[Federal Register Volume 66, Number 86 (Thursday, May 3, 2001)]
[Proposed Rules]
[Pages 22328-22371]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-11034]



[[Page 22327]]

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Part III





Department of Transportation





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Federal Motor Carrier Safety Administration



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49 CFR Part 365, et al.



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; Proposed Rules

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

[[Page 22328]]


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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


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

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 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

[[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 Sec. 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 Secs. 368.3, 368.4 and 368.5 would be revised and 
consolidated under a new proposed Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 368.3.
    Proposed Sec. 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 
Sec. 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

[[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.

[[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

[[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

[[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  x  4 hrs per form = 
9,600 hrs
    (in subsequent-years, first-time applicants): 1,875  x  4 hrs per 
form = 7,500 hrs
Updates/Changes:
    (all in first year): 2,765  x  30 min. per form = 1,383 hrs
    (all in subsequent years): 625  x  30 min. per form = 313 hrs

    Therefore, the total burden hours for this information collection 
in the first year is 34,559 [(23,576 + 9,600 = 33,176) + 1,383]; and 
7,813 in subsequent years [7,500 + 313].
    OMB Control Number: 2126-0019.
    Title: Application for Certificate of Registration for Foreign 
Motor Carrier and Foreign Motor Private Carriers Under U.S.C. 13902.
    Respondents: Foreign motor carriers.
    Estimated Annual Hour Burden for this NPRM: Year 1 = 34,559 hours; 
Subsequent years = 7,813 hours.

National Environmental Policy

    The agency has analyzed this proposed action for the purpose of the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and 
has determined under DOT Order 5610.1C (September 18, 1979) that this 
action does not require any environmental assessment. An environmental 
impact statement is, therefore, not required.

List of Subjects

49 CFR Part 368

    Administrative practice and procedure, Highways and roads, 
Insurance, Motor Carriers of property.

49 CFR Part 387

    Freight forwarders, Highways and roads, Motor carriers, Surety 
bonds.

    For the reasons set forth in the preamble, the FMCSA proposes to 
amend 49 CFR parts 368 and 387 as follows:
    1. Revise part 368 to read as follows:

PART 368--APPLICATION FOR A CERTIFICATE OF REGISTRATION TO OPERATE 
IN MUNICIPALITIES IN THE UNITED STATES ON THE UNITED STATES-MEXICO 
INTERNATIONAL BORDER OR WITHIN THE COMMERCIAL ZONES OF SUCH 
MUNICIPALITIES

Sec.
368.1   Certificate of registration.
368.2   Definitions.
368.3   Applying for a certificate of registration.
368.4   Requirement to notify of change in applicant information.
368.5   Re-registration of certain carriers holding certificates of 
registration.
368.6   Review of the application.
368.7   Requirement to carry certificate of registration in the 
vehicle.
368.8   Appeals.
Appendix A to Part 368--Form OP-2--Application for Certificate of 
Registration for Foreign Motor Carriers and Foreign Private Carriers 
Under 49 U.S.C. 13902

    Authority: 49 U.S.C. 13301 and 13902; Pub. L. 106-159, 113 Stat. 
1748; and 49 CFR 1.73.


Sec. 368.1  Certificate of registration.

    (a) A Mexican-domiciled motor carrier must apply to the FMCSA and 
receive a Certificate of Registration to provide interstate 
transportation in municipalities in the United States on the United 
States-Mexico international border or within the commercial zones of 
such municipalities as defined in 49 U.S.C. 13902(c)(4)(A).
    (b) A Certificate of Registration permits only interstate 
transportation of property in municipalities in the United States on 
the United States-Mexico international border or within the commercial 
zones of such municipalities. A holder of a Certificate of Registration 
who operates a vehicle beyond this area is subject to applicable 
penalties and the vehicle may be placed out of service.


Sec. 368.2  Definitions.

    Interstate transportation means transportation described at 49 
U.S.C. 13501, and transportation in the United States otherwise exempt 
from the Secretary's jurisdiction under 49 U.S.C. 13506(b)(1).
    Mexican-domiciled motor carrier means a motor carrier of property 
whose principal place of business is located in Mexico.


Sec. 368.3  Applying for a certificate of registration.

    (a) If you wish to obtain a Certificate of Registration under this 
part, you must submit an application that consists of: Form OP-2--
Application for Mexican Certificate of Registration for Foreign Motor 
Carriers and Foreign Private Carriers Under 49 U.S.C. 13902, Form MCS-
150--Motor Carrier Identification Report, and Form BOC-3--Designation 
of Agents--Motor Carriers, Brokers and Freight Forwarders.
    (b) The FMCSA will only process your application for a Certificate 
of Registration if it meets the following conditions:
    (1) The application must be completed in English.
    (2) The information supplied must be accurate and complete in 
accordance with the instructions to the Form OP-2, Form MCS-150 and 
Form BOC-3.
    (3) The application must include all the required supporting 
documents and

[[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 Sec. 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.


Sec. 368.4  Requirement to notify of change in applicant information.

    (a) You must notify the FMCSA of any changes or corrections to the 
information in Parts I, IA or II submitted on the Form OP-2 or the Form 
BOC-3--Designation of Agents--Motor Carriers, Brokers and Freight 
Forwarders during the application process or while you have a 
Certificate of Registration. You must notify the FMCSA in writing 
within 45 days of the change or correction.
    (b) If you fail to comply with paragraph (a) of this section, the 
FMCSA may suspend or revoke the Certificate of Registration until you 
meet those requirements.


Sec. 368.5  Re-registration of certain carriers holding certificates of 
registration.

    (a) Each holder of a Certificate of Registration that permits 
operations only in municipalities in the United States along the United 
States-Mexico international border or in commercial zones of such 
municipalities issued prior to [Insert date of publication of final 
rule in the Federal Register.] who wishes to continue solely in those 
operations must submit an application according to procedures 
established under Sec. 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.


Sec. 368.6  Review of the application.

    (a) The Federal Motor Carrier Safety Administration will review the 
application for correctness, completeness, and adequacy of information. 
Minor errors will be corrected without notice to the applicant. 
Incomplete applications will be rejected.
    (b) Compliance will be determined solely on the basis of the 
application, required attachments, and the safety fitness of the 
applicant as determined by the information supplied in the application, 
including evidence that the applicant, its vehicles and drivers are 
registered with the Federal Government of Mexico and included in 
Mexican electronic databases that are available for inspection by the 
FMCSA.
    (c) If the applicant does not require or is not eligible for a 
Certificate of Registration, the FMCSA will deny the application and 
notify the applicant.
    (d) If the FMCSA grants the application, it will issue a 
Certificate of Registration.
    (1) The Certificate of Registration will permit operations only in 
U.S. municipalities and commercial zones adjacent to the United States-
Mexico border.
    (2) The Certificate of Registration will be conditioned upon 
completion, to the satisfaction of FMCSA, of a safety review under 
Sec. 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.


Sec. 368.7  Requirement to carry certificate of registration in the 
vehicle.

    A holder of a Certificate of Registration must maintain a copy of 
the Certificate of Registration in any vehicle providing transportation 
service within the scope of the Certificate.


Sec. 368.8  Appeals.

    An applicant has the right to appeal denial of the application. The 
appeal must be in writing and specify in detail why the agency's 
decision to deny the application was wrong. The appeal must be filed 
with the Director, Data Analysis and Information Systems within 20 days 
of the date of the letter denying the application. The decision of the 
Director will be the final agency order.
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Appendix A to Part 368--Form OP-2--Application for Certificate of 
Registration for Foreign Motor Carriers and Foreign Private 
Carriers Under 49 U.S.C. 13902
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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 Sec. 387.7, revise the first sentence of paragraph (b)(3) 
introductory text to read as follows:


Sec. 387.7  Financial responsibility required.

* * * * *
    (b) * * *
    (3) Exception. A Mexican motor carrier operating solely in the 
commercial zones with a certificate of registration issued under part 
368 may meet the minimum financial responsibility requirements of this 
subpart by obtaining insurance coverage, in the required amounts, for 
periods of 24 hours or longer, from insurers that meet the requirements 
of Sec. 387.11 of this subpart. * * *
* * * * *

    Issued on: April 27, 2001.
Brian M. McLaughlin,
Associate Administrator for Policy and Program Development.
[FR Doc. 01-11034 Filed 5-1-01; 8:45 am]
BILLING CODE 4910-EX-P