Joint Appendix Vol I — Department of Transportation v. Public Citizen
Supreme Court brief2004
Ask Donna
What actually matters in this document.
Text
No. 03-358
Jn the Supreme Court of the Gnited States
UNITED STATES DEPARTMENT OF TRANSPORTATION,
ET AL., PETITIONERS
Vv.
PUBLIC CITIZEN, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOINT APPENDIX
VOLUME I
THEODORE B. OLSON STEPHEN P. BERZON
Solicitor General Counsel of Record
Department of Justice JONATHAN WEISSGLASS
Washington, D. C . 20530-0001 ADAM B. WOLF
(202) 514-2217 ALTSHULER, BERZON,
NUSSBAUM, RUBIN & DEMAIN
Counsel of Record 177 Post Street, Suite 300
for Petitioners San Francisco, CA 94108
(415) 421-7151
Attorneys for Respondents
Public Citizen, Inter-
national Brotherhood of
Teamsters, California
Labor Federation,
and Environmental Law
Foundation
(Additional Counsel Listed on Inside Cover)
PETITION FOR WRIT OF CERTIORARI FILED: SEPT. 8, 2003
CERTIORARI GRANTED: DEC. 15, 2003
GAIL RUDERMAN FEUER
ADRIANNA QUINTERO SOMAINI
NATURAL RESOURCES
DEFENSE COUNCIL
71 Stevenson Street, Suite 1825
San Francisco, CA 94105
(415) 777-0200
Attorneys for Respondents
Natural Resources Defense
Council and Planning and
Conservation League
DAVID C. VLADECK
PUBLIC CITIZEN
1600 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
Attorneys for Respondent
Public Citizen
DAVID ROSENFELD
WEINBERG, ROGER &
ROSENFELD
1800-Grand Avenue, Suite 1400
Oakland, CA 94612
(510) 839-6600
Attorneys for Respondent
Brotherhood of Teamsters,
Auto and Truck Drivers,
Local 70
PATRICK J. SZYMANSKI
General Counsel
INTERNATIONAL
BROTHERHOOD
OF TEAMSTERS
25 Louisiana Ave., N.W.
Washington, D.C. 20001
(202) 624-6945
Attorney for Respondent
International Brotherhood
of Teamsters
PATRICK J. COUGHLIN
ALBERT H. MEYERHOFF
STANLEY S. MALLISON
MILBERG WEISS BERSHAD
HYNES & LERACH LLP
100 Pine Street, Suite 2600
San Francisco, CA 94111
(415) 288-4545
WILLIAM S. LERACH
MILBERG WEISS BERSHAD
HYNES & LERACH LLP
401 B Street, Suite 1700
San Diego, CA 92101
(619) 231-1058
Attorneys for Respondents
International Brotherhood
of Teamsters, Brotherhood
of Teamsters, Auto and
Truck Drivers, Local 70,
California Labor Federa-
tion, California Trucking
Association, and Environ-
mental Law Foundation
ee ee __ Cee ~
TABLE OF CONTENTS
Volume I
Docket Entries, United States Court of Appeals
for the Ninth Circuit, No. 02-70986 ...............cccceeseeee
Docket Entries, United States Court of Appeals
for the Ninth Circuit, No. 02-71249 0.0...
FMCSA, Regulatory Analysis and Regulatory
Flexibility Analysis (Dec. 2001) ..............cccccsseeeeeeeees
FMCSA, Finding of No Siginficant Impact (Jan.
16, 2002) ssoaaeedteiaditaastmanenessenpemmnmeenmmnenscaes
FMCSA, Environmental Assessment (Jan. 16,
Volume II
A
GAO, North American Free Trade Agreement:
Coordinated Operational Plan Needed, etc.
Ee
NAFTA Arbitral Panel Final Report, No. USA-Mex-98-
a
Comments of Friends of the Earth, NRDC, et al.
ID cst iorepeenesreseemmmsnanssenesesmmessanss
Comments of Int’! Bhd. of Teamsters, et al.
(DOT filed Apr. 18, 2002) mesiinenanetemmenscemmen
Sierra Research, Inc., Critical Review of
* * * “Final Programmatic Environ-
mental Assessment,” etc. (Apr. 16, 2002) .......
Additional Comments of Cal. Att’y Gen. Bill
Lockyer (DOT filed May 17, 2002) ..............cccsseseseeves
Environ, Review of Emissions Increases, etc.
(Apr. 18, 2002) sateneaenesummanseesapnemnemeenmenss
Declaration of James M. Lyons, No. C-02-2115-CW
(N.D. Cal. dated Apr. 29, 2002) ...........ccecsceseseseeeseneees
(I)
17
31
II
Table of Contents—Continued
Comments of James M. Lyons (DOT filed May 21,
2002)
Declaration of Dale Hattis, Ph.D., No. C-02-2115-
CW (N.D. Cal. dated Apr. 30, 2002) ............-:0+++
Declaration of Alison K. Pollack, No. C-02-2115-CW
N.D. Cal. dated May 1, 2002)
Letter from Paul E. Jacobs, Cal. Air. Res. Bd.
(dated May 20, 2002)
Comments of Public Citizen, et al. (DOT filed
May 20, 200)
Gov't C.A. Br. (filed July 22, 2002)
Pet. C.A. Evidence in Support of Standing (filed
Aug. 2, 2002)
Declaration of Laura MacCleery
Declaration of John Wilson
Declaration of Richard C. Bell
Declaration of Anna Sebastian
435
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 02-70986
PUBLIC CITIZEN; BROTHERHOOD OF TEAMSTERS; AUTO
AND TRUCK DRIVERS, LOCAL 70; CALIFORNIA LABOR
FEDERATION; CALIFORNIA TRUCKING ASSOCIATION;
ENVIRONMENTAL LAW FOUNDATION; INTERNATIONAL
BROTHERHOOD OF TEAMSTERS’, PETITIONERS
NATURAL RESOURCES DEFENSE COUNCIL (NRDC)
AND THE PLANNING AND CONSERVATION LEAGUE
(PCL), PETITIONER-INTERVENORS
v.
DEPARTMENT OF TRANSPORTATION; FEDERAL MOTOR
CARRIER SAFETY ADMINISTRATION; NICHOLAS R.
WALSH, RESPONDENTS
DOCKET ENTRIES
DATE PROCEEDINGS
5/2/02 FILED PETITION FOR REVIEW DOC-
KETED CAUSE AND ENTERED APPEAR-
ANCES OF COUNSEL, NOTIFIED RE-
SPONDENTS OF FILING, SENT PETI-
TIONER CIVIL APPEALS DOCKETING
STATEMENT setting schedule as follows:
petitioners’ opening brief is due 7/22/02;
respondents’ brief is due 8/20/02; peti-
tioner’s optional reply brief is due 9/3/02.
[92-70986] (vt) [02-70986]
(1)
DATE
PROCEEDINGS
Filed Petitioner Public Citizen, et al., emer-
gency motion to stay and request for
judicial notice in support w/declaration of
Charles s. Crandall. served on 5/2/02
MOATT (vt) [02-70986)
Filed Jonathan Weissglass Civil Appeals
Docketing Statement served on 5/2/02 (to
CONFATT) [02-70986] [02-70986] (vt)
[02-70986)
Received (oversized) ***FAXED*** Re-
spondent Dept. of Transporta, Federal
Motor, Nicholas R. Walsh’s response in
opposition to petr’s emergency mtn under
Cir. Rule 27-3; served on 5/2/02. (MOATT)
[02-70986] (af) (02-70986)]
Filed Original and 15 copies People of the
State of CA ex rel. Atty General Bill
Lockyer’s amicus brief in support of petrs’
petition for review and emergency mtn in
23 pages; served on 5/2/02. (MOATT)
(02-70986] (af) [02-70986]
Filed Order (Harry PREGERSON, Ferdi-
nand F. FERNANDEZ,) Petrs’ emergency
mtn under Cir. Rule 27-3 is DENIED. The
briefing schedule established previously
shall remain in effect. [02-70986] (af)
[02-70986]
DATE
PROCEEDINGS
5/6/02
Received Petitioners’ reply in support of
emergency mtn; served on 5/2/02. (FYI/
MOATT) (faxed copy rec’d 5/2/02) [02-70986)
(af) [(02-70986]
Filed Petitioner International Brotherhood
of Teamsters, CA Labor Federation, and
Environmental Law Foundation EMER-
GENCY mtn under Cir. Rule 27-3 to expe-
uite proceedings; declaration of Jonathan
Weissglass; served on 5/6/02. (hand de-
livered to PROMO) ([(02-70986] (af)
[02-70986]
Notice of appearance of John L.Smeltzer on
behalf of Federal Motor Carrier Safety.
[02-70986] (af) [02-70986]
Filed Respondent Federal Motor’s response
in opposition to petr’s emergency mtn un-
der Cir. Rule 27-3 to expedite proceedings;
served on 5/8/02. (PROMO) (faxed copy
rec’d 5/8/02) [02-70986] (af) [(02-70986]
Filed Petitioner International B rotherhood
of Teamsters, CA Labor Federation, and
Environmental Law Foundation’s reply in
support of emergency mtn under Cir. Rule
27-3 to expedite proceedings; served on
5/9/02. (FYI/PROMO) [02-70986) (af)
[02-70986]
DATE
PROCEEDINGS
5/9/02
Filed Order (Dep Clk: PROMO/tah) The ct
is in receipt of the petrs’ mtn to expedite
the above captioned petition for review and
the resps’ response thereto. The mtn to
expedite is GRANTED IN PART. The resp
shall file the certified administrative record
on or before 5/28/02. The opening brf is due
6/5/02. The ans brf is due 7/5/02. The
optional reply brf is due 14 day from sve of
the ans brf. No telephonic exts of time to
file brfs prusuant to 9th Cir. Rule 31-2.2(a)
shall be granted. Written mtns for ext.
filed pursuant to 9th Cir. Rule 31-2.2(b) will
not be granted absent a showing of extra-
ordinary and compelling circumstatnces.
This cs shall be placed on the next available -
calendar after the filing of the resps’ ans
brf. (c.c. Calendar Unit) [02-70986] (af)
[02-70986}
Filed Order (Dep Clk: PROMO/cb) Petrs’
opposed mtn to consolidated Nos. 02-70986
and 02-71249 is GRANTED. Petrs’ opposed
mtn to expedite is GRANTED IN PART.
The following schedule shall govern both
petitions. The records remain due 5/28/02;
the opening brf(s) shall be due 6/19/02; the
Govt’s brf is due 7/19/02; the optional reply
brf(s) shall be due 14 days from sve of the
ans brf. The provisions of 9th Cir. Rule 31-
2.2(a) shall not be applicable to these cases;
DATE
PROCEEDINGS
5/31/02
6/7/02
6/10/02
any Rule 31-2.2(b) mtn is strongly disfa-
vored. The provisions of 9th Cir. Rule 28-4
as they apply to continances are also inap-
plicable to these cases. Petrs are reminded
of the ct’s preference for joint brfs. (cite)
The cases shall be placed on the next avail-
able calendar after the filing of the ans bref.
Petre are informed that the provisions of
9th Cir. Rule 27-3 are not intended for ap-
plication to requests for procedural relief.
(c.c. Calendar Unit) [02-70986, 02-71249]
(af) [02-70986 02-71249]
Filed certified list in lieu of record on ap-
peal; served on 05/24/02. (RECORDS)
[02-71249, 02-70986] [02-71249, 02-70986]
(dv) [02-70986 02-71249]
Filed Petitioner-Intervenor Natural Re-
sources’ motion for intervene on behalf of
petrs; served on 5/31/02. (WIP/PROMO/tah)
[02-70986, 02-71249] (af) [(02-70986 02-71249)
Filed Federal Respondent’s response to
mtn to intervene as petrs’ and mtn to recon
ct’s order dated 5/9/ and 5/22/02; served on
6/6/02. (WIP/PROMO-tah) [02-70986,
02-71249] (af) [02-70986 02-71249]
Filed Petitioners’ response to resps’ re-
quest to reconsider expedited proceedings;
served on 6/10/02. (WIP/PROMO-tah)
[02-70986, 02-71249] (af) [02-70986 02-71249]
DATE
PROCEEDINGS
6/14/02
6/19/02
6/25/02
Filed Order (Appellate Commissioner) The
mtn of the Natural Resources Defense
Council and the Planning and Conservation
League for leave to intervene on behalf of
petrs is GRANTED. The response to the
mtn to intervene includes a request for an
order requiring petrs and intvns to file a
joint brf. Resps’ request is DENIED. How-
ever, the parties are reminded of the ct’s
strong preference for a joint brf. (cite)
Resps are reminded that under 9th Cir.
Rule 28-4, they may request an enlarge-
ment of brf size. Resps’ request for recon of
the provisions of 5/9/ and 5/22/02 orders
regarding ext. of time is DENIED.
(PROMO) (02-70986, 02-71249] (af) [02-70986
02-71249]
Filed original and 15 copies of Petitioners
CONSOLIDATED opening brief (Informal:
no) 52 pages and five excerpts of record in 2
volumes; served on 6/19/02. [02-70986,
02-71249] (af) [02-70986 02-71249]
Filed Original and 15 copies People of the
State in 02-70986’s brief of 31 pages; served
on 6/24/02. [02-70986, 02-71249] (af) [02-
70986 02-71249]
* * * * *
ee
DATE
PROCEEDINGS
7/15/02
7/22/02
7/25/02
7/25/02
Filed Mtn of Resps’ and Order (Dep Clk:
PROMO/tah) The federal resps’ mtn for an
enlargement of brf size for the ans bref is
GRANTED. The movants may file an ans
brf not to exceed 15,400 words. The brief-
ing schedule is unchanged. This order was
issued prior to the expiration of time within
which a response may be filed. (cite) (Mo-
tion recvd 7/12/02)(phoned Atty Smeltzer
for movant) [02-70986, 02-71249] (af)
[02-70986 02-71249]
* * * %* *
Filed Original and 15 copies respondent
Dept. of Transportation Federal Motor
Carrier Safety Admin.’s 70 pages brief, 5
Sup Excerpts of Record in 1 vol; served on
7/19/02. (02-70986, 02-71249] (af) [02-70986
02-71249]
Received Amicus ATA Litigation in
02-70986, in 02-71249’s brief in 15 copies of
30 pages; served on 7/24/02. (REFERRED
TO MERITS PNL per 7/31/02 order) [02-
70986, 02-71249] (af) [02-70986 02-71249]
Filed Amicus ATA Litigation’s mtn for
leave to file amicus curiae in support of
resps; served on 7/24/02. (RECORDS FOR
MERITS PNL per 7/31/02 order) [02-70986,
02-71249] (af) [02-70986 02-71249]
DATE
PROCEEDINGS
7/31/02
8/2/02
8/2/02
8/2/02
8/2/02
Filed Order (Dep Clk: PROMO/cag) Ata
Litigation Center, Inc.’s mtn for leave to
file amicus curiae in spport of resps, the
proposed brf and any related filing shall be
REFERRED FOR DISPOSITION TO THE
PNL that considers the merits of the cs.
ANY FUTURE MTNS TO FILE A FRIEND
OF THE CT BRF SHALL BE TREATED IN
THE SAME FASHION. [02-70986, 02-71249]
(af) [(02-70986 02-71249]
* * * * *
Filed Original and 15 copies of Petitioners’
CONSOLIDATED reply brief (Informal: no)
34 pages; served on 8/2/02. (Calendar Unit)
[02-70986, 02-71249] (af) [02-70986 02-71249]
Filed Petitioners’ mtn for leave to file evi-
dence in support of standing; served on
8/2/02. (Calendar Unit) [02-70986, 02-71249]
(af) [02-70986 02-71249]
Received Petitioners’ evidence in support
of standing; served on 8/2/02. (mtn for leave
to file pending) (Calendar Unit) [02-70986,
02-71249] (af) [02-70986 02-71249}
Filed Petitioner-Intervenor Natural Re-
sources’ mtn for leave to file evidence in
support of standing; served on 8/2/02. (Cal-
endar Unit) [02-70986, 02-71249] (af)
[02-70986 02-71249]
Oo
a —
eee, ees o
PROCEEDINGS
8/19/02
8/29/02
8/29/02
9/4/02
Filed Petitioner-Intervenor Natural Re-
sources’ mtn to correct “Intervenor-Petrs’
mtn for leave to file evidence in support of
standing”; served on 8/6/02. (faxed to
PANEL) [02-70986, 02-71249] (af) [02-70986
02-71249]
CALENDARED: San Francisco October 8,
2002 9:00 a.m. Courtroom 2 [02-70986, 02-
71249] (mw) [02-70986 02-71249]
Filed Petrs’ International Brotherhood of
Teamsters, CA Labor Federation, and En-
vironmental Law Foundation’s mtn for
additional time for oral argument; served on
8/19/02. (faxed to PANEL) [02-70986,
02-71249] (af) [02-70986 02-71249]
Filed Order (Dep Clk: DOCKETING/hh)
Petrs’ and Intervenors’ Mtns for Leave to
File Evidence in Support of Standing are
hereby GRANTED. (served PANEL; phoned
esls at 2:30 p.m.; c.c. Front Counters) [02-
70986, 02-71249] (af) [02-70986 02-71249]
Filed Petrs’ evidence in support of stand-
ing; served on 8/2/02. (per 8/29/02 order)
[02-70986, 02-71249] (af) [(02-70986 02-71249]
Filed Amicus People of the State’s mtn to
present oral argument in supprt of petrs’
petition for review and emergency mtn;
served on 9/3/02. (faxed to PANEL)
[02-70986, 02-71249] (af) [02-70986 02-71249]
10
DATE
PROCEEDINGS
9/12/02
9/23/02
9/23/02
Received Adrianna Quintero Somaini for
Petitioner-Intervenor Natural Resources’
Itr dated 9/12/02 re: respectfully write to
call to the attention of the pnl a rpt from the
U.S. Environmental Protection Agency,
entitled “FINAL HEALTH ASSESSMENT
DOCUMENT FOR DIESEL ENGINE EX-
HAUST.” . . . (faxed to PANEL)
[02-70986, 02-71249] (dv) [02-70986
02-71249]
Filed order (Dep Clk/hh) The mtn for leave
to file an amicus curiae brf by ATA
Litigation Center, Inc. is GRANTED.
Petrs’ mtn for add’l time for oral argument
is DENIED without prejudice. The mtn by
the People of State of CA as amicus curiae
for add’l time to present oral argument is
DENIED; however, petrs may choose to
allocate a portion of their time to the Atty
General. (PHONED @1:20 pm) [4493704-1]
[4509949-1] [4522553-1] [02-70986, 02-71249]
(ea) [02-70986 02-71249]
Filed orig & 15 copies ATA Litigation’s
amicus curiae brf of 30 pgs; served on
7/24/02. (PREVIOUSLY REC’D) [02-70986,
02-71249] (ea) [02-70986 02-71249]
11
DATE
PROCEEDINGS
9/30/02
10/8/02
10/22/02
12/2/02
12/2/02
12/2/02
Received Petrs’ additional citations in 02-
70986, 02-71249; served on 9/30/02 (faxed to
PANEL; hand delivered to S.F Chambers;
¢e.c. etrroom dep/tu) (Rec’d in docketing on
10/2/02) [02-70986, 02-71249] (af) [02-70986
02-71249]
ARGUED AND SUBMITTED TO Dorothy
W. NELSON, Michael D. HAWKINS, Kim
M. WARDLAW [02-70986, 02-71249] (tu)
[02-70986 02-71249]
Received Petrs’ additional citations, served
on 10/22/02 (faxed to PANEL) [02-70986, 02-
71249] (af) [02-70986 02-71249]
Received Petrs’ additional citations, served
on 12/1/02 (faxed to PANEL) [02-70986,
02-71249] (af) [02-70986 02-71249]
Filed Petitioners’ EMERGENCY mtn for
stay under Cir. R. 27-3 declaration of
Jonathan Weissglass; served on 12/2/02.
(faxed and Fedex to PANEL) [02-70986,
02-71249] (af) [02-70986 02-71249]
Filed Order (Dorothy W. NELSON, Michael
D. HAWKINS, Kim M. WARDLAW) Resps
shall file their opp, if any, to Petrs’
emergency stay mtn by Wed, 12/4/02. Each
side file a supp brf addressing the effect of
the President’s Memo of 11/27/02 modifying
12
DATE
PROCEEDINGS
12/3/02
12/4/02
12/4/02
the Mexican-domiciled motor carrier mora-
torium, (cite), on the issues presented in
this cs. Brfs must be filed on or before Fri,
12/13/02, and shall be no longer than 15 pgs
in length. It is so ORDERED. (served
PANEL; phoned and faxed to parties at 4:15
p-m.; ¢c.c. Front Counter) [02-70986,
02-71249] (af) [02-70986 02-71249]
Received notice of Intervenors’ from Peti-
tioner-Intervenor Natural Resources De-
fense Council and the Planning and Conver-
vation League in 02-70986, in 02-71249
notice of joinder in petrs’ emergency mtn
for stay under Cir. R. 27.3; served on
12/3/02. (faxed to PANEL) (af) [02-70986
02-71249]
Filed Amicus People of the State in 02-
70986, in 02-71249’s brf in support of petrs’
emergency mtn for stay; served on 12/4/02.
(faxed to PANEL) [02-70986, 02-71249] (af)
[02-70986 02-71249]
Filed ****FAXED**** Respondents’ re-
sponse in opposition to petrs’ mtn for an
emergency stay under Cir. R. 27-3; served
on 12/4/02. (faxed to PANEL) (hard copies
rec’d 12/5/02) [02-70986, 02-71249] (af)
[02-70986 02-71249]
on ——
13
DATE PROCEEDINGS
12/5/02 Filed Petrs’ reply in support of mtn for
stay; served on 12/5/02. (faxed to PANEL)
[02-70986, 02-71249] (af) (02-70986 02-71249]
12/6/02 Filed Order (Dorothy W. NELSON, Michael
D. HAWKINS, Kim M. WARDLAW) Petrs’
Emergency Mtn for Stay under Cir. R. 27-3
is taken under submission. Resps shall
provide this Ct with immediate notice upon
the occurrence of any of the following
events: (1) the completion of the negotia-
tions between Resps and the Mexican gov't
on a Memo of Understanding to establi sh
protocols for U.S. inspectors’ operations in
Mexico; (2) the scheduling of FMCSA’s first
safety audit of a Mexico-domiciled motor
carrier; or (3) the publication of notice that
any such carrier has successfully passed
such as audit. To reiterate our order of
12/2/02, simultaneous sup briefing address-
ing the effect of the President's Memo of
11/27/02 modifying the Mexican-domiciled
motor carrier moratorium, (cite), on the
issues presented in this cs shall be filed on
or before Friday, 12/13/02. It is so OR-
DERED. (served PANEL; phoned and
faxed to csls at 4:00 p.m.; c.c. Front
Counter and C. Catterson by hh) [02-70986,
02-71249] (af) (02-70986 02-71249)
14
DATE
PROCEEDINGS
12/13/02
12/13/02
1/13/03
1/16/03
Filed ***FAXED*** Original and 0 copies
Respondents’ supplemental brief of 16
pages, served on 12/13/02. (total of 3543
words) (faxed to PANEL) (ORIGINAL and
15 Copies ree’d 12/16/02; PANEL) [02-70986,
02-71249] (af) [02-70986 02-71249]
Filed Original and 15 copies Petitioners and
Intervenors’ JOINT Supplemental brf of 14
pgs pursuant to order of the ct; served
12/13/02. (faxed and served PANEL) [02-
70986, 02-71249] (af) (02-70986 02-71249]
Received Petrs’ in 02-70986, in 02-71249
additional citations, served on 1/13/03.
(faxed to PANEL) [02-70986, 02-71249] (af)
[02-70986 02-71249)
FILED OPINION: GRANTED AND
REMANDED. (Terminated on the Merits
after Oral Hearing; Granted and Re-
manded; Written, Signed, Published. Doro-
thy W. NELSON; Michael D. HAWKINS;
Kim M. WARDLAW, author.) FILED AND
ENTERED JUDGMENT. [02-70986,
02-71249} (af) [02-70986 02-71249}
> *+ *&* & *
Filed Federal Motor in 02-70986, in 02-
71249 motion for an ext. of time in which to
seek rehearing or rehearing en banc; served
on 2/24/03. (faxed to KMW) [02-70986, 02-
71249] (af) [02-70986 02-71249]
15
DATE
PROCEEDINGS
3/10/03
4/10/03
Filed Order (Kim M. WARDLAW,) Pur-
suant to Resps’ mtn, the Ct grants Resp an
additional seven days in which to file a
petition for rehearing or rehearing en banc.
Resps may file any such petitions on or
before 3/10/03. NO FURTHER EXTS WILL
BE GRANTED. It is so ordered. (served
PANEL; phoned esls at 11:30a.m.; c.c.
Front Counter) [02-70986, 02-71249] (af)
[02-70986 02-71249]
Filed Original and 50 copies of Federal
Resps’ petition for panel rehearing and
petition for rehearing en banc in 18 pgs;
served on 3/10/03. (total of 4198 words)
(PANEL and all active judges) [02-70986,
02-71249] (af) [02-70986 02-71249]
Filed Order (Dorothy W. NELSON, Michael
D. HAWKINS, Kim M. WARDLAW) The pnl
has voted unanimously to deny the petition
for pnl rehearing. Judges Hawkins and
Wardlaw have voted to deny the petition
for en banc rehearing, and Judge Nelson
has so recommended. The full ct has been
advised of the petition for rehearing en
banc and no active judge has requested a
vote on whether to rehear the matter en
banc. (cite) The petition for rehearing and
for rehearing en banc are DENIED.
[02-70986, 02-71249) (af) [02-70986 02-71249])
16
DATE
PROCEEDINGS
4/18/03
MANDATE ISSUED. Costs taxed against
respondents in the amount of $3370.80. [02-
70986, 02-71249] (af) [02-70986 02-71249]
* * *&©* *&© *
17
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 02-71249
INTERNATIONAL BROTHERHOOD OF TEAMSTERS;
BROTHERHOOD OF TEAMSTERS, AUTO AND TRUCK
DRIVERS, LOCAL 70; CALIFORNIA LABOR FEDERATION;
CALIFORNIA TRUCKING ASSOCIATION;
ENVIRONMENTAL LAW FOUNDATION; PUBLIC CITIZEN,
PETITIONERS
NATURAL RESOURCES DEFENSE COUNCIL (NRDC)
AND THE PLANNING AND CONSERVATION LEAGUE
(PCL), PETITIONER-INTERVENORS
v.
U.S. DEPARTMENT OF TRANSPORTATION; FEDERAL
MOTOR CARRIER SAFETY ADMINISTRATION; JOSEPH M.
CLAPP; NICHOLAS R. WALSH, RESPONDENTS
DOCKET ENTRIES
DATE PROCEEDINGS
5/16/02 FILED PETITION FOR REV DOCKETED
CAUSE AND ENTERED APPEARANCES
OF COUNSEL, NOTIFIED RESPONDENTS
OF FILING, SENT PETITIONER CIVIL
APPEALS DOCKETING STATEMENT
setting schedule as follows: petitioners’
18
DATE
PROCEEDINGS
5/16/02
5/16/02
5/20/02
5/20/02
5/20/02
opening brief is due 8/5/02; respondents’
brief is due 9/3/02; petitioners’ optional
reply brief is due 9/17/02. [02-71249] (tm)
[02-71249]
Filed attorney for Petitioner Civil Appeals
Docketing Statement served on 5/14/02 (to
CONFATT) [02-71249] [02-71249] (tm) [02-
71249]
Filed Petitioner Public Citizen’s emergency
motion to consolidate petitions for review;
served on 05/16/02. (MOATT) [02-71249]
[4433427] (govt telephonically informed
court that opp will be filed) (dv) [02-71249]
Filed notice of appearance of Andrew C.
Mergen and John L. Smeltzer (Withdrew as
counsel: attorney Robert Plocki for DOT)
[02-71249] (dv) [02-71249]
Filed Respondent DOT response opposing
emergency motion to consolidate cases;
served on 05/17/02. (MOATT) [4433427-1]
[02-71249] (dv) [02-71249]
Filed Petitioner’s reply to response in
support of emergency motion to consolidate
petitions for review and expedite pro-
ceedings; served on 05/20/02. (MOATT) [02-
71249] (dv) (02-71249]
19
DATE
PROCEEDINGS
Filed Order (Dep Clk: PROMO/cb) Petrs’
opposed mtn to consolidated Nos. 02-70986
and 02-71249 is GRANTED. Petrs’ opposed
mtn to expedite is GRANTED IN PART.
The following schedule shall govern both
petitions. The records remain due 5/28/02;
the opening brf(s) shall be due 6/19/02; the
Govt’s brf is due 7/19/02; the optional reply
brf(s) shall be due 14 days from sve of the
ans brf. The provisions of 9th Cir. Rule 31-
2.2(a) shall not be applicable to these cases;
any Rule 31-2.2(b) mtn is strongly dis-
favored. The provisions of 9th Cir. Rule 28
-4 as they apply to continances are also in-
applicable to these cases. Petrs are re-
minded of the ct’s preference for joint brfs.
(cite) The cases shall be placed on the next
available calendar after the filing of the ans
brf. Petrs are informed that the provisions
of 9th Cir. Rule 27-3 are not intended for
application to requests for proceduaral re-
lief. (c.c. Calendar Unit) [02-70986, 02-
71249] (af) [02-70986 02-71249]
Filed certified list in lieu of record on ap-
peal; served on 05/24/02. (RECORDS) [02-
71249, 02-70986] [02-71249, 02-70986] (dv)
[02-70986 02-71249]
DATE
PROCEEDINGS
5/31/02
6/7/02
6/10/02
6/14/02
Filed Petitioner-Intervenor Natural Re-
sources’ motion for intervene on behalf of
petrs; served on 5/31/02. (WIP/PROMO/tah)
[02-70986, 02-71249] (af) [02-70986 02-71249]
Filed Federal Respondent’s response to
mtn to intervene as petrs’ and mtn to recon
ct’s order dated 5/9/ and 5/22/02; served on
6/6/02. (WIP/PROMO-tah) [02-70986, 02-712
49] (af) [02-70986 02-71249]
Filed Petitioners’ response to resps’ re-
quest to reconsider expedited proceedings;
served on 6/10/02. (WIP/PROMO-tah) [02-
70986, 02-71249] (af) [02-70986 02-71249]
Filed Order (Appellate Commissioner) The
mtn of the Natural Resources Defense
Council and the Planning and Conservation
League for leave to intervene on behalf of
petrs is GRANTED. The response to the
mtn to intervene includes a request for an
order requiring petrs and intvns to file a
joint brf. Resps’ request is DENIED. How-
ever, the parties are reminded of the ct’s
strong preference for a joint brf. (cite)
Resps are reminded that under 9th Cir.
Rule 28-4, they may request an enlarge-
ment of brf size. Resps’ request for recon of
the provisions of 5/9/ and 5/22/02 orders re-
garding ext. of time is DENIED. (PROMO)
[02-70986, 02-71249] (af) [02-70986 02-71249]
21
DATE
PROCEEDINGS
6/19/02
6/25/02
7/8/02
7/15/02
Filed original and 15 copies of Petitioners’
CONSOLIDATED opening brief (Informal:
no) 52 pages and five excerpts of record in 2
volumes; served on 6/19/02. [(02-70986,
02-71249] (af) [02-70986 02-71249]
Filed Original and 15 copies People of the
State in 02-70986’s brief of 31 pages; served
on 6/24/02. [02-70986, 02-71249] (af)
[02-70986 02-71249]
Received Respondent Dept. of Transporta-
tion 02-70986 letter dated 7/1/02 re: . . .
This requests that you amend your svc lists.
Ist, on Nos. 02-70986 and 02-71249 delete
the Secretary and the Administrtor, Nat’l
Highway Traffic Safety Admin. . . 2nd, on
No. 02-70303 add, Ass. Chief Csl for litiga-
tion, Nat’] Highway Traffice Safety Admin,
Rm 5219, Mail Code NCC-10, 400 7th St,
SW, WA, DC 20590. (02-70986, 02-71249]
(af) (02-70986 02-71249]
Filed Mtn of Resps’ and Order (Dep Clk:
PROMO/tah) The federal resps’ mtn for an
enlargement of brf size for the ans brf is
GRANTED. The movants may file an ans
brf not to exceed 15,400 words. The
briefing schedule is unchanged. This order
was issued prior to the expiration of time
DATE
PROCEEDINGS
7/22/02
\
7/25/02
7/25/02
7/31/02
within which a response may be filed. (cite)
(Motion recvd 7/12/02) (phoned Atty Smelt-
zer for movant) [02-70986, 02-71249] (af)
[02-70986 02-71249]
* * * * *
Filed Original and 15 copies respondent
Dept. of Transportation Federal Motor Car-
rier Safety Admin.’s 70 pages brief, 5 Sup
Excerpts of Record in 1 vol; served on
7/19/02. [02-70986, 02-71249] (af) [02-70986
02-71249]
Received Amicus ATA Litigation in 02-
70986, in 02-71249’s brief in 15 copies of 30
pages; served on 7/24/02. (REFERRED TO
MERITS PNL per 7/31/02 order) [02-70986,
02-71249] (af) [02-70986 02-71249]
Filed Amicus ATA Litigation’s mtn for
leave to file amicus curiae in support of
resps; served on 7/24/02. (RECORDS FOR
MERITS PNL per 7/31/02 order) [02-70986,
02-71249] (af) [02-70986 02-71249]
Filed Order (Dep Clk: PROMO/cag) Ata
Litigation Center, Inc.’s mtn for leave to
file amicus curiae in spport of resps, the
proposed brf and any related filing shall be
REFERRED FOR DISPOSITION TO THE
PNL that considers the merits of the cs.
DATE
PROCEEDINGS
8/2/02
8/2/02
8/2/02
8/6/02
ANY FUTURE MTNS TO FILE A FRIEND
OF THE CT BRF SHALL BE TREATED IN
THE SAME FASHION. [02-70986, 02-71249]
(af) (02-70986 02-71249]
* * * * *
Filed Original and 15 copies of Petitioners’
CONSOLIDATED reply brief (Informal: no)
34 pages; served on 8/2/02. (Calendar Unit)
[02-70986, 02-71249] (af) [02-70986 02-71249]
Filed Petitioners’ mtn for leave to file evi-
dence in support of standing; served on
8/2/02. (Calendar Unit) [02-70986, 02-71249]
(af) [02-70986 02-71249]
Received Petitioners’ evidence in support
of standing; served on 8/2/02. (mtn for leave
to file pending) (Calendar Unit) [02-70986,
02-71249] (af) [02-70986 02-71249]
Filed Petitioner-Intervenor Natural Re-
sources’ mtn for leave to file evidence in
support of standing; served on 8/2/02. (Cal-
endar Unit) [02-70986, 02-71249] (af)
[02-70986 02-71249]
Filed Petitioner-Intervenor Natural Re-
sources’ mtn to correct “Intervenor-Petrs’
mtn for leave to file evidence in support of
standing”; served on 8/6/02. (faxed to
PANEL) [02-70986, 02-71249] (af) [02-70986
02-71249]
DATE
PROCEEDINGS
8/7/02
8/19/02
8/29/02
8/29/02
9/4/02
9/12/02
CALENDARED: San Francisco October 8,
2002 9:00 a.m. Courtroom 2 [02-70986,
02-71249] (mw) [02-70986 02-71249]
Filed Petrs’ International Brotherhood of
Teamsters, CA Labor Federation, and En-
vironmental Law Foundation’s mtn for ad-
ditional time for oral argument; served on
8/19/02. (faxed to PANEL) [02-70986,
02-71249}] (af) [(02-70986 02-71249]
Filed Order (Dep Clk: DOCKETING/hh)
Petrs’ and Intervenors’ Mtns for Leave to
File Evidence in Support of Standing are
hereby GRANTED. (served PANEL; phoned
esls at 2:30 p.m.; ¢c.c. Front Counters)
[02-70986, 02-71249] (af) [02-70986 02-71249]
Filed Petrs’ evidence in support of stand-
ing; served on 8/2/02. (per 8/29/02 order)
[02-70986, 02-71249] (af) [02-70986 02-71249]
Filed Amicus People of the State’s mtn to
present oral argument in supprt of petrs’
petition for review and emergency mtn;
served on 9/3/02. (faxed to PANEL)
[02-70986, 02-71249] (af) [02-70986 02-71249]
Received Adrianna Quintero Somaini for
Petitioner-Intervenor Natural Resources’
Itr dated 9/12/02 re: respectfully write to
call to the attention of the pnl a rpt from the
DATE
PROCEEDINGS
9/23/02
9/23/02
9/30/02
U.S. Environmental Protection Agency,
entitled “FINAL HEALTH ASSESSMENT
DOCUMENT FOR DIESEL ENGINE
EXHAUST.” . . . (faxed to PANEL)
[02-70986, 02-71249] (dv) [02-70986
02-71249]
Filed order (Dep Clk/hh) The mtn for leave
to file an amicus curiae brf by ATA Liti-
gation Center, Inc. is GRANTED. Petrs’
mtn for add’l time for oral argument is
DENIED without prejudice. The mtn by
the People of State of CA as amicus curiae
for add’l time to present oral argument is
DENIED; however, petrs may choose to
allocate a portion of their time to the Atty
General. (PHONED @1:20 pm) [4493704-1]
[4509949-1] [4522553-1] [02-70986, 02-71249]
(ea) [02-70986 02-71249]
Filed orig & 15 copies ATA Litigation’s
amicus curiae brf of 30 pgs; served on
7/24/02. (PREVIOUSLY REC’D) [02-70986,
02-71249] (ea) [02-70986 02-71249]
Received Petrs’ additional citations in
02-70986, 02-71249; served on 9/30/02
(faxed to PANEL; hand delivered to S.F
Chambers; c.c. ctrroom dep/tu) (Rec’d in
docketing on 10/2/02) [02-70986, 02-71249]
(af) [02-70986 02-71249]
26
DATE
PROCEEDINGS
10/8/02
10/22/02
12/2/02
12/2/02
12/2/02
ARGUED AND SUBMITTED TO Dorothy
W. NELSON, Michael D. HAWKINS, Kim
M. WARDLAW ([02-70986, 02-71249] (tu)
[02-70986 02-71249]
Received Petrs’ additional citations, served
on 10/22/02 (faxed to PANEL) [02-70986, 02-
712491 (af) (02-70986 02-71249]
Received Petrs’ additional citations, served
on 12/1/02 (faxed to PANEL) [02-70986,
02-71249] (af) [02-70986 02-71249]
Filed Petitioners’ EMERGENCY mtn for
stay under Cir. R. 27-3 declaration of Jona-
than Weissglass; served on 12/2/02 (faxed
and Fedex to PANEL) [02-70986, 02-71249]
(af) [02-70986 02-71249]
Filed Order (Dorothy W. NELSON, Michael
D. HAWKINS, Kim M. WARDLAW) Resps
shall file their opp, if any, to Petrs’ emer-
gency stay mtn by Wed, 12/4/02. Each side
file a supp brf addressing the effect of the
President’s Memo of 11/27/02 modifying the
Mexican-domiciled motor carrier morato-
rium, (cite), on the issues presented in this
cs. Brfs must be filed on or before Fri,
12/13/02, and shall be no longer than 15 pgs
in length. It is so ORDERED. (served
PANEL; phoned and faxed to parties at
4:15p.m.; ¢c.c. Front Counter) [02-70986,
02-71249] (af) [02-70986 02-71249]
DATE
PROCEEDINGS
12/3/02
12/4/02
12/4/02
12/5/02
12/6/02
Received notice of Intervenors’ from
Petitioner-Intervenor Natural Resources
Defense Council and the Planning and Con-
vervation League in 02-70986, in 02-71249
notice of joinder in petrs’ emergency mtn
for stay under Cir. R. 27.3; served on
12/3/02. (faxed to PANEL) (af) [02-70986
02-71249]
Filed Amicus People of the State in
02-70986, in 02-71249’s brf in support of
petrs’ emergency mtn for stay; served on
12/4/02. (faxed to PANEL) [02-70986,
02-71249) (af) [(02-70986 02-71249)
Filed ****F AXED**** Respondents’ re-
sponse in opposition to petrs’ mtn for an
emergency stay under Cir. R. 27-3; served
on 12/4/02. (faxed to PANEL) (hard copies
rec’d 12/5/02) [02-70986, 02-71249) (af)
[02-70986 02-71249]
Filed Petrs’ reply in support of mtn for
stay; served on 12/5/02. (faxed to PANEL)
[02-70986, 02-71249] (af) [02-70986 02-71249]
Filed Order (Dorothy W. NELSON, Michael
D. HAWKINS, Kim M. WARDLAW) Petrs’
Emergency Mtn for Stay under Cir. R. 27-3
is taken under submission. Resps shall
provide this Ct with immediate notice upon
DATE
PROCEEDi "CS
12/13/02
the occurrence of any of the following
events: (1) the completion of the negotia-
tions between Resps and the Mexican gov’t
on a Memo of Understanding to establish
protocols for U.S. inspectors’ operations in
Mexico; (2) the scheduling of FMCSA’s first
safety audit of a Mexico-domiciled motor
carrier; or (3) the publication of notice that
any such carrier has successfully passed
such as audit. To reiterate our order of
12/2/02, simultaneous sup briefing address-
ing the effect of the President’s Memo of
11/27/02 modifying the Mexican-domiciled
motor carrier moratorium, (cite), on the
issues presented in this cs shall be filed on
or before Friday, 12/13/02. It is so OR-
DERED. (served PANEL; phoned and
faxed to csls at 4:00p.m.; c.c. Front Counter
and C. Catterson by hh) [02-70986,
02-71249] (af) [02-70986 02-71249]
Filed ***F AXED*** Original and 0 copies
Respondents’ supplemental brief of 16
pages, served on 12/13/02. (total of 3543
words) (faxed to PANEL) (ORIGINAL and
15 Copies rec’d 12/16/02; PANEL) [02-70986,
02-71249] (af) [02-70986 02-71249]}
DATE
PROCEEDINGS
12/13/02
1/13/03
1/16/03
Filed Original and 15 copies Petitioners and
Intervenors’ JOINT Supplemental brf of 14
pgs pursuant to order of the ct; served
12/13/02. (faxed and served PANEL)
[02-70986, 02-71249]} (af) [02-70986 02-71249]
Received Petrs’ in 02-70986, in 02-71249 ad-
ditional citations, served on 1/13/03. (faxed
to PANEL) [02-70986, 02-71249] (af)
[02-70986 02-71249)
FILED OPINION: GRANTED AND RE-
MANDED. (Terminated on the Merits after
Oral Hearing; Granted and Remanded;
Written, Signed, Published. Dorothy W.
NELSON; Michael D. HAWKINS; Kim M.
WARDLAW, author.) FILED AND EN-
TERED JUDGMENT. [02-70986, 02-71249]
(af) (02-70986 02-71249]
*> *+ *&* &© *
Filed Federal Motor in 02-70986, in
02-71249 motion for an ext. of time in which
to seek rehearing or rehearing en banc;
served on 2/24/03. (faxed to KMW)
[02-70986, 02-71249] (af) [02-70986 02-71249)
Filed Order (Kim M. WARDLAW,) Pur-
suant to Resps’ mtn, the Ct grants Resp an
additional seven days in which to file a
petition for rehearing or rehearing en banc.
DATE
PROCEEDINGS
3/10/03
4/10/03
4/18/03
Resps may file any such petitions on or
before 3/10/03. NO FURTHER EXTS WILL
BE GRANTED. It is so ordered. (served
PANEL; phoned ecsls at 11:30a.m.; c.c.
Front Counter) [02-70986, 02-71249] (af)
[02-70986 02-71249]
Filed Original and 50 copies of Federal
Resps’ petition for panel rehearing and
petition for rehearing en banc in 18 pgs;
served on 3/10/03. (total of 4198 words)
(PANEL and all active judges) [02-70986,
02-71249] (af) [02-70986 02-71249]
Filed Order (Dorothy W. NELSON, Michael
D. HAWKINS, Kim M. WARDLAW,) The
pni has voted unanimously to deny the
petition for pnl rehearing. Judges Hawkins
and Wardlaw have voted to deny the
petition for en banc rehearing, and Judge
Nelson has so recommended. The full ct has
been advised of the petition for rehearing
en banc and no active judge has requested a
vote on whether to rehear the matter en
banc. (cite) The petition for rehearing and
for rehearing en bane are DENIED.
[02-70986, 02-71249] (af) [02-70986 02-71249]
MANDATE ISSUED. Costs taxed against
respondents in the amount of $3370.80.
[02-70986, 02-71249] (af) [02-70986 02-71249]
x * * x *
31
Regulatory Analysis and
Regulatory Flexibility Analysis
Part 365, Part 368, and Part 385 Rules
Mexican Carrier Provisions
Federal Motor Carrier Safety Administration
December 2001
[4] Approximately 190 Mexican motor carriers cur-
rently have OP-1(MX) forms pending with the DOT.
Mexican carriers that operate within the U.S. mu-
nicipalities and commercial zones along with the U.S.-
Mexico border must file form OP-2. The current
version of the OP-2 form asks detailed questions about
the carrier’s operations, location, and equipment, and
the FMCSA estimates that it takes approximately two
hours for a carrier to complete (OMB Approval No.
2126-0010). Approximately 10,100 active Mexican
carriers currently have OP-2 authority. This does not
mean that all these carriers are currently operating in
the United States, just that they are legally able to do
so.
The ICC also developed an OP-1(MX) form, for Mexi-
can carriers to apply for authority to operate beyond
the four border States. This form is similar to the OP-1
form long used by the former ICC for domestic for-hire
carriers. While a number of Mexican carriers
submitted these forms, they were not processed by the
DOT, pending the outcome of the delay in implementing
NATA. The OP-1(MX) is similar to the OP-2 form, and
also takes two hours to complete (OMB Approval No.
2126-0016).
Even without the broader border opening envisioned
by NAFTA, trade between the United States and
Mexico has skyrocketed the last few years. Along with
the growth in trade has come an increase in truck
traffic crossing the broder. According to the Federal
Reserve Board of Dallas, trade with Mexico reached
$196.6 billion in 1999, up more than 141 percent from
1993 (Vargas). The growth in trade appears to have
33
accelerated in 2000, according to data from the Bureau
of Economic Analysis reported by Economic Data
Resources. Northbound truck crossings have grown
almost 90 percent from fiscal year (FY) 1993 to FY
2000, rising from 2.4 million to 4.55 million crossings per
year (Economic Data Resources, 2000).
The growth in trade and traffic has been accompanied
by increasing concern about the safety of Mexican
motor carriers operating in the United States. Several
government reports indicate that many Mexican motor
carriers are unlawfully operating outside the commer-
cial zone, and that they have a higher out-of-service
(OOS) rate than domestic carriers. The DOT’s Office of
the Inspector General (IG) issued a report in November
1999 detailing safety and operational problems with
Mexican motors carriers and the Department’s over-
sight of there carriers. The IG found that 41 percent of
23,300 Mexican vehicles inspected at the border or in
the commercial zones in FY 1998 were placed OOS.
The IG also estimated that approximately 130 Mexican
motor carriers may be operating illegally outside the
border States, and 505 in the border States but outside
the commercial zones (Office of the Inspector General).
The General Accounting Office (GAO) noted in 1997
that Mexican trucks inspected at the border had an
average monthly OOS rate of 45 percent between
January and December of 1996, compared to a 28 per-
cent rate for domestic carriers during fiscal year 1995
(General Accounting Office).
34
FMCSA
FINDING OF NO SIGNIFICANT IMPACT
FOR
Revision of Regulations and Application Form for
Mexico-Domiciled Motor Carriers To Operate in United
States Municipalities and Commercial Zones on the
United States-Mexico Border
Application by Certain Mexico-Domiciled Motor
Carriers To Operate Beyond United States Municipali-
ties and Commercial Zones on the United States-Mex-
ico Border
Safety Monitoring System and Compliance Initiative
for Mexico-Domiciled Motor Carriers Operating in the
United States
Parts and Accessories Necessary for Safe Opera-
tion; Certification of Compliance with Federal Motor
Vehicle Safety Standards (FMVSSs)
These proposed actions have been thoroughly reviewed
by the Federal Motor Carrier Safety Administration
(FMCSA) and it has been determined, by the under-
signed, that these proposed actions would have no
significant effect on the human environment.
This finding of no significant impact (FONSI) is based
on the attached FMCSA prepared Environmental As-
sessment (EA) which has been determined to ade-
quately and accurately discuss the environmental is-
35
sues, impacts, and alternatives of the proposed actions,
and provides sufficient evidence and analysis for deter-
mining that an environmental impact statement is not
required. The EA is attached to this document and is
hereby incorporated by reference in this FONSI.
[1-16-02] /s/ DALE M. JENNIFER, for
Date DALE M. JENNIFER
Charles Rombro, Environmental
Project Manager, FMCSA
I have considered the information contained in the EA
(and any other appropriate environmental documenta-
tion), which is the basis for this FONSI. Based on the
information in the EA and this FONSI document, I
agree that the proposed actions as described above, and
in the EA, will have no significant impact on the en-
vironment.
[1-16-02] /s/ {ILLEGIBLE}
Date Joseph M. Clapp, Administrator
36
FMCSA ENVIRONMENTAL ASSESSMENT
FOR
Revision of Regulations and Application Form for
Mexico-Domiciled Motor Carriers To Operate in United
States Municipalities and Commercial Zones on the
United States-Mexico Border
Application by Certain Mexico-Domiciled Motor
Carriers To Operate Beyond United States
Municipalities and Commercial Zones on the United
States-Mexico Border
Safety Monitoring System and Compliance Initiative
for Mexico-Domiciled Motor Carriers Operating in the
United States
Parts and Accessories Necessary for Safe Operation;
Certification of Compliance with Federal Motor Vehicle
Safety Standards (FMVSSs)
This Federal Motor Carrier Safety Administration’s
(FMCSA) environmental assessment (EA) was pre-
pared in compliance with the National Environmental
Policy Act of 1969, as amended (42 U.S.C. 4321-4347,
hereinafter “NEPA”) and the regulations for imple-
menting NEPA issued by the Council of Environmental
Quality Regulations, November 29, 1978 (49 C.F.R.
parts 150-1508), and in accordance with the Department
of Transportation’s (DOT) Order 5610.1C, Procedures
for Considering Environmental Impacts, September 18,
1979, as amended July 3, 1982, and July 30, 1985.
This environmental assessment serves as a concise
public document to briefly provide sufficient evidence
and analysis for determining the need to prepare a
finding of no significant impact or to assist the FMCSA
in determining whether there is a need to prepare an
environmental impact statement.
37
This environmental assessment concisely describes the
proposed actions, the need for the proposal, identifies
the alternatives, and determines which aspects of the
proposed actions and alternatives have potential for
social, economic, or environmental impact. This EA
also contains a comparative analysis of the actions and
alternatives, a statement of the environmental signifi-
cance of the preferred alternative, and a list of the
agencies and persons consulted during EA preparation.
1-16-02 [Illegible Signature]
Date Charles Rombro, Environmental Project
Manager, FMCSA
1-16-02 [Illegible Signature]
Date Julie Anna Cirillo, Chief Safety Officer,
FMCSA
In reaching my decision/recommendation on the
FMCSA’s proposed action, I have considered the infor-
mation contained in this EA on the potential for en-
vironmental impacts.
1-16-02 (legible Signature]
Date Joseph M. Clapp, Administrator, FMCSA
39
(Seal Omitted]
US. Department of Transportation
Federal Motor Carrier Safety Administration
Table Of Contents
IUD ceicnnnitanmenpnticietimmnmnemmesmememnmenenen
ID viticecrmecninncencnenpasemnmnmmmeninnee
1. PURPOSE AND NEED FOR ACTION ...............
Be STI ciictninceiidniennennctiandmienenmememmmcnneennes
EN
ee
A BE I cercreterccreeeeenneneseceeern
1.5. Government-Wide Coordination ..............-00++
2. PROPOSED ACTION AND ALTERNATIVES ....
2.1. Overview of Alternatives ...........csssssssssseeees
2.2. Applications for Operating Authority ............
2.2.1 Baseline Scenario - Moratorium Re-
tained with Current Application Forms ............
2.2.2 No Action - Moratorium Modified
with Current Application Forms...
2.2.3 Proposed Action - Moratorium
Modified with Revised Application Forms ........
2.3 Safety Monitoring for Mexico-Domiciled
ND ccnnrnnenetnnnsmennneemassecnmecmsn
2.3.1 Baseline Scenario —- Moratorium
Retained with Current Safety Monitoring
ETRE censtncrecinemenememssspecuesemanvee
2.3.2 No Action - Moratorium Modified
with Current Safety Monitoring Program .........
2.3.3 Proposed Action - Moratorium
Modified with Revised Safety Monitoring
System for Mexico-Domiciled CMC ............:0:00++
3. AFFECTED ENVIRONMENT ..............0ccccessseeees
3.1 Description of United States Highway
Transportation System ..........cssssssssessseseseseseees
3.2 Description of United States and Border
IND cnistnseinsnsonsmnnesesenennesenmennemenee
RR
Safety Oversight for Mexico-
Domiciled Commercial Motor
Carriers
Final Programmatic Environmental
Assessment
January 2002
Prepared by
John A. Volpe National Transportation Systems
Center
()
()
()
()
()
(]
(]
(]
(]
(]
()
()
(]
(]
(]
(]
(]
(]
(]
()
(]
(]
40 41
()
(]
(]
4.43 Summary of Impacts of the Proposed
PY YY
(]
3.2.2 Public Health and Safety ..........csvswweee (] 4.5. SOCIOECONOMICS .n.cccsscssssccsssssssssssescsssnseeeees
$33 Gr Quay on.«5:9800s"’_,_e [] 4.5.1 Applications for Operating
$3.4 RONG «nus [} ee
OO gg (] 4.5.2 Safety Monitoring for Mexico-Dom-
S26 GURGP DIGRUIEED cnc [] iciled Motor Carries ....0.00.0csecsvrecsersessesersseserssesseeees
4. ENVIRONMENTAL CONSEQUENCES ............. [] 4.5.8 Summary of Impact of the Proposed
4.1 Themepewteten qnsunsessnnnneeeeeeeee [] Action ON SOCIOCCONOMICS ........00reerserrerneeneeneeneeneens
4.1.1 Applications for Operating 5. MITIGATION AND BEST MANAGEMENT
RAAB ccm [] PRACTICES
4.1.2 Safety Monitoring for Mexico- 6. LIST OF PREPARERS AND REVIEWERS .................
Domiciled Motor Carriers .......ccccscscscscsseseessseeereeee [] 7. REFERENCES
4.1.3 Summary of Impacts of the Proposed LIST OF APPENDICES
Action on Transportation .......cccccesssessesseseereseerens [] Appendix A - Definition of commercial motor
4.2 PUBLIC SAFETY AND HEALTH ............. [] vehicles and Description of Roadside
4.2.1 Applications for Operating Inspections
Aether tty cnn [] Appendix B - Roles of Selected Agencies With
4.2.2 Safety Monitoring for Mezxico- Environmental and Public Health Over-
Domiciled Motor Carriers .......c.ccccsssssesesesesseesverees [] sight Authority Over the Operation of
4.2.3 Summary of Impacts of the Proposed CMC in the United States
Action on Public Safety and Health ..........c000000 []} Appendix C - Air Quality
43. AIR QUALITY .ccsses [] Appendix D - Environmental Screening Pro-
4.3.1 Applications for Operating cess
I [] Appendix E - Noise Emissions Analysis
4.3.2 Safety Monitoring for Mexico- Appendix F - Selected NAFTA Environmental
Domiciled Motor Carriers ....c.ccc.ccccccccscscececeseeeeeeees [] References
4.3.3. Summary of Impacts of the Proposed: Appendix G - Socioeconomic Demographic
Action ANd Atr Quality ......cccccccsceseceseseseseseseseessesees [] Numbers
44. TOOEEED ncn [] Appendix H - Proposed Forms OP-2 and
4.4.1 Applications for Operating OP-1 (MX)
PARROTS connie [}
4.42 Safety Monitoring Program for New
AGBNICN ccnenencminniie (J
()
()
()
()
()
()
()
(]
42
List of Tables
Table 2-1: Requisite Conditions for each Alter-
TID cccnnceutinttnininienennnneannniineieiansienann
Table 2-2: Proposed Action Alternative Contents .......
Table 2-3: New OP-2 Applications for Border Zone
Operating Authority from Mexico-Domiciled
CMC .
Table 3-1: NAAQS Attainment Status for United
States —- Mexico Border Counties
Table C-1 NAAQS as of December 2000
Table C-2 Criteria pollutant description and poten-
tial health effects
Table C-3 Source contribution to emissions for
the United States during 1999
Table C-4 Total emissions from on-road mobile
sources in 1999
Table C-5 Percent change in emissions and concen-
trations in the U.S. (1980-1999)
Table C-6 Estimated total 1997 vehicle emissions
by fuel type
Table C-7 Total annual emissions from operation
of Mexican CMV under the baseline scenario ...
Table C-8 Total annual emissions from operation
of Mexican CMV under the No Action Alter-
native
Table C-9 Total annual emissions from operation
of Mexican CMV under the proposed action
ETE N R LR Pca» EI ORDER RE
Table C-10 Total annual emissions from inspections
of Mexican CMV under the baseline scenario ........
Table C-11 Total annual emissions from inspections
of Mexican CMV under the No Action Alter-
ee
(]
(]
(]
(]
()
()
()
()
()
()
()
()
()
()
()
43
Table C-12 Total annual emissions from inspections
of Mexican CMV under the proposed action
alternative
Table D-1 Resource Consumption from Paper
Production
Table G-2 Population Breakdown For Border
GI cesesncistiensendnenanpasatinennininseeinpansninesmeneesssenemetinmees
Table G-3 Northbound Crossings From Mexico
1984 to 2000 shines
List of Figures
Figure 3-1: Mexico Imports into the United States
between 1997 and 2000, as Measured by Weight
(United States Short Tons)
Figure 3-2: Trend in the Total Number of North—
bound Truck Crossings into the United States
from Mexico between F'Y 1992 and 2000 .................
Figure 3-3: Change in Northbound Truck Cross-
ings at the Seven Busiest Ports of Entry for FY
1992, 1996 and 2000 .
Figure 3-4: General Population versus Hispanic
Population in border crossing cities
Figure 3-5: Percent Hispanic Population compared
to average income for border crossing cities and
the United States total
Figure 4-1: Distribution of NO, and PM Emissions
from On-Road Sources and Mexican, United
States and Canadian CMV, FY 2002 as Percent
CE EIR occccccececcneeseesesesesecsnsnscnsessnsosensnsnsesosnssnensesenseees
Figure E-1 National noise emission levels i in tnm .........
Figure E-2 Heavy trucks, acoustically hard sur-
face
Figure E-3 Heavy trucks, acoustically hard surface,
close-in .... . cmmmenmemmmmannnnnin
()
(]
()
(]
()
()
()
()
(]
()
()
()
()
()
44
Figure E-4 Buses, acoustically hard service
Figure E-5 Buses, acoustically hard service
(]
(]
45
LIST OF ACRONYMS
CAA - Clean Air Act
CEQ - Council on Environmental Quality
CFR - Code of Federal Regulations
CMC - commercial motor carrier
CMV - commercial motor vehicle
CO - carbon monoxide
CVSA - Commercial Vehicle Safety Alliance
dB - decibels
DOT - Department of Transportation
EO - Executive order
EPA - Environmental Protection Agency
ESA - Endangered Species Act
FHWA - Federal Highway Administration
F MCSA - Federal Motor Carrier Safety Administration
FMVSS - Federal Motor Vehicle Safety Standards
GAO - General Accounting Office
GHG - greenhouse gases
ICC - Interstate Commerce Commission
NAAQS - National Ambient Air Quality Standards
NAFTA - North American Free Trade Agreement
NEPA - National Environmental Policy Act
NHPA - National Historic Preservation Act
NHTSA - National Highway Safety Administration
NO, - nitrogen dioxide
NO, - nitrogen oxides
OIG - Office of Inspector General
OMCS - Office of Motor Carrier Safety
Pb - lead
PEA - Programmatic Environmental Assessment
PM - particulate matter
TNRCC - Texas Natural Resource Conservation
Commission
USAF - United States Air Force
USC - United States Code
46
USFWS- Unites State Fish and Wildlife Service
VOC - volatile organic compounds
VMT - vehicle-miles of travel
47
1. PURPOSE AND NEED FOR ACTION
1.1. INTRODUCTION
The National Environmental Policy Act of 1969
(NEPA) and the Council on Environmental Quality’s
(CEQ) implementing regulations’ establish policies and
procedures that ensure environmental information is
available to decision makers, regulatory agencies, and
the public before Federal actions are implemented.
The Federal Motor Carrier Safety Administration
(FMCSA) with the cooperation of the John A. Volpe
National Transportation Systems Center prepared this
Programmatic Environmental Assessment (PEA) for
the purpose of analyzing the potential environmental
impacts associated with four proposed rulemakings.
This PEA follows the procedures established by the
United States Department of Transportation (DOT)’ to
implement NEPA, pursuant to the CEQ regulations.
The focus of this PEA concerns four proposed rule-
makings that relate to the safety of Mexico-domiciled
commercial motor carrier (CMC) operations in the
United States. CMC include operators of trucks and
buses. The first two of these rules would revise the ap-
plication process for Mexico-domiciled CMC to improve
FMCSA’s ability to identify high-risk CMC and track
CMC performance. The third rule would establish a
safety monitoring system for Mexico-domiciled CMC
that includes mandatory safety audits of CMC records
and targeted roadside inspections of CMC commercial
motor vehicles (CMV). (Refer to Appendix A for the
1 42 U.S.C. § 4321 et seq.
2 40 C.F.R. § 1500 et seq.
8’ DOT Order 5610.1C, Procedures for Considering Environ-
mental Impacts, 9/18/79, as amended 7/13/82, 7/30/85.
48
definition of CMV.) The fourth rule would empower
FMCSA to enforce the current National Highway
Traffic Safety Administration (NHTSA) requirement
that every CMV operated within the United States
display a label certifying that it complies with all
applicable Federal Motor Vehicle Safety Standards
(FMVSS) in effect on the date of manufacture of the
vehicle. These rules together form the Proposed Action
of this PEA.
This PEA will focus only on the potential environ-
mental impact and safety of operation implications of
the proposed actions and alternatives based on: (1) the
change in the number of Mexico-domiciled CMC re-
ceiving certificates of operating authority pursuant to
the revised application forms (i.e., OP-2 and OP-1 (MX)
Forms), and the associated change in the number of
Mexican CMV operating in the United States; and
(2) the change in the number, method, and frequency of
inspections conducted on Mexican CMV operating in
the United States. The purpose of this PEA is to assist
FMCSA and the public in understanding the potential
environmental consequences, if any, of the Proposed
Action and alternatives. The PEA will be used by
FMCSA to determine whether the proposed changes to
the application process for Mexico-domiciled CMC and
inspections system for Mexican CMV will result in
significant environmental impacts. The PEA addresses
the purpose and need for the Proposed Action, de-
scribes the Proposed Action and alternaives to the ac-
tion, analyzes the potential environmental conse-
quences of the proposed action and alternatives, and de-
scribes mitigation strategies and best management
practices. This PEA is not intended to be a scientific
document. Where appropriate, more detailed infor-
49
mation and analysis is provided in one of the appendices
to the PEA.
1.2. BACKGROUND
Prior to 1982, Mexico-domiciled CMC could apply for
authority to operate within the United States by
making an application for such authority to the former
Interstate Commerce Commission (ICC). Under the
Bus Regulatory Reform Act of 1982,* Congress imposed
a two-year moratorium on the issuance of new certi-
ficates of United States operating authority to CMC
domiciled in a contiguous foreign country, or owned or
controlled by persons of a contiguous foreign country.
The Act authorized the President to remove or modify
the moratorium if the President determined that such
action was in the national interest. The Act was deve-
loped in response to complaints that neither Mexico nor
Canada were permitting United States CMC the same
access to their markets as Mexican and Canadian CMC
had to United States markets. Through the ICC Ter-
mination Act of 1995 (ICCTA), Congress, among other
things, amended the President’s authority under the
1982 Act by authorizing the President to remove or
modify the moratorium upon the President’s deter-
mination that such action is consistent with United
States obligations under a trade agreement or with
United States transportation policy.
While the trade issues with Canada were resolved
quickly, resulting in the moratorium being modified for
Canada-domiciled CMC, the trade issues with Mexico
were not addressed until the North American Free
* Section 6 of Public Law No. 97-261, 96 Stat. 1102 (September
20, 1982), formerly codified at 49 U.S.C. § 10922(1), is now codified
at 49 U.S.C. § 13902.
50
Trade Agreement (NAFTA) was negotiated in the
early 1990s. Legislative and executive extensions have
maintained the moratorium for most Mexico-domiciled
CMC since 1982. However, the President has twice
exercised his statutory authority and has modified the
moratorium pursuant to the NAFTA. First, in 1994, the
President modified the moratorium to allow certificates
of authority for the operation in foreign commerce of
Mexico-domiciled charter and tour buses throughout
the United States. Second, in 2001, the President modi-
fied the moratorium to allow new certificates of author-
ity for the operation of Mexican-owned or controlled,
United States-domiciled CMC engaged in the trans-
portation of passengers and of international cargo.
A number of Mexico-domiciled CMC have been per-
mitted to operate in the United States because they are
not covered by the moratorium. The moratorium only
applies to certificates of new operating authority for
operations beyond municipalities and commercial zones
adjacent to Mexico in Texas, New Mexico, Arizona, and
California (herein called the “border zone”). Thus,
Mexico-domiciled carriers that intend to operate only
within the border zone are not barred from receiving
operating authority for operations in those areas, and
Mexico-domiciled CMC that had obtained untestricted
operating authority before the moratorium was enacted
may continue to operate throughout the United States.
Additionally, the moratorium does not affect United
States-owned, Mexico-domiciled private carriers, whose
services are not for-hire, Mexico-domiciled CMC of
certain commodities and Mexico-domiciled carriers that
only traverse the United States to deliver or pick up
cargo or passengers in Canada. Such carriers have
never been restricted to the border zone.
51
The ICCTA also dissolved the ICC and transferred the
authority to issue new certificates of United States
operating authority for CMC and some other regula-
tory functions to the Office of Motor Carriers (OMC) of
the Federal Highway Administration (FHWA). The
Secretary of Transportation (the “Secretary”) subse-
quently re-delegated the authority to carry out the
duties and powers related to CMC safety outside of the
FHWA to the Director, Office of Motor Carrier Safety
(OMCS).’ On December 9, 1999, the President signed
the Motor Carrier Safety Improvement Act of 1999.°
The new statute established the FMCSA within the
Department of Transportation. Effective January 1,
2000, the Secretary rescinded the authority previously
delegated to the former OMCS, and delegated this
authority to FMCSA.’
The primary mission of the FMCSA is tv reduce fatali-
ties and injuries caused by CMV and to enforce
hazardous materials regulations as they relate to CMC.
The FMCSA works to ensure safety in CMC operations
by developing and enforcing safety regulations, target-
ing high-risk carriers and CMV drivers, improving
safet,, information systems and CMV technologies,
strengthening CMV equipment and operating stan-
dards, and increasing safety awareness. To accomplish
these activities, the FMCSA works with Federal, State,
and local enforcement agencies, the CMC industry,
organized labor, safety interest groups, and others.
The criteria that the FMCSA must apply when evaluat-
ing an application for operating authority in the United
5 64 Fed. Reg. 58356, October 29, 1999.
6 Public Law No. 106-159, 113 Stat. 1748 (December 9, 1999).
7 65 Fed. Reg. 220, January 4, 2000 (effective, January 1 , 2000).
a
52
States is statutory, and the FMCSA has no authority to
deviate from, or add to, this criteria. Specifically, the
statute requires the FMCSA to issue a certificate of
operating authority to any person whom is deemed
willing and able to comply with designated economic,
safety, and financial responsibility requirements.®
These specific requirements are either set forth in the
, Statute or in regulations specifically authorized by the
statute. Currently, the FMCSA must issue a certificate
of operating authority to any United States or Cana-
dian carrier submitting an application that indicates the
carrier's willingness and ability to meet the above
stated criteria. But for the moratorium, this would also
be true as to Mexican applicants. The Secretary may
not even consider complaints challenging a registration
application unless the complaint concerns the appli-
cant’s willingness and ability to comply with the above
three DOT regulatory requirements.” In the absence of
such complaints, or other evidence regarding non-
compliance with these requirements, the Secretary
must grant the application. Consequently, the FMCSA
is statutorily precluded from considering environmental
issues in deciding whether to grant applications to
provide CMC transportation in interstate or foreign
commerce. Please refer to Appendix B for a list of
selected government agencies with environmental and
public health oversight and regulatory authority.
8 49 U.S.C. § 13902(a)(1).
® 49 U.S.C. § 13902(a)(4).
53
1.3. NEED FOR ACTION
Under the terms of the NAFTA, the United States,
Mexico, and Canada agreed to remove certain existing
barriers to the cross border operations of CMC (for
more information on the environmental review of
NAFTA, see references in Appendix F). The President
and Congress committed the United States in the
NAFTA to a timetable for modifying the moratorium
that was to allow Mexico-domiciled CMC engaged in
the transportation of international cargo to operate
within the four Border States beginning in December
1995 and throughout the United States on January 1,
2000. Due to safety concerns, in December 1995,
President Clinton indefinitely delayed the modification
of the moratorium for Mexico-domiciled CMC. In
February 2001,a NAFTA arbitral panel ruled that this
action was contrary te the NAFTA. Under the
NAFTA, this ruling meant that Mexico could impose
trade sanctions against the United States unless the
United States fulfilled its NAFTA obligations. Shortly
after the panel issued its ruling, President Bush
announced his intent to comply with the terms of the
NAFTA in a manner consistent with safety by
modifying the moratorium, pursuant to his statutory
authority, once FMCSA was ready to issue its new
regulations governing Mexico-domiciled CMC seeking
United States operating authority. Once the mora-
torium is modified, the FMCSA must process Mexico-
domiciled CMC applications for authority to operate
throughout the United States.
If the moratorium is modified and the Proposed Action
of issuing the four rules is not taken, the FMCSA would
process applications currently on file from Mexican
carriers seeking authority to operate beyond the border
54
zone applying the same criteria stated in the previous
section above. These applications were submitted on an
application form created by the ICC in a 1995 rule-
making. Until that form is substituted with a different
form upon completion of these rulemakings, it remains
the form that Mexico-domiciled CMC must use to
request operating authority beyond the border zone.
In anticipation of the modification of the moratorium,
the FMCSA is concerned that Mexico-domiciled CMC
may have difficulty transitioning their operations to
meet United States safety standards. To address this
concern, FMCSA proposed to revise the application
process and safety monitoring program currently in
place for Mexico-domiciled CMC. These revisions
would help FMCSA ensure that Mexico-domiciled CMC
are willing and able to comply with all United States
safety laws and regulations, prior to receiving a
certificate of operating authority. In addition, the revi-
sions will improve FMCSA’ s ability to monitor Mexico-
domiciled CMC operations in the United States. Spe-
cifically, the FMCSA proposes to modify the existing
regulatory framework in two general areas:
e Applications by Mexico-domiciled CMC for
authority to operate within the United States
(both within and beyond the border zone), the
first two rules; and
e FMCSA safety monitoring of Mexico-domi-
ciled CMC (including new applicants) to en-
sure compliance with safety regulations, the
third and fourth rules.
Both of these areas are currently governed by a regu-
latory scheme that is administered by the FMCSA.
Under this current regulatory scheme, Mexico-
55
domiciled CMC seeking authority to operate within the
border zone may apply for such authority using existing
Form OP-2. Similarly, Mexico-domiciled CMC seeking
authority to operate beyond the border zone may apply
for such authority using the existing Form OP-1(MX)
that was created by the ICC in 1995. Finally, all
Mexico-domiciled CMC operating in any part of the
United States are subject to the same inspection and
review regime currently in place for United States and
Canadian CMC (FMCSA 2001b).
1.4. SCOPE OF ANALYSIS
This PEA will analyze the potential environmental im-
pacts associated with the current regulatory frame-
work, and the four proposed rules that would modify
this framework. Initially, this PEA will focus on the
effect these alternatives will have on the number of
Mexican CMV operating in the United States and the
number of inspections that will be performed on these
vehicles. Next, the PEA will describe the environment
that may be impacted by changes in the total number of
vehicles and inspections. Finally, the PEA will describe
the potential environmental impacts associated with
these changes on the following primary areas of po-
tential concern: Transportation, Public Safety, Air
Quality, Noise, and Socioeconomics.
1.5. GOVERNMENT-WIDE COORDINATION
Regulatory agency involvement is critical in the
analysis of the proposed rulemakings, particularly with
regard to NEPA. The FMCSA has coordinated the
development and completion of this PEA to ensure
participation and feedback from the Environmental
Protection Agency and the Council on Environmental
Quality.
56
2. PROPOSED ACTION AND ALTERNATIVES
2.1. OVERVIEW OF ALTERNATIVES
The purpose of this PEA is to assist FMCSA in un-
derstanding the potential environmental consequences
of the Proposed Action and alternatives in order to de-
termine whether they will result in significant environ-
mental impacts. The analysis involves comparing each
alternative to current environmental conditions to iden-
tify the resulting change. In most environmental re-
views, the No Action Alternative provides a good de-
scription of the baseline, since it describes the current
environmental conditions and the environmental con-
sequences of maintaining the status quo. However, in
the current situation, the anticipated Presidential order
to modify the moratorium constitutes an intervening
event that will modify the baseline conditions. Recog-
nizing the influence of this intervening event, FMCSA
has identified three probable scenarios that this PEA
must consider. The Baseline Scenario consists of the
continued use of existing FMCSA regulations with the
Moratorium remaining unmodified. The second
scenario is the No Action Alternative, whereby the use
of the existing FMCSA regulations continues and the
Presidential order to modify the Moratorium is imple-
mented. The third scenario consists of the Proposed
Action Alternative, whereby the four rules proposed by
F MCSA are promulgated and the Presidential order to
modify the Moratorium is implemented. Table 2-1
shows the requisite conditions that apply for the three
scenarios considered in this PEA.
57
Table 2-1: Requisite Conditions for each Alternative
Moratorium Moratorium Modified
Unmodified by Presidential order
No Change to Cur- Baseline No Action
rent FMCSA Regu-
lations
FMCSA Regula- N/A Proposed Action
tions Revised by
Proposed Rules
F MCSA also recognizes that there is a fourth scenario
whereby the proposed rules are promulgated with the
moratorium remaining in effect; however, this scenario
has been dismissed from further analysis for several
reasons. First, as stated in Section 1.3 describing the
Need for Action, the President has announced his
intent to comply with the terms of NAFTA. Second,
although the President could modify the moratorium
after the FMCSA completes this rulemaking, the period
of time between the issuance of the final rules and the
moratorium modification would be very short, and the
rules relating to Mexican carrier operations beyond the
border zone would, in any event, have no practical
impact until the moratorium is modified. Third, the
analysis of the other three scenarios will capture the
moratorium’s effect on the proposed rules, and any
additional analysis of this scenario would thus be
redundant.
Immediately prior to the completion of this PEA, the
Congress passed the DOT Appropriations Act for FY
2002. The Act sets forth several conditions that must
by met by the DOT before FMCSA may expend any
FY 2002 appropriated funds to process Form OP-1
(MX) applications. Among the conditions set forth in
58
the Act are the requirements that FMCSA promulgate
rules that implement the regulatory safety require-
ments contained in rules 2, 3 and 4 of the Proposed
Action. This section of the Appropriations Act with-
holds funds for the processing of Form OP-1 (MX) until
the satisfaction by DOT of the conditions set forth in
the Act or upon the expiration of the appropriations
period on September 30, 2002, whichever event occurs
first. While the appropriations hold is in effect, any
Presidential order to modify the statutory moratorium
will have no practical effect, since FMCSA would still
be prohibited from processing OP-1 (MX) applications.
As a result, while the appropriations hold is in effect,
the No Action Alternative against which the environ-
mental impacts from the Proposed Action should be
measured is identical to the Baseline scenario described
in this document. Accordingly, to account for this
additional scenario, our analysis of environmental im-
pacts in Chapter 4 will compare the environmental im-
pacts of the Proposed Action to the impacts associated
with both the Baseline and No Action alternative. This
dual analysis will allow the FMCSA to determine
whether the Proposed Action will result in a significant
impact to the environment as compared to a No Action
Alternative with or without the appropriations hold in
place.
To facilitate the environmental impact discussion in
Chapter 4, this chapter describes each alternative and
focuses on the operating conditions that will result from
each alternative. The Proposed Action Alternative
consists of four rules and is divided into two cor-
responding subsections to facilitate a separate review
of each regulatory area addressed under the Proposed
Action and described in Section 1.3 (see Table 2-2).
59
The first subsection addresses the application process
for operating authority (rules 1 and 2, including a new
pre-authority safety audit for those CMC operating
pursuant to OP-1 (MX) authority). The second subsec-
tion addresses the safety monitoring program for
Mexico-domiciled CMC operations (rules 3 and 4,
including maintaining a current Commercial Vehicle
Safety Alliance (CVSA) decal). Within each of these
subsections, the PEA begins by describing the Baseline
Scenario, followed by the No Action Alternative, and
then the Proposed Action Alternative. Finally, since
the Proposed Action is comprised of the implementa-
tion of the four rules, each resource analyzed in Chapter
4 concludes with a discussion of the total potential
impact of the two regulatory sections together in a
summary section.
Table 2-2: Proposed Action Alternative Contents
PROPOSED ACTION ALTERNATIVE
Applications for Operating | Rule 1 - Form OP-2 Revised
Authority
Rule 2 - Form OP- 1 (MX) Re-
vised, including a new pre-
authority safety audit
Safety Monitoring Program for | Rule 3 - Proposed Safety
Mexico- Monitoring System Require-
Domiciled CMC * ments
Rule 4 - Proposed Certifi-
cation Label Requirements
(FMVSS)
* Also includes maintaining current CVSA decal
For the purposes of this analysis it was assumed that
the implementation of the Proposed Action would not
affect the trade volume between the United States,
Mexico, and Canada, nor would it alter existing regula-
60
tions relating to the cargo or payloads carried by
Mexico-domiciled CMC. Even though actual resulting
trade conditions are at best difficult to quantify, it is
expected that the Presidential order to modify the
moratorium could result in changes in trade volume and
operations between the United States and Mexico. As
a result, there could be an increase in the number of
Mexican CMV trips in the United States. The resulting
increase would be determined by the difference be-
tween the new Mexican CMV trips and the offset
resulting from the reduction in the number of United
States CMV trips that would be replaced by their
Mexican counterparts. However, this and any other
associated effects in trade characteristics would be the
result of the modification of the moratorium and not the
implementation of the Proposed Action.
As a result, this PEA will focus only on the potential
environmental impact and safety implications of the
proposed actions and alternatives based on: (1) the
change in the number of Mexico-domiciled CMC receiv-
ing certificates of operating authority pursuant to the
revised application forms (i.e., OP-2 and OP-1 (MX)
Forms), and the associated change in the number of
Mexican CMV operating in the United States; and
(2) the change in the number, method, and frequency of
inspections conducted on Mexican CMV operating in
the United States.
2.2. APPLICATIONS FOR OPERATING AUTHORITY
This section describes the operating conditions of
Mexico-domiciled CMC within the United States, as the
application process affects those conditions. This sec-
tion begins by describing current operating conditions
under the Baseline scenario, followed by a description
61
of how those conditions would change under the No
Action and Proposed Action Alternatives.
2.2.1 Baseline Scenario — Moratorium Retained with
Current Application Forms
Under current Baseline operating conditions, Mexico-
domiciled CMC may apply for two different types of
operating authority. The first is authority to operate
within the commercial zone along the United States-
Mexico border, known as the “border zone.” Economic
Commercial Zones are established geographical areas,
as outlined or set forth in FMCSA regulations where
interstate commerce is partially exempt from economic
regulation.” The commercial zones exist throughout
the United States and vary in size according to the
population of the base municipality. Although commer-
cial zone CMC are partially exempt from economic
regulation they are still required to meet the same
State safety standards that apply to other motor car-
riers. Most of the commercial zones are 20 miles wide
or less, but the Rio Grande Valley zone, including four
Texas counties, and the San Diego zones extend 70
miles wide. Mexican CMV operating within the United
States commercial zone must obtain a certificate of
registration from the FMCSA. In addition, approved
Mexico-domiciled charter and tour bus companies can
operate throughout the United States, but regular
route operations are not allowed. Mexico-domiciled
CMC may request border zone operating authority by
submitting the application Form OP-2.
The second type of authority is required to operate
throughout the United States, beyond the border zone.
Mexico-domiciled CMC request this broader operating
0 49 C.F.R., Part 372, Subpart B.
62
authority by submitting the application Form OP-1
(MX). Under current Baseline conditions, with the
moratorium in place, FMCSA is prevented from pro-
cessing applications submitted on Form OP-1 (MX), in
effect preventing Mexico-domiciled CMC from receiv-
ing authority to operate beyond the border zone.
Mexico-domiciled CMC may request an application
form for operating authority from either an FMCSA
division office or a border inspection station (Mufioz
2001). When a Form OP-2 application is submitted to
FMCSA, the agency reviews the completed form and
conducts a background check to determine whether the
applicant carrier is willing and able to comply with all
applicable DOT regulatory requirements. If the
FMCSA finds that a carrier is willing and able to com-
ply with the applicable laws and regulations, the carrier
will receive a Certificate of Registration authorizing it
to operate within the border zone. When a Form OP-1
(MX) application is received by FMCSA, the form is
placed in a file to be processed when the moratorium is
modified. There are approximately 200 Form OP-1
(MX) applications currently on file.
The FMCSA estimates that in 2001, there were 9,500
Mexico-domiciled CMC and 593,000 United States- and
Canada-domiciled CMC with United States operating
authority. These CMC operated approximately 4.5
million CMV in the United States, including approxi-
mately 63,000 Mexican CMV (FMCSA 2001d). The
number of Mexico-domiciled CMC seeking operating
authority in the United States border zone continues to
increase every year, as shown in Table 2-3 (FMCSA
2001a). FMCSA has received approximately 1,300 new
OP-2 applications per year over the past four years.
63
Table 2-3: New OP-2 Applications for Border Zone
Operating Authority from Mexico-Domiciled CMC
Year Number of Applications Received
1996 611
1997 1,223
1998 1,447
1999 1,377
2000 1,182
Source: FMCSA 2001la
Under a continuation of Baseline Scenario operating
conditions, FMCSA expects to continue receiving and
approving approximately 1,300 applications per year
from Mexico-domiciled CMC seeking operating
authority in the United States, resulting in 10,800
Mexico-domiciled CMC with operating authority in FY
2002. These carriers could operate approximately
71,500 CMV inside the United States, but would be
largely confined to the border zone.
2.2.2 No Action — Moratorium Modified with Current
Application Forms
Under the No Action Alternative, FMCSA would re-
tain its current regulations after the Presidential order
to modify the moratorium is issued. Under this alter-
native, Mexico-domiciled CMC would continue to apply
for operating authority using either Form OP-2 or OP-1
(MX), and FMCSA would be under the obligation
to process both application forms. The FMCSA would
grant operating authority to a Mexico-domiciled
CMC—to operate within or beyond the border zone
—based upon a finding that the applicant carrier is
willing and able to comply with applicable CMC safety
regulations. Carriers operating under current certi-
ficates of authority would not be required to submit a
64
new application. In addition, once the Presidential
order to modify the moratorium is implemented,
NAFTA bus provisions would be in place, and Mexican
bus companies would be able to apply for authority to
carry passengers between Mexico and the United
States over regular routes in scheduled operations.
Also, Mexican bus companies may apply for authority
to establish an enterprise in the United States to
provide point-to-point passenger services (FMCSA
2001c). FMCSA expects that the economic opportuni-
ties created by the modification of the moratorium
would result in a 9% annual increase in the number of
new applications it would receive from Mexico-
domiciled CMC, relative to the Baseline scenario.
Under the No Action Altemative, FMCSA expects half
of the 9,500 Mexico-domiciled CMC currently operating
within the border zone could apply for OP-1(MX)
authority. In addition, FMCSA expects 1,500 new
applications for operating authority could be received
and approved by FMCSA in 2002, with approximately
75% of these carriers applying for OP-2 authority and
the remaining 25% applying for OP-1 (MX) authority.
Thus, the total number of Mexico-domiciled CMC
operating pursuant to either type of authority in 2002
could be 11,000. These carriers could operate ap-
proximately 73,000 CMV, with 39,000 CMV operated
pursuant to OP-2 authority and 34,000 CMV operated
pursuant to OP-1 (MX) authority.
2.2.3 Proposed Action — Moratorium Modified with
Revised Application Forms
Under the Proposed Action, the FMCSA would
promulgate two new rules. The first rule would amend
49 CFR parts 368 and 387 and revise Form OP-2, while
65
the second rule would amend 49 CFR part 365 and
revise Form OP-] (MX) (see Appendix H for a copy of
the revised OP-2 and OP-1 (MX) application forms).
Under the amended regulations, all Mexico-domiciled
CMC seeking authority to operate within the border
zone would be required to submit the revised Form
OP-2. CMC who already have a certificate of regis-
tration would have 18 months to submit a new OP-2
application form. Likewise, Mexico-domiciled CMC
seeking authority to operate beyond the border zone,
including carriers that previously filed pending Form
OP-1 (MX) applications as well as carriers falling under
one of the exceptions described in Chapter 1, would be
required to submit the revised Form OP-1 (MX). All
certificates of authority issued under either application
form would be provisional for at least 18 months and
until the Mexico-domiciled CMC completed a successful
safety audit or compliance review, as outlined in Rule 3
(see the next Section, below). In addition, Mexico-
domiciled CMC would be required to file a Motor
Carrier Identification Report on a biannual basis,
allowing the FMCSA to maintain current records
concerning Mexico-domiciled CMC operations.
Under the second rule, all Mexico-domiciled CMC
applying for authority to operate beyond the border
zone using Form OP-| (MX) would be subject to a safety
audit prior to receiving authority to operate in the
United States. The safety audits required by this
action would involve a review of the carrier’s initial
application for operating authority and a review of the
carrier’s records. An FMCSA safety auditor would
evaluate the carrier’s prior history of compliance with
applicable CMC safety laws, as well as its ability to
comply with these laws in the future. The safety audit
66
e conducted either at the carrier’s place of
ore or at an alternative location in the United
States designated by the FMCSA. A satisfactory audit
would be required before the carrier could receive
authority to operate beyond the border zone.
Under both revised Forms OP-2 and OP-1 (MX), the
FMCSA would collect more detailed information on an
applicant CMC’s size, operations, and history than can
be collected using the current forms. The revised forms
would require an applicant to affirm its basic “—— -
of FMCSA regulations and indicate how it woul
comply with those regulations. The applicant would be
required to certify that it has a system in place to
ensure compliance with FMCSA safety a
identify contact names and provide qe
information concerning driver qualifications, hours )
service, drug and alcohol testing, vehicle conditions,
accident monitoring, and hazardous material
transportation. In addition, both forms would request
information about the CMC’ s insurance coverage. The
carrier would be required to notify the FMCSA in
writing of certain key changes in the information on
either form within 45 days of the change. A failure to
update the form could result in a suspension or
revocation of the CMC’s operating authority. The
additional information required by both forms would
allow the FMCSA to better determine the willingness
and ability of Mexico-domiciled CMC to comply with
Federal motor carrier safety regulations.
SA expects that the economic opportunities
aed by the modification of the Moratorium would
result in a 5% annual increase in the number of ee
applications it would receive from corsage eae
CMC, relative to the Baseline scenario. Under the
67
Proposed Action Alternative, the increase in new
applications would be less than under the No Action
Alternative because the revised application form would
deter applicants that would be unable to adequately
demonstrate their willingness and ability to comply
with the safety regulations.
Under the Proposed Action Alternative, half of the
9,500 Mexico-domiciled CMC currently operating
within the Border Zone would apply for OP-1 (MX)
authority. In addition, approximately 1,400 new
applications for operating authority would be received
and approved in 2002, with approximately 75% of these
carriers applying for OP-2 authority and the remaining
25% applying for OP-1 (MX) authority. Thus, the total
number of Mexico-domiciled CMC authorized to
operate under either type of authority in 2002 would be
approximately 10,900. These carriers would be
authorized to operate approximately 72,000 CMV, with
38,000 CMV authorized pursuant to Form OP-2 and
34,000 CMV authorized pursuant to Form OP-| (MX).
FMCSA also expects that the pre-authority safety
audits under Rule 2 would not affect the total number
of Mexican CMV operating in the United States or the
total amount of goods transported between Mexico and
the United States. The FMCSA anticipates that some
carriers would fail to pass the pre-authority safety
audit and therefore be prevented from operating in the
United States. However, since the Proposed Action
would not affect total trade between the United States
and Mexico, FMCSA expects that other carriers that
succeed in passing the audit would replace any carriers
that fail to pass the pre-authority safety audit.
68
2.3. SAFETY MONITORING FOR MEXICO-DOMI-
CILED MOTOR CARRIERS
ction describes the operating conditions of
SMexioo deauteliad CMC within the United States, as
those conditions are affected by the safety monitoring
of Mexican CMC, CMV, and drivers. ‘This section
begins by describing the operating conditions as they
are affected by the current baseline scenario, followed
by a description of how those conditions would change
under the No Action and Proposed Action Alternatives.
2.3.1 Baseline Scenario — Moratorium Retained with
Current Safety Monitoring Program
Under current baseline operating conditions, the
existing safety monitoring system for Mexican CMV is
largely limited to monitoring border zone operations
because, with the few exceptions listed in Chapter 1,
Mexico-domiciled CMC are limited to conducting
operations within the border zone. Currently, be pee
conducts inspections on Mexico-domiciled CMC an
CMV following the same guidelines applied for
inspections of United States and Canadian CMV. In
the United States inspections can take place at the
border at designated roadside inspection stations, ata
carrier’s place of business, or at any point along the
roadway. These inspections may occur at any time.
(For more information on the inspection process, _—
to Appendix A). All CMV operating in the Unite
States are subject to inspections by Federal, State, or
local authorities.
All CMV crossing the border from Mexico into the
United States are required to pass through a United
States Customs Service checkpoint, where some are
selected for customs inspection. In Arizona, New
69
Mexico, and Texas, CMV may then be selected for a
safety inspection by a Federal CMC safety inspector,
who also works in the customs compound. Arizona,
New Mexico, and Texas State inspectors may addition-
ally inspect these trucks after they leave the compound.
In California, the CMV leave the United States Cus-
toms compound and drive on a private road directly to
the office of the California Highway Patrol where they
are weighed by Weigh in Motion (WIM) scales. Certain
vehicles passing over the WIM scales are then selected
for a safety inspection, based in part on the inspecting
official’s determination that something on the vehicle
raises a safety concern (Cisneros 2001a).
Currently, manufacturers of motor vehicles built for
sale or use in the United States, as well as manu-
facturers of vehicles imported for use in the United
States, must comply with the Federal Motor Vehicle
Safety Standards (FMVSS) established by the National
Highway Traffic Safety Administration (NHTSA) that
were in effect at the time of their manufacture, and
apply a FMVSS label to their vehicles attesting to their
compliance." In 1975, NHTSA issued an interpretive
letter prohibiting the importation of vehicles without a
certification label, including CMV used to transport
passengers or cargo.” NHTSA subsequently included
the FMVSS label requirements in its regulations, and
all Mexico-domiciled CMC are required to comply with
the NHTSA regulation by ensuring that their CMV
bear the label while conducting operations in the
United States. Currently, FMCSA’s own safety
" 49 U.S.C., Section 30112.
NHTSA interpretive letter to the Canadian Trucking
Association, dated May 9, 1975.
849 C.F.R., Part 567.
70
regulations do not include the FMVSS label
requirement and accordingly, FMCSA inspectors do
not have authority to take enforcement action against
Mexico-domiciled CMC found to be in violation of
NHTSA’s FMVSS label requirement (FMCSA 2001h).
In calendar year 2000, Federal and State authorities
conducted 2.45 million CMV inspections, including
47,000 Mexican CMV inspections. This figure includes
inspections that were conducted both within and
outside the border zone. Previously, Federal and State
authorities had conducted 2.36 million inspections in
calendar year 1999 and 2.23 million inspections in calen-
dar year 1998, reflecting an average annual increase of
110,000 inspections. During this same period, there
were 27,000 inspections of Mexican CMV in 1998 and
42,000 inspections in 1999. This reflects an average
annual increase of 10,000 Mexican CMV inspections.
FMCSA has received funding to hire and train more
than 200 additional inspectors to work along the United
States-Mexico border. These inspectors will be
deployed regardless of whether the moratorium 1s
modified or the proposed rules are implemented. These
additional inspectors will perform approximately
100,000 inspections of Mexican CMV. Thus, under the
Baseline scenario, FMCSA would expect approximately
2.77 million total CMV inspections in 2002 and 2.88
million inspections in 2003. Within this total, ap-
proximately 170,000 of the 2002 inspections and 180,000
of the 2003 inspections would be conducted on Mexican
CMV.
71
2.3.2 No Action — Moratorium Modified with Current
Safety Monitoring Program
Under the No Action Alternative, the FMCSA would
retain its current inspection and review authority after
the Presidential order to modify the moratorium is
implemented. FMCSA expects that once the mora-
torium is modified, some Mexico-domiciled CMC would
apply for and receive authority to operate beyond the
border zone. As a result, some Mexican CMV would
begin to transport goods to intermediate or final des-
tinations throughout the United States, replacing the
drayage operators and the United States CMV that
previously transported these goods.
FMCSA would continue to conduct inspections on
Mexico-domiciled CMC and CMV following the same
guidelines applied for inspections of United States and
Canadian CMV, whereby all CMV operating in the
United States are subject to inspections by Federal,
State, or local authorities at the border, at designated
roadside inspection stations, at a carrier’s place of
business, and at any point along the roadway. These
inspections may occur at any time. Since the modi-
fication of the moratorium could affect the total amount
of freight transported between Mexico and the United
States, the total number of CMV transporting those
goods and the proportion of Mexican CMV operating in
the United States may both increase slightly. As the
total number of Mexican CMV subject to inspection
increases, the number of those vehicles inspected may
rise as well. In addition, FMCSA will continue to de-
ploy additional inspectors at the border, as described
under the Baseline scenario.
Under the No Action Alternative, FMCSA would
expect the number of Mexican CMV inspections to
72
increase above normal trends by approximately 10%,
resulting in approximately 180,000 Mexican inspections
in 2002 and 190,000 inspections in 2003. It was
conservatively assumed that there would be no replace-.
ment of inspections on United States and Canadian
CMV as a result of the additional inspections of Mexi-
can CMV. Thus, the total number of CMV inspections
identified under the Baseline scenario would increase to
approximately 2.78 million inspections in 2002 and 2.89
million inspections in 2003.
2.3.3 Proposed Action — Moratorium Modified with
Revised Safety Monitoring System for Mexico-
Domiciled CMC
nder the Pro Action, FMCSA would promulgate
se new ie the first rule would amend 49 CFR,
part 385 to establish a new Safety Monitoring Program
for all Mexico-domiciled CMC operating within and
beyond the border zone. The program would combine
targeted roadside inspections with a system of safety
audits to help ensure that Mexico-domiciled CMC are
operated in compliance with all applicable safety
regulations and conduct safe operations within the
United States (FMCSA 200le). The second rule would
allow FMCSA to enforce the NHTSA requirement that
all CMV operated in the United States display a certifi-
cation label that acknowledges that the CMV complies
with all FMVSS in effect on the date of manufacture.
Under the new Safety Monitoring Program, a Mexico-
domiciled CMC that adequately demonstrates its
willingness and ability to comply with applicable CMC
safety regulations would be granted provisional op-
erating authority for a minimum of 18-months, rather
than the permanent authority granted under the Base-
line and No Action Alternatives. The Mexico-domiciled
73
CMC would operate under provisional authority during
this 18-month period while in the new safety monitoring
system. While in the program, the carrier would
remain subject to selective compliance reviews, as are
United States-domiciled CMC. In addition, FMCSA
will continue to deploy additional inspectors at the
border, as described under the Baseline scenario.
The safety audits and compliance reviews conducted
under the new Safety Monitoring Program would be
similar to the pre-authority safety audits under Rule 2
described above, the revision of OP-1 (MX). However,
the safety audits and compliance reviews conducted
under Rule 3 would occur after the FMCSA grants
operating status pursuant to either OP-2 or OP-1 (MX)
authority and after Mexico-domiciled CMC commence
operations in the United States. These audits would
involve a review of the carrier’s initial application and a
review of the carrier’s records. The safety auditor
would evaluate the carrier’s prior history of compliance
with all applicable CMC safety provisions. The safety
audit would be conducted either at the carrier’s place of
business or at an existing office building in the United
States designated by the FMCSA. A satisfactory
safety audit or compliance review would be required
before a carrier could be released from the safety
monitoring system at the end of the 18-month oversight
period.
While operating under the safety monitoring system, a
Mexico-domiciled CMC would also be subject to
expedited action by the FMCSA if found to pose a
potentially serious threat to the safety of the general
public. If such a finding were made, FMCSA could
either schedule an expedited safety audit or compliance
review of the CMC or take other appropriate action.
74
Failure to respond appropriately or undergo the audit
or review could result in the suspension of the carrier’s
registration. Examples of CMC activities that would
lead to expedited action include, but are not limited to,
the following activities:
e@ Using drivers that do not have or are operating
without a valid Government of Mexico Commer-
cial Driver’s License (Licencia Federal de Con-
ductor).
@ Operating out-of-service vehicles without first
making the required repairs.
e Being involved in, due to CMC act or omission,
hazardous materials incidents within the United
States.
e Using a driver who tests positive for drugs or
aleohol or who refuses to submit to required
drug or alcohol tests.
@ Operating within the United States a vehicle
that is not insured.
e Having a driver or vehicle out-of-service rate of
50 percent or more based upon at least three
inspections occurring within a consecutive 90-
day period (FMCSA 2001).
Under the Proposed Action Alternative, FMCSA would
begin enforcing the NHTSA requirement that all CMV
operating in the United States, including Mexican
vehicles, bear a label certifying their compliance with
the FMVSS on their date of manufacture. Mexican
vehicle manufacturers have stated that Mexican CMV
have been built to meet FMVSS standards since 1994
(FMCSA 2001k); however, applying a label to signify
this is not required for sale in Mexico and has been
—,.-
75
voluntary thus far. It is estimated that about 130,000 of
the 400,000 trucks and buses that are operating on
Mexican Federal roads were built after 1994 (FMCSA
2001h). FMCSA inspectors would check for the
FMVSS label during their normal inspection process
and would enforce violations of the requirement
through a notice of violation and a fine. FMCSA
expects that the enforcement of this existing NHTSA
requirement would not affect total inspection numbers
or substantially change inspection procedures. The
only measurable change would be to increase the
duration of inspections by approximately 5 seconds
while inspectors verified the authenticity of a FMVSS
label (FMCSA e-mail 2001).
FMCSA anticipates that manufacturers will retrofit
labels for existing vehicles that are in compliance with
the FMVSS regulations that existed at the time of
manufacture. FMCSA expects many Mexican vehicles
to already be in compliance with the FMVSS; however,
a small portion of carriers may not be able to bring
their vehicles into compliance. As a result, FMCSA
expects that only a small number of Mexico-domiciled
CMC will be compelled to reduce operations due to the
implementation of this alternative. It is assumed that
there will be no measurable effect from FMVSS
labeling on the total number of Mexican CMV operating
in the United States since those vehicles not bearing an
FMVSS label will be replaced by vehicles that do bear
an FMVSS label (FMCSA 2001h).
Under the Proposed Action Alternative, the trends in
the total number of inspections that were identified
under the No Action Alternative would continue. As a
result, FMCSA expects there would be 180,000
Mexican inspections in 2002 and 190,000 inspections in
76
_ The increase in Mexican vehicle inspections com-
an a Baseline Scenario would increase the total
number of CMV inspections to approximately 2.78
million inspections in 2002 and 2.89 million inspections
in 2003.
Commercial Vehicle Safety Alliance Decal — Proposed
eS .
Tele this requirement, al! Mexico-domiciled CMC
granted provisional operating authority pursuant to a
Form OP-1 (MX) application would be required to
maintain a current Commercial Vehicle Safety Alliance
(CVSA) decal on any of its CMV operated within the
United States. In addition, CMC granted permanent
OP-1 (MX) authority would be required to have a
current CVSA decal on their CMV for three years after
receiving permanent OP-1 (MX) authority. This re-
quirement would supplement the new safety none
toring program requirements discussed in the Propos
Action above. Under this alternative, a CVSA deca
would be affixed to each CMV that passed a Level I
inspection. (Refer to Appendix A for more oe
on the criteria used to determine whether a vehicle. as
passed an inspection). Consistent with CVSA guide-
lines, a CVSA certified government employee who had
successfully completed a CVSA approved training
program would be authorized to conduct the inspection
and affix the CVSA decal. The CVSA decal is valid for
three consecutive months.
SA has determined that this alternative
hive an each Mexico-domiciled CMC conducting
United States operations beyond the border zone to
submit each of its CMV toa Level I inspection four
times per year. In contrast, Mexican CMV tegen
inspected approximately 2 to 3 times per year under
77
the Baseline, No Action and Proposed Action Alterna-
tives. These additional inspections would occur at
existing inspection stations or other facilities where
inspections currently take place. For the purposes of
this PEA, we will assume that all of the inspections, and
thus all of the impacts, will occur within the United
States.
FMCSA estimates that the total number of Mexican
CMV inspections would be 230,000 in 2002. The addi-
tional 50,000 inspections on Mexican CMV are neces-
sary to meet the CVSA requiremert of four yearly
inspections for Mexican CMV operating pursuant to
OP-l(MX) authority. (For more information, refer to
Appendix A.) The calculation of the number of Mexican
CMV inspections under the CVSA requirement was
performed under the assumption that the average
number of inspections per Mexican CMV operating
pursuant to OP-2 authority would remain the same as
those under the Baseline, No Action and Proposed Ac-
tion Alternatives. Thus, the total number of CMV
inspections would be approximately 2.83 million in 2002
and 2.99 million in 2003.
FMCSA expects that this requirement would not affect
the total number of Mexican CMV operating in the
United States or the total amount of goods transported
between Mexico and the United States. The FMCSA
anticipates that some Mexican vehicles would fail to
meet the requirements for receiving a CVSA decal,
requiring those vehicles to be placed out of service or
denied entry into the United States. Vehicles places
out of service in the United States must be repaired
before continuing or returning to Mexico. However,
since this alternative would not affect total trade be-
tween the United States and Mexico, FMCSA expects
78
that other vehicles that successfully obtain Ry CVSA
decal would replace the Mexican CMV that fail to
receive one.
79
3. AFFECTED ENVIRONMENT
The Alternatives considered in this document relate to
the operation of Mexican CMV throughout the United
States, including specific operations occurring within
the United States-Mexico border zone. To assist the
F MCSA in understanding the potential environmental
impacts of these alternatives, this chapter describes the
environmental resources of the United States par-
ticular to the Proposed Action, as well as the environ-
mental resources that are specific to the border zone.
The resources that may be affected by the alternatives
are described as they exist today with the moratorium
in place. A description of the regulatory framework is
_ provided where relevant. In general, the transporta-
tion sector affects a range of environmental resources
through the initial construction of roads, the improve-
ment of these roads, and the operation of vehicles upon
the roadways. No new roadways or facilities are being
constructed for the Proposed Action so there will be no
construction impacts from this action. Specifically,
CMV can have impacts on these resources as the result
of normal operations, inspections and crashes. In order
to understand the scope of relevant resources that may
be affected by the specific alternatives described in this
PEA, descriptions of the United States highway trans-
portation system and the resources of the United
States and border zone are detailed.
3.1. DESCRIPTION OF UNITED STATES HIGHWAY
TRANSPORTATION SYSTEM
This section describes the current state of the United
States Highway Transportation System, inciading its
layout, some programs that are in place to protect
United States resources, and traffic volumes of CMV.
80
In this section only, CMV are defined as a single-unit, 2-
axle, 6-tire or more truck, or a combination truck with
either a single trailer or multiple trailers. CMV use the
highways in the United States as a means to transport
products throughout the country. The general highway
corridors travel predominantly east-west or north-
south and are broken down by rural and urban areas
and then by the number of lanes for each roadway. In
both rural and urban areas across the United States,
more than half of all miles driven are on 2-lane road-
ways with the next largest number of miles traveled on
four-lane highways. Most of these lanes are 12 feet
wide.
On rural interstates, principal arterials, and minor arte-
rials, CMV traffic comprises from 0.4 to 42 percent of all
traffic volume, with an average volume of 14.9 percent.
The majority of miles traveled in these rural areas are
on roads with an average traffic volume of under 5,000
vehicles per day. Within three of the four border
States, CMV traffic comprises more than the national
average. Specifically, CMV traffic accounts for ap-
proximately 17 percent of all rural traffic in Arizona,
New Mexico, and Texas, and approximately 14 percent
of all rural traffic in California (OHPI 1996). On urban
interstates, freeways and expressways, principal arteri-
als, and minor arterials, CMV traffic comprises from 0.2
to 20.6 percent of all traffic volume with an average
volume of 7.8 percent. The majority of miles traveled in
these urban areas are on roads with an average traffic
volume between 10,000 and 20,000 vehicles per day.
Only one of the four border States experiences CMV
traffic volume above the national average for urban
areas. Specifically, CMV traffic accounts for approxi-
mately 12 percent of all urban traffic in Arizona, 7
81
percent in California and Texas, and 6 percent in New
Mexico (OHPI 1996).
Highway corridors traverse through some protected
resources areas such as national and state parks, wet-
lands and waterways, and nature preserves. Guadalupe
Mountains National Park in Texas has route 62/180
running through it, while routes 118 and 385 travel
through Big Bend National Park in Texas. White
Sands National Monument in New Mexico has route 70
running through it, while route 85 travels through
Organ Pipe Cactus National Monument in Arizona.
Amistad National Recreation Area on the Texas/
Mexico border has route 90 passing directly through it.
Wetlands such as those in South Carolina, and agricul-
tural resources such as those in Nebraska also have
highways passing through them. The FHWA runs the
Federal Lands Highway Program roads that serves
both tourism and recreational travel, protects and
enhances the natural resources in these lands, provides
sustained economic development in rural areas, and
provides Native Americans with needed transportation
access (FHWA 2001).
The FHWA administers a coordinated Federal lands
program consisting of forest highways, public land
highways, park roads and parkways, refuge roads, and
Indian reservation roads. This program funds more
than 90,000 miles of federally-owned and public author-
ity-owned roads, which serve Federal lands. They
work with many different agencies such as the Bureau
of Indian Affairs, Bureau of Land Management, Bureau
of Reclamation, Department of Defense, Federal Avia-
tion Administration, Federal Railroad Administration,
Federal Transit Administration, Military Traffic Man-
agement Command, National Park Service, State and
82
vernments, United States Amy Corps of Engi-
ee Gan States Fish and Wildlife Service, and
United States Forest Service, to help with the pre-
servation of the land and its resources while at —-
same time, providing roadways for both personal —
and the transportation of goods across the Unite
States (FHWA 2001).
3.2. DESCRIPTION OF UNITED STATES AND
BORDER ZONE RESOURCES
ile the proposed actions have national scope, many
of the peed impacts could be focused in the border
zone. Thus, it is important to look at both the resources
of the entire United States as well as the border zone
resources in this Chapter. The Southwest region en-
compassing the border zone is the primary area —_
tially impacted by the Proposed Action. The bo =
region, defined as a 100-kilometer band on both sides -
the border, encompasses four United States States an
six Mexico States, with approximately 6.2 million
people in the United States and 4.3 million people in
Mexico. Both general and border zone resources that
could be affected by the proposed actions are described
below. Primary resources that have the potential to
directly impacted are transportation, public _ an
safety, air quality, noise, and socioeconomics. The alter-
natives examined in this environmental assessment
relate directly to the aforementioned resources and will
be assessed in detail in Chapter 4. It is recognized that
impacts to these primary resources may result in sec-
ondary impacts to other resources, such as, hazardous
materials, solid waste, topography and geology, biologi-
cal resources, invasive species, endangered species,
water resources, cultural, 4(f) and farmland resources,
83
and visual resources. Therefore, these resources are
discussed in this Chapter.
3.2.1 Transportation
United States Resources
The United States transportation system carries over 4
trillion passenger miles and 3.7 trillion ton-miles of
freight every year, generated by more than 260 million
people and 6 million businesses. Medium- and heavy-
duty vehicles play a large role in moving consumer and
commercial goods throughout the United States, using
the highway infrastructure. Details of the highway
system have been discussed Section 3.1.
The United States economy encompasses several re-
gional economies with major links to international
markets. CMC transport freight both within the United
States and throughout North America. Between 1997
and 2000, annual imports from Mexico, by weight,
increased from 23.99 million to 30.40 million United
States Short Tons. This represents an average annual
growth rate of approximately 9 percent. Over the past
4 years, CMV have carried approximately 75 percent of
all imports from Mexico, as measured by weight (see
Figure 3-1). The efficient transport of freight is
essential to the economic prosperity of the nation, since
the national economy is highly evolved and no one re-
gion is independent of the goods and services provided
by other regions and external trade. The transporta-
tion of these goods is highly dependent on CMC and
other freight transporters. As a result, between 1975
and 1998, annual vehicle miles traveled (VMT) by CMV
in the United States more than doubled—from 81 bil-
lion VMT to 196 billion VMT (DOT 2001).
84
Figure 3-1: Mexico Imports into the United States
between 1997 and 2000, as Measured by Weight (United
States Short Tons)
= — - > Wim ee |
»*
TA
3 *
3
wares §
zat
“Het
zy
my ne ag
>
.
Peer etx
oo *
7
--:
* i pa SH 3992: ’
2
°
'
8 Tn oe + ie '* oo
Source: United States Customs Service
85
Border Zone Resources
Increases in trade between the United States and Mexico
have generated a significant increase in cross border traffic
in recent years (see Figure 3-2). This additional traffic has
placed a strain on the local and regional transportation
infrastructure and created congestion at border crossings.
The dramatic growth in population along the border spurred
by a significant increase in industrialization in the region has
also contributed to the increased traffic. Another reason for
delays and congestion is the inadequacy and poor condition
of roads connecting the ports of entry (DOT 2001). This
congestion can create a public safety hazard for local traffic
and pedestrians, as well as increase pollution in border
towns and cities. Additionally, delays due to congestion to
and from ports of entry can have a potential impact on firms
that rely on supplies and finished goods being shipped and
processed quickly across the border.
Figure 3-2: Trend in the Total Number of Northbound Truck
Crossings into the United States from Mexico between FY
1992 and 2000.
5
$.520.0d¢
4
@A.l Cther Ports
ONoosles az
Bcalexico ca
SBrownsviiie 1D
Bridsigo tx
Octay Messe. ca +
Gell Peso 7x
@Blarede 7»
1992 1993 1994 isos 1996 iss” 1998 999 220¢
Fiecel Year
Source: United States Customs Service
86
The growth in cross border trade between the United
States and Mexico has been led by the maquiladora, or
export assembly industry. Products from maquiladoras
as well as fresh produce arrive at the border through
five major Mexico highways. While some ports of entry
process a high volume of commercial traffic, others are
underutilized. According to United States Customs,
approximately 91 percent of the all CMV crossing into
the United States from Mexico between fiscal years
1992 and 2000 took place at seven of the 23 ports of
entry that handle commercial traffic. During this
period, the average annual growth rate in the number
of northbound crossings was approximately 9 percent.
The top seven ports of entry based on traffic volume
are Laredo, Otay Mesa, E] Paso, Brownsville, Hidalgo,
Nogales, and Calexico (several of these ports have more
than one bridge or crossing) (see Figure 3-3). At some
ports of entry, such as the Juarez-Lincoln Bridge in
Laredo, Texas and Otay Mesa, Califomia, there were as
many as 2,500 commercial vehicle crossings during one
day in 1998 (GAO 2000). Two-thirds of the total north-
bound CMV traffic crosses through three communities:
Laredo and El] Paso, Texas, and San Diego, California
(See Table G-2) (GAO 2000).
87
Figure 3-3: Change in Northbound Truck Crossings at
the Seven Busiest Ports of Entry for FY 1992, 1996 and
2000.
ou a6
Saher ot Gereemeued Pract Cees:
. . >. > . ;
Source: United States Customs Service
There are several issues affecting United States-
Mexico border crossing inspections that result in in-
creased congestion (GAO 2000). Increased CMV traffic
and associated congestion at some border crossings that
were built in downtown areas, such as, Laredo and E]
Paso, Texas, have taxed border community infrastruc-
ture. Lines of trucks, many of which are empty,
waiting to enter the United States from Mexico can run
up to several miles during peak time-periods in the
early to late afternoon. These idling trucks contribute
to air pollution and safety concerns in some major bor-
der zone cities. At the same time, crossings in remote
and less accessible areas along the border zone, such as,
88
and less accessible areas along the border zone, such as,
Sasabe, Arizona or Roma, Texas, are underutilized and
less congested. According to United States Customs
records, nearly 47 percent of the 3.6 million trailers that
crossed the border in fiscal year 1998 from Mexico were
empty. United States Customs officials at the ports of
entry must still process all trucks, empty or not, to
ensure compliance with United States laws and regu-
lations (GAO 2000).
Commercial traffic congestion at the United States-
Mexico border is primarily caused by the high volume
of vehicles at ports of entry that must be processed
through facilities that have physical and technological
limitations and comprehensive Federal and State pro-
cesses. The specific factors that contribute to border
congestion include: difficulties resulting from multiple
checks at the border by various Federal and State
agencies; inspection agency staffing shortages at some
border crossings; limited use of automated management
information systems for processing commercial traffic;
poor port of entry planning among United States in-
spection agencies and limited coordination between
United States and Mexico governments; and the num-
ber of inspections that a single CMV can be subject to
(e.g., some CMV undergo up to six separate secondary
inspections after inspection by United States Customs)
(GAO 2000). There are approximately two hundred
sites where certified inspection stations exist through-
out the Border States.
3.2.2 Public Health and Safety
United States Resources
The primary mission of the FMCSA is to save lives and
reduce injuries by preventing truck and bus crashes.
The FMCSA establishes standards for CMC operations,
89
vehicles, and drivers to ensure the safety of t
on the United States roadways. The vont pol et
both safety and hazardous material standards and
monitors CMC operations that may affect the safety of
workers. FMCSA programs ensure safety in CMC
operations by targeting high-risk carriers and CMV
drivers, improving safety information systems and
CMV technologies, strengthening CMV equipment and
operating standards, and increasing safety awareness.
The FMCSA works closely with Federal, State, and
local enforcement agencies, the CMC industry, labor
safety interest groups, and others to accomplish their
safety goals. Crashes involving CMV are the largest
safety concern in the CMC industry. In the United
States in 1999, there were approximately 100,000 fatal
and injury crashes involving heavy trucks—including
4,560 fatal crashes and 95,000 injury crashes. Approxi-
— 800, or 18 ~~ of these fatal crashes oc-
urred in na, Californi
anon a rnia, New Mexico, and Texas
Between 1975 and 1998, annual VMT for large trucks i
the United States more than dutied~Oen 81 viilion
VMT to 196 billion VMT. Despite this increase in large
truck VMT, both the fatality rate and total crash inci-
dent rate per 100 million VMT have decreased. In 1998
there were 2.3 large truck crash fatalities for every 100
million VMT, down from 3.5 fatalities in 1988. The total
number of fatalities, however, increased over the same
period. In 1999, there were 5,380 fatalities in crashes
involving large trucks, compared to 4,483 in 1975. On
average, more than 80 percent of those killed in large
truck crashes were non-motorists or occupants of other
vehicles involved in the crash (US DOT 2001).
90
Enhanced alertness and work readiness are important
requirements for CMV drivers. FMCSA’s Motor Car-
rier Research and Technology Program aims to im-
prove CMC safety and economic performance through
research in the following areas: Driver Safety Perfor-
mance, Commercial Safety Performance, Carrier Com-
pliance and Safety, Safety Systems and Technologies,
and Cross-Cutting Safety Initiatives. Specific project
levels include such areas as crash causation and profil-
ing, regulatory evaluation and reform, compliance and
enforcement, hazardous materials safety and cargo tank
integrity, commercial driver training and performance
management, driver alertness and fatigue, driver physi-
cal qualification, and car-truck proximity (United
States DOT 2001).
The Intelligent Vehicle Initiative portion of the Intelli-
gent Transportation Systems Program aims to acceler-
ate the development and commercialization of in-vehicle
safety systems, such as, collision avoidance and driver
condition monitoring. These complement other ele-
ments of the ITS Program, such as electronic clearance,
onboard safety monitoring systems, automated admini-
strative processes, and hazardous materials incident
response. While the ITS Program addresses all high-
way vehicles, the safety implications for CMV are im-
portant since significant losses can result from crashes
involving these vehicles (United States DOT 2001).
Although highway crash fatality rates have declined,
new strategies are continually being developed to pro-
vide further reductions. The centerpiece of the
FMCSA’s Commercial Motor Vehicle Safety Action
Plan is to reduce fatalities involving trucks and buses
by half by 2010. While crashes involving CMV are
frequently found not to be the fault of the operator of
91
the truck, advanced technological systems installed in
CMV, together with carefully targeted investments
will continue to reduce CMV-related fatalities. One of
the major challenges likely to be faced in the near term
will not be technology advances—such as crash avoid-
ance systems, early hazard detection, countermeasures
for driver fatigue, and roadside brake examination on
moving CMV—but adoption and implementation of
these new technologies in the CMV industry to improve
safety. Among the longer range solutions are crash-
worthiness requirements to reduce fatalities in truck/
car collisions (United States DOT 2001).
United States DOT’s technical goal for CMV is to
reduce both the likelihood and severity of cashes
involving CMV. Particular goals related to CMV crash
avoidance include safer retreaded tires, better traction
control and stopping capabilities, capabilities such as
detecting and responding to driver fatigue, avoiding
collisions involving “blind spots” and other situations
involving car/CMV proximity and possibly supplement-
ing brakes during emergency deceleration events.
Goals related to severity of crashes involving CMV
include better tank integrity, particularly for hazardous
materials, as well as greater crash compatibility with
light vehicles. United States DOT plans to refine tech-
nical goals for CMV on an on-going basis through the
investigation of crashes nationwide, particularly those
that may be related to emerging trends or tech
(United States DOT 2001). g r technologies
One method of measuring the safety of truckin -
tions in the United States is by ra ee the clues
with which carriers’ vehicles are placed out-of-service
by safety inspectors due to the discovery of a serious
safety defect. Reports by the United States Depart-
92
ment of Transportation’s Office of the Inspector Gen-
eral (OIG 1999) have indicated that the rate at which
Mexican CMV have been placed out of service has
fallen over the past few years from 44 percent in FY
1997 to 37 percent in FY 2000. The OIG also noted that
the out-of-service rate for United States CMV in-
spected nationwide in FY 2000 was 24 percent. This
data indicates that while the overall level of safety of all
Mexican CMV may be improving, the safety of United
States CMV may still be better when compared an
average of both drayage and long-haul Mexican CMV.
However, as will be discussed in the Border Zone
Resources section below, the out-of-service rate for the
Mexican long-haul fleet is 19 percent, making it com-
parable to that of the United States long-haul fleet.
Border Zone Resources
Public safety issues are also a concern in the border
zone since all Mexican CMV either operate in, or pass
through, the border zone while operating in the United
States. Increased traffic concerns in the border zone
relate to the need for appropriate measures to safe-
guard public health and safety. Two of the Border
States—Arizona and New Mexico—report a larger per-
centage of CMV crashes involving fatalities than the
United States as a whole, whereas California and Texas
remained below the United States national average.
Ports of entry are expected to be the places most
affected by an increase in trade. Some resulting traffic
safety concerns include the high congestion in the area
and the lack of emergency lanes. According to a 1993
report by the University of Texas at El Paso, crash
rates and fatality rates in the Texas border counties
were noticeably higher than those rates compiled for
the entire State of Texas. This implies traffic and
93
safety problems are more abundant at the border than
throughout the rest of the State (Pezo, R. and Cook, G.
1993).
In May 2001, the OIG published a Interim Report on
the Status of Implementing the North America Free
Trade Agreement’s Cross Border Trucking Provisions
detailing its recent audit of DOT’s oversight of Mexico-
domiciled CMC. As a part of this audit, the OIG
analyzed Federal and State inspection data maintained
by the DOT for FY 1998. This data revealed that some
Mexico-domiciled CMC had been subjected to a safety
inspection beyond the border zone, in many cases while
operating beyond the scope of their Form OP-2 author-
ity. The OIG looked specifically at the number of
Mexican CMV inspected in each of three areas: within
the border zone, within the Border States but beyond
the border zone, and beyond the Border States. In
addition, the OIG reported the number of times that
vehicles were placed out-of-service after an inspector
identified a serious safety violation. This OIG report
indicated that, the out-of-service rate for Mexican CMV
inspected within the border zone was 41%, within the
border states but beyond the border zone was 32% and
beyond the border states was 19%.
3.2.3 Air Quality
United States Resources
Air quality is technically defined as the concentration of
air pollutants present within the air mass of a region
and is measured in parts per million (ppm) or micro-
grams per cubic meter (mg/m*). Air pollutants are a
significant cause for concern for both public health and
welfare. Public health refers to the physiological effect
on a human being while public welfare refers to such
concerns as property damage and aesthetic effects. In
94
response to both of these concerns, Federal regulations
have been developed for six criteria pollute <s identi-
fied by EPA. These pollutants are considered harmful
to public health and the environment. The six criteria
pollutants that EPA established under the National
Ambient Air Quality Standards (NAAQS) are carbon
monoxide (CO), lead (Pb), nitrogen dioxide (NO,), ozone
(O,), sulfur dioxide (SO,), and particulate matter (PM).
Nitrogen dioxide reacts in the atmosphere over the
course of several hours and is often referred to simply
as nitrogen oxides or NQ,.
In measuring air quality, the ambient concentration of
pollutants is compared with the EPA’s NAAQS. Table
C-1 in Appendix C shows the primary and secondary
standards used to regulate air pollution in the United
States. If the concentration of any of these pollutants is
less than or equal to their NAAQS standard, the air
quality is considered in attainment of the standards.
However, if the concentrations are greater than the
NAAQS standard, the air quality for a region is con-
sidered to be in non-attainment of the NAAQS. Non-
attainment areas are regions where the air pollution
levels persistently exceed national air quality standards
established by the Clean Air Act of 1967. The EPA is
continuously monitoring ambient air quality within
counties and air basins in the United States. A detailed
description of the criteria pollutants and their sources,
current status and potential health effects is presented
in Appendix C and Table C-2.
As shown in Table C-3 in Appendix C, mobile sources in
the United States produce the highest or the second
highest levels of emissions for several pollutants. The
4 42 U.S.C. § 112.
95
transportation sector continues to be a significant
source of air pollutants at the national level. The table
shows that motorized vehicles are responsible for most
of the total CO (77.1 percent) and NO, (55.5 percent)
emissions in the United States. Close to half (47.0
percent) of the total VOCs (volatile organic compounds)
and a quarter of total PM-emissions are also due to
motor vehicles. The contributions of Pb and SO. from
vehicles are relatively less, partly due to their reduced
presence in transportation fuels (Pb has essentially
been eliminated from gasoline). This table clearly
indicates that the transportation sector is a significant
source of pollutant emissions in the United States.
Table C-4 shows the actual emissions from on-road
vehicles separated into categories. The values reveal
that although light-duty gasoline vehicles are generally
the most significant source of pollution, heavy-duty
gasoline and diesel vehicles are also significant. Indeed
for NOx emissions, diesel vehicles are the most signifi-
cant category. Heavy-duty diesel vehicles as a whole
produce far more NO, and PM emissions than light-
duty vehicles. This is due to greater mass emissions
from heavy-duty diesel vehicles that have only been
regulated in the last decade (EPA 2001).
Total United States Emissions and Concentration
Trends
Since 1970, the transportation sector as a whole has
made tremendous progress in reducing emissions of
criteria and hazardous air pollutants. Transportation
related emissions of some pollutants, such as carbon
monoxide (CO) and unburned hydrocarbons (HC), have
been reduced by more than half since the 1970s (DOT
2001). However, heavy-duty surface vehicles, including
CMV, have not made as rapid overall progress as cars
96
and light trucks. PM emissions from diesel engines ~
still great despite recent attempts to regulate a
engines. Greenhouse gas (GHG) emissions aeons &
transportation sector have continued to grow rapl ra
with the transportation sector currently a ~4
about a quarter of United States GHG emissions yoo
2001). Consistent with recent economic growth, ~e
emissions from CMC have been growing very quic y.
Medium-and heavy-duty trucks contribute significantly
to urban air pollution.
For the 1989-1998 period, most of the criteria —
experienced significant decreases in both et re
atmospheric concentrations in the United States. able
C-5 shows that with the exception of NO,, emissions
and atmospheric concentrations for all of the oe
pollutants decreased during the study period. It shou :
be noted that CO emissions decreased even ——
total VMT increased by 57 percent during this perio ;
The decrease in Pb levels is the result of the = :
legislation that eliminated Pb from gasoline and — e
its usage in industrial applications. Almost no oe
occurred for NO, emissions while concentration .
decreased. VOC emissions decreased while ‘
concentrations decreased slightly. 0, levels
(concentrations) for urban and suburban areas
decreased more than those in rural areas. oe
decreases in PM,, concentrations are also supplement
with the findings that urban and suburban —
experienced higher concentration levels. With most 0
the emissions occurring near power plants, including
coal-burning plants, the emissions and re
levels for SO, both decreased during the study —"
These decreases are generally attributed to 2
97
controls that EPA implemented as part of their Acid
Rain Program in 1995 (EPA 2001).
Mobile sources are generally classified under two broad
categories: on-road and off-road. As their names imply,
on-road vehicles are primarily used on paved roads
while off-road vehicles include those used for construc-
tion, farming, lawn and garden, and airport services.
The on-road engines can be further categcrized into
light-duty vehicles and heavy-duty vehicles with the
weight difference changing at approximately 8,500 lbs
gross vehicle weight (GVW) (National Research Coun-
cil 2000). The light-duty category includes both passen-
ger vehicles and light-duty trucks. Heavy-duty vehi-
cles include both trucks and buses and are further
categorized into gasoline and diesel-powered vehicles
(light-duty vehicles are primarily fueled by gasoline).
Table C-6 shows estimated pollutant emissions due to
these different fuel types. The emission estimates were
calculated using EPA’s MOBILES and PARTS models.
In general, using gasoline appears to produce more
emissions of CO, NO,, and VOCs while burning diesel
appears to produce more NO, and PM emissions. The
contributions from diesel emissions of N O, and SO, are
significant compared to those for light-duty gasoline
vehicles. Unlike light-duty vehicles, heavy-duty vehi-
cles cover a much broader GVW range. Heavy-duty
vehicle engines are certified on a special dynamometer
since truck and bus engines can be placed in many
different types of chassis and weight classes. Urban
buses have their own emission certification standards.
Until recently emissions standards for heavy-duty
vehicles were less stringent than those for light-duty
vehicles.
98
CMV are not presently required to participate in an
Emissions Inspection and Maintenance Program, simi-
lar to that which is required for cars under 8,500 lbs.
GVW. This is because there has been little research
into Emissions Testing of CMV due to the high cost of
chassis dynamometers. The University of West Vir-
ginia has conducted some chassis emissions testing of
urban buses in New York City powered by diesel,
natural gas, and hybrid electric, but more research is
required. Some states have random roadside inspec-
tions to check for the opacity or smoke levels of CMV.
Opacity/smoke testing is also in its initial stages and
requires more work.
The factors that affect emissions from vehicles include:
engine design and operating features; driver operating
and maintenance practices; fuel composition; add-on
pollution control technology; and environmental condi-
tions (Cooper 1994). Engine design and operating fea-
tures include air-to-fuel ratio or stoichiometry, com-
pression ratio, and timing of the spark relative to the
stroke of the piston. Driver operations are also impor-
tant factors since no matter how well an engine is de-
signed, it must be operated properly: the vehicle should
not be overloaded, proper fuels should be used, and the
vehicle must be maintained. Fuel composition is impor-
tant because impurities in the fuel will be emitted into
the environment. Sulfur is commonly used as an
example of an impurity that directly forms S0,. Add-on
pollution control technology affects emissions after the
pollutants have been formed. The technology emission
controls such as the catalytic converter, refueling vapor
canisters, positive crankcase ventilation and exhaust
gas recirculation among others.
99
In many areas, transportation planning is subjected to
the conformity process. States that fail to meet EPA
standards for criteria pollutants must develop State
Implementation Plans (SIPs) detailing how they will
reach these standards. Transportation emissions must
remain within levels projected by State Implementa-
tion Plans that, when implemented will lead to attain-
ment of air quality standards. Transportation plans and
programs, therefore, must conform to air quality goals.
N either the transportation conformity nor general con-
formity rules apply to the Proposed Action. Transpor-
po ry = projects in non-attainment
ce areas are funded or
the FHWA and the Federal Transit pr ead
must meet the requirements of EPA’s transportation
conformity provisions.” Since these FMCSA actions do
not involve such approvals or funds, they are not sub-
= ? the provisions of the transportation conformity
Border Zone Resources
In considering air pollution from CMV, NO, and PM- 10
are the pollutants of main concern, because of the
significant contribution of CMV to national emissions
for these two pollutants, compared to the contribution
of CMV to national-emissions for the other criteria
pollutants described above and in Appendix C. NO, is
predominantly created by high-compression internal
combustion engines, and is a precursor to ozone (the
main component of smog). On the other hand, PM-10 is
produced in the fine soot particles that are emitted by
diesel engines (ICF, 2001). Therefore, these are the
8 Titles 23 and 49, U.S.C.
© 40 C.F.R., parts 51 and 93.
100
primary pollutants of concern that are dispelled from
heavy-duty trucks and buses.
Among the seven counties containing the busiest
border crossings with Mexico, Santa Cruz County in
Arizona, and Cameron, Hidalgo, and Webb Counties in
Texas, are considered “in attainment” for both PM-10
and ozone (see Table 3-1). EPA classified El Paso,
Texas as a Moderate PM-10 non-attainment area and a
serious ozone non-attainment area. San Diego, Cali-
fornia is in attainment of the NAAQS for PM-10 but is
classified by EPA as serious non-attainment for ground
level ozone. Imperial County, California 1s a Moderate
PM-10 non-attainment area and is no longer classified
as a non-attainment area for ozone, but it Is In a
Maintenance status for the ozone standard.
Table 3-1: NAAQS Attainment Status for United States
- Mexico Border Counties
COUNTY PM-10 OZONE
San Diego, CA In Attainment Serious Non-
Attainment
Imperial, CA Moderate Non- Attainment | In Attainment”
Santa, Cruz, AZ | In Attainment In Attainment
Cameron, TX In Attainment In Attainment
Hidalgo, TX In Attainment In Attainment
Webb, TX Moderate Non-Attainment | Serious Non-
Attainment
E! Paso, TX Moderate Non-Attainment | Serious Non-
Attainment
* Currently in a Maintenance status under Section 185A of the
Clear Air Act
Source: EPA 2001
In the highway corridor from San Antonio, Texas to
Monterrey, Mexico, 84% of NO, and 90% of the other
pollutants are caused by trucking freight. This corridor
101
contains the Laredo border crossing, and is in Webb
County, Texas. Also in this same region, it was dis-
covered that 6.3% of trade-related CO emissions is due
to truck idling. Another corridor where comparable air
quality measurements were conducted is the highway
that spans Tucson, AZ to Hermosillo, Mexico (ICF
2001). This corridor passes through the border city of
Nogales, AZ in Santa Cruz County. While Santa Cruz
County, AZ is in attainment for PM-10 and ozone, at
the city level, Nogales, is in non-attainment status for
PM-10 under the United States EPA standards (ICF,
2001).
3.2.4 Noise
Sound, an element of all human and natural environ-
ments, becomes noise when it is unwanted, unneces-
sary, or does not convey useful information. Noise is
further defined as sound that disrupts normal activities
or that diminishes the quality of the surrounding
environment.
Generally, sound is measured in decibels (dB), which is
a logarithmic scale that condenses the large range of
sounds that make up the range of human hearing.
Using this scale, an increase of 3 dB represents a dou-
bling of sound energy, but this difference is barely de-
tectable by the human ear. An increase in sound en-
ergy by 10 dB is approximately equivalent to a doubling
in perceived loudness (USAF 1978). An “A-weighted”
scale, termed dBA, places more emphasis on some
frequencies while de-emphasizing others because the
human hearing range is more sensitive to certain fre-
quencies.
Acceptable noise levels for residential areas, as stated
by the United States Department of Housing and
102
Urban Development guidelines, are 65 dBA during the
day and 55 dBA at night. For perspective, 55 dBA is
the approximate sound level of a quiet conversation ata
distance of about 10 feet. Sixty-five dBA is typical of
what might be heard in a large, fairly busy store, from a
vacuum cleaner at 10 feet, or from heavy truck-
dominated highway traffic at about 250 feet. Ambient
noise levels in specific communities or locations will
vary depending on certain variables, including the
amount of development in an area and the population
density of an area. For example, rural settings are
typically about 40-48 dBA, while downtown urban
settings are typically about 72-80 dBA. Sensitive
receptors, such as residential areas, schools, hospitals,
churches or any facility requiring mostly quiet condi-
tions, can be affected by noise. Similarly, noise levels
also affect workers in workplaces where noise can affect
performance or cause hearing damage, and noise-
sensitive wildlife species.
An important characteristic of sound is that its energy
levels decrease as distance from the sound source
increase. Typically, doubling the distance between a
sound source and sound receiver results in four times
less sound energy at the receiver than at the source.
The noise attenuation of a line-source of noise, such as a
highway, is less than that of a point source, such as a
piece of machinery. This attenuation occurs because QQ)
a sound wave spreads out as it leaves its origin, which
results in a more diffuse wave at the receiver and (2)
the atmosphere absorbs some of the sound energy as
the wave passes through it. Other factors can also
influence this attenuation, including wind, temperature,
humidity, terrain, and infrastructure (USAF 1978).
103
The transportation sector continues to generate consi-
derable noise pollution. Achieving DOT’s environ-
mental goals will entail reducing the number of people
exposed to significant transportation-related noise, in-
cluding that from CMV. Although changes in design
and operation of transportation facilities is a primary
strategy, reduced noise emissions from vehicles such as
trucks and buses will contribute significantly toward
this objective (United States DOT 2001).
3.2.5 Socioeconomics
United States Resources
Socioeconomics includes the social and economic portion
of the human environment and includes information on
the demographics (population and employment), income
and housing of the major geographic regions through-
out the United States. External events, such as changes
in public policy, have the potential to directly or indi-
rectly affect these different areas of the human environ-
ment. Social consequences, such as adverse health
effects from poor air quality conditions, have an effect
on the quality of life enjoyed by residents in a com-
munity. Economic consequences, such as increases in
health care costs, have an effect on business activities,
market structure, and circulation of goods within and
betweer. communities. Size, distribution, and composi-
tion of a community’s population will be affected by
demographic consequences, such as out-migration of
firms and labor due to increased business costs.
A community is defined partly by behavior patterns,
which individuals or groups of individuals have in
common. Daily social interactions, use of local facilities,
participation in local organizations, and involvement in
activities that satisfy the population’s economic and
social needs are ways of expressing these “community”
104
behavior patterns (FHWA 1996). In order to measure
how well a community supports its demands, the re-
sponse to changing environmental, social, economic, and
demographic conditions must be examined. The Bureau
of the Census provides information on demographics,
income, public finances and local housing availability.
Border Zone Resources
On February 11, 1994, the President issued Executive
Order (EO) 12898, entitled “Federal Actions to Address
Environmental Justice in Minority Populations and
Low-Income Populations.” The Presidential Transmit-
tal Memorandum that accompanies EO 12898 states
that, “Each Federal agency shall analyze the environ-
mental effects, including human health, economic and
social effects, of Federal actions, including effects on
minority communities and low-income communities,
when such analysis is required by NEPA.” In order to
identify any potential impacts on environmental justice
and thereby comply with this Presidential order, this
PEA identifies socioeconomic characteristics within the
border zone.
According to 2000 census data, 4.8 million people live in
the seven counties adjacent to the busiest border
crossings, with over half of those people living in San
Diego County adjacent to the Otay Mesa crossing. Of
the people living adjacent to these seven crossings, 50%
identified themselves as being of Hispanic or Latino
origin (83% if San Diego County is excluded) (see Fig-
ure 3-4). San Diego County had a median household
income of $39,427 and the remaining counties had
median household incomes that ranged from $20,034 to
$26,515 (see Figure 3-5). During the same period, the
17 42 U.S.C. Section 43321, et seq.
105
total United States population was 281.4 million with
12.5% identifying themselves as being of Hispanic or
Latino origin. The median household income through-
out the United States was $37,005. Six of the border
counties have a median household income under 72% of
the national average. In addition, one county has a
Hispanic/Latino population that is twice the proportion
of the national average, while the remaining six coun-
ties have Hispanic/Latino populations that are 5.5 to 7.5
times the national average (United Stat
Bureau 2001). . —
106
Figure 3-4. General population versus Hispanic Popu-
lation in border crossing cities.
3000000
2500000
2000000
1$00000
@ Genera! Populauon
@ Hispanic Popuiauor
1000000
500000
Border crossing location
Source: United States Census 2001
Figure 3-5. Percent Hispanic Population compared to
average income for border crossing cities and the
United States total.
100 . “7 $45,000
90 6 — == $40.000
° 7 as _—
70 : $30,000
oil a st
o i no sc = a i
—_—
pe —- $20.
re a $15,000
> i i = $10,000
aan mE + $5.00
tl = oe Le
cee FY & es SL —an
- s » < Pood -* x x atipatin
Vv »~ * = < o -
z Border crossing location
Source: United States Census 2001
107
In addition to Hispanic and Latino communities within
the border region, there are also many Native Ameri-
can groups that live within the Border States. Among
these are Piman, Yuman, Dene, Shoshonean, and
Pueblo peoples.
3.2.6 Other resources
The remaining potential areas of concern: Topography
and Geology, Biological Resources, Hazardous Materi-
als, Solid Wastes, Water Resources, Cultural, 4(f), and
Farmland Resources, Visual Resources, Endangered
Species, and Invasive Species are dismissed from
further analysis. These areas of potential concern were
dismissed after considering any potential impacts and—
depending on the specific resource—based on a re-
source consumption analysis developed that provided
basis for findings of minimal potential impacts. These
calculations are found in Appendix D. In addition to the
minimal resource consumption, the determination to
drop these resources was based on the fact that the
administrative, audit, and roadside inspections will
occur at existing facilities thus causing no new con-
struction, and FMCSA does not expect an increase in
the total number of CMV operating in the United
States. Based on these assumptions, FMCSA has con-
cluded that there will be no more than insignificant
impacts and minimum increases in resource consump-
tion and waste disposal. All of the areas of potential
concern were analyzed individually and the reasons for
dropping these resources from further environmental
analysis are explained briefly below and in Appendix D.
Hazardous Materials
Hazardous substances and wastes are solid, liquid or
gaseous materials that because of their quantity, con-
108
centration or physical, chemical or infectious charac-
teristics may:
e Cause or significantly contribute to an increase
in mortality or an increase in irreversible
illness, and
e Pose a substantial present or potential hazard
to human health, or the environment when im-
properly treated, stored, transported, or dis-
posed of, or otherwise managed.”
Hazardous materials are designated by the Secretary of
the Department of Transportation as posing an unrea-
sonable risk to health, safety, property and environ-
ment. Hazardous materials include hazardous sub-
stances, hazardous wastes, marine pollutants, elevated
temperature materials, and materials identified by the
DOT in the Code of Federal Regulations.” Those haz-
ardous materials that are specifically regulated by the
DOT are Class 1 Explosives, Class 2 Gases, Class 3
Flammable Liquids, Class 4 Flammable Solids, Class 5
Oxidizing Substances; Organic Peroxides, Class 6
Poisonous (Toxic) and Infectious Substances, Class 7
Radioactive Material, Class 8 Corrosives, and Class 9
Miscellaneous Dangerous Goods.
Carriers must register with the DOT to transport
hazardous materials. Under existing regulations, haz-
ardous materials must be properly classed, described,
packaged, marked, labeled, placarded and in condition
for shipment as required or authorized. Transporters
of hazardous waste must meet strict guidelines, must
18 Resource Conservation and Recovery Act of 1976 (RCRA)
codified at 42 U.S.C. §§ 6901 et seq.
19 49 CFR § 172.101, and 49 CFR, Part 173.
109
obtain an EPA identification number, and are not al-
lowed to accept shipments without complete manifests.
Waste cannot be stored for more than 10 days without
becoming subject to storage facility regulations and
only facilities with RCRA permits must be used.
Transporters of hazardous waste must follow the EPA
and DOT regulations concerning spilling and reporting
of spills, and must retain records for a minimum of two
years (FMCSA 20014).
The gas, oil, and other fluids in the engine that are
required for vehicles to operate properly are not regu-
lated by the FMCSA. If and when crashes occur that
cause the release of these substances, the proper
authorities are notified and these authorities will per-
form any necessary clean-up activities.
The Proposed Action will not alter the existing regula-
tory framework governing the transportation or stor-
age of hazardous materials. The main impacts on
hazardous materials would be related to public health
and safety, since crashes may involve CMV transport-
ing hazardous materials. As will be discussed in
Chapter 4, the Proposed Action may result in a bene-
ficial impact to public safety. As a result, there should
be negligible impacts with regard to hazardous materi-
als. For more information on hazardous materials, see
Appendix D.
Solid Waste
The generation of solid waste is not exclusive to any
industry. However, the transportation sector will not
be generating any significant additional solid waste as a
result of FMCSA’s implementation of the rules set
forth in this document.
110
The transportation sector generates a good deal of
solid waste that is either recycled or ends up in
landfills. Discarded vehicles and vehicle parts and
abandoned infrastructure, such as pavement from high-
ways or rail line materials, are the major elements of
transportation solid wastes. Much of the material gen-
erated by scrapping automobiles and trucks is currently
recycled. Further changes in CMV, such as even
greater use of recycled and recyclable materials would
complement these efforts.
The Proposed Action does not entail new construction
or an increase in the overall total number of CMC
operating in the United States. In addition, FMCSA
has concluded that there will be no more than a minimal
increase in resource consumption and waste disposal.
Since the Proposed Action does not significantly affect
the generation of solid wastes, this resource will not be
further analyzed in Chapter 4.
Topography and Geology
Topographic and geologic structures have the potential
to be impacted with the construction of highways,
roads, and associated facilities, including inspections
stations. Construction has the potential to change the
face of the land as blasting occurs with the creation of
buildings and roads. However, all CMV operations
conducted pursuant to the Proposed Action will occur
using existing highways and roadway systems. In addi-
tion, all currently planned roadside inspections would
be carried out at existing facilities. Therefore, no
construction activities directly related to the proposed
rulemakings are expected.
Since the proposed actions do not involve activities
with the potential to significantly affect topographical
111
or geological resources, these resources will not be
further analyzed in Chapter 4.
Biological Resources
The biological resources of the United States consist of
all terrestrial and aquatic flora and fauna and the
habitats in which they occur. They may be divided into
the following seven major terrestrial climatic regions:
tundra, taiga, temperate deciduous forest, grassland,
desert, scrub forest, and tropical forest. The United
States Fish and Wildlife Service (United States FWS)
has jurisdiction over terrestrial and freshwater ecosys-
tems and the National Marine Fisheries Service
(NMFS) has jurisdiction over marine ecosystems. Pro-
tected biological resources include sensitive habitats
and species under consideration for listing (candidates
species) or listed as threatened or endangered by the
United States FWS or by individual States. Sensitive
habitats include areas protected by legislation or are
habitats of concern to regulating agencies. Endangered
species are presented in a separate subsection.
Some of the habitats that characterize the border zone
are desert, aquatic, riparian, and mountainous regions.
As previously mentioned, the border zone contains
sections of both the Chihuahuan and Sonoran Deserts.
Rainfall in the desert is less than 10 inches per year and
grasses cannot survive. This arid region is subject to
the most extreme weather fluctuations in the country.
During the day, intense sunlight raises air and soil
temperatures very high and at night the heat is lost
rapidly. Most desert animals are active primarily at
night or during the brief periods in early morning and
late afternoon when the heat is not so intense. The
major scrub forests of the United States are the chap-
arral and coastal sage scrub communities in western
112
California. The region is dominated by shrubs and
multi-stemmed trees that are typically less than 16 feet
in height. Both types of communities are subject to
periodic fires.
Aquatic ecosystems in the border zone consist of fresh-
water and coastal ecosystems, and wetlands ecosy-
stems. These resources support a variety of wildlife.
The Rio Grande (spanning Texas, New Mexico, and
Colorado) and the Colorado River (running through
California and Arizona) are the major rivers within the
border zone. Additionally, to the east, the Texas bor-
der zone touches the Gulf of Mexico. Wetlands areas
are located in transitional areas of freshwater and salt-
water. Riparian ecosystems encompass all terrestrial
areas of relatively high soil moisture that occur
adjacent to rivers and streams. These areas would
exist adjacent to the Rio Grande, Colorado River, and
the many tributaries to those rivers. Riparian zones
provide habitat for a wide variety of species. In arid to
semi-arid regions, riparian zones often support the only
significant forest habitats and harbor a large number of
wildlife species in comparison to surrounding uplands.
The biological resources of riparian areas are extremely
sensitive to changes in water level, neighboring
vegetation, and sedimentation.
Construction activities have the potential to result in
habitat destruction. However, all CMV operations
conducted pursuant to the Proposed Action will occur
using existing highway and roadway systems. In addi-
tion, all currently planned roadside inspections would
be carried out at existing facilities. Therefore, no con-
struction activities directly related to the proposed
rulemakings are expected.
113
Air quality and noise impacts may also effect biological
resources, some of which are very sensitive to the
quality of air and the amount of noise in their habitats.
However, as will be discussed in Chapter 4, air quality
and noise impacts associated with the proposed actions
are minor.
Since the Proposed Action does not involve activities
with the potential to significantly effect biological re-
sources, these resources will be further analyzed in
Chapter 4.
Invasive Species
In 1999 Former President Clinton issued Executive
Order 13112 on invasive species. This EO directs
Federal agencies to identify agency actions that affect
the status of invasive species. An invasive species is an
alien species whose introduction does or is likely to
cause economic or environmental harm or harm to
human health. This introduction does not have to be
intentional and most introductions are unintentional.
The transportation sector has contributed to such
unintentional introductions. For example, the Asian
Longhorn Beetle was first discovered in the United
States in 1996. This species is believed to have arrived
in the United States via cargo ships from Asia. The
Asian Longhorn Beetle is a threat because it eats the
insides of a living tree until it weakens and dies. Since
its 1996 discovery in the Northeastern United States,
thousands of trees have been infested. There are many
other examples, including the introduction of the brown
tree snake in Guam by military aircraft during World
War II. This species of snake, originally from New
Guinea, has eliminated 9 of 11 species of native birds
and has caused major power outages by climbing on
power lines and into electronic equipment. Introduced
114
plants are not any less of a prob
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.