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###### Department of Transportation

###### Federal Motor Carrier Safety Administration

          - 49 CFR Parts 368 and 387
          - [Docket No. FMCSA-98-3297]
          - RIN 2126-AA33

# 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 self-addressed, 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                               ( print page 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 “Mexican-domiciled 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 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 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                               ( print page 22330)                            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 States-Mexico 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.                               ( print page 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-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 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                               ( print page 22332)                            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                               ( print page 22333)                            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 

        - 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 

(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 

*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 

(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                                       ( print page 22334)                                    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 

(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 

                                (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 

(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 

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 

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. 

      ( print page 22335)    49 U.S.C. 13902      ( print page 22336)          ( print page 22337)          ( print page 22338)          ( print page 22339)          ( print page 22340)          ( print page 22341)          ( print page 22342)          ( print page 22343)          ( print page 22344)          ( print page 22345)          ( print page 22346)          ( print page 22347)          ( print page 22348)          ( print page 22349)          ( print page 22350)          ( print page 22351)          ( print page 22352)          ( print page 22353)          ( print page 22354)          ( print page 22355)          ( print page 22356)          ( print page 22357)          ( print page 22358)          ( print page 22359)          ( print page 22360)          ( print page 22361)          ( print page 22362)          ( print page 22363)          ( print page 22364)          ( print page 22365)          ( print page 22366)          ( print page 22367)          ( print page 22368)          ( print page 22369)          ( print page 22370)    
      ( print page 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 

* * * * *

(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. 

BILLING CODE 4910-EX-P

BILLING CODE 4910-EX-C

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