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Revision of Regulations and Application Form for Mexico-Domiciled Motor Carriers To Operate in United States Municipalities and Commercial Zones on the United States-Mexico Border
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: March 19, 2002 (Volume 67, Number 53)]
[Rules and Regulations]
[Page 12651-12700]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19mr02-21]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 368 and 387
[Docket No. FMCSA-98-3297]
RIN 2126-AA33
Revision of Regulations and Application Form for Mexico-Domiciled
Motor Carriers To Operate in United States Municipalities and
Commercial Zones on the United States-Mexico Border
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule.
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SUMMARY: The FMCSA revises its regulations and form that relate to the
issuance of Certificates of Registration to those Mexico-domiciled
motor carriers (of property) that want to operate in the United States
only within the municipalities adjacent to Mexico in Texas, New Mexico,
Arizona, and California and within the commercial zones of such
municipalities (``border zones''). This rule also revises FMCSA's
regulations governing financial responsibility of motor carriers to
accurately reflect the requirements placed on these Mexico-domiciled
motor carriers. Other types of carriers that currently hold a
Certificate of Registration (such as exempt carriers that operate
beyond the border zones) must now apply under separate FMCSA
regulations that we are issuing in an interim final rule published
elsewhere in today's Federal Register. The revisions in this action are
part of FMCSA's efforts to ensure the safe operation of Mexico-
domiciled motor carriers in the United States. They will ensure that
the FMCSA receives adequate information to assess a new applicant's
safety program and its ability to comply with U.S. safety standards
before it is registered to operate in the United States. The FMCSA will
evaluate current certificate holders who re-file under these
regulations to determine if they meet U.S. safety standards and should
be permitted to continue operations within the border zones. As a
result of these changes, the agency also will be better able to
maintain an accurate census of registered carriers. Additionally, the
regulations have been updated to reflect the transfer of motor carrier
regulatory functions from the Federal Highway Administration (FHWA) to
FMCSA.
EFFECTIVE DATE: This final rule is effective April 18, 2002.
FOR FURTHER INFORMATION CONTACT: Joanne Cisneros, (909) 653-2299,
Transborder Office, FMCSA, P.O. Box 530870, San Diego, CA 92153-0870.
Office hours are from 7:45 a.m. to 4:15 p.m., p.t., Monday through
Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Background
Since 1982, significant limitations have been in place concerning
operations by Mexico-domiciled motor carriers in the United States. A
moratorium has existed on grants of operating authority under the
jurisdiction of the former Interstate Commerce Commission (ICC). Access
has been allowed only for certain motor carriers that fell outside the
ICC's licensing jurisdiction. These carriers receive Certificates of
Registration by filing Form OP-2 under the provisions of what is now 49
CFR part 368. Until the effective date of this rulemaking, Mexico-
domiciled carriers eligible for Certificates of Registration were those
operating solely within the border zones and certain motor private
carriers and carriers of exempt goods who operated beyond the border
zones.
Summary of the NPRM
The FMCSA published the notice of proposed rulemaking (NPRM) for
this action on May 3, 2001 (66 FR 22328). We proposed to use the Form
OP-2 (with substantial changes) and the issuance of Certificates of
Registration only for those carriers whose operations are limited to
the border zones. The FMCSA believes that despite the opportunity for
Mexico-domiciled carriers to operate beyond the border zones, there are
a substantial number of carriers that are most familiar with the
Certificate of Registration and want to continue operating in a limited
area.
We additionally proposed that all current holders of Certificates
of Registration be required to file new forms with the FMCSA. Those
carriers who wish to continue operating only in the border zones would
file the Form OP-2 in accordance with the procedures in part 368. All
other current holders of Certificates of Registration who want to
operate beyond the border zones would file Form OP-1(MX) like all other
Mexico-domiciled property carriers seeking the ability to operate under
the implementation of the NAFTA entry provisions.
The FMCSA proposed to modify parts 368 and 387 and Form OP-2 as
part of our implementation of the NAFTA cross-border access provisions.
We asked for comments on our proposal to reissue all existing
Certificates of Registration and to require current holders of
Certificates of Registration to submit additional safety information
about their operations.
The NPRM was one of three proposals related to carriers operating
or seeking to operate between Mexico and the United States published in
the May 3, 2001, Federal Register. The FMCSA made a conscious decision
to propose retaining two different application forms and processes, the
OP-2 and the OP-1(MX), under 49 CFR part 368 and part 365,
respectively. We solicited comments on the need to maintain the
Certificate of Registration process. A separate NPRM (66 FR 22371)
proposed and sought comments on changes to Form OP-1(MX) and 49 CFR
part 365. The third NPRM (66 FR 22415) explained the proposed safety
monitoring system for Mexico-domiciled carriers operating in the United
States. These three proposals are part of a coordinated effort to
assess and monitor the safety performance of Mexico-domiciled carriers
before and as they operate in the United States.
Discussion of Comments to the NPRM
In response to the three NPRMs relating to NAFTA implementation,
the FMCSA received over 200 comments from motor carrier associations,
safety advocates, environmental interest groups, law enforcement
agencies, motor carriers, labor groups, State and local government
agencies, economic and community development associations, and private
citizens. More than 90 percent of the comments opposed the proposed
safety monitoring system or the border opening. Most of the comments
focused on the proposed safety monitoring system (66 FR 22415) and will
be fully discussed elsewhere in today's Federal Register. It should be
noted, however, that these and other comments urging a delay in the
implementation of NAFTA assume that the regulations published today
``open the border'' or lift the current moratorium on the grant of
operating authority. The regulations do neither. The President, not the
FMCSA, has that authority pursuant to 49 U.S.C. 13902. The President
has announced that the United States will comply with its NAFTA
obligations regarding Mexico-domiciled motor carrier access in a manner
that will not weaken motor carrier safety. The regulations help ensure
motor carrier safety and provide an application process for Mexico-
domiciled carriers seeking to operate within the United States.
A large percentage of the commenters addressed all three rules
together in a single submission that was filed in one
[[Page 12653]]
or all three public dockets. We have carefully considered them and have
revised the OP-2 application form and the regulations governing the
application process as noted in the preamble sections titled
``Discussion of the Final Rule'' and ``Final Revisions to the Form OP-
2.'' In this section, FMCSA discusses the comments that directly relate
to the proposed changes in parts 368 and 387, as well as some comments
that related to all the proposals.
The Friends of the Earth, Natural Resources Defense Council, Sierra
Club, and Center for International Law (Friends of the Earth et al.)
jointly commented that FMCSA is required to perform additional analysis
to meet the requirements of the National Environmental Policy Act
(NEPA) (42 U.S.C. 4321 et seq.) and Executive Order 13045 (62 FR 19885,
April 23, 1997), concerning the protection of children from
environmental and health and safety risks. The International
Brotherhood of Teamsters (Teamsters) also expressed this viewpoint. The
Friends of the Earth et al. believe that 40 CFR 1501.3(b) requires that
if DOT is not certain that an environmental impact statement is
required, then it must first prepare an environmental assessment.
Regarding compliance with Executive Order 13045, the Friends of the
Earth et al. believe that this action presents increased pollution and
safety concerns that pose a disproportionate risk to children.
The FMCSA is preparing an agency order to meet the requirements of
DOT Order 5610.1C (that establishes the Department of Transportation's
policy for compliance with NEPA by the Department's administrations).
The FMCSA has conducted a programmatic environmental assessment (PEA)
of the three rulemakings in accordance with the DOT Order and the
regulations of the Council on Environmental Quality. A discussion of
the PEA and its findings and the FMCSA's responsibilities under E.O.
13045 is presented later in the preamble under ``Regulatory Analyses
and Notices.'' A copy of the PEA is in the docket to this rulemaking.
The Attorney General for the State of California submitted a
comment in which he asserted that the FMCSA would be required to
perform a ``conformity determination'' pursuant to the Clean Air Act
(CAA), before finalizing these rulemakings. Under the CAA, Federal
agencies are prohibited from supporting in any way, any activity that
does not conform to an approved State Implementation Plan (SIP), (42
USC 7006). EPA regulations implementing this provision require Federal
agencies to determine whether an action would conform with the SIP (a
``conformity determination''), before taking the action (40 CFR
93.150). The Attorney General asserts that the FMCSA must make a
conformity determination before taking final action to implement
regulations that would allow Mexican trucks to operate beyond the
border. The Attorney General provided technical information to support
his assertion that allowing Mexican trucks to operate beyond the border
would likely not be in conformity with California's SIP.
We have reviewed our obligations under the CAA and believe that we
are in compliance with the general conformity requirements as
implemented by the U.S. Environmental Protection Agency (EPA). EPA's
implementing regulations exempt certain actions from the general
conformity determination requirements. Actions which would result in no
increase in emissions or clearly a de minimis increase, such as
rulemaking (40 CFR 93.153(c)(iii)), are exempt from requiring a
conformity determination. In addition, actions which do not exceed
certain threshold emissions rates set forth in 40 CFR 93.153(b) are
also exempt from the conformity determination requirements. The FMCSA
rulemakings meet both of these exemption standards. First, as noted
elsewhere in this preamble to this rule, the actions being taken by the
FMCSA are rulemaking actions to improve FMCSA's regulatory oversight,
not an action to modify the moratorium and allow Mexican trucks to
operate beyond the border. Second, the air quality impacts from each of
the FMCSA's rules neither individually nor collectively exceed the
threshold emissions rates established by EPA (see Appendix C of the
Environmental Assessment accompanying these rulemakings for a more
detailed discussion of air quality impacts). As a result, we believe
that FMCSA's rulemaking actions comply with the CAA requirements and
that no conformity determination is required.
The Laredo (Texas) Chamber of Commerce, the City of Laredo, and the
Laredo Development Foundation all submitted comments that specifically
addressed the proposed regulations for Mexico-domiciled carriers that
operate solely within the border zones. They are concerned that no
additional requirements be put in place to slow down traffic through
the border entry facilities. The City of Laredo believes that requiring
drayage operations drivers, who operate solely within the border zones,
to speak English, as well as understand English signage, is
unnecessary.
The FMCSA believes that all motor carriers and drivers under its
jurisdiction must meet all applicable motor carrier safety regulations
when operating within the United States, regardless of the nature of
operations. Since many of the Mexican short-haul or ``drayage'' drivers
have been operating within the border zones for some time, most of them
already comply with the English language proficiency requirements
established for all commercial drivers operating in the United States
under 49 CFR 391.11.
The Chamber of Commerce (COC) and Teamsters support the proposal to
maintain a separate application form and procedures for Mexico-
domiciled carriers that operate solely within the border zones. The COC
does not want the Mexican short-haul operations to be identified
together with long-haul operations operating beyond the border zones.
On the other hand, the Commercial Vehicle Safety Alliance (CVSA),
the Camara Nacional del Autotransporte de Cargo (CANACAR) and American
Trucking Associations, Inc. (ATA) recommend a single application form
and procedures. CVSA recommends combining the OP-2 and OP-1(MX) forms
because they are virtually identical. CANACAR believes that the
proposed rules, in creating a distinction between applicants who seek
to operate only in the border zones and those that seek to operate
beyond the border zones, are in conflict with the implementation
schedule established in the annex to NAFTA Chapter XII. The fourth
phase of the implementation schedule was to allow Mexico-domiciled
property carriers to operate from anywhere in Mexico to any point in
the United States. CANACAR believes that the proposals set forth in the
NPRM to this action appear to violate this principle.
The FMCSA is maintaining a separate registration system for Mexico-
domiciled drayage operations, in part, so that we can maintain a more
accurate census of these carriers, better assess their safety trends
and operational characteristics, and track the impact of opening the
border on dedicated drayage operations. Maintaining a separate
Certificate of Registration will also enable those Mexico-domiciled
carriers who wish to continue limited operations within the border
zones to do so without incurring extra expenses for such things as
mandatory continuous insurance coverage and additional fees for beyond
border zone operations. This rule does not violate the fourth phase of
the NAFTA implementation schedule
[[Page 12654]]
because it does not prohibit current holders of Certificates of
Registration from requesting the broader operating authority available
to Mexico-domiciled carriers under part 365 (as provided in an interim
final rule published elsewhere in today's Federal Register).
The Teamsters support the proposal to require all current holders
of Certificates of Registration to re-register, but believe that the
one-year time period in which current holders of Certificates of
Registration must re-file an OP-2 is too long. The Teamsters
acknowledge the need to allow currently operating carriers sufficient
time to prepare the application form but recommend that the re-
registration period be shortened to 6 months.
The FMCSA believes that a longer re-registration period is required
to permit border-zone carriers to continue operating within the border
zones while modifying their vehicle fleets to comply with an FMCSA
proposed rule published elsewhere in today's Federal Register. This
rule would require that all commercial vehicles operated in the United
States display labels certifying compliance with the Federal Motor
Vehicle Safety Standards (FMVSS). However, to avoid disrupting existing
border zone operations, the rule would allow border-zone carriers to
operate vehicles within the border zone without a certification label
for 24 months after the effective date of the rule, provided these
vehicles were operated within the border zones before the rule's
effective date. The expanded registration period will also provide
adequate time to process the large number of applications anticipated.
Thus, the final rule provides for an 18-month re-registration
requirement.
The Owner-Operator Independent Drivers Association (OOIDA)
commented in favor of the current system for Certificates of
Registration that does not include publication of applications in the
FMCSA Register.
However, the Teamsters oppose proposed Sec. 368.6(f), which states
that FMCSA will not provide notice of OP-2 filings in the Federal
Register or FMCSA Register or permit comments, protests, or public
hearings regarding such filings. This section is essentially a
recodification of the last three sentences in former Sec. 368.3(a).
Applications for Certificates of Registration have not been subject to
a public notice and protest requirement since procedures for handling
such applications were first established by the ICC in 1985. The
predecessor to part 368, 49 CFR part 1171, expressly prohibited public
protests and oral hearings. Only the Department of Transportation was
permitted to challenge an application. When the authority to issue
Certificates of Registration was transferred to DOT effective January
1, 1996, part 1171 was adopted by the Federal Highway Administration
and redesignated as part 368 without substantive change, except that
the DOT intervention provision was removed as no longer necessary.
Based on 16 years experience in administering the border zone
registration procedures, we are not convinced that providing a new
right of public protest will measurably impact public safety.
Operations under these rules will be confined to a limited geographical
territory and we will be carefully scrutinizing border zone carriers
through the application process and during the 18-month provisional
operating period following issuance of the Certificate of Registration.
Under these circumstances, we do not believe that it is necessary to
change the regulations to accommodate the Teamsters' concerns.
The Citizens for Reliable and Safe Highways (CRASH) commented that
safety audits of all Mexico-domiciled carriers must be conducted before
they are allowed to operate in the United States. FMCSA received the
same comment from many private citizens who identified themselves as
allied with CRASH. The CVSA, Automobile Association of America (AAA),
American Association of Motor Vehicle Administrators (AAMVA), Public
Citizen, Transportation Consumer Protection Council, and Advocates for
Highway and Auto Safety (AHAS) all commented that a paper-based system
for allowing Mexican vehicles to cross the border was insufficient and
recommended safety audits before allowing Mexico-domiciled carriers to
operate in the United States.
The FMCSA does not agree that pre-operating safety audits are a
necessary addition to the on-going process of issuing Certificates of
Registration. Mexico-domiciled carriers have been conducting drayage
operations within the border zones for more than 19 years. They are
already familiar with U.S. motor carrier safety standards. The FMCSA
will verify the information provided by OP-2 applicants using
information from Mexican and U.S. government databases. In addition,
OP-2 applicants will also be subject to a safety monitoring program,
including a safety audit conducted within the 18-month provisional
operating period (as fully described in an interim final rule published
elsewhere in today's Federal Register).
On the other hand, long-haul operations within the United States by
Mexico-domiciled carriers have not been authorized for some time.
Mexico-domiciled applicants for long-haul authority will likely accrue
more vehicle miles over a larger geographical territory than drayage
operators and are less familiar with U.S. safety standards. For these
reasons, section 350 of the 2002 DOT Appropriations Act (Pub. L. 107-
87) requires FMCSA to subject long-haul carriers, but not border-zone
carriers, to pre-authority safety examinations before being granted
provisional operating authority to begin operations within the United
States.
A company that rents recyclable pallets and plastic containers
(CHEP USA), Free Trade-San Antonio, and The National Private Truck
Council commented in favor of the proposed regulations.
United Parcel Service (UPS) commented that the application and
regulations for Mexico-domiciled carriers requesting Certificates of
Registration should identify express delivery as a separate kind of
carrier operation. UPS explains that this distinction would enable the
United States to accelerate the timeline for lifting the moratorium for
express delivery services, without awaiting action on general trucking.
We do not see the need at this time for the rules to distinguish
between express delivery services and general trucking services. We do
not expect that the moratorium will be lifted for express delivery
services before the lifting of the moratorium on general trucking. In
addition, the United States maintains a reservation under the NAFTA on
the transportation of goods other than international cargo between
points in the United States, and the reservation covers both express
delivery services and other motor carrier services.
In response to comments about the need for ensuring that vehicles
operated by Mexico-domiciled motor carriers comply with the applicable
FMVSSs, the FMCSA has published elsewhere in today's Federal Register
an NPRM that would require all motor carriers operating in the United
States to use commercial motor vehicles that display a label certifying
compliance with all applicable FMVSSs in effect on the date of
manufacture. The FMCSA will enforce these safety standards through pre-
authorization safety examinations of Mexican long-haul carriers and
roadside inspections of all Mexico-domiciled carriers, including
inspections at the border. The FMCSA's State partners will accomplish
enforcement through roadside and border inspections.
[[Page 12655]]
Roadside inspections provide a means of ensuring that vehicles meet the
applicable FMVSSs in effect on the date the vehicle was manufactured.
Title 49 CFR part 393 of the Federal Motor Carrier Safety
Regulations (FMCSRs) currently includes cross-references to most of the
FMVSSs applicable to heavy trucks and buses. The rules require that
motor carriers operating in the United States, including Mexico-
domiciled carriers, must maintain the specified safety equipment and
features that the National Highway Traffic Safety Administration
(NHTSA) requires vehicle manufacturers to install. Failure to maintain
these safety devices or features is a violation of the FMCSRs. If the
violations are discovered during a roadside inspection, and they are
serious enough to meet the current out-of-service criteria used in
roadside inspections (i.e., the condition of the vehicle is likely to
cause an accident or mechanical breakdown), the vehicle would be placed
out of service until the necessary repairs are made. The FMCSA also has
the option of imposing civil penalties for violations of 49 CFR part
393. Any FMVSS violations that involve noncompliance with the standards
presently incorporated into part 393 could subject motor carriers to a
maximum civil penalty of $10,000 per violation. If the FMCSA determines
that Mexico-domiciled carriers are operating vehicles that do not
comply with the applicable FMVSSs, this information could be used to
take appropriate enforcement action for making a false certification on
the application for operating authority.
In conjunction with our NPRM that would require all commercial
motor vehicles operating in the United States to have FMVSS
certification labels, NHTSA is taking three separate actions relating
to the certification label. The first action is publication of a draft
policy statement that will permit vehicle manufacturers to
retroactively apply a label to a commercial motor vehicle certifying
that the vehicle complied with all applicable FMVSSs in effect at the
time it was originally manufactured. NHTSA recognizes that there are
many commercial motor vehicles used by motor carriers in Mexico and
Canada that were manufactured in accordance with the FMVSSs, but were
not certified as complying with those standards because the vehicles
were manufactured for sale and use in Canada or Mexico. NHTSA will,
therefore, permit retroactive certification, but only if the
manufacturer has sufficient basis for doing so.
NHTSA is also publishing two NPRMs relating to FMVSS certification
requirements. One proposes recordkeeping requirements for foreign
manufacturers that retroactively certify vehicles; the other proposes
to codify, in 49 CFR part 591, NHTSA's long-standing interpretation of
the term ``import,'' as used in the National Traffic and Motor Vehicle
Safety Act of 1966, Public Law 89-563, to include bringing a commercial
motor vehicle into the United States for the purpose of transporting
cargo or passengers.
Discussion of the Final Rule
The FMCSA has made changes in the final rule to the proposed
revisions to part 368, based on the comments, section 350 of the 2002
DOT Appropriations Act, and our own review of the proposal.
First, Sec. 368.3 has been revised to allow both hard-copy and
electronic submission of required information on designation of process
agents (Form BOC-3) as part of the application process. The FMCSA
currently allows only process agent services to electronically file the
Form BOC-3. If a carrier elects to use a process agent service, it must
include a letter to that effect with the Form OP-2 and ensure that the
service electronically files the Form BOC-3 with the FMCSA. Otherwise,
the hardcopy Form BOC-3 must accompany the application. The carrier may
not begin operations until the Form BOC-3 has been filed with the
FMCSA.
Second, the wording of Sec. 368.5 has been revised to make clear
that a current Certificate of Registration remains valid only until the
FMCSA acts on an application for re-registration in the same manner
that it will act on new applications.
The FMCSA has revised the title of Sec. 368.6 in both the table of
sections and the regulatory text to ``FMCSA action on the application''
to accurately reflect how the FMCSA will consider and act on each
application. The section now provides that the FMCSA will validate all
data and certifications in an application with information in its own
databases and in the appropriate databases of the Mexican Government to
which it has access as part of the NAFTA implementation process. The
FMCSA will issue a provisional Certificate of Registration if it
determines that the application is consistent with the FMCSA's safety
fitness policy. We will also assign a distinctive USDOT Number that
distinguishes the carrier as a Mexico-domiciled carrier authorized to
operate solely within the border zones. The provisional Certificate of
Registration cannot become permanent for at least 18 months, until the
carrier has successfully completed the safety monitoring program,
including a safety audit.
Section 368.7 has been modified to require that the copy of the
Certificate of Registration carried on board the vehicle be made
available upon request to authorized inspectors and enforcement
officers.
Finally, the FMCSA has revised Sec. 387.7 to more accurately
describe those Mexico-domiciled carriers excepted from certain
financial responsibility requirements. These carriers operating solely
in municipalities in the United States on the U.S.-Mexico international
border or within the commercial zones of such municipalities may obtain
insurance coverage for periods of 24 hours or longer rather than
continuous coverage.
Final Revisions to the Form OP-2
The final rule reflects numerous typographical corrections and
adjustments to the OP-2 application form to make it consistent with the
OP-1(MX) form. All requests for supplemental information that must
accompany the application are in bold typeface so that they are
conspicuous to the applicant. The substantive revisions are discussed
below.
The OP-2 application instructions have been revised to discontinue
the requirement that applicants submit Internal Revenue Service (IRS)
Form 2290, Schedule 1 (Schedule of Heavy Highway Vehicles) with the OP-
2 application. Unlike the OP-2 registration procedure, taxes imposed by
26 U.S.C. 4481 are assessed annually. The IRS Form 2290 would only
provide evidence of compliance for the current year. However, the
applicant must still certify compliance with 26 U.S.C. 4481 under
Section VII of the application.
The instructions clarify the definition of ``applicant'' for
purposes of determining who must sign the various Certifications and
the Section VIII Application Oath.
The instructions caution applicants to enter only the city code and
telephone numbers when listing Mexican telephone numbers on the form
because previous applicants often submitted invalid or incomplete
telephone numbers.
Insurance instructions notify applicants that they must carry a
current DOT MCS-90 and evidence of insurance on board the vehicle when
operating within the United States.
The information on how to receive additional assistance in
completing the
[[Page 12656]]
Forms OP-2 and MCS-150 was revised to list a toll-free telephone number
accessible from Mexico. We also updated the information for obtaining
assistance with hazardous materials registration procedures and
regulations.
The form instructions state that applicants that use a process
agent service to designate multiple agents for service of process must
attach a letter to the application informing the FMCSA of this option.
The applicant must also ensure that the service electronically files
the Form BOC-3 with the FMCSA within 90 days of the submission of the
OP-2 application. The applicant is also notified that it may not begin
operations until the Form BOC-3 has been filed with FMCSA.
The FMCSA has added two questions in Section IA regarding whether
an applicant has held provisional operating authority or a provisional
Certificate of Registration that was revoked. If the applicant answers
yes to this question, the applicant must explain how it has corrected
the deficiencies that resulted in the revocation, explain what
effectively functioning basic safety management systems it now has in
place, and provide all information and documents that support its case.
The FMCSA has corrected references in Section IA, and in the
corresponding instructions, to an ``SCT registration number.'' An
applicant must be registered with the Mexican Government's Secretaria
de Comunicaciones y Transportes (SCT) to be issued a Certificate of
Registration. However, the SCT does not issue an SCT registration
number. It uses the RFC number, a Mexican Federal Taxpayer Registration
identifier issued by a separate Government agency, to track the
carrier's information in the SCT database. A company is issued a
Registro Federal de Contribuyente; individuals are issued a Registro
Federal de Causante. The applicant must complete Question 5a under
Section IA based upon the applicant's form of business: (1) If the
applicant is a sole proprietorship, enter the Registro Federal de
Causante; (2) all other business forms should complete Question 5a
using the Registro Federal de Contribuyente.
We have deleted a redundant question regarding the applicant's
domicile from Section IA and Ownership and Control information from
Section II. This information was used to substantiate claims that a
carrier was U.S.-owned or controlled and therefore, eligible to operate
beyond the border zones under a Certificate of Registration. With the
implementation of NAFTA's access liberalization provisions, Mexico-
domiciled carriers applying to operate beyond the border zones will no
longer file the OP-2 form.
Several safety certifications have been modified or added to
Section V. We have added a single safety certification for applicants
that are exempt from the Federal Motor Carrier Safety Regulations
because of the weight of their vehicles and because they will not
transport hazardous materials (as was discussed in the proposed form
instructions but inadvertently omitted from the proposed form). These
applicants must certify that they will observe safe operating practices
and comply with applicable State, local and tribal safety laws.
Under Driver Qualifications, applicants must certify, consistent
with 49 CFR 391.23, that they will investigate their drivers' 3-year
employment and driving histories. The certification statement
concerning the need for carriers to establish a system and instructions
for drivers to report criminal convictions has been removed. Current
regulations only require domestic drivers to report violations of motor
vehicle traffic laws and ordinances. The certification statement
relating to the use of properly licensed drivers has been modified to
require that the driver's Licencia Federal de Conductor is registered
in the SCT database.
The four certification statements proposed under certification
section V.8, pertaining to requirements that must be in place once
operations within the United States have begun, have been modified to
emphasize that the requirements apply only after the Mexico-domiciled
carrier has begun operations within the United States and have been
integrated into the Hours of Service, Driver Qualifications, and
Vehicle Condition certification sections, as appropriate.
In response to comments from ATA, Teamsters, OOIDA, and the
Transportation Trades Department of the AFL-CIO, we have extensively
revised the Hazardous Materials (HM) and Cargo Tank certification
statements. The HM training certification was modified to cite the
relevant HM training regulations (49 CFR part 172, subpart H and 49 CFR
177.816) and the specific hazardous materials safety compliance
information that must accompany the application.
We reworded the certification statement regarding the establishment
of a system and procedures for inspecting, repairing and maintaining
``vehicles for HM transportation in a safe condition.'' The Hazardous
Materials Regulations (HMR) require a system and procedures for
inspection, repair and maintenance of reusable hazardous materials
packages in a safe condition. The vehicle inspection, repair and
maintenance requirement is covered in the Vehicle Condition
certification statements.
We added a new certification statement requiring carriers to ensure
that all HM trucks are marked and placarded in compliance with 49 CFR
part 172, subparts D and F.
The HM registration certification statement, which is not
restricted to Cargo Tank carriers, has been corrected and moved to the
Hazardous Materials section.
The Section VII--Compliance Certification statement concerning
process agent(s) has been modified to replace the phrase ``judicial
filings and notices'' with ``filings and notices.'' A new Compliance
Certification statement has been added to ensure those Mexico-domiciled
carriers whose registration has been suspended or revoked from
operating any motor vehicle in the United States are not reapplying for
operating authority or a Certificate of Registration during the period
of suspension or sooner than 30 days after the date of revocation. A
signature line has been placed beneath the Compliance Certification
statements, consistent with Section V--Safety Certifications and
Section VI--Household Goods Arbitration Certifications.
Certain other changes were made to the Section--VII Compliance
Certifications after discussions with the U.S. Department of Labor and
the U.S. Environmental Protection Agency. The proposed Form OP-2
included a certification that the applicant is willing and able to
comply with United States labor laws. Although the certification is
included in a section that is prefaced by the direction ``All
applicants must certify as follows:'', the instructions for the form,
after first stating that FMCSA considers compliance with labor laws to
be ``extremely important,'' then indicate that ``registration will not
be withheld based solely on the failure by an applicant to certify that
it is willing and able to comply with such [DOL and OSHA]
requirements
* * *.'' The FMCSA has removed those certification statements and the
accompanying instructions. We have added new language that compliance
with all pertinent Federal, State, local and tribal statutory and
regulatory requirements, including labor and environmental laws, is
mandatory. Such compliance includes producing requested records for
review and inspection, and that inspectors of the Immigration and
[[Page 12657]]
Naturalization Service at the port of entry must determine the driver
of the vehicle meets the requirements under the Immigration and
Nationality Act, 8 U.S.C. 1101 et seq. The statements do not require
certification--they are informational in nature--and have been placed
after the signature line.
The Filing Fee Policy and Computation Box that formerly appeared in
the form instructions have been moved to the back of the form because a
carrier cannot provide filing fee information until completing Section
III--Types of Registration. The fee policy also discloses that the
FMCSA will place a 30-day hold on the application if the filing fee is
paid by personal check.
Finally, FMCSA will translate the form into Spanish for applicants
to understand what each question asks and what types of answers they
need to provide.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and Department
of Transportation Regulatory Policies and Procedures
The FMCSA has determined that this action is a significant
regulatory action within the meaning of Executive Order 12866, and is
significant within the meaning of Department of Transportation
regulatory policies and procedures (44 FR 11034, February 26, 1979)
because of public interest. It has been reviewed by the Office of
Management and Budget. However, it is anticipated that the economic
impact of the revisions in this rulemaking would be minimal. The new or
revised Form OP-2 is intended to foster and contribute to safety of
operations, adherence to U.S. law and regulations, and compliance with
U.S. insurance and tax payment requirements on the part of Mexico-
domiciled carriers.
Nevertheless, the subject of safe operations by Mexico-domiciled
carriers in the United States will likely generate considerable public
interest within the meaning of Executive Order 12866. The manner in
which the FMCSA carries out its safety oversight responsibilities with
respect to this international motor carrier transportation may be of
substantial interest to the domestic motor carrier industry, the
Congress, and the public at large.
The Regulatory Evaluation analyzes the costs and benefits of this
final rule and the two companion NAFTA-related interim final rules
published elsewhere in today's Federal Register. Because these rules
are so closely interrelated, we did not attempt to prepare separate
analyses for each rule.
The evaluation estimated costs and benefits based on three
different scenarios, with a high, low and medium number of Mexico-
domiciled carriers assumed covered by the rules. The costs of these
rules are minimal under all three scenarios. Over 10 years, the costs
range from $53 million for the low scenario to approximately $76
million for the high scenario. Forty percent of these costs are borne
by the FMCSA, while the remaining costs are paid by Mexico-domiciled
carriers. The largest costs are those associated with carrying out
safety monitoring, including safety audits, during the 18-month period
when Mexico-domiciled motor carriers hold provisional Certificates of
Registration and the loss of a Mexico-domiciled carrier's ability to
operate in the United States.
The FMCSA used the cost effectiveness approach to determine the
benefits of these rules. This approach involves estimating the number
of crashes that would have to be deterred in order for the proposals to
be cost effective. Over ten years, the low scenario would have to deter
640 forecast crashes to be cost beneficial, the medium scenario would
have to deter 838, and the high scenario would have to deter 929. While
the overall number of crashes to be avoided under the medium and high
scenario is fairly high, the number falls rapidly over the 10-year
analysis period and beyond. The tenth year deterrence rate is one-
quarter to one-sixth the size of the first year's rate.
A copy of the Regulatory Evaluation is in the docket for this
rulemaking.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (Pub. L. 96-354, 5 U.S.C. 601-
612), as amended by the Small Business Regulatory Enforcement and
Fairness Act (Pub. L. 104-121), requires Federal agencies to analyze
the impact of rulemakings on small entities, unless the agency
certifies that the rule will not have a significant economic impact on
a substantial number of small entities.
The United States did not have in place a special system to ensure
the safety of Mexico-domiciled carriers operating in the United States.
Mexico-domiciled carriers will be subject to all the same safety
regulations as domestic carriers. However, FMCSA's enforcement of the
FMCSRs has become increasingly data dependent in the last several
years. Several programs have been put in place to continually analyze
crash rates, out-of-service (OOS) rates, compliance review records, and
other data sources to allow the agency to focus on high-risk carriers.
This strategy is only effective if the FMCSA has adequate data on
carriers' size, operations, and history. Thus, a key component of this
and the companion application rule for long-haul carriers, is the
requirement that Mexico-domiciled carriers operating in the United
States must complete a Form MCS-15--Motor Carrier Identification
Report, and must update their Form OP-1(MX)--Application to Register
Mexican Carriers for Motor Carrier Authority to Operate Beyond U.S.
Municipalities and Commercial Zones on the U.S.-Mexico Border or Form
OP-2--Application for Mexican Certificate of Registration for Foreign
Motor Carriers and Foreign Motor Private Carriers Under 49 U.S.C. 13902
when their situation changes. This will allow the FMCSA to better
monitor these carriers and to quickly determine whether their safety or
OOS record changes.
The more stringent oversight procedures established in our safety
monitoring interim final rule, RIN 2126-AA35, will also allow the FMCSA
to respond more quickly when safety problems emerge. Required safety
audits for short-haul carriers, and compliance reviews and CVSA
inspections for long-haul carriers, will provide the FMCSA with more
detailed information about Mexico-domiciled carriers, and allow the
FMCSA to act appropriately upon discovering safety problems.
The objective of these rules is to enhance the safety of Mexico-
domiciled carriers operating in the United States. The rules describe
what additional information Mexico-domiciled carriers will have to
submit, and outline the procedure for dealing with possible safety
problems.
The safety monitoring system, the safety certifications and other
information to be submitted in the OP-1(MX) and OP-2 applications and
the pre-authorization safety audit for long-haul carriers are means of
ensuring that: (1) Mexico-domiciled applicants are sufficiently
knowledgeable about safety requirements before commencing operations (a
prerequisite to being able to comply); and (2) their actual operations
in the United States are conducted in accordance with their application
certifications and the conditions of their registrations.
These rules will primarily affect Mexico-domiciled small motor
carriers who wish to operate in the United States. The amount of
information these carriers will have to supply to the FMCSA has been
increased, and we estimate that they will spend two additional hours
gathering data for the
[[Page 12658]]
OP-1(MX) and OP-2 application forms. All Mexico-domiciled carriers will
have to undergo some type of safety audit after they receive
provisional registration; those granted provisional operating authority
for transportation beyond the border zones must demonstrate continuous
compliance with motor vehicle safety standards through display of a
valid CVSA inspection decal and compliance reviews. We presented three
growth scenarios in the regulatory evaluation: a high option, with
11,787 Mexico-domiciled carriers in the baseline; a medium scenario,
with 9,500 Mexico-domiciled carriers in the baseline; and a low
scenario, with 4,500 Mexico-domiciled carriers in the baseline. Under
all three options, the FMCSA believes that the number of applicants
will match approximately that observed in the last few years before
this publication date, approximately 1,365 applicants per year.
A review of the Motor Carrier Management Information System (MCMIS)
census file reveals that the vast majority of Mexico-domiciled carriers
are small, with 75 percent having three or fewer vehicles. Carriers at
the 95th percentile had only 15 trucks or buses.
These rules should not have any impact on small U.S.-domiciled
motor carriers.
The regulatory evaluation includes a description of the
recordkeeping and reporting requirements of these rules. Applicants for
both the OP-1(MX) and OP-2 will also have to submit the Form MCS-150
and the Form BOC-3-Designation of Agent for Service of Process. In
addition, Mexico-domiciled carriers will have to notify the FMCSA of
any changes to certain information.
The MCS-150 is approximately two pages long. In addition to
requiring basic identifying information, it requires that carriers
state the type of operation they run, the number of vehicles and
drivers they use, and the types of cargo they haul. The BOC-3 Form
merely requires the name, address and other information for a domestic
agent to receive legal notices on behalf of the motor carrier. The
rules also include other modest changes in the OP-1(MX) and OP-2 forms.
None of these forms requires any special expertise to complete. Any
individual with knowledge about the operations of a carrier should be
able to fill out these forms.
The FMCSA is not aware of any other rules that duplicate, overlap
with, or conflict with these rules.
The FMCSA did not establish any different requirements or
timetables for small entities. As noted above, we do not believe these
requirements are onerous. Mexico-domiciled carriers applying to operate
solely within the border zones will be required to spend two extra
hours to complete the relevant forms. They also must undergo one safety
audit during the 18-month period while holding provisional Certificates
of Registration at four hours each and have their trucks inspected more
frequently. The Part 385 rule would not achieve its purposes if small
entities were exempt. In order to ensure the safety of all Mexico-
domiciled carriers, the rule must have a consistent procedure for
addressing safety problems. Exempting small motor carriers (which, as
was noted above, are the vast majority of Mexico-domiciled carriers who
would operate in the United States) would defeat the purpose of these
rules.
The FMCSA did not consolidate or simplify the compliance and
reporting requirements for small carriers. Small U.S.-domiciled
carriers already have to comply with the paperwork requirements in Part
365. There is no evidence that domestic carriers find these provisions
confusing or particularly burdensome. Apropos the Part 385 provisions,
we believe the requirements are fairly straightforward, and it would
not be possible to simplify them. A simplification of any substance
would make the rule ineffectual. Given the compelling interest in
guaranteeing the safety of Mexico-domiciled carriers operating in the
United States, and the fact that the majority of these carriers are
small entities, no special changes were made.
Therefore, the FMCSA certifies that this rule will not have a
significant impact on a substantial number of small entities.
Executive Order 13211 (Energy Supply, Distribution, or Use)
We have analyzed this action under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. This action is not a significant energy action
within the meaning of section 4(b) of the Executive Order because as a
procedural action it is not economically significant and will not have
a significant adverse effect on the supply, distribution, or use of
energy.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; 2 U.S.C.
1532) requires each agency to assess the effects of its regulatory
actions on State, local, and tribal governments and the private sector.
Any agency promulgating a final rule likely to result in a Federal
mandate requiring expenditures by a State, local, or tribal government
or by the private sector of $100 million or more in any one year must
prepare a written statement incorporating various assessments,
estimates, and descriptions that are delineated in the Act. The FMCSA
has determined that the changes in this rulemaking would not have an
impact of $100 million or more in any one year. The Federal Government
reimburses inspectors, funds facilities, and provides support through
the MCSAP grant program.
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity and reduce burden.
Executive Order 13045 (Protection of Children)
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (April 23, 1997, 62 FR 19885), requires
that agencies issuing ``economically significant'' rules that also
concern an environmental health or safety risk that an agency has
reason to believe may disproportionately affect children must include
an evaluation of the environmental health and safety effects of the
regulation on children. Section 5 of Executive Order 13045 directs an
agency to submit for a ``covered regulatory action'' an evaluation of
its environmental health or safety effects on children.
The agency has determined that this rule is not a ``covered
regulatory action'' as defined under Executive Order 13045. First, this
rule is not economically significant under Executive Order 12866
because the FMCSA has determined that the changes in this rulemaking
would not have an impact of $100 million or more in any one year. The
costs range from $53 to $76 million over 10 years. Second, the agency
has no reason to believe that the rule would result in an environmental
health risk or safety risk that would disproportionately affect
children. Mexico-domiciled motor carriers who intend to operate
commercial motor vehicles anywhere in the United States must comply
with current U.S. Environmental Protection Agency regulations and other
United States environmental laws under this rule and others being
published elsewhere in today's Federal Register. Further, the agency
has conducted a programmatic environmental
[[Page 12659]]
assessment as discussed later in this preamble. While the PEA did not
specifically address environmental impacts on children, it did address
whether the rule would have environmental impacts in general. Based on
the PEA, the agency has determined that the proposed rule would have no
significant environmental impacts.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-
3520), Federal agencies must obtain approval from the Office of
Management and Budget (OMB) for each collection of information they
conduct, sponsor, or require through regulations. The FMCSA has
determined that this proposal would impact a currently approved
information collection, OMB Control Number 2126-0019.
The information collection associated with the Form OP-2 has been
approved by the OMB under the control number 2126-0019, titled
``Application for Certificate of Registration for Foreign Motor
Carriers and Foreign Motor Private Carriers.'' This current approval
covers Form OP-2 and totals 2,000 burden hours (1,000 respondents per
year @ 2 hours each) to complete the form.
Revisions to OP-2 Baseline: A PRA review normally involves
determining the information collection impacts of a recordkeeping
requirement imposed on a person, comparing those impacts with the
current regulation (baseline) and measuring the resulting change. The
FMCSA finds it necessary to amend the baseline: (1) To be consistent
with updated demographic data concerning the number of Mexico-domiciled
carriers operating in the U.S. as set forth in the programmatic
environmental assessment (PEA) and Regulatory Flexibility Analysis to
this rule, and (2) to take into account an imminent Presidential action
that is not subject to PRA review--the issuance of a Presidential Order
lifting the moratorium on grants of operating authority to Mexico-
domiciled motor carriers to operate within the United States beyond the
border commercial zones. The PEA and Regulatory Flexibility Analysis to
this rule project high, medium, and low estimates for the number of
Mexico-domiciled motor carriers now operating within the United States.
The PRA review is based on the medium estimate (9,500) because we
believe it is the most accurate estimate (rather than the high estimate
of 11,787 used in the NPRM). The medium estimate was also used in the
PEA and the Regulatory Flexibility Analysis. Therefore, the revised
baseline assumes: (1) The medium scenario is used; (2) the moratorium
is lifted; and (3) Mexico-domiciled carriers are filing the existing
OP-2 application form. It is estimated that 75 percent of new
applicants each year will file the OP-2 (with 25 percent filing the OP-
1(MX)). The number of new applicants in the baseline assumes a 10
percent increase over the current 1,300 (1,430).
Adjusted burden hour calculation for completion of the currently
approved IC under the medium scenario. The FMCSA estimates that 5,823
Mexico-domiciled carriers will request OP-2 certificates of
registration in year one (includes half of the 9,500 Mexican carriers
(4,750) plus 75 percent of 1,430 new applicants (1,073)); and 1,073
Mexico-domiciled carriers will apply in subsequent years. The existing
form takes approximately 2 hours to complete. Since Mexico-domiciled
carriers currently are not required to update carrier identification
information, there would be zero updates received in year one or
subsequent years. The revised baseline medium scenario is calculated as
follows:
OP-2 filings 11,646 hours [5,823 x 2 hours per form]
(year one)
OP-2 filings 2,146 hours [1,073 x 2 hours per form]
(subsequent
years)
The revised baseline medium scenario results in the following
annual adjusted burden hour estimate for completion of Form OP-2
pursuant to OMB Control Number 2126-0019:
Year One: 11,646
Subsequent Years: 2,146
Impact of the final rule and adjusted burden hour calculation for
completion of Form OP-2 under the revised baseline medium scenario.
This action proposes to amend 49 CFR part 368 and revise Form OP-2. We
propose to use the amended Form OP-2 and the issuance of certificates
of registration only for those carriers whose operations are limited to
the border commercial zones. The FMCSA believes that despite the
opportunity for Mexico-domiciled carriers to operate beyond the border
commercial zones, there are a substantial number of carriers that are
most familiar with the Certificate of Registration and want to continue
operating in a limited area. Under the revised Form OP-2, the FMCSA
will require the applicant motor carrier to certify the safety of its
operations; this information is not collected on the current form. In
addition, all certificates of registration issued under the revised
form would be conditioned upon the carrier's successful completion of
an 18-month safety monitoring program (established in an interim final
rule published elsewhere in today's Federal Register), including a
safety audit. For these reasons, the FMCSA anticipates that the number
of carriers would be lower than the revised baseline. The FMCSA
estimates that 5,774 Mexico-domiciled carriers would apply for OP-2
certificates of registration in year one (includes half of the 9,500
Mexican carriers (4,750) plus 75 percent of the 1,365 new applicants
(1,024)); and 1,024 carriers thereafter. Due to the additional
information requested on the form, the FMCSA estimates that it will
take 4 hours to complete, rather than the current estimate of 2 hours.
The FMCSA must be notified in writing of certain key changes in the
information on the form within 45 days of the change. For changes and
updates, the agency anticipates that annually approximately one quarter
of those granted certificates of registration will update their
applications. It will take approximately 30 minutes to complete the
updates. For simplicity's sake, we based the number of individuals
granted certificates of registration on the estimated total number of
first-year applicants.
Mexico-domiciled carrier filings of the Form OP-2:
50 percent of 9,500 carriers in 1st year (4,750) x 4 hours per
form = 19,000
75 percent of 1,365 new applicants in 1st year (1,024) x 4 hours
= 4,096
75 percent of 1,365 new applicants in future years (1,024) x 4
hours = 4,096
Total burden hours for revised Form OP-2/Year 1 = 23,096
Total burden hours for revised Form OP-2/Future Years = 4,096
OP-2 Updates/Changes:
25 percent of 4,750 carriers filing in 1st year (1,188) x 30
minutes = 594
25 percent of 1,024 filings for new carriers in 1st year (256) x
30 min. = 128
25 percent of 1,024 filings for new carriers in future years (256)
x 30 min. = 128
Total burden hours for updates/changes in 1st year = 722
Total burden hours for updates/changes in future years = 128
Therefore, the FMCSA estimates that the final rule will adjust the
annual burden hour estimate for the information collection associated
with the Form OP-2 as follows:
In the first year: The total burden hours for this information
collection in the first year is 23,818 hours [(19,000 hours + 4,096 +
722 hours)]; and in subsequent years: 4,224 hours [4,096 hours + 128].
[[Page 12660]]
OMB Control Number: 2126-0019
Title: Application for Certificate of Registration for Foreign
Motor Carriers and Foreign Motor Private Carriers.
Respondents: Mexico-domiciled motor carriers.
Estimated Annual Hour Burden for the Information Collection: Year 1
= 23,818; subsequent years = 4,224.
You may submit any additional comments on the information
collection burden addressed by this final rule to the Office of
Management and Budget (OMB). The OMB must receive your comments by
April 18, 2002. You must mail or hand deliver your comments to:
Attention: Desk Officer for the Department of Transportation, Docket
Library, Office of Information and Regulatory Affairs, Office of
Management and Budget, Room 10102, 725 17th Street, NW., Washington, DC
20503.
National Environmental Policy Act
The FMCSA is a new administration within the Department of
Transportation (DOT). The FMCSA is currently developing an agency order
that will comply with all statutory and regulatory policies under the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). We
expect the draft FMCSA Order to appear in the Federal Register for
public comment in the near future. The framework of the FMCSA Order
will be consistent with and reflect the procedures for considering
environmental impacts under DOT Order 5610.1C. FMCSA has analyzed this
rule under the NEPA and DOT Order 5610.1C, and has issued a Finding Of
No Significant Impact (FONSI). The FONSI and the environmental
assessment are in the docket to this rule.
Executive Order 12630 (Taking of Private Property)
This rule will not effect a taking of private property or otherwise
have taking implications under E. O. 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights.
Executive Order 13132 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132, dated August 4, 1999 (64
FR 43255, August 10, 1999). The FMCSA has determined that this action
would not have significant Federalism implications or limit the
policymaking discretion of the States.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.217 Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities do not apply to this program.
Executive Order 13166 (Limited English Proficiency)
Executive Order 13166, Improving Access to Services for Persons
With Limited English Proficiency, requires each Federal agency to
examine the services it provides and develop reasonable measures to
ensure that persons seeking government services but limited in their
English proficiency can meaningfully access these services consistent
with, and without unduly burdening, the fundamental mission of the
agency. The FMCSA plans to provide a Spanish translation of the
application and instructions of the Form OP-2. We believe that this
action complies with the principles enunciated in the Executive Order.
List of Subjects
49 CFR Part 368
Administrative practice and procedure, Motor carriers.
49 CFR Part 387
Buses, Freight, Freight forwarders, Hazardous materials
transportation, Highway safety, Insurance, Intergovernmental relations,
Motor carriers, Motor vehicle safety, Moving of household goods,
Penalties, Reporting and recordkeeping requirements, Surety bonds.
For the reasons set forth in the preamble, the FMCSA amends 49 CFR,
Chapter III as follows:
1. Revise part 368 to read as follows:
PART 368--APPLICATION FOR A CERTIFICATE OF REGISTRATION TO OPERATE
IN MUNICIPALITIES IN THE UNITED STATES ON THE UNITED STATES-MEXICO
INTERNATIONAL BORDER OR WITHIN THE COMMERCIAL ZONES OF SUCH
MUNICIPALITIES.
Sec.
368.1 Certificate of registration.
368.2 Definitions.
368.3 Applying for a certificate of registration.
368.4 Requirement to notify FMCSA of change in applicant
information.
368.5 Re-registration of certain carriers holding certificates of
registration.
368.6 FMCSA action on an application.
368.7 Requirement to carry certificate of registration in the
vehicle.
368.8 Appeals.
Authority: 49 U.S.C. 13301 and 13902; Pub. L. 106-159, 113 Stat.
1748; and 49 CFR 1.73.
Sec. 368.1 Certificate of registration.
(a) A Mexico-domiciled motor carrier must apply to the FMCSA and
receive a Certificate of Registration to provide interstate
transportation in municipalities in the United States on the United
States-Mexico international border or within the commercial zones of
such municipalities as defined in 49 U.S.C. 13902(c)(4)(A).
(b) A certificate of registration permits only interstate
transportation of property in municipalities in the United States on
the United States-Mexico international border or within the commercial
zones of such municipalities. A holder of a Certificate of Registration
who operates a vehicle beyond this area is subject to applicable
penalties and out-of-service orders.
Sec. 368.2 Definitions.
Interstate transportation means transportation described at 49
U.S.C. 13501, and transportation in the United States otherwise exempt
from the Secretary's jurisdiction under 49 U.S.C. 13506(b)(1).
Mexico-domiciled motor carrier means a motor carrier of property
whose principal place of business is located in Mexico.
Sec. 368.3 Applying for a certificate of registration.
(a) If you wish to obtain a certificate of registration under this
part, you must submit an application that includes the following:
(1) Form OP-2--Application for Mexican Certificate of Registration
for Foreign Motor Carriers and Foreign Motor Private Carriers Under 49
U.S.C. 13902;
(2) Form MCS-150--Motor Carrier Identification Report; and
(3) A notification of the means used to designate process agents,
either by submission in the application package of Form BOC-3--
Designation of Agents--Motor Carriers, Brokers and Freight Forwarders
or a letter stating that the applicant will use a process agent service
that will submit the Form BOC-3 electronically.
(b) The FMCSA will only process your application for a Certificate
of Registration if it meets the following conditions:
(1) The application must be completed in English;
(2) The information supplied must be accurate and complete in
accordance with the instructions to the Form OP-2, Form MCS-150 and
Form BOC-3;
[[Page 12661]]
(3) The application must include all the required supporting
documents and applicable certifications set forth in the instructions
to the Form OP-2, Form MCS-150 and Form BOC-3;
(4) The application must include the filing fee payable to the
FMCSA in the amount set forth in 49 CFR 360.3(f)(1); and
(5) The application must be signed by the applicant.
(c) If you fail to furnish the complete application as described
under paragraph (b) of this section your application may be rejected.
(d) If you submit false information under this section, you will be
subject to applicable Federal penalties.
(e) You must submit the application to the address provided in the
instructions to the Form OP-2.
(f) You may obtain the application described in paragraph (a) of
this section from any FMCSA Division Office or download it from the
FMCSA web site at: http://www.fmcsa.dot.gov/factsfigs/formspubs.htm. 
Sec. 368.4 Requirement to notify FMCSA of change in applicant
information.
(a) You must notify the FMCSA of any changes or corrections to the
information in Parts I, IA or II submitted on the Form OP-2 or the Form
BOC-3--Designation of Agents--Motor Carriers, Brokers and Freight
Forwarders during the application process or while you have a
Certificate of Registration. You must notify the FMCSA in writing
within 45 days of the change or correction.
(b) If you fail to comply with paragraph (a) of this section, the
FMCSA may suspend or revoke the Certificate of Registration until you
meet those requirements.
Sec. 368.5 Re-registration of certain carriers holding certificates of
registration.
(a) Each holder of a certificate of registration that permits
operations only in municipalities in the United States along the United
States-Mexico international border or in commercial zones of such
municipalities issued before April 18, 2002, who wishes to continue
solely in those operations must submit an application according to
procedures established under Sec. 368.3 of this part, except the filing
fee in paragraph (b)(4) of that section is waived. You must file your
application by October 20, 2003.
(b) The FMCSA may suspend or revoke the certificate of registration
of any registrant that fails to comply with the procedures set forth in
this section.
(c) Certificates of registration issued before April 18, 2002,
remain valid until the FMCSA acts on the OP-2 application filed
according to paragraph (a) of this section.
Sec. 368.6 FMCSA action on the application.
(a) The Federal Motor Carrier Safety Administration will review the
application for correctness, completeness, and adequacy of information.
Non-material errors will be corrected without notice to the applicant.
Incomplete applications may be rejected.
(b) If the applicant does not require or is not eligible for a
Certificate of Registration, the FMCSA will deny the application and
notify the applicant.
(c) The FMCSA will validate the accuracy of information and
certifications provided in the application against data maintained in
databases of the governments of Mexico and the United States.
(d) If the FMCSA determines that the application and certifications
demonstrate that the application is consistent with the FMCSA's safety
fitness policy, it will issue a provisional Certificate of
Registration, including a distinctive USDOT Number that identifies the
motor carrier as permitted to provide interstate transportation of
property solely in municipalities in the United States on the U.S.-
Mexico international border or within the commercial zones of such
municipalities.
(e) The FMCSA may issue a permanent Certificate of Registration to
the holder of a provisional Certificate of Registration no earlier than
18 months after the date of issuance of the Certificate and only after
completion to the satisfaction of the FMCSA of the safety monitoring
system for Mexico-domiciled carriers set out in subpart B of part 385
of this subchapter.
(f) Notice of the authority sought will not be published in either
the Federal Register or the FMCSA Register. Protests or comments will
not be allowed. There will be no oral hearings.
Sec. 368.7 Requirement to carry certificate of registration in the
vehicle.
A holder of a Certificate of Registration must maintain a copy of
the Certificate of Registration in any vehicle providing transportation
service within the scope of the Certificate, and make it available upon
request to any State or Federal authorized inspector or enforcement
officer.
Sec. 368.8 Appeals.
An applicant has the right to appeal denial of the application. The
appeal must be in writing and specify in detail why the agency's
decision to deny the application was wrong. The appeal must be filed
with the Director, Office of Data Analysis and Information Systems
within 20 days of the date of the letter denying the application. The
decision of the Director will be the final agency order.
PART 387--MINIMUM LEVELS OF FINANCIAL RESPONSIBILITY FOR MOTOR
CARRIERS
2. The authority citation for part 387 continues to read as
follows:
Authority: 49 U.S.C. 13101,13301,13906, 14701, 31138, and 31139;
and 49 CFR 1.73.
3. In Sec. 387.7, revise the first sentence of paragraph (b)(3)
introductory text to read as follows:
Sec. 387.7 Financial responsibility required.
* * * * *
(b) * * *
(3) Exception. A Mexico-domiciled motor carrier operating solely in
municipalities in the United States on the U.S.-Mexico international
border or within the commercial zones of such municipalities with a
Certificate of Registration issued under part 368 may meet the minimum
financial responsibility requirements of this subpart by obtaining
insurance coverage, in the required amounts, for periods of 24 hours or
longer, from insurers that meet the requirements of Sec. 387.11 of this
subpart. * * *
* * * * *
Issued on: March 7, 2002.
Joseph M. Clapp,
Administrator.
Note: The following form will not appear in the Code of Federal
Regulations.
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[FR Doc. 02-5890 Filed 3-14-02; 8:45 am]
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