[Federal Register: Volume 78, Number 33 (Tuesday, February 19, 2013)]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-03672]
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.
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.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time or to
Room W12-140 on the ground floor of
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
Privacy Act: Anyone is able to search the electronic form of all
comments received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
Privacy Act System of Records Notice for the DOT Federal Docket
Management System published in the Federal Register on January 17, 2008
(73 FR 3316), or you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.
Public Participation: The http://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 http://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 firstname.lastname@example.org.
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
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
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.
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
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
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:
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
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
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
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
1 Public Law 106-159, 113 Stat. 1748 (December 9, 1999); 49
U.S.C. 521 note.
Issued On: January 29, 2013.
Anne S. Ferro,
[FR Doc. 2013-03672 Filed 2-15-13; 8:45 am]
BILLING CODE 4910-EX-P