Pilot Project on NAFTA Trucking Provisions, 11728-11731 [2013-03672]

Download as PDF 11728 Federal Register / Vol. 78, No. 33 / Tuesday, February 19, 2013 / Notices 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 Transportation for review and final selection of Committee members. Nominations are open to all individuals without regard to race, color, religion, sex, national origin, age, mental or physical disability, marital status, or sexual orientation. To ensure that recommendations to the Secretary of Transportation take into account the needs of the diverse groups served by DOT, membership shall include, to the 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] TKELLEY on DSK3SPTVN1PROD with NOTICES BILLING CODE 4910–9X–P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration Aviation Rulemaking Advisory Committee; Meeting Federal Aviation Administration (FAA), DOT. AGENCY: VerDate Mar<15>2010 17:49 Feb 15, 2013 Jkt 229001 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: PO 00000 Frm 00107 Fmt 4703 Sfmt 4703 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 E:\FR\FM\19FEN1.SGM 19FEN1 Federal Register / Vol. 78, No. 33 / Tuesday, February 19, 2013 / Notices 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: TKELLEY on DSK3SPTVN1PROD with NOTICES 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 VerDate Mar<15>2010 17:49 Feb 15, 2013 Jkt 229001 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 PO 00000 Frm 00108 Fmt 4703 Sfmt 4703 11729 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 E:\FR\FM\19FEN1.SGM 19FEN1 TKELLEY on DSK3SPTVN1PROD with NOTICES 11730 Federal Register / Vol. 78, No. 33 / Tuesday, February 19, 2013 / Notices 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 VerDate Mar<15>2010 17:49 Feb 15, 2013 Jkt 229001 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. PO 00000 Frm 00109 Fmt 4703 Sfmt 4703 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 E:\FR\FM\19FEN1.SGM 19FEN1 Federal Register / Vol. 78, No. 33 / Tuesday, February 19, 2013 / Notices 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 TKELLEY on DSK3SPTVN1PROD with NOTICES DATES: VerDate Mar<15>2010 17:49 Feb 15, 2013 Jkt 229001 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 PO 00000 Frm 00110 Fmt 4703 Sfmt 4703 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.

-----------------------------------------------------------------------

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:
---------------------------------------------------------------------------

    \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