Pilot Program on the North American Free Trade Agreement (NAFTA) Long-Haul Trucking Provisions, 40420-40439 [2011-16886]

Agencies

• Federal Motor Carrier Safety Administration
• DEPARTMENT OF TRANSPORTATION

[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: https://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 https://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 https://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 (https://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: https://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 https://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. standa