[Federal Register Volume 76, Number 199 (Friday, October 14, 2011)]
From the Federal Register Online via the Government Printing Office [http://www.gpo.gov/]
[FR Doc No: 2011-26687]
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2011-0097]
Pilot Project on NAFTA Trucking Provisions; Pre-Authorization
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice; response to public comments.
SUMMARY: On September 12 and 14, 2011, the Federal Motor Carrier Safety
Administration (FMCSA) announced and requested public comment on data
and information concerning the Pre-Authorization Safety Audits (PASAs)
for two motor carriers that applied to participate in the Agency's
long-haul pilot program to test and demonstrate the ability of Mexico-
domiciled motor carriers to operate safely in the United States beyond
the commercial zones on the United States-Mexico border. This action is
required by the ``U.S. Troop Readiness, Veterans' Care, Katrina
Recovery, and Iraq Accountability Appropriations Act, 2007'' and all
subsequent appropriations. The Agency received responses to the PASA
notices from 11 commenters. The purpose of this notice is to respond to
those comments that were in the scope of the PASA notice.
ADDRESSES: You may search background documents or comments to the
docket for this notice, identified by Docket Number FMCSA-2011-0097, by
eRulemaking Portal: http://www.regulations.gov/. Follow the
online instructions for reviewing documents and comments.
Regulations.gov is available electronically 24 hours each day, 365 days
a year; or
DOT Docket Room: Room W12-140 on the ground floor of the
DOT Headquarters Building at 1200 New Jersey Avenue, SE., Washington,
DC 20590 between 9 a.m. and 5 p.m., ET, Monday through Friday, except
Privacy Act: Anyone is able to search the electronic form of all
comments received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
Privacy Act System of Records Notice for the DOT Federal Docket
Management System published in the Federal Register on January 17, 2008
(73 FR 3316), or you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.
FOR FURTHER INFORMATION CONTACT: Marcelo Perez, FMCSA, North American
Borders Division, 1200 New Jersey Avenue, SE., Washington, DC 20590-
0001. Telephone (512) 916-5440 Ext. 228; e-mail email@example.com.
On July 8, 2011, FMCSA announced in the Federal Register [76 FR
40420] its intent to proceed with the initiation of a United States-
Mexico cross-border long-haul trucking pilot program to test and
demonstrate the ability of Mexico-domiciled motor carriers to operate
safely in the United States beyond the municipalities and commercial
zones along the United States-Mexico border, as detailed in the
Agency's April 13, 2011, Federal Register notice [76 FR 20807]. The
pilot program is a part of FMCSA's implementation of the North American
Free Trade Agreement (NAFTA) cross-border long-haul trucking provisions
in compliance with section 6901(b)(2)(B) of the U.S. Troop Readiness,
Veterans' Care, Katrina Recovery, and Iraq Accountability
Appropriations Act, 2007 [Pub. L. 110-28, 121 Stat. 112, 183, May 25,
In accordance with section 6901(b)(2)(B)(i), FMCSA is required to
publish in the Federal Register, and provide sufficient opportunity for
public notice and comment, comprehensive data and information on the
PASAs conducted of motor carriers domiciled in Mexico that applied for
authority to operate beyond the United States municipalities and
commercial zones on the United States-Mexico border.
On August 25 and 26, FMCSA conducted PASAs on two Mexican carriers:
Grupo Behr and Transportes Olympic. In accordance with section 6901, on
September 12 and September 14, FMCSA published notices in the Federal
Register [76 FR 56272, 56868], in which FMCSA announced that the two
companies had successfully completed their PASAs and provided an
opportunity for public comment on the data and information relating to
In accordance with section 6901, FMCSA requested public comment
from all interested persons on the PASA information presented in the
notice. All comments received before the close of business on the
comment closing date were considered and will be available for
examination in the docket at the location listed under the ADDRESSES
section of this notice. FMCSA notes that under its regulations,
preliminary grants of authority, pending the carrier's showing of
compliance with insurance and process agent requirements and the
resolution of any protests, are publically noticed through publication
in the FMCSA Register. Any protests of such grants must be filed within
10 days of such publication. No protests for either Grupo Behr or
Transportes Olympic were received.
Response to Comments
FMCSA received 11 timely comments on its Federal Register notice.
Seven of the 11 commenters provided general letters in support of the
PASA results. These included the National Potato Council, the
California Table Grape Commission, the National Pork Producers Council,
the California Grape and Tree Fruit League, the Northwest Horticultural
Council, the American Apparel and Footwear Association, and the U.S.-
Mexico Chamber of Commerce.
Advocates for Highway and Auto Safety (Advocates), the Owner
Operator Independent Driver Association (OOIDA), the International
Brotherhood of Teamsters (Teamsters), and Knight Transportation
provided comments questioning the PASAs for Grupo Behr and Transportes
Olympic. In addition, these four groups provided more general comments
on the pilot program itself. Those comments are outside of the scope of
the PASA notices and will not be addressed in this notice.
PASA Process Issues
OOIDA questioned how PASAs could be completed so soon after the
the Inspector General (OIG) published its August 22 report, citing
concerns about the Agency's PASA process, and before FMCSA had
submitted its report to Congress in response to the OIG report.
The OIG advised that FMCSA needed to finalize plans for how the
Agency will comply with section 350(a) of Public Law 107-87,
requirements to conduct 50 percent of the PASAs and compliance reviews
in Mexico (section 350 of the Department of Transportation and Related
Agencies Appropriations Act, 2002 [Pub. L. 107-87, 115 Stat. 833, 864,
December 18, 2001]). The OIG did not question the Agency's PASA
process. As both the Grupo Behr and Transportes Olympic PASAs were
conducted in Mexico, the question raised by the OIG was not at issue.
In addition, the Agency has completed its plans for ensuring compliance
with section 350(a) since the August 22 report and has provided this
information to the OIG.
FMCSA is required to submit its report to Congress in advance of
initiating the pilot program, which it did on October 5, 2011. The
Agency defines the initiation of the pilot program as the issuance of
long-haul operating authority. FMCSA has not yet issued long-haul
operating authority to any of the applicants.
Compliance With Section 6901
Advocates, OOIDA, and Teamsters questioned the level of information
provided in the PASA notices and noted that section 6901 requires
``comprehensive'' data to be provided for notice and comment. Advocates
recommended that the Agency publish the full records of the PASAs.
Advocates also expressed concern that the public notice did not allow
adequate time for review and comment.
Advocates and OOIDA expressed concern that information from Grupo
Behr's and Transportes Olympic's participation in the Agency's previous
demonstration project was not provided in the PASA notice. In addition,
Advocates noted that FMCSA failed to provide public disclosure of
information on the compliance reviews conducted of these carriers in
2010. Advocates and Teamsters asked that FMCSA provide public
disclosure of all information on these carriers that is held by the
OOIDA provided a list of 14 additional questions to be answered in
the PASA notices and requested that public information include
identification of the vehicles inspected during the PASA. Additionally,
OOIDA noted that the inspections for the participating vehicles were
not yet in the Agency's Safety Measurement System (SMS).
OOIDA also advised that they requested copies of the applications
for the two carriers and were denied copies.
FMCSA notes that it published the same categories of information in
the notices for the PASAs conducted during the 2007-2009 demonstration
project, and provided the same amount of time for notice and comment.
As this is not a rulemaking action, the Agency does not agree that a 30
day review period is required or appropriate.
To facilitate the availability of information on the pilot program
participants, FMCSA has created a link on FMCSA's public Web site--
that contains pilot program information. Information on the
demonstration program carriers is also available on this Web site,
including prior compliance reviews conducted in 2010, the numbers of
trucks and drivers participating under each carrier, information about
numbers of inspections and the results of those inspections, FMCSA's
reports on the monitoring of participating carriers, and other
information about the program. This Web site also contains copies of
the recent PASAs and further detail, including identification of the
vehicles inspected and approved for use in the pilot.
Due to changes to FMCSA's information technology systems to support
the pilot program, information from the previous demonstration project
had to be removed from public view so that the system could be used for
this pilot program. To ensure the most comprehensive record is
available, however, FMCSA will make the demonstration project PASA
information available on the public Web site.
Inspection information from the recent PASAs will become available
in SMS during the monthly update following the upload of the
inspections. FMCSA will also be making the results of these inspections
available on the public Web site. Going forward, FMCSA will post copies
of OP-1(MX) applications on its pilot program Web site at the time of
publication of PASA results. Future PASA notices in the Federal
Register will indicate the availability of this information on the Web
site. The applications for Grupo Behr and Olympic have also been added
to this site.
Advocates and Teamsters pointed out that Grupo Behr's out-of-
service rate is 28.6%, which is higher than the national average of
20.7%. In addition, both commenters noted that Grupo Behr's vehicle
maintenance rating is 45.8%. Advocates further noted that Grupo Behr
had 40 vehicle violations in the 24 months prior to August 26, 2011.
OOIDA indicated that publicly-available information indicates that
Grupo Behr has an inadequate safety history.
OOIDA researched the vehicle identification numbers from
inspections reports and questioned if Grupo Behr would be using a 1991
Class 8 Freightliner, which does not comply with the EPA requirement
for vehicles of model year 1998 or later.
OOIDA questioned the safety data collected on Grupo Behr's straight
trucks and asked how this is affected by SMS segmentation. In addition,
OOIDA challenged the accuracy of Grupo Behr's vehicle BASIC and alleged
that the event group-the group of carriers that Grupo Behr is compared
against in SMS-``watered down'' their scores. Overall, OOIDA concluded
that Grupo Behr's inspections indicate a lack of systemic maintenance.
Advocates asked if the drivers and vehicles to be used in the pilot
program had been subject to any of Grupo Behr's out-of-service orders.
The Teamsters noted that Grupo Behr's insurance history has a
period between July 2007 and April 2010 where ``cancelled'' is listed
six times. Based on this information, the Teamsters questioned if Grupo
Behr will be able to obtain and maintain insurance.
Based on the information provided by Advocates, OOIDA, and
Teamsters, the Agency is conducting additional reviews of Grupo Behr's
inspections and vehicles. As a result, the Agency will not issue long-
haul operating authority to Grupo Behr until such time as this review
is complete and the above noted comments are fully addressed in a
subsequent Federal Register notice.
OOIDA searched media records and reviewed online data and concluded
that Transportes Olympic is owned by an individual who also owns two
U.S.-based enterprise motor carriers. OOIDA advised that the available
safety records for these U.S. motor carrier companies show that they
are deficient in the Driver Fitness BASIC. OOIDA expressed concern that
the PASA notice was silent
on Transportes Olympic's possible affiliations.
OOIDA also alleged that Transportes Olympic's scores are
artificially low because law enforcement did not cite them as out-of-
service for certain out-of-service violations.
Advocates noted that Transportes Olympic received commercial zone
authority in 2009, but SMS shows no information on this company. As a
result, Transportes Olympic's SMS scores indicate ``insufficient data''
or ``not public.''
In its application and during the PASA, Transportes Olympic
acknowledged its affiliation with two U.S. carriers. The safety records
of these two carriers include a large number of English language
proficiency violations, which provide the basis for the deficiency in
the Driver Fitness BASIC. In the pilot program, however, FMCSA is
testing participating drivers for English language proficiency during
the PASA and is only approving drivers with adequate English language
proficiency for participation. Accordingly, these violations are not
relevant to the approval of Transportes Olympic's application for
provisional operating authority under the pilot program.
Transportes Olympic received its commercial zone authority in 2009,
but has not been operating under that authority in the United States.
As a result, there is no information in FMCSA's system on this company.
During the PASA, however, the company provided information on its
safety management processes that was validated by the FMCSA auditor.
As a result, FMCSA continues to find that Transportes Olympics
meets the requirements of the pilot program. Therefore, FMCSA will
issue long-haul operating authority to this carrier.
Issues Outside of the Scope of the PASA Notice
Commenters raised issues regarding the pilot program's design and
implementation and the review of additional driver's license
information that are outside of the scope of the PASA notices. In
addition, these issues were already considered in publishing the
Agency's July 8, 2011, Federal Register notice announcing the pilot
program and the Agency's Environmental Assessment published on October
3, 2011 [76 FR 61138]. As a result, they will not be addressed in this
Issued on: October 11, 2011.
Anne S. Ferro,
[FR Doc. 2011-26687 Filed 10-12-11; 11:15 am]
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