Pilot Program on the North American Free Trade Agreement (NAFTA) Long-Haul Trucking Provisions |
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William Bronrott
Federal Motor Carrier Safety Administration
July 8, 2011
[Federal Register Volume 76, Number 131 (Friday, July 8, 2011)]
[Notices]
[Pages 40420-40439]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-16886]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No FMCSA-2011-0097]
Pilot Program on the North American Free Trade Agreement (NAFTA)
Long-Haul Trucking Provisions
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice; response to public comments.
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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA)
announces 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 in the United
States on the United States-Mexico international border or the
commercial zones of such municipalities (border commercial zones).
DATES: This notice is effective July 8, 2011.
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, 1200 New Jersey
Avenue, SE., Washington, DC 20590-0001. Telephone (202) 366-9597; e-
mail marcelo.perez@dot.gov.
SUPPLEMENTARY INFORMATION: On April 13, 2011, FMCSA published a notice
in the Federal Register announcing its plans to initiate a pilot
program as part of FMCSA's implementation of the 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, and requested public comments
on those plans. FMCSA reviewed, assessed, and evaluated the required
safety measures as noted in the 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. Once the U.S. Department of
Transportation's (DOT) Inspector General completes his report to
Congress required by section 6901(b)(1) and the Agency completes any
follow up actions needed to address issues raised in the report, FMCSA
will proceed with the pilot program. FMCSA made changes and clarified
elements of the program as a result of comments to the docket. For
example, the Agency will include International Registration Plan (IRP)
and International Fuel Tax Association (IFTA) information in its pre-
authority safety audit (PASA) process; posted the Mexican regulations
in both English and Spanish in the docket for this notice; elaborated
on the inspection of available vehicles operating in the United States
during
[[Page 40421]]
the compliance review (CR); and confirmed that the PASA information
will be published in the Federal Register.
As indicated in the April 13, 2011, Federal Register notice, this
pilot program will not include operations that transport placarded
amounts of hazardous materials or passengers. In addition, on May 31,
2011, Mexico published its regulations that will govern a U.S. motor
carrier's application for authority to operate in Mexico. In its
regulations, Mexico specifies several types of transportation services,
vehicles, and operations as ineligible for authority to operate into
Mexico. These include oversized or overweight goods, industrial cranes,
vehicle towing or rescue, or packaging and courier services. Mexico is
allowing U.S. motor carriers of international freight to operate into
Mexico. Mexico has excluded these services, vehicles, and operations
from the program because they are not classified as, or pertinent to,
freight operations in Mexico; rather these types of operations are
subject to separate operating authority requirements than freight motor
carriers. While the United States does not distinguish between these
types of freight operations, in order to comply with the reciprocity
requirements of section 6901(a)(3), the United States will not issue
authority to Mexico-domiciled motor carriers to transport oversized or
overweight goods, industrial cranes, or operate vehicle towing, rescue
or packaging and courier services in this pilot program.
Legal Basis
Section 6901(a) 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] (2007 Appropriations
Act) provides that before DOT may obligate or expend any funds to grant
authority for Mexico-domiciled trucks to engage in cross-border long-
haul operations, DOT must first test granting such authority through a
pilot program that meets the standards of 49 U.S.C. 31315(c). In
accordance with 49 U.S.C. 31315(c)(2), in proposing a pilot program,
the Secretary of Transportation (Secretary) has general authority to
conduct pilot programs ``that are designed to achieve a level of safety
that is equivalent to, or greater than, the level of safety that would
otherwise be achieved * * *..''
In a pilot program, DOT typically collects specific data for
evaluating alternatives to the regulations or innovative approaches to
safety while ensuring that the goals of the regulations are satisfied.
A pilot program may not last more than 3 years, and the number of
participants in a pilot program must be large enough to ensure
statistically valid findings. Pilot programs must include an oversight
plan to ensure that participants comply with the terms and conditions
of participation, and procedures to protect the health and safety of
study participants and the general public. A pilot program may be
initiated only after DOT publishes a detailed description of it in the
Federal Register and provides an opportunity for public comment.
Accordingly, on April 13, 2011, the Agency published a notice
announcing its intention to conduct a pilot program and soliciting
comment (76 FR 20807). This document responds to comments to the April
13, 2011 notice and provides additional information about the planned
pilot program as requested by commenters. While a pilot program may
provide temporary regulatory relief from one or more regulations to a
person or class of persons subject to the regulations, or a person or
class of persons who intends to engage in an activity that would be
subject to the regulations (49 U.S.C. 31315(c)(1) and (2)), in this
pilot program DOT does not propose to exempt or relieve Mexico-
domiciled motor carriers from any FMCSA safety regulation or evaluate
any less stringent alternatives to existing regulation. Mexico-
domiciled motor carriers participating in the program will be required
to comply with the existing motor carrier safety regulatory regime plus
certain additional requirements associated with acceptance into and
participation in the program.
Section 6901(a) of the 2007 Appropriations Act, the terms of which
have been incorporated in each subsequent DOT appropriations act, also
provides that this pilot program must comply with section 350 of the
Department of Transportation and Related Agencies Appropriations Act,
2002 [Pub. L. 107-87, 115 Stat. 833, 864, December 18, 2001] (section
350). Section 350 prohibited FMCSA from using funds made available in
the 2002 DOT Appropriations Act to review or process applications from
Mexico-domiciled motor carriers to operate beyond the border commercial
zones until certain preconditions and safety requirements were met. The
terms of section 350 have also been incorporated in each subsequent DOT
appropriations act. Section 350(a)(1) required FMCSA to perform a PASA
of any Mexico-domiciled motor carrier before that motor carrier is
allowed to engage in long-haul operations in the United States.
Vehicles the motor carrier will operate beyond the border commercial
zones that do not already have a Commercial Vehicle Safety Alliance
(CVSA) decal are required to pass an inspection at the border port of
entry and obtain a decal before being allowed to proceed. Section
350(a)(4) also required DOT to give a distinctive identification number
to each Mexico-domiciled motor carrier that would operate beyond the
border commercial zones to assist inspectors in enforcing motor carrier
safety regulations. Additionally, every driver who will operate in the
United States must have a valid commercial driver's license issued by
Mexico. Section 350(c)(1) also required DOT's Office of the Inspector
General (OIG) to conduct a comprehensive review of the adequacy of
inspection capacity, information infrastructure, enforcement capability
and other specific factors relevant to safe operations by Mexico-
domiciled motor carriers; and section 350(c)(2) required the Secretary
to address the OIG's findings and certify that the opening of the
border poses no safety risk. The OIG was also directed to conduct
similar reviews at least annually thereafter. A number of the section
350 requirements were addressed by FMCSA in rulemakings published on
March 19, 2002 (67 FR 12653, 67 FR 12702, 67 FR 12758, 67 FR 12776) and
on May 13, 2002 (67 FR 31978).
Section 136 of the Transportation, Housing and Urban Development,
and Related Agencies Appropriations Act, 2009 [Division I of the
Omnibus Appropriations Act, 2009, Pub. L, 111-8, 123 Stat. 524, 932,
March 11, 2009] (2009 Appropriations Act) prohibited DOT from expending
funds made available in the 2009 Appropriations Act to establish,
implement, or continue a cross-border motor carrier pilot program to
allow Mexico-domiciled motor carriers to operate beyond the border
commercial zones. The Transportation, Housing and Urban Development,
and Related Agencies Appropriations Act, 2010 [Division A of the
Consolidated Appropriations Act, 2010, Pub. L. 111-117, 123 Stat. 3034,
December 16, 2009] (2010 Appropriations Act) did not bar DOT or FMCSA
from using funds on a cross-border long-haul program; but, pursuant to
section 135 of the 2010 Appropriations Act (123 Stat. at 3053) did
retain the requirements of section 6901 and section 350. Section
1101(a)(6) of the Full-Year Continuing Appropriations Act, 2011 [Pub.
L. 112-10, division B, 125 Stat. 102, 103, April
[[Page 40422]]
15, 2011] (2011 Appropriations Act), makes funding available for DOT
and other Federal agencies during Fiscal Year (FY) 2011 under the
authority and conditions specified in the 2010 Appropriations Act.
Section 6901 of the 2007 Appropriations Act also provided that
simultaneous and comparable authority to operate within Mexico must be
made available to U.S. motor carriers. Further, before the required
pilot program may begin, in accordance with section 6901(b)(1), the
Department's OIG must submit a report to Congress verifying that DOT
has complied with the requirements of section 350(a). DOT must take any
actions that are necessary to address issues raised by the OIG and must
detail those actions in a report to Congress. Section 6901(c) also
directed the OIG to submit an interim report to Congress 6 months after
the initiation of a cross-border long-haul Mexican trucking pilot
program and a final report after the pilot program is completed. The
statute further specified that the report address the program's
adequacy as a test of safety. Also, as a precondition to beginning the
pilot program, section 6901 of the 2007 Appropriations Act requires
that DOT provide an opportunity for public comment by publishing in the
Federal Register information on the PASAs conducted. DOT must also
publish, for comment, the standards that will be used to evaluate the
pilot program. The Agency must also provide a list of Federal motor
carrier safety laws and regulations, including commercial driver's
license (CDL) requirements, for which the Secretary will accept
compliance with corresponding Mexican law or regulation as the
equivalent to compliance with the U.S. law or regulation including an
analysis of how the corresponding United States and Mexican laws and
regulations differ. Further discussion of relevant U.S. and Mexican
safety laws and regulations is provided later in this notice.
Background
Introduction
Before 1982, Mexico- and Canada-domiciled motor carriers could
apply to the Interstate Commerce Commission (ICC), a former independent
Federal agency responsible for regulating, inter alia, motor carrier
operations and safety, for authority to operate within the United
States. As a result of complaints that U.S. motor carriers were not
allowed the same access to Mexican and Canadian markets that motor
carriers from those nations enjoyed in this country, the Bus Regulatory
Reform Act of 1982 [Pub. L. 97-261, 96 Stat. 2201, September 20, 1982]
imposed a moratorium on the issuance of new operating authority to
motor carriers domiciled, or owned or controlled by persons domiciled
in Canada or Mexico. While the disagreement with Canada was quickly
resolved, the issue of trucking reciprocity with Mexico was not.
Currently, most Mexico-domiciled motor carriers are allowed to
operate only within the border commercial zones typically extending up
to 25 to 50 miles into the United States. Every year, Mexico-domiciled
commercial motor vehicles (CMVs) cross into the United States about 4.5
million times. Mexico granted reciprocal authority to 10 U.S.-domiciled
motor carriers to operate throughout Mexico during the time of FMCSA's
previous demonstration project, which was conducted between September
2007 and March 2009. Four of these motor carriers continue to operate
in Mexico.
Trucking issues at the United States-Mexico border were not fully
addressed until NAFTA was negotiated in the early 1990s. NAFTA required
the United States to incrementally lift the moratorium on licensing
Mexico-domiciled motor carriers to operate beyond the border commercial
zones. On January 1, 1994, President Clinton modified the moratorium
and the ICC began accepting applications from Mexico-domiciled
passenger motor carriers to conduct international charter and tour bus
operations in the United States (Memorandum for the Secretary of
Transportation, ``Determination Under the Bus Regulatory Reform Act of
1982,'' 59 FR 653, January 6, 1994). On December 13, 1995, the ICC
published a rule and a revised application form for the processing of
Mexico-domiciled property motor carrier applications (Form OP-1(MX))
(60 FR 63981). The ICC rule anticipated the implementation of the
second phase of NAFTA, providing Mexico-domiciled motor carriers of
property access to California, Arizona, New Mexico and Texas, and the
third phase, providing access throughout the United States. However, at
the end of 1995, the United States announced an indefinite delay in
opening the border to long-haul Mexico-domiciled long-haul motor
carrier operations.
In 1998, Mexico filed a claim against the United States under NAFTA
dispute resolution provisions alleging that the United States' refusal
to grant authority to Mexico-domiciled trucking companies constituted a
breach of the United States' NAFTA obligations. On February 6, 2001,
the arbitration panel, convened pursuant to NAFTA dispute resolution
provisions, issued its final report and ruled in Mexico's favor,
concluding that the United States was in breach of its obligations and
that Mexico could impose tariffs on U.S. exports to Mexico up to an
amount commensurate with the loss of business resulting from the lack
of U.S. compliance. The arbitration panel noted that the United States
could establish a safety oversight regime to ensure the safety of
Mexico-domiciled motor carriers entering the United States, but that
the safety oversight regime could not be discriminatory and must be
justified by safety data.
After President Bush announced the intent to resume the process for
opening the border in 2001, Congress enacted section 350, as discussed
in the ``Legal Basis'' section of this notice. FMCSA took various steps
to comply with section 350, including the issuance of new regulations
applicable to Mexico-domiciled long-haul motor carriers (67 FR 12702,
12758, March 19, 2002). These regulations were challenged on
environmental grounds in litigation that was ultimately decided in
FMCSA's favor by the U.S. Supreme Court (Department of Transportation
v. Public Citizen, 541 U.S. 752 (2004)).
In November 2002, then Secretary Norman Mineta certified, as
required by section 350(c)(2), that authorizing Mexico-domiciled motor
carrier operations beyond the border commercial zones did not pose an
unacceptable safety risk to the American public. Later that month,
President Bush modified the moratorium to permit Mexico-domiciled motor
carriers to provide cross-border cargo and scheduled passenger
transportation beyond the border commercial zones. (Memorandum of
November 27, 2002, for the Secretary of Transportation, ``Determination
Under the Interstate Commerce Commission Termination Act of 1995,'' 67
FR 71795, December 2, 2002). The Secretary's certification was made in
response to the June 25, 2002, DOT OIG report on the implementation of
safety requirements at the United States-Mexico border. In a January
2005 follow-up report, the OIG concluded that FMCSA had sufficient
staff, facilities, equipment, and procedures in place to substantially
meet the eight section 350 requirements that the OIG was required to
review. These reports are available in the docket for this notice.
Former Secretary Mary Peters and Mexico's former Secretary of the
Secretaria de Communicaciones y Transportes (SCT) Luis T[eacute]llez
Kuenzler
[[Page 40423]]
announced a demonstration project to implement certain trucking
provisions of NAFTA on February 23, 2007. The demonstration project was
initiated on September 6, 2007, after the DOT complied with the
conditions imposed by section 6901 of the 2007 Appropriations Act, as
discussed in the ``Legal Basis'' section of this notice. The
demonstration project was initially expected to last 1 year (72 FR
23883, May 1, 2007). On August 6, 2008, FMCSA announced that the
demonstration project was being extended from 1 year to the full 3
years allowed by 49 U.S.C. 31315(c)(2)(A) (73 FR 45796) after
Secretaries Peters and T[eacute]llez exchanged letters on the
extension.
On March 11, 2009, President Obama signed into law the 2009
Appropriations Act. Section 136 of the 2009 Appropriations Act provides
that:
[N]one of the funds appropriated or otherwise made available
under this Act may be used, directly or indirectly, to establish,
implement, continue, promote, or in any way permit a cross-border
motor carrier pilot program to allow Mexican-domiciled motor
carriers to operate beyond the commercial zones along the
international border between the United States and Mexico, including
continuing, in whole or in part, any such program that was initiated
prior to the date of the enactment of this Act (123 Stat. at 932).
In accordance with section 136, FMCSA terminated the cross-border
demonstration project that began on September 6, 2007. The Agency
ceased processing applications by prospective project participants and
took other necessary steps to comply with the provision. (74 FR 11628,
March 18, 2009). In light of the termination, two consolidated lawsuits
challenging the project and pending before the U.S. Court of Appeals
for the Ninth Circuit were dismissed as moot.
On March 19, 2009, Mexico announced that it was exercising its
rights under the 2001 NAFTA Arbitration Panel decision to impose
retaliatory tariffs for the failure to allow Mexico-domiciled motor
carriers to provide long-haul service into the United States. The
tariffs affect approximately 90 U.S. export commodities at an estimated
annual cost of $2.4 billion. The President directed DOT to work with
the Office of the U.S. Trade Representative and the Department of
State, along with leaders in Congress and Mexican officials, to propose
legislation creating a new cross-border trucking program, and to
address the legitimate safety concerns of Congress while fulfilling our
obligations under NAFTA. Secretary Ray LaHood met with numerous members
of Congress to solicit their input. FMCSA tasked its Motor Carrier
Safety Advisory Committee (MCSAC) with providing advice and guidance on
essential elements that the Agency should consider when drafting
proposed legislation to permit Mexico-domiciled motor carriers beyond
the border commercial zones. The MCSAC final report on this tasking is
available on the FMCSA MCSAC Web page at http://mcsac.fmcsa.dot.gov/Reports.htm. Additionally, DOT formed a team to draft principles that
would guide the creation of the draft legislation.
President Obama signed the 2010 Appropriations Act on December 16,
2009, which contained no prohibitions against using FY 2010 funds to
conduct a cross border long-haul program (unlike the 2009
Appropriations Act) and retained requirements specified in section 350
and section 6901 of the 2007 Appropriations Act.
On April 12, 2010, Secretary LaHood met with Mexico's former
Secretary of SCT, Juan Molinar Horcasitas, and announced a plan to
establish a working group to consider the next steps in implementing a
cross-border trucking program. On May 19, 2010, President Obama and
Mexico's President Felipe Calderon Hinojosa issued a joint statement
acknowledging that safe, efficient, secure, and compatible
transportation is a prerequisite for mutual economic growth. They
committed to continue their countries' cooperation in system planning,
operational coordination, and technical cooperation in key modes of
transportation.
The Initial Concept Document and the Preliminary Agreement
On January 6, 2011, Secretary LaHood shared with Congress and the
Government of Mexico an initial concept document for a cross-border
long-haul Mexican trucking pilot program that prioritizes safety, while
satisfying the U.S. international obligations. On the same day, the
Department posted the concept documents on its Web site for public
viewing (http://www.dot.gov/affairs/2011/dot0111.html). The initial
concept document was the starting point for renewed negotiations with
Mexico; and the United States commenced discussions with the Government
of Mexico on January 18, 2011. The preliminary agreement between DOT
and SCT is reflected in the program description and described below.
On March 3, 2011, President Obama met with Mexico's President
Calderon and announced that there is a clear path forward to resolving
the trucking issues between the United States and Mexico.
On April 13, 2011, FMCSA published notice of the pilot program on
NAFTA Long-Haul Trucking Provisions in the Federal Register (76 FR
20807) and the comment period ended May 13, 2011.
The Agency explained that the pilot program will allow Mexico-
domiciled motor carriers to operate throughout the United States for up
to 3 years, and that U.S.-domiciled motor carriers will be granted
reciprocal rights to operate in Mexico for the same period.
Participating Mexico-domiciled motor carriers and drivers must comply
with all applicable U.S. motor carrier safety laws and regulations, as
well as other applicable U.S. laws and regulations, inter alia, those
concerned with customs, immigration, vehicle emissions, employment,
vehicle registration, and vehicle/fuel taxation.
The Agency explained that the safety performance of the
participating motor carriers will be tracked closely by FMCSA and its
State partners, a Federal Advisory Committee Act group, and the OIG.
The Agency will monitor and evaluate the data from the pilot program as
a test of the granting of authority to Mexico-domiciled motor carriers
to conduct long-haul operations in the United States. FMCSA indicated
that it anticipated participating motor carriers may be able to convert
their provisional status under the pilot program to ``permanent''
authority under the pilot program after operating 18 months and
successfully completing a compliance review (CR). This ``permanent''
authority under the pilot program, in turn, may be converted into
standard permanent authority upon completion or termination of the
pilot program. It should be noted that the Agency will be maintaining
its oversight strategies and resources that have been reviewed by the
OIG during the previous demonstration project and the OIG's other
reviews of the Agency's compliance with section 350. The April 13th
notice outlined how the Agency would maintain those strategies and
augment them with new strategies to address stakeholder input. This
notice responds to comments on those previous and augmented strategies.
As indicated in the April 13, 2011, Federal Register notice, this
pilot program will not include operations that involve the transport of
placarded amounts of hazardous materials or passengers. As noted in the
``Summary'' section of this notice, Mexico's regulations identify other
types of CMV operations and services as ineligible for authority to
operate into Mexico. These include the transportation of oversized
[[Page 40424]]
or overweight goods, industrial cranes, vehicle towing or rescue, or
packaging and courier services. Mexico is allowing U.S. motor carriers
of international freight to operate into Mexico. In order to comply
with the reciprocity requirements of section 6901(a)(3) of the 2007
Appropriations Act, the United States will not issue authority to
Mexico-domiciled motor carriers to transport oversized or overweight
goods, industrial cranes, or operate vehicle towing, rescue, or
packaging and courier services in this pilot program.
Discussion of Comments
The notice and comment process for all pilot programs is required
by statute (49 U.S.C. 31315) with the intent of providing all
interested parties with the opportunity to review information published
by the Agency and to comment on the specific details about any proposed
pilot program. As of June 1, 2011, FMCSA received 2,254 comments or
docket submissions in response to the April 13, 2011, notice. Over
1,000 comments were submitted by individuals on behalf of the
International Brotherhood of Teamsters (Teamsters).
There were three recurring submissions from individuals that made
up the majority of the comments. These commenters expressed concerns
about the violence in Mexico and indicated that the pilot program will
negatively impact U.S. jobs at a time when unemployment is high.
Approximately 1,000 of the comments were submissions by individuals
suggesting that the Agency should abandon the idea of a pilot program.
Generally, these comments did not include information concerning the
technical details of the Agency's proposal (e.g., specific safety
oversight procedures or processes), economic or legal aspects of the
pilot program, or any other information supporting the view that the
program should not be pursued. While FMCSA is not responding to these
comments individually, the Agency believes that its responses to the
substantive comments received address the brief comments submitted by
these individuals.
Moreover, the purpose of this pilot program is to test the granting
of authority to Mexico-domiciled motor carriers to conduct long-haul
operation in the United States, in order to evaluate the ability of
Mexico-domiciled motor carriers to operate safely in the United States
beyond the border commercial zones as part of DOT's implementation of
the NAFTA land transportation provisions. While FMCSA acknowledges
these commenters' concerns, the issues are beyond the scope of the
pilot project in that they do not relate to the safe operation of CMVs
by Mexico-domiciled motor carriers or compliance with U.S. motor
carrier safety regulations. Therefore, these comments will not be
addressed in this notice.
The remaining comments were from members of Congress, companies,
organizations, associations, and individuals expressing their views on
specific details about the pilot program.
The Agency's announcement of its intent to proceed with the program
is based on its consideration of all data and information currently
available, including information submitted by the commenters.
The Agency received substantive comments from: Advocates for
Highway and Auto Safety (Advocates); Teamsters; the American Trucking
Associations (ATA); California Trucking Association (CTA); the Owner-
Operator Independent Drivers Association (OOIDA); International
Registration Plan (IRP), the Border Trade Alliance (BTA), the American
Association for Justice (AAJ), Werner Enterprises, and the Truck Safety
Coalition (Coalition)--a partnership with Citizens for Reliable and
Safe Highways and Parents Against Tired Truckers. In addition, comments
were received from several U.S. Representatives and Senators.
General Support for the Pilot Program
Many commenters supported the pilot program and recognized its
importance in meeting U.S. obligations under NAFTA. U.S. companies and
their representative associations that have been negatively impacted by
the tariffs imposed by the Government of Mexico as a result of the
termination of the previous demonstration project also expressed their
strong support for the program. Companies negatively impacted by the
tariffs included Oceanspray, Kraft Foods, Con Agra, Campbell Soup
Company, American Frozen Foods Institute, National Cattlemen's Beef
Association, National Potato Council, North American Equipment Dealers
Association, the Grocery Manufacturers Association, Association of
Food, Beverage and Consumer Products Companies, Distilled Spirits
Council of the United States, Fresh Produce Association of the
Americas, Mars, National Association of State Departments of
Agriculture, the Snack Food Association, and Tysons Food. These
commenters expressed their support for the pilot program as the means
to remove the tariffs that have negatively impacted their industries.
Supporters of the pilot program include U.S. Representatives Mike
Thompson and Reid Ribble. Representative Thompson stated,
The proposal the Administration crafted includes important
protections to ensure trucks crossing the border are operating
safely on our roadways and under our environmental standards,
allowing us to monitor and inspect vehicles before they are approved
for cross-border trucking operations. I believe implementation of
this revised pilot program provides a clear path toward the
elimination of these harmful retaliatory tariffs and normalization
of trade between our two countries, while also ensuring the
integrity of our roadways.
Thirteen commenters--including the U.S. Apple Association, the
National Council of Farmer Cooperatives and the National Association of
State Departments of Agriculture--referenced the Congressional Research
Service and/or OIG reports that concluded during the previous 18-month
pilot program, Mexican trucks were as safe as--if not safer than--their
U.S. counterparts and were subject to far more inspections.
U.S. Representative Doc Hastings and 29 congressional colleagues
provided a letter in support of the pilot program, stating,
As you know, Mexico imposed $2.6 billion in retaliatory tariffs
on 99 U.S. agricultural and manufacturing products more than two
years ago, after the United States halted a cross-border trucking
program that was designed to bring the United States into compliance
with our international obligations in a matter consistent with U.S.
law. Since then, Mexico has rotated the tariffs to cover additional
products, and Mexican officials have made clear they are prepared to
do so yet again.
These tariffs have already cost tens of thousands of U.S. jobs
and over $4 billion to U.S. job creators, at a time when our economy
is already struggling. It is imperative for U.S. workers and
exporters that these tariffs be eliminated. Mexico has agreed to
suspend fifty percent of the tariffs across the board once the new
cross-border trucking pilot program is officially instituted and
remaining tariffs once the first permit is issued under the program.
The success of this pilot program is, thus, critical for U.S.
workers and exporters--and for U.S. economic recovery.
This letter concluded with the statement that,
In short, we have long believed that the United States can
strengthen its economy by resolving this major issue with one of our
largest trading partners--in a manner that fully ensures the safety
of U.S. highways. This pilot program and its substantial safeguards
are prudent and responsible. We strongly encourage you to move
forward with finalizing and implementing this plan as soon as
possible. These tariffs have done irreparable damage to our local
economies, and U.S. workers, farmers, manufacturers,
[[Page 40425]]
and other exporters simply cannot afford any further delays.
The United States-Mexico Chamber of Commerce stated,
In 2010, Mexico and the United States enjoyed a nearly $400
billion trade relationship, and 70 percent of it travels by truck in
an antiquated transportation system that requires three trucks and
three drivers to do the job of one. This not only bloats producer
and consumer prices by hundreds of millions of dollars a year. It
also fails to fulfill the benefits (particularly lower
transportation costs) that accrue from U.S.-Mexico proximity--a key
NAFTA advantage. Doing so now clearly would boost U.S. and North
American competitiveness against economic rivals and result in still
more jobs.
The Cato Institute advised,
The failure of Congress to allow implementation of the NAFTA
trucking provisions has proven costly to the United States in three
important ways.
First, U.S. failure to comply has deprived our economy of the
efficiencies of moving goods across our mutual border at lower cost.
With the ban in place, trucks approaching the border are required to
unload their cargo into warehouses in so-called commercial zones
within 25 miles of the border, only to have that cargo reloaded onto
short-haul vehicles and then onto domestic trucks for final
delivery. This inefficient system causes delays, increased pollution
and added costs at busy border crossings such as Calexico East; San
Ysidro; Nogales, Ariz.; and Laredo, Texas. Because more than 70
percent of U.S. trade with Mexico travels by truck, the ban on
cross-border trucking imposes an additional $200 million to $400
million in transportation costs each year, according to the U.S.
Department of Transportation.
Second, failure to comply has exposed U.S. exporters to
perfectly legal sanctions imposed by the Mexican government. Under
the provisions of NAFTA, and after waiting patiently for more than a
decade, the Mexican government imposed sanctions in 2009 on more
than $2.4 billion in U.S. exports affect 100 products, from
Washington apples to Iowa pork. The sanctions would be lifted in two
stages as the U.S. government implements the proposed program to
comply with Annex I.
Third, failure to comply has compromised the U.S. government's
reputation as a good citizen of the global trading system. Simply
put, the U.S. government has failed to keep its word to our Mexican
neighbors. Our government has been in flagrant violation of a major
trade agreement for more than 15 years. This breach of trust has
undermined the U.S. government's standing to challenge other
governments, from Mexico to China to the European Union, who may
also be in violation of various trade agreements. The Obama
administration's promise to more vigorously ``enforce'' our rights
in the World Trade Organization and other agreements will lack
credibility as long as the U.S. government fails to comply with such
clear commitments as the trucking provisions of NAFTA.
For all these reasons, the U.S. government should act as quickly
and as thoroughly as possible to implement the proposed regulations
to bring our nation into compliance with our mutually beneficial
agreement with our Mexican neighbors on cross-border trucking.
General Opposition to the Pilot Program
Most of the individual commenters to the April 13 notice expressed
concerns about the following:
(1) The U.S. Government's funding of the electronic monitoring
devices for participating Mexico-domiciled motor carriers;
(2) Mexico's standards for CDLs;
(3) The accuracy and completeness of Mexico's driver records;
(4) Compliance with hours-of-service requirements; and
(5) Comparable access for U.S. motor carriers.
U.S. Senator John D. Rockefeller and U.S. Representative Peter A.
DeFazio both noted the economic impacts of NAFTA. Representative
DeFazio expressed concern that ``the Administration is not launching a
pilot program, but rather starting the full liberalization of cross-
border trucking without having fully addressed the concerns raised by
members of Congress surrounding safety, security, and job impacts that
will necessarily arise.'' Representative DeFazio further suggested
``that the U.S. should renegotiate U.S. NAFTA Annex I (I-U-21) * * *
thus eliminat[ing] the requirement to open our borders to Mexican
trucks.''
U.S. Representative Bob Filner and U.S. Senator Mark Pryor also
expressed concerns about the pilot program. Representative Filner's
concerns included traffic congestion at our land port-of-entry and the
impact on border wait times. He stated that, ``Many of my constituents
already have to wait in lines several hours each day to cross the
border * * *. We simply do not have enough Border Patrol and
Immigration and Customs Enforcement agents at the border to deal with
the existing traffic or the heavy burden of the proposed program.''
U.S. Representative Duncan Hunter, Jr. and 43 additional members of
Congress co-signed a letter to the Secretary communicating their
concerns about safety, the costs of electronic monitoring devices, and
violence in Mexico. A copy of each congressional letter is available in
the docket for this notice.
1. Operating Authority Under the Pilot Program
The Coalition stated that the pilot program participants should not
be granted permanent authority before completion of the pilot program
and evaluation of the results. The Coalition stated that, ``Granting
permanent operating authority before the Pilot Program is completed
undermines the purpose of the experiment and data collection and puts
the public at serious risk.''
Representative DeFazio questioned how the Agency could comply with
49 U.S.C. 31315, which requires DOT to immediately revoke the
participation of any motor carrier or driver who fails to comply with
the terms and conditions of the pilot program, if the Agency is
granting permanent authority.
OOIDA challenged the Agency's statutory authority for issuing
operating authority. OOIDA averred that 49 U.S.C. 13902 precludes FMCSA
from accepting compliance with certain Mexican laws and regulations in
lieu of compliance with U.S. laws and regulations. OOIDA stated,
``FMCSA is simply not authorized to issue operating authority to any
motor carrier (U.S. or Mexican) unless that carrier agrees to comply
with applicable U.S. statutes and regulations.'' To support its
position, OOIDA quoted a statement in the November 27, 2002, Memorandum
of the President for the Secretary of Transportation, ``Determination
Under the Interstate Commerce Commission Termination Act of 1995,'' (65
FR 71795, November 27, 2002), which terminated a moratorium on issuing
operating authority to Mexico-domiciled motor carriers:
Motor carriers domiciled in Mexico operating in the United
States will be subject to the same Federal and State laws,
regulations, and procedures that apply to carriers domiciled in the
United States.
Advocates questioned whether FMCSA will be granting temporary
operating authority to any participating Mexico-domiciled long-haul
motor carriers before they are accepted into the pilot program.
Advocates also stated that it opposes the granting of any operating
authority, including temporary authority, in advance of FMCSA's
publication of a notice in the Federal Register describing its data and
information on completed PASAs and its analysis of public comments in
response to the notice concerning the completed PASAs. Advocates also
requested ``that the agency publish all the PASAs of all the
participating motor carriers in advance of the start of the Pilot
Program and before any motor carriers are granted temporary operating
authority.''
FMCSA Response: FMCSA's Authority to Issue Operating Authority.
Title 49 U.S.C. 13902(a) directs FMCSA
[[Page 40426]]
to grant operating authority to motor carriers that comply with all
applicable safety regulations and financial responsibility
requirements. As discussed in the ``Legal Basis'' section above,
section 6901(a) of the 2007 Appropriations Act requires that before
FMCSA may obligate or expend any funds to grant authority for Mexico-
domiciled motor carriers to engage in cross-border long-haul
operations, it is required to first test granting such authority
through a pilot program that meets the standards of 49 U.S.C. 31315(c).
By expressly providing for pilot programs in 49 U.S.C. 31315(c), and
requiring FMCSA to first test the granting of long-haul authority to
Mexico-domiciled motor carriers through a pilot program, Congress
clearly contemplated that motor carriers participating in a test
meeting the conditions of section 31315(c) would lawfully be granted
operating authority under 49 U.S.C. 13902(a). Furthermore, the pilot
program satisfies the fundamental statutory standard of equivalent
safety protection and all other pilot program requirements. The safety-
equivalence standard in section 31315(c) requires that the pilot
program be designed to achieve a safety level equal to that prevailing
under existing Federal Motor Carrier Safety Regulations (FMCSRs). The
pilot program does not relax U.S. regulations for participants. Rather,
it simply implements the presidential order lifting geographic
limitations on cross-border trucking for a limited number of Mexico-
domiciled motor carriers and imposes additional layers of safety
monitoring upon those motor carriers. Existing Federal regulations
already recognize and accept the Mexican Licencia Federal de Conductor
(LFC) as equivalent to the U.S. CDL, (Sec. 383.23(b) and footnote) and
pursuant to these regulations, thousands of LFC holders have driven
Mexican trucks into the United States since their adoption in 1992 and
continue to do so today. In all other significant respects, U.S.
requirements apply with full force to participants in the pilot
program. The Agency, by showing that the pilot program satisfies the
standard of equivalent safety protection imposed by 49 U.S.C. 31315(c),
satisfies the requirements of 49 U.S.C. 13902(a).
Permanent Operating Authority under the Pilot Program. Some
commenters seemed to misapprehend the reference to ``pilot program
permanent authority'' in the April 13, 2011 notice. That authority is
not the same as standard permanent authority; will not continue after
the expiration of the pilot program (unless converted into standard
permanent authority); and may be revoked at any time if the operator
fails to comply with the terms and conditions of the pilot program.
All operating authority granted under the pilot program will be
subject to the terms and conditions of the pilot program. Under the
pilot program, participating motor carriers will have the opportunity
to operate under three successive stages of monitoring. Stage 1 will
begin when the motor carrier is issued a provisional operating
authority. The motor carrier's vehicles and drivers approved for long-
haul transportation will be inspected each time they enter the United
States for at least 3 months. This initial 3-month period may be
extended if the motor carrier does not receive at least three vehicle
inspections. FMCSA will also conduct an evaluation of the motor
carrier's performance during Stage 1.
Mexico-domiciled motor carriers may be permitted to proceed to
Stage 2 of the pilot program after FMCSA completes an evaluation of the
motor carrier's performance in Stage 1. During Stage 2, the motor
carrier's vehicles and drivers participating in the pilot program will
be inspected at a rate comparable to other Mexico-domiciled motor
carriers that cross the United States-Mexico border. The motor
carrier's safety data will be monitored to assure the motor carrier is
operating in a safe manner. Within 18 months after a Mexico-domiciled
motor carrier is issued provisional operating authority, FMCSA will
conduct a CR on the motor carrier. If the motor carrier obtains a
satisfactory safety rating, has no pending enforcement or safety
improvement actions, and has operated under provisional authority for
at least 18 months, the provisional operating authority will become
permanent, moving the motor carrier into Stage 3.
Stage 3 of the pilot program includes participating Mexico-
domiciled motor carriers that have successfully operated for an 18-
month monitoring period, have a satisfactory safety rating from a CR,
and have no pending enforcement or safety improvement actions. Motor
carriers that advance to Stage 3 of the pilot program will operate
under permanent operating authority under, and fully subject to the
requirements of, the pilot program. Granting this permanent operating
authority under the pilot program does not restrict the Agency's
authority to remove from the program any motor carrier that fails to
comply with terms and conditions of the pilot program. Under 49 U.S.C.
31315, FMCSA may revoke participation in the pilot program of a motor
carrier, CMV, or driver for failure to comply with the terms and
conditions of the pilot program.
The successive stages in the pilot program are intended to be
consistent with the Agency's regulations promulgated in 2002 related to
Mexico-domiciled motor carriers operating beyond the border commercial
zones (49 CFR part 365, subpart E). Those regulations provide for a
Mexico-domiciled motor carrier to be initially granted provisional
operating authority and be subject to increased monitoring. The
authority, by definition, is provisional because it will be revoked if
the motor carrier is not assigned a satisfactory safety rating
following a CR conducted during an 18-month safety monitoring period
established in the regulations. Under these regulations, if, at the end
of 18-months of monitoring the motor carrier's most recent safety
rating is satisfactory and the motor carrier does not have any pending
enforcement or safety improvement actions, the Mexico-domiciled motor
carrier's provisional operating authority becomes permanent. However,
this authority is still subject to revocation as detailed above.
Section 6901 requires FMCSA to first test the granting of operating
authority for long-haul operation by Mexico-domiciled motor carriers
through a pilot program. An important component and improvement of this
pilot program is that by using the progressive stages of monitoring,
the Agency is able to test the full range of its regulations while
effectively monitoring Mexico-domiciled motor carriers to ensure the
safety of long-haul operations and that such operations are conducted
in compliance with all applicable laws and regulations.
In accordance with section 6901(c), within 60 days after the
conclusion of the pilot program, the OIG is required to review the
program and submit to Congress a final report addressing whether FMCSA
has established sufficient mechanisms to determine whether the pilot
program is having any adverse effects on motor carrier safety, and
whether Federal and State monitoring and enforcement activities are
sufficient to ensure that participants in the pilot program are in
compliance with all applicable laws and regulations. Only at the
conclusion of the pilot program will Mexico-domiciled motor carriers
that participated in the pilot program and advanced to the Stage 3
permanent authority in the pilot program be eligible to convert their
pilot program permanent authority to standard permanent authority.
FMCSA has not yet developed the procedures for such conversions, but
anticipates the
[[Page 40427]]
procedures will establish an administrative process that would occur
once the pilot program ends.
Granting of Provisional Operating Authority. The Agency may have
caused some confusion in the April 13, 2011, notice when it stated that
``the Agency will publish a summary of the application as a provisional
grant of authority in the FMCSA Register.'' FMCSA will review and act
on applications for authority in the pilot program in accordance with
applicable regulations. The Agency's rules governing applications for
authority are codified in 49 CFR part 365. FMCSA is required under its
regulations to publish a summary of each application for motor carrier
operating authority, regardless of the applicant's country of domicile,
as a preliminary grant of operating authority for public notice in the
FMCSA Register (49 CFR 365.109(b) and 365.507(d)). For prospective
pilot program participants, such publication will occur only after the
motor carrier successfully completes the PASA and FMCSA approves the
application. Such publication of the application as a preliminary grant
of authority in the FMCSA Register is not an issuance of temporary
authority, but a notice to the public to permit interested parties
wishing to oppose the authority to submit a protest to FMCSA. A
preliminary grant of authority cannot become effective or active
operating authority for a minimum of 10 days after publication. If a
motor carrier successfully completes the PASA and FMCSA approves its
application, the Agency will publish a summary of the application as a
preliminary grant of authority in the FMCSA Register at: http://li-public.fmcsa.dot.gov/LIVIEW/pkg_html.prc_limain. To review these
notices, select ``FMCSA Register'' from the pull down menu.
The FMCSA emphasizes that the public has the opportunity to comment
in response to the FMCSA Register on every operating authority
application that the Agency proposes to grant and that motor carriers
may not operate during the comment period. Any member of the public may
protest a motor carrier's application on the grounds that the motor
carrier is not fit, willing, or able to provide the transportation
services for which it has requested approval. FMCSA must consider all
protests before determining whether to grant provisional operating
authority to the motor carrier. The Agency's regulations regarding
protests, codified at 49 CFR part 365 subpart B, set forth the
procedures for protesting operating authority requests, including
requests filed by U.S.- and Canada-domiciled motor carriers.
As required by section 6901(b)(2)(B)(i) of the 2007 Appropriations
Act, 2007, FMCSA will also publish in the Federal Register, and solicit
comment on comprehensive data and information relating to the PASAs of
motor carriers domiciled in Mexico that are granted authority in the
pilot program to operate beyond the border commercial zones. Therefore,
the public has two opportunities to comment on Mexico-domiciled motor
carriers' applications: (1) In response to the application summary
information posted on the FMCSA Register, and in response to the
Federal Register notice required by section 6901(b)(2)(B)(i) of the
2007 Appropriations Act. Provisional authority will not be granted
until these processes and their respective notice periods are complete.
While FMCSA will publish information on the results of the PASA in
the Federal Register for public comment for each motor carrier before
granting the motor carrier provisional operating authority, FMCSA is
not able to publish the results of the PASAs for all motor carriers
that may ultimately apply to participate in the pilot program before
the program begins. FMCSA will have no way of knowing at the beginning
of the pilot program all of the motor carriers that may decide to apply
to participate in the program during its three year duration and,
therefore, could not publish the results of all PASAs before beginning
the pilot program. Additional motor carriers that apply to participate
in the pilot program after it begins will also be subject to PASAs, and
the results of those PASAs will be published in the Federal Register
before any such motor carrier is granted provisional operating
authority.
2. Pilot Program Improperly Exempts Mexico-Domiciled Motor Carriers
From Safety Laws and Regulations
OOIDA contends that accepting Mexican standards and regulations in
lieu of U.S. statutes and regulations results in an exemption, and that
FMCSA has failed to follow its authority and regulations for
exemptions. OOIDA stated that, ``Excusing compliance with U.S.
regulations for the duration of its pilot program certainly qualifies
as `temporary regulatory relief' for a person or class of persons
subject to those regulations.'' OOIDA asserts that this, therefore,
requires the Agency to follow the procedures for granting exemptions
from U.S. regulations and deprives interested parties procedural
protections.
FMCSA Response: This pilot program does not provide Mexico-
domiciled motor carriers with exemptions from any statutory
requirements or any of the Agency's regulations or make them eligible
for any existing exemption. To the contrary, motor carriers
participating in the program will be subject to existing statutory
requirements and regulations, including the regulations mandating the
PASA (49 CFR 365.507(c)). Additionally, because no exemptions from or
new approaches to statutory requirements and safety regulations are
being employed in the pilot program, the level of safety oversight that
will be achieved in the program is the same or greater than would
otherwise be achieved if Mexico-domiciled motor carriers were granted
authority to operate beyond the border commercial zones outside of the
context of a pilot program.
As to the issue of driver's license equivalency, the Agency has
long recognized Mexico's LFC as equivalent to the CDL issued by U.S.
State driver licensing agencies that follow the Federal standards under
49 CFR Parts 383 and 384. The Mexican LFC is recognized as a valid
substitute for the CDL and is the basis for a signed international
agreement under which the United States and Mexico have recognized each
other's commercial driver's licenses, a decision that was upheld on
judicial review (Int'l. Brotherhood of Teamsters v. Pe[ntilde]a, 17
F.3rd 1478 (DC Cir. 1994)). The Agency has also long recognized
Mexico's physical qualification standards. These are not exemptions,
but well-established alternative means of meeting U.S. standards that
pre-date the pilot program. Indeed, every day, thousands of Mexican
drivers safely operate Mexico-domiciled trucks in the United States
under these rules.
Neither the Government of Mexico nor any Mexico-domiciled motor
carrier has requested that FMCSA consider granting an exemption from
U.S. safety requirements for participating motor carriers, and the
Agency is not seeking public comment on any forms of regulatory relief.
The continued honoring of reciprocity agreements concerning the
acceptance of the Mexican LFC and the medical certification should not
be construed as granting regulatory relief. Nor is the allowance of
specimen collections on the Mexican side of the border, in accordance
with U.S. requirements, a form of regulatory relief.
All tests musts must be performed in accordance with the
Department's controlled substances and alcohol testing regulations (49
CFR part 40),
[[Page 40428]]
which require that specimens be processed at U.S. laboratories
certified to conduct such tests.
3. Equivalency of United States-Mexico Laws and Regulations Governing
Safety
Advocates, Teamsters, the Coalition and OOIDA all challenged the
equivalency of U.S. and Mexican safety laws. Advocates asserted that
``[r]egulatory differences that affect vehicle operation must be
reconciled before commencement of Pilot Program.'' Advocates questioned
the equivalence of CDLs, disqualification violations, and drug testing.
Several commenters requested clarification of the Agency's system
to monitor performance of Mexico-licensed drivers and expressed
concerns about the accuracy and completeness of the Mexican LFC and
Mexican State license information.
Teamsters also noted that there are no drug testing laboratories in
Mexico that are certified by the U.S. Department of Health and Human
Services. OOIDA and Teamsters both requested additional information
regarding the training regime for Mexican personnel to follow U.S.
procedures for drug and alcohol testing collection and chain of
custody.
Teamsters noted that the medical qualification standard for vision
is different in Mexico than in the United States, as Mexico requires
red-vision only. OOIDA encouraged the Agency to provide additional
information on the Mexican medical certification requirements.
Multiple commenters asked how information about violations in
personal vehicles in Mexico would be obtained and used by FMCSA.
OOIDA and Advocates both believe that FMCSA has an obligation to
post more information about the equivalent laws and regulations and to
provide copies of the Mexican regulations in English.
FMCSA Response: CDLs. As noted above, in 1991, the Secretary and
his counterpart in Mexico entered into an agreement on the matter of
driver license reciprocity. The agreement is in the form of a
memorandum of understanding (MOU) and was reproduced as Appendix A to a
final rule issued in 1992 by FMCSA's predecessor agency, the Federal
Highway Administration (FHWA). (Commercial Driver's License Reciprocity
with Mexico, 57 FR 31454 (July 16, 1992)). The primary purpose of the
MOU was to establish reciprocal recognition of the CDL issued by the
States to U.S. operators and the LFC issued by the government of the
United Mexican States (i.e., by the national government of Mexico, not
by the individual Mexican states). In light of the agreement, the FHWA
determined that an LFC meets the standards contained in 49 CFR part 383
for a CDL. (49 CFR 383.23(b)(1) and footnote) FHWA also stated in the
July 16, 1992 final rule:
It should be noted that Mexican drivers must be medically
examined every 2 years to receive and retain the Licencia Federal de
Conductor; no separate medical card [certificate] is required as in
the United States for drivers in interstate commerce. As the
Licencia Federal de Conductor cannot be issued to or kept by any
driver who does not pass stringent physical exams, the Licencia
Federal de Conductor itself is evidence that the driver has met
medical standards as required by the United States. Therefore,
Mexican drivers with a Licencia Federal de Conductor do not need to
possess a medical card while driving a CMV in the United States.
(57 FR 31455)
The Agency's determination that a Mexico-domiciled driver with an
LFC does not need to possess a separate medical certificate is based on
the fact that the medical examination necessary to obtain the LFC meets
the standards for an examination by a medical examiner in accordance
with FMCSA regulations, and would therefore meet the requirements of 49
U.S.C. 31136(a)(3).
While FMCSA recognizes that U.S. CDL regulations have been amended
since 1991, those changes relate almost exclusively to the types of
offenses that would result in disqualification of licenses and to the
administration of the licensing program (i.e., how information is
reported and shared among the States). There have been no major changes
to the U.S. knowledge and skills testing until issuance of a May 9,
2011 final rule implementing the CDL Learner's Permit processes titled,
``Commercial Driver's License Testing and Commercial Learner's Permits
Testing,'' (76 FR 26854). States have 3 years to implement the
provisions of that rule. The United States will address the changes in
U.S. CDL regulations with Mexico during the updating of the 1991 CDL
MOU that is currently underway.
With respect to the changes relating to disqualifying offenses (49
CFR part 383, subpart D), FMCSA is not relying on Mexico's
disqualifying offenses. During the PASA, FMCSA will review violation
information from a driver's U.S. record, LFC record, and Mexican State
license record to determine if the driver is qualified to drive in the
United States, based on the current disqualification requirements for a
U.S. CDL holder. FMCSA will also review Mexican State license records
for violations in a personal vehicle that would result in suspension or
revocation in the United States. After the PASA, these sets of records
will be reviewed annually by FMCSA to ensure continued compliance.
FMCSA does, however, recognize the concern about the on-going
acceptance of the existing CDL MOU. In the Agency's efforts to update
the MOU, on February 16, 2011, a delegation of FMCSA and DOT
representatives toured SCT's commercial driver's licensing office in
Mexico City, Districto Federal, Mexico. The review of the commercial
driver's licensing office showed that the LFC is issued in a manner
similar to that employed by U.S. State commercial drivers licensing
offices. Applicants are required to present documentation to verify
their identity and place of residence. Additionally, applicants are
required to provide documentation that they have passed the required
psycho-physical examination. The drivers licensing office verifies this
information by accessing the SCT's medical units' database. Applicants
are also required to provide a training certificate from an SCT-
certified training school.
On February 17, 2011, a delegation of FMCSA, CVSA, and the American
Association of Motor Vehicle Administrators (AAMVA) representatives
toured the commercial driver's licensing office in Monterrey, Nuevo
Leon, Mexico. The delegation observed the same processes as were seen
in Mexico City. In addition, the delegation toured an SCT-certified
training school in Monterrey. The tour included a description of the
classroom, simulator, maintenance shop, and behind the wheel training.
The training school operator described the driver testing procedures.
FMCSA will be undertaking additional site visits to Mexican driver
training, testing, and licensing locations prior to beginning the pilot
program to review Mexico's on-going compliance with the terms of the
current MOU. Reports of these visits will be posted on the FMCSA pilot
program Web site at http://www.fmcsa.dot.gov.
FMCSA's statement that Mexico-domiciled drivers and motor carriers
will be subject to the same standards as U.S. drivers and motor
carriers does not mean that U.S. standards must be applied to Mexico-
domiciled drivers and motor carriers while operating in Mexico. The
Agency does not have authority to apply U.S. standards to driver or
motor carrier actions occurring in Mexico, i.e., it has no
extraterritorial
[[Page 40429]]
jurisdiction to enforce FMCSA rules. If Mexico chooses to suspend or
revoke a driver's LFC for violations committed in Mexico, the Licencia
Federal Information System (LIFIS) will reflect that fact and FMCSA
will refuse to let the driver operate in this country.
All drivers operating CMVs in the United States are subject to the
same driver disqualification rules, regardless of the jurisdiction that
issued the driver's license. The driver disqualification rules apply to
driving privileges in the United States. Any convictions for
disqualifying offenses that occur in the United States will result in
the driver being disqualified from operating a CMV for the period of
time prescribed in the FMCSRs.
In Mexico, in order to obtain the LFC, a driver must meet the
requirements established by the Ley de Caminos, Puentes y
Autotransporte Federal (Roads, Bridges and Federal Motor Carrier
Transportation Act) Article 36, and Reglamento de Autotransporte
Federal y Servicios Auxiliares (Federal Motor Carrier Transportation
Act) Article 89, which state that a Mexican driver must pass the
medical examination performed by Mexico's SCT, Directorship General of
Protection and Prevention Medicine in Transportation (DGPMPT). While
there is currently no government oversight of the proficiency and
knowledge of medical examiners in the United States, the medical
examinations in Mexico are conducted by government doctors or
government-approved doctors instead of the private physicians who
perform the examination on U.S. drivers.
The Agency emphasizes that drivers for Mexico-domiciled motor
carriers have been operating within the border commercial zones for
years with the medical certification provided as part of the LFC, and
the Agency is not aware of any safety problems that have arisen as a
result.
In response to the questions regarding how violations in personal
vehicles will be handled and the quality of the Mexican databases,
FMCSA notes that it and its Federal and State partners performed
254,397 checks of LFC holders in FY 2010. These LFC checks resulted in
detection of a valid license 250,640 times, expired licenses 3,713
times, and disqualified licenses 44 times. While the Mexican State
driving records systems vary significantly, FMCSA will be working with
the applicant motor carriers, drivers, and SCT to secure valid copies
of the State driving records for review.
FMCSA has satisfied the requirement of section 350(c)(1)(G)
concerning an accessible database containing sufficiently comprehensive
data to allow safety monitoring of motor carriers operating beyond the
border commercial zones and their drivers. Looking specifically at
driver monitoring, in 2002 FMCSA established a system known as the
Foreign Convictions and Withdrawals Database (FCWD), which serves as
the repository of the U.S. conviction history on Mexican CMV drivers.
The system allows FMCSA to disqualify such drivers from operating in
the United States if they are convicted of disqualifying offenses
listed in the FMCSRs.
The FCWD is integrated into the Agency's gateway to the Commercial
Driver's License Information System (CDLIS), allowing enforcement
personnel performing a Mexican CDLIS-check to simultaneously query both
the Mexican LIFIS and the FCWD. The response is a consolidated driver
U.S./Mexican record showing the driver's status from the two countries'
systems.
The States also have the capability to forward U.S. convictions of
LFC holders, and other drivers from Mexico, to the FCWD via CDLIS. To
accomplish this, the States implemented changes to their information
systems and tested their ability to make a status/history inquiry and
forward a conviction to the FCWD. All States except Oregon, (which does
not electronically transmit any convictions) and the District of
Columbia (which does not electronically transmit convictions of Mexico-
domiciled CDL drivers) have successfully tested electronically
forwarding convictions on Mexico-domiciled CMV drivers. Both
jurisdictions, however, can manually transmit the information to FMCSA
for uploading into the system.
As of May 31, 2011, the border States transmitted 46,065
convictions to the FCWD between 2002 and 2011. This averages 5,118 per
year. Of that number, 41,118 were transmitted electronically and 4,947
were manually entered into the system. It should be noted that only 242
of these convictions were for major traffic offenses (as listed in 49
CFR 383.51(b)), and 1,709 were for serious traffic offenses (as listed
in 49 CFR 383.51(c)). In comparison, between May 2010 and May 2011, the
States transmitted 186,184 U.S. driver convictions through CDLIS.
The conviction data shows that the system is working, and States
can both transmit the conviction data on Mexico-domiciled drivers and
query the system to retrieve conviction data. FMCSA and its State
partners have experience from providing safety oversight for Mexico-
domiciled drivers currently operating within the border commercial
zones. It is reasonable to believe that the small group of drivers who
would be involved in the pilot program will be no more difficult to
monitor than the much larger population of Mexico-domiciled drivers
currently allowed to operate within the border commercial zones.
As an additional safety enhancement, compared to the previous
demonstration project, the Agency will review the Mexican State license
of a driver for violations that would result in a revocation or
suspension in the United States. This will include violations in
personal vehicles that would impact a CDL in the United States.
Drug and Alcohol Testing. Regarding the protocols for collection of
specimens for drug and alcohol testing, FMCSA clarifies that Mexico is
using procedures equivalent to those established by DOT regulations. A
copy of the 1998 MOU between DOT and the Government of Mexico is
included in the docket for this notice.
Urine specimens for controlled substances testing must be collected
in a manner consistent with 49 CFR part 40, Procedures for
Transportation Workplace Drug and Alcohol Testing Programs. During the
2007-2009 demonstration project, an independent evaluation panel
conducted its own assessment of the urine collection procedures at four
collection facilities in Mexico. The panel concluded that Mexico has a
collection program with protocols that are at least equivalent to U.S.
protocols found in 49 CFR part 40. Because there are no U.S.-certified
laboratories in Mexico, Mexico-domiciled motor carriers must comply by
ensuring that the specimens are tested in a U.S.-certified laboratory.
The participants in the 2007-2009 demonstration project all had
specimens tested in U.S.-certified laboratories located in the United
States.
In the new pilot program, urine collection may continue to take
place in Mexico. The specimens will be processed in accordance with
U.S. requirements. Drivers who refuse to report to the collection
facility in a timely manner will be considered to have refused to
undergo the required random test, and the motor carrier would be
required to address the issue in accordance with FMCSA's Controlled
Substances and Alcohol Use and Testing regulations (49 CFR part 382).
Currently, Mexico-domiciled drivers operating within the border
commercial zones use this approach to comply with the random testing
requirements of 49 CFR 382.305. The random selection of drivers must be
made by a scientifically valid method; each driver selected for
[[Page 40430]]
testing must have an equal chance (compared to the motor carrier's
other drivers operating in the United States) of being selected, and
drivers must be selected during a random selection period. Also, the
tests must be unannounced, and the dates for administering random tests
must be spread reasonably throughout the calendar year. Employers must
require that each driver who is notified of selection for random
testing proceed to the test site immediately.
In addition, through the PASA, the Agency will determine whether
the motor carrier has a program in place to achieve full compliance
with the controlled substances and alcohol testing requirements under
49 CFR parts 40 and 382. The ability of the border commercial zone
motor carriers to follow these procedures further demonstrates that
Mexico-domiciled motor carriers are capable of satisfying the Agency's
drug and alcohol testing requirements. Based on FMCSA's experience
enforcing the controlled substances and alcohol testing requirements on
border commercial zone motor carriers, the Agency believes long-haul
Mexico-domiciled motor carriers can and will comply with the random
testing requirements, especially given that some of the anticipated
participants in the pilot program may already have authority to conduct
operations within the border commercial zones.
The Agency's experience in this area and the drug collection
facility reviews performed during the previous demonstration project
make us confident that testing is being conducted correctly. In
addition, the Agency will be conducting collection facility reviews
during the pilot program to verify specimens are being collected
correctly.
Medical Qualifications. FMCSA has compared each of its physical
qualifications standards with the corresponding requirements in Mexico
and continues to believe acceptance of Mexico's medical certificate is
appropriate, especially given that some Mexican medical standards are
more stringent than their U.S. counterparts.
For example, one of the areas where Mexico's standards exceed those
of the U.S. is in Body Mass Index (BMI) and the association between BMI
and certain medical conditions that could increase the risk of a driver
having difficulty operating a CMV safely. Mexico's regulations include
certain limits on BMI, as it relates to medical conditions related to
obesity, whereas FMCSA's regulations do not include such requirements.
Another area where Mexico's physical examination and qualifications
process is more rigorous is vision testing. Mexico's examination
process includes a measurement of intraocular pressure, a test that may
be indicative of glaucoma, a disease characterized by a pattern of
damage to the optic nerve. FMCSA's regulations do not require a
measurement of intraocular pressure.
Finally, the medical certification for an LFC is part of Mexico's
licensing process for commercial drivers. This means the license is not
issued or renewed unless there is proof the driver has satisfied the
physical qualifications standards. This is not the case in the United
States, where medical certification is not currently posted on the CDL
record. FMCSA has issued regulations to move towards this level of
oversight (``Medical Certification Requirements as Part of the CDL,''
final rule, published at 73 FR 73096, December 1, 2008), but Mexico has
more stringent requirements in effect at this time.
There are some areas where FMCSA's requirements are more stringent.
Specifically, FMCSA requires drivers be capable of distinguishing
between red, green and yellow, while Mexico limits the color
recognition requirement to red. Additionally, the U.S. medical
examination has standards for both systolic and diastolic blood
pressure readings while Mexico only has a standard on the systolic
reading. A finding of equivalency, however, does not require that both
country's standards be identical. Here, it was FMCSA's considered
judgment that these differences would not diminish safety and that,
therefore, the Mexican requirements are equivalent to U.S.
requirements.
FMCSA has prepared a table comparing the United States' and
Mexico's physical qualifications standards. A copy of the table is
provided in the docket for this notice.
To assist in the review of Mexican regulations, FMCSA has added
English versions of the regulations to the docket for this notice. This
includes the Mexican regulations for the Transportation Preventive
Medicine Service Regulations, the Federal Motor Carrier Transportation
and Auxiliary Services Regulations, and the Federal Roads, Bridges, and
Motor Carrier Transportation Act.
4. Reciprocity With Mexico
The CTA, ATA, and numerous individual commenters stated that NAFTA
reciprocity could not be achieved because of the current state of
violence and corruption in Mexico. OOIDA also provided U.S. State
Department alerts to travelers and instruction to U.S. government
employees as documentation of the inability of Mexico to provide
``simultaneous and comparable'' authority and access.
The Teamsters elaborated that ``[s]ection 6901 limits funds to
grant authority to Mexican-domiciled motor carriers to operate beyond
the commercial zones to the extent that `simultaneous and comparable
authority to operating within Mexico is made available to motor
carriers domiciled in the United States.' '' Teamsters further stated
that ``[i]t is very clear that the safety of U.S. drivers traveling
into Mexico cannot be ensured, and therefore simultaneous and
comparable authority is not made available to U.S. motor carriers under
the pilot program.''
Ron Cole pointed out that a Congressional Research Report dated
February 1, 2010, notes ``[a]s of this writing the Mexican government
has not begun accepting applications from U.S. trucking companies for
operating authority in Mexico.'' The Texas Department of Motor Vehicles
suggested that FMCSA provide detailed information on Mexico's
regulatory requirements to the States and U.S. motor carriers that
express an interest in participating in the program.
The ATA also endorsed allowing Mexico-domiciled motor carriers with
U.S. investors to join the program as Mexico-domiciled motor carriers.
FMCSA Response: In response to the comments about reciprocity for
U.S. motor carriers, FMCSA will continue to work closely with the
Mexican government to ensure that U.S.-domiciled motor carriers are
granted reciprocal authority to operate in Mexico during the pilot
program. Mexico will publish rules for its current program before
initiation of the program. Both English and Spanish versions of SCT's
draft rules have been added to the docket for informational purposes.
In addition, the Department of Transportation is entering into a
MOU with Mexico's SCT that requires that Mexico provide reciprocal
authority.
The Agency will also work with the U.S. trucking industry to
facilitate the exchange of information between the Mexican government
and U.S. trucking companies interested in applying for authority to
enter Mexico under this pilot program.
Both Teamsters and OOIDA commented on the ongoing violence in
Mexico, and that it negatively impacts the possibility of U.S. motor
carriers entering Mexico. Both cite to the U.S.
[[Page 40431]]
State Department travel advisory, and in turn point to a portion of
section 6901 that states that ``simultaneous and comparable authority
to operate within Mexico is made available to motor carriers domiciled
in the United States.'' The reference to the section 6901 language
speaks to the ability of U.S. motor carriers to receive comparable
operating authority from Mexico's SCT. The MOU between DOT and SCT
provides for reciprocal access to each country. The SCT has issued
proposed rules outlining procedures for U.S. motor carriers to operate
in Mexico. They will have the ability to apply for authority and
operate within Mexico similar to that of Mexico-domiciled motor
carriers in the United States. Therefore, the statutory requirement has
been met. It is an independent business decision on the part of motor
carriers as to whether or not they wish to apply for authority, or use
it once obtained. Hundreds of companies are currently operating in the
border region, and four U.S. motor carriers from the 2007 demonstration
project continue to operate into Mexico. (Whereas the United States
required Mexico-domiciled motor carriers participating in the 2007
demonstration project to relinquish their operating authority when the
project was terminated, Mexico permitted the U.S.-domiciled motor
carriers holding reciprocal authority to continue their operations in
Mexico.)
OOIDA makes the claim that the violence in Mexico is a violation of
the NAFTA as a nullification and impairment of U.S. motor carrier
rights to engage in cross-border trade in services under Chapter 12 of
the NAFTA. OOIDA contends that, ``Federal, state and local governments
within Mexico are seen by many to be complicit'' in the drug-related
violence. OOIDA quotes Annex 2004 of the NAFTA ``Nullification and
Impairment'' language, including ``* * * being nullified or impaired as
a result of the application of any measure that is not inconsistent
with this Agreement * * *'' (emphasis added). The violence of the drug
cartels, according to OOIDA, impairs U.S. motor carriers wishing to
operate in Mexico. The fundamental error with this reasoning is that no
measure has been put in place by the Government of Mexico that would
prohibit U.S. motor carriers from doing business in Mexico, or would
put U.S. motor carriers at such a competitive disadvantage that they
are impaired. In order for Annex 2004 to apply, a State actor, such as
SCT, must put in place ``measures not inconsistent with'' cross-border
trade in services. It could constitute a violation of the NAFTA if a
Mexican agency put in place restrictions on U.S. motor carriers that
would on its face not be discriminatory but have the ultimate effect of
denying the motor carriers the benefits they reasonably expected under
Chapter 12. That, however, is not the case here. The application for
authority and using it to operate into Mexico requires several business
decisions on the part of the motor carrier, and it is ultimately the
motor carrier's decision to operate into Mexico, as much as it would be
for a motor carrier to expand its business from short-haul to long-
haul.
FMCSA also notes that while Mexico has not begun accepting
applications from U.S. trucking companies for operating authority in
Mexico, neither has FMCSA begun accepting applications from Mexico-
domiciled motor carriers for participation in the pilot program.
Mexico, like the United States, is updating its application procedures
for U.S. motor carriers to operate into Mexico. Following the
publication of this notice, FMCSA will begin accepting applications
from Mexico-domiciled motor carriers to participate in the pilot
program. Mexico will begin accepting applications from U.S. motor
carriers to operate in Mexico soon thereafter. When Mexico's new
processes are finalized, FMCSA will post information regarding those
requirements on our Web page related to this pilot program so that
States and industry are aware of the requirements. In any case, the
United States will not grant authority to operate beyond the border
commercial zones to any Mexico-domiciled motor carriers under this
pilot program unless and until Mexico is ready to provide authority to
U.S. motor carriers. FMCSA also uses this notice to clarify that
Mexico-domiciled motor carriers with U.S. investors are eligible to
participate in the pilot program.
5. Pilot Program Requirements
The Agency received comments from the OOIDA, Teamsters, Advocates,
and the Coalition regarding the requirements of FMCSA's pilot program
authority.
OOIDA noted that, under 49 U.S.C. 31315(c)(2), a pilot program must
include safety measures designed to achieve a level of safety that is
``equivalent to, or greater than'' the required level of safety. OOIDA
also faulted the proposal for not elaborating on the countermeasures to
protect the public health and safety of study participants and the
general public.
FMCSA Response: The FMCSA and its State partners will ensure
compliance with the requirements of the pilot program the same way the
Agency and the States ensure that Mexico-domiciled motor carriers
operating in and beyond the border commercial zones comply with the
applicable safety regulations. There are currently 6,861 motor carriers
with authority to operate within the border commercial zones and an
additional 1,063 motor carriers with Certificates of Registration to
operate beyond the commercial zones. FMCSA and the States have a robust
safety oversight program for Mexico-domiciled motor carriers that are
currently allowed to operate CMVs in the United States. In FY 2010,
FMCSA and its State partners conducted over 256,000 commercial vehicle
inspections on vehicles operated by Mexico-domiciled motor carriers in
the border commercial zones. Further, in order to assist in ensuring
compliance, FMCSA imposed the following pre-requisites for Mexico-
domiciled motor carriers to participate in the pilot program: (1) The
application for long-haul operating authority, which includes
requirements for proof of a continuous valid insurance with an
insurance company licensed in the United States, in contrast to trip
insurance used by motor carriers that operate solely within the border
commercial zones; (2) successful completion of the PASA prior to being
granted provisional authority; (3) the continuous display of a valid
CVSA decal; and (4) a special designation in their USDOT Numbers to
allow enforcement officials to readily distinguish between vehicles
permitted to operate solely within the border commercial zone and those
authorized to operate beyond the border commercial zones.
In addition, section 350 and 49 CFR 385.707 require that a CR be
conducted within 18 months of the motor carrier being granted
provisional operating authority. In the context of the pilot, FMCSA
will prioritize long-haul Mexico-domiciled motor carriers for CRs based
on a number of factors, such as the motor carrier's safety performance
as measured through roadside inspections and crash involvement and the
Agency's Safety Measurement System.
The vehicles and drivers will be monitored through data collected
from electronic monitoring devices with GPS. In addition, the drivers'
complete driving records will be reviewed in advance of participation
and then annually thereafter. Also, during the first stage, the
vehicles and drivers will be subjected to more inspections.
The FMCSA and its State partners have for many years provided
safety
[[Page 40432]]
oversight under the same regulations for a much larger population of
Mexico-domiciled motor carriers operating in U.S. border commercial
zones and motor carriers with Certificates of Registration than the
group that will participate in the pilot program. As a result, the
Agency has a well-established and effective enforcement program in
place to ensure that participants comply with the terms and conditions
of the program. Moreover, full compliance with existing U.S. safety
regulations and domestic point-to-point transportation prohibitions
will be required, as is the case with Mexico-domiciled motor carriers
operating in the border commercial zones and certificated motor
carriers already operating beyond the border commercial zones.
As discussed in this section, FMCSA has taken necessary steps to
comply with the requirement to provide an equivalent or greater level
of safety, and countermeasures are therefore not required.
6. PASA Requirements
Commenters, including Teamsters and Advocates, recommended that
information about the PASAs be posted in the Federal Register rather
than the FMCSA Register.
Teamsters recommended that the PASA also include a spot check of
vehicles other than those to be used in the long-haul program to gather
more information on the carrier's operations.
OOIDA, Advocates and Teamsters requested additional information on
the Agency's standards for evaluating English language proficiency and
one association submission indicated the English language screening and
should be a component of the initial screening.
Advocates requested that the violation histories of applicant motor
carriers, and their driver convictions records in both Mexico and the
U.S. should be disclosed in the Federal Register publication as part of
the PASA information disclosure. OOIDA requested additional information
about participating motor carrier's past operations within the United
States.
The IRP requested that the Agency use the PASA as an opportunity to
reiterate the requirements for IRP and IFTA registrations.
OOIDA also recommended that PASAs be conducted again on motor
carriers that participated in the previous demonstration project to
ensure they are still safe motor carriers.
FMCSA Response: There appears to have been some confusion about
where the PASA information will be published. The results of the PASAs
will be posted in the Federal Register. This was where the PASA
information was posted during the previous demonstration project, and
FMCSA will follow this protocol again in this pilot program. The
operating authority application information will also continue to be
posted in the FMCSA Register as required by applicable regulations.
If the motor carrier has passed the PASA, FMCSA will publish the
motor carrier's request for authority in the FMCSA Register. The FMCSA
Register can be viewed by going to: http://li-public.fmcsa.dot.gov/LIVIEW/pkg_html.prc_limain and then selecting ``FMCSA Register'' from
the drop-down box in the upper right corner of the screen. Any member
of the public may protest the motor carrier's application on the
grounds that the motor carrier is not fit, willing, or able to provide
the transportation services for which it has requested approval. FMCSA
will consider all protests before determining whether to grant
provisional operating authority. Under FMCSA regulations, all motor
carriers receive provisional new entrant authority for 18 months after
receiving a USDOT Number and are subject to enhanced safety scrutiny
during the provisional operating period.
Regarding the Teamster's request that additional vehicles in the
motor carrier's fleet be inspected during the PASA, the Agency points
out that all available vehicles that are used in U.S. operations will
be subject to review during the CR. Additionally, vehicles operated in
the U.S. by Mexico-domiciled motor carriers also regularly cross the
border, where the vehicle inspection rate is 13 times higher than that
of vehicles in the interior of the U.S. As a result, the Agency does
not believe it is necessary to inspect vehicles other than the
participating vehicles during the PASA.
FMCSA will check participating Mexico-domiciled drivers during the
PASA through an interview in English. The interview will include a
variety of operational questions, which may include inquiries about the
origin and destination of the driver's most recent trip; the amount of
time spent on duty, including driving time, and the record of duty
status; the driver's license; and vehicle components and systems
subject to the FMCSRs. The driver will also be asked to recognize and
explain U.S. traffic and highway signs in English.
If the driver successfully completes the interview, FMCSA has
confidence that the driver can sufficiently communicate in English to
converse with the general public, understand traffic signs and signals
in English, respond to official inquiries and make entries on reports
and records required by FMCSA.
Regarding Advocates' request that additional information be
published about the history of Mexico-domiciled motor carriers and
drivers, FMCSA is committed to publishing the results of the PASAs as
required by section 6901(b)(2)(B) of the 2007 Appropriations Act. FMCSA
will not publish violation data on individual Mexican drivers as
protection of their personal privacy. FMCSA, however, will make
additional information about all participating motor carriers' past
U.S. performance available through its Safety Management System (SMS)
as requested by OOIDA.
FMCSA agrees with the IRP's suggestion that information regarding
the requirements for registration and fuel taxes be provided during the
PASA. The Agency is revising its PASA procedures to include this
information.
In regard to motor carriers that participated in the previous
demonstration project that choose to apply to participate in the pilot
program, it has always been in FMCSA's plan that PASAs will be
completed on these motor carriers. FMCSA recognizes that there may have
been changes in the motor carrier's operations since the demonstration
project ended in 2009 and that a current PASA is needed.
7. Credit to Demonstration Project Participants
Most commenters did not agree with the Agency's plans to give
credit to motor carriers that participated in the demonstration project
for the amount of time they operated safely. The Teamsters specifically
contended that providing credit to previous participants was a
violation of section 6901.
FMCSA Response: It appears that there was some confusion about how
these motor carriers, if they chose to participate in the new pilot
program, would enter the program, and how their safety would be
evaluated. As noted above, it has always FMCSA's plan and
responsibility to conduct PASAs on all motor carriers applying for
authority under the pilot program including motor carriers that
participated in the prior demonstration project. As a result, the motor
carrier's safety management controls will be assessed again in advance
of participation. The only distinction that is being made for motor
carriers that previously participated in the demonstration project is
to give them credit for the amount of time they operated under the
project in completing the 18 months of provisional authority before
being eligible to
[[Page 40433]]
advance to Stage 3 in this pilot program. FMCSA believes this is
consistent with section 6901 because the previous demonstration project
was subject to the same pilot program statute and regulations. While it
was ultimately determined that the previous project did not have
sufficient participation to allow for a statistically valid
demonstration that Mexico-domiciled motor carriers as a whole could
comply with U.S. safety standards and this program has added additional
safeguards, reports from both the OIG and the Independent Panel
documented that motor carriers in the previous program had safety
records that were comparable or better than the U.S. fleet averages.
As a result, if a motor carrier from the demonstration project
chooses to apply to participate in the pilot program, it will be
subject to the security check by the Department of Homeland Security,
PASA, financial responsibility, CVSA decal, and CR requirements. If a
motor carrier operated for 5 months under the demonstration project, it
would then only need to operate safely for an additional 13 months
under the pilot program before being eligible to advance to Stage 3 in
the program.
8. Use of Electronic Monitoring Devices and Compliance With Hours-of-
Service Requirements
The majority of commenters did not support FMCSA funding the
installation of electronic monitoring devices on Mexican trucks
participating in the pilot program. Representative Peter A. DeFazio
stated that, ``it is outrageous that U.S. truckers, through the Federal
fuel tax, will subsidize the cost of doing business for these Mexican
carriers.'' Representative Reid J. Ribble articulated his understanding
of his colleagues' disapproval of using the Highway Trust Fund to cover
the costs of the electronic monitoring devices, but ``recognize[d] that
DOT cannot require Mexican motor carriers to cover these expenses
because there is no similar requirement for U.S. carriers.''
The BTA pointed out that the hours-of-service requirements for
drivers of Mexico-domiciled motor carriers participating in the program
must include the driver's on-duty and driving time in Mexico before
reaching the Southern border. In addition, Teamsters asserted that
electronic monitoring devices do not measure ``on-duty/not driving''
time and, as a result, Mexican drivers need to provide logs and
supporting documents.
Several commenters did not understand if the data from the
electronic monitoring devices would be processed in real-time or at the
conclusion of the program. In addition, there were several questions
about who would be reviewing the data.
FMCSA Response: FMCSA developed guidelines for this new pilot
program after extensive engagement with members of Congress and other
stakeholders to better understand the strengths and weaknesses of the
prior demonstration project that ended in March 2009. Using that
valuable input, we worked with the Government of Mexico to craft a more
robust program. As described in the April 13, 2011, Federal Register
notice, all participating Mexican trucks will be required to be
equipped with electronic monitoring devices with GPS capabilities so
that FMCSA is able to monitor the vehicle and use the data to address
hours-of-service and domestic point-to-point transportation concerns.
Stakeholders felt strongly that FMCSA include this as an element of the
new pilot program.
FMCSA will own the monitoring equipment and thereby will have
access and control of the data provided by the electronic monitoring
devices and GPS units and will be able to customize reports and alerts
from the system of the vendor that will collect the data. This proposed
approach is necessary to address concerns expressed by members of
Congress and others regarding hours-of-service and domestic point-to-
point compliance. The most the Agency would spend on electronic
monitoring devices for purchase, installation, and monitoring over the
life of the 3-year program is $2.5 million--less than 0.1 percent of
the costs borne by U.S. firms subject to the tariffs imposed by Mexico
in a 12-month period. As a result, we believe this is not only in the
public interest to require and provide the electronic monitoring
devices, but is also a good investment for the country. Moreover, as
stated above, the in-truck equipment will be the property of the United
States.
In addition, the electronic monitoring devices that FMCSA will
install will have functionality to allow on-duty start and end times to
be entered and tracked. As a result, FMCSA will be monitoring on-duty
time in Mexico to ensure that drivers comply with FMCSA hours-of-
service regulations while operating in the United States. FMCSA agrees,
however, that the participating motor carriers will be expected to
maintain the appropriate supporting documents for review by FMCSA
during the safety and compliance reviews.
It is FMCSA's intention to acquire devices and monitoring software
that will allow the Agency to develop alerts and reports of the
vehicles and drivers' information. These reports will be reviewed by
FMCSA at least weekly to identify compliance issues. If there are any
indicators of problems, FMCSA will initiate an investigation. FMCSA
expects to use staff to conduct the analysis, but acknowledges that the
conversion of the electronic data to a format usable for analysis may
require some processing by a third party. Finally, once the pilot
program is terminated, the program participants must return the
equipment to FMCSA.
9. Federal Motor Vehicle Safety Standards (FMVSS) and Emissions Issues
Commenters on this issue all supported the requirement that the
equipment must meet the FMVSS or Canadian Motor Vehicle Safety
Standards (CMVSS) at the time of manufacturing. However, Teamsters
believe that the Agency's proposal that model years 1996 and newer do
not need a label constitutes a waiver and that FMCSA does not have the
authority to waive this requirement.
ATA argued that the vehicles should not have to comply with the
FMVSS, but instead with the FMCSRs.
ATA and CTA stressed that all equipment operating in the United
States must comply with Federal emissions standards. Both also
expressed concern about the limited availability of low-sulfur fuels in
Mexico and the impact on vehicle emissions.
Werner Enterprises requested clarification on the requirement that
the vehicles meet the EPA requirements at the time of manufacturing.
FMCSA Response: Participating Mexico-domiciled motor carriers, the
drivers they employ, and the vehicles they operate in the United States
must comply with all applicable Federal and State laws and regulations,
including those concerning customs, immigration, vehicle emissions,
employment, vehicle registration and taxation, and fuel taxation.
Environmental Issues. First, Mexico-domiciled motor carriers
operating in the United States must ensure compliance with all
applicable Federal and State laws related to the environment. FMCSA has
no reason to doubt that its sister Federal and State agencies will
enforce their laws and regulations as they apply to long-haul Mexico-
domiciled motor carriers, just as they have done for years with respect
to the border commercial zone motor carriers as well as U.S.- and
Canada-domiciled motor carriers.
Second, FMCSA does not have the statutory authority to enforce
Federal
[[Page 40434]]
environmental laws and regulations, with the exception of those
concerning vehicle noise emissions (49 CFR part 325). The Agency
cannot, for example, condition the grant of operating authority to a
motor carrier on the motor carrier's demonstration that its truck
engines comply with EPA engine standards. FMCSA does not construe
section 6901 as expanding the scope of the Agency's regulatory
authority into environmental regulation or any other new area of
regulation. Section 6901 makes no mention of environmental regulation,
and FMCSA construes the reference to ``measures * * * to protect public
health and safety'' in section 6901(b)(2)(B)(ii) of the 2007
Appropriations Act as within the context of the scope of the Agency's
existing statutory authority. Moreover, because FMCSA is a safety
rather than an environmental regulatory agency, the pilot program is
appropriately focused on evaluating the safety of long-haul Mexican
truck operations in the United States, consistent with the scope of 49
U.S.C. 31315(c). However, vehicle data is being collected to assist
with determining the potential environmental impacts of the pilot
program (and for any further actions concerning the border) in
accordance with the National Environmental Policy Act of 1969 (NEPA)
and the Council on Environmental Quality's (CEQ) NEPA implementing
regulations (40 CFR part s1500-1508) and FMCSA's NEPA Order 5610.1 as
this program is not exempt from NEPA review.
Third, the Agency is conducting an Environmental Assessment (EA) in
accordance with NEPA, CEQ implementing regulations, and FMCSA's NEPA
Order 5610.1 to examine the potential impacts of this pilot project on
the environment. It is important to note that the EA is limited to the
environmental impacts of this particular pilot project. FMCSA will
announce availability of the draft Environmental Assessment in a
separate Federal Register notice and place a copy in the docket for
this rulemaking.
Finally, EPA, in partnership with Mexico and other governments on
both sides of the border, has conducted numerous diesel emissions
reduction projects. These include vehicle testing, monitoring, and
tracking, diesel retrofitting, accelerated use of ultra-low sulfur
diesel fuel, and anti-idling programs. In addition, the State of
California regulates particulate matter emissions from trucks through
roadside emissions testing conducted throughout the State, including in
its border commercial zones. California has also issued regulations
requiring truck engines, including those in Mexican trucks, to have
proof that they were manufactured in compliance with the EPA emissions
standard in effect on the date of their manufacture and will be able to
conduct inspections of these vehicles while they are in California.
Motor carriers are subject to penalties for the violation of these
regulations. In addition, FMCSA considers these issues in its NEPA
review for the pilot program.
Regarding the availability of low sulfur fuels, it is our
understanding that low sulfur fuels are available in the border areas
and large cities, so access should not limit participation in the
project.
FMVSS Compliance. With regard to concerns about compliance with the
FMVSSs, the Agency already requires Mexico-domiciled motor carriers to
certify on their applications for operating authority that CMVs used in
the United States meet the applicable FMVSSs in effect on the date of
manufacture. While there is no requirement that the vehicles display an
FMVSS certification label, the Agency believes the concerns about
displaying a certification label have been adequately addressed by the
Department through a notice-and-comment rulemaking proceeding.
On March 19, 2002, FMCSA and NHTSA published four notices
requesting public comments on regulations and policies directed at
enforcement of the statutory prohibition on the importation of CMVs
that do not comply with the applicable FMVSSs. The notices were issued
as follows: (1) FMCSA's notice of proposed rulemaking (NPRM) proposing
to require motor carriers to ensure their vehicles display an FMVSS
certification label (67 FR 12782); (2) NHTSA's proposed rule to issue a
regulation incorporating a 1975 interpretation of the term ``import''
(67 FR 12806); (3) NHTSA's draft policy statement providing that a
vehicle manufacturer may, if it has sufficient basis for doing so,
retroactively certify a motor vehicle complied with all applicable
FMVSSs in effect at the time of manufacture and affix a label attesting
this (67 FR 12790); and 4) NHTSA's proposed rule concerning
recordkeeping requirements for manufacturers that retroactively certify
their vehicles (67 FR 12800).
After reviewing the public comments in response to those notices,
FMCSA and NHTSA withdrew their respective proposals on August 26, 2005
(70 FR 50269). NHTSA withdrew a 1975 interpretation in which the agency
had indicated that the Vehicle Safety Act is applicable to foreign-
based motor carriers operating in the United States. Accordingly, it is
the Department's position that the FMVSSs do not obligate foreign-
domiciled trucks engaging in cross-border trade to bear a certification
label. Although FMCSA withdrew its NPRM, the Agency indicated that it
would continue to uphold the operational safety of CMVs on the nation's
highways, including that of Mexico-domiciled CMVs operating beyond the
United States-Mexico border commercial zones, through continued
vigorous enforcement of the FMCSRs, many of which cross-reference
specific FMVSSs.
FMCSA explained in its withdrawal notice that Mexico-domiciled
motor carriers are required under 49 CFR 365.503(b)(2) and 368.3(b)(2)
to certify on the application form for operating authority that all
CMVs they intend to operate in the United States were built in
compliance with the FMVSSs in effect at the time of manufacture. These
vehicles will be subject to inspection by enforcement personnel at
U.S.-Mexico border ports of entry and at roadside inspection sites in
the United States to ensure their compliance with all applicable
FMCSRs, including those that cross-reference the FMVSSs.
For vehicles lacking a certification label, enforcement officials
could, as necessary, refer to the VIN (vehicle identification number)
in various locations on the vehicle. The VIN will assist inspectors in
identifying the vehicle model year and country of manufacture to
determine compliance with the FMVSSs based on guidance provided by
FMCSA. Based on information provided by the Truck Manufacturers
Association in a September 16, 2002, letter to NHTSA and FMCSA, FMCSA
believes model year 1996 and later CMVs manufactured in Mexico meet the
FMVSSs. The Agency continues to believe this information is an
appropriate basis for considering whether a vehicle is likely to have
been manufactured in compliance with the FMVSSs because most of the
members of TMA have truck manufacturing facilities in Mexico that are
used to build vehicles for both the United States and Mexico markets.
Therefore, FMCSA continues to use its August 26, 2005 guidance,
``Enforcement of Mexico-Domiciled Motor Carriers' Self-Certification of
Compliance with Motor Vehicle Safety Standards,'' which provides
technical assistance to Federal and State enforcement personnel on this
issue. The guidance indicates that if FMCSA finds, during the PASA or
subsequent inspections, that a Mexico-domiciled motor carrier has
falsely certified on the
[[Page 40435]]
application for authority that its vehicles are FMVSS compliant, that
the Agency may use this information to deny, suspend, or revoke the
motor carrier's operating authority or certificate of registration or
take enforcement action for falsification, if appropriate. A copy of
the Agency's guidance is included in the docket referenced at the
beginning of this notice.
Although Mexico-domiciled vehicles may be less likely to display
FMVSS certification labels, FMCSA believes continued strong enforcement
of the FMCSRs in real-world operational settings, coupled with existing
regulations and enhanced enforcement measures, will ensure the safe
operation of Mexico-domiciled CMVs in interstate commerce. As the
Agency stated in the 2005 withdrawal notice, FMCSR enforcement, and by
extension the FMVSSs they cross-reference, is the bedrock of these
compliance assurance activities. The Agency continues to believe it is
not necessary to require participating motor carriers to ensure their
CMVs display an FMVSS certification label. Requiring CMVs to have FMVSS
certification labels would not ensure their operational safety. The
American public is better protected by enforcing the FMCSRs than by a
label indicating a CMV was originally built to certain manufacturing
performance standards. See 70 FR at 50287.
There appeared to be some confusion about when the vehicles would
be checked for FMVSS or CMVSS certification. During the PASA, the
Agency will check those vehicles identified for the long-haul trucking
program to determine whether the vehicle displays an FMVSS or CMVSS
certification label, or whether the vehicle is a 1996 model year or
newer truck. Alternatively, if there is no label, the motor carrier may
present a certificate or other documentation from the manufacturer
confirming that the vehicle was built to the appropriate standard.
FMCSA understands ATA's position that the safety of the
participating vehicles should be determined based on compliance with
the FMCSRs, rather than the FMVSSs. FMCSA acknowledges that vehicle
manufacturers must comply with the FMVSSs at the vehicle manufacturing
state and that the vehicles may not meet the FMVSSs after they are
placed in service. However, the Agency's inspection of participating
vehicles during the PASA, inspections, and CR will confirm compliance
with the FMCSRs, as is required by 49 CFR 390.3.
10. Statistical Validity
Teamsters asserted that the Agency's evaluation plan was flawed
because the statute requires evaluation based on participants, not the
number of inspections.
Advocates challenged the Agency's null hypothesis and asserted that
the evaluation plan does not conform to established scientific research
methodology.
Advocates also requested additional information on how the rate of
violations per type of inspection performed will be calculated.
Advocates further requested information on the specific statistical
tests or methods of analysis to be used, and suggested that a peer
review panel review the study design. Specifically, Advocates noted
that ``the elements contained in the pilot program statutory provision
under 49 U.S.C. 31315(c) require more specific and detailed information
about the experimental design of the Pilot Program than the agency has
provided.''
FMCSA Response: Section 31315(c)(2)(C) of title 49, United States
Code, requires a pilot program to have a sufficient number of
participants to allow for statistically valid findings. Given that the
majority of statistical comparisons between the Mexico-domiciled and
U.S.-domiciled motor carriers will focus on roadside inspection data,
the relevant question becomes whether or not the total number of
inspections performed on the pilot program participants will be
sufficient to allow for valid statistical comparisons. The Agency
believes that the sample size targets presented in the April 13, 2011,
Federal Register notice will ensure that the number of motor carrier
participants will be sufficient for achieving this objective. As
discussed in that notice, based on the results of the application and
vetting process from previous border demonstration project, the Agency
estimates an upper limit for the total number of Mexico-domiciled motor
carriers both capable and interested in taking advantage of the NAFTA
cross border provisions at 316 motor carriers. Thus, if 46 motor
carriers were to participate in the current effort, the sample would
represent 15 percent of this population.
The Agency acknowledges, however, that the statistical validity of
the findings also hinges upon the representativeness of the study data.
For example, if most of the inspection data collected in the pilot
program were to come from just a few of the Mexico-domiciled motor
carriers, the question of sample bias becomes a legitimate concern when
producing survey estimates. To mitigate the effect of this potential
bias, the Agency plans to calculate the various violation rates both
for the population of program participants as a whole, as well as for
individual program participants. Thus, for each metric in question, the
violation rates for each of the program participants will be averaged
to give an alternate violation rate for the program participant
population. This alternate violation rate calculation will help to
minimize the effect of inspection data being potentially dominated by a
small number of motor carriers. Comparison of the original population
violation rate to this alternate violation rate calculation will give
the Agency an indication of the magnitude of this problem.
With regard to the United States' obligations under NAFTA, FMCSA
does not have reason to deny Mexico-domiciled motor carriers from
operating in the United States unless it can demonstrate that the motor
carriers pose a safety threat to the American public. Thus, the null
hypothesis for the study begins with a presumption that Mexico-
domiciled motor carriers are as safe as U.S. motor carriers. The data
from the study will be used to determine whether this assumption should
be rejected or not. While the term ``null hypothesis'' can be used for
any hypothesis set up primarily to see whether it can be rejected, the
more common statistical practice is to hypothesize that two methods,
populations, or processes are the same and then determine if there is
sufficient statistical evidence to reject this null hypothesis. If one
can demonstrate definitively from the pilot program data that Mexico-
domiciled motor carriers are inherently less safe than U.S. motor
carriers, then the Agency would be justified in rejecting this null
hypothesis and restricting Mexico-domiciled motor carrier operations in
the United States. If, on the other hand, the Agency cannot establish
as a fact, there would be no justification for denying these motor
carriers full access to our roadways as guaranteed under NAFTA. Had the
null hypothesis for the study begun with the assumption that Mexico-
domiciled motor carriers were inherently less safe than U.S. motor
carriers (as recommended by the commenter), then all non-statistically
significant results from the study would imply that Mexico-domiciled
motor carriers are less safe than U.S. motor carriers, since this
initial assumption would not be rejected. In contrast, the approach
taken by FMCSA is a prudent one, and is similar to the scientific
approach used
[[Page 40436]]
in virtually all medical research examining safety risk. In such
studies, the null hypothesis assumes that a particular food, chemical,
or activity poses no safety risk, or no safety benefit. In other words,
the null hypothesis always assumes that the item or activity in
question has absolutely no effect. The results of the study are used to
determine whether one can reject this null hypothesis, to identify a
clear risk or clear benefit attributable to the item or activity.
Additionally, the null hypothesis is supported by the safety data on
border commercial zone motor carriers and the Mexico-domiciled motor
carriers that participated in the previous demonstration project.
With regard to the Advocates' reference to 49 U.S.C. 31315(c), the
Agency believes the commenter's interpretation of this section is
incorrect. The section does not speak to the findings of a program or
the conclusions to be drawn from them. Rather, the section simply
states that a pilot program must be designed to ensure that public
safety is not compromised while the study is being conducted. All of
the safeguards put in place by the Agency, such as requiring pilot
program participants to achieve a specified level of safety performance
at various stages of the pilot in order to continue with their
participation (as stipulated in the original notice requesting public
comment), speak directly to this issue.
On a routine basis, program participant vehicles will be inspected
at border crossings and other roadside inspection stations.
Additionally, under section 350, each participating motor carrier will,
within 18 months of being granted provisional operating authority, be
subject to a full CR. During the CR, the Agency plans to inspect both
``program participating'' and ``nonparticipating'' vehicles of a
Mexico-domiciled motor carrier that operate in the United States.
Concerning how the violation rates obtained from the study will be
used, these rates will be directly compared to similar rates from U.S.
motor carriers. Although a motor carrier's crash history is a good
predictor of future crashes, given the relatively short time frame of
the pilot study, it is anticipated that participating motor carriers
will have very few, if any, crashes while operating in the United
States. Thus, violation rates based on inspection data will be used to
assess the safety performance of each participating motor carrier. This
same approach is used to evaluate U.S. motor carriers. For example, six
of the seven performance metrics used to assess a motor carrier's
safety risk under the Agency's Compliance, Safety, Accountability (CSA)
program are based on data collected from the roadside.
Inspection data used in the study will be based on Level 1, 2, and
3 inspections. The Agency anticipates that inspections performed on
program participants' trucks will be, on average, as thorough and
rigorous as those performed on U.S. motor carriers. For those
violations only observable by a Level 1 inspection, such as brake
violations, only Level 1 inspection data will be used when making
comparisons between program participants and U.S. motor carriers.
The Agency plans to evaluate the safety performance of the Mexico-
domiciled motor carriers participating in the pilot project by looking
at a variety of metrics and comparing their performance on these
metrics with the performance of U.S. motor carriers. All of these
metrics represent proportions of some type (proportion of inspections
having a particular violation, or the proportion of motor carriers
having a particular violation), and, as such, statistical tests
designed for comparing proportions from two populations can be used.
The metrics to be evaluated are discussed below.
Vehicle Out of Service (OOS) Rate. The vehicle OOS rate will be
calculated in two different ways for the Mexico-domiciled motor
carriers. First, the rate will be calculated in the standard manner,
summing up all vehicle OOS violations found from all vehicles belonging
to Mexico-domiciled motor carrier participants, divided by the total
number of vehicle inspections performed in the United States on these
vehicles during the study.
In addition, a vehicle OOS rate will be calculated for each
participating motor carrier based upon the data collected during the
duration of the pilot program. Using these carrier-level OOS rates, the
average value for these carrier-level vehicle OOS rates will then be
computed by summing up the individual vehicle OOS rates and dividing by
the number of motor carriers having an OOS rate assigned to them. This
last statistic, which is the average value of each motor carrier's OOS
rate, will be used as a check to determine if the standard vehicle OOS
rate calculated for the Mexican trucks participating in the pilot
program is dominated by data from a small number of carriers. If it is,
then more emphasis will be placed on the average OOS rate in the
analysis.
Vehicle Violation Rate. The vehicle violation rate is similar to
the vehicle OOS rate, except that all violations will be considered,
rather than just OOS violations.
Driver OOS Rate. The driver OOS rate for the Mexico-domiciled
drivers participating in the pilot program will be calculated in the
same manner as the vehicle OOS rates. First, the rate will be
calculated in the standard manner, summing up all driver OOS violations
found from all Mexico-domiciled drivers participating in the pilot,
divided by the total number of driver inspections performed on these
drivers during the study. In addition, the driver OOS rate will be
calculated for each Mexico-domiciled motor carrier in the pilot, and
these carrier-level driver OOS rates will next be averaged over all
participating motor carriers.
Driver Violation Rate. The driver violation rate is similar to the
driver OOS rate, except that all violations will be considered, rather
than just OOS violations.
Safety Audit Pass Rate. The percentage of motor carriers in the
pilot program that pass the PASA will be calculated and compared to the
percentage of U.S.-domiciled motor carriers that pass the new entrant
safety audit. The Agency recognizes that there are differences in these
two types of reviews. However, they both evaluate success at meeting
the established safety standards.
Crash Rate. Because crashes are relatively rare events, FMCSA will
likely have insufficient crash data to evaluate safety performance of
Mexico-domiciled motor carriers in this area. However, if sufficient
data are available to produce meaningful statistical results, crash
rate comparisons will be produced. It is anticipated that motor
carriers participating in the pilot program will be involved in a wide
variety of trucking operations, and many, if not most, of them will not
be operating their vehicles full-time in the United States. For this
reason, crash rates for carriers participating in the pilot program
will be calculated in terms of crashes per million miles, and not
crashes per power unit. All crashes that have a severity level of
towaway or higher will be included in the crash count.
Crash rates will be calculated based on crashes occurring within
both the United States and Mexico, and on mileage accumulated within
both countries.
Specific Violation Rates. In addition to overall vehicle and driver
violation and OOS rates, violation rates for study participants will be
calculated for specific types of violations, including traffic
enforcement, driver fitness, and hours of service. These violation
rates
[[Page 40437]]
measure safety performance in subject areas considered key by Agency's
CSA program. The purpose of this is to see whether there are specific
types of violations that are more common among the Mexico-domiciled
carriers than their U.S. counterparts.
Traffic Enforcement. Of particular interest are traffic enforcement
violations pertaining to local laws, including, but not limited to,
speeding, reckless driving, or driving too fast for conditions. Because
traffic enforcement pertaining to driving only occurs when a violation
is suspected, the exposure measure for these violation rates will not
be total inspections, but, rather, the total number motor carrier
trucks participating in the program, prorated by the number of months
each motor carrier is in the pilot program. This traffic enforcement
violation rate will be compared to a similar rate for US.-domiciled
motor carriers, based on 36 months of data.
Driver Fitness. A driver fitness violation rate will be calculated
for the motor carriers participating in the pilot program by summing-up
all of the driver fitness-related violations detected during the
program for participating motor carriers, divided by their total number
of inspections. This statistic will be compared to this same rate for
U.S.-domiciled motor carriers.
Hours-of-Service. An hours-of-service violation rate will be
calculated for the motor carriers participating in the pilot program by
summing-up all of the hours-of-service violations detected during the
program for participating motor carriers, divided by their total number
of inspections. This statistic will be compared to this same rate for
U.S.-domiciled motor carriers.
The Agency will conduct a peer review to assess the study design.
Upon its conclusion, we will submit the results of the peer review to
the docket for this notice. If the peer review results in recommended
changes, the Agency will publish a notice in the Federal Register
explaining the change.
Regarding the assertion that Mexico-domiciled drivers are not cited
for violations in the United States, FMCSA does not have any
information available that would corroborate this statement.
11. Minimum Levels of Financial Responsibility
The Coalition requested that the minimum insurance requirements for
all CMVs, domestic and foreign, be increased before conducting the
pilot program.
The American Association for Justice interpreted the Agency's
regulations as allowing participating motor carriers to self insure and
suggested that all Mexican motor carriers carry insurance at all times.
FMCSA Response: FMCSA does not agree with the Coalition's
suggestion that motor carriers transporting general freight should be
required to have a greater level of financial responsibility. Mexico-
domiciled motor carriers must establish financial responsibility, as
required by 49 CFR part 387, through an insurance carrier licensed in a
State in the United States. Based on the terms provided in the required
endorsement, FMCSA Form MCS-90, if there is a final judgment against
the motor carrier for loss and damages associated with a crash in the
United States, the insurer must pay the claim. The financial
responsibility claims would involve legal proceedings in the United
States and an insurer based here. There is no reason that a Mexico-
domiciled motor carrier, insured by a U.S.-based company, should be
required to have a greater level of insurance coverage than a U.S.-
based motor carrier.
Increasing the minimum levels of financial responsibility for all
motor carriers is beyond the scope of this notice and would require a
rulemaking.
In accordance with section 350(a)(1)(B)(iv), FMCSA must verify
participating motor carriers' proof of insurance through a U.S., State-
licensed insurer. As a result, participating motor carriers may not
self-insure.
12. Vehicle Inspection and Fleet Safety
Teamsters expressed concern that only the segment of the motor
carrier's fleet participating in long-haul trucking would be inspected.
They also questioned how inspections at ``a rate comparable to other
Mexico-domiciled motor carriers'' will be effective. Additionally,
several commenters questioned what level of inspections would be
conducted during each phase of the pilot program.
FMCSA Response: As noted previously, while only participating
vehicles will be inspected during the PASA, the maintenance of all of
the motor carrier's available vehicles that operate in the United
States will be subject to inspection during the CR. Additionally, motor
carriers currently operating within the border commercial zone are
subject to inspections on a routine basis. The inspection rate of
border commercial zone motor carriers is significantly higher than the
average U.S. motor carrier. As a result, at all stages of the program,
the participating motor carriers' drivers and vehicles are expected to
be inspected more frequently than those of the average U.S. motor
carrier.
In FY 2010, FMCSA and its State partners conducted 2,614,052
commercial vehicle inspections on U.S.-based motor carriers with
4,125,778 CMVs. FMCSA and its State partners conducted 256,151 CMV
inspections on Mexico-domiciled motor carriers within the border
commercial zones with 29,566 CMVs. Thus, the inspections rates for
U.S.-based motor carriers and Mexico-domiciled motor carriers are
0.636336% and 8.6337% respectively. At an inspection rate that is 13
times greater for Mexico-domiciled motor carriers, FMCSA is confident
that the inspections performed on motor carriers during Stages 2 and 3
should be sufficient to ensure continued safe operations. Additionally,
Mexico-domiciled motor carriers that are in Stages 2 and 3 of the pilot
program are required to be inspected at least once every 90 days in
order to maintain a valid CVSA safety decal.
FMCSA will use all available inspection levels as well as license/
insurance check inspections on the vehicles during the program. The
level of inspection chosen will depend on a number of factors including
the presence of a CVSA decal, previous history, and other observations
by the inspector. At a minimum, a Level I inspection will be conducted
if a CVSA decal has expired or will soon expire.
It must also be noted that participating vehicles will be required
to maintain a current CVSA decal and must be inspected every 90 days.
This is not a requirement for U.S. motor carriers or border commercial
zone motor carriers.
13. Transparency
Advocates requested that all of the Agency's agreements with Mexico
be subject to notice and comment and that each step in the pilot
program be subject as well.
Advocates and ATA advised that the monitoring group should be
independent from the Agency's Motor Carrier Safety Advisory Committee
(MCSAC), and Advocates further indicated that under the Federal
Advisory Committee Act (FACA), the use of a subcommittee of a Federal
advisory committee to provide consensus advice and recommendations to a
Federal official is prohibited. Advocates questioned whether the MCSAC
participants comprised persons with backgrounds in basic research and
statistical analysis who can offer advice on how decisions made by the
monitoring group will affect the research design. Advocates requested
that FMCSA provide all reports to the
[[Page 40438]]
appropriate congressional authorities and the public in a timely
fashion.
The Coalition requested that monthly or quarterly reports of data
collection be made available to the public.
FMCSA Response: The FMCSA has added copies of the 1991 MOU
regarding CDL reciprocity and the 1998 MOU regarding drug and alcohol
testing protocols to the docket for this notice. However, these
documents are for informational purposes only and are not the subject
of comments as they were negotiated by the Governments of the United
States and Mexico more than a decade ago. The MOU between DOT and SCT
that has been under negotiation since January 2011, is not subject to
public comment, and the terms of that MOU have been explained in the
April 13, 2011, Federal Register notice. The terms for U.S.-domiciled
motor carriers wishing to travel south can be found in the draft rules
proposed by SCT, which have been placed in the docket.
The FMCSA provided the opportunity for notice and comment on all
steps of this pilot program through the notice published on April 13,
2011, and will not be providing another notice.
Regarding the monitoring groups, FMCSA clarifies that there will be
a government monitoring group to discuss bi-lateral operational issues.
In addition, there will be an independent monitoring group.
The FMCSA agrees that the group must be independent from the
Agency. As a result, FMCSA continues to believe that the most efficient
and effective process is to establish a subcommittee of the MCSAC. The
MCSAC has proven itself to be independent of the Agency. We, however,
want to clarify that the subcommittee would be able to invite input
from individuals outside the MCSAC itself and would report out through
the Committee. As a result, consistent with FACA requirements, only the
MCSAC will transmit recommendations and advice to the FMCSA
Administrator. FMCSA will make reports of the monitoring group
available to the appropriate congressional committees and the public in
a timely manner.
The FMCSA will maintain a comprehensive Web site dedicated to this
pilot program to keep the public informed about how the program
progresses. In addition to the specific information mentioned within
this notice, FMCSA will publish the name and DOT Number of each
participating motor carrier, the Vehicle Identification Numbers (VIN)
of all vehicles approved for long-haul transportation, details on the
driver/vehicle inspections the motor carrier has received, and details
on any crashes involving the motor carrier. FMCSA will also publish
aggregate data regarding the number of trips taken by participating
motor carriers and the destinations of those trips.
14. Resources
Senator John D. Rockefeller expressed a concern about the adequacy
of FMCSA, State law enforcement, and Immigration and Customs
Enforcement (ICE) resources to support the program. Representative
Hunter indicated he believed the Agency had gaps in its ability to
properly manage the previous program. OOIDA indicated that based on
contacts at the International Association of Chiefs of Police, more
training on cabotage is needed.
The Texas Department of Motor Vehicles recommends that FMCSA
provide financial assistance to the Border States to off-set the Border
States' administrative and enforcement expenses related to the pilot
program.
FMCSA Response: The FMCSA notes that the number of Mexico-domiciled
motor carriers and vehicles that will participate in the pilot program
is extremely small compared to the population of motor carriers and
vehicles currently operating within the border commercial zones. Most
of the motor carriers that would participate in the pilot program
already have authority to operate in the border commercial zones, so
their participation in the program would not result in a significant
increase in the population of Mexico-domiciled motor carriers operating
in the United States. Further, as to concerns regarding possible
strains on border inspection facility capacity, it should be noted that
FMCSA has no reason to believe the number of Mexican trucks crossing
the border during the pilot program will increase significantly because
the cargo carried by the long-haul trucks would have crossed the border
in any event via short-haul, border commercial zone trucks.
The FMCSA and its State partners have sufficient staff, facilities,
equipment, and procedures in place to meet the requirements of this
pilot program. This conclusion is based on the Agency's experience
providing safety oversight for Mexico-domiciled motor carriers
currently authorized to operate within the border commercial zones and
on its regular liaison with its State enforcement partners with whom
the Agency has worked for years in anticipation of the opening of the
border to long-haul Mexico-domiciled motor carriers. In fact, during
the previous program, FMCSA was able to confirm that over 99 percent of
the participating vehicles received an inspection at the border.
Further, FMCSA can find no evidence that the remaining less than one
percent of the vehicles were not inspected as they crossed the border,
and neither the OIG, nor the Independent Panel, nor any other entity
has identified any vehicles that crossed without an inspection. FMCSA
currently employs 260 Federal personnel dedicated to border enforcement
activities.
In response to the OOIDA's concerns about the burden on the States
for providing safety oversight for Mexico-domiciled motor carriers and
the Texas Department of Motor Vehicles comment regarding making funding
available to Border States, FMCSA is authorized under 49 U.S.C. 31107
to provide border enforcement grants for carrying out CMV safety
programs and related enforcement activities and projects and has $32
million available in FY2011 for this purpose. The Agency's State
partners along the border employ 456 State officials for this purpose.
Therefore, the Congress has provided funding for enforcement resources
dedicated exclusively to ensuring the safe operation of foreign-
domiciled motor carrier operations.
The FMCSA works with the States to ensure that motor carrier safety
enforcement personnel receive extensive training. From 2008 to date,
over 5,800 State motor carrier safety inspectors have received North
American Standard (NAS) inspection procedures training. The NAS
training course is designed to provide State motor carrier safety
enforcement personnel with the basic knowledge, skills, practices, and
procedures necessary for performing inspections under the Motor Carrier
Safety Assistance Program (MCSAP).
Additionally, through the Agency's partnership with the
International Association of Chiefs of Police (IACP), four Foreign CMV
Awareness Training sessions have been conducted on a recurring basis
including a session that covers cabotage laws. Approximately 215
officers were certified to train law enforcement officers throughout
the United States using this course which includes cabotage
information.
The training these officers will provide to other law enforcement
officials will ensure patrol officers are informed about potential
safety and enforcement issues involving foreign-based CMVs and drivers
operating beyond the border commercial zones. Therefore, not only has
FMCSA provided funding resources to support the States' role in
providing Safety oversight for Mexico-domiciled motor
[[Page 40439]]
carriers operating in the United States, the Agency has provided
training. Presently, 1,755 law enforcement officers have received such
training.
Finally, during the program, FMCSA will monitor for domestic point-
to-point transportation violations using the information obtained from
the GPS feature of the electronic monitoring devices installed on the
vehicles and during CRs.
15. Impact on Truck Drivers, Small Fleets and Businesses
Over 1,000 commenters felt that this pilot program would have a
negative economic impact on the United States at a time when
unemployment was high.
FMCSA Response: The FMCSA does not believe the pilot program will
have a significant adverse impact on U.S. motor carriers or drivers. As
an initial matter, however, it is important to note that FMCSA lacks
the authority to alter the terms under which Mexico-domiciled motor
carriers operate in the United States based on the possible economic
impact of those motor carriers on U.S. motor carriers. FMCSA's
responsibility, pursuant to the November 2002 presidential order, is to
implement NAFTA's motor carrier provisions in a manner consistent with
the motor carrier safety laws.
While the wages for a Mexico-domiciled driver may differ from those
of a U.S.-domiciled driver, wages represent only one factor in the cost
of a trucking operation. The costs for safety management controls to
achieve full compliance with U.S. safety requirements, equipment
maintenance, fuel, taxes and insurance costs must also be considered.
Therefore, driver wages alone should not be considered the determining
factor for an economic advantage.
Also, Mexico-domiciled motor carriers cannot compete against U.S.-
domiciled motor carriers for point-to-point deliveries of domestic
freight within the United States. Section 365.501(b) of title 49, Code
of Federal Regulations, provides that ''a Mexico-domiciled motor
carrier may not provide point-to-point transportation services,
including express delivery services, within the United States for goods
other than international cargo.'' FMCSA notes that engaging in domestic
point-to-point transportation in the U.S. is operating beyond the scope
of a Mexico-domiciled motor carrier's authority, and FMCSA and its
State partners are actively engaged in enforcing this regulation.
Vehicles caught in this practice will be placed out-of-service,
participating motor carriers may be subject to civil penalties of up to
$11,000 and more comprehensive review of operations by FMCSA, and they
could be removed from the pilot program.
16. Concerns About Furthering Illegal Activity
Numerous commenters noted the existence of drug cartels in Mexico
and expressed concern that the long-haul program would increase drug
trafficking.
FMCSA Response: The FMCSA disagrees with the commenters on this
issue. FMCSA is not aware of any information that would suggest the
pilot program will increase the extent to which illegal activities
occur. Mexico-domiciled motor carriers are already allowed to operate
in border commercial zones. Many of the motor carriers that may apply
for authority to operate beyond the border commercial zones and
participate in the pilot program are already conducting CMV operations
in the U.S., albeit limited to the border commercial zones. Moreover,
as noted above, FMCSA does not anticipate that the pilot program will
result in a substantial increase in the number of Mexican trucks
crossing the border. It follows that the pilot program will not
increase instances of cross-border drug smuggling in any significant
way.
Finally, as the U.S. Immigration and Customs Enforcement's
inspections of long-haul trucks will not change as a result of this
pilot, we do not believe this program introduces any new risks.
FMCSA's Intent To Proceed With Pilot Program
In consideration of the above, FMCSA believes it is appropriate to
commence the pilot program after the Department's Inspector General
completes his report to Congress, as required by section 6901(b)(1) of
the 2007 Appropriations Act, and the Agency completes any follow-up
actions needed to address any issues that may be raised in the report.
FMCSA reiterates that before an applicant Mexico-domiciled motor
carrier may receive operating authority, it must submit a complete and
accurate application; complete the DHS security review process;
successfully complete the PASA; and file with FMCSA evidence of
adequate insurance from a U.S. company. In addition, as stated above,
FMCSA will complete reviews of Mexican licensing facilities to ensure
compliance with the 1991 MOU before granting authority. FMCSA does not
anticipate that any Mexico-domiciled motor carrier seeking
participation in the pilot program will receive its provisional
operating authority before the first weeks of August 2011.
Issued on: June 29, 2011.
William Bronrott,
Deputy Administrator.
[FR Doc. 2011-16886 Filed 7-7-11; 8:45 am]
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