2011-26687. Pilot Project on NAFTA Trucking Provisions; Pre-Authorization Safety Audits

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 visiting the:

• 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 Federal holidays.

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 [phone] Ext. 228; e-mail [e-mail].

SUPPLEMENTARY INFORMATION:

Background

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, 2007].

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 those PASAs.

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 Office of 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.

FMCSA Response

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 Agency.

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 Response

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—http://www.fmcsa.dot.gov/​intl-programs/​trucking/​Trucking-Program.aspx—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.

Grupo Behr

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.

FMCSA Response

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.

Transportes Olympic

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.”

FMCSA Response

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 notice.

Issued on: October 11, 2011.

Anne S. Ferro,

Administrator.