22328 Federal Register / Vol. 66, No. 86 / Thursday, May 3, 2001 / Proposed Rules

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety

Administration

49 CFR Parts 368 and 387

[Docket No. FMCSA–98–3297]

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

AGENCY: Federal Motor Carrier Safety

Administration (FMCSA), DOT.

ACTION: Notice of Proposed Rulemaking

(NPRM); request for comments.

SUMMARY: The FMCSA proposes to

revise its regulations and form that

relate to the issuance of Certificates of

Registration to any Mexican-domiciled

motor carrier (of property) that wants to

operate only in U.S. municipalities and

commercial zones adjacent to Mexico in

Texas, New Mexico, Arizona, or

California. The notice also proposes a

change to FMCSA’s regulations

governing financial responsibility of

motor carriers to accurately reflect the

requirements placed on these Mexican

motor carriers. Other carriers that

currently hold or may want to apply for

a Certificate of Registration would now

apply under separate FMCSA

regulations. These revisions are part of

our implementation of the North

American Free Trade Agreement

(NAFTA) entry provisions. The

proposed changes would ensure that we

receive adequate information to assess

an applicant’s safety program and its

ability to comply with U.S. safety

standards before it is registered to

operate in the U.S. They would also

enable us to maintain an accurate

census of registered carriers. In

addition, we would update the

regulations as needed to reflect the

transfer of motor carrier regulatory

functions from the Federal Highway

Administration (FHWA) to FMCSA.

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, Docket Management

Facility, Room PL–401, 400 Seventh

Street, SW., Washington, DC 20590–

0001, FAX (202) 493–2251, on-line at

http://dmses.dot.gov/search.htm. 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://

dmses.dot.gov/search.htm by 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 in 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 you may print the

acknowledgement page that appears

after you submit comments on-line.

FOR FURTHER INFORMATION CONTACT:

Valerie Height, (202) 366–1790,

Regulatory Development Division,

FMCSA, 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: We will

consider all comments we receive before

the close of business on the comment

closing date. We will include comments

we receive 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

Since 1982, significant limitations

have been in place concerning

operations by Mexican-domiciled motor

carriers in the United States. A

moratorium has existed on grants of

operating authority under the

jurisdiction of the former Interstate

Commerce Commission (ICC). Access

has been allowed only for certain motor

carriers that 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.

Mexican-domiciled carriers who are

eligible for Certificates of Registration

are those who operate solely in the

municipalities in the United States on

the United States-Mexico international

border or within the commercial zones

of such municipalities (border area), as

well as certain private carriers and

carriers of exempt goods who operate

beyond the border area.

Current Proposal

With the implementation of the

NAFTA entry provisions, it is expected

that additional Mexican-domiciled

motor carriers will seek to operate in the

United States, most of them beyond the

border area. In deciding how to organize

the treatment of all Mexican-domiciled

carriers in this changing environment,

the FMCSA considered both the

advisability of uniform treatment, the

familiarity of small businesses with the

existing regime, and the need to ensure

that all Mexican-domiciled carriers that

enter the United States, whether to

operate in commercial zones close to the

border or beyond, meet our safety

standards (i.e., carrier requirements,

vehicle requirements, and driver

requirements, including but not limited

to, the ability of the driver to 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).

We are proposing to continue the use

of the Form OP–2 (with substantial

changes discussed later) and the

issuance of Certificates of Registration

only for those carriers whose operations

are limited to the border area. The

FMCSA believes that there are carriers

that are most familiar with the

Certificate of Registration and want to

continue operating in a limited area;

however, we are interested in comments

on the need to maintain the Certificate

of Registration process. With the

proposed changes to the Form OP–2, the

only other main distinction between

holders of Certificates of Registration

and other Mexican-domiciled carriers

operating in the United States would

concern the type of insurance required

to be held (trip versus continuous). This

is addressed under the proposed

changes to part 387 later in this

preamble.

Further we are proposing that all

current holders of Certificates of

Registration would need to file new

forms with the FMCSA. Those carriers

who wish to continue operating only in

the border area would file the Form OP–

2 in accordance with the procedures in

part 368. All other holders of

Certificates of Registration who want to

operate beyond the border area would

file Form OP–1(MX) like all other

Mexican-domiciled property carriers

now seeking the ability to operate under

the implementation of the NAFTA entry

provisions. We are proposing to include

these carriers in revisions to 49 CFR part

365 that are published elsewhere in

today’s Federal Register. That NPRM

Federal Register / Vol. 66, No. 86 / Thursday, May 3, 2001 / Proposed Rules 22329

also proposes changes to Form OP–

1(MX).

For all holders of Certificates of

Registration, their Certificates of

Registration would remain valid until

the FMCSA has acted on an application

submitted on the Form OP–2 or Form

OP–1(MX). No filing fee is required for

current holders of a Certificate of

Registration who operate solely in

municipalities in the U.S. on the U.S.-

Mexico international border or within

the commercial zones of such

municipalities and are only updating

their application information. However,

if the current holder of a Certificate of

Registration is requesting to expand the

territorial scope of its current operations

beyond this area, it must submit a new

application using Form OP–1(MX), and

is subject to the filing fee. That

application will be processed as a new

application.

The FMCSA proposes to modify parts

368, 387 and Form OP–2 as part of our

implementation of the NAFTA entry

provisions. The proposed changes will

help ensure that we receive adequate

information to assess a carrier’s safety

program and its ability to comply with

U.S. safety standards. The changes will

also enable us to maintain an accurate

census of registered carriers. We are also

seeking comments on the proposal to

reissue all existing Certificates of

Registration and to require current

holders of Certificates of Registration to

submit additional safety information

about their operations. We are

proposing revisions to part 368 that

relate to the Form OP–2 modifications.

In addition, we are updating the

regulations as needed to reflect the

transfer of motor carrier regulatory

functions from FHWA to FMCSA.

Finally, under the ICC Termination

Act (Pub. L. 104–88) and the Motor

Carrier Safety Improvement Act (Pub. L.

106–159, 113 Stat. 1767)(December 9,

1999) (MCSIA), the FMCSA is directed

to develop a new registration system to

replace, in part, the current process. We

believe that handling all applications by

Mexican-domiciled motor carriers of

property that want to operate beyond

the border area under the same

procedures is part of developing this

new system of registration that captures

all the important information that the

FMCSA needs for ensuring safety.

This NPRM is one of three proposals

related to carriers operating between

Mexico and the U.S. published in

today’s Federal Register. Another

NPRM seeks comments on changes to

Form OP–1(MX) and 49 CFR part 365.

The FMCSA made a conscious decision

to propose retaining two different

application forms, the OP–2 and the

OP–1(MX). The third NPRM seeks

comments on a safety monitoring

program for Mexican carriers operating

in the U.S. These three proposals are

part of a coordinated effort to assess and

monitor the safety performance of

Mexican carriers before and as they

operate in the U.S.

Proposed Revisions to 49 CFR Part 368

The titles to part 368 and § 368.1

would be revised to more accurately

reflect the types of operations covered

under part 368. Section 368.1 would be

modified to clarify that a vehicle found

to be operating beyond the authority

granted in the Certificate of Registration

may be ordered out of service and

would be subject to applicable

penalties. This authority was added by

section 219 of MCSIA.

Section 368.2 would include only

definitions for the terms ‘‘interstate

transportation’’ and ‘‘Mexicandomiciled motor carrier.’’

Existing §§ 368.3, 368.4 and 368.5

would be revised and consolidated

under a new proposed § 368.3 to clearly

describe the application procedures for

a Certificate of Registration. 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 application

form. Applicants should be aware that

under a recent revision, Form MCS–150

must be submitted every 2 years,

following the initial application for a

Certificate of Registration (65 FR 70509,

November 24, 2000). The Form OP–2

itself would be extensively revised to

require significantly more safety

information.

Proposed § 368.4 would include a

new requirement for holders of

Certificates of Registration to notify

FMCSA in writing of any changes in, or

corrections to, applicant information in

the Form OP–2 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. Currently, there is no

requirement for filing of updated

information after the initial application

has been received. The proposed

requirement would assist FMCSA in

keeping its information on Mexican

carriers current. The proposed

requirement would not be an annual refiling. 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

Certificate of Registration.

Proposed § 368.5 would require

certain current holders of Certificates of

Registration to register using the new

Form OP–2 and attached Forms BOC–3

and MCS–150. However, no fee would

be required for this registration. Current

holders of Certificates of Registration

would have a 1-year period to meet this

one-time requirement. Current

Certificates of Registration would

remain valid until the new Form OP–2

has been processed.

Proposed § 368.6 would specify that

approval would require evidence in the

application that the carrier is currently

registered with the Mexican Federal

Government and in databases that are

available to the FMCSA. This section

would also make necessary technical

corrections to change references from

FHWA to FMCSA and delete outdated

references to an ‘‘employee review

board.’’

Proposed § 368.7 would require a

holder of a Certificate of Registration to

carry a copy of it in the vehicle. This is

an existing requirement that was

previously found in § 368.3.

Proposed § 368.8 would adopt

provisions for appealing a decision

denying an application and would make

necessary terminology changes from

FHWA to FMCSA.

Proposed Revisions to 49 CFR Part 387

Part 387 prescribes the minimum

levels of financial responsibility that

motor carriers must maintain. We are

proposing to revise § 387.7 to make it

clear that the longstanding exception

that allows Mexican carriers operating

in the border area to hold only trip

insurance would be limited to those

carriers and would not extend to other

Mexican-owned or domiciled motor

carriers operating under grants of

authority issued under part 365.

Proposed Revisions to Form OP–2

The FMCSA proposes extensive

revisions to the Form OP–2. The

FMCSA proposes to add a new section

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, to help

identify any previously submitted Form

MCS–150, to verify the applicant’s

domicile in Mexico, and to confirm that

the applicant holds a valid registration

from the Mexican Federal Government.

The question regarding domicile would

be moved to the proposed new section

‘‘Additional Applicant Information.’’

However, the proposed question

regarding whether the applicant holds a

valid registration from the Mexican

22330 Federal Register / Vol. 66, No. 86 / Thursday, May 3, 2001 / Proposed Rules

Federal Government is new. It is

proposed to ensure that only a carrier

who has met Mexican Federal

Government standards and regulations

will hold a U.S. Certificate of

Registration.

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 FMCSA

would make clear that use of the Form

OP–2 and issuance of Certificates of

Registration would be limited to carriers

that would operate solely in U.S.

municipalities along the United StatesMexico border and commercial zones of

such municipalities.

Additional information would be

requested about insurance held by the

applicant.

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,

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 part would also require that the

applicant provide information including

the names of individuals in charge of

the applicant’s safety program; locations

where Federal Motor Carrier Safety

Regulations (FMCSRs) are maintained,

names of the individuals in charge of

drug and alcohol testing (if applicable),

and the drug testing laboratory used (if

applicable). The FMCSA would evaluate

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 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 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.

Request for Comments

The FMCSA solicits comments from

the public on all aspects of this

proposal, specifically the proposals to:

(1) Require new applicants for, and

current holders of, Certificates of

Registration to submit the revised Form

OP–2;

(2) Require new applicants and

current holders of Certificates of

Registration to attach to the revised

Form OP–2 a newly completed Form

BOC–3—Designation of Agents—Motor

Carriers, Brokers and Freight

Forwarders;

(3) Require new applicants and

current holders of Certificates of

Registration to attach to the revised

Form OP–2 a newly completed Form

MCS–150-Motor Carrier Identification

Report (Application for U.S. DOT

Number); and

(4) Establish for all holders of

Certificates of Registration a

requirement for prompt updates

concerning carrier operations, current

addresses, and Form BOC–3 agents for

service of process information.

The FMCSA further solicits comments

on the desirability of combining Form

OP–2 and Form OP–1(MX).

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). It has been reviewed by the

Office of Management and Budget. It is

anticipated that the economic impact of

the proposals in this rulemaking would

be minimal. The new or revised Form

OP–2, 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.

Federal Register / Vol. 66, No. 86 / Thursday, May 3, 2001 / Proposed Rules 22331

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 holders

of Certificates of Registration must

complete a Form MCS–150 biennially,

and notify the FMCSA of corrections to

or changes in applicant information on

the Form OP–2 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 wish to operate solely

within 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 continue

operations solely within the border area

as proposed in this rule, carriers would

re-file the revised Form OP–2. To take

advantage of NAFTA’s liberalized

access provisions, these carriers would

re-file using the revised Form OP–1(MX)

(see the rulemaking Application by

Certain Mexican Motor Carriers to

Operate Beyond 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

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 a

Form OP–2 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 in the first

year after this proposal becomes a final

rule, 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 FMCSA 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

22332 Federal Register / Vol. 66, No. 86 / Thursday, May 3, 2001 / Proposed Rules

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 rulemaking

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

Executive Order 12988, Civil Justice

Reform, to minimize litigation,

eliminate ambiguity and reduce burden.

Executive Order 13045 (Protection of

Children)

We have analyzed this action under

Executive Order 13045, Protection of

Children from Environmental Health

Risks and Safety Risks. This rule is not

an economically significant rule and

does not concern an environmental risk

to health or safety that may

disproportionately affect children.

Executive Order 12630 (Taking of

Private Property)

This 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

Assessment)

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 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.

Executive Order 13166 (Limited English

Proficiency)

Executive Order 13166, Improving

Access to Services for Persons With

Limited English Proficiency, 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–2 application. We believe that

this action complies with the principles

enunciated in the Executive Order.

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. 2126–0019.

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 OMB has approved the

information collection requirements on

Form OP–2 under the control number

2126–0019, titled ‘‘Application for

Certificate of Registration for Foreign

Motor Carrier and Foreign Motor Private

Carriers Under 49 U.S.C. 13902(c).’’

This includes approval for ‘‘Form OP–

2—Application for Certificate of

Registration for Foreign Motor Carriers

and Foreign Motor Private Carriers

Under 49 U.S.C. 13902(c)’’, approved for

2,000 burden hours (1,000 respondents

per year @ 2 hours each to complete the

form). The FMCSA proposes to change

the form title to Form OP–2—

Application for Certificate of

Registration for Foreign Motor Carriers

and Foreign Private Carriers Under 49

U.S.C. 13902.’’

The Regulatory Evaluation for this

proposal uses a numerical range to

estimate the number of Mexican carriers

anticipated to request OP–2 or OP–

1(MX) authority under this proposal and

a companion rule published elsewhere

in today’s Federal Register (see NPRM

titled Application by Certain Mexican

Motor Carriers to Operate Beyond 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

FMCSA to assess the maximum

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information collection burden to

respondents.

The FMCSA estimatesd in the

regulatory evaluation 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 75

percent of the first year new applicants

(2,400) would file a Form OP–2; and 75

percent of the subsequent-year new

applicants (1,875 annually) would file a

Form OP–2.

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 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–2 applicant

information within 45 days of the

change. For changes and updates, the

agency anticipates that in the first year,

2,765 carriers would file updates or

changes to the Form OP–2. In

subsequent years, approximately 625

carriers would file updates or changes to

the Form OP–2. 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–2 as follows:

Mexican carrier re-filings or initial

filings of the Form OP–2:

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

4 hrs per form = 23,576 hrs

(in first year, first-time applicants):

2,400 × 4 hrs per form = 9,600 hrs

(in subsequent-years, first-time

applicants): 1,875 × 4 hrs per form

= 7,500 hrs

Updates/Changes:

(all in first year): 2,765 × 30 min. per

form = 1,383 hrs

(all in subsequent years): 625 × 30

min. per form = 313 hrs

Therefore, the total burden hours for

this information collection in the first

year is 34,559 [(23,576 + 9,600 = 33,176)

+ 1,383]; and 7,813 in subsequent years

[7,500 + 313].

OMB Control Number: 2126–0019.

Title: Application for Certificate of

Registration for Foreign Motor Carrier

and Foreign Motor Private Carriers

Under U.S.C. 13902.

Respondents: Foreign motor carriers.

Estimated Annual Hour Burden for

this NPRM: Year 1 = 34,559 hours;

Subsequent years = 7,813 hours.

National Environmental Policy

The agency has analyzed this

proposed action 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 368

Administrative practice and

procedure, Highways and roads,

Insurance, Motor Carriers of property.

49 CFR Part 387

Freight forwarders, Highways and

roads, Motor carriers, Surety bonds.

For the reasons set forth in the

preamble, the FMCSA proposes to

amend 49 CFR parts 368 and 387 as

follows:

1. Revise part 368 to read as follows:

PART 368—APPLICATION FOR A

CERTIFICATE OF REGISTRATION TO

OPERATE IN MUNICIPALITIES IN THE

UNITED STATES ON THE UNITED

STATES-MEXICO INTERNATIONAL

BORDER OR WITHIN THE

COMMERCIAL ZONES OF SUCH

MUNICIPALITIES

Sec.

368.1 Certificate of registration.

368.2 Definitions.

368.3 Applying for a certificate of

registration.

368.4 Requirement to notify of change in

applicant information.

368.5 Re-registration of certain carriers

holding certificates of registration.

368.6 Review of the application.

368.7 Requirement to carry certificate of

registration in the vehicle.

368.8 Appeals.

Appendix A to Part 368—Form OP–2—

Application for Certificate of Registration

for Foreign Motor Carriers and Foreign

Private Carriers Under 49 U.S.C. 13902

Authority: 49 U.S.C. 13301 and 13902;

Pub. L. 106–159, 113 Stat. 1748; and 49 CFR

1.73.

§ 368.1 Certificate of registration.

(a) A Mexican-domiciled motor

carrier must apply to the FMCSA and

receive a Certificate of Registration to

provide interstate transportation in

municipalities in the United States on

the United States-Mexico international

border or within the commercial zones

of such municipalities as defined in 49

U.S.C. 13902(c)(4)(A).

(b) A Certificate of Registration

permits only interstate transportation of

property in municipalities in the United

States on the United States-Mexico

international border or within the

commercial zones of such

municipalities. A holder of a Certificate

of Registration who operates a vehicle

beyond this area is subject to applicable

penalties and the vehicle may be placed

out of service.

§ 368.2 Definitions.

Interstate transportation means

transportation described at 49 U.S.C.

13501, and transportation in the United

States otherwise exempt from the

Secretary’s jurisdiction under 49 U.S.C.

13506(b)(1).

Mexican-domiciled motor carrier

means a motor carrier of property whose

principal place of business is located in

Mexico.

§ 368.3 Applying for a certificate of

registration.

(a) If you wish to obtain a Certificate

of Registration under this part, you must

submit an application that consists of:

Form OP–2—Application for Mexican

Certificate of Registration for Foreign

Motor Carriers and Foreign Private

Carriers Under 49 U.S.C. 13902, Form

MCS–150—Motor Carrier Identification

Report, and Form BOC–3—Designation

of Agents—Motor Carriers, Brokers and

Freight Forwarders.

(b) The FMCSA will only process

your application for a Certificate of

Registration if it meets the following

conditions:

(1) The application must be

completed in English.

(2) The information supplied must be

accurate and complete in accordance

with the instructions to the Form OP–

2, Form MCS–150 and Form BOC–3.

(3) The application must include all

the required supporting documents and

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applicable certifications set forth in the

instructions to the Form OP–2, Form

MCS–150 and Form BOC–3.

(4) The application must include the

filing fee payable to the FMCSA in the

amount set forth in 49 CFR § 360.3(f)(1);

and

(5) The application must be signed by

the applicant.

(c) If you fail to furnish the complete

application as described under

paragraph (b) of this section your

application may be rejected.

(d) If you submit false information

under this section, you will be subject

to applicable Federal penalties.

(e) You must submit the application

to the address provided in the

instructions to the Form OP–2.

(f) You may obtain the application

described in paragraph (a) of this

section from any FMCSA Division

Office or download it from the FMCSA

web site at: http://www.fmcsa.dot.gov/

factsfigs/formspubs.htm. Form OP–2 is

also published in Appendix A to this

part.

§ 368.4 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–2 or the Form BOC–3—

Designation of Agents—Motor Carriers,

Brokers and Freight Forwarders during

the application process or while you

have a Certificate of Registration. 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 the Certificate of

Registration until you meet those

requirements.

§ 368.5 Re-registration of certain carriers

holding certificates of registration.

(a) Each holder of a Certificate of

Registration that permits operations

only in municipalities in the United

States along the United States-Mexico

international border or in commercial

zones of such municipalities issued

prior to [Insert date of publication of

final rule in the Federal Register.] who

wishes to continue solely in those

operations must submit an application

according to procedures established

under § 368.3 of this part, except the

filing fee in paragraph (b)(4) of that

section is waived. You must file your

application by [Insert date 1 year after

date of publication of final rule in the

Federal Register.].

(b) The FMCSA may suspend the

Certificate of Registration of any

applicable holder that fails to comply

with the procedures set forth in this

section.

(c) Certificates of Registration issued

prior to [Insert date of publication of

final rule in the Federal Register.]

would remain valid until the OP–2

application filed according to paragraph

(a) of this section is processed.

§ 368.6 Review of the application.

(a) The Federal Motor Carrier Safety

Administration will review the

application for correctness,

completeness, and adequacy of

information. Minor errors will be

corrected without notice to the

applicant. Incomplete applications will

be rejected.

(b) Compliance will be determined

solely on the basis of the application,

required attachments, and the safety

fitness of the applicant as determined by

the information supplied in the

application, including evidence that the

applicant, its vehicles and drivers are

registered with the Federal Government

of Mexico and included in Mexican

electronic databases that are available

for inspection by the FMCSA.

(c) If the applicant does not require or

is not eligible for a Certificate of

Registration, the FMCSA will deny the

application and notify the applicant.

(d) If the FMCSA grants the

application, it will issue a Certificate of

Registration.

(1) The Certificate of Registration will

permit operations only in U.S.

municipalities and commercial zones

adjacent to the United States-Mexico

border.

(2) The Certificate of Registration will

be conditioned upon completion, to the

satisfaction of FMCSA, of a safety

review under § 385.215 of this title

within 18 months of the date of the

Certificate.

(e) Notice of the authority sought will

not be published in either the Federal

Register or the FMCSA Register.

Protests or comments will not be

allowed. There will be no oral hearings.

§ 368.7 Requirement to carry certificate of

registration in the vehicle.

A holder of a Certificate of

Registration must maintain a copy of the

Certificate of Registration in any vehicle

providing transportation service within

the scope of the Certificate.

§ 368.8 Appeals.

An applicant has the right to appeal

denial of the application. The appeal

must be in writing and specify in detail

why the agency’s decision to deny the

application was wrong. The appeal must

be filed with the Director, Data Analysis

and Information Systems within 20 days

of the date of the letter denying the

application. The decision of the Director

will be the final agency order.

BILLING CODE 4910–EX–P

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Appendix A to Part 368—Form OP–2—Application for Certificate of Registration for Foreign Motor Carriers and Foreign

Private Carriers Under 49 U.S.C. 13902

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BILLING CODE 4910–EX–C

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