Demonstration Project on NAFTA Trucking Provisions, 46263-46289 [E7-16207]

Agencies

• Federal Motor Carrier Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 72, Number 159 (Friday, August 17, 2007)]
[Notices]
[Pages 46263-46289]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-16207]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2007-28055]


Demonstration Project on NAFTA Trucking Provisions

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

ACTION: Notice; response to public comments.

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SUMMARY: The FMCSA announces its intent to proceed with a project to 
demonstrate the ability of Mexico-domiciled motor carriers to operate 
safely in the United States, beyond the commercial zones along the 
U.S.-Mexico border. On May 1, 2007, FMCSA published a notice in the 
Federal Register announcing its plans to initiate a project as part of 
the Agency's implementation of the North American Free Trade Agreement 
(NAFTA) cross-border trucking provisions, and requesting public comment 
on those plans. On June 8, 2007, FMCSA published a notice in response 
to section 6901(b)(2)(B) of the ``U.S. Troop Readiness, Veterans' Care, 
Katrina Recovery, and Iraq Accountability Appropriations Act, 2007'' 
(the 2007 Act) seeking public comment on certain additional details 
concerning the demonstration project. The FMCSA has reviewed, assessed 
and evaluated the required safety measures as noted in the previous 
notice, and considered all the comments received as of July 31, 2007 in 
response to the May 1 and June 8 notices. Once the U.S. Department of 
Transportation's Inspector General completes his report to Congress, as 
required by section 6901(b)(1) of the 2007 Act, and the Agency 
completes

[[Page 46264]]

any follow-up actions needed to address any issues that may be raised 
in the report, FMCSA will proceed with the demonstration project.

DATES: This notice is effective August 17, 2007.

ADDRESSES: Docket: Background documents or comments to the docket for 
this notice may be accessed through the Docket Management System (DMS) 
at https://dms.dot.gov through reference to the docket number set forth 
at the beginning of this notice. These docket materials may also be 
reviewed at the U.S. Department of Transportation, Docket Operations, 
M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, 
SE., Washington, DC 20590 between 9 a.m. and 5 p.m., ET, Monday through 
Friday, except Federal holidays. The DMS is available electronically 24 
hours each day, 365 days each year.
    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 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (65 FR 19477-78) or you may visit https://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Milt Schmidt, Division Chief, 
North American Borders Division, Federal Motor Carrier Safety 
Administration, West Building 6th Floor, 1200 New Jersey Avenue, SE., 
Washington, DC 20590-0001. Telephone (202) 366-4049; e-mail 
milt.schmidt@dot.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    Before 1982, Mexico- and Canada-domiciled motor carriers could 
apply to the Interstate Commerce Commission (ICC) 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 carriers from those nations enjoyed in this country, the 
Bus Regulatory Reform Act of 1982 imposed a moratorium on the issuance 
of new grants of operating authority to motor carriers domiciled in 
Canada or Mexico, or owned or controlled by persons of those countries. 
While the disagreement with Canada was quickly resolved, the issue of 
trucking reciprocity with Mexico was not. Currently, most Mexican 
carriers are allowed to operate only within the border commercial zones 
extending approximately 25 miles into the United States.\1\ Every year 
Mexico-domiciled commercial motor vehicles (CMVs) cross into the U.S. 
about 4.5 million times. U.S.-domiciled motor carriers are not 
authorized to operate in Mexico.
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    \1\ Commercial zones are not of uniform size, as they are 
primarily based on the population and size of the applicable border 
municipality. Thus, the San Diego, CA commercial zone is 
considerably larger than the Brownsville, TX commercial zone. In a 
limited number of cases, specific commercial zones have been 
established by statute or regulation.
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    Trucking issues at the U.S./Mexico border were addressed by NAFTA 
in the early 1990s, when both nations agreed to change their policies. 
NAFTA required the United States incrementally to lift the moratorium 
on licensing Mexico-domiciled motor carriers to operate beyond the 
border zones. On January 1, 1994, the President modified the moratorium 
and the ICC began accepting applications from Mexico-domiciled 
passenger carriers to conduct international charter and tour bus 
operations in the United States. In December 1995, the ICC published a 
rule and a revised application form for the processing of Mexico-
domiciled property carrier applications (Form OP-1(MX)). This rule 
anticipated the implementation of the second phase of NAFTA, providing 
Mexican property carriers 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 Mexican CMVs.
    Mexico filed complaints against the United States under NAFTA's 
dispute resolution provisions, challenging the delay in opening the 
border to long-haul vehicles. An arbitration panel issued a report in 
February 2001 concluding that the blanket refusal to process 
applications of Mexico-domiciled long-haul carriers breached NAFTA. 
After the Administration responded to the arbitration panel decision by 
announcing its intent to resume the process for opening the border, 
Congress enacted section 350 of the Department of Transportation (DOT) 
and Related Agencies Appropriations Act for Fiscal Year 2002 (Pub. L. 
107-87, 115 Stat. 833, at 864). Section 350 prohibited FMCSA from using 
Federal funds 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 
requirements of section 350 have been reenacted in each subsequent DOT 
Appropriations Act. The rulemaking requirements of the Act were met by 
a series of rules published on March 19, 2002 (67 FR 12653, 67 FR 
12702, 67 FR 12758, 67 FR 12776) and a further rule published on May 
13, 2002 (67 FR 31978).
    In November 2002, Secretary of Transportation Norman Mineta 
certified, as required by section 350(c)(2), that authorizing Mexican 
carrier operations beyond the border commercial zones does not pose an 
unacceptable safety risk to the American public. Later that month, the 
President modified the moratorium to permit Mexico-domiciled motor 
carriers to provide cross-border cargo and scheduled passenger 
transportation beyond the border commercial zones.
    The Secretary's certification was made in response to the June 25, 
2002, report of DOT's Office of Inspector General (OIG), issued 
pursuant to section 350, on the implementation of safety requirements 
at the U.S.-Mexico border. In a January 2005 follow-up report, also 
issued pursuant to section 350, the OIG concluded that FMCSA had 
sufficient staff, facilities, equipment, and procedures in place to 
substantially meet the eight Section 350 requirements the OIG was 
required to review.

Announcement of the Plan To Initiate a Demonstration Project

    On February 23, 2007, United States Secretary of Transportation 
Mary E. Peters and Mexico Secretary of Communications and 
Transportation Luis T[eacute]llez Kuenzler announced a demonstration 
project to implement the trucking provisions of NAFTA. The purpose of 
the project is to demonstrate the effectiveness of the safety programs 
adopted by Mexico-domiciled motor carriers and the monitoring and 
enforcement systems developed by DOT, which together ensure that 
Mexican motor carriers operating in the United States can maintain the 
same level of highway safety as U.S.-based motor carriers.
    On May 1, 2007, FMCSA published notice of the demonstration project 
in the Federal Register (72 FR 23883). The Agency explained that the 
demonstration project will allow up to 100 Mexico-domiciled motor 
carriers to operate throughout the United States for one year. Up to 
100 U.S.-domiciled motor carriers will be granted reciprocal rights to 
operate in Mexico for the same period. Participating Mexican carriers 
and drivers must comply with all motor carrier safety laws and 
regulations and all other applicable U.S. laws and regulations, 
including those concerned with customs, immigration, vehicle emissions, 
employment, vehicle

[[Page 46265]]

registration and taxation, and fuel taxation.
    The Agency explained that the safety performance of the 
participating carriers will be tracked closely by FMCSA and its State 
partners, a joint U.S.-Mexico monitoring group \2\, and an evaluation 
panel \3\ independent of the DOT. The FMCSA indicated the resulting 
data will be considered carefully before decisions are made concerning 
the further implementation of the NAFTA trucking provisions. The 
comment period for the notice ended on May 31.
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    \2\ The Department of Transportation and the Mexican Secretaria 
de Comunicaciones y Transportes (Secretariat of Communication and 
Transport, or SCT) have established a bi-national monitoring group. 
The group includes officials from FMCSA, DOT, and the U.S. Trade 
Representative. Mexican participants include representatives from 
the Federal Motor Carrier General Directorate, Communications and 
Transport Secretariat (SCT); the Services Negotiations General 
Directorate, Economy Secretariat; and the SCT Centers from the 
Mexican Border States. The monitoring group's objective is to 
supervise the implementation of the demonstration project and to 
find solutions to issues affecting the operational performance of 
the project.
    \3\ The Secretary appointed former DOT Inspector General Kenneth 
Mead, former DOT Deputy Secretary Mortimer Downey and former House 
Appropriations Subcommittee Chairman Jim Kolbe to serve on an 
evaluation panel. The panel will be responsible for evaluating the 
safety impacts of allowing Mexico-domiciled motor carriers to 
operate on U.S. roads beyond the border commercial zone. It will 
operate independently from other monitoring efforts and provide its 
own assessment of the project. Its conclusions will be considered 
carefully before a decision is made concerning the full 
implementation of the NAFTA trucking provisions.
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    On May 25, 2007, the President signed into law the U.S. Troop 
Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability 
Appropriations Act, 2007 (the 2007 Act), (Pub. L. 110-28). Section 6901 
of the 2007 Act requires that certain actions be taken by DOT as a 
condition of obligating or expending appropriated funds to grant 
authority to Mexico-domiciled motor carriers to operate in the United 
States beyond the municipalities and commercial zones on the United 
States-Mexico border.
    On June 8, 2007, FMCSA published a notice in response to section 
6901(b)(2)(B) of the 2007 Act. The Agency explained that section 
6901(a) requires that grants of authority for Mexico-domiciled motor 
carriers to operate beyond the border commercial zones be tested first 
as part of a ``pilot program.'' The Agency also indicated that section 
6901 required the pilot program to comply with section 350 of the 2002 
DOT Appropriations Act and 49 U.S.C. 31315(c), concerning requirements 
for pilot programs. The comment period was originally scheduled to end 
on June 28, 2007; it was extended until July 9, 2007. However, the 
Agency has considered all comments filed as of July 31, 2007.

II. General Discussion of Comments

    The purpose for this notice-and-comment process is to provide all 
interested parties with the opportunity to review information published 
by the Agency and comment on the specific details about the 
demonstration project. As of July 31, FMCSA received 2,359 comments, or 
docket submissions, in response to the May 1 and June 8 notices. The 
Agency received approximately 2,330 comments from the general public, 
including truck drivers and small trucking companies based in the U.S. 
Most of these commenters expressed concerns that Mexico-domiciled 
trucking companies pose a safety risk to the traveling public. The 
remaining comments were from organizations and associations expressing 
their views on specific details about the demonstration project.
    The Agency's announcement of its intent to proceed with the project 
is based on its consideration of all data and information currently 
available, including information submitted by the commenters. About 
2,330 of the comments were submissions by individuals that were no more 
than a few sentences and consisted of conclusory statements indicating 
that Mexico-domiciled carriers are unsafe and that the demonstration 
project should be abandoned. These comments, most of which were 
submitted electronically, did not include information concerning 
technical (e.g. specific safety oversight procedures or processes) or 
legal aspects of the demonstration project or economic issues, or any 
other information supporting the assertions made therein. While FMCSA 
is not responding to these comments individually, the Agency is neither 
ignoring them, but instead believes that its responses to the 
substantive comments it has received more than adequately addresses the 
brief comments submitted by these individuals.

Commenters Discussing Technical and Economic Issues

    The agency received detailed comments from: Advocates for Highway 
and Auto Safety (Advocates); AFL-CIO, Transportation Trades Department 
(TDD); Altshuler Berzon, LLP (Altshuler); \4\ American Trucking 
Associations (ATA); Arkansas Trucking Association; the Demarche 
Alliance, Inc. (Demarche); the Free Trade Alliance (FTA); the 
International Brotherhood of Teamsters (Teamsters); the Owner-Operator 
Independent Drivers Association (OOIDA); the Oregon Department of 
Transportation, Motor Carrier Transportation Division (ODOT); Public 
Citizen; and the Truck Safety Coalition (the Coalition), a partnership 
between Citizens for Reliable and Safe Highways (CRASH) and Parents 
Against Tired Truckers (P.A.T.T.).
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    \4\ The law firm submitted comments on behalf of the Sierra 
Club, Public Citizen, Environmental Law Foundation, International 
Brotherhood of Teamsters, Brotherhood of Teamsters, Auto and Truck 
Drivers Local 70, and the Owner-Operator Independent Drivers 
Assocation.
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A. General Comments in Support of the Demonstration Project
    Several commenters supported the demonstration project. The 
comments ranged from general remarks to reactions to opposition 
comments in the docket. Several commenters supported the project as 
important in meeting U.S. obligations under NAFTA.
    For example, one of the supporters is Congressman Jeff Flake, from 
Arizona. Acknowledging NAFTA's continued emphasis on safety, 
Congressman Flake said, ``[T]he Department should move ahead with this 
demonstration project and I look forward to the full implementation of 
our NAFTA commitments.''
    Other examples are the Greater San Antonio Chamber of Commerce (GSA 
Chamber of Commerce), the San Antonio Economic Development Foundation, 
Inc., and the San Antonio Hispanic Chamber of Commerce. The GSA Chamber 
of Commerce believes cross border trucking is critical to the 
competitiveness of the North American region, and specifically the 
Texas-Northern Mexico region. The GSA Chamber of Commerce stated:

    Regional projects like the Toyota plant in San Antonio, that 
source components in a just-in-time fashion from suppliers in 
Northern Mexico, need cross border trucking to achieve ideal 
efficiencies. These efficiencies are critical to making the Toyota 
project, and others like it, competitive with manufacturers in other 
regions around the world.

    The San Antonio Hispanic Chamber of Commerce stated:

    In the global environment that we operate in, the strategic 
advantage that both the U.S. and Mexico mutually share in competing 
with other counties is our proximity to each other. We cannot afford 
to give away this strategic advantage but unfortunately continue to 
do so. As a result of transferring trailers prior to crossing the 
border into our respective countries, we continuously are

[[Page 46266]]

faced with unnecessary costs and time incurred at the border.

    FTA believes the demonstration program is a critical step in the 
process of moving forward with the Nation's obligations under NAFTA. 
FTA stated that under the current system of moving freight from Mexico 
to the United States, as many as three carriers might handle a single 
shipment. FTA believes the current system costs consumers an average of 
$400 million per year and that the demonstration project would lead to 
reduced shipping costs.
B. General Comments in Opposition to the Demonstration Project
    Most of the commenters to the May 1 and June 8 notices believe the 
demonstration project will create safety and economic risks, violate 
procedural and substantive requirements of U.S. law, or have other 
adverse effects. These commenters also asserted that Mexican drivers 
would accept lower wages, resulting in job losses for U.S. drivers. 
Many of the safety-related comments were based on the presumption that 
Mexico-domiciled carriers and drivers will be unwilling or unable to 
comply with U.S. laws because the carriers and drivers are governed by 
less stringent laws and subject to less stringent enforcement in 
Mexico.
    The Teamsters wrote that the demonstration project will put the 
public in danger, and that the project ``should not proceed until it is 
certain that FMCSA has the ability and resources to monitor and 
implement this program in a way that ensures that public safety is not 
endangered.''
    In addition, 114 members of Congress co-signed a letter to the 
President on the matter. A copy of the letter is in the docket 
referenced at the beginning of this notice. These members expressed 
concern about the demonstration project. They understand the 
President's responsibility to fulfill the United States' obligations 
under NAFTA but argue that the interest in opening the border should 
not be put ahead of public safety, homeland security, and economic 
vitality.

III. Comments Concerning Requirements Under the 2007 Act

A. Section 6901(a), Fulfilling the Requirements of Section 350

Comments About FMCSA's Interpretation of Section 6901(a)
    Advocates believe FMCSA failed to ``fully comply'' with the section 
350 requirements. Advocates also contend FMCSA may not begin the 
demonstration project until the Department of Transportation's 
Inspector General verifies the Agency has completed the tasks required 
under subsection (1)(E) of section 350(c) of the 2002 DOT 
Appropriations Act, dealing with the information infrastructure in 
Mexico for handling Mexican licenses.
    OOIDA argued that FMCSA's interpretation that the new law is 
satisfied by the previously published OIG reports ``* * * violates the 
canons of statutory interpretation that a law may not be interpreted in 
a way that renders it meaningless.'' OOIDA also said it was appropriate 
to conclude from hearings conducted two years after the 2005 Inspector 
General's report that Congress ``* * * had significant questions as to 
whether or not DOT was in compliance with Section 350.''
    FMCSA Response:
    The requirements of section 350 have been satisfied through past 
rulemakings and other agency actions. Previous OIG reports demonstrate 
FMCSA's completion of the tasks listed in subsection (1)(E) of section 
350(c). The Agency emphasizes that the provisions of section 350 which 
require rulemaking for implementation were incorporated into a series 
of rules published on March 19, and May 13, 2002. Under the rules 
adopted on March 19, 2002, FMCSA will: (1) Conduct safety examinations 
or pre-authorization safety audits (PASA) \5\ on Mexico-domiciled 
carriers seeking authority to operate beyond the border zones, 
encompassing the nine areas required by section 350(a)(1)(B); (2) 
assign a distinctive U.S. DOT number to each Mexico-domiciled motor 
carrier operating beyond the border zones, in accordance with section 
350(a)(4); (3) require Mexico-domiciled motor carriers operating beyond 
the border zones to certify that they will have their vehicles 
inspected by a certified inspector every three months, in accordance 
with section 350(a)(5); and (4) require Mexico-domiciled carriers to 
provide proof of valid insurance issued by an insurance company 
licensed in the United States before granting them authority to operate 
beyond the border zones, in accordance with section 350(a)(8).
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    \5\ A detailed discussion of the PASA is provided later in this 
notice.
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    In fulfilling other requirements of section 350(a), FMCSA will 
continue to exceed the requirement in section 350(a)(1)(C) that 50% of 
the PASAs be conducted onsite. For this demonstration project the 
Agency will conduct all of the PASAs onsite.
    With regard to certain other requirements in section 350(a), the 
Agency is prepared to conduct a compliance review (CR) of all Mexico-
domiciled carriers that are granted provisional operating authority 
within 18 months [350(a)(2)], if there is a need to do so during the 
12-month demonstration project, based on certain factors. The FMCSA 
will prioritize long-haul Mexico-domiciled carriers for CRs based on a 
number of factors including the amount of time the carrier has been 
operating beyond the commercial zones, and the carrier's safety 
performance as measured through roadside inspections and crash 
involvement.
    During the demonstration project, FMCSA and State inspectors will 
verify electronically the status and validity of the license of each 
driver of a participating Mexico-domiciled motor carrier crossing the 
border [section 350(a)(3)]. Enforcement officials have been provided 
with the means of querying the Mexican Licencia Federal Information 
System (LIFIS) and the FMCSA's 52nd State System, a repository of 
Mexico-domiciled drivers' convictions while operating vehicles in the 
U.S. A more detailed discussion of the process for checking the status 
of drivers' licenses is presented later in this notice.
    The Agency will satisfy section 350(a)(6) through its routine 
policies and procedures. The results of roadside inspections conducted 
by State officials are regularly uploaded to FMCSA's databases. Each 
year, the results from approximately 3 million roadside inspections are 
uploaded to FMCSA. The results include information identifying the 
motor carrier, the vehicle, the driver, and any violations discovered 
during the inspection.
    As to the requirement of section 350(a)(7), FMCSA has worked with 
its State partners to equip all U.S.-Mexico commercial border crossings 
with scales suitable for enforcement of U.S. CMV weight restrictions.
    In addition, sections 350(c)(1) and 350(d) of the 2002 DOT 
Appropriations Act required the OIG to conduct a comprehensive review 
of FMCSA border operations before vehicles operated by Mexico-domiciled 
carriers may operate beyond the border commercial zones and to conduct 
periodic follow-up reviews. The OIG conducted its initial review in 
June 2002 and has since conducted the required follow-up reviews. 
Section 350(c)(2) required the Secretary of Transportation to certify 
in writing in a manner addressing the Inspector General's findings that 
the opening of the border does not pose an unacceptable safety risk to 
the American public before Mexico-domiciled motor carriers may operate 
CMVs beyond the border commercial zones. Secretary

[[Page 46267]]

Norman Mineta issued that certification in November 2002, and the 
President thereafter ended the 1982 moratorium on the cross-border 
operation of Mexico-domiciled carriers beyond the border commercial 
zones, directing the Secretary to grant authority for such operations 
to qualified Mexican carriers.
    In its 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 the OIG was 
required to review.\6\
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    \6\ The OIG's latest follow-up report has been submitted to 
Congress and is expected to be made public near the publication date 
of this notice.
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    Given this background, FMCSA interprets section 6901(a) to mean 
that the Agency must ensure that all rules adopted pursuant to section 
350 remain applicable to Mexico-domiciled motor carriers participating 
in the demonstration project, and that the Agency must remain in 
compliance with all other section 350 requirements as they relate to 
the demonstration project, including the requirements concerning 
staffing, facilities, equipment, and procedures that the OIG was 
required to review. The FMCSA believes it has fully satisfied the 
requirements of section 350 and section 6901(a).
Adequacy of Enforcement Resources
    Several commenters believe there would be inadequate Federal and 
State enforcement resources to ensure the participating carriers and 
drivers comply with the demonstration project requirements. Commenters 
asserted that FMCSA's proposed demonstration project would create an 
added burden on enforcement staff and result in non-enforcement of the 
project requirements. Commenters also said that there would be 
insufficient personnel at border crossings and insufficient physical 
space for inspections. Commenters questioned the extent to which the 
Mexican government was responsible for enforcement.
    Advocates believe the demonstration project ``raises the issue of 
whether the U.S. border inspection facilities actually have the 
capacity to fulfill this commitment in light of the unknown number of 
trucks that may participate in the [demonstration project].''
    Public Citizen wrote, ``FMCSA has demonstrated little capacity to 
conduct compliance reviews of motor carriers.'' Public Citizen 
indicated that in 2003, 12,000 compliance reviews were conducted out of 
670,000 registered carriers. Public Citizen also noted that ``the 
notice does not suggest that new inspectors will be hired to undertake 
the burden [created by the demonstration project], nor is there an 
estimate of what the burden to inspectors would be to carry out these 
compliance reviews.''
    The Teamsters believe the Mexican government failed to initiate 
safety requirements, and entered into negotiation for such requirements 
only under pressure to facilitate Mexican trucks coming into the United 
States. The Teamsters said, ``Without sufficient enforcement on the 
Mexican side of the border that establishes a strong no-tolerance 
policy, Mexican truck drivers will arrive at the U.S. border without 
the benefit of government and industry practices that deter this kind 
of [non-compliant] behavior.'' The Teamsters also believe FMCSA is 
relying heavily on State and local law enforcement to keep watch over a 
vast expanse of territory and prevent those trucks authorized to 
operate only in the commercial zones from entering other parts of the 
United States. The Teamsters argued that those responsible for the task 
must receive the proper training so that they know what process to 
follow when they have to put a Mexican truck or driver out of service; 
and that there is no evidence presented by FMCSA that this has been 
accomplished. The ATA echoed these concerns.
    OOIDA and Altshuler asked for more information on the demonstration 
project training for U.S. enforcement personnel. Altshuler asserted, 
``The Notice does not identify when the training and guidance will 
occur, who will be trained, or how many individuals will be trained.'' 
OOIDA stated that it has received almost no indication from State 
enforcement officials that they have been required to address this 
issue.
    The ATA, noting the complexities of cabotage regulations, also 
requested information on the cabotage regulations enforcement training 
materials for State and local law enforcers developed by the 
International Association of Chiefs of Police and FMCSA.
    FMCSA Response:
    The FMCSA and its State partners have sufficient staff, facilities, 
equipment, and procedures in place to meet the requirements of section 
350. This conclusion is based on the Agency's experience providing 
safety oversight for Mexico-domiciled motor carriers currently 
authorized to operate in the 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 Mexican motor carriers.
    Section 350 of the 2002 DOT Appropriations Act provided more than 
$25,000,000 for the salary, expense, and capital costs associated with 
implementing the requirements of the statute. This funding was ``in 
addition to amounts otherwise made available in the Act'' and was 
continued in each subsequent appropriations bill. Further, the statute 
specifies that resources for implementing the cross-border provisions 
are not to be fulfilled using personnel from other programs, thus FMCSA 
was specifically required to hire staff for this purpose. The FMCSA 
staff hired pursuant to this funding are specifically assigned to 
enforce U.S. safety requirements for Mexico-domiciled carriers. The 
FMCSA currently employs 274 Federal personnel dedicated to border 
enforcement activities.
    In response to the Teamsters' concerns about the burden on the 
States for providing safety oversight for Mexico-domiciled carriers, 
FMCSA is authorized under 49 U.S.C. 31107 to provide border enforcement 
grants for carrying out commercial motor vehicle safety programs and 
related enforcement activities and projects. The Agency's State 
partners along the border employ 349 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. In 2006, 
approximately 1,880 State motor carrier safety inspectors received 
North American Standard (NAS) inspection procedures training. To date 
in 2007, approximately 1,602 State motor carrier safety inspectors have 
completed this 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 
Commercial Motor Vehicle (CMV) Awareness Training sessions were 
conducted in the last quarter of 2006. Approximately 245 officers were 
certified to train law enforcement officers throughout the United 
States. During the months of August and September 2007, it is 
anticipated that five Foreign CMV Awareness training sessions will be 
conducted, training an additional 60 trainers. The training

[[Page 46268]]

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 commercial zones. Therefore, not only has FMCSA provided 
funding resources to support the States' role in providing Safety 
oversight for Mexico-domiciled carriers operating in the U.S., the 
Agency has provided training.
    The FMCSA notes that the number of Mexico-domiciled carriers and 
vehicles that will participate in the demonstration project is 
extremely small compared to the population of carriers and vehicles 
currently operating in the commercial zones. Most of the motor carriers 
that would participate in the demonstration project already have 
authority to operate in the commercial zones so their participation in 
the project would not result in a significant increase in the 
population of Mexico-domiciled 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 
demonstration project will increase significantly because the cargo 
carried by the long-haul trucks would have crossed the border in any 
event via short-haul, commercial zone trucks. Based on the PASA 
information presented in the June 8 notice, the Mexico-domiciled 
carriers for covered in the table or chart identified 142 drivers and 
155 vehicles that were intended for use in the United States, for 
operations beyond the commercial zones during the demonstration 
project. Thus, the project should create no additional inspection 
burden at the border.
    With regard to comments about Mexican safety regulations, FMCSA 
emphasizes that all participating motor carriers must comply with, and 
the Agency and its State partners will enforce, all U.S. motor carrier 
safety laws and regulations. Moreover, no commenter articulated any 
reasonable basis to support their presumption that Mexico-domiciled 
motor carriers cannot or will not comply with strictly enforced U.S. 
safety rules because of an absence of similar requirements in Mexico, 
and FMCSA is unaware that any evidence exists supporting this 
presumption. Indeed, the experience of the commercial zone carriers 
demonstrates that the opposite is true: Under the border inspection 
regime, which long-haul carriers will also be subject to, the Mexican 
carriers achieved a vehicle out-of-service rate in 2006 (21.51%) that 
is lower than the 2006 out-of-service rate for U.S. carriers (24.73%). 
The driver out-of-service rates in 2006 were 1.29% for Mexico-domiciled 
carriers and 7.67% for U.S.-domiciled carriers. Finally, all 
participating carriers will be subjected to a PASA, and failure to 
demonstrate adequate safety management controls will result in the 
carrier failing the PASA; thus rendering the carrier ineligible to 
participate in the demonstration project.
    With regard to PASAs, FMCSA has the necessary resources, as noted 
in the OIG's 2003 and 2005 audits, to conduct an on-site PASA for each 
carrier that is eligible to participate in the demonstration project. 
The Agency has conducted PASA training for its enforcement personnel in 
preparation for the demonstration project and they are fully prepared 
to complete the necessary PASA for each eligible carrier. A copy of the 
PASA training material is in the docket referenced at the beginning of 
this notice.
    In addition, FMCSA has also provided training to Federal and State 
enforcement personnel concerning cabotage. A discussion of commenters' 
concerns about cabotage and the training provided to ensure strict 
enforcement of the prohibition against Mexico-domiciled carriers 
engaging in cabotage is provided later in this notice.
Obtaining Commercial Vehicle Safety Alliance (CVSA) Decals
    ODOT supported the requirement that long-haul, Mexico-domiciled 
motor carriers must display a current CVSA decal, but indicated this 
may result in out-of-service (OOS) trucks being stranded for an 
unreasonable period of time. ODOT noted that Oregon has fewer Level 1 
certified inspectors than Level 2 certified inspectors, so there may be 
situations when a Level 1 inspector cannot be expeditiously dispatched 
to check an OOS truck, verify repairs, and issue a new CVSA decal. ODOT 
concluded that FMCSA should inform states if there is any expectation 
to inspect a Mexican carrier's truck placed OOS within a certain 
period. ODOT suggested the listing of a failure to have a current CVSA 
decal as a violation on the inspection report, then DOT could 
investigate this allegation after the inspection and determine if the 
Mexican carrier should continue in the demonstration project.
    FMCSA Response:
    The FMCSA understands the concerns of ODOT and other State motor 
carrier safety agencies. The Agency emphasizes Mexico-domiciled 
vehicles that fail to meet certain safety requirements are to be 
treated the same as other vehicles operated in the U.S. If a Mexico-
domiciled vehicle is found to be in violation of a rule and the 
violation is included in the OOS criteria, the vehicle must be placed 
out of service, regardless of the availability of certified Federal or 
State enforcement personnel to re-inspect the vehicle and issue a CVSA 
decal. Safety is FMCSA's top priority, and safety will not be 
compromised for scheduling convenience.
    The FMCSA and its State partners have adopted a policy of stopping 
every vehicle operated by a participating Mexico-domiciled motor 
carrier, every time it crosses the U.S.-Mexico border. During the stop, 
the driver will be checked to ensure he has a valid license. If the 
vehicle is being operated under the control of a Mexico-domiciled 
carrier with authority to operate beyond the commercial zones, and it 
does not display a current CVSA decal, the vehicle will be subjected to 
a safety inspection.
    The initial burden for ensuring that Mexico-domiciled vehicles are 
inspected falls on FMCSA and the States of Arizona, California, New 
Mexico, and Texas because they must ensure that only those vehicles 
that display a current CVSA decal are allowed to proceed beyond the 
commercial zones. As required by section 350 of the 2002 DOT 
Appropriations Act, any vehicle that does not display a current CVSA 
decal must be stopped for an inspection and prohibited from leaving the 
border area until it passes an inspection. The FMCSA will continue 
working with its State partners along the border to ensure every truck 
operated by a carrier with long-haul authority is checked for a CVSA 
decal each time it enters the U.S.
    Congress authorized, and FMCSA provides, Federal grants to these 
border States to cover the financial burden for assisting FMCSA in 
providing motor carrier safety oversight along the U.S.-Mexico border. 
Presently, the resources go toward ensuring that Mexico-domiciled motor 
carriers operating in the commercial zones along the border comply with 
applicable safety requirements. Under the demonstration project, long-
haul Mexico-domiciled motor carriers, unlike commercial zone Mexican 
carriers, and U.S. and Canadian carriers operating in the U.S., are not 
authorized to operate in the U.S. without a valid CVSA decal. Any CMVs 
operated by long-haul Mexico-domiciled carriers that do not display a 
current CVSA decal will be stopped for

[[Page 46269]]

a safety inspection; the vehicle must pass the inspection and have a 
CVSA decal affixed to it by a Federal or State inspector before the 
driver is allowed to proceed on his trip.

B. Section 6901(a), Fulfilling the Requirements of 49 U.S.C. 31315

    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 level of safety that would otherwise be achieved 
through compliance with the FMCSRs. Pilot programs are also required to 
have the following six elements:
    a. A scheduled life of not more than 3 years.
    b. A specific data collection and safety analysis plan that 
identifies a method for comparison.
    c. A reasonable number of participants necessary to yield 
statistically valid findings.
    d. An oversight plan to ensure participants comply with the terms 
and conditions of the program.
    e. Adequate countermeasures to protect the public health and safety 
of study participants and the general public.
    f. A plan to inform State partners and the public about the pilot 
program and to identify approved participants to safety compliance and 
enforcement personnel and to the public.
Verifying Carrier Safety Compliance
    Four commenters addressed safety compliance verification. Altshuler 
argued the program plan does not identify ``[a]n oversight plan to 
ensure that participants comply with the terms and conditions of 
participation'' [49 U.S.C. 31315(c)(2)(D)]. Altshuler noted that the 
description of the bi-national monitoring group states only that the 
group will ``supervise the implementation of the demonstration project 
and * * * find solutions to issues affecting the operational 
performance of the project.'' Altshuler does not believe that the 
monitoring group can ensure compliance by the project participants, and 
that it is unclear whether the bi-national monitoring group has a real 
oversight role.
    In addition, Altshuler said that the notice asserts that Federal 
and State auditors, inspectors, and investigators will have ``knowledge 
and understanding'' of the program, and of potential enforcement 
measures. Altshuler then points out that the notice does not identify 
when the training and guidance will occur to provide ``knowledge and 
understanding,'' who is trained, or how many individuals will be 
trained. Altshuler argued that there is no way of determining whether 
the proposed activities will ``ensure that participants comply with the 
terms and conditions of participation.''
    The Teamsters stated that, even with enforcement, there seems to be 
a willingness on the part of Mexican carriers and drivers to ignore 
some of the basic requirements for operating in the commercial zone. 
The Teamsters noted that the SafeStat figures for 2005 show 9,205 
specified traffic violations by Mexican carriers. Of that number, 8,684 
are size and weight violations.
    Public Citizen stated that the 108 compliance reviews conducted by 
FMCSA of Mexico-domiciled carriers in 2005 represents less than 1 
percent of the 14,000 carriers operating in the border zone.
    FMCSA Response:
    The FMCSA and its State partners will ensure compliance with the 
requirements of the demonstration project the same way the Agency and 
the States ensure that Mexico-domiciled motor carriers operating in the 
commercial zones comply with the applicable safety regulations. The 
FMCSA and the States have a robust safety oversight program for Mexico-
domiciled carriers that are currently allowed to operate commercial 
motor vehicles in the U.S. Further, in order to assist in ensuring 
compliance, FMCSA imposed the following on Mexico-domiciled carriers 
participating in the demonstration program: (1) The application for 
long-haul operating authority, which includes requirements for proof of 
a continuous financial responsibility versus trip insurance used by 
commercial zone carriers; (2) successful completion of the PASA prior 
to being granted provisional authority; (3) the requirement to display 
a valid CVSA decal; and (4) the requirement to have a special 
designation in their USDOT identification numbers to allow enforcement 
officials to readily distinguish between commercial zone carriers and 
those authorized to go beyond the commercial zones.
    In addition, section 350 and 49 CFR part 385 require that a 
compliance review (CR) be conducted within 18 months of the carrier 
being granted provisional operating authority. In the context of the 
12-month demonstration project, FMCSA will prioritize long-haul Mexico-
domiciled carriers for CRs based on a number of factors such as the 
carrier's safety performance as measured through roadside inspections 
and crash involvement.
    The FMCSA and its State partners have for many years provided 
safety oversight under the same regulations for a much larger 
population of Mexico-domiciled carriers operating in U.S. commercial 
zones than the group that will participate in the demonstration 
project. As such, the Agency effectively already has a plan in place to 
ensure participants comply with the terms and conditions of the 
project; full compliance with existing U.S. safety regulations and 
cabotage rules will be required, as is the case with Mexico-domiciled 
carriers operating in the border commercial zones, and the enforcement 
of those requirements is already well established.
    Table 1 below provides roadside inspection data for fiscal years 
2001 through the present. For five consecutive fiscal years (including 
fiscal year 2007, which ends on September 30, 2007), the FMCSA and its 
State partners have increased the number of inspections, and currently 
conduct in excess of 125,000 inspections each year.

                              Table 1.--Truck Inspection (Non-Hazmat) for Mexico-Domiciled Carriers in the Commercial Zones
                                                      [Based on MCMIS snapshot as of June 22, 2007]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           Total driver                                    Total vehicle
               Fiscal year                  Inspection     Total driver         OOS         Driver OOS     Total vehicle        OOS         Vehicle OOS
                                              totals        inspections     inspections   rate (percent)    inspections     inspections   rate (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2001....................................          59,171          59,038           4,951            8.39          54,481          18,280           33.55
2002....................................          80,464          80,149           5,957            7.43          73,088          19,872           27.19
2003....................................         127,855         127,700           4,576            3.58         113,610          27,208           23.95
2004....................................         129,004         128,721           2,575            2.00         119,031          28,810           24.20
2005....................................         156,821         156,688           1,837            1.17         143,601          31,679           22.06
2006....................................         177,124         176,722           2,274            1.29         165,320          35,556           21.51

[[Page 46270]]

 
2007....................................         140,562         140,519           1,486            1.06         128,358          27,859          21.70
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
FY2007--Inspections that occurred between October 1, 2006 and June 22, 2007.
Vehicle Inspections--Level 1, 2, and 5 Inspections.
Driver Inspections--Level 1, 2, 3 Inspections.

    As Table 1 demonstrates, enforcing the safety regulations against 
Mexico-domiciled motor carriers is not a new concept for the Agency and 
its State motor carrier safety enforcement partners. The only 
significant enforcement change that will occur during the demonstration 
project is that States beyond the four border States will now encounter 
Mexico-domiciled carriers. These State motor carrier safety enforcement 
personnel are already trained and experienced in motor carrier safety, 
having conducted more than 3 million roadside inspections each year. 
Their experience demonstrates they are aware of how to enforce motor 
carrier safety requirements, including rules pertaining to operating 
authority.
    Additionally, FMCSA has developed, in cooperation with the 
International Association of Chiefs of Police, a ``Foreign Commercial 
Motor Vehicle Awareness Training Program'' which includes a brochure 
entitled ``Understanding the Basic Operating Requirements of Foreign-
Based Motor Carriers, CMVs, and Drivers.'' The purpose of the program 
is to inform patrol officers (officers that do not conduct motor 
carrier safety enforcement activities) of potential safety and 
enforcement issues involving foreign-based CMVs and drivers operating 
outside commercial zones. The information will be useful during a 
routine traffic stop or in response to a crash. The training is being 
provided to local law enforcement personnel nationwide by certified 
roadside inspectors.
    With regard to comments about the role of the monitoring group, the 
FMCSA emphasizes that neither the group nor the independent evaluation 
panel established by DOT has responsibilities for ensuring that 
participating motor carriers comply with the requirements of the 
project. The roles of the monitoring group and evaluation panel are 
explained above.
    As for the number of compliance reviews conducted on Mexico-
domiciled motor carriers, FMCSA emphasizes that the CR is an 
enforcement tool used to assess the safety fitness of motor carriers. 
The selection of carriers is prioritized based on a number of factors, 
such as high crash rates, roadside inspection results, etc. Thus, the 
number of CRs conducted is based on the number of high-risk carriers 
that have been identified based on those factors, not on the total 
number of carriers subject to FMCSA's jurisdiction. The Agency has 
sufficient resources to ensure that high-risk carriers are evaluated in 
a timely manner. The Agency will not conduct CRs for the sake of 
meeting a quota without regard for the overall safety outcomes of such 
activities in terms of crash prevention. Under the demonstration 
program the Agency will prioritize long-haul Mexico-domiciled carriers 
for CRs based on a number of factors including the amount of time the 
carrier has operating beyond the commercial zones, and the carrier's 
safety performance as measured through roadside inspections and crash 
involvement.
    In response to Altshuler's comments about specific details on 
training of Federal and State enforcement personnel to verify carriers 
comply with the terms of the demonstration project, FMCSA provides a 
detailed discussion elsewhere in this notice.
    With regard to the Teamsters' comment about Mexico-domiciled 
carriers' level of compliance with U.S. safety requirements, the 
inspection data above demonstrates the exact opposite. When the 
inspection data are viewed in the context of the number of Mexico-
domiciled CMV crossings into the U.S. each year, the number of traffic 
violations cited by the Teamsters suggests the vast majority of Mexico-
domiciled drivers comply with U.S. traffic rules. Each year there are 
approximately 4.5 million Mexican CMV crossings into the United States. 
Putting the Teamsters figure in context, 8,684 size and weight 
violations represents a violation rate of only two-tenths of one 
percent. Further, as to the remaining 521 traffic violations, for 4.5 
million trips, this figure is far from alarming.
One-Year Limit for the Demonstration Project
    Advocates and Public Citizen both argued against truncating the 
test period from 3 years authorized by 49 U.S.C. 31315(c) to 1 year. 
Both commenters questioned whether the duration of the project will 
allow for the collection of sufficient data for accurate and complete 
analysis to make credible and defensible generalizations about the 
safety of the project.
    Advocates made reference to Agency statements indicating that the 
agency plans to increase participation by adding 25 motor carriers per 
month over a 4-month period. Advocates believe this results in a lack 
of clarity whether the previously announced 1-year time limit for the 
project will stretch to 16 months in order to give each motor carrier 
one year of experience participating in the project. Advocates also 
stated that the notice indicated that ``up to'' 100 Mexico-domiciled 
motor carriers will be selected, thus the final number of selected 
carriers is unknown.
    ATA believes the information provided by the Agency suggests that 
after the 1-year project period, motor carriers do not have to reapply 
under their respective country's application process to continue 
operations. ATA sought further clarification from FMCSA and the 
Secretaria de Comunaciones y Transportes (SCT) regarding the ``post-
demonstration project'' for continued cross-border operations after 
successful review of the 1-year time period.
    FMCSA Response:
    The FMCSA believes that a 1-year demonstration project is 
sufficient to determine whether the safety oversight program the Agency 
adopted in response to section 350 of the 2002 DOT Appropriations Act 
will enable the Agency to ensure that Mexico-domiciled motor carriers 
operating beyond the border zones can achieve a level of safety 
equivalent to, or greater than, the

[[Page 46271]]

level attained by other motor carriers operating in the U.S.
    Although section 6901 of the 2007 Act requires that the 
demonstration project meet the requirements of 49 U.S.C. 31315(c) 
concerning pilot programs, that statute does not require that such 
programs be 3 years in duration. Section 31315(c)(1)(A) provides for a 
``scheduled life of each pilot program of not more than 3 years.'' 
Therefore, the statute sets 3 years as a maximum, not a minimum.
    The Agency will allow up to 100 carriers to participate in the 
project. This represents a significant percentage--100 out of 989 
carriers, or about 10%--of the motor carriers that had submitted 
applications for operating authority prior to the announcement of the 
Agency's plans to conduct the demonstration project and will generate 
more than enough data for a meaningful safety analysis. The Agency 
acknowledges that the number of participating carriers may fall below 
the goal of 100. However, the Agency believes there is sufficient 
interest in the project to ensure an appropriate number of 
participants.
    In addition to the number of participants, the volume of the data 
depends on the frequency with which the participating carriers operate 
in the United States. For example, if few trips are made, there will be 
few safety inspections at the border and even fewer in non-border 
States. The FMCSA is not aware of any information suggesting that the 
amount of freight transported during the project would vary 
significantly based on the scheduled life of the project. The Agency 
believes the decision to limit the project to 1 year is appropriate in 
light of the number of carriers, drivers, vehicles, and their exposure 
rate during the project.
    With regard to the ATA comment, FMCSA contemplates that the 
demonstration will last for one year from the date of FMCSA's initial 
grant of authority.
Participating Carrier Number and Diversity
    The Teamsters, Public Citizen, the Coalition, and Altshuler believe 
that the selection of motor carriers to participate in the project 
would negatively affect the data. Public Citizen argued that the 
participants might not be representative of the entire universe of 
eligible carriers. The Coalition believes the Agency has not completed 
preparations for organizing and conducting a safe and scientifically 
valid pilot program as required by 49 U.S.C. 31315(c).
    The Teamsters argued that selection bias in favor of the safest 
carriers will slant the data on violations, crashes, and other 
compliance issues. They claimed that this non-representative data might 
then be misused to proclaim the project a success and justify a full 
opening of the border after the 1-year period.
    Similarly, Advocates believe the Agency also fails to fulfill 
section 6901(c)(3), which directs the Secretary to ensure that ``the 
pilot program consists of a representative and adequate sample of 
Mexico-domiciled carriers likely to engage in cross-border operations 
beyond United States municipalities and commercial zones on the United-
States Mexico border.'' Advocates argued that ``cherry-picking'' only 
scrupulously screened Mexican motor carriers and not comparing them 
against a comparable cohort, but against all U.S. motor carriers, is 
not selecting ``a representative'' sample.
    Advocates noted that FMCSA provided information on the status of 
107 motor carriers, but has not provided any details about why each 
motor carrier passed, failed, or withdrew its application.
    Altshuler argued the Agency has offered insufficient information 
about who will participate in the project. Also, Altshuler stated that 
the demonstration project does not include a ``plan to inform State 
partners and the public about the pilot program and to identify 
approved participants to safety compliance and enforcement personnel 
and to the public'' [49 U.S.C. 31315(c)(2)(F)]. Altshuler argued the 
selection of carriers appears to be a wholly closed process, with no 
opportunity for the public to comment on applications of particular 
carriers. The law firm noted that there is no plan to educate the 
public or the State and local authorities about the program or the 
carriers participating in it.
    In addition, Altshuler stated that the notice provides incomplete 
information regarding the program's reciprocal nature. Altshuler said 
the notice indicates that the proposed program is ``reciprocal,'' and 
that ``[u]p to 100 U.S.-domiciled motor carriers will be allowed to 
operate in Mexico on terms similar to those applicable to Mexico-
domiciled carriers operating in this country.'' However, the commenter 
stated the notice provides no information as to the specific terms on 
which U.S.-domiciled motor carriers may operate in Mexico. Without this 
information, the commenter argued that there is no way to assess 
whether these terms are actually similar to those proposed in the 
program.
    FMCSA Response:
    Section 350 of the 2002 DOT Appropriations Act and section 6901 of 
the 2007 Act clearly prescribe what FMCSA must do prior to granting 
operating authority for long-haul Mexico-domiciled carriers to operate 
in the U.S. The FMCSA will ensure, consistent with Congress' expressed 
intent, only safe carriers are permitted to operate in the U.S.
    The Agency has selected carriers from among those that submitted an 
application for authority to operate beyond commercial zones since the 
Agency began accepting applications under its 2002 application 
regulation. The Agency will allow into the program only those carriers 
that meet the safety criteria, as demonstrated through the successful 
completion of the PASA. To the extent that there is an opportunity to 
achieve some geographic and operating size diversity, the Agency will 
select carriers accordingly. However, safety is FMCSA's top priority. 
The Agency will not compromise highway safety for the sake of achieving 
carrier diversity.
    In response to Advocates comment about the PASA information 
presented in the June 8 notice, the notice includes details about why 
motor carriers failed the PASA. For each carrier that failed the PASA, 
the Agency identified which of the six factors the carrier failed to 
satisfy.
    The FMCSA disagrees with comments alleging that the Agency is 
manipulating the outcome of the project by selecting only those 
carriers with the best safety performance records. The Agency's 
selection criteria do not impose safety performance standards for the 
demonstration project that are beyond those provided in the safety 
regulations, including the PASA requirements. These are the same 
regulations that would apply were Mexican carriers to be considered for 
long-haul operating authority outside the context of a demonstration 
project. Participating carriers must have safety performance records 
that reflect the ability to operate safely in the U.S., and safety 
management controls to demonstrate the willingness to comply with U.S. 
safety regulations. The FMCSA expects that participating carriers to 
demonstrate the ability to operate safely.
    With regard to Altshuler's remarks about the opportunity for public 
comment on individual carriers applications for operating authority, 
the FMCSA emphasizes that the public has the opportunity to comment in 
response to the FMCSA Register on every application that the Agency 
proposes to grant. As explained in the June 8 notice, if the carrier 
has successfully completed the PASA, FMCSA publishes the carrier's 
request for authority in the

[[Page 46272]]

FMCSA Register. The FMCSA Register can be viewed by going to: https://
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 carrier's 
application on the grounds that the 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. The Agency's rules governing 
protests, codified at 49 CFR part 365, subpart B, are the same rules 
applicable to protesting operating authority requests filed by U.S. and 
Canada-domiciled carriers.
    In addition, as required by section 6901(b)(2)(B)(ii) of the 2007 
Act, FMCSA will publish in the Federal Register, and provide for public 
comment, comprehensive data and information on PASA's conducted after 
the date of enactment of the 2007 Act. The Agency will publish 
information about PASA's completed since the list presented in the June 
8 notice was prepared; the June 8 notice covered PASA's completed as of 
May 31, 2007. Therefore, the public has two opportunities to comment on 
Mexico-domiciled carriers' applications: In response to the FMCSA 
Register, and in response to the Federal Register notice required by 
section 6901(b)(2)(B)(ii). Additional carriers can be added to the 
ongoing program after PASA information about them is published and an 
adequate opportunity for comment is provided.
    In response to the comment about reciprocity for U.S. carriers, 
FMCSA continues to work closely with the Mexican government to ensure 
that up to 100 U.S.-domiciled carriers are granted authority to operate 
in Mexico during the demonstration project. The Agency is working 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. The project will not 
commence until such reciprocity is provided. However, FMCSA is not 
required to provide notice and comment on the Mexican government's 
application process for obtaining operating authority, or its criteria 
for selecting U.S.-domiciled carriers.
    In response to comments about the plan to inform the States about 
the program, FMCSA reiterates the Agency and its State partners have 
extensive experience providing safety oversight for a much larger 
population of Mexico-domiciled carriers operating in U.S. commercial 
zones than the group that will participate in the demonstration 
project. The Agency will inform State motor carrier safety enforcement 
personnel about the demonstration project through its existing routine 
methods of sharing with them information about new programs. These 
methods include, but are not limited to, conferences, meetings, and in-
service-training. For example, the Agency has worked with the IACP 
Border Group to discuss the demonstration project, including meetings, 
memoranda and e-m