`[Federal Register Volume 66, Number 86 (Thursday, May 3, 2001)]
[Proposed Rules]
[Pages 22371-22415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-11035]


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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.

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SUMMARY: The FMCSA proposes changes in its regulations to govern 
applications by Mexican carriers to operate beyond municipalities and 
commercial zones at the United States-Mexico 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 self-addressed, 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

[[Page 22372]]

(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 pre-and 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 most-favored-nation treatment for 
cross-border 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 Mexican-
Domiciled 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.

[[Page 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 States-Mexico 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 Sec. 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 Sec. 365.503, the FMCSA states that applications must 
be filled

[[Page 22374]]

out in English and be complete to be considered. Information on 
obtaining applications is also provided.
    We propose in Sec. 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 Sec. 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 Sec. 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-of-service (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

[[Page 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.

[[Page 22376]]

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 Mexican-Domiciled 
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  x  4 hrs per form = 23,576 
hrs
    (in first year, first-time applicants): 800  x  4 hrs per form = 
3,200 hrs
    (in subsequent-years, first-time applicants): 625  x  4 hrs per 
form = 2,500 hrs
Updates/Changes:
    (all in first year): 2,232  x  30 min. per form = 1,117 hrs
    (all in subsequent years): 208  x  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

[[Page 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


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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 Sec. 385.21 of this 
chapter within 18 months of the date of approval.


Sec. 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`