Pilot Project on NAFTA Trucking Provisions, 11728-11731 [2013-03672]
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Nominations may be emailed to
freight@dot.gov or faxed to the attention
of Shira Bergstein at (202) 366–0263, or
mailed to Shira Bergstein, U.S.
Department of Transportation, Office of
the Secretary Office of Policy, Room
W84–317 (P–40), 1200 New Jersey
Avenue SE., Washington, DC 20590.
Nominations must be received on or
before midnight E.D.T. on March 21,
2013. The Department encourages
nominations submitted any time before
the deadline. The Department is not
responsible for any technical difficulties
submitting a nomination form.
Nominees selected for appointment to
the Committee will be notified by return
email and by a letter of appointment.
A selection team comprising
representatives from several DOT offices
will review the nomination packages.
The selection team will make
recommendations regarding
membership to the Under Secretary of
Transportation for Policy based on
criteria including (1) professional or
academic expertise, experience, and
knowledge; (2) stakeholder
representation; (3) availability and
willingness to serve; and (4) relevant
experience in working in committees
and advisory panels. The Under
Secretary of Transportation for Policy
will submit a list of recommended
candidates to the Secretary of
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selection of Committee members.
Nominations are open to all
individuals without regard to race,
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extent practicable, individuals with
demonstrated ability to represent
minorities, women, and persons with
disabilities. Please note, however, that
federally registered lobbyists are
ineligible for nomination.
Issued in Washington, DC, on February 13,
2013.
Ray LaHood,
Secretary of Transportation.
[FR Doc. 2013–03759 Filed 2–15–13; 8:45 am]
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BILLING CODE 4910–9X–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
Aviation Rulemaking Advisory
Committee; Meeting
Federal Aviation
Administration (FAA), DOT.
AGENCY:
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Notice of Aviation Rulemaking
Advisory Committee (ARAC) meeting.
ACTION:
The FAA is issuing this notice
to advise the public of a meeting of the
ARAC.
DATES: The meeting will be held on
March 5, 2013, at 1:00 p.m.
ADDRESSES: The meeting will take place
at the Federal Aviation Administration,
800 Independence Avenue SW.,
Washington, DC 20591, 5th Floor,
Conference Room 5 A/B/C.
FOR FURTHER INFORMATION CONTACT:
Renee Butner, Federal Aviation
Administration, 800 Independence
Avenue SW., Washington, DC 20591,
telephone (202) 267- 5093; fax (202)
267–5075; email Renee.Butner@faa.gov.
SUPPLEMENTARY INFORMATION: Under
section 10(a)(2) of the Federal Advisory
Committee Act (5 U.S.C. App. 2), we are
giving notice of a meeting of the ARAC
taking place on March 5, 2012, at the
Federal Aviation Administration, 800
Independence Avenue SW.,
Washington, DC, 20591. The Agenda
includes:
1. ARAC Bylaws Discussion and
Approval
2. Status Reports From Active Working
Groups
a. Airman Testing Standards and
Training Working Group (ARAC)
b. Flight Controls Harmonization
Working Group (Transport Airplane
and Engine Subcommittee [TAE])
c. Airworthiness Assurance Working
Group (TAE)
3. New Tasks
a. Engine Bird Ingestion
Requirements—Revision of Section
33.76
b. Transport Airplane Performance
and Handling Characteristics
4. ARAC Tasking Template
5. Proposed Rulemaking for Part 21
6. Status Report From the FAA
a. Rulemaking Prioritization Working
Group (RPWG)
Attendance is open to the interested
public but limited to the space
available. The FAA will arrange
teleconference service for individuals
wishing to join in by teleconference if
we receive notice by February 26.
Arrangements to participate by
teleconference can be made by
contacting the person listed in the FOR
FURTHER INFORMATION CONTACT section.
Callers outside the Washington
metropolitan area are responsible for
paying long-distance charges.
The public must arrange by February
26 to present oral statements at the
meeting. The public may present
written statements to the Aviation
Rulemaking Advisory Committee by
SUMMARY:
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providing 25 copies to the Designated
Federal Officer, or by bringing the
copies to the meeting.
If you are in need of assistance or
require a reasonable accommodation for
this meeting, please contact the person
listed under the heading FOR FURTHER
INFORMATION CONTACT.
Issued in Washington, DC, on February 8,
2013.
Lirio Liu,
Designated Federal Officer, Aviation
Rulemaking Advisory Committee.
[FR Doc. 2013–03406 Filed 2–14–13; 11:15 am]
BILLING CODE 4910–13–P
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
[Docket No FMCSA–2011–0097]
Pilot Project on NAFTA Trucking
Provisions
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Notice.
AGENCY:
On September 12, 2011,
FMCSA announced and requested
public comment on data and
information concerning the PreAuthorization Safety Audit (PASA) for
Grupo Behr de Baja California SA de CV
(Grupo Behr), USDOT# 861744, a motor
carrier that applied to participate in the
Agency’s long-haul pilot program. That
action was required by the ‘‘U.S. Troop
Readiness, Veterans’ Care, Katrina
Recovery, and Iraq Accountability
Appropriations Act, 2007’’ and all
subsequent appropriations. While
Grupo Behr successfully completed the
PASA process, commenters raised
concerns about the company’s safety
record. In addition, during the Agency’s
safety vetting process, an operating
authority violation was discovered. As a
result, the Agency placed Grupo Behr’s
application on hold. The purpose of this
notice is to respond to the comments
received in response to the September
12, 2011, notice, and to explain the
enforcement action that the Agency took
as a result of the operating authority
violation. In addition, this notice
advises that the Agency will now issue
provisional authority to Grupo Behr for
participation in the long-haul pilot
program.
SUMMARY:
ADDRESSES:
Docket: For access to the docket to
read background documents or
comments received, go to https://
www.regulations.gov at any time or to
Room W12–140 on the ground floor of
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the DOT Headquarters Building at 1200
New Jersey Avenue SE, Washington,
DC, between 9 a.m. and 5 p.m., ET,
Monday through Friday, except Federal
holidays.
Privacy Act: Anyone is able to search
the electronic form of all comments
received into any of our dockets by the
name of the individual submitting the
comment (or signing the comment, if
submitted on behalf of an association,
business, labor union, etc.). You may
review DOT’s Privacy Act System of
Records Notice for the DOT Federal
Docket Management System published
in the Federal Register on January 17,
2008 (73 FR 3316), or you may visit
https://edocket.access.gpo.gov/2008/pdf/
E8–785.pdf.
Public Participation: The
www.regulations.gov Web site is
generally available 24 hours each day,
365 days each year. You can get
electronic submission and retrieval help
and guidelines under the ‘‘help’’ section
of the www.regulations.gov Web site.
Comments received after the comment
closing date will be included in the
docket, and will be considered to the
extent practicable.
FOR FURTHER INFORMATION CONTACT:
Marcelo Perez, FMCSA, North American
Borders Division, 1200 New Jersey
Avenue SE., Washington, DC 20590–
0001. Telephone (512) 916–5440 Ext.
228; email marcelo.perez@dot.gov.
SUPPLEMENTARY INFORMATION:
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Background
On May 25, 2007, the President
signed into law the U.S. Troop
Readiness, Veterans’ Care, Katrina
Recovery, and Iraq Accountability
Appropriations Act, 2007 (the Act),
[Pub. L. 110–28, 121 Stat. 112, 183, May
25, 2007]. Section 6901 of the Act
requires that certain actions be taken by
the Department of Transportation (the
Department) as a condition of obligating
or expending appropriated funds to
grant authority to Mexico-domiciled
motor carriers to operate beyond the
municipalities in the United States on
the United States-Mexico international
border or the commercial zones of such
municipalities (border commercial
zones).
On July 8, 2011, FMCSA announced
in the Federal Register [76 FR 40420] its
intent to proceed with the initiation of
a U.S.-Mexico cross-border long-haul
trucking pilot program to test and
demonstrate the ability of Mexicodomiciled motor carriers to operate
safely in the United States beyond the
border commercial zones as detailed in
the Agency’s April 13, 2011, Federal
Register notice [76 FR 20807]. The pilot
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program is a part of FMCSA’s
implementation of the North American
Free Trade Agreement (NAFTA) crossborder long-haul trucking provisions in
compliance with section 6901(b)(2)(B)
of the Act. FMCSA reviewed, assessed,
and evaluated the required safety
measures as noted in the July 8, 2011,
notice and considered all comments
received on or before May 13, 2011, in
response to the April 13, 2011, notice.
Additionally, to the extent practicable,
FMCSA considered comments received
after May 13, 2011.
In accordance with section
6901(b)(2)(B)(i) of the Act, FMCSA is
required to publish a notice in the
Federal Register, and provide sufficient
opportunity for the public to review and
comment on comprehensive data and
information on the PASAs conducted of
motor carriers domiciled in Mexico that
are granted authority to operate beyond
the border commercial zones.
Comments and Responses
On September 12, 2011, FMCSA
published the passed PASA results for
Grupo Behr [76 FR 56274], and the
Agency received responses from 13
commenters.
On October 14, 2011, the Agency
published a second notice [76 FR 63988]
that explained that Advocates for Auto
and Highway Safety (Advocates) and the
International Brotherhood of Teamsters
(Teamsters) expressed concern that
Grupo Behr’s out-of-service (OOS) rate
was 28.6%, which was higher than the
national average of 20.7%.
In addition, both commenters noted
that Grupo Behr’s vehicle maintenance
rating within FMCSA’s Safety
Measurement System (SMS) was 45.8%.
Advocates further noted that Grupo
Behr had 40 vehicle violations in the 24
months prior to August 26, 2011. Also,
the Owner-Operator Independent
Drivers Association (OOIDA) indicated
that publicly-available information
indicated that Grupo Behr had an
inadequate safety history.
FMCSA Response: Over the past year,
Grupo Behr has improved its safety
record. Grupo Behr’s Vehicle OOS rate
is currently 14% and its Driver OOS rate
is 2% based on the December 14, 2012,
SMS snapshot. Grupo Behr does not
currently have any SMS Behavior
Analysis and Safety Indicator Categories
(BASICs) that exceed FMCSA’s
intervention thresholds. As a result, the
company is in good standing to
participate in the Pilot Program.
It should also be noted that the
statutory and regulatory requirement for
participation in the pilot program is
satisfactory completion of the PASA and
a subsequent compliance review, after
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operation. The Agency may not
establish standards for pilot program
participants that are not comparable to
the requirements for U.S. carriers.
OOIDA researched the vehicle
identification numbers from inspection
reports and questioned if Grupo Behr
would be using a 1991 Class 8
Freightliner, which does not comply
with the Environmental Protection
Agency (EPA) requirement for vehicles
of model year 1998 or later.
FMCSA Response: The FMCSA
confirmed that all vehicles proposed for
use in the pilot program by Grupo Behr
meet both Federal Motor Vehicle Safety
Standards and EPA requirements. The
oldest of the proposed vehicles to be
operated by Grupo Behr in the pilot
program is 1998, and the 1991 Class 8
Freightliner in question by OOIDA will
not be used.
OOIDA questioned the safety data
collected on Grupo Behr’s straight
trucks and asked how this is affected by
SMS segmentation. In addition, OOIDA
challenged the accuracy of Grupo Behr’s
Vehicle Maintenance BASIC and alleged
that the event group–the group of
carriers that Grupo Behr is compared
against in SMS— ‘‘watered down’’ their
scores.
FMCSA Response: FMCSA notes that
Mexican carriers are evaluated the same
as U.S. carriers under SMS. Also, there
are many types of trucking operations
using a variety of equipment. The pilot
program is designed to test and
demonstrate the ability of Mexicodomiciled motor carriers to operate
safely in the United States beyond the
commercial zones; the Mexican trucking
industry as a whole includes straight
trucks that may operate beyond the
commercial zones, and such operations
are an important part of the pilot
program.
Advocates asked if the drivers and
vehicles to be used in the pilot program
had been subject to any of Grupo Behr’s
OOS orders.
FMCSA Response: During the past 12
months, two of the five vehicles that
Grupo will use in the Pilot Program
have been placed out of service and
deficiencies subsequently corrected.
FMCSA notes that Grupo Behr’s Vehicle
Maintenance BASIC score is 30.9%
resulting from on-road performance
data, which is below our intervention
threshold levels. In addition, during our
PASA, FMCSA confirmed that Grupo
Behr has a systematic vehicle
maintenance program that meets our
requirements. The five vehicles to be
used in the pilot program were
inspected by FMCSA in June 2012 and
received Commercial Vehicle Safety
Alliance (CVSA) decals. The vehicles
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will be reinspected prior to installation
of electronic monitoring devices and
CVSA decals applied, as appropriate.
Additionally, during the past 12
months, one driver who will participate
in the pilot program was placed out-ofservice for having an expired Licencia
Federal de Conductor (LFC) during a
roadside inspection. The FMCSA
confirmed that this driver’s LFC has
since been reinstated. This driver was
also subject to several subsequent
inspections and has not been placed out
of service, indicating that this
deficiency was adequately addressed.
The Teamsters noted that Grupo
Behr’s insurance history has a period
between July 2007 and April 2010
where ‘‘cancelled’’ is listed six times.
Based on this information, the
Teamsters questioned if Grupo Behr will
be able to obtain and maintain
insurance.
FMCSA Response: The insurance
history questioned by the Teamsters for
Grupo Behr is associated with the
operating authority number MX630115.
A review of the insurance history for
MX630115, which is publicly available
on FMCSA’s Licensing and Insurance
Web site, reflects no lapse in either
required bodily injury-property damage
liability insurance or cargo insurance
coverage for Grupo Behr from July 2,
2007, through April 3, 2010. The policy
cancellation notices associated with
Grupo Behr’s MX630115 operating
authority are the result of the insurance
industry’s common practice of sending
cancellation notices to FMCSA prior to
the end of the term of insurance
coverage, because of FMCSA’s
requirement that they notify the Agency
30 days prior to the end of the policy.
FMCSA notes that the Agency’s
previous cross border Demonstration
Project was terminated on March 9,
2010, and Grupo Behr’s provisional
operating authority was revoked. Grupo
Behr’s insurance was not cancelled
prior to the termination of the
Demonstration Project.
In the October 14, 2011, notice,
FMCSA explained that, based on the
information provided by Advocates,
OOIDA, and Teamsters, the Agency was
conducting additional reviews of Grupo
Behr’s inspections and vehicles. As a
result, the Agency would not issue longhaul operating authority to Grupo Behr
until such time as the reviews were
complete, and the above noted
comments were addressed in a
subsequent Federal Register notice.
This notice satisfies that commitment by
the Agency.
During the review of Grupo Behr’s
operations, it was determined that
Grupo Behr operated beyond the scope
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of its operating authority. Grupo Behr
had a lease agreement with a U.S.-based
motor carrier, Maria Guadalupe Carrillo
Cervantes (USDOT #1553781). However,
per section 219(d) of the Motor Carrier
Safety Improvement Act of 1999
(MCSIA) [Pub. L. 106–159],1 no Mexicodomiciled commercial zone carrier may
lease vehicles for use beyond the
commercial zone. Specifically, this
statute reads:
SEC. 219. FOREIGN MOTOR CARRIER
PENALTIES AND DISQUALIFICATIONS. (d)
LEASING.—Before the implementation of the
land transportation provisions of the North
American Free Trade Agreement, during any
period in which a suspension, condition,
restriction, or limitation imposed under
section 13902(c) of title 49, United States
Code, applies to a motor carrier (as defined
in section 13902(e) of such title), that motor
carrier may not lease a commercial motor
vehicle to another motor carrier or a motor
private carrier to transport property in the
United States.
FMCSA issued a Notice of Violation
(NOV) to Grupo Behr on November 9,
2011, citing Grupo Behr for operating
beyond the scope of its operating
authority by leasing vehicles to Maria
Guadalupe Carillo Cervantes. Grupo
Behr and Maria Guadalupe Carrillo
Cervantes terminated this agreement on
November 11, 2011.
The Agency required Grupo Behr to
provide a corrective action plan to
ensure that the company had ceased all
leasing agreements, and would ensure
no further transportation outside of the
commercial zones. In June 2012,
FMCSA conducted a focused
investigation of Grupo Behr and
confirmed that since the NOV, there are
no inspections or evidence of Grupo
Behr’s commercial motor vehicles
operating beyond the U.S.
municipalities on the U.S.-Mexico
border and their commercial zones. A
copy of this focused review was added
to the carrier’s PASA document on the
Pilot Program Web site.
Finally, during the focused
investigation, FMCSA reviewed the
mandatory elements of the PASA to
determine if Grupo Behr remained in
substantial compliance as required by
Appendix A to Subpart B of 49 CFR part
365.
Two violations that were not found
during the PASA were discovered
during the focused investigation. Grupo
Behr was using a driver vehicle
inspection report (DVIR) form that listed
the bumper; engine; cabin floor; fuel
tank; cab; tires; drive shaft; muffler;
chassis; rear door; air tanks; trailer; 5th
wheel; and seal/tiedowns, but did not
1 Public Law 106–159, 113 Stat. 1748 (December
9, 1999); 49 U.S.C. 521 note.
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list service brakes, including the trailer
brake connections; parking brake;
steering mechanism; lighting devices
and reflectors; horn; windshield wipers;
rear vision mirrors; wheels and rims;
and emergency equipment as required
on the DVIR. The Agency subsequently
received a corrective action letter from
Grupo Behr committing to using a
revised version of the DVIR. A copy of
this letter is included with the PASA
documentation on the pilot program
Web site.
In addition, at the time of focused
investigation, Grupo Behr could not
provide adequate documentation of
required alcohol testing. Grupo Behr
addressed this issue in its corrective
action letter. Since the closeout of the
focused investigation, Grupo Behr
provided sufficient information to the
Agency to show that alcohol testing was
done at the required 10 percent
sampling rate. To demonstrate this, the
focused review documentation was
added to the initial PASA on the
Agency’s Web site to reflect the two
reviews.
Grupo Behr has acknowledged
affiliations with Logix Transport, Inc.
(USDOT #2210821). Logix Transport,
Inc. was originally granted operating
authority as a U.S.-based motor carrier
on December 8, 2011, but requested that
the operating authority be converted to
a property broker certificate. Logix
Transport, Inc. was granted a property
broker certificate on May 9, 2012.
FMCSA has no evidence that Logix
Transport, Inc. operated as a motor
carrier in the United States.
Grupo Behr is also affiliated with the
U.S. freight forwarder Pacific Customs
Services (Grupo Logix), Freight
Forwarder number 9476. FMCSA has no
evidence that Pacific Customs Services
(Grupo Logix) has operated as a motor
carrier in the United States.
FMCSA also notes that Grupo Behr
was affiliated with Logistics Transport
dba Logix Transport USDOT 850185,
Logistics Transport was found to have
an unsatisfactory safety rating in March
2003 and has not operated since. This
is well beyond the 3 years of history the
Agency requests that applicants supply
on their OP–1 (or OP–1MX) application
for authority.
As noted above, Grupo Behr had a
business relationship with Maria
Guadalupe Carrillo Cervantes (USDOT
1553781), which currently has vehicle
and driver OOS rates of 14.5% and 2%,
respectively, based on the 24-month
record ending December 14, 2012. Maria
Guadalupe Carrillo Cervantes has no
SMS BASICs above threshold levels In
addition, FMCSA has established that
the business relationship between
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Grupo Behr and Maria Guadalupe
Carillo Cervantes no longer exists.
We are also aware that Grupo Behr is
affiliated with Logix Transport, Inc.
(USDOT number 2210821/MC number
767176). However, this enterprise
carrier’s authority is inactive.
Based on the original passed PASA,
completion of the focused investigation,
corrective action documentation, and
improved out of service rates and SMS
scores, FMCSA deems Grupo Behr’s
safety record sufficient for participation
in the pilot program. Therefore, FMCSA
will issue provisional operating
authority for participation in the pilot
program.
Issued On: January 29, 2013.
Anne S. Ferro,
Administrator.
[FR Doc. 2013–03672 Filed 2–15–13; 8:45 am]
BILLING CODE 4910–EX–P
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
[Docket No. FMCSA–2006–25246; FMCSA–
2006–26066; FMCSA–2008–0340; FMCSA–
2010–0354]
Qualification of Drivers; Exemption
Applications; Vision
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Notice of renewal of
exemptions; request for comments.
AGENCY:
FMCSA announces its
decision to renew the exemptions from
the vision requirement in the Federal
Motor Carrier Safety Regulations for 12
individuals. FMCSA has statutory
authority to exempt individuals from
the vision requirement if the
exemptions granted will not
compromise safety. The Agency has
concluded that granting these
exemption renewals will provide a level
of safety that is equivalent to or greater
than the level of safety maintained
without the exemptions for these
commercial motor vehicle (CMV)
drivers.
SUMMARY:
This decision is effective March
1, 2013. Comments must be received on
or before March 21, 2013.
ADDRESSES: You may submit comments
bearing the Federal Docket Management
System (FDMS) numbers: Docket No.
[FMCSA–2006–25246; FMCSA–2006–
26066; FMCSA–2008–0340; FMCSA–
2010–0354], using any of the following
methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
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DATES:
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on-line instructions for submitting
comments.
• Mail: Docket Management Facility,
U.S. Department of Transportation, 1200
New Jersey Avenue SE., West Building
Ground Floor, Room W12–140,
Washington, DC 20590–0001.
• Hand Delivery or Courier: West
Building Ground Floor, Room W12–140,
1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5
p.m., Monday through Friday, except
Federal Holidays.
• Fax: 1–202–493–2251.
Instructions: Each submission must
include the Agency name and the
docket number for this notice. Note that
DOT posts all comments received
without change to https://
www.regulations.gov, including any
personal information included in a
comment. Please see the Privacy Act
heading below.
Docket: For access to the docket to
read background documents or
comments, go to https://
www.regulations.gov at any time or
Room W12–140 on the ground level of
the West Building, 1200 New Jersey
Avenue SE., Washington, DC, between 9
a.m. and 5 p.m., Monday through
Friday, except Federal holidays. The
Federal Docket Management System
(FDMS) is available 24 hours each day,
365 days each year. If you want
acknowledgment that we received your
comments, please include a selfaddressed, stamped envelope or
postcard or print the acknowledgement
page that appears after submitting
comments on-line.
Privacy Act: Anyone may search the
electronic form of all comments
received into any of our dockets by the
name of the individual submitting the
comment (or of the person signing the
comment, if submitted on behalf of an
association, business, labor union, etc.).
You may review DOT’s Privacy Act
Statement for the FDMS 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:
Elaine M. Papp, Chief, Medical
Programs Division, 202–366–4001,
fmcsamedical@dot.gov, FMCSA,
Department of Transportation, 1200
New Jersey Avenue SE., Room W64–
224, Washington, DC 20590–0001.
Office hours are from 8:30 a.m. to 5 p.m.
Monday through Friday, except Federal
holidays.
SUPPLEMENTARY INFORMATION:
Background
Under 49 U.S.C. 31136(e) and 31315,
FMCSA may renew an exemption from
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11731
the vision requirements in 49 CFR
391.41(b)(10), which applies to drivers
of CMVs in interstate commerce, for a
two-year period if it finds ‘‘such
exemption would likely achieve a level
of safety that is equivalent to or greater
than the level that would be achieved
absent such exemption.’’ The
procedures for requesting an exemption
(including renewals) are set out in 49
CFR part 381.
Exemption Decision
This notice addresses 12 individuals
who have requested renewal of their
exemptions in accordance with FMCSA
procedures. FMCSA has evaluated these
12 applications for renewal on their
merits and decided to extend each
exemption for a renewable two-year
period. They are:
Kreis C. Baldridge (TN)
Steven J. Clark (GA)
Thomas A. Crowell (NC)
Donald D. Daniels (MS)
Michael A. Fouch (NJ)
Carl A. Lohrbach (OH)
Jeffrey L. Olson (MN)
Donnie R. Riggs (AL)
James E. Savage (NV)
Randall S. Surber (WV)
Ernest W. Waff (VA)
Calvin J. Wallace, Jr. (NV)
The exemptions are extended subject
to the following conditions: (1) That
each individual has a physical
examination every year (a) by an
ophthalmologist or optometrist who
attests that the vision in the better eye
continues to meet the requirements in
49 CFR 391.41(b)(10), and (b) by a
medical examiner who attests that the
individual is otherwise physically
qualified under 49 CFR 391.41; (2) that
each individual provides a copy of the
ophthalmologist’s or optometrist’s
report to the medical examiner at the
time of the annual medical examination;
and (3) that each individual provide a
copy of the annual medical certification
to the employer for retention in the
driver’s qualification file and retains a
copy of the certification on his/her
person while driving for presentation to
a duly authorized Federal, State, or local
enforcement official. Each exemption
will be valid for two years unless
rescinded earlier by FMCSA. The
exemption will be rescinded if: (1) The
person fails to comply with the terms
and conditions of the exemption; (2) the
exemption has resulted in a lower level
of safety than was maintained before it
was granted; or (3) continuation of the
exemption would not be consistent with
the goals and objectives of 49 U.S.C.
31136(e) and 31315.
E:\FR\FM\19FEN1.SGM
19FEN1
]]>Agencies
[Federal Register Volume 78, Number 33 (Tuesday, February 19, 2013)]
[Notices]
[Pages 11728-11731]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-03672]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No FMCSA-2011-0097]
Pilot Project on NAFTA Trucking Provisions
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice.
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SUMMARY: On September 12, 2011, FMCSA announced and requested public
comment on data and information concerning the Pre-Authorization Safety
Audit (PASA) for Grupo Behr de Baja California SA de CV (Grupo Behr),
USDOT 861744, a motor carrier that applied to participate in
the Agency's long-haul pilot program. That action was required by the
``U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq
Accountability Appropriations Act, 2007'' and all subsequent
appropriations. While Grupo Behr successfully completed the PASA
process, commenters raised concerns about the company's safety record.
In addition, during the Agency's safety vetting process, an operating
authority violation was discovered. As a result, the Agency placed
Grupo Behr's application on hold. The purpose of this notice is to
respond to the comments received in response to the September 12, 2011,
notice, and to explain the enforcement action that the Agency took as a
result of the operating authority violation. In addition, this notice
advises that the Agency will now issue provisional authority to Grupo
Behr for participation in the long-haul pilot program.
ADDRESSES:
Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov at any time or to
Room W12-140 on the ground floor of
[[Page 11729]]
the DOT Headquarters Building at 1200 New Jersey Avenue SE, Washington,
DC, between 9 a.m. and 5 p.m., ET, Monday through Friday, except
Federal holidays.
Privacy Act: Anyone is able to search the electronic form of all
comments received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
Privacy Act System of Records Notice for the DOT Federal Docket
Management System published in the Federal Register on January 17, 2008
(73 FR 3316), or you may visit https://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.
Public Participation: The www.regulations.gov Web site is generally
available 24 hours each day, 365 days each year. You can get electronic
submission and retrieval help and guidelines under the ``help'' section
of the www.regulations.gov Web site. Comments received after the
comment closing date will be included in the docket, and will be
considered to the extent practicable.
FOR FURTHER INFORMATION CONTACT: Marcelo Perez, FMCSA, North American
Borders Division, 1200 New Jersey Avenue SE., Washington, DC 20590-
0001. Telephone (512) 916-5440 Ext. 228; email marcelo.perez@dot.gov.
SUPPLEMENTARY INFORMATION:
Background
On May 25, 2007, the President signed into law the U.S. Troop
Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability
Appropriations Act, 2007 (the Act), [Pub. L. 110-28, 121 Stat. 112,
183, May 25, 2007]. Section 6901 of the Act requires that certain
actions be taken by the Department of Transportation (the Department)
as a condition of obligating or expending appropriated funds to grant
authority to Mexico-domiciled motor carriers to operate beyond the
municipalities in the United States on the United States-Mexico
international border or the commercial zones of such municipalities
(border commercial zones).
On July 8, 2011, FMCSA announced in the Federal Register [76 FR
40420] its intent to proceed with the initiation of a U.S.-Mexico
cross-border long-haul trucking pilot program to test and demonstrate
the ability of Mexico-domiciled motor carriers to operate safely in the
United States beyond the border commercial zones as detailed in the
Agency's April 13, 2011, Federal Register notice [76 FR 20807]. The
pilot program is a part of FMCSA's implementation of the North American
Free Trade Agreement (NAFTA) cross-border long-haul trucking provisions
in compliance with section 6901(b)(2)(B) of the Act. FMCSA reviewed,
assessed, and evaluated the required safety measures as noted in the
July 8, 2011, notice and considered all comments received on or before
May 13, 2011, in response to the April 13, 2011, notice. Additionally,
to the extent practicable, FMCSA considered comments received after May
13, 2011.
In accordance with section 6901(b)(2)(B)(i) of the Act, FMCSA is
required to publish a notice in the Federal Register, and provide
sufficient opportunity for the public to review and comment on
comprehensive data and information on the PASAs conducted of motor
carriers domiciled in Mexico that are granted authority to operate
beyond the border commercial zones.
Comments and Responses
On September 12, 2011, FMCSA published the passed PASA results for
Grupo Behr [76 FR 56274], and the Agency received responses from 13
commenters.
On October 14, 2011, the Agency published a second notice [76 FR
63988] that explained that Advocates for Auto and Highway Safety
(Advocates) and the International Brotherhood of Teamsters (Teamsters)
expressed concern that Grupo Behr's out-of-service (OOS) rate was
28.6%, which was higher than the national average of 20.7%.
In addition, both commenters noted that Grupo Behr's vehicle
maintenance rating within FMCSA's Safety Measurement System (SMS) was
45.8%. Advocates further noted that Grupo Behr had 40 vehicle
violations in the 24 months prior to August 26, 2011. Also, the Owner-
Operator Independent Drivers Association (OOIDA) indicated that
publicly-available information indicated that Grupo Behr had an
inadequate safety history.
FMCSA Response: Over the past year, Grupo Behr has improved its
safety record. Grupo Behr's Vehicle OOS rate is currently 14% and its
Driver OOS rate is 2% based on the December 14, 2012, SMS snapshot.
Grupo Behr does not currently have any SMS Behavior Analysis and Safety
Indicator Categories (BASICs) that exceed FMCSA's intervention
thresholds. As a result, the company is in good standing to participate
in the Pilot Program.
It should also be noted that the statutory and regulatory
requirement for participation in the pilot program is satisfactory
completion of the PASA and a subsequent compliance review, after
operation. The Agency may not establish standards for pilot program
participants that are not comparable to the requirements for U.S.
carriers.
OOIDA researched the vehicle identification numbers from inspection
reports and questioned if Grupo Behr would be using a 1991 Class 8
Freightliner, which does not comply with the Environmental Protection
Agency (EPA) requirement for vehicles of model year 1998 or later.
FMCSA Response: The FMCSA confirmed that all vehicles proposed for
use in the pilot program by Grupo Behr meet both Federal Motor Vehicle
Safety Standards and EPA requirements. The oldest of the proposed
vehicles to be operated by Grupo Behr in the pilot program is 1998, and
the 1991 Class 8 Freightliner in question by OOIDA will not be used.
OOIDA questioned the safety data collected on Grupo Behr's straight
trucks and asked how this is affected by SMS segmentation. In addition,
OOIDA challenged the accuracy of Grupo Behr's Vehicle Maintenance BASIC
and alleged that the event group-the group of carriers that Grupo Behr
is compared against in SMS-- ``watered down'' their scores.
FMCSA Response: FMCSA notes that Mexican carriers are evaluated the
same as U.S. carriers under SMS. Also, there are many types of trucking
operations using a variety of equipment. The pilot program is designed
to test and demonstrate the ability of Mexico-domiciled motor carriers
to operate safely in the United States beyond the commercial zones; the
Mexican trucking industry as a whole includes straight trucks that may
operate beyond the commercial zones, and such operations are an
important part of the pilot program.
Advocates asked if the drivers and vehicles to be used in the pilot
program had been subject to any of Grupo Behr's OOS orders.
FMCSA Response: During the past 12 months, two of the five vehicles
that Grupo will use in the Pilot Program have been placed out of
service and deficiencies subsequently corrected. FMCSA notes that Grupo
Behr's Vehicle Maintenance BASIC score is 30.9% resulting from on-road
performance data, which is below our intervention threshold levels. In
addition, during our PASA, FMCSA confirmed that Grupo Behr has a
systematic vehicle maintenance program that meets our requirements. The
five vehicles to be used in the pilot program were inspected by FMCSA
in June 2012 and received Commercial Vehicle Safety Alliance (CVSA)
decals. The vehicles
[[Page 11730]]
will be reinspected prior to installation of electronic monitoring
devices and CVSA decals applied, as appropriate. Additionally, during
the past 12 months, one driver who will participate in the pilot
program was placed out-of-service for having an expired Licencia
Federal de Conductor (LFC) during a roadside inspection. The FMCSA
confirmed that this driver's LFC has since been reinstated. This driver
was also subject to several subsequent inspections and has not been
placed out of service, indicating that this deficiency was adequately
addressed.
The Teamsters noted that Grupo Behr's insurance history has a
period between July 2007 and April 2010 where ``cancelled'' is listed
six times. Based on this information, the Teamsters questioned if Grupo
Behr will be able to obtain and maintain insurance.
FMCSA Response: The insurance history questioned by the Teamsters
for Grupo Behr is associated with the operating authority number
MX630115. A review of the insurance history for MX630115, which is
publicly available on FMCSA's Licensing and Insurance Web site,
reflects no lapse in either required bodily injury-property damage
liability insurance or cargo insurance coverage for Grupo Behr from
July 2, 2007, through April 3, 2010. The policy cancellation notices
associated with Grupo Behr's MX630115 operating authority are the
result of the insurance industry's common practice of sending
cancellation notices to FMCSA prior to the end of the term of insurance
coverage, because of FMCSA's requirement that they notify the Agency 30
days prior to the end of the policy. FMCSA notes that the Agency's
previous cross border Demonstration Project was terminated on March 9,
2010, and Grupo Behr's provisional operating authority was revoked.
Grupo Behr's insurance was not cancelled prior to the termination of
the Demonstration Project.
In the October 14, 2011, notice, FMCSA explained that, based on the
information provided by Advocates, OOIDA, and Teamsters, the Agency was
conducting additional reviews of Grupo Behr's inspections and vehicles.
As a result, the Agency would not issue long-haul operating authority
to Grupo Behr until such time as the reviews were complete, and the
above noted comments were addressed in a subsequent Federal Register
notice. This notice satisfies that commitment by the Agency.
During the review of Grupo Behr's operations, it was determined
that Grupo Behr operated beyond the scope of its operating authority.
Grupo Behr had a lease agreement with a U.S.-based motor carrier, Maria
Guadalupe Carrillo Cervantes (USDOT 1553781). However, per
section 219(d) of the Motor Carrier Safety Improvement Act of 1999
(MCSIA) [Pub. L. 106-159],\1\ no Mexico-domiciled commercial zone
carrier may lease vehicles for use beyond the commercial zone.
Specifically, this statute reads:
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\1\ Public Law 106-159, 113 Stat. 1748 (December 9, 1999); 49
U.S.C. 521 note.
SEC. 219. FOREIGN MOTOR CARRIER PENALTIES AND DISQUALIFICATIONS.
(d) LEASING.--Before the implementation of the land transportation
provisions of the North American Free Trade Agreement, during any
period in which a suspension, condition, restriction, or limitation
imposed under section 13902(c) of title 49, United States Code,
applies to a motor carrier (as defined in section 13902(e) of such
title), that motor carrier may not lease a commercial motor vehicle
to another motor carrier or a motor private carrier to transport
---------------------------------------------------------------------------
property in the United States.
FMCSA issued a Notice of Violation (NOV) to Grupo Behr on November 9,
2011, citing Grupo Behr for operating beyond the scope of its operating
authority by leasing vehicles to Maria Guadalupe Carillo Cervantes.
Grupo Behr and Maria Guadalupe Carrillo Cervantes terminated this
agreement on November 11, 2011.
The Agency required Grupo Behr to provide a corrective action plan
to ensure that the company had ceased all leasing agreements, and would
ensure no further transportation outside of the commercial zones. In
June 2012, FMCSA conducted a focused investigation of Grupo Behr and
confirmed that since the NOV, there are no inspections or evidence of
Grupo Behr's commercial motor vehicles operating beyond the U.S.
municipalities on the U.S.-Mexico border and their commercial zones. A
copy of this focused review was added to the carrier's PASA document on
the Pilot Program Web site.
Finally, during the focused investigation, FMCSA reviewed the
mandatory elements of the PASA to determine if Grupo Behr remained in
substantial compliance as required by Appendix A to Subpart B of 49 CFR
part 365.
Two violations that were not found during the PASA were discovered
during the focused investigation. Grupo Behr was using a driver vehicle
inspection report (DVIR) form that listed the bumper; engine; cabin
floor; fuel tank; cab; tires; drive shaft; muffler; chassis; rear door;
air tanks; trailer; 5th wheel; and seal/tiedowns, but did not list
service brakes, including the trailer brake connections; parking brake;
steering mechanism; lighting devices and reflectors; horn; windshield
wipers; rear vision mirrors; wheels and rims; and emergency equipment
as required on the DVIR. The Agency subsequently received a corrective
action letter from Grupo Behr committing to using a revised version of
the DVIR. A copy of this letter is included with the PASA documentation
on the pilot program Web site.
In addition, at the time of focused investigation, Grupo Behr could
not provide adequate documentation of required alcohol testing. Grupo
Behr addressed this issue in its corrective action letter. Since the
closeout of the focused investigation, Grupo Behr provided sufficient
information to the Agency to show that alcohol testing was done at the
required 10 percent sampling rate. To demonstrate this, the focused
review documentation was added to the initial PASA on the Agency's Web
site to reflect the two reviews.
Grupo Behr has acknowledged affiliations with Logix Transport, Inc.
(USDOT 2210821). Logix Transport, Inc. was originally granted
operating authority as a U.S.-based motor carrier on December 8, 2011,
but requested that the operating authority be converted to a property
broker certificate. Logix Transport, Inc. was granted a property broker
certificate on May 9, 2012. FMCSA has no evidence that Logix Transport,
Inc. operated as a motor carrier in the United States.
Grupo Behr is also affiliated with the U.S. freight forwarder
Pacific Customs Services (Grupo Logix), Freight Forwarder number 9476.
FMCSA has no evidence that Pacific Customs Services (Grupo Logix) has
operated as a motor carrier in the United States.
FMCSA also notes that Grupo Behr was affiliated with Logistics
Transport dba Logix Transport USDOT 850185, Logistics Transport was
found to have an unsatisfactory safety rating in March 2003 and has not
operated since. This is well beyond the 3 years of history the Agency
requests that applicants supply on their OP-1 (or OP-1MX) application
for authority.
As noted above, Grupo Behr had a business relationship with Maria
Guadalupe Carrillo Cervantes (USDOT 1553781), which currently has
vehicle and driver OOS rates of 14.5% and 2%, respectively, based on
the 24-month record ending December 14, 2012. Maria Guadalupe Carrillo
Cervantes has no SMS BASICs above threshold levels In addition, FMCSA
has established that the business relationship between
[[Page 11731]]
Grupo Behr and Maria Guadalupe Carillo Cervantes no longer exists.
We are also aware that Grupo Behr is affiliated with Logix
Transport, Inc. (USDOT number 2210821/MC number 767176). However, this
enterprise carrier's authority is inactive.
Based on the original passed PASA, completion of the focused
investigation, corrective action documentation, and improved out of
service rates and SMS scores, FMCSA deems Grupo Behr's safety record
sufficient for participation in the pilot program. Therefore, FMCSA
will issue provisional operating authority for participation in the
pilot program.
Issued On: January 29, 2013.
Anne S. Ferro,
Administrator.
[FR Doc. 2013-03672 Filed 2-15-13; 8:45 am]
BILLING CODE 4910-EX-P
