Pilot Project on NAFTA Trucking Provisions

Anne S. Ferro
Federal Motor Carrier Safety Administration
February 19, 2013

[Federal Register Volume 78, Number 33 (Tuesday, February 19, 2013)]
[Notices]
[Pages 11728-11731]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-03672]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No FMCSA-2011-0097]


Pilot Project on NAFTA Trucking Provisions

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice.

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SUMMARY: On September 12, 2011, FMCSA announced and requested public 
comment on data and information concerning the Pre-Authorization Safety 
Audit (PASA) for Grupo Behr de Baja California SA de CV (Grupo Behr), 
USDOT 861744, a motor carrier that applied to participate in 
the Agency's long-haul pilot program. That action was required by the 
``U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq 
Accountability Appropriations Act, 2007'' and all subsequent 
appropriations. While Grupo Behr successfully completed the PASA 
process, commenters raised concerns about the company's safety record. 
In addition, during the Agency's safety vetting process, an operating 
authority violation was discovered. As a result, the Agency placed 
Grupo Behr's application on hold. The purpose of this notice is to 
respond to the comments received in response to the September 12, 2011, 
notice, and to explain the enforcement action that the Agency took as a 
result of the operating authority violation. In addition, this notice 
advises that the Agency will now issue provisional authority to Grupo 
Behr for participation in the long-haul pilot program.

ADDRESSES:
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov at any time or to 
Room W12-140 on the ground floor of

[[Page 11729]]

the DOT Headquarters Building at 1200 New Jersey Avenue SE, Washington, 
DC, 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.
    Public Participation: The www.regulations.gov Web site is generally 
available 24 hours each day, 365 days each year. You can get electronic 
submission and retrieval help and guidelines under the ``help'' section 
of the www.regulations.gov Web site. Comments received after the 
comment closing date will be included in the docket, and will be 
considered to the extent practicable.

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; email marcelo.perez@dot.gov.

SUPPLEMENTARY INFORMATION:

Background

    On May 25, 2007, the President signed into law the U.S. Troop 
Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability 
Appropriations Act, 2007 (the Act), [Pub. L. 110-28, 121 Stat. 112, 
183, May 25, 2007]. Section 6901 of the Act requires that certain 
actions be taken by the Department of Transportation (the Department) 
as a condition of obligating or expending appropriated funds to grant 
authority to Mexico-domiciled motor carriers to operate beyond the 
municipalities in the United States on the United States-Mexico 
international border or the commercial zones of such municipalities 
(border commercial zones).
    On July 8, 2011, FMCSA announced in the Federal Register [76 FR 
40420] its intent to proceed with the initiation of a U.S.-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 border commercial zones 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 Act. FMCSA reviewed, 
assessed, and evaluated the required safety measures as noted in the 
July 8, 2011, notice and considered all comments received on or before 
May 13, 2011, in response to the April 13, 2011, notice. Additionally, 
to the extent practicable, FMCSA considered comments received after May 
13, 2011.
    In accordance with section 6901(b)(2)(B)(i) of the Act, FMCSA is 
required to publish a notice in the Federal Register, and provide 
sufficient opportunity for the public to review and comment on 
comprehensive data and information on the PASAs conducted of motor 
carriers domiciled in Mexico that are granted authority to operate 
beyond the border commercial zones.

Comments and Responses

    On September 12, 2011, FMCSA published the passed PASA results for 
Grupo Behr [76 FR 56274], and the Agency received responses from 13 
commenters.
    On October 14, 2011, the Agency published a second notice [76 FR 
63988] that explained that Advocates for Auto and Highway Safety 
(Advocates) and the International Brotherhood of Teamsters (Teamsters) 
expressed concern that Grupo Behr's out-of-service (OOS) rate was 
28.6%, which was higher than the national average of 20.7%.
    In addition, both commenters noted that Grupo Behr's vehicle 
maintenance rating within FMCSA's Safety Measurement System (SMS) was 
45.8%. Advocates further noted that Grupo Behr had 40 vehicle 
violations in the 24 months prior to August 26, 2011. Also, the Owner-
Operator Independent Drivers Association (OOIDA) indicated that 
publicly-available information indicated that Grupo Behr had an 
inadequate safety history.
    FMCSA Response: Over the past year, Grupo Behr has improved its 
safety record. Grupo Behr's Vehicle OOS rate is currently 14% and its 
Driver OOS rate is 2% based on the December 14, 2012, SMS snapshot. 
Grupo Behr does not currently have any SMS Behavior Analysis and Safety 
Indicator Categories (BASICs) that exceed FMCSA's intervention 
thresholds. As a result, the company is in good standing to participate 
in the Pilot Program.
    It should also be noted that the statutory and regulatory 
requirement for participation in the pilot program is satisfactory 
completion of the PASA and a subsequent compliance review, after 
operation. The Agency may not establish standards for pilot program 
participants that are not comparable to the requirements for U.S. 
carriers.
    OOIDA researched the vehicle identification numbers from inspection 
reports and questioned if Grupo Behr would be using a 1991 Class 8 
Freightliner, which does not comply with the Environmental Protection 
Agency (EPA) requirement for vehicles of model year 1998 or later.
    FMCSA Response: The FMCSA confirmed that all vehicles proposed for 
use in the pilot program by Grupo Behr meet both Federal Motor Vehicle 
Safety Standards and EPA requirements. The oldest of the proposed 
vehicles to be operated by Grupo Behr in the pilot program is 1998, and 
the 1991 Class 8 Freightliner in question by OOIDA will not be used.
    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 Maintenance BASIC 
and alleged that the event group-the group of carriers that Grupo Behr 
is compared against in SMS-- ``watered down'' their scores.
    FMCSA Response: FMCSA notes that Mexican carriers are evaluated the 
same as U.S. carriers under SMS. Also, there are many types of trucking 
operations using a variety of equipment. The pilot program is designed 
to test and demonstrate the ability of Mexico-domiciled motor carriers 
to operate safely in the United States beyond the commercial zones; the 
Mexican trucking industry as a whole includes straight trucks that may 
operate beyond the commercial zones, and such operations are an 
important part of the pilot program.
    Advocates asked if the drivers and vehicles to be used in the pilot 
program had been subject to any of Grupo Behr's OOS orders.
    FMCSA Response: During the past 12 months, two of the five vehicles 
that Grupo will use in the Pilot Program have been placed out of 
service and deficiencies subsequently corrected. FMCSA notes that Grupo 
Behr's Vehicle Maintenance BASIC score is 30.9% resulting from on-road 
performance data, which is below our intervention threshold levels. In 
addition, during our PASA, FMCSA confirmed that Grupo Behr has a 
systematic vehicle maintenance program that meets our requirements. The 
five vehicles to be used in the pilot program were inspected by FMCSA 
in June 2012 and received Commercial Vehicle Safety Alliance (CVSA) 
decals. The vehicles

[[Page 11730]]

will be reinspected prior to installation of electronic monitoring 
devices and CVSA decals applied, as appropriate. Additionally, during 
the past 12 months, one driver who will participate in the pilot 
program was placed out-of-service for having an expired Licencia 
Federal de Conductor (LFC) during a roadside inspection. The FMCSA 
confirmed that this driver's LFC has since been reinstated. This driver 
was also subject to several subsequent inspections and has not been 
placed out of service, indicating that this deficiency was adequately 
addressed.
    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: The insurance history questioned by the Teamsters 
for Grupo Behr is associated with the operating authority number 
MX630115. A review of the insurance history for MX630115, which is 
publicly available on FMCSA's Licensing and Insurance Web site, 
reflects no lapse in either required bodily injury-property damage 
liability insurance or cargo insurance coverage for Grupo Behr from 
July 2, 2007, through April 3, 2010. The policy cancellation notices 
associated with Grupo Behr's MX630115 operating authority are the 
result of the insurance industry's common practice of sending 
cancellation notices to FMCSA prior to the end of the term of insurance 
coverage, because of FMCSA's requirement that they notify the Agency 30 
days prior to the end of the policy. FMCSA notes that the Agency's 
previous cross border Demonstration Project was terminated on March 9, 
2010, and Grupo Behr's provisional operating authority was revoked. 
Grupo Behr's insurance was not cancelled prior to the termination of 
the Demonstration Project.
    In the October 14, 2011, notice, FMCSA explained that, based on the 
information provided by Advocates, OOIDA, and Teamsters, the Agency was 
conducting additional reviews of Grupo Behr's inspections and vehicles. 
As a result, the Agency would not issue long-haul operating authority 
to Grupo Behr until such time as the reviews were complete, and the 
above noted comments were addressed in a subsequent Federal Register 
notice. This notice satisfies that commitment by the Agency.
    During the review of Grupo Behr's operations, it was determined 
that Grupo Behr operated beyond the scope of its operating authority. 
Grupo Behr had a lease agreement with a U.S.-based motor carrier, Maria 
Guadalupe Carrillo Cervantes (USDOT 1553781). However, per 
section 219(d) of the Motor Carrier Safety Improvement Act of 1999 
(MCSIA) [Pub. L. 106-159],\1\ no Mexico-domiciled commercial zone 
carrier may lease vehicles for use beyond the commercial zone. 
Specifically, this statute reads:
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    \1\ Public Law 106-159, 113 Stat. 1748 (December 9, 1999); 49 
U.S.C. 521 note.

    SEC. 219. FOREIGN MOTOR CARRIER PENALTIES AND DISQUALIFICATIONS. 
(d) LEASING.--Before the implementation of the land transportation 
provisions of the North American Free Trade Agreement, during any 
period in which a suspension, condition, restriction, or limitation 
imposed under section 13902(c) of title 49, United States Code, 
applies to a motor carrier (as defined in section 13902(e) of such 
title), that motor carrier may not lease a commercial motor vehicle 
to another motor carrier or a motor private carrier to transport 
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property in the United States.

FMCSA issued a Notice of Violation (NOV) to Grupo Behr on November 9, 
2011, citing Grupo Behr for operating beyond the scope of its operating 
authority by leasing vehicles to Maria Guadalupe Carillo Cervantes. 
Grupo Behr and Maria Guadalupe Carrillo Cervantes terminated this 
agreement on November 11, 2011.
    The Agency required Grupo Behr to provide a corrective action plan 
to ensure that the company had ceased all leasing agreements, and would 
ensure no further transportation outside of the commercial zones. In 
June 2012, FMCSA conducted a focused investigation of Grupo Behr and 
confirmed that since the NOV, there are no inspections or evidence of 
Grupo Behr's commercial motor vehicles operating beyond the U.S. 
municipalities on the U.S.-Mexico border and their commercial zones. A 
copy of this focused review was added to the carrier's PASA document on 
the Pilot Program Web site.
    Finally, during the focused investigation, FMCSA reviewed the 
mandatory elements of the PASA to determine if Grupo Behr remained in 
substantial compliance as required by Appendix A to Subpart B of 49 CFR 
part 365.
    Two violations that were not found during the PASA were discovered 
during the focused investigation. Grupo Behr was using a driver vehicle 
inspection report (DVIR) form that listed the bumper; engine; cabin 
floor; fuel tank; cab; tires; drive shaft; muffler; chassis; rear door; 
air tanks; trailer; 5th wheel; and seal/tiedowns, but did not list 
service brakes, including the trailer brake connections; parking brake; 
steering mechanism; lighting devices and reflectors; horn; windshield 
wipers; rear vision mirrors; wheels and rims; and emergency equipment 
as required on the DVIR. The Agency subsequently received a corrective 
action letter from Grupo Behr committing to using a revised version of 
the DVIR. A copy of this letter is included with the PASA documentation 
on the pilot program Web site.
    In addition, at the time of focused investigation, Grupo Behr could 
not provide adequate documentation of required alcohol testing. Grupo 
Behr addressed this issue in its corrective action letter. Since the 
closeout of the focused investigation, Grupo Behr provided sufficient 
information to the Agency to show that alcohol testing was done at the 
required 10 percent sampling rate. To demonstrate this, the focused 
review documentation was added to the initial PASA on the Agency's Web 
site to reflect the two reviews.
    Grupo Behr has acknowledged affiliations with Logix Transport, Inc. 
(USDOT 2210821). Logix Transport, Inc. was originally granted 
operating authority as a U.S.-based motor carrier on December 8, 2011, 
but requested that the operating authority be converted to a property 
broker certificate. Logix Transport, Inc. was granted a property broker 
certificate on May 9, 2012. FMCSA has no evidence that Logix Transport, 
Inc. operated as a motor carrier in the United States.
    Grupo Behr is also affiliated with the U.S. freight forwarder 
Pacific Customs Services (Grupo Logix), Freight Forwarder number 9476. 
FMCSA has no evidence that Pacific Customs Services (Grupo Logix) has 
operated as a motor carrier in the United States.
    FMCSA also notes that Grupo Behr was affiliated with Logistics 
Transport dba Logix Transport USDOT 850185, Logistics Transport was 
found to have an unsatisfactory safety rating in March 2003 and has not 
operated since. This is well beyond the 3 years of history the Agency 
requests that applicants supply on their OP-1 (or OP-1MX) application 
for authority.
    As noted above, Grupo Behr had a business relationship with Maria 
Guadalupe Carrillo Cervantes (USDOT 1553781), which currently has 
vehicle and driver OOS rates of 14.5% and 2%, respectively, based on 
the 24-month record ending December 14, 2012. Maria Guadalupe Carrillo 
Cervantes has no SMS BASICs above threshold levels In addition, FMCSA 
has established that the business relationship between

[[Page 11731]]

Grupo Behr and Maria Guadalupe Carillo Cervantes no longer exists.
    We are also aware that Grupo Behr is affiliated with Logix 
Transport, Inc. (USDOT number 2210821/MC number 767176). However, this 
enterprise carrier's authority is inactive.
    Based on the original passed PASA, completion of the focused 
investigation, corrective action documentation, and improved out of 
service rates and SMS scores, FMCSA deems Grupo Behr's safety record 
sufficient for participation in the pilot program. Therefore, FMCSA 
will issue provisional operating authority for participation in the 
pilot program.

    Issued On: January 29, 2013.
Anne S. Ferro,
Administrator.
[FR Doc. 2013-03672 Filed 2-15-13; 8:45 am]
BILLING CODE 4910-EX-P