[Federal Register Volume 67, Number 53 (Tuesday, March 19, 2002)]
[Rules and Regulations]
[Pages 12652-12700]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-5890]



[[Page 12651]]

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Part II





Department of Transportation





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Federal Motor Carrier Safety Administration



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49 CFR Parts 368 and 387



Revision of Regulations and Application Form for Mexico-Domiciled Motor 
Carriers To Operate in United States Municipalities and Commercial 
Zones on the United States-Mexico Border; Final Rule

  Federal Register / Vol. 67, No. 53 / Tuesday, March 19, 2002 / Rules 
and Regulations  

[[Page 12652]]


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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 Mexico-Domiciled 
Motor Carriers To Operate in United States Municipalities and 
Commercial Zones on the United States-Mexico Border

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Final rule.

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SUMMARY: The FMCSA revises its regulations and form that relate to the 
issuance of Certificates of Registration to those Mexico-domiciled 
motor carriers (of property) that want to operate in the United States 
only within the municipalities adjacent to Mexico in Texas, New Mexico, 
Arizona, and California and within the commercial zones of such 
municipalities (``border zones''). This rule also revises FMCSA's 
regulations governing financial responsibility of motor carriers to 
accurately reflect the requirements placed on these Mexico-domiciled 
motor carriers. Other types of carriers that currently hold a 
Certificate of Registration (such as exempt carriers that operate 
beyond the border zones) must now apply under separate FMCSA 
regulations that we are issuing in an interim final rule published 
elsewhere in today's Federal Register. The revisions in this action are 
part of FMCSA's efforts to ensure the safe operation of Mexico-
domiciled motor carriers in the United States. They will ensure that 
the FMCSA receives adequate information to assess a new applicant's 
safety program and its ability to comply with U.S. safety standards 
before it is registered to operate in the United States. The FMCSA will 
evaluate current certificate holders who re-file under these 
regulations to determine if they meet U.S. safety standards and should 
be permitted to continue operations within the border zones. As a 
result of these changes, the agency also will be better able to 
maintain an accurate census of registered carriers. Additionally, the 
regulations have been updated to reflect the transfer of motor carrier 
regulatory functions from the Federal Highway Administration (FHWA) to 
FMCSA.

EFFECTIVE DATE: This final rule is effective April 18, 2002.

FOR FURTHER INFORMATION CONTACT: Joanne Cisneros, (909) 653-2299, 
Transborder Office, FMCSA, P.O. Box 530870, San Diego, CA 92153-0870. 
Office hours are from 7:45 a.m. to 4:15 p.m., p.t., Monday through 
Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

    Since 1982, significant limitations have been in place concerning 
operations by Mexico-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. Until the effective date of this rulemaking, Mexico-
domiciled carriers eligible for Certificates of Registration were those 
operating solely within the border zones and certain motor private 
carriers and carriers of exempt goods who operated beyond the border 
zones.

Summary of the NPRM

    The FMCSA published the notice of proposed rulemaking (NPRM) for 
this action on May 3, 2001 (66 FR 22328). We proposed to use the Form 
OP-2 (with substantial changes) and the issuance of Certificates of 
Registration only for those carriers whose operations are limited to 
the border zones. The FMCSA believes that despite the opportunity for 
Mexico-domiciled carriers to operate beyond the border zones, there are 
a substantial number of carriers that are most familiar with the 
Certificate of Registration and want to continue operating in a limited 
area.
    We additionally proposed that all current holders of Certificates 
of Registration be required to file new forms with the FMCSA. Those 
carriers who wish to continue operating only in the border zones would 
file the Form OP-2 in accordance with the procedures in part 368. All 
other current holders of Certificates of Registration who want to 
operate beyond the border zones would file Form OP-1(MX) like all other 
Mexico-domiciled property carriers seeking the ability to operate under 
the implementation of the NAFTA entry provisions.
    The FMCSA proposed to modify parts 368 and 387 and Form OP-2 as 
part of our implementation of the NAFTA cross-border access provisions. 
We asked for comments on our 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.
    The NPRM was one of three proposals related to carriers operating 
or seeking to operate between Mexico and the United States published in 
the May 3, 2001, Federal Register. The FMCSA made a conscious decision 
to propose retaining two different application forms and processes, the 
OP-2 and the OP-1(MX), under 49 CFR part 368 and part 365, 
respectively. We solicited comments on the need to maintain the 
Certificate of Registration process. A separate NPRM (66 FR 22371) 
proposed and sought comments on changes to Form OP-1(MX) and 49 CFR 
part 365. The third NPRM (66 FR 22415) explained the proposed safety 
monitoring system for Mexico-domiciled carriers operating in the United 
States. These three proposals are part of a coordinated effort to 
assess and monitor the safety performance of Mexico-domiciled carriers 
before and as they operate in the United States.

Discussion of Comments to the NPRM

    In response to the three NPRMs relating to NAFTA implementation, 
the FMCSA received over 200 comments from motor carrier associations, 
safety advocates, environmental interest groups, law enforcement 
agencies, motor carriers, labor groups, State and local government 
agencies, economic and community development associations, and private 
citizens. More than 90 percent of the comments opposed the proposed 
safety monitoring system or the border opening. Most of the comments 
focused on the proposed safety monitoring system (66 FR 22415) and will 
be fully discussed elsewhere in today's Federal Register. It should be 
noted, however, that these and other comments urging a delay in the 
implementation of NAFTA assume that the regulations published today 
``open the border'' or lift the current moratorium on the grant of 
operating authority. The regulations do neither. The President, not the 
FMCSA, has that authority pursuant to 49 U.S.C. 13902. The President 
has announced that the United States will comply with its NAFTA 
obligations regarding Mexico-domiciled motor carrier access in a manner 
that will not weaken motor carrier safety. The regulations help ensure 
motor carrier safety and provide an application process for Mexico-
domiciled carriers seeking to operate within the United States.
    A large percentage of the commenters addressed all three rules 
together in a single submission that was filed in one

[[Page 12653]]

or all three public dockets. We have carefully considered them and have 
revised the OP-2 application form and the regulations governing the 
application process as noted in the preamble sections titled 
``Discussion of the Final Rule'' and ``Final Revisions to the Form OP-
2.'' In this section, FMCSA discusses the comments that directly relate 
to the proposed changes in parts 368 and 387, as well as some comments 
that related to all the proposals.
    The Friends of the Earth, Natural Resources Defense Council, Sierra 
Club, and Center for International Law (Friends of the Earth et al.) 
jointly commented that FMCSA is required to perform additional analysis 
to meet the requirements of the National Environmental Policy Act 
(NEPA) (42 U.S.C. 4321 et seq.) and Executive Order 13045 (62 FR 19885, 
April 23, 1997), concerning the protection of children from 
environmental and health and safety risks. The International 
Brotherhood of Teamsters (Teamsters) also expressed this viewpoint. The 
Friends of the Earth et al. believe that 40 CFR 1501.3(b) requires that 
if DOT is not certain that an environmental impact statement is 
required, then it must first prepare an environmental assessment. 
Regarding compliance with Executive Order 13045, the Friends of the 
Earth et al. believe that this action presents increased pollution and 
safety concerns that pose a disproportionate risk to children.
    The FMCSA is preparing an agency order to meet the requirements of 
DOT Order 5610.1C (that establishes the Department of Transportation's 
policy for compliance with NEPA by the Department's administrations). 
The FMCSA has conducted a programmatic environmental assessment (PEA) 
of the three rulemakings in accordance with the DOT Order and the 
regulations of the Council on Environmental Quality. A discussion of 
the PEA and its findings and the FMCSA's responsibilities under E.O. 
13045 is presented later in the preamble under ``Regulatory Analyses 
and Notices.'' A copy of the PEA is in the docket to this rulemaking.
    The Attorney General for the State of California submitted a 
comment in which he asserted that the FMCSA would be required to 
perform a ``conformity determination'' pursuant to the Clean Air Act 
(CAA), before finalizing these rulemakings. Under the CAA, Federal 
agencies are prohibited from supporting in any way, any activity that 
does not conform to an approved State Implementation Plan (SIP), (42 
USC 7006). EPA regulations implementing this provision require Federal 
agencies to determine whether an action would conform with the SIP (a 
``conformity determination''), before taking the action (40 CFR 
93.150). The Attorney General asserts that the FMCSA must make a 
conformity determination before taking final action to implement 
regulations that would allow Mexican trucks to operate beyond the 
border. The Attorney General provided technical information to support 
his assertion that allowing Mexican trucks to operate beyond the border 
would likely not be in conformity with California's SIP.
    We have reviewed our obligations under the CAA and believe that we 
are in compliance with the general conformity requirements as 
implemented by the U.S. Environmental Protection Agency (EPA). EPA's 
implementing regulations exempt certain actions from the general 
conformity determination requirements. Actions which would result in no 
increase in emissions or clearly a de minimis increase, such as 
rulemaking (40 CFR 93.153(c)(iii)), are exempt from requiring a 
conformity determination. In addition, actions which do not exceed 
certain threshold emissions rates set forth in 40 CFR 93.153(b) are 
also exempt from the conformity determination requirements. The FMCSA 
rulemakings meet both of these exemption standards. First, as noted 
elsewhere in this preamble to this rule, the actions being taken by the 
FMCSA are rulemaking actions to improve FMCSA's regulatory oversight, 
not an action to modify the moratorium and allow Mexican trucks to 
operate beyond the border. Second, the air quality impacts from each of 
the FMCSA's rules neither individually nor collectively exceed the 
threshold emissions rates established by EPA (see Appendix C of the 
Environmental Assessment accompanying these rulemakings for a more 
detailed discussion of air quality impacts). As a result, we believe 
that FMCSA's rulemaking actions comply with the CAA requirements and 
that no conformity determination is required.
    The Laredo (Texas) Chamber of Commerce, the City of Laredo, and the 
Laredo Development Foundation all submitted comments that specifically 
addressed the proposed regulations for Mexico-domiciled carriers that 
operate solely within the border zones. They are concerned that no 
additional requirements be put in place to slow down traffic through 
the border entry facilities. The City of Laredo believes that requiring 
drayage operations drivers, who operate solely within the border zones, 
to speak English, as well as understand English signage, is 
unnecessary.
    The FMCSA believes that all motor carriers and drivers under its 
jurisdiction must meet all applicable motor carrier safety regulations 
when operating within the United States, regardless of the nature of 
operations. Since many of the Mexican short-haul or ``drayage'' drivers 
have been operating within the border zones for some time, most of them 
already comply with the English language proficiency requirements 
established for all commercial drivers operating in the United States 
under 49 CFR 391.11.
    The Chamber of Commerce (COC) and Teamsters support the proposal to 
maintain a separate application form and procedures for Mexico-
domiciled carriers that operate solely within the border zones. The COC 
does not want the Mexican short-haul operations to be identified 
together with long-haul operations operating beyond the border zones.
    On the other hand, the Commercial Vehicle Safety Alliance (CVSA), 
the Camara Nacional del Autotransporte de Cargo (CANACAR) and American 
Trucking Associations, Inc. (ATA) recommend a single application form 
and procedures. CVSA recommends combining the OP-2 and OP-1(MX) forms 
because they are virtually identical. CANACAR believes that the 
proposed rules, in creating a distinction between applicants who seek 
to operate only in the border zones and those that seek to operate 
beyond the border zones, are in conflict with the implementation 
schedule established in the annex to NAFTA Chapter XII. The fourth 
phase of the implementation schedule was to allow Mexico-domiciled 
property carriers to operate from anywhere in Mexico to any point in 
the United States. CANACAR believes that the proposals set forth in the 
NPRM to this action appear to violate this principle.
    The FMCSA is maintaining a separate registration system for Mexico-
domiciled drayage operations, in part, so that we can maintain a more 
accurate census of these carriers, better assess their safety trends 
and operational characteristics, and track the impact of opening the 
border on dedicated drayage operations. Maintaining a separate 
Certificate of Registration will also enable those Mexico-domiciled 
carriers who wish to continue limited operations within the border 
zones to do so without incurring extra expenses for such things as 
mandatory continuous insurance coverage and additional fees for beyond 
border zone operations. This rule does not violate the fourth phase of 
the NAFTA implementation schedule

[[Page 12654]]

because it does not prohibit current holders of Certificates of 
Registration from requesting the broader operating authority available 
to Mexico-domiciled carriers under part 365 (as provided in an interim 
final rule published elsewhere in today's Federal Register).
    The Teamsters support the proposal to require all current holders 
of Certificates of Registration to re-register, but believe that the 
one-year time period in which current holders of Certificates of 
Registration must re-file an OP-2 is too long. The Teamsters 
acknowledge the need to allow currently operating carriers sufficient 
time to prepare the application form but recommend that the re-
registration period be shortened to 6 months.
    The FMCSA believes that a longer re-registration period is required 
to permit border-zone carriers to continue operating within the border 
zones while modifying their vehicle fleets to comply with an FMCSA 
proposed rule published elsewhere in today's Federal Register. This 
rule would require that all commercial vehicles operated in the United 
States display labels certifying compliance with the Federal Motor 
Vehicle Safety Standards (FMVSS). However, to avoid disrupting existing 
border zone operations, the rule would allow border-zone carriers to 
operate vehicles within the border zone without a certification label 
for 24 months after the effective date of the rule, provided these 
vehicles were operated within the border zones before the rule's 
effective date. The expanded registration period will also provide 
adequate time to process the large number of applications anticipated. 
Thus, the final rule provides for an 18-month re-registration 
requirement.
    The Owner-Operator Independent Drivers Association (OOIDA) 
commented in favor of the current system for Certificates of 
Registration that does not include publication of applications in the 
FMCSA Register.
    However, the Teamsters oppose proposed Sec. 368.6(f), which states 
that FMCSA will not provide notice of OP-2 filings in the Federal 
Register or FMCSA Register or permit comments, protests, or public 
hearings regarding such filings. This section is essentially a 
recodification of the last three sentences in former Sec. 368.3(a). 
Applications for Certificates of Registration have not been subject to 
a public notice and protest requirement since procedures for handling 
such applications were first established by the ICC in 1985. The 
predecessor to part 368, 49 CFR part 1171, expressly prohibited public 
protests and oral hearings. Only the Department of Transportation was 
permitted to challenge an application. When the authority to issue 
Certificates of Registration was transferred to DOT effective January 
1, 1996, part 1171 was adopted by the Federal Highway Administration 
and redesignated as part 368 without substantive change, except that 
the DOT intervention provision was removed as no longer necessary.
    Based on 16 years experience in administering the border zone 
registration procedures, we are not convinced that providing a new 
right of public protest will measurably impact public safety. 
Operations under these rules will be confined to a limited geographical 
territory and we will be carefully scrutinizing border zone carriers 
through the application process and during the 18-month provisional 
operating period following issuance of the Certificate of Registration. 
Under these circumstances, we do not believe that it is necessary to 
change the regulations to accommodate the Teamsters' concerns.
    The Citizens for Reliable and Safe Highways (CRASH) commented that 
safety audits of all Mexico-domiciled carriers must be conducted before 
they are allowed to operate in the United States. FMCSA received the 
same comment from many private citizens who identified themselves as 
allied with CRASH. The CVSA, Automobile Association of America (AAA), 
American Association of Motor Vehicle Administrators (AAMVA), Public 
Citizen, Transportation Consumer Protection Council, and Advocates for 
Highway and Auto Safety (AHAS) all commented that a paper-based system 
for allowing Mexican vehicles to cross the border was insufficient and 
recommended safety audits before allowing Mexico-domiciled carriers to 
operate in the United States.
    The FMCSA does not agree that pre-operating safety audits are a 
necessary addition to the on-going process of issuing Certificates of 
Registration. Mexico-domiciled carriers have been conducting drayage 
operations within the border zones for more than 19 years. They are 
already familiar with U.S. motor carrier safety standards. The FMCSA 
will verify the information provided by OP-2 applicants using 
information from Mexican and U.S. government databases. In addition, 
OP-2 applicants will also be subject to a safety monitoring program, 
including a safety audit conducted within the 18-month provisional 
operating period (as fully described in an interim final rule published 
elsewhere in today's Federal Register).
    On the other hand, long-haul operations within the United States by 
Mexico-domiciled carriers have not been authorized for some time. 
Mexico-domiciled applicants for long-haul authority will likely accrue 
more vehicle miles over a larger geographical territory than drayage 
operators and are less familiar with U.S. safety standards. For these 
reasons, section 350 of the 2002 DOT Appropriations Act (Pub. L. 107-
87) requires FMCSA to subject long-haul carriers, but not border-zone 
carriers, to pre-authority safety examinations before being granted 
provisional operating authority to begin operations within the United 
States.
    A company that rents recyclable pallets and plastic containers 
(CHEP USA), Free Trade-San Antonio, and The National Private Truck 
Council commented in favor of the proposed regulations.
    United Parcel Service (UPS) commented that the application and 
regulations for Mexico-domiciled carriers requesting Certificates of 
Registration should identify express delivery as a separate kind of 
carrier operation. UPS explains that this distinction would enable the 
United States to accelerate the timeline for lifting the moratorium for 
express delivery services, without awaiting action on general trucking.
    We do not see the need at this time for the rules to distinguish 
between express delivery services and general trucking services. We do 
not expect that the moratorium will be lifted for express delivery 
services before the lifting of the moratorium on general trucking. In 
addition, the United States maintains a reservation under the NAFTA on 
the transportation of goods other than international cargo between 
points in the United States, and the reservation covers both express 
delivery services and other motor carrier services.
    In response to comments about the need for ensuring that vehicles 
operated by Mexico-domiciled motor carriers comply with the applicable 
FMVSSs, the FMCSA has published elsewhere in today's Federal Register 
an NPRM that would require all motor carriers operating in the United 
States to use commercial motor vehicles that display a label certifying 
compliance with all applicable FMVSSs in effect on the date of 
manufacture. The FMCSA will enforce these safety standards through pre-
authorization safety examinations of Mexican long-haul carriers and 
roadside inspections of all Mexico-domiciled carriers, including 
inspections at the border. The FMCSA's State partners will accomplish 
enforcement through roadside and border inspections.

[[Page 12655]]

Roadside inspections provide a means of ensuring that vehicles meet the 
applicable FMVSSs in effect on the date the vehicle was manufactured.
    Title 49 CFR part 393 of the Federal Motor Carrier Safety 
Regulations (FMCSRs) currently includes cross-references to most of the 
FMVSSs applicable to heavy trucks and buses. The rules require that 
motor carriers operating in the United States, including Mexico-
domiciled carriers, must maintain the specified safety equipment and 
features that the National Highway Traffic Safety Administration 
(NHTSA) requires vehicle manufacturers to install. Failure to maintain 
these safety devices or features is a violation of the FMCSRs. If the 
violations are discovered during a roadside inspection, and they are 
serious enough to meet the current out-of-service criteria used in 
roadside inspections (i.e., the condition of the vehicle is likely to 
cause an accident or mechanical breakdown), the vehicle would be placed 
out of service until the necessary repairs are made. The FMCSA also has 
the option of imposing civil penalties for violations of 49 CFR part 
393. Any FMVSS violations that involve noncompliance with the standards 
presently incorporated into part 393 could subject motor carriers to a 
maximum civil penalty of $10,000 per violation. If the FMCSA determines 
that Mexico-domiciled carriers are operating vehicles that do not 
comply with the applicable FMVSSs, this information could be used to 
take appropriate enforcement action for making a false certification on 
the application for operating authority.
    In conjunction with our NPRM that would require all commercial 
motor vehicles operating in the United States to have FMVSS 
certification labels, NHTSA is taking three separate actions relating 
to the certification label. The first action is publication of a draft 
policy statement that will permit vehicle manufacturers to 
retroactively apply a label to a commercial motor vehicle certifying 
that the vehicle complied with all applicable FMVSSs in effect at the 
time it was originally manufactured. NHTSA recognizes that there are 
many commercial motor vehicles used by motor carriers in Mexico and 
Canada that were manufactured in accordance with the FMVSSs, but were 
not certified as complying with those standards because the vehicles 
were manufactured for sale and use in Canada or Mexico. NHTSA will, 
therefore, permit retroactive certification, but only if the 
manufacturer has sufficient basis for doing so.
    NHTSA is also publishing two NPRMs relating to FMVSS certification 
requirements. One proposes recordkeeping requirements for foreign 
manufacturers that retroactively certify vehicles; the other proposes 
to codify, in 49 CFR part 591, NHTSA's long-standing interpretation of 
the term ``import,'' as used in the National Traffic and Motor Vehicle 
Safety Act of 1966, Public Law 89-563, to include bringing a commercial 
motor vehicle into the United States for the purpose of transporting 
cargo or passengers.

Discussion of the Final Rule

    The FMCSA has made changes in the final rule to the proposed 
revisions to part 368, based on the comments, section 350 of the 2002 
DOT Appropriations Act, and our own review of the proposal.
    First, Sec. 368.3 has been revised to allow both hard-copy and 
electronic submission of required information on designation of process 
agents (Form BOC-3) as part of the application process. The FMCSA 
currently allows only process agent services to electronically file the 
Form BOC-3. If a carrier elects to use a process agent service, it must 
include a letter to that effect with the Form OP-2 and ensure that the 
service electronically files the Form BOC-3 with the FMCSA. Otherwise, 
the hardcopy Form BOC-3 must accompany the application. The carrier may 
not begin operations until the Form BOC-3 has been filed with the 
FMCSA.
    Second, the wording of Sec. 368.5 has been revised to make clear 
that a current Certificate of Registration remains valid only until the 
FMCSA acts on an application for re-registration in the same manner 
that it will act on new applications.
    The FMCSA has revised the title of Sec. 368.6 in both the table of 
sections and the regulatory text to ``FMCSA action on the application'' 
to accurately reflect how the FMCSA will consider and act on each 
application. The section now provides that the FMCSA will validate all 
data and certifications in an application with information in its own 
databases and in the appropriate databases of the Mexican Government to 
which it has access as part of the NAFTA implementation process. The 
FMCSA will issue a provisional Certificate of Registration if it 
determines that the application is consistent with the FMCSA's safety 
fitness policy. We will also assign a distinctive USDOT Number that 
distinguishes the carrier as a Mexico-domiciled carrier authorized to 
operate solely within the border zones. The provisional Certificate of 
Registration cannot become permanent for at least 18 months, until the 
carrier has successfully completed the safety monitoring program, 
including a safety audit.
    Section 368.7 has been modified to require that the copy of the 
Certificate of Registration carried on board the vehicle be made 
available upon request to authorized inspectors and enforcement 
officers.
    Finally, the FMCSA has revised Sec. 387.7 to more accurately 
describe those Mexico-domiciled carriers excepted from certain 
financial responsibility requirements. These carriers operating solely 
in municipalities in the United States on the U.S.-Mexico international 
border or within the commercial zones of such municipalities may obtain 
insurance coverage for periods of 24 hours or longer rather than 
continuous coverage.

Final Revisions to the Form OP-2

    The final rule reflects numerous typographical corrections and 
adjustments to the OP-2 application form to make it consistent with the 
OP-1(MX) form. All requests for supplemental information that must 
accompany the application are in bold typeface so that they are 
conspicuous to the applicant. The substantive revisions are discussed 
below.
    The OP-2 application instructions have been revised to discontinue 
the requirement that applicants submit Internal Revenue Service (IRS) 
Form 2290, Schedule 1 (Schedule of Heavy Highway Vehicles) with the OP-
2 application. Unlike the OP-2 registration procedure, taxes imposed by 
26 U.S.C. 4481 are assessed annually. The IRS Form 2290 would only 
provide evidence of compliance for the current year. However, the 
applicant must still certify compliance with 26 U.S.C. 4481 under 
Section VII of the application.
    The instructions clarify the definition of ``applicant'' for 
purposes of determining who must sign the various Certifications and 
the Section VIII Application Oath.
    The instructions caution applicants to enter only the city code and 
telephone numbers when listing Mexican telephone numbers on the form 
because previous applicants often submitted invalid or incomplete 
telephone numbers.
    Insurance instructions notify applicants that they must carry a 
current DOT MCS-90 and evidence of insurance on board the vehicle when 
operating within the United States.
    The information on how to receive additional assistance in 
completing the

[[Page 12656]]

Forms OP-2 and MCS-150 was revised to list a toll-free telephone number 
accessible from Mexico. We also updated the information for obtaining 
assistance with hazardous materials registration procedures and 
regulations.
    The form instructions state that applicants that use a process 
agent service to designate multiple agents for service of process must 
attach a letter to the application informing the FMCSA of this option. 
The applicant must also ensure that the service electronically files 
the Form BOC-3 with the FMCSA within 90 days of the submission of the 
OP-2 application. The applicant is also notified that it may not begin 
operations until the Form BOC-3 has been filed with FMCSA.
    The FMCSA has added two questions in Section IA regarding whether 
an applicant has held provisional operating authority or a provisional 
Certificate of Registration that was revoked. If the applicant answers 
yes to this question, the applicant must explain how it has corrected 
the deficiencies that resulted in the revocation, explain what 
effectively functioning basic safety management systems it now has in 
place, and provide all information and documents that support its case.
    The FMCSA has corrected references in Section IA, and in the 
corresponding instructions, to an ``SCT registration number.'' An 
applicant must be registered with the Mexican Government's Secretaria 
de Comunicaciones y Transportes (SCT) to be issued a Certificate of 
Registration. However, the SCT does not issue an SCT registration 
number. It uses the RFC number, a Mexican Federal Taxpayer Registration 
identifier issued by a separate Government agency, to track the 
carrier's information in the SCT database. A company is issued a 
Registro Federal de Contribuyente; individuals are issued a Registro 
Federal de Causante. The applicant must complete Question 5a under 
Section IA based upon the applicant's form of business: (1) If the 
applicant is a sole proprietorship, enter the Registro Federal de 
Causante; (2) all other business forms should complete Question 5a 
using the Registro Federal de Contribuyente.
    We have deleted a redundant question regarding the applicant's 
domicile from Section IA and Ownership and Control information from 
Section II. This information was used to substantiate claims that a 
carrier was U.S.-owned or controlled and therefore, eligible to operate 
beyond the border zones under a Certificate of Registration. With the 
implementation of NAFTA's access liberalization provisions, Mexico-
domiciled carriers applying to operate beyond the border zones will no 
longer file the OP-2 form.
    Several safety certifications have been modified or added to 
Section V. We have added a single safety certification for applicants 
that are exempt from the Federal Motor Carrier Safety Regulations 
because of the weight of their vehicles and because they will not 
transport hazardous materials (as was discussed in the proposed form 
instructions but inadvertently omitted from the proposed form). These 
applicants must certify that they will observe safe operating practices 
and comply with applicable State, local and tribal safety laws.
    Under Driver Qualifications, applicants must certify, consistent 
with 49 CFR 391.23, that they will investigate their drivers' 3-year 
employment and driving histories. The certification statement 
concerning the need for carriers to establish a system and instructions 
for drivers to report criminal convictions has been removed. Current 
regulations only require domestic drivers to report violations of motor 
vehicle traffic laws and ordinances. The certification statement 
relating to the use of properly licensed drivers has been modified to 
require that the driver's Licencia Federal de Conductor is registered 
in the SCT database.
    The four certification statements proposed under certification 
section V.8, pertaining to requirements that must be in place once 
operations within the United States have begun, have been modified to 
emphasize that the requirements apply only after the Mexico-domiciled 
carrier has begun operations within the United States and have been 
integrated into the Hours of Service, Driver Qualifications, and 
Vehicle Condition certification sections, as appropriate.
    In response to comments from ATA, Teamsters, OOIDA, and the 
Transportation Trades Department of the AFL-CIO, we have extensively 
revised the Hazardous Materials (HM) and Cargo Tank certification 
statements. The HM training certification was modified to cite the 
relevant HM training regulations (49 CFR part 172, subpart H and 49 CFR 
177.816) and the specific hazardous materials safety compliance 
information that must accompany the application.
    We reworded the certification statement regarding the establishment 
of a system and procedures for inspecting, repairing and maintaining 
``vehicles for HM transportation in a safe condition.'' The Hazardous 
Materials Regulations (HMR) require a system and procedures for 
inspection, repair and maintenance of reusable hazardous materials 
packages in a safe condition. The vehicle inspection, repair and 
maintenance requirement is covered in the Vehicle Condition 
certification statements.
    We added a new certification statement requiring carriers to ensure 
that all HM trucks are marked and placarded in compliance with 49 CFR 
part 172, subparts D and F.
    The HM registration certification statement, which is not 
restricted to Cargo Tank carriers, has been corrected and moved to the 
Hazardous Materials section.
    The Section VII--Compliance Certification statement concerning 
process agent(s) has been modified to replace the phrase ``judicial 
filings and notices'' with ``filings and notices.'' A new Compliance 
Certification statement has been added to ensure those Mexico-domiciled 
carriers whose registration has been suspended or revoked from 
operating any motor vehicle in the United States are not reapplying for 
operating authority or a Certificate of Registration during the period 
of suspension or sooner than 30 days after the date of revocation. A 
signature line has been placed beneath the Compliance Certification 
statements, consistent with Section V--Safety Certifications and 
Section VI--Household Goods Arbitration Certifications.
    Certain other changes were made to the Section--VII Compliance 
Certifications after discussions with the U.S. Department of Labor and 
the U.S. Environmental Protection Agency. The proposed Form OP-2 
included a certification that the applicant is willing and able to 
comply with United States labor laws. Although the certification is 
included in a section that is prefaced by the direction ``All 
applicants must certify as follows:'', the instructions for the form, 
after first stating that FMCSA considers compliance with labor laws to 
be ``extremely important,'' then indicate that ``registration will not 
be withheld based solely on the failure by an applicant to certify that 
it is willing and able to comply with such [DOL and OSHA] requirements 
* * *.'' The FMCSA has removed those certification statements and the 
accompanying instructions. We have added new language that compliance 
with all pertinent Federal, State, local and tribal statutory and 
regulatory requirements, including labor and environmental laws, is 
mandatory. Such compliance includes producing requested records for 
review and inspection, and that inspectors of the Immigration and

[[Page 12657]]

Naturalization Service at the port of entry must determine the driver 
of the vehicle meets the requirements under the Immigration and 
Nationality Act, 8 U.S.C. 1101 et seq. The statements do not require 
certification--they are informational in nature--and have been placed 
after the signature line.
    The Filing Fee Policy and Computation Box that formerly appeared in 
the form instructions have been moved to the back of the form because a 
carrier cannot provide filing fee information until completing Section 
III--Types of Registration. The fee policy also discloses that the 
FMCSA will place a 30-day hold on the application if the filing fee is 
paid by personal check.
    Finally, FMCSA will translate the form into Spanish for applicants 
to understand what each question asks and what types of answers they 
need to provide.

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) 
because of public interest. It has been reviewed by the Office of 
Management and Budget. However, it is anticipated that the economic 
impact of the revisions in this rulemaking would be minimal. The new or 
revised Form OP-2 is 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 Mexico-
domiciled carriers.
    Nevertheless, the subject of safe operations by Mexico-domiciled 
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.
    The Regulatory Evaluation analyzes the costs and benefits of this 
final rule and the two companion NAFTA-related interim final rules 
published elsewhere in today's Federal Register. Because these rules 
are so closely interrelated, we did not attempt to prepare separate 
analyses for each rule.
    The evaluation estimated costs and benefits based on three 
different scenarios, with a high, low and medium number of Mexico-
domiciled carriers assumed covered by the rules. The costs of these 
rules are minimal under all three scenarios. Over 10 years, the costs 
range from $53 million for the low scenario to approximately $76 
million for the high scenario. Forty percent of these costs are borne 
by the FMCSA, while the remaining costs are paid by Mexico-domiciled 
carriers. The largest costs are those associated with carrying out 
safety monitoring, including safety audits, during the 18-month period 
when Mexico-domiciled motor carriers hold provisional Certificates of 
Registration and the loss of a Mexico-domiciled carrier's ability to 
operate in the United States.
    The FMCSA used the cost effectiveness approach to determine the 
benefits of these rules. This approach involves estimating the number 
of crashes that would have to be deterred in order for the proposals to 
be cost effective. Over ten years, the low scenario would have to deter 
640 forecast crashes to be cost beneficial, the medium scenario would 
have to deter 838, and the high scenario would have to deter 929. While 
the overall number of crashes to be avoided under the medium and high 
scenario is fairly high, the number falls rapidly over   the 10-year 
analysis period and beyond. The tenth year deterrence rate is one-
quarter to one-sixth the size of the first year's rate.
    A copy of the Regulatory Evaluation is in the docket for this 
rulemaking.

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 United States did not have in place a special system to ensure 
the safety of Mexico-domiciled carriers operating in the United States. 
Mexico-domiciled carriers will be subject to all the same safety 
regulations as domestic carriers. However, 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. Thus, a key component of this 
and the companion application rule for long-haul carriers, is the 
requirement that Mexico-domiciled carriers operating in the United 
States must complete a Form MCS-15--Motor Carrier Identification 
Report, and must update their Form OP-1(MX)--Application to Register 
Mexican Carriers for Motor Carrier Authority to Operate Beyond U.S. 
Municipalities and Commercial Zones on the U.S.-Mexico Border or Form 
OP-2--Application for Mexican Certificate of Registration for Foreign 
Motor Carriers and Foreign Motor Private Carriers Under 49 U.S.C. 13902 
when their situation changes. This will allow the FMCSA to better 
monitor these carriers and to quickly determine whether their safety or 
OOS record changes.
    The more stringent oversight procedures established in our safety 
monitoring interim final rule, RIN 2126-AA35, will also allow the FMCSA 
to respond more quickly when safety problems emerge. Required safety 
audits for short-haul carriers, and compliance reviews and CVSA 
inspections for long-haul carriers, will provide the FMCSA with more 
detailed information about Mexico-domiciled carriers, and allow the 
FMCSA to act appropriately upon discovering safety problems.
    The objective of these rules is to enhance the safety of Mexico-
domiciled carriers operating in the United States. The rules describe 
what additional information Mexico-domiciled carriers will have to 
submit, and outline the procedure for dealing with possible safety 
problems.
    The safety monitoring system, the safety certifications and other 
information to be submitted in the OP-1(MX) and OP-2 applications and 
the pre-authorization safety audit for long-haul carriers are means of 
ensuring that: (1) Mexico-domiciled applicants are sufficiently 
knowledgeable about safety requirements before commencing operations (a 
prerequisite to being able to comply); and (2) their actual operations 
in the United States are conducted in accordance with their application 
certifications and the conditions of their registrations.
    These rules will primarily affect Mexico-domiciled small motor 
carriers who wish to operate in the United States. The amount of 
information these carriers will have to supply to the FMCSA has been 
increased, and we estimate that they will spend two additional hours 
gathering data for the

[[Page 12658]]

OP-1(MX) and OP-2 application forms. All Mexico-domiciled carriers will 
have to undergo some type of safety audit after they receive 
provisional registration; those granted provisional operating authority 
for transportation beyond the border zones must demonstrate continuous 
compliance with motor vehicle safety standards through display of a 
valid CVSA inspection decal and compliance reviews. We presented three 
growth scenarios in the regulatory evaluation: a high option, with 
11,787 Mexico-domiciled carriers in the baseline; a medium scenario, 
with 9,500 Mexico-domiciled carriers in the baseline; and a low 
scenario, with 4,500 Mexico-domiciled carriers in the baseline. Under 
all three options, the FMCSA believes that the number of applicants 
will match approximately that observed in the last few years before 
this publication date, approximately 1,365 applicants per year.
    A review of the Motor Carrier Management Information System (MCMIS) 
census file reveals that the vast majority of Mexico-domiciled carriers 
are small, with 75 percent having three or fewer vehicles. Carriers at 
the 95th percentile had only 15 trucks or buses.
    These rules should not have any impact on small U.S.-domiciled 
motor carriers.
    The regulatory evaluation includes a description of the 
recordkeeping and reporting requirements of these rules. Applicants for 
both the OP-1(MX) and OP-2 will also have to submit the Form MCS-150 
and the Form BOC-3-Designation of Agent for Service of Process. In 
addition, Mexico-domiciled carriers will have to notify the FMCSA of 
any changes to certain information.
    The MCS-150 is approximately two pages long. In addition to 
requiring basic identifying information, it requires that carriers 
state the type of operation they run, the number of vehicles and 
drivers they use, and the types of cargo they haul. The BOC-3 Form 
merely requires the name, address and other information for a domestic 
agent to receive legal notices on behalf of the motor carrier. The 
rules also include other modest changes in the OP-1(MX) and OP-2 forms.
    None of these forms requires any special expertise to complete. Any 
individual with knowledge about the operations of a carrier should be 
able to fill out these forms.
    The FMCSA is not aware of any other rules that duplicate, overlap 
with, or conflict with these rules.
    The FMCSA did not establish any different requirements or 
timetables for small entities. As noted above, we do not believe these 
requirements are onerous. Mexico-domiciled carriers applying to operate 
solely within the border zones will be required to spend two extra 
hours to complete the relevant forms. They also must undergo one safety 
audit during the 18-month period while holding provisional Certificates 
of Registration at four hours each and have their trucks inspected more 
frequently. The Part 385 rule would not achieve its purposes if small 
entities were exempt. In order to ensure the safety of all Mexico-
domiciled carriers, the rule must have a consistent procedure for 
addressing safety problems. Exempting small motor carriers (which, as 
was noted above, are the vast majority of Mexico-domiciled carriers who 
would operate in the United States) would defeat the purpose of these 
rules.
    The FMCSA did not consolidate or simplify the compliance and 
reporting requirements for small carriers. Small U.S.-domiciled 
carriers already have to comply with the paperwork requirements in Part 
365. There is no evidence that domestic carriers find these provisions 
confusing or particularly burdensome. Apropos the Part 385 provisions, 
we believe the requirements are fairly straightforward, and it would 
not be possible to simplify them. A simplification of any substance 
would make the rule ineffectual. Given the compelling interest in 
guaranteeing the safety of Mexico-domiciled carriers operating in the 
United States, and the fact that the majority of these carriers are 
small entities, no special changes were made.
    Therefore, the FMCSA certifies that this rule will not have a 
significant impact on a substantial number of small entities.

Executive Order 13211 (Energy Supply, Distribution, or Use)

    We have analyzed this action under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. This action is not a significant energy action 
within the meaning of section 4(b) of the Executive Order because as a 
procedural action it is not economically significant and will not have 
a significant adverse effect on the supply, distribution, or use of 
energy.

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 in this rulemaking would not have an 
impact of $100 million or more in any one year. The Federal Government 
reimburses inspectors, funds facilities, and provides support through 
the MCSAP grant program.

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)

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (April 23, 1997, 62 FR 19885), requires 
that agencies issuing ``economically significant'' rules that also 
concern an environmental health or safety risk that an agency has 
reason to believe may disproportionately affect children must include 
an evaluation of the environmental health and safety effects of the 
regulation on children. Section 5 of Executive Order 13045 directs an 
agency to submit for a ``covered regulatory action'' an evaluation of 
its environmental health or safety effects on children.
    The agency has determined that this rule is not a ``covered 
regulatory action'' as defined under Executive Order 13045. First, this 
rule is not economically significant under Executive Order 12866 
because the FMCSA has determined that the changes in this rulemaking 
would not have an impact of $100 million or more in any one year. The 
costs range from $53 to $76 million over 10 years. Second, the agency 
has no reason to believe that the rule would result in an environmental 
health risk or safety risk that would disproportionately affect 
children. Mexico-domiciled motor carriers who intend to operate 
commercial motor vehicles anywhere in the United States must comply 
with current U.S. Environmental Protection Agency regulations and other 
United States environmental laws under this rule and others being 
published elsewhere in today's Federal Register. Further, the agency 
has conducted a programmatic environmental

[[Page 12659]]

assessment as discussed later in this preamble. While the PEA did not 
specifically address environmental impacts on children, it did address 
whether the rule would have environmental impacts in general. Based on 
the PEA, the agency has determined that the proposed rule would have no 
significant environmental impacts.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 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 Control Number 2126-0019.
    The information collection associated with the Form OP-2 has been 
approved by the OMB under the control number 2126-0019, titled 
``Application for Certificate of Registration for Foreign Motor 
Carriers and Foreign Motor Private Carriers.'' This current approval 
covers Form OP-2 and totals 2,000 burden hours (1,000 respondents per 
year @ 2 hours each) to complete the form.
    Revisions to OP-2 Baseline: A PRA review normally involves 
determining the information collection impacts of a recordkeeping 
requirement imposed on a person, comparing those impacts with the 
current regulation (baseline) and measuring the resulting change. The 
FMCSA finds it necessary to amend the baseline: (1) To be consistent 
with updated demographic data concerning the number of Mexico-domiciled 
carriers operating in the U.S. as set forth in the programmatic 
environmental assessment (PEA) and Regulatory Flexibility Analysis to 
this rule, and (2) to take into account an imminent Presidential action 
that is not subject to PRA review--the issuance of a Presidential Order 
lifting the moratorium on grants of operating authority to Mexico-
domiciled motor carriers to operate within the United States beyond the 
border commercial zones. The PEA and Regulatory Flexibility Analysis to 
this rule project high, medium, and low estimates for the number of 
Mexico-domiciled motor carriers now operating within the United States. 
The PRA review is based on the medium estimate (9,500) because we 
believe it is the most accurate estimate (rather than the high estimate 
of 11,787 used in the NPRM). The medium estimate was also used in the 
PEA and the Regulatory Flexibility Analysis. Therefore, the revised 
baseline assumes: (1) The medium scenario is used; (2) the moratorium 
is lifted; and (3) Mexico-domiciled carriers are filing the existing 
OP-2 application form. It is estimated that 75 percent of new 
applicants each year will file the OP-2 (with 25 percent filing the OP-
1(MX)). The number of new applicants in the baseline assumes a 10 
percent increase over the current 1,300 (1,430).
    Adjusted burden hour calculation for completion of the currently 
approved IC under the medium scenario. The FMCSA estimates that 5,823 
Mexico-domiciled carriers will request OP-2 certificates of 
registration in year one (includes half of the 9,500 Mexican carriers 
(4,750) plus 75 percent of 1,430 new applicants (1,073)); and 1,073 
Mexico-domiciled carriers will apply in subsequent years. The existing 
form takes approximately 2 hours to complete. Since Mexico-domiciled 
carriers currently are not required to update carrier identification 
information, there would be zero updates received in year one or 
subsequent years. The revised baseline medium scenario is calculated as 
follows:

OP-2  filings 11,646 hours [5,823  x  2 hours per form] (year one)
OP-2  filings 2,146 hours [1,073  x  2 hours per form] (subsequent 
years)

    The revised baseline medium scenario results in the following 
annual adjusted burden hour estimate for completion of Form OP-2 
pursuant to OMB Control Number 2126-0019:

Year One: 11,646
Subsequent Years: 2,146

    Impact of the final rule and adjusted burden hour calculation for 
completion of Form OP-2 under the revised baseline medium scenario. 
This action proposes to amend 49 CFR part 368 and revise Form OP-2. We 
propose to use the amended Form OP-2 and the issuance of certificates 
of registration only for those carriers whose operations are limited to 
the border commercial zones. The FMCSA believes that despite the 
opportunity for Mexico-domiciled carriers to operate beyond the border 
commercial zones, there are a substantial number of carriers that are 
most familiar with the Certificate of Registration and want to continue 
operating in a limited area. Under the revised Form OP-2, the FMCSA 
will require the applicant motor carrier to certify the safety of its 
operations; this information is not collected on the current form. In 
addition, all certificates of registration issued under the revised 
form would be conditioned upon the carrier's successful completion of 
an 18-month safety monitoring program (established in an interim final 
rule published elsewhere in today's Federal Register), including a 
safety audit. For these reasons, the FMCSA anticipates that the number 
of carriers would be lower than the revised baseline. The FMCSA 
estimates that 5,774 Mexico-domiciled carriers would apply for OP-2 
certificates of registration in year one (includes half of the 9,500 
Mexican carriers (4,750) plus 75 percent of the 1,365 new applicants 
(1,024)); and 1,024 carriers thereafter. Due to the additional 
information requested on the form, the FMCSA estimates that it will 
take 4 hours to complete, rather than the current estimate of 2 hours.
    The FMCSA must be notified in writing of certain key changes in the 
information on the form within 45 days of the change. For changes and 
updates, the agency anticipates that annually approximately one quarter 
of those granted certificates of registration will update their 
applications. It will take approximately 30 minutes to complete the 
updates. For simplicity's sake, we based the number of individuals 
granted certificates of registration on the estimated total number of 
first-year applicants.

Mexico-domiciled carrier filings of the Form OP-2:
    50 percent of 9,500 carriers in 1st year (4,750)  x  4 hours per 
form = 19,000
    75 percent of 1,365 new applicants in 1st year (1,024)  x  4 hours 
= 4,096
    75 percent of 1,365 new applicants in future years (1,024)  x  4 
hours = 4,096
    Total burden hours for revised Form OP-2/Year 1 = 23,096
    Total burden hours for revised Form OP-2/Future Years = 4,096
OP-2 Updates/Changes:
    25 percent of 4,750 carriers filing in 1st year (1,188)  x  30 
minutes = 594
    25 percent of 1,024 filings for new carriers in 1st year (256)  x  
30 min. = 128
    25 percent of 1,024 filings for new carriers in future years (256) 
x  30 min. = 128
    Total burden hours for updates/changes in 1st year = 722
    Total burden hours for updates/changes in future years = 128

    Therefore, the FMCSA estimates that the final rule will adjust the 
annual burden hour estimate for the information collection associated 
with the Form OP-2 as follows:
    In the first year: The total burden hours for this information 
collection in the first year is 23,818 hours [(19,000 hours + 4,096 + 
722 hours)]; and in subsequent years: 4,224 hours [4,096 hours + 128].

[[Page 12660]]

    OMB Control Number: 2126-0019
    Title: Application for Certificate of Registration for Foreign 
Motor Carriers and Foreign Motor Private Carriers.
    Respondents: Mexico-domiciled motor carriers.
    Estimated Annual Hour Burden for the Information Collection: Year 1 
= 23,818; subsequent years = 4,224.
    You may submit any additional comments on the information 
collection burden addressed by this final rule to the Office of 
Management and Budget (OMB). The OMB must receive your comments by 
April 18, 2002. You must mail or hand deliver your comments to: 
Attention: Desk Officer for the Department of Transportation, Docket 
Library, Office of Information and Regulatory Affairs, Office of 
Management and Budget, Room 10102, 725 17th Street, NW., Washington, DC 
20503.

National Environmental Policy Act

    The FMCSA is a new administration within the Department of 
Transportation (DOT). The FMCSA is currently developing an agency order 
that will comply with all statutory and regulatory policies under the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). We 
expect the draft FMCSA Order to appear in the Federal Register for 
public comment in the near future. The framework of the FMCSA Order 
will be consistent with and reflect the procedures for considering 
environmental impacts under DOT Order 5610.1C. FMCSA has analyzed this 
rule under the NEPA and DOT Order 5610.1C, and has issued a Finding Of 
No Significant Impact (FONSI). The FONSI and the environmental 
assessment are in the docket to this rule.

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 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). The FMCSA has determined that this action 
would not have significant Federalism implications or limit the 
policymaking discretion of the States.

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 seeking government services but 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 and instructions of the Form OP-2. We believe that this 
action complies with the principles enunciated in the Executive Order.

List of Subjects

49 CFR Part 368

    Administrative practice and procedure, Motor carriers.

49 CFR Part 387

    Buses, Freight, Freight forwarders, Hazardous materials 
transportation, Highway safety, Insurance, Intergovernmental relations, 
Motor carriers, Motor vehicle safety, Moving of household goods, 
Penalties, Reporting and recordkeeping requirements, Surety bonds.

    For the reasons set forth in the preamble, the FMCSA amends 49 CFR, 
Chapter III 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 FMCSA of change in applicant 
information.
368.5   Re-registration of certain carriers holding certificates of 
registration.
368.6   FMCSA action on an application.
368.7   Requirement to carry certificate of registration in the 
vehicle.
368.8   Appeals.

    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 Mexico-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 out-of-service orders.


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).
    Mexico-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 includes the following:
    (1) Form OP-2--Application for Mexican Certificate of Registration 
for Foreign Motor Carriers and Foreign Motor Private Carriers Under 49 
U.S.C. 13902;
    (2) Form MCS-150--Motor Carrier Identification Report; and
    (3) A notification of the means used to designate process agents, 
either by submission in the application package of Form BOC-3--
Designation of Agents--Motor Carriers, Brokers and Freight Forwarders 
or a letter stating that the applicant will use a process agent service 
that will submit the Form BOC-3 electronically.
    (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;

[[Page 12661]]

    (3) The application must include all the required supporting 
documents and 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.


Sec. 368.4  Requirement to notify FMCSA 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 before April 18, 2002, 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 October 20, 2003.
    (b) The FMCSA may suspend or revoke the certificate of registration 
of any registrant that fails to comply with the procedures set forth in 
this section.
    (c) Certificates of registration issued before April 18, 2002, 
remain valid until the FMCSA acts on the OP-2 application filed 
according to paragraph (a) of this section.


Sec. 368.6  FMCSA action on the application.

    (a) The Federal Motor Carrier Safety Administration will review the 
application for correctness, completeness, and adequacy of information. 
Non-material errors will be corrected without notice to the applicant. 
Incomplete applications may be rejected.
    (b) 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.
    (c) The FMCSA will validate the accuracy of information and 
certifications provided in the application against data maintained in 
databases of the governments of Mexico and the United States.
    (d) If the FMCSA determines that the application and certifications 
demonstrate that the application is consistent with the FMCSA's safety 
fitness policy, it will issue a provisional Certificate of 
Registration, including a distinctive USDOT Number that identifies the 
motor carrier as permitted to provide interstate transportation of 
property solely in municipalities in the United States on the U.S.-
Mexico international border or within the commercial zones of such 
municipalities.
    (e) The FMCSA may issue a permanent Certificate of Registration to 
the holder of a provisional Certificate of Registration no earlier than 
18 months after the date of issuance of the Certificate and only after 
completion to the satisfaction of the FMCSA of the safety monitoring 
system for Mexico-domiciled carriers set out in subpart B of part 385 
of this subchapter.
    (f) 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, and make it available upon 
request to any State or Federal authorized inspector or enforcement 
officer.


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, Office of 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.

PART 387--MINIMUM LEVELS OF FINANCIAL RESPONSIBILITY FOR MOTOR 
CARRIERS

    2. The authority citation for part 387 continues 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 Mexico-domiciled motor carrier operating solely in 
municipalities in the United States on the U.S.-Mexico international 
border or within the commercial zones of such municipalities 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: March 7, 2002.
Joseph M. Clapp,
Administrator.

    Note: The following form will not appear in the Code of Federal 
Regulations.

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[FR Doc. 02-5890 Filed 3-14-02; 8:45 am]
BILLING CODE 4910-EX-C