[Federal Register: May 3, 2001 (Volume 66, Number 86)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 365
[Docket No. FMCSA-98-3298]
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 States-Mexico border. The FMCSA also
proposes to revise the application form, OP-1(MX), to be filed by these
Mexican motor carriers. The proposed form would require additional
information about the applicant's business and operating practices to
allow the FMCSA to determine if the applicant could meet the safety
standards established for operating in interstate commerce in the
United States. Carriers that had previously submitted an application
would have to submit the updated form. These proposed changes are
needed to implement part of the North American Free Trade Agreement
DATES: We must receive your comments by July 2, 2001.
ADDRESSES: You can mail, fax, hand deliver or electronically submit
written comments to the Docket Management Facility, U.S. Department of
Transportation, Dockets Management Facility, Room PL-401, 400 Seventh
Street, SW., Washington, DC 20590-0001 FAX (202) 493-2251, on-line at
http://dmses.dot.gov/submit. You must include in your comment the
docket number that appears in the heading of this document. You can
examine and copy all comments at the above address from 9 a.m. to 5
p.m., e.t., Monday through Friday, except Federal holidays. You can
also view all comments or download an electronic copy of this document
from the DOT Docket Management System (DMS) at http://dms.dot.gov/
search.htm and typing the last four digits of the docket number
appearing at the heading of this document. The DMS is available 24
hours each day, 365 days each year. You can get electronic submission
and retrieval help and guidelines at the ``Help'' section of the web
site. If you want us to notify you that we received your comments,
please include a self-addressed, stamped envelope or postcard, or print
the acknowledgement page that appears after submitting comments on-
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.
Under the Bus Regulatory Reform Act of 1982, (Pub. L. No. 97-261,
96 Stat. 1103) Congress imposed a two-year moratorium on issuance by
the former Interstate Commerce Commission (ICC) of new grants of
operating authority to motor carriers domiciled in a foreign country,
or owned or controlled by persons of a foreign country. The legislation
authorized the President to remove or modify the moratorium upon a
determination that such action was in the national interest. As a
result of legislative and executive extensions of the moratorium, only
a limited class of Mexican motor carriers have operated in the United
States on Certificates of Registration issued under what is now 49 CFR
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
(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
(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
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
(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
On December 18, 1995, the DOT announced a delay in implementing the
NAFTA motor carrier access provisions. Because of safety concerns
related to the operations of Mexican motor carriers and the lack of a
motor carrier safety regulation and compliance program in Mexico, the
ICC decided not to process applications from Mexican motor carriers for
authority to operate in the United States border States in accordance
with NAFTA's liberalization schedule. The FHWA continued this decision
after the January 1, 1996, termination of the ICC and transfer of
responsibilities to the FHWA.
Mexico filed complaints against the United States under NAFTA's
dispute resolution provisions, challenging the United States decision
to deny further trucking, investment, and bus access. An arbitration
panel met in May 2000 to hear the trucking and investment case, which
was the subject of extensive pre-and post-hearing briefings on safety
and legal issues.
The panel issued a final report on February 6, 2001. A copy of the
report is in the docket. The report unanimously concluded that the
blanket refusal to process applications of Mexican motor carriers
seeking United States operating authority out of concerns over the
carriers' safety was in breach of NAFTA obligations of the United
States, specifically NAFTA's liberalization provisions and provisions
ensuring national treatment and most-favored-nation treatment for
cross-border services. The panel also concluded that alleged
deficiencies in Mexico's regulation of motor carrier safety did not
relieve the United States of those NAFTA obligations. The panel stated,
however, that the Department could subject Mexican motor carriers
seeking to operate in the United States to different requirements than
it applies to United States and Canadian carriers. The United States
and Mexico have engaged in negotiations regarding the implementation of
the liberalization provisions in light of the panel's decision.
The FMCSA regulates commercial motor vehicle (CMV) safety in the
United States under a comprehensive system of regulations designed to
ensure that drivers are medically qualified;, meet applicable licensing
standards; can read and speak the English language sufficiently to
converse with the general public, understand highway traffic signs and
signals in the English language, respond to official inquiries and make
entries on reports and records; and do not operate vehicles while
impaired by drugs, alcohol or excessive fatigue. We require that every
CMV be equipped with certain standard safety-related equipment and that
vehicles be regularly inspected and maintained to ensure that they
remain in safe operating condition. We enforce these regulatory
requirements through roadside inspections and on-site compliance
reviews. Roadside inspections focus on potentially unsafe vehicle and
driver violations that may pose a threat to public safety, unless the
vehicle or driver is placed out of service. Our compliance reviews
entail a review of a carrier's overall compliance with the Federal
Motor Carrier Safety Regulations (FMCSRs) and Hazardous Materials
Regulations. Our investigators examine carrier records (including
driver logbooks and drug and alcohol testing information) and evaluate
roadside vehicle inspection data, accident records, and other safety
related information to determine whether a motor carrier meets safety
The DOT has consulted extensively with Mexican transportation
officials regarding the strengthening of Mexican truck safety
regulation, and significant progress has been made in this area. Mexico
has agreed to utilize the Commercial Vehicle Safety Alliance (CVSA)
out-of-service (OOS) criteria and has issued final regulations based on
these criteria. These standards cannot be effective without a safety
oversight program, including systematic roadside inspections, to ensure
compliance with and enforcement of the standards. The DOT officials
have worked extensively with Mexican transportation officials on the
establishment of such a program. However, Mexico has not yet completed
implementation of a comprehensive safety inspection program.
With the exception of border commercial zone drayage operations,
Mexican carriers have, for the most part, little or no experience
operating under regulations comparable to the FMCSRs. The FMCSA must be
prepared to evaluate the safety fitness of motor carriers having no
experience operating under a comprehensive system of safety regulation
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
In another NPRM published elsewhere in today's Federal Register,
RIN 2126-AA33 Revision of Regulations and Application Form for Mexican-
Domiciled Motor Carriers to Operate in U.S. Municipalities and
Commercial Zones on the U.S.-Mexico Border, the FMCSA is proposing
changes to the process and form (OP-2) used to obtain a Certificate of
Registration. The changes would limit a Certificate of Registration to
Mexican-domiciled motor carriers that operate, or will operate, only in
the commercial zones adjoining the United States-Mexico border. All
other Mexican carriers, including current holders of Certificates of
Registration who operate beyond the commercial zones, would be subject
to the proposals in this NPRM.
The FMCSA proposes to revise the OP-1(MX) application form by
requiring each motor carrier applicant to answer questions to
demonstrate its basic knowledge of the FMCSRs and to indicate how it
intends to comply with these regulations. In addition, the FMCSA
proposes to require each applicant to make specific certifications of
compliance. This additional information will enable the FMCSA to
determine that each applicant is willing and able to comply with the
FMCSRs while conducting operations in the United States. In addition,
the FMCSA would require applicants to submit verification from the
Mexican government that the applicant is a registered Mexican carrier
authorized to conduct motor carrier operations up to the United States-
Mexico border and that all drivers who would operate in the United
States have a valid Licencia Federal de Conductor issued by the
Government of Mexico. These requirements also are consistent with
section 210(b) of the Motor Carrier Safety Improvement Act of 1999
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
The FMCSA solicits comment from the public on our proposal that
Mexican applicants who have filed for authority on the existing Form
OP-1(MX) must file the proposed revised Form OP-1(MX) to update and
supplement the information about their operations, including the
requirement that the carrier be registered with the Government of
Mexico. This requirement would ensure that FMCSA's database contains
current and consistent information about Mexican registrants and thus
enhance the effectiveness of FMCSA's safety oversight.
These proposed requirements should not distract from, or
detrimentally affect, the efforts underway between the Governments of
Mexico and the United States to establish compatible regulations and to
ensure that a comprehensive safety oversight program is put into place
in Mexico. Over the long term, consistent, compatible safety standards
and compliance practices will have the greatest impact in promoting
safety, facilitating enforcement, reducing the enforcement burden on
the border States, and establishing permanent and stable programs.
Proposed Form OP-1(MX)
The FMCSA proposes extensive revisions to the Form OP-1(MX). The
FMCSA proposes to add new sections to solicit additional information
from the applicant to assist in identifying the nature of the
applicant's existing operations in the U.S., if any. Other sections
would help identify any previously submitted Form MCS-150, verify the
applicant's domicile in Mexico, and confirm that the applicant holds a
valid registration from the Government of Mexico. The question
regarding domicile would be removed. However, the proposed question
regarding whether the applicant holds a valid registration from the
Mexican government is new. It is proposed to ensure that only a carrier
who has met Mexican Federal government standards and regulations will
operate in the United States.
The single form for both passenger and property carriers would
lessen the paperwork burden on the Mexican applicants and facilitate
the inclusion of additional safety questions and certifications.
Under section 219 of MCSIA, a foreign carrier engaging in
transportation in the United States without proper authorization may be
disqualified from operating commercial vehicles in the United States.
Accordingly, applicants would be asked to disclose whether any
affiliated entities have been disqualified.
The proposed form would require an applicant to identify the
type(s) of operations requested. The form would make clear that use of
the Form OP-1(MX) and issuance of Authority Registrations would be
limited to carriers that would operate beyond the municipalities along
the United States-Mexico border and commercial zones of such
Additional information would be requested about insurance held by
The FMCSA proposes to add a new section that would require the
applicant to certify that it has a system in place to ensure compliance
with applicable requirements covering driver qualifications, hours of
service, drug and alcohol testing, vehicle condition, accident
monitoring, and hazardous materials transportation. In addition, the
FMCSA proposes that the applicant provide narrative responses
describing how it will monitor hours of service, how it will maintain
an accident register and what is its monitoring program. This section
would also require that the applicant provide information including the
names of individuals in charge of the applicant's safety program. The
applicant must provide: specific locations where the applicant
maintains current FMCSRs, the names of the individuals in charge of
drug and alcohol testing (if applicable). The FMCSA would require only
those safety certifications that apply to the applicant. For example,
due to the weight of the vehicles they operate, certain applicants
would not be subject to the drug and alcohol testing and CDL
requirements in 49 CFR parts 382 and 383, respectively, and would not
be required to certify compliance with those regulations. The
certification information would enable FMCSA to evaluate, upon initial
application, the safety compliance program of the applicant. The FMCSA
would reject an applicant that cannot offer a specific, unambiguous
plan to ensure compliance.
The proposed form would require household goods applicants to
affirm a willingness to offer arbitration as a means of settling loss
and damage claims in accord with U.S. law.
The FMCSA proposes to add more extensive and specific
certifications regarding compliance, including compliance with
Department of Labor regulations. Other parts of this certification
would require the applicant to affirm its willingness and ability to
provide the proposed service and to comply with all pertinent statutory
and regulatory requirements. It would remind the applicant of statutory
and regulatory responsibilities, which if neglected or violated, might
subject the applicant to disciplinary or corrective action by the
FMCSA. Another certification, derived from the existing Form OP-2
application, would highlight the need to comply with applicable
provisions of the U.S. Internal Revenue Code relating to payment of the
Heavy Vehicle Use Tax. An additional certification would ensure that
the applicant understands that the agents for service of process
designated on the Form BOC-3 would also be deemed the applicant's
representative in the United States for service of judicial process and
notices under 49 U.S.C. 13304 and administrative notices under 49
U.S.C. 13303. Finally, the applicant would affirm that it is not
currently disqualified from operating a commercial motor vehicle in the
United States under the provisions of MCSIA.
The FMCSA will conduct workshops and also provide written material,
such as handbooks, to help the Mexican applicants understand the
various requirements and the proper way to complete the applications.
Proposed Revision to Part 365
The FMCSA proposes to add a new subpart E to part 365 to address
the specific requirements of the application process for Mexican
carriers. First, proposed Sec. 365.501 sets out that all Mexican-
domiciled carriers that want to operate beyond the border area must
file the Form OP-1(MX). This would be a change from current practice to
facilitate uniform treatment of all Mexican carriers that may wish to
offer long haul service, and it is discussed as well in the NPRM
concerning part 368 published in today's Federal Register. These
special filing rules would not apply to Mexican-owned enterprises
domiciled in the United States that want to distribute international
cargo within the United States. Nor do they apply to Mexican nationals
establishing companies in the United States to provide point-to-point
bus services in the United States. Such entities would file either the
standard OP-1 or OP-1(P) application form, as appropriate.
In proposed Sec. 365.503, the FMCSA states that applications must
out in English and be complete to be considered. Information on
obtaining applications is also provided.
We propose in Sec. 365.505 to provide a waiver from the filing fee
for two types of applicants. First would be those who submitted an
application under the earlier version of the Form OP-1(MX) before the
decision of the United States to stay implementation of the NAFTA entry
provisions. Second would be those applicants that currently hold a
Certificate of Registration and wish to continue operations solely
within the U.S. municipalities and commercial zones along the U.S.-
In proposed Sec. 365.507, the FMCSA states that all applications by
Mexican carriers would be reviewed under the existing procedures of
part 365. Also, we propose that approval of an application would be
conditional upon successful completion of a safety review within 18
months. The safety review is discussed in another NPRM published today
in the Federal Register (Safety Monitoring System and Compliance
Initiative for Mexican Motor Carriers Operating in the United States).
Proposed Sec. 365.509 would include a requirement for Mexican
carriers to notify FMCSA in writing of any changes in, or corrections
to, applicant information in the Form OP-1(MX) as well as any changes
in the Form BOC-3--Designation of Agents--Motor Carriers, Brokers and
Freight Forwarders, within 45 days of the change. The proposed
requirement would assist FMCSA in keeping its information on Mexican
carriers current. The proposed requirement would not be an annual re-
filing. A carrier with no change in status would not need to take any
action apart from the biennial submission of Form MCS-150. A carrier
who fails to update required information may be subject to suspension
or revocation of its operating authority.
Finally, we propose to add the Form OP-1(MX) as Appendix A to
subpart E of part 365.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and Department
of Transportation Regulatory Policies and Procedures
The FMCSA has determined that this action is a significant
regulatory action within the meaning of Executive Order 12866, and is
significant within the meaning of Department of Transportation
regulatory policies and procedures (44 FR 11034, February 26, 1979).
The Office of Management and Budget has reviewed this document. It is
anticipated that the economic impact of the proposals in this
rulemaking would be minimal. The new or revised Form OP-1(MX), while
intended to foster and contribute to safety of operations, adherence to
U.S. law and regulations, and compliance with U.S. insurance and tax
payment requirements on the part of Mexican carriers, would impose
little additional expense upon public agencies or the motoring public.
Nevertheless, the subject of safe operations by Mexican carriers in
the United States will likely generate considerable public interest
within the meaning of Executive Order 12866. The manner in which the
FMCSA carries out its safety oversight responsibilities with respect to
this international motor carrier transportation may be of substantial
interest to the domestic motor carrier industry, the Congress, and the
public at large. A copy of the Regulatory Evaluation prepared for the
three companion NPRMs published in today's Federal Register is in the
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (Pub. L. 96-354, 5 U.S.C. 601-
612), as amended by the Small Business Regulatory Enforcement and
Fairness Act (Pub. L. 104-121), requires federal agencies to analyze
the impact of rulemakings on small entities, unless the Agency
certifies that the rule will not have a significant economic impact on
a substantial number of small entities.
The FMCSA is issuing this NPRM because of the planned
implementation of the NAFTA's motor carrier access provisions. A NAFTA
dispute resolution tribunal recently ruled that the United States
violated NAFTA by failing to allow any Mexican carriers greater access
to the United States.
Mexican carriers would be subject to the same safety regulations as
domestic carriers when operating in the U.S. The FMCSA's enforcement of
the FMCSRs has become increasingly data dependent in the last several
years. Several programs have been put in place to continually analyze
crash rates, out-of-service (OOS) rates, compliance review records, and
other data sources to allow the agency to focus on high-risk carriers.
This strategy is only effective if the FMCSA has adequate data on
carriers' size, operations, and history. We do not currently have this
type of information on Mexican carriers. We do not have abundant
information on their safety record, OOS rates, or other overall safety.
Thus, a key component of this proposal is the requirement that carriers
with OP-1(MX) authority must complete a Form MCS-150 biennially, and
notify the FMCSA of corrections to or changes in applicant information
on the Form OP-1(MX) as well as changes in the Form BOC-3 within 45
days of the change. This would enable the FMCSA to better monitor these
carriers, and to quickly determine whether their safety or OOS rate
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
authority, and other carriers that the Agency believes are operating in
the United States with neither operating authority nor a DOT number.
These latter carriers are those who have been subject to a roadside
inspection in the United States at some point in the last 3 years.
It has been suggested that many of these Mexican carriers no longer
operate in the United States. The FMCSA calendar year 2000 MCMIS
inspection and accident database identifies approximately 4,500 Mexican
motor carriers. The FMCSA also verified that approximately 10,000
Mexican carriers currently have operating authority. Therefore, we
constructed three different baseline scenarios for the number of
Mexican carriers currently operating in the United States, a low
(4,500), medium (9,500) and high (11,787) scenario.
The second step in figuring out the total number of Mexican
carriers subject to these proposals is to determine how many new
carriers will request authority under the proposals. Approximately
1,600 Mexican carriers have filed an OP-2 form annually over the last
several years (and a similar number have been granted). Only 190 OP-
1(MX) applications are pending, as Mexican carriers stopped filing
these forms when it became clear that these forms were not being
processed. For the high estimate, the FMCSA assumes that this number
will double to 3,200 the first year this proposal is in effect, and
then fall to 2,500 applicants per year for the following 9 years. As in
the case of domestic carriers, the annual applicant number may include
carriers that go out of business and subsequently re-enter the market.
For the lower and middle estimates, we estimate that there will be 500
new applicants the first year, and then 200 per year thereafter. This
translates into approximately 15,000 applicants in the first year for
the high estimate, 10,000 for the medium estimate, and 5,000 for the
low estimate. As was noted above, the FMCSA estimates that more than
500,000 motor carriers are currently operating in the United States.
We estimate that it takes 4 hours to complete each form. As was
noted above, the vast majority of Mexican motor carriers currently
operating in the United States have OP-2 authority. We estimate that
half of all these carriers will switch to OP-1(MX) authority, while the
other half will continue operating within U.S. municipalities and
commercial zones on the U.S.--Mexico border. We assume that the new
carriers will be more likely than current carriers to apply for OP-2
authority, since most of the large carriers who would presumably
benefit from expanded U.S. operations are already operating in U.S.
municipalities and commercial zones on the U.S.--Mexico border under
OP-2 authority. While some new applicants will also want to take
advantage of the opportunity to operate throughout the United States,
many will not have the financial and administrative wherewithal to
benefit from the enlarged operations allowed. Accordingly, the Agency
estimates that three quarters (75%) of all new applicants will apply
for OP-2 authority, with one quarter (25%) requesting OP-1(MX)
authority. Nonetheless, changing this value would have no impact on the
analysis since the costs of completing the two forms are identical.
A review of the MCMIS census file reveals that the vast majority of
Mexican carriers are small. For Mexican carriers with any trucks, the
mean number of trucks was 5.1. That mean was pulled up by a small
number of large carriers. Seventy-five (75) percent of Mexican carriers
had three or fewer trucks, and the 95th percentile carrier had only 15
These proposals should not have any impact on small U.S. based
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-
The FMCSA did not propose any different requirements or timetables
for small entities. As noted above, we do not believe these
requirements would be onerous, with the carriers required to spend 4
hours to complete the relevant forms. Mexican carriers would only be
required to complete forms that most domestic U.S. carriers already are
required to submit.
The FMCSA would not consolidate or simplify the compliance and
reporting requirements for small carriers. As noted above, small U.S.
carriers already have to comply with the similar paperwork requirements
of part 365. Given the compelling interest in guaranteeing the safety
of Mexican carriers operating in the United States, and the fact that
the majority of these carriers are small entities, no special changes
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.
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
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
Executive Order 13166 (Limited English Proficiency)
Executive Order 13166, ``Improving Access to Services for Persons
With Limited English Proficiency,'' dated August 16, 2000 (65 FR
50121), requires each Federal agency to examine the services it
provides and develop reasonable measures to ensure that persons limited
in their English proficiency can meaningfully access these services
consistent with, and without unduly burdening, the fundamental mission
of the agency. The FMCSA plans to provide a Spanish translation of the
application instructions incorporated within the Form OP-1(MX)
application. We believe that this action complies with the principles
enunciated in the Executive Order.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.217 Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities do not apply to this program.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (49 U.S.C. 3501-
3520), Federal agencies must obtain approval from the Office of
Management and Budget (OMB) for each collection of information they
conduct, sponsor, or require through regulations. The FMCSA has
determined that this proposal would impact a currently approved
information collection, OMB No. 2126-0016.
This proposal will not have any impact on information collection
OMB No. 2126-0015, entitled, ``Designation of Agents, Motor Carriers,
Brokers and Freight Forwarders.'' This currently approved collection
covers the Form BOC-3. The current estimates of annual filings include
the minimal additional Mexican motor carriers who would be filing
updated information on the Form BOC-3.
The information collection requirements on Form OP-1(MX) have been
approved by the OMB under the control number 2126-0016, titled
``Revision of Licensing Application Forms, Application Procedures, and
Corresponding Regulations.'' This approval includes forms OP-1(MX), OP-
1(P), OP-1(FF), and OP-1 and totals 38,000 burden hours. Two thousand
(2,000) of these 38,000 burden hours represent the approved amount for
the OP-1(MX) (1,000 respondents per year @ 2 hours each to complete the
form). The FMCSA proposes to change the form title to Form OP-1(MX)--
Application to Register Mexican Carriers for Motor Carrier Authority
Under the North American Free Trade Agreement (NAFTA).''
The Regulatory Evaluation for this proposal uses a numerical range
to estimate the number of Mexican carriers anticipated to request OP-
1(MX) or OP-2 authority under this proposal and a companion rule
published elsewhere in today's Federal Register (see NPRM titled
Revision to Regulations and Application Form for Mexican-Domiciled
Motor Carriers to Operate in U.S. Municipalities and Commercial Zones
on the U.S.-Mexico Border). We estimate the number of applicants to
range between a low estimate of 5,000, a medium estimate of 10,000 or a
high estimate of 15,000 applicants. Please reference the Regulatory
Flexibility Act analysis in this document or the Regulatory Evaluation
for this rulemaking for a detailed discussion on how these estimates
were derived. This analysis is based upon the high estimate (15,000)
since that number enables the Agency to assess the maximum information
collection burden to respondents.
The FMCSA estimates that 11,787 Mexican carriers are currently
operating in the United States and are categorized as follows: Mexican
carriers operating pursuant to OP-2 Certificates of Registration;
Mexican carriers that previously filed an OP-1(MX) application; and
Mexican carriers assigned DOT numbers and no OP authority or operating
without appropriate authorization. The Agency estimates that half of
the 11,787 Mexican carriers (or 5,894) known to be now operating in the
U.S. will switch to OP-1(MX) authority, while the other half will
continue operating pursuant to OP-2 authority.
Based upon the high estimate scenario, the FMCSA anticipates 3,200
first-time applicants for either OP-2 or OP-1(MX) authority in the
first year that this proposal becomes a final rule, and 2,500
applicants annually in subsequent years. The agency estimates that 25
percent of the first year new applicants (800) would file a Form OP-
1(MX); and 25 percent of the subsequent-year new applicants (625
annually) would file a Form OP-1(MX).
We assume that first-time applicants will be more likely than
current carriers to apply for OP-2 authority, since most of the large
carriers who would presumably benefit from expanded U.S. operations are
already operating in the border commercial zones pursuant to OP-2
authority. While some new applicants may also want to take advantage of
the opportunity afforded by this proposal to operate throughout the
United States, many will not have the financial and administrative
wherewithal or resources to benefit from the enlarged operations
This proposal would also require Mexican carriers to submit
corrections to or changes in the OP-1(MX) applicant information within
45 days of the change. For changes and updates, the agency anticipates
that in the first year, 2,232 carriers would file updates or changes to
the Form OP-1(MX). In subsequent years, approximately 208 carriers
would file updates or changes to the Form OP-1(MX). The FMCSA estimates
that it would take 30 minutes to fill out a form to request changes.
Therefore, the FMCSA estimates an adjusted burden hour calculation
for the Form OP-1(MX) as follows:
Mexican carrier re-filings or initial filings of the Form OP-1(MX):
(in first year, known carriers): 5,894 x 4 hrs per form = 23,576
(in first year, first-time applicants): 800 x 4 hrs per form =
(in subsequent-years, first-time applicants): 625 x 4 hrs per
form = 2,500 hrs
(all in first year): 2,232 x 30 min. per form = 1,117 hrs
(all in subsequent years): 208 x 30 min. per form = 104 hrs
Therefore, proposals in the NPRM, when promulgated as a final rule,
would result in a change to the total burden hours for this information
collection as follows:
In the first year: 63,893 [(38,000 -2,000 = 36,000) + 26,776 +
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
Estimated Annual Hour Burden for this NPRM: Year 1 = ([38,000
-2,000 = 36,000] + 26,776 + 1,117 = 63,893 hrs); Subsequent years =
([38,000 -2,000 = 36,000] + 2,500 + 104 = 38,604 hours).
National Environmental Policy
The agency has analyzed this proposal for the purpose of the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
has determined under DOT Order 5610.1C (September 18, 1979) that this
action does not require any environmental assessment. An environmental
impact statement is, therefore, not required.
List of Subjects
49 CFR Part 365
Administrative practice and procedure, Brokers, Buses, Freight
forwarders, Maritime carriers, Motor carriers, Moving of household
goods, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, the FMCSA proposes to amend
49 CFR part 365 as set forth below:
PART 365--RULES GOVERNING APPLICATIONS FOR OPERATING AUTHORITY
1. The authority citation for part 365 is revised to read as
Authority: 5 U.S.C. 553 and 559; 16 U.S.C. 1456; 49 U.S.C.
13101, 13301, 13901-13906, 14708, 31138, and 31144; 49 CFR 1.73.
2. Add a new subpart E to part 365 to read as follows:
Subpart E--Special Rules for Certain Mexican Carriers
365.501 Scope of rules.
365.505 Re-registration and fee waiver for certain applicants.
365.507 Review of the application.
365.509 Requirement to notify of change in applicant information.
Appendix A to Subpart E of Part 365--Form OP-1(MX) `` Application to
Register Mexican Carriers for Motor Carrier Authority Under the
North American Free Trade Agreement (NAFTA)
Subpart E--Special Rules for Certain Mexican Carriers
Sec. 365.501 Scope of rules.
The rules in this subpart govern the application by a Mexican-
domiciled motor carrier to provide transportation of property or
passengers in interstate commerce between Mexico and points in the
United States beyond the municipalities and commercial zones adjacent
to the border.
Sec. 365.503 Application.
(a) Each applicant applying under this subpart must submit an
application that consists of: Form OP-1 (MX), Form MCS-150--Motor
Carrier Identification Form, and Form BOC-3--Designation of Agents-
Motor Carriers, Brokers and Freight Forwarders.
(b) The FMCSA will only process your application if it meets the
(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
(d) You may obtain the application forms from any FMCSA Division
Office or download it from the FMCSA website at: http://
www.fmcsa.dot.gov/factsfigs/formspub.htm. Form OP-1 (MX) is also
published in Appendix A to this part.
Sec. 365.505 Re-registration and fee waiver for certain applicants.
(a) If you filed an application using Form OP-1(MX) before [Insert
date of publication of the final rule in the Federal Register], you are
required to file a new Form OP-1(MX) to update information about your
operations. You do not need to submit a fee when you file a new
application under this subpart.
(b) If you hold a Certificate of Registration issued before [Insert
date of publication of final rule in the Federal Register] authorizing
operations beyond the municipalities and commercial zones along the
United States-Mexicoan border, you are required to file an OP-1(MX) if
you want to continue those operations. You do not need to submit a fee
when you file a new application under this subpart.
(1) You must file the application by [Insert date 1 year after date
of publication of final rule in the Federal Register.].
(2) The FMCSA may suspend or revoke the Certificate of Registration
of any applicable holder that fails to comply with the procedures set
forth in this section.
(3) Certificates of Registration issued prior to [Insert date of
publication of final rule in the Federal Register] would remain valid
until the OP-1(MX) application filed according to paragraph (b) of this
section is processed.
Sec. 365.507 Review of the application.
(a) The FMCSA will review and act on each application submitted
under this subpart in accordance with the procedures set out in this
(b) When the FMCSA approves an application submitted under this
subpart, the approval will be conditional upon the completion, to the
satisfaction of the FMCSA, of a safety review under Sec. 385.21 of this
chapter within 18 months of the date of approval.
Sec. 365.509 Requirement to notify of change in applicant information.
(a) You must notify the FMCSA of any changes or corrections to the
information in Parts I, IA or II submitted on the Form OP-1(MX) or the
Form BOC-3--Designation of Agents--Motor Carriers, Brokers and Freight
Forwarders during the application process or after having been granted
operating authority. You must notify the FMCSA in writing within 45
days of the change or correction.
(b) If you fail to comply with paragraph (a) of this section, the
FMCSA may suspend or revoke your operating authority until you meet
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Appendix A to Subpart E of Part 365--Form OP-1(MX)--Application To
Register Mexican Carriers for Motor Carrier Authority Under the
North American Free Trade Agreement (NAFTA)
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Issued on: April 27, 2001.
Brian M. McLaughlin,
Associate Administrator for Policy and Program Development.
[FR Doc. 01-11035 Filed 5-1-01; 8:45 am]
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