

that all drivers who would operate in

the United States have a valid Licencia

Federal de Conductor issued by the

Government of Mexico. These

requirements also are consistent with

section 210(b) of the Motor Carrier

Safety Improvement Act of 1999 (Pub. L.

Federal Register / Vol. 66, No. 86 / Thursday, May 3, 2001 / Proposed Rules 22373

106–159, 113 Stat. 1748) (MCSIA),

which requires the Secretary to establish

regulations ensuring that all applicant

motor carriers, including foreign motor

carriers, are knowledgeable about the

FMCSRs before being granted authority

to operate in the United States. Failure

to provide such verification would

result in the rejection of the application.

The FMCSA solicits comment from

the public on our proposal that Mexican

applicants who have filed for authority

on the existing Form OP–1(MX) must

file the proposed revised Form OP–

1(MX) to update and supplement the

information about their operations,

including the requirement that the

carrier be registered with the

Government of Mexico. This

requirement would ensure that

FMCSA’s database contains current and

consistent information about Mexican

registrants and thus enhance the

effectiveness of FMCSA’s safety

oversight.

These proposed requirements should

not distract from, or detrimentally

affect, the efforts underway between the

Governments of Mexico and the United

States to establish compatible

regulations and to ensure that a

comprehensive safety oversight program

is put into place in Mexico. Over the

long term, consistent, compatible safety

standards and compliance practices will

have the greatest impact in promoting

safety, facilitating enforcement,

reducing the enforcement burden on the

border States, and establishing

permanent and stable programs.

Proposed Form OP–1(MX)

The FMCSA proposes extensive

revisions to the Form OP–1(MX). The

FMCSA proposes to add new sections to

solicit additional information from the

applicant to assist in identifying the

nature of the applicant’s existing

operations in the U.S., if any. Other

sections would help identify any

previously submitted Form MCS–150,

verify the applicant’s domicile in

Mexico, and confirm that the applicant

holds a valid registration from the

Government of Mexico. The question

regarding domicile would be removed.

However, the proposed question

regarding whether the applicant holds a

valid registration from the Mexican

government is new. It is proposed to

ensure that only a carrier who has met

Mexican Federal government standards

and regulations will operate in the

United States.

The single form for both passenger

and property carriers would lessen the

paperwork burden on the Mexican

applicants and facilitate the inclusion of

additional safety questions and

certifications.

Under section 219 of MCSIA, a

foreign carrier engaging in

transportation in the United States

without proper authorization may be

disqualified from operating commercial

vehicles in the United States.

Accordingly, applicants would be asked

to disclose whether any affiliated

entities have been disqualified.

The proposed form would require an

applicant to identify the type(s) of

operations requested. The form would

make clear that use of the Form OP–

1(MX) and issuance of Authority

Registrations would be limited to

carriers that would operate beyond the

municipalities along the United StatesMexico border and commercial zones of

such municipalities.

Additional information would be

requested about insurance held by the

carrier.

The FMCSA proposes to add a new

section that would require the applicant

to certify that it has a system in place

to ensure compliance with applicable

requirements covering driver

qualifications, hours of service, drug

and alcohol testing, vehicle condition,

accident monitoring, and hazardous

materials transportation. In addition, the

FMCSA proposes that the applicant

provide narrative responses describing

how it will monitor hours of service,

how it will maintain an accident register

and what is its monitoring program.

This section would also require that the

applicant provide information including

the names of individuals in charge of

the applicant’s safety program. The

applicant must provide: specific

locations where the applicant maintains

current FMCSRs, the names of the

individuals in charge of drug and

alcohol testing (if applicable). The

FMCSA would require only those safety

certifications that apply to the

applicant. For example, due to the

weight of the vehicles they operate,

certain applicants would not be subject

to the drug and alcohol testing and CDL

requirements in 49 CFR parts 382 and

383, respectively, and would not be

required to certify compliance with

those regulations. The certification

information would enable FMCSA to

evaluate, upon initial application, the

safety compliance program of the

applicant. The FMCSA would reject an

applicant that cannot offer a specific,

unambiguous plan to ensure

compliance.

The proposed form would require

household goods applicants to affirm a

willingness to offer arbitration as a

means of settling loss and damage

claims in accord with U.S. law.

The FMCSA proposes to add more

extensive and specific certifications

regarding compliance, including

compliance with Department of Labor

regulations. Other parts of this

certification would require the applicant

to affirm its willingness and ability to

provide the proposed service and to

comply with all pertinent statutory and

regulatory requirements. It would

remind the applicant of statutory and

regulatory responsibilities, which if

neglected or violated, might subject the

applicant to disciplinary or corrective

action by the FMCSA. Another

certification, derived from the existing

Form OP–2 application, would highlight

the need to comply with applicable

provisions of the U.S. Internal Revenue

Code relating to payment of the Heavy

Vehicle Use Tax. An additional

certification would ensure that the

applicant understands that the agents

for service of process designated on the

Form BOC–3 would also be deemed the

applicant’s representative in the United

States for service of judicial process and

notices under 49 U.S.C. 13304 and

administrative notices under 49 U.S.C.

13303. Finally, the applicant would

affirm that it is not currently

disqualified from operating a

commercial motor vehicle in the United

States under the provisions of MCSIA.

The FMCSA will conduct workshops

and also provide written material, such

as handbooks, to help the Mexican

applicants understand the various

requirements and the proper way to

complete the applications.

Proposed Revision to Part 365

The FMCSA proposes to add a new

subpart E to part 365 to address the

specific requirements of the application

process for Mexican carriers. First,

proposed § 365.501 sets out that all

Mexican-domiciled carriers that want to

operate beyond the border area must file

the Form OP–1(MX). This would be a

change from current practice to facilitate

uniform treatment of all Mexican

carriers that may wish to offer long haul

service, and it is discussed as well in

the NPRM concerning part 368

published in today’s Federal Register.

These special filing rules would not

apply to Mexican-owned enterprises

domiciled in the United States that want

to distribute international cargo within

the United States. Nor do they apply to

Mexican nationals establishing

companies in the United States to

provide point-to-point bus services in

the United States. Such entities would

file either the standard OP–1 or OP–1(P)

application form, as appropriate.

In proposed § 365.503, the FMCSA

states that applications must be filled

22374 Federal Register / Vol. 66, No. 86 / Thursday, May 3, 2001 / Proposed Rules

out in English and be complete to be

considered. Information on obtaining

applications is also provided.

We propose in § 365.505 to provide a

waiver from the filing fee for two types

of applicants. First would be those who

submitted an application under the

earlier version of the Form OP–1(MX)

before the decision of the United States

to stay implementation of the NAFTA

entry provisions. Second would be

those applicants that currently hold a

Certificate of Registration and wish to

continue operations solely within the

U.S. municipalities and commercial

zones along the U.S.-Mexico border.

In proposed § 365.507, the FMCSA

states that all applications by Mexican

carriers would be reviewed under the

existing procedures of part 365. Also,

we propose that approval of an

application would be conditional upon

successful completion of a safety review

within 18 months. The safety review is

discussed in another NPRM published

today in the Federal Register (Safety

Monitoring System and Compliance

Initiative for Mexican Motor Carriers

Operating in the United States).

Proposed § 365.509 would include a

requirement for Mexican carriers to

notify FMCSA in writing of any changes

in, or corrections to, applicant

information in the Form OP–1(MX) as

well as any changes in the Form BOC–

3—Designation of Agents—Motor

Carriers, Brokers and Freight

Forwarders, within 45 days of the

change. The proposed requirement

would assist FMCSA in keeping its

information on Mexican carriers

current. The proposed requirement

would not be an annual re-filing. A

carrier with no change in status would

not need to take any action apart from

the biennial submission of Form MCS–

150. A carrier who fails to update

required information may be subject to

suspension or revocation of its operating

authority.

Finally, we propose to add the Form

OP–1(MX) as Appendix A to subpart E

of part 365.

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory

Planning and Review) and Department

of Transportation Regulatory Policies

and Procedures

The FMCSA has determined that this

action is a significant regulatory action

within the meaning of Executive Order

12866, and is significant within the

meaning of Department of

Transportation regulatory policies and

procedures (44 FR 11034, February 26,

1979). The Office of Management and

Budget has reviewed this document. It

is anticipated that the economic impact

of the proposals in this rulemaking

would be minimal. The new or revised

Form OP–1(MX), while intended to

foster and contribute to safety of

operations, adherence to U.S. law and

regulations, and compliance with U.S.

insurance and tax payment

requirements on the part of Mexican

carriers, would impose little additional

expense upon public agencies or the

motoring public.

Nevertheless, the subject of safe

operations by Mexican carriers in the

United States will likely generate

considerable public interest within the

meaning of Executive Order 12866. The

manner in which the FMCSA carries out

its safety oversight responsibilities with

respect to this international motor

carrier transportation may be of

substantial interest to the domestic

motor carrier industry, the Congress,

and the public at large. A copy of the

Regulatory Evaluation prepared for the

three companion NPRMs published in

today’s Federal Register is in the

docket.

Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA)

(Pub. L. 96–354, 5 U.S.C. 601–612), as

amended by the Small Business

Regulatory Enforcement and Fairness

Act (Pub. L. 104–121), requires federal

agencies to analyze the impact of

rulemakings on small entities, unless

the Agency certifies that the rule will

not have a significant economic impact

on a substantial number of small

entities.

The FMCSA is issuing this NPRM

because of the planned implementation

of the NAFTA’s motor carrier access

provisions. A NAFTA dispute

resolution tribunal recently ruled that

the United States violated NAFTA by

failing to allow any Mexican carriers

greater access to the United States.

Mexican carriers would be subject to

the same safety regulations as domestic

carriers when operating in the U.S. The

FMCSA’s enforcement of the FMCSRs

has become increasingly data dependent

in the last several years. Several

programs have been put in place to

continually analyze crash rates, out-ofservice (OOS) rates, compliance review

records, and other data sources to allow

the agency to focus on high-risk carriers.

This strategy is only effective if the

FMCSA has adequate data on carriers’

size, operations, and history. We do not

currently have this type of information

on Mexican carriers. We do not have

abundant information on their safety

record, OOS rates, or other overall

safety. Thus, a key component of this

proposal is the requirement that carriers

with OP–1(MX) authority must

complete a Form MCS–150 biennially,

and notify the FMCSA of corrections to

or changes in applicant information on

the Form OP–1(MX) as well as changes

in the Form BOC–3 within 45 days of

the change. This would enable the

FMCSA to better monitor these carriers,

and to quickly determine whether their

safety or OOS rate changes.

The objective of this proposal is to

help determine the capability of certain

Mexican carriers to operate safely in the

United States. The proposal describes

what additional information Mexican

carriers would have to submit.

This proposal would primarily affect

Mexican-domiciled small motor carriers

who wish to operate beyond the U.S.

municipalities and commercial zones on

the U.S.-Mexico border. The amount of

information these carriers would have to

supply to the FMCSA has been

increased, and we estimate that it would

take 4 hours to complete each form after

compiling the necessary information.

The number of carriers subject to the

proposals in this rule and the two

companion rules published elsewhere

in today’s Federal Register is the sum

of those currently operating within the

United States and those who apply for

authority in the future. First, we

estimated the number of Mexican

carriers already operating within the

United States. Most of these carriers

currently have operating authority and

would merely be required to re-file

using the revised forms. To operate in

the U.S. beyond the municipalities and

commercial zones along the U.S.—

Mexico border, as proposed in this rule,

carriers would file the revised Form

OP–1(MX). To continue operations

within the U.S. solely in municipalities

and commercial zones along the U.S.—

Mexico border, these carriers would file

using the revised Form OP–2 (see the

rulemaking Revision of Regulations and

Application Form for Mexican—

Domiciled Motor Carriers to Operate in

U.S. Municipalities and Commercial

Zones on the U.S.—Mexico Border

published elsewhere in today’s Federal

Register).

The FMCSA’s Office of Data Analysis

and Information Systems developed a

file comprised of Mexican carriers that

have recently operated in the United

States. As of January 2001, this file

contained 11,787 Mexican motor

carriers (2.3% of the 500,000 carriers

listed in the FMCSA Motor Carrier

Management Information System

(MCMIS) census file). It includes

Mexican carriers with operating

authority, carriers who have a DOT

number but not authority, carriers with

both a DOT number and operating

Federal Register / Vol. 66, No. 86 / Thursday, May 3, 2001 / Proposed Rules 22375

authority, and other carriers that the

Agency believes are operating in the

United States with neither operating

authority nor a DOT number. These

latter carriers are those who have been

subject to a roadside inspection in the

United States at some point in the last

3 years.

It has been suggested that many of

these Mexican carriers no longer operate

in the United States. The FMCSA

calendar year 2000 MCMIS inspection

and accident database identifies

approximately 4,500 Mexican motor

carriers. The FMCSA also verified that

approximately 10,000 Mexican carriers

currently have operating authority.

Therefore, we constructed three

different baseline scenarios for the

number of Mexican carriers currently

operating in the United States, a low

(4,500), medium (9,500) and high

(11,787) scenario.

The second step in figuring out the

total number of Mexican carriers subject

to these proposals is to determine how

many new carriers will request authority

under the proposals. Approximately

1,600 Mexican carriers have filed an

OP–2 form annually over the last several

years (and a similar number have been

granted). Only 190 OP–1(MX)

applications are pending, as Mexican

carriers stopped filing these forms when

it became clear that these forms were

not being processed. For the high

estimate, the FMCSA assumes that this

number will double to 3,200 the first

year this proposal is in effect, and then

fall to 2,500 applicants per year for the

following 9 years. As in the case of

domestic carriers, the annual applicant

number may include carriers that go out

of business and subsequently re-enter

the market. For the lower and middle

estimates, we estimate that there will be

500 new applicants the first year, and

then 200 per year thereafter. This

translates into approximately 15,000

applicants in the first year for the high

estimate, 10,000 for the medium

estimate, and 5,000 for the low estimate.

As was noted above, the FMCSA

estimates that more than 500,000 motor

carriers are currently operating in the

United States.

We estimate that it takes 4 hours to

complete each form. As was noted

above, the vast majority of Mexican

motor carriers currently operating in the

United States have OP–2 authority. We

estimate that half of all these carriers

will switch to OP–1(MX) authority,

while the other half will continue

operating within U.S. municipalities

and commercial zones on the U.S.—

Mexico border. We assume that the new

carriers will be more likely than current

carriers to apply for OP–2 authority,

since most of the large carriers who

would presumably benefit from

expanded U.S. operations are already

operating in U.S. municipalities and

commercial zones on the U.S.—Mexico

border under OP–2 authority. While

some new applicants will also want to

take advantage of the opportunity to

operate throughout the United States,

many will not have the financial and

administrative wherewithal to benefit

from the enlarged operations allowed.

Accordingly, the Agency estimates that

three quarters (75%) of all new

applicants will apply for OP–2

authority, with one quarter (25%)

requesting OP–1(MX) authority.

Nonetheless, changing this value would

have no impact on the analysis since the

costs of completing the two forms are

identical.

A review of the MCMIS census file

reveals that the vast majority of Mexican

carriers are small. For Mexican carriers

with any trucks, the mean number of

trucks was 5.1. That mean was pulled

up by a small number of large carriers.

Seventy-five (75) percent of Mexican

carriers had three or fewer trucks, and

the 95th percentile carrier had only 15

trucks.

These proposals should not have any

impact on small U.S. based motor

carriers.

The regulatory evaluation includes a

description of the recordkeeping and

reporting requirements of these

proposals. Under the revised

procedures, an applicant would be

required to submit a completed Form

BOC–3-Designation of Agents—Motor

Carriers, Brokers and Freight

Forwarders, and Form MCS–150—

Motor Carrier Identification Report

(Application for U.S. DOT Number) as

attachments to the OP–2 or OP–1(MX)

application form. In addition, Mexican

carriers would update the FMCSA of

certain information changes.

The Form MCS–150 is approximately

two pages long. In addition to requiring

basic identifying information, it requires

that carriers state the type of operation

they run, the number of vehicles and

drivers they use, and the types of cargo

they haul. The Form BOC–3 merely

requires the name, address and other

information for a domestic agent to be

contacted if the FMCSA needs to

contact the motor carrier. The proposals

also include other modest changes in

the OP–1(MX) and OP–2 forms.

The FMCSA did not propose any

different requirements or timetables for

small entities. As noted above, we do

not believe these requirements would be

onerous, with the carriers required to

spend 4 hours to complete the relevant

forms. Mexican carriers would only be

required to complete forms that most

domestic U.S. carriers already are

required to submit.

The FMCSA would not consolidate or

simplify the compliance and reporting

requirements for small carriers. As

noted above, small U.S. carriers already

have to comply with the similar

paperwork requirements of part 365.

Given the compelling interest in

guaranteeing the safety of Mexican

carriers operating in the United States,

and the fact that the majority of these

carriers are small entities, no special

changes were proposed.

The FMCSA cannot exempt small

carriers from these proposals without

seriously diminishing the agency’s

ability to ensure the safe operations of

Mexican carriers. The majority of

Mexican carriers operating in the U.S.

would be small; exempting them would

have the same impact as not issuing

these proposals. Therefore, FMCSA

certifies that this proposed rule would

not have a significant impact on a

substantial number of small entities.

Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act

of 1995 (Pub. L. 104–4; 2 U.S.C. 1532)

requires each agency to assess the

effects of its regulatory actions on State,

local, and tribal governments and the

private sector. Any agency promulgating

a final rule likely to result in a Federal

mandate requiring expenditures by a

State, local, or tribal government or by

the private sector of $100 million or

more in any one year must prepare a

written statement incorporating various

assessments, estimates, and descriptions

that are delineated in the Act. The

FMCSA has determined that the

changes proposed in this rule making

would not have an impact of $100

million or more in any one year.

Executive Order 12988 (Civil Justice

Reform)

This action meets applicable

standards in sections 3(a) and 3(b)(2) of

E. O. 12988, Civil Justice Reform, to

minimize litigation, eliminate

ambiguity, and reduce burden.

Executive Order 13045 (Protection of

Children)

We have analyzed this proposed

action under Executive Order 13045,

Protection of Children from

Environmental Health Risks and Safety

Risks. This proposed rule is not an

economically significant rule and does

not concern an environmental risk to

health or safety that may

disproportionately affect children.

22376 Federal Register / Vol. 66, No. 86 / Thursday, May 3, 2001 / Proposed Rules

Executive Order 12630 (Taking of

Private Property)

This proposed rule will not effect a

taking of private property or otherwise

have taking implications under E. O.

12630, Governmental Actions and

Interference with Constitutionally

Protected Property Rights.

Executive Order 13132 (Federalism)

This proposed action has been

analyzed in accordance with the

principles and criteria contained in

Executive Order 13132, dated August 4,

1999 (64 FR 43255, August 10, 1999).

Consultation with States is not required

when a rule is required by statute. The

FMCSA, however, has determined that

this action would not have significant

Federalism implications or limit the

policymaking discretion of the States.

Comments on this conclusion are

welcome and should be submitted to the

docket.

Executive Order 13166 (Limited English

Proficiency)

Executive Order 13166, ‘‘Improving

Access to Services for Persons With

Limited English Proficiency,’’ dated

August 16, 2000 (65 FR 50121), requires

each Federal agency to examine the

services it provides and develop

reasonable measures to ensure that

persons limited in their English

proficiency can meaningfully access

these services consistent with, and

without unduly burdening, the

fundamental mission of the agency. The

FMCSA plans to provide a Spanish

translation of the application

instructions incorporated within the

Form OP–1(MX) application. We believe

that this action complies with the

principles enunciated in the Executive

Order.

Executive Order 12372

(Intergovernmental Review)

Catalog of Federal Domestic

Assistance Program Number 20.217

Motor Carrier Safety. The regulations

implementing Executive Order 12372

regarding intergovernmental

consultation on Federal programs and

activities do not apply to this program.

Paperwork Reduction Act

Under the Paperwork Reduction Act

of 1995 (PRA) (49 U.S.C. 3501–3520),

Federal agencies must obtain approval

from the Office of Management and

Budget (OMB) for each collection of

information they conduct, sponsor, or

require through regulations. The

FMCSA has determined that this

proposal would impact a currently

approved information collection, OMB

No. 2126–0016.

This proposal will not have any

impact on information collection OMB

No. 2126–0015, entitled, ‘‘Designation

of Agents, Motor Carriers, Brokers and

Freight Forwarders.’’ This currently

approved collection covers the Form

BOC–3. The current estimates of annual

filings include the minimal additional

Mexican motor carriers who would be

filing updated information on the Form

BOC–3.

The information collection

requirements on Form OP–1(MX) have

been approved by the OMB under the

control number 2126–0016, titled

‘‘Revision of Licensing Application

Forms, Application Procedures, and

Corresponding Regulations.’’ This

approval includes forms OP–1(MX),

OP–1(P), OP–1(FF), and OP–1 and totals

38,000 burden hours. Two thousand

(2,000) of these 38,000 burden hours

represent the approved amount for the

OP–1(MX) (1,000 respondents per year

@ 2 hours each to complete the form).

The FMCSA proposes to change the

form title to Form OP–1(MX)—

Application to Register Mexican

Carriers for Motor Carrier Authority

Under the North American Free Trade

Agreement (NAFTA).’’

The Regulatory Evaluation for this

proposal uses a numerical range to

estimate the number of Mexican carriers

anticipated to request OP–1(MX) or OP–

2 authority under this proposal and a

companion rule published elsewhere in

today’s Federal Register (see NPRM

titled Revision to Regulations and

Application Form for MexicanDomiciled Motor Carriers to Operate in

U.S. Municipalities and Commercial

Zones on the U.S.-Mexico Border). We

estimate the number of applicants to

range between a low estimate of 5,000,

a medium estimate of 10,000 or a high

estimate of 15,000 applicants. Please

reference the Regulatory Flexibility Act

analysis in this document or the

Regulatory Evaluation for this

rulemaking for a detailed discussion on

how these estimates were derived. This

analysis is based upon the high estimate

(15,000) since that number enables the

Agency to assess the maximum

information collection burden to

respondents.

The FMCSA estimates that 11,787

Mexican carriers are currently operating

in the United States and are categorized

as follows: Mexican carriers operating

pursuant to OP–2 Certificates of

Registration; Mexican carriers that

previously filed an OP–1(MX)

application; and Mexican carriers

assigned DOT numbers and no OP

authority or operating without

appropriate authorization. The Agency

estimates that half of the 11,787

Mexican carriers (or 5,894) known to be

now operating in the U.S. will switch to

OP–1(MX) authority, while the other

half will continue operating pursuant to

OP–2 authority.

Based upon the high estimate

scenario, the FMCSA anticipates 3,200

first-time applicants for either OP–2 or

OP–1(MX) authority in the first year that

this proposal becomes a final rule, and

2,500 applicants annually in subsequent

years. The agency estimates that 25

percent of the first year new applicants

(800) would file a Form OP–1(MX); and

25 percent of the subsequent-year new

applicants (625 annually) would file a

Form OP–1(MX).

We assume that first-time applicants

will be more likely than current carriers

to apply for OP–2 authority, since most

of the large carriers who would

presumably benefit from expanded U.S.

operations are already operating in the

border commercial zones pursuant to

OP–2 authority. While some new

applicants may also want to take

advantage of the opportunity afforded

by this proposal to operate throughout

the United States, many will not have

the financial and administrative

wherewithal or resources to benefit from

the enlarged operations allowed.

This proposal would also require

Mexican carriers to submit corrections

to or changes in the OP–1(MX)

applicant information within 45 days of

the change. For changes and updates,

the agency anticipates that in the first

year, 2,232 carriers would file updates

or changes to the Form OP–1(MX). In

subsequent years, approximately 208

carriers would file updates or changes to

the Form OP–1(MX). The FMCSA

estimates that it would take 30 minutes

to fill out a form to request changes.

Therefore, the FMCSA estimates an

adjusted burden hour calculation for the

Form OP–1(MX) as follows:

Mexican carrier re-filings or initial

filings of the Form OP–1(MX):

(in first year, known carriers): 5,894 ×

4 hrs per form = 23,576 hrs

(in first year, first-time applicants):

800 × 4 hrs per form = 3,200 hrs

(in subsequent-years, first-time

applicants): 625 × 4 hrs per form =

2,500 hrs

Updates/Changes:

(all in first year): 2,232 × 30 min. per

form = 1,117 hrs

(all in subsequent years): 208 × 30

min. per form = 104 hrs

Therefore, proposals in the NPRM,

when promulgated as a final rule, would

result in a change to the total burden

hours for this information collection as

follows:

In the first year: 63,893 [(38,000

¥2,000 = 36,000) + 26,776 + 1,117]; and

Federal Register / Vol. 66, No. 86 / Thursday, May 3, 2001 / Proposed Rules 22377

in subsequent years: 38,604 [36,000 +

2,500 + 104].

OMB Control Number: 2126–0016.

Title: Revision of Licensing

Application Forms, Application

Procedures, and Corresponding

Regulations.

Respondents: Motor carriers that

operate CMVs in interstate commerce.

Estimated Annual Hour Burden for

this NPRM: Year 1 = ([38,000 ¥2,000 =

36,000] + 26,776 + 1,117 = 63,893 hrs);

Subsequent years = ([38,000 ¥2,000 =

36,000] + 2,500 + 104 = 38,604 hours).

National Environmental Policy

The agency has analyzed this

proposal for the purpose of the National

Environmental Policy Act of 1969 (42

U.S.C. 4321 et seq.) and has determined

under DOT Order 5610.1C (September

18, 1979) that this action does not

require any environmental assessment.

An environmental impact statement is,

therefore, not required.

List of Subjects

49 CFR Part 365

Administrative practice and

procedure, Brokers, Buses, Freight

forwarders, Maritime carriers, Motor

carriers, Moving of household goods,

Reporting and recordkeeping

requirements.

For the reasons stated in the

preamble, the FMCSA proposes to

amend 49 CFR part 365 as set forth

below:

PART 365—RULES GOVERNING

APPLICATIONS FOR OPERATING

AUTHORITY

1. The authority citation for part 365

is revised to read as follows:

Authority: 5 U.S.C. 553 and 559; 16 U.S.C.

1456; 49 U.S.C. 13101, 13301, 13901–13906,

14708, 31138, and 31144; 49 CFR 1.73.

2. Add a new subpart E to part 365 to

read as follows:

Subpart E—Special Rules for Certain

Mexican Carriers

Sec.

365.501 Scope of rules.

365.503 Application.

365.505 Re-registration and fee waiver for

certain applicants.

365.507 Review of the application.

365.509 Requirement to notify of change in

applicant information.

Appendix A to Subpart E of Part 365—Form

OP–1(MX) ‘‘ Application to Register

Mexican Carriers for Motor Carrier

Authority Under the North American Free

Trade Agreement (NAFTA)

Subpart E—Special Rules for Certain

Mexican Carriers

§ 365.501 Scope of rules.

The rules in this subpart govern the

application by a Mexican-domiciled

motor carrier to provide transportation

of property or passengers in interstate

commerce between Mexico and points

in the United States beyond the

municipalities and commercial zones

adjacent to the border.

§ 365.503 Application.

(a) Each applicant applying under this

subpart must submit an application that

consists of: Form OP–1 (MX), Form

MCS–150—Motor Carrier Identification

Form, and Form BOC–3—Designation of

Agents-Motor Carriers, Brokers and

Freight Forwarders.

(b) The FMCSA will only process

your application if it meets the

following conditions:

(1) The application must be

completed in English.

(2) The information supplied must be

accurate, complete, and include all

required supporting documents and

applicable certifications in accordance

with the instructions to Form OP–1

(MX), Form MCS–150, and Form BOC–

3.

(3) The application must include the

filing fee payable to the FMCSA in the

amount set forth at 49 CFR 360.3(f)(1);

and

(4) The application must be signed by

the applicant.

(c) You must submit the application

to the address provided in Form OP–1

(MX).

(d) You may obtain the application

forms from any FMCSA Division Office

or download it from the FMCSA website

at: http://www.fmcsa.dot.gov/factsfigs/

formspub.htm. Form OP–1 (MX) is also

published in Appendix A to this part.

§ 365.505 Re-registration and fee waiver

for certain applicants.

(a) If you filed an application using

Form OP–1(MX) before [Insert date of

publication of the final rule in the

Federal Register], you are required to

file a new Form OP–1(MX) to update

information about your operations. You

do not need to submit a fee when you

file a new application under this

subpart.

(b) If you hold a Certificate of

Registration issued before [Insert date of

publication of final rule in the Federal

Register] authorizing operations beyond

the municipalities and commercial

zones along the United States-Mexicoan

border, you are required to file an OP–

1(MX) if you want to continue those

operations. You do not need to submit

a fee when you file a new application

under this subpart.

(1) You must file the application by

[Insert date 1 year after date of

publication of final rule in the Federal

Register.].

(2) The FMCSA may suspend or

revoke the Certificate of Registration of

any applicable holder that fails to

comply with the procedures set forth in

this section.

(3) Certificates of Registration issued

prior to [Insert date of publication of

final rule in the Federal Register] would

remain valid until the OP–1(MX)

application filed according to paragraph

(b) of this section is processed.

§ 365.507 Review of the application.

(a) The FMCSA will review and act on

each application submitted under this

subpart in accordance with the

procedures set out in this part.

(b) When the FMCSA approves an

application submitted under this

subpart, the approval will be

conditional upon the completion, to the

satisfaction of the FMCSA, of a safety

review under § 385.21 of this chapter

within 18 months of the date of

approval.

§ 365.509 Requirement to notify of change

in applicant information.

(a) You must notify the FMCSA of any

changes or corrections to the

information in Parts I, IA or II submitted

on the Form OP–1(MX) or the Form

BOC–3—Designation of Agents—Motor

Carriers, Brokers and Freight

Forwarders during the application

process or after having been granted

operating authority. You must notify the

FMCSA in writing within 45 days of the

change or correction.

(b) If you fail to comply with

paragraph (a) of this section, the FMCSA

may suspend or revoke your operating

authority until you meet those

requirements.

BILLING CODE 4910–22–P

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Appendix A to Subpart E of Part 365—Form OP–1(MX)—Application To Register Mexican Carriers for Motor Carrier

Authority Under the North American Free Trade Agreement (NAFTA)

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Issued on: April 27, 2001.

Brian M. McLaughlin,

Associate Administrator for Policy and

Program Development.

[FR Doc. 01–11035 Filed 5–1–01; 8:45 am]

BILLING CODE 4910–22–C

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety

Administration

49 CFR Part 385

[Docket No. FMCSA–98–3299]

RIN 2126–AA35

Safety Monitoring System and

Compliance Initiative for Mexican

Motor Carriers Operating in the United

States

AGENCY: Federal Motor Carrier Safety

Administration (FMCSA), (DOT).

ACTION: Notice of proposed rulemaking

(NPRM); request for comments.

SUMMARY: The FMCSA proposes to

implement a safety monitoring system

and compliance initiative to help

determine whether Mexican-domiciled

carriers conducting operations

anywhere in the United States comply

with applicable safety regulations and

conduct safe operations. This NPRM

would revise the safety fitness

regulations at 49 CFR part 385 to

implement a safety oversight program

designed to evaluate the safety fitness of

Mexican carriers within 18 months after

receiving conditional authority to

operate in the United States. This

proposal is necessary to implement the

entry provisions of the North American

Free Trade Agreement (NAFTA).

DATES: We must receive your comments

by July 2, 2001.

ADDRESSES: You can mail, fax, hand

deliver or electronically submit written

comments to the Docket Management

Facility, U.S. Department of

Transportation, Dockets Management

Facility, Room PL–401, 400 Seventh

Street, SW., Washington, DC 20590–

0001 FAX (202) 493–2251, on-line at

http://dmses.dot.gov/submit. You must

include the docket number that appears

in the heading of this document in your

comment. You can examine and copy

all comments at the above address from

9 a.m. to 5 p.m., e.t., Monday through

Friday, except Federal holidays. You

can also view all comments or

download an electronic copy of this

document from the DOT Docket

Management System (DMS) at http://

dms.dot.gov/search.htm and typing the

last four digits of the docket number

appearing at the heading of this

document. The DMS is available 24

hours each day, 365 days each year. You

can get electronic submission and

retrieval help and guidelines under the

‘‘help’’ section of the web site. If you

want us to notify you that we received

your comments, please include a selfaddressed, stamped envelope or

postcard or print the acknowledgement

page that appears after submitting

comments on-line.

FOR FURTHER INFORMATION CONTACT:

Valerie Height, (202) 366–1790, Federal

Motor Carrier Safety Administration,

400 7th Street, SW., Washington, DC

20590. Office hours are from 7:45 a.m.

to 4:15 p.m., e.t., Monday through

Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: Comments

received after the comment closing date

will be included in the docket and we

will consider late comments to the

extent practicable. The FMCSA may,

however, issue a final rule at any time

after the close of the comment period.

Background

Under the Bus Regulatory Reform Act

of 1982 (Public Law No. 97–261, 96 Stat.

1103), Congress imposed a two-year

moratorium on the former Interstate

Commerce Commission’s (ICC) issuance

of new grants of U.S. operating authority

to motor carriers domiciled in a foreign

country, or owned or controlled by

persons of a foreign country. The

legislation authorized the President to

remove or modify the moratorium upon

a determination that such action was in

the national interest. As a result of

legislative and executive extensions,

Mexican carriers have been subject to

this moratorium since 1982. Since that

time, most Mexican motor carriers of

property seeking to initiate operations

in the United States have been restricted

to operating in the municipalities in the

United States on the United StatesMexico border or within the commercial

zones of such municipalities.

Additional information on the

implementation of NAFTA is set out in

the preamble to the NPRM entitled

Application by Certain Mexican Motor

Carriers to Operate Beyond U.S.

Municipalities and Commercial Zones

on the U.S.-Mexico Border, which

addresses revisions to the part 365

application process and the OP–1(MX)

application form and is published

elsewhere in today’s Federal Register.

As we discussed in the NPRM

addressing part 365, commercial motor

vehicle safety in the United States is

regulated under a comprehensive

system of regulations designed to ensure

that drivers are medically qualified;

meet applicable licensing standards; can

read and speak the English language

sufficiently to converse with the general

public, understand highway traffic signs

and signals in the English language, to

respond to official inquiries and to make

entries on reports and records; and do

not operate vehicles while impaired by

drugs or alcohol or excessive fatigue.

Our regulations also require carriers to

equip every commercial motor vehicle

with certain standard safety-related

equipment and that vehicles be

regularly inspected and maintained to

ensure that they remain in safe

operating condition. These regulatory

requirements are enforced through

roadside inspections and on-site

compliance reviews. Roadside

inspections focus on potentially unsafe

vehicle and driver violations that may

pose a threat to public safety unless the

vehicle or driver is placed out of

service. A compliance review comprises

an examination of carrier records

(including driver logbooks and drug and

alcohol testing information), roadside

vehicle inspection data, accident

records and other safety related

information to determine whether a

motor carrier meets safety fitness

standards as defined in the Federal

Motor Carrier Safety Regulations

(FMCSRs) and Hazardous Materials

Regulations.

The U.S. DOT has consulted

extensively with Mexican transportation

officials in their efforts to strengthen

Mexican vehicle safety regulations, and

significant progress has been made in

this area. Mexico has agreed to utilize

the Commercial Vehicle Safety Alliance

(CVSA) out-of-service criteria and has

issued final regulations based on these

criteria. These standards cannot be fully

effective unless complemented by an

adequate safety oversight program,

including systematic roadside

inspections, to ensure compliance with

and enforcement of the criteria. U.S.

DOT officials have worked extensively

with Mexican transportation officials,

but Mexico has not yet completed

implementation of a comprehensive

safety inspection program.

With the exception of the border

commercial zone drayage operations,

most Mexican carriers have little or no

experience operating under regulations

comparable to the FMCSRs.

Accordingly, the FMCSA must be

prepared to evaluate the safety fitness of

motor carriers having no experience

operating under our comprehensive

system of safety regulations.

Proposed Safety Oversight Program

In this NPRM, the FMCSA proposes a

safety oversight program to address U.S.