[Federal Register Volume 76, Number 199 (Friday, October 14, 2011)]
[Pages 63988-63990]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-26687]



Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2011-0097]

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.

Borders Division, 1200 New Jersey Avenue, SE., Washington, DC 20590-
0001. Telephone (512) 916-5440 Ext. 228; e-mail [email protected].



    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 
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

[[Page 63989]]

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 
    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--
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

[[Page 63990]]

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 

    Issued on: October 11, 2011.
Anne S. Ferro,
[FR Doc. 2011-26687 Filed 10-12-11; 11:15 am]