NPRM, Application by Certain Mexico-Domiciled Motor Carriers To Operate Beyond Unites States Municipalities and Commercial Zones

Federal Register / Vol. 66, No. 86 / Thursday, May 3, 2001 / Proposed Rules
PART 387—MINIMUM LEVELS OF
FINANCIAL RESPONSIBILITY FOR
MOTOR CARRIERS
2. The authority citation for part 387
is revised to read as follows:
Authority: 49 U.S.C. 13101,13301,13906,
14701, 31138, and 31139; and 49 CFR 1.73.

3. In § 387.7, revise the first sentence
of paragraph (b)(3) introductory text to
read as follows:
§ 387.7

Financial responsibility required.

*

*
*
*
*
(b) * * *
(3) Exception. A Mexican motor
carrier operating solely in the
commercial zones with a certificate of
registration issued under part 368 may
meet the minimum financial
responsibility requirements of this
subpart by obtaining insurance
coverage, in the required amounts, for
periods of 24 hours or longer, from
insurers that meet the requirements of
§ 387.11 of this subpart. * * *
*
*
*
*
*
Issued on: April 27, 2001.
Brian M. McLaughlin,
Associate Administrator for Policy and
Program Development.
[FR Doc. 01–11034 Filed 5–1–01; 8:45 am]
BILLING CODE 4910–EX–P

DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
49 CFR Part 365
[Docket No. FMCSA–98–3298]
RIN 2126–AA34

Application by Certain Mexican Motor
Carriers To Operate Beyond U.S.
Municipalities and Commercial Zones
on the U.S.-Mexico Border
AGENCY: Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Notice of proposed rulemaking
(NPRM); request for comments.
SUMMARY: The FMCSA proposes
changes in its regulations to govern
applications by Mexican carriers to
operate beyond municipalities and
commercial zones at the United StatesMexico border. The FMCSA also
proposes to revise the application form,
OP–1(MX), to be filed by these Mexican
motor carriers. The proposed form
would require additional information
about the applicant’s business and
operating practices to allow the FMCSA
to determine if the applicant could meet
the safety standards established for

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operating in interstate commerce in the
United States. Carriers that had
previously submitted an application
would have to submit the updated form.
These proposed changes are needed to
implement part of the North American
Free Trade Agreement (NAFTA).
DATES: We must receive your comments
by July 2, 2001.
ADDRESSES: You can mail, fax, hand
deliver or electronically submit written
comments to the Docket Management
Facility, U.S. Department of
Transportation, Dockets Management
Facility, Room PL–401, 400 Seventh
Street, SW., Washington, DC 20590–
0001 FAX (202) 493–2251, on-line at
http://dmses.dot.gov/submit. You must
include in your comment the docket
number that appears in the heading of
this document. You can examine and
copy all comments at the above address
from 9 a.m. to 5 p.m., e.t., Monday
through Friday, except Federal holidays.
You can also view all comments or
download an electronic copy of this
document from the DOT Docket
Management System (DMS) at http://
dms.dot.gov/search.htm and typing the
last four digits of the docket number
appearing at the heading of this
document. The DMS is available 24
hours each day, 365 days each year. You
can get electronic submission and
retrieval help and guidelines at the
‘‘Help’’ section of the web site. If you
want us to notify you that we received
your comments, please include a selfaddressed, stamped envelope or
postcard, or print the acknowledgement
page that appears after submitting
comments on-line.
FOR FURTHER INFORMATION CONTACT: Ms.
Valerie Height, (202) 366–1790,
Regulatory Development Division,
FMCSA, 400 Seventh Street, SW.,
Washington, DC 20590. Office hours are
from 7:45 a.m. to 4:15 p.m., e.t., Monday
through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION: We will
include comments received after the
comment closing date in the docket, and
we will consider late comments to the
extent practicable. The FMCSA may,
however, issue a final rule at any time
after the close of the comment period.
Background
Under the Bus Regulatory Reform Act
of 1982, (Pub. L. No. 97–261, 96 Stat.
1103) Congress imposed a two-year
moratorium on issuance by the former
Interstate Commerce Commission (ICC)
of new grants of operating authority to
motor carriers domiciled in a foreign
country, or owned or controlled by
persons of a foreign country. The
legislation authorized the President to

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22371

remove or modify the moratorium upon
a determination that such action was in
the national interest. As a result of
legislative and executive extensions of
the moratorium, only a limited class of
Mexican motor carriers have operated in
the United States on Certificates of
Registration issued under what is now
49 CFR part 368.
The terms of NAFTA, Annex I,
provide that the moratorium on
licensing Mexican motor carriers to
operate within the United States would
be lifted by the President in phases
under the following schedule:
(1) When NAFTA took effect on
January 1, 1994, applications by
Mexican bus operators to conduct cross
border charter and tour bus services in
international transportation service
between Mexico and all points in the
United States were to be accepted and
processed by the ICC, and suitable
authority issued.
(2) In the second stage, beginning
December 17, 1995, Mexican trucking
companies engaged in the transportation
of property were to be permitted to file
applications for cross border operations
between Mexico and four United States
border states and establish companies
within the United States to distribute
international cargo within the United
States
(3) In the third phase, beginning
January 1, 1997, applications were to be
accepted and processed for Mexican
passenger carriers to conduct regular
route passenger operations in
international service from Mexico to all
points in the United States.
(4) In the fourth phase, beginning
January 1, 2000, Mexican property
carriers were to be allowed to file
applications for cross border operations
from Mexico to all points in the United
States (except for point-to-point carriage
of domestic cargo within the United
States, for which the moratorium has
not been removed under NAFTA).
(5) Finally, in the last phase,
beginning on January 1, 2001, Mexican
nationals were to be allowed to establish
companies in the United States to
provide point-to-point bus services in
the United States.
Pursuant to the first phase of NAFTA,
on January 1, 1994, the ICC began
accepting applications from Mexican
passenger carriers to conduct
international charter and tour bus
operations into the United States. The
ICC promulgated rules and a revised
application form to effect the processing
of Mexican applications (Ex Parte No.
55 (Sub-No. 96), Freight Operations by
Mexican Motor Carriers—
Implementation of the North American
Trade Agreement, 10 I.C.C. 2d 854

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

(1995). These rules were anticipating
the implementation of the second phase
of NAFTA providing Mexican property
carriers with additional access to the
United States. A copy of the decision is
in the public docket for this rulemaking.
The ICC designated the revised
application form OP–1(MX). On
December 15, 1995, the International
Brotherhood of Teamsters sought an
emergency stay of the ICC decision in
the United States Court of Appeals for
the District of Columbia. International
Brotherhood of Teamsters v. Secretary
of Transportation, No. 95–1603 (D.C.
Cir., filed Dec. 15, 1995). The Teamsters
contended that the ICC decision was
arbitrary and capricious because it
failed to address serious concerns
regarding the safe operation of Mexican
motor carriers. The Teamsters had
requested the ICC to add additional
safety questions to the applications filed
by Mexican carriers to ensure that the
applicants were willing and able to
comply with applicable safety
regulations.
On December 18, 1995, the DOT
announced a delay in implementing the
NAFTA motor carrier access provisions.
Because of safety concerns related to the
operations of Mexican motor carriers
and the lack of a motor carrier safety
regulation and compliance program in
Mexico, the ICC decided not to process
applications from Mexican motor
carriers for authority to operate in the
United States border States in
accordance with NAFTA’s liberalization
schedule. The FHWA continued this
decision after the January 1, 1996,
termination of the ICC and transfer of
responsibilities to the FHWA.
Mexico filed complaints against the
United States under NAFTA’s dispute
resolution provisions, challenging the
United States decision to deny further
trucking, investment, and bus access.
An arbitration panel met in May 2000 to
hear the trucking and investment case,
which was the subject of extensive preand post-hearing briefings on safety and
legal issues.
The panel issued a final report on
February 6, 2001. A copy of the report
is in the docket. The report
unanimously concluded that the blanket
refusal to process applications of
Mexican motor carriers seeking United
States operating authority out of
concerns over the carriers’ safety was in
breach of NAFTA obligations of the
United States, specifically NAFTA’s
liberalization provisions and provisions
ensuring national treatment and mostfavored-nation treatment for crossborder services. The panel also
concluded that alleged deficiencies in
Mexico’s regulation of motor carrier

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safety did not relieve the United States
of those NAFTA obligations. The panel
stated, however, that the Department
could subject Mexican motor carriers
seeking to operate in the United States
to different requirements than it applies
to United States and Canadian carriers.
The United States and Mexico have
engaged in negotiations regarding the
implementation of the liberalization
provisions in light of the panel’s
decision.
The FMCSA regulates commercial
motor vehicle (CMV) safety in the
United States under a comprehensive
system of regulations designed to ensure
that drivers are medically qualified;,
meet applicable licensing standards; can
read and speak the English language
sufficiently to converse with the general
public, understand highway traffic signs
and signals in the English language,
respond to official inquiries and make
entries on reports and records; and do
not operate vehicles while impaired by
drugs, alcohol or excessive fatigue. We
require that every CMV be equipped
with certain standard safety-related
equipment and that vehicles be
regularly inspected and maintained to
ensure that they remain in safe
operating condition. We enforce these
regulatory requirements through
roadside inspections and on-site
compliance reviews. Roadside
inspections focus on potentially unsafe
vehicle and driver violations that may
pose a threat to public safety, unless the
vehicle or driver is placed out of
service. Our compliance reviews entail
a review of a carrier’s overall
compliance with the Federal Motor
Carrier Safety Regulations (FMCSRs)
and Hazardous Materials Regulations.
Our investigators examine carrier
records (including driver logbooks and
drug and alcohol testing information)
and evaluate roadside vehicle
inspection data, accident records, and
other safety related information to
determine whether a motor carrier
meets safety fitness standards.
The DOT has consulted extensively
with Mexican transportation officials
regarding the strengthening of Mexican
truck safety regulation, and significant
progress has been made in this area.
Mexico has agreed to utilize the
Commercial Vehicle Safety Alliance
(CVSA) out-of-service (OOS) criteria and
has issued final regulations based on
these criteria. These standards cannot be
effective without a safety oversight
program, including systematic roadside
inspections, to ensure compliance with
and enforcement of the standards. The
DOT officials have worked extensively
with Mexican transportation officials on
the establishment of such a program.

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However, Mexico has not yet completed
implementation of a comprehensive
safety inspection program.
With the exception of border
commercial zone drayage operations,
Mexican carriers have, for the most part,
little or no experience operating under
regulations comparable to the FMCSRs.
The FMCSA must be prepared to
evaluate the safety fitness of motor
carriers having no experience operating
under a comprehensive system of safety
regulation like ours.
The FMCSA asks for public comment
on proposed regulations and a revised
Form OP–1(MX) that would require
additional safety information and
certifications of compliance with
applicable safety requirements from all
Mexican motor carrier applicants
operating beyond the commercial zones.
In another NPRM published
elsewhere in today’s Federal Register,
RIN 2126–AA33 Revision of Regulations
and Application Form for MexicanDomiciled Motor Carriers to Operate in
U.S. Municipalities and Commercial
Zones on the U.S.-Mexico Border, the
FMCSA is proposing changes to the
process and form (OP–2) used to obtain
a Certificate of Registration. The
changes would limit a Certificate of
Registration to Mexican-domiciled
motor carriers that operate, or will
operate, only in the commercial zones
adjoining the United States-Mexico
border. All other Mexican carriers,
including current holders of Certificates
of Registration who operate beyond the
commercial zones, would be subject to
the proposals in this NPRM.
The FMCSA proposes to revise the
OP–1(MX) application form by requiring
each motor carrier applicant to answer
questions to demonstrate its basic
knowledge of the FMCSRs and to
indicate how it intends to comply with
these regulations. In addition, the
FMCSA proposes to require each
applicant to make specific certifications
of compliance. This additional
information will enable the FMCSA to
determine that each applicant is willing
and able to comply with the FMCSRs
while conducting operations in the
United States. In addition, the FMCSA
would require applicants to submit
verification from the Mexican
government that the applicant is a
registered Mexican carrier authorized to
conduct motor carrier operations up to
the United States-Mexico border and
that all drivers who would operate in
the United States have a valid Licencia
Federal de Conductor issued by the
Government of Mexico. These
requirements also are consistent with
section 210(b) of the Motor Carrier
Safety Improvement Act of 1999 (Pub. L.

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Federal Register / Vol. 66, No. 86 / Thursday, May 3, 2001 / Proposed Rules
106–159, 113 Stat. 1748) (MCSIA),
which requires the Secretary to establish
regulations ensuring that all applicant
motor carriers, including foreign motor
carriers, are knowledgeable about the
FMCSRs before being granted authority
to operate in the United States. Failure
to provide such verification would
result in the rejection of the application.
The FMCSA solicits comment from
the public on our proposal that Mexican
applicants who have filed for authority
on the existing Form OP–1(MX) must
file the proposed revised Form OP–
1(MX) to update and supplement the
information about their operations,
including the requirement that the
carrier be registered with the
Government of Mexico. This
requirement would ensure that
FMCSA’s database contains current and
consistent information about Mexican
registrants and thus enhance the
effectiveness of FMCSA’s safety
oversight.
These proposed requirements should
not distract from, or detrimentally
affect, the efforts underway between the
Governments of Mexico and the United
States to establish compatible
regulations and to ensure that a
comprehensive safety oversight program
is put into place in Mexico. Over the
long term, consistent, compatible safety
standards and compliance practices will
have the greatest impact in promoting
safety, facilitating enforcement,
reducing the enforcement burden on the
border States, and establishing
permanent and stable programs.
Proposed Form OP–1(MX)
The FMCSA proposes extensive
revisions to the Form OP–1(MX). The
FMCSA proposes to add new sections to
solicit additional information from the
applicant to assist in identifying the
nature of the applicant’s existing
operations in the U.S., if any. Other
sections would help identify any
previously submitted Form MCS–150,
verify the applicant’s domicile in
Mexico, and confirm that the applicant
holds a valid registration from the
Government of Mexico. The question
regarding domicile would be removed.
However, the proposed question
regarding whether the applicant holds a
valid registration from the Mexican
government is new. It is proposed to
ensure that only a carrier who has met
Mexican Federal government standards
and regulations will operate in the
United States.
The single form for both passenger
and property carriers would lessen the
paperwork burden on the Mexican
applicants and facilitate the inclusion of

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additional safety questions and
certifications.
Under section 219 of MCSIA, a
foreign carrier engaging in
transportation in the United States
without proper authorization may be
disqualified from operating commercial
vehicles in the United States.
Accordingly, applicants would be asked
to disclose whether any affiliated
entities have been disqualified.
The proposed form would require an
applicant to identify the type(s) of
operations requested. The form would
make clear that use of the Form OP–
1(MX) and issuance of Authority
Registrations would be limited to
carriers that would operate beyond the
municipalities along the United StatesMexico border and commercial zones of
such municipalities.
Additional information would be
requested about insurance held by the
carrier.
The FMCSA proposes to add a new
section that would require the applicant
to certify that it has a system in place
to ensure compliance with applicable
requirements covering driver
qualifications, hours of service, drug
and alcohol testing, vehicle condition,
accident monitoring, and hazardous
materials transportation. In addition, the
FMCSA proposes that the applicant
provide narrative responses describing
how it will monitor hours of service,
how it will maintain an accident register
and what is its monitoring program.
This section would also require that the
applicant provide information including
the names of individuals in charge of
the applicant’s safety program. The
applicant must provide: specific
locations where the applicant maintains
current FMCSRs, the names of the
individuals in charge of drug and
alcohol testing (if applicable). The
FMCSA would require only those safety
certifications that apply to the
applicant. For example, due to the
weight of the vehicles they operate,
certain applicants would not be subject
to the drug and alcohol testing and CDL
requirements in 49 CFR parts 382 and
383, respectively, and would not be
required to certify compliance with
those regulations. The certification
information would enable FMCSA to
evaluate, upon initial application, the
safety compliance program of the
applicant. The FMCSA would reject an
applicant that cannot offer a specific,
unambiguous plan to ensure
compliance.
The proposed form would require
household goods applicants to affirm a
willingness to offer arbitration as a
means of settling loss and damage
claims in accord with U.S. law.

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The FMCSA proposes to add more
extensive and specific certifications
regarding compliance, including
compliance with Department of Labor
regulations. Other parts of this
certification would require the applicant
to affirm its willingness and ability to
provide the proposed service and to
comply with all pertinent statutory and
regulatory requirements. It would
remind the applicant of statutory and
regulatory responsibilities, which if
neglected or violated, might subject the
applicant to disciplinary or corrective
action by the FMCSA. Another
certification, derived from the existing
Form OP–2 application, would highlight
the need to comply with applicable
provisions of the U.S. Internal Revenue
Code relating to payment of the Heavy
Vehicle Use Tax. An additional
certification would ensure that the
applicant understands that the agents
for service of process designated on the
Form BOC–3 would also be deemed the
applicant’s representative in the United
States for service of judicial process and
notices under 49 U.S.C. 13304 and
administrative notices under 49 U.S.C.
13303. Finally, the applicant would
affirm that it is not currently
disqualified from operating a
commercial motor vehicle in the United
States under the provisions of MCSIA.
The FMCSA will conduct workshops
and also provide written material, such
as handbooks, to help the Mexican
applicants understand the various
requirements and the proper way to
complete the applications.
Proposed Revision to Part 365
The FMCSA proposes to add a new
subpart E to part 365 to address the
specific requirements of the application
process for Mexican carriers. First,
proposed § 365.501 sets out that all
Mexican-domiciled carriers that want to
operate beyond the border area must file
the Form OP–1(MX). This would be a
change from current practice to facilitate
uniform treatment of all Mexican
carriers that may wish to offer long haul
service, and it is discussed as well in
the NPRM concerning part 368
published in today’s Federal Register.
These special filing rules would not
apply to Mexican-owned enterprises
domiciled in the United States that want
to distribute international cargo within
the United States. Nor do they apply to
Mexican nationals establishing
companies in the United States to
provide point-to-point bus services in
the United States. Such entities would
file either the standard OP–1 or OP–1(P)
application form, as appropriate.
In proposed § 365.503, the FMCSA
states that applications must be filled

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

out in English and be complete to be
considered. Information on obtaining
applications is also provided.
We propose in § 365.505 to provide a
waiver from the filing fee for two types
of applicants. First would be those who
submitted an application under the
earlier version of the Form OP–1(MX)
before the decision of the United States
to stay implementation of the NAFTA
entry provisions. Second would be
those applicants that currently hold a
Certificate of Registration and wish to
continue operations solely within the
U.S. municipalities and commercial
zones along the U.S.-Mexico border.
In proposed § 365.507, the FMCSA
states that all applications by Mexican
carriers would be reviewed under the
existing procedures of part 365. Also,
we propose that approval of an
application would be conditional upon
successful completion of a safety review
within 18 months. The safety review is
discussed in another NPRM published
today in the Federal Register (Safety
Monitoring System and Compliance
Initiative for Mexican Motor Carriers
Operating in the United States).
Proposed § 365.509 would include a
requirement for Mexican carriers to
notify FMCSA in writing of any changes
in, or corrections to, applicant
information in the Form OP–1(MX) as
well as any changes in the Form BOC–
3—Designation of Agents—Motor
Carriers, Brokers and Freight
Forwarders, within 45 days of the
change. The proposed requirement
would assist FMCSA in keeping its
information on Mexican carriers
current. The proposed requirement
would not be an annual re-filing. A
carrier with no change in status would
not need to take any action apart from
the biennial submission of Form MCS–
150. A carrier who fails to update
required information may be subject to
suspension or revocation of its operating
authority.
Finally, we propose to add the Form
OP–1(MX) as Appendix A to subpart E
of part 365.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory
Planning and Review) and Department
of Transportation Regulatory Policies
and Procedures
The FMCSA has determined that this
action is a significant regulatory action
within the meaning of Executive Order
12866, and is significant within the
meaning of Department of
Transportation regulatory policies and
procedures (44 FR 11034, February 26,
1979). The Office of Management and
Budget has reviewed this document. It

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is anticipated that the economic impact
of the proposals in this rulemaking
would be minimal. The new or revised
Form OP–1(MX), while intended to
foster and contribute to safety of
operations, adherence to U.S. law and
regulations, and compliance with U.S.
insurance and tax payment
requirements on the part of Mexican
carriers, would impose little additional
expense upon public agencies or the
motoring public.
Nevertheless, the subject of safe
operations by Mexican carriers in the
United States will likely generate
considerable public interest within the
meaning of Executive Order 12866. The
manner in which the FMCSA carries out
its safety oversight responsibilities with
respect to this international motor
carrier transportation may be of
substantial interest to the domestic
motor carrier industry, the Congress,
and the public at large. A copy of the
Regulatory Evaluation prepared for the
three companion NPRMs published in
today’s Federal Register is in the
docket.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
(Pub. L. 96–354, 5 U.S.C. 601–612), as
amended by the Small Business
Regulatory Enforcement and Fairness
Act (Pub. L. 104–121), requires federal
agencies to analyze the impact of
rulemakings on small entities, unless
the Agency certifies that the rule will
not have a significant economic impact
on a substantial number of small
entities.
The FMCSA is issuing this NPRM
because of the planned implementation
of the NAFTA’s motor carrier access
provisions. A NAFTA dispute
resolution tribunal recently ruled that
the United States violated NAFTA by
failing to allow any Mexican carriers
greater access to the United States.
Mexican carriers would be subject to
the same safety regulations as domestic
carriers when operating in the U.S. The
FMCSA’s enforcement of the FMCSRs
has become increasingly data dependent
in the last several years. Several
programs have been put in place to
continually analyze crash rates, out-ofservice (OOS) rates, compliance review
records, and other data sources to allow
the agency to focus on high-risk carriers.
This strategy is only effective if the
FMCSA has adequate data on carriers’
size, operations, and history. We do not
currently have this type of information
on Mexican carriers. We do not have
abundant information on their safety
record, OOS rates, or other overall
safety. Thus, a key component of this
proposal is the requirement that carriers

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with OP–1(MX) authority must
complete a Form MCS–150 biennially,
and notify the FMCSA of corrections to
or changes in applicant information on
the Form OP–1(MX) as well as changes
in the Form BOC–3 within 45 days of
the change. This would enable the
FMCSA to better monitor these carriers,
and to quickly determine whether their
safety or OOS rate changes.
The objective of this proposal is to
help determine the capability of certain
Mexican carriers to operate safely in the
United States. The proposal describes
what additional information Mexican
carriers would have to submit.
This proposal would primarily affect
Mexican-domiciled small motor carriers
who wish to operate beyond the U.S.
municipalities and commercial zones on
the U.S.-Mexico border. The amount of
information these carriers would have to
supply to the FMCSA has been
increased, and we estimate that it would
take 4 hours to complete each form after
compiling the necessary information.
The number of carriers subject to the
proposals in this rule and the two
companion rules published elsewhere
in today’s Federal Register is the sum
of those currently operating within the
United States and those who apply for
authority in the future. First, we
estimated the number of Mexican
carriers already operating within the
United States. Most of these carriers
currently have operating authority and
would merely be required to re-file
using the revised forms. To operate in
the U.S. beyond the municipalities and
commercial zones along the U.S.—
Mexico border, as proposed in this rule,
carriers would file the revised Form
OP–1(MX). To continue operations
within the U.S. solely in municipalities
and commercial zones along the U.S.—
Mexico border, these carriers would file
using the revised Form OP–2 (see the
rulemaking Revision of Regulations and
Application Form for Mexican—
Domiciled Motor Carriers to Operate in
U.S. Municipalities and Commercial
Zones on the U.S.—Mexico Border
published elsewhere in today’s Federal
Register).
The FMCSA’s Office of Data Analysis
and Information Systems developed a
file comprised of Mexican carriers that
have recently operated in the United
States. As of January 2001, this file
contained 11,787 Mexican motor
carriers (2.3% of the 500,000 carriers
listed in the FMCSA Motor Carrier
Management Information System
(MCMIS) census file). It includes
Mexican carriers with operating
authority, carriers who have a DOT
number but not authority, carriers with
both a DOT number and operating

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Federal Register / Vol. 66, No. 86 / Thursday, May 3, 2001 / Proposed Rules
authority, and other carriers that the
Agency believes are operating in the
United States with neither operating
authority nor a DOT number. These
latter carriers are those who have been
subject to a roadside inspection in the
United States at some point in the last
3 years.
It has been suggested that many of
these Mexican carriers no longer operate
in the United States. The FMCSA
calendar year 2000 MCMIS inspection
and accident database identifies
approximately 4,500 Mexican motor
carriers. The FMCSA also verified that
approximately 10,000 Mexican carriers
currently have operating authority.
Therefore, we constructed three
different baseline scenarios for the
number of Mexican carriers currently
operating in the United States, a low
(4,500), medium (9,500) and high
(11,787) scenario.
The second step in figuring out the
total number of Mexican carriers subject
to these proposals is to determine how
many new carriers will request authority
under the proposals. Approximately
1,600 Mexican carriers have filed an
OP–2 form annually over the last several
years (and a similar number have been
granted). Only 190 OP–1(MX)
applications are pending, as Mexican
carriers stopped filing these forms when
it became clear that these forms were
not being processed. For the high
estimate, the FMCSA assumes that this
number will double to 3,200 the first
year this proposal is in effect, and then
fall to 2,500 applicants per year for the
following 9 years. As in the case of
domestic carriers, the annual applicant
number may include carriers that go out
of business and subsequently re-enter
the market. For the lower and middle
estimates, we estimate that there will be
500 new applicants the first year, and
then 200 per year thereafter. This
translates into approximately 15,000
applicants in the first year for the high
estimate, 10,000 for the medium
estimate, and 5,000 for the low estimate.
As was noted above, the FMCSA
estimates that more than 500,000 motor
carriers are currently operating in the
United States.
We estimate that it takes 4 hours to
complete each form. As was noted
above, the vast majority of Mexican
motor carriers currently operating in the
United States have OP–2 authority. We
estimate that half of all these carriers
will switch to OP–1(MX) authority,
while the other half will continue
operating within U.S. municipalities
and commercial zones on the U.S.—
Mexico border. We assume that the new
carriers will be more likely than current
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since most of the large carriers who
would presumably benefit from
expanded U.S. operations are already
operating in U.S. municipalities and
commercial zones on the U.S.—Mexico
border under OP–2 authority. While
some new applicants will also want to
take advantage of the opportunity to
operate throughout the United States,
many will not have the financial and
administrative wherewithal to benefit
from the enlarged operations allowed.
Accordingly, the Agency estimates that
three quarters (75%) of all new
applicants will apply for OP–2
authority, with one quarter (25%)
requesting OP–1(MX) authority.
Nonetheless, changing this value would
have no impact on the analysis since the
costs of completing the two forms are
identical.
A review of the MCMIS census file
reveals that the vast majority of Mexican
carriers are small. For Mexican carriers
with any trucks, the mean number of
trucks was 5.1. That mean was pulled
up by a small number of large carriers.
Seventy-five (75) percent of Mexican
carriers had three or fewer trucks, and
the 95th percentile carrier had only 15
trucks.
These proposals should not have any
impact on small U.S. based motor
carriers.
The regulatory evaluation includes a
description of the recordkeeping and
reporting requirements of these
proposals. Under the revised
procedures, an applicant would be
required to submit a completed Form
BOC–3-Designation of Agents—Motor
Carriers, Brokers and Freight
Forwarders, and Form MCS–150—
Motor Carrier Identification Report
(Application for U.S. DOT Number) as
attachments to the OP–2 or OP–1(MX)
application form. In addition, Mexican
carriers would update the FMCSA of
certain information changes.
The Form MCS–150 is approximately
two pages long. In addition to requiring
basic identifying information, it requires
that carriers state the type of operation
they run, the number of vehicles and
drivers they use, and the types of cargo
they haul. The Form BOC–3 merely
requires the name, address and other
information for a domestic agent to be
contacted if the FMCSA needs to
contact the motor carrier. The proposals
also include other modest changes in
the OP–1(MX) and OP–2 forms.
The FMCSA did not propose any
different requirements or timetables for
small entities. As noted above, we do
not believe these requirements would be
onerous, with the carriers required to
spend 4 hours to complete the relevant
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required to complete forms that most
domestic U.S. carriers already are
required to submit.
The FMCSA would not consolidate or
simplify the compliance and reporting
requirements for small carriers. As
noted above, small U.S. carriers already
have to comply with the similar
paperwork requirements of part 365.
Given the compelling interest in
guaranteeing the safety of Mexican
carriers operating in the United States,
and the fact that the majority of these
carriers are small entities, no special
changes were proposed.
The FMCSA cannot exempt small
carriers from these proposals without
seriously diminishing the agency’s
ability to ensure the safe operations of
Mexican carriers. The majority of
Mexican carriers operating in the U.S.
would be small; exempting them would
have the same impact as not issuing
these proposals. Therefore, FMCSA
certifies that this proposed rule would
not have a significant impact on a
substantial number of small entities.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4; 2 U.S.C. 1532)
requires each agency to assess the
effects of its regulatory actions on State,
local, and tribal governments and the
private sector. Any agency promulgating
a final rule likely to result in a Federal
mandate requiring expenditures by a
State, local, or tribal government or by
the private sector of $100 million or
more in any one year must prepare a
written statement incorporating various
assessments, estimates, and descriptions
that are delineated in the Act. The
FMCSA has determined that the
changes proposed in this rule making
would not have an impact of $100
million or more in any one year.
Executive Order 12988 (Civil Justice
Reform)
This action meets applicable
standards in sections 3(a) and 3(b)(2) of
E. O. 12988, Civil Justice Reform, to
minimize litigation, eliminate
ambiguity, and reduce burden.
Executive Order 13045 (Protection of
Children)
We have analyzed this proposed
action under Executive Order 13045,
Protection of Children from
Environmental Health Risks and Safety
Risks. This proposed rule is not an
economically significant rule and does
not concern an environmental risk to
health or safety that may
disproportionately affect children.

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Executive Order 12630 (Taking of
Private Property)
This proposed rule will not effect a
taking of private property or otherwise
have taking implications under E. O.
12630, Governmental Actions and
Interference with Constitutionally
Protected Property Rights.
Executive Order 13132 (Federalism)
This proposed action has been
analyzed in accordance with the
principles and criteria contained in
Executive Order 13132, dated August 4,
1999 (64 FR 43255, August 10, 1999).
Consultation with States is not required
when a rule is required by statute. The
FMCSA, however, has determined that
this action would not have significant
Federalism implications or limit the
policymaking discretion of the States.
Comments on this conclusion are
welcome and should be submitted to the
docket.
Executive Order 13166 (Limited English
Proficiency)
Executive Order 13166, ‘‘Improving
Access to Services for Persons With
Limited English Proficiency,’’ dated
August 16, 2000 (65 FR 50121), requires
each Federal agency to examine the
services it provides and develop
reasonable measures to ensure that
persons limited in their English
proficiency can meaningfully access
these services consistent with, and
without unduly burdening, the
fundamental mission of the agency. The
FMCSA plans to provide a Spanish
translation of the application
instructions incorporated within the
Form OP–1(MX) application. We believe
that this action complies with the
principles enunciated in the Executive
Order.
Executive Order 12372
(Intergovernmental Review)
Catalog of Federal Domestic
Assistance Program Number 20.217
Motor Carrier Safety. The regulations
implementing Executive Order 12372
regarding intergovernmental
consultation on Federal programs and
activities do not apply to this program.
Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995 (PRA) (49 U.S.C. 3501–3520),
Federal agencies must obtain approval
from the Office of Management and
Budget (OMB) for each collection of
information they conduct, sponsor, or
require through regulations. The
FMCSA has determined that this
proposal would impact a currently
approved information collection, OMB
No. 2126–0016.

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This proposal will not have any
impact on information collection OMB
No. 2126–0015, entitled, ‘‘Designation
of Agents, Motor Carriers, Brokers and
Freight Forwarders.’’ This currently
approved collection covers the Form
BOC–3. The current estimates of annual
filings include the minimal additional
Mexican motor carriers who would be
filing updated information on the Form
BOC–3.
The information collection
requirements on Form OP–1(MX) have
been approved by the OMB under the
control number 2126–0016, titled
‘‘Revision of Licensing Application
Forms, Application Procedures, and
Corresponding Regulations.’’ This
approval includes forms OP–1(MX),
OP–1(P), OP–1(FF), and OP–1 and totals
38,000 burden hours. Two thousand
(2,000) of these 38,000 burden hours
represent the approved amount for the
OP–1(MX) (1,000 respondents per year
@ 2 hours each to complete the form).
The FMCSA proposes to change the
form title to Form OP–1(MX)—
Application to Register Mexican
Carriers for Motor Carrier Authority
Under the North American Free Trade
Agreement (NAFTA).’’
The Regulatory Evaluation for this
proposal uses a numerical range to
estimate the number of Mexican carriers
anticipated to request OP–1(MX) or OP–
2 authority under this proposal and a
companion rule published elsewhere in
today’s Federal Register (see NPRM
titled Revision to Regulations and
Application Form for MexicanDomiciled Motor Carriers to Operate in
U.S. Municipalities and Commercial
Zones on the U.S.-Mexico Border). We
estimate the number of applicants to
range between a low estimate of 5,000,
a medium estimate of 10,000 or a high
estimate of 15,000 applicants. Please
reference the Regulatory Flexibility Act
analysis in this document or the
Regulatory Evaluation for this
rulemaking for a detailed discussion on
how these estimates were derived. This
analysis is based upon the high estimate
(15,000) since that number enables the
Agency to assess the maximum
information collection burden to
respondents.
The FMCSA estimates that 11,787
Mexican carriers are currently operating
in the United States and are categorized
as follows: Mexican carriers operating
pursuant to OP–2 Certificates of
Registration; Mexican carriers that
previously filed an OP–1(MX)
application; and Mexican carriers
assigned DOT numbers and no OP
authority or operating without
appropriate authorization. The Agency
estimates that half of the 11,787

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Mexican carriers (or 5,894) known to be
now operating in the U.S. will switch to
OP–1(MX) authority, while the other
half will continue operating pursuant to
OP–2 authority.
Based upon the high estimate
scenario, the FMCSA anticipates 3,200
first-time applicants for either OP–2 or
OP–1(MX) authority in the first year that
this proposal becomes a final rule, and
2,500 applicants annually in subsequent
years. The agency estimates that 25
percent of the first year new applicants
(800) would file a Form OP–1(MX); and
25 percent of the subsequent-year new
applicants (625 annually) would file a
Form OP–1(MX).
We assume that first-time applicants
will be more likely than current carriers
to apply for OP–2 authority, since most
of the large carriers who would
presumably benefit from expanded U.S.
operations are already operating in the
border commercial zones pursuant to
OP–2 authority. While some new
applicants may also want to take
advantage of the opportunity afforded
by this proposal to operate throughout
the United States, many will not have
the financial and administrative
wherewithal or resources to benefit from
the enlarged operations allowed.
This proposal would also require
Mexican carriers to submit corrections
to or changes in the OP–1(MX)
applicant information within 45 days of
the change. For changes and updates,
the agency anticipates that in the first
year, 2,232 carriers would file updates
or changes to the Form OP–1(MX). In
subsequent years, approximately 208
carriers would file updates or changes to
the Form OP–1(MX). The FMCSA
estimates that it would take 30 minutes
to fill out a form to request changes.
Therefore, the FMCSA estimates an
adjusted burden hour calculation for the
Form OP–1(MX) as follows:
Mexican carrier re-filings or initial
filings of the Form OP–1(MX):
(in first year, known carriers): 5,894 ×
4 hrs per form = 23,576 hrs
(in first year, first-time applicants):
800 × 4 hrs per form = 3,200 hrs
(in subsequent-years, first-time
applicants): 625 × 4 hrs per form =
2,500 hrs
Updates/Changes:
(all in first year): 2,232 × 30 min. per
form = 1,117 hrs
(all in subsequent years): 208 × 30
min. per form = 104 hrs
Therefore, proposals in the NPRM,
when promulgated as a final rule, would
result in a change to the total burden
hours for this information collection as
follows:
In the first year: 63,893 [(38,000
¥2,000 = 36,000) + 26,776 + 1,117]; and

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Federal Register / Vol. 66, No. 86 / Thursday, May 3, 2001 / Proposed Rules
in subsequent years: 38,604 [36,000 +
2,500 + 104].
OMB Control Number: 2126–0016.
Title: Revision of Licensing
Application Forms, Application
Procedures, and Corresponding
Regulations.
Respondents: Motor carriers that
operate CMVs in interstate commerce.
Estimated Annual Hour Burden for
this NPRM: Year 1 = ([38,000 ¥2,000 =
36,000] + 26,776 + 1,117 = 63,893 hrs);
Subsequent years = ([38,000 ¥2,000 =
36,000] + 2,500 + 104 = 38,604 hours).
National Environmental Policy
The agency has analyzed this
proposal for the purpose of the National
Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.) and has determined
under DOT Order 5610.1C (September
18, 1979) that this action does not
require any environmental assessment.
An environmental impact statement is,
therefore, not required.

Mexican Carriers for Motor Carrier
Authority Under the North American Free
Trade Agreement (NAFTA)

Subpart E—Special Rules for Certain
Mexican Carriers
§ 365.501

Scope of rules.

The rules in this subpart govern the
application by a Mexican-domiciled
motor carrier to provide transportation
of property or passengers in interstate
commerce between Mexico and points
in the United States beyond the
municipalities and commercial zones
adjacent to the border.
§ 365.503

Application.

2. Add a new subpart E to part 365 to
read as follows:

(a) Each applicant applying under this
subpart must submit an application that
consists of: Form OP–1 (MX), Form
MCS–150—Motor Carrier Identification
Form, and Form BOC–3—Designation of
Agents-Motor Carriers, Brokers and
Freight Forwarders.
(b) The FMCSA will only process
your application if it meets the
following conditions:
(1) The application must be
completed in English.
(2) The information supplied must be
accurate, complete, and include all
required supporting documents and
applicable certifications in accordance
with the instructions to Form OP–1
(MX), Form MCS–150, and Form BOC–
3.
(3) The application must include the
filing fee payable to the FMCSA in the
amount set forth at 49 CFR 360.3(f)(1);
and
(4) The application must be signed by
the applicant.
(c) You must submit the application
to the address provided in Form OP–1
(MX).
(d) You may obtain the application
forms from any FMCSA Division Office
or download it from the FMCSA website
at: http://www.fmcsa.dot.gov/factsfigs/
formspub.htm. Form OP–1 (MX) is also
published in Appendix A to this part.

Subpart E—Special Rules for Certain
Mexican Carriers

§ 365.505 Re-registration and fee waiver
for certain applicants.

Sec.
365.501 Scope of rules.
365.503 Application.
365.505 Re-registration and fee waiver for
certain applicants.
365.507 Review of the application.
365.509 Requirement to notify of change in
applicant information.
Appendix A to Subpart E of Part 365—Form
OP–1(MX) ‘‘ Application to Register

(a) If you filed an application using
Form OP–1(MX) before [Insert date of
publication of the final rule in the
Federal Register], you are required to
file a new Form OP–1(MX) to update
information about your operations. You
do not need to submit a fee when you
file a new application under this
subpart.

List of Subjects
49 CFR Part 365
Administrative practice and
procedure, Brokers, Buses, Freight
forwarders, Maritime carriers, Motor
carriers, Moving of household goods,
Reporting and recordkeeping
requirements.
For the reasons stated in the
preamble, the FMCSA proposes to
amend 49 CFR part 365 as set forth
below:
PART 365—RULES GOVERNING
APPLICATIONS FOR OPERATING
AUTHORITY
1. The authority citation for part 365
is revised to read as follows:
Authority: 5 U.S.C. 553 and 559; 16 U.S.C.
1456; 49 U.S.C. 13101, 13301, 13901–13906,
14708, 31138, and 31144; 49 CFR 1.73.

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(b) If you hold a Certificate of
Registration issued before [Insert date of
publication of final rule in the Federal
Register] authorizing operations beyond
the municipalities and commercial
zones along the United States-Mexicoan
border, you are required to file an OP–
1(MX) if you want to continue those
operations. You do not need to submit
a fee when you file a new application
under this subpart.
(1) You must file the application by
[Insert date 1 year after date of
publication of final rule in the Federal
Register.].
(2) The FMCSA may suspend or
revoke the Certificate of Registration of
any applicable holder that fails to
comply with the procedures set forth in
this section.
(3) Certificates of Registration issued
prior to [Insert date of publication of
final rule in the Federal Register] would
remain valid until the OP–1(MX)
application filed according to paragraph
(b) of this section is processed.
§ 365.507

Review of the application.

(a) The FMCSA will review and act on
each application submitted under this
subpart in accordance with the
procedures set out in this part.
(b) When the FMCSA approves an
application submitted under this
subpart, the approval will be
conditional upon the completion, to the
satisfaction of the FMCSA, of a safety
review under § 385.21 of this chapter
within 18 months of the date of
approval.
§ 365.509 Requirement to notify of change
in applicant information.

(a) You must notify the FMCSA of any
changes or corrections to the
information in Parts I, IA or II submitted
on the Form OP–1(MX) or the Form
BOC–3—Designation of Agents—Motor
Carriers, Brokers and Freight
Forwarders during the application
process or after having been granted
operating authority. You must notify the
FMCSA in writing within 45 days of the
change or correction.
(b) If you fail to comply with
paragraph (a) of this section, the FMCSA
may suspend or revoke your operating
authority until you meet those
requirements.
BILLING CODE 4910–22–P

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Appendix A to Subpart E of Part 365—Form OP–1(MX)—Application To Register Mexican Carriers for Motor Carrier
Authority Under the North American Free Trade Agreement (NAFTA)

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Federal Register / Vol. 66, No. 86 / Thursday, May 3, 2001 / Proposed Rules
Issued on: April 27, 2001.
Brian M. McLaughlin,
Associate Administrator for Policy and
Program Development.
[FR Doc. 01–11035 Filed 5–1–01; 8:45 am]
BILLING CODE 4910–22–C

DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
49 CFR Part 385
[Docket No. FMCSA–98–3299]
RIN 2126–AA35

Safety Monitoring System and
Compliance Initiative for Mexican
Motor Carriers Operating in the United
States
AGENCY: Federal Motor Carrier Safety
Administration (FMCSA), (DOT).
ACTION: Notice of proposed rulemaking
(NPRM); request for comments.
SUMMARY: The FMCSA proposes to
implement a safety monitoring system
and compliance initiative to help
determine whether Mexican-domiciled
carriers conducting operations
anywhere in the United States comply
with applicable safety regulations and
conduct safe operations. This NPRM
would revise the safety fitness
regulations at 49 CFR part 385 to
implement a safety oversight program
designed to evaluate the safety fitness of
Mexican carriers within 18 months after
receiving conditional authority to
operate in the United States. This
proposal is necessary to implement the
entry provisions of the North American
Free Trade Agreement (NAFTA).
DATES: We must receive your comments
by July 2, 2001.
ADDRESSES: You can mail, fax, hand
deliver or electronically submit written
comments to the Docket Management
Facility, U.S. Department of
Transportation, Dockets Management
Facility, Room PL–401, 400 Seventh
Street, SW., Washington, DC 20590–
0001 FAX (202) 493–2251, on-line at
http://dmses.dot.gov/submit. You must
include 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://
dms.dot.gov/search.htm and typing the
last four digits of the docket number

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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 under the
‘‘help’’ section of the web site. If you
want us to notify you that we received
your comments, please include a selfaddressed, stamped envelope or
postcard or print the acknowledgement
page that appears after submitting
comments on-line.
FOR FURTHER INFORMATION CONTACT:
Valerie Height, (202) 366–1790, Federal
Motor Carrier Safety Administration,
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: Comments
received after the comment closing date
will be included in the docket and we
will consider late comments to the
extent practicable. The FMCSA may,
however, issue a final rule at any time
after the close of the comment period.
Background
Under the Bus Regulatory Reform Act
of 1982 (Public Law No. 97–261, 96 Stat.
1103), Congress imposed a two-year
moratorium on the former Interstate
Commerce Commission’s (ICC) issuance
of new grants of U.S. operating authority
to motor carriers domiciled in a foreign
country, or owned or controlled by
persons of a foreign country. The
legislation authorized the President to
remove or modify the moratorium upon
a determination that such action was in
the national interest. As a result of
legislative and executive extensions,
Mexican carriers have been subject to
this moratorium since 1982. Since that
time, most Mexican motor carriers of
property seeking to initiate operations
in the United States have been restricted
to operating in the municipalities in the
United States on the United StatesMexico border or within the commercial
zones of such municipalities.
Additional information on the
implementation of NAFTA is set out in
the preamble to the NPRM entitled
Application by Certain Mexican Motor
Carriers to Operate Beyond U.S.
Municipalities and Commercial Zones
on the U.S.-Mexico Border, which
addresses revisions to the part 365
application process and the OP–1(MX)
application form and is published
elsewhere in today’s Federal Register.
As we discussed in the NPRM
addressing part 365, commercial motor
vehicle safety in the United States is
regulated under a comprehensive
system of regulations designed to ensure
that drivers are medically qualified;

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meet applicable licensing standards; can
read and speak the English language
sufficiently to converse with the general
public, understand highway traffic signs
and signals in the English language, to
respond to official inquiries and to make
entries on reports and records; and do
not operate vehicles while impaired by
drugs or alcohol or excessive fatigue.
Our regulations also require carriers to
equip every commercial motor vehicle
with certain standard safety-related
equipment and that vehicles be
regularly inspected and maintained to
ensure that they remain in safe
operating condition. These regulatory
requirements are enforced through
roadside inspections and on-site
compliance reviews. Roadside
inspections focus on potentially unsafe
vehicle and driver violations that may
pose a threat to public safety unless the
vehicle or driver is placed out of
service. A compliance review comprises
an examination of carrier records
(including driver logbooks and drug and
alcohol testing information), roadside
vehicle inspection data, accident
records and other safety related
information to determine whether a
motor carrier meets safety fitness
standards as defined in the Federal
Motor Carrier Safety Regulations
(FMCSRs) and Hazardous Materials
Regulations.
The U.S. DOT has consulted
extensively with Mexican transportation
officials in their efforts to strengthen
Mexican vehicle safety regulations, and
significant progress has been made in
this area. Mexico has agreed to utilize
the Commercial Vehicle Safety Alliance
(CVSA) out-of-service criteria and has
issued final regulations based on these
criteria. These standards cannot be fully
effective unless complemented by an
adequate safety oversight program,
including systematic roadside
inspections, to ensure compliance with
and enforcement of the criteria. U.S.
DOT officials have worked extensively
with Mexican transportation officials,
but Mexico has not yet completed
implementation of a comprehensive
safety inspection program.
With the exception of the border
commercial zone drayage operations,
most Mexican carriers have little or no
experience operating under regulations
comparable to the FMCSRs.
Accordingly, the FMCSA must be
prepared to evaluate the safety fitness of
motor carriers having no experience
operating under our comprehensive
system of safety regulations.
Proposed Safety Oversight Program
In this NPRM, the FMCSA proposes a
safety oversight program to address U.S.

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