# Joint Appendix Vol I — Department of Transportation v. Public Citizen > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0706%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix Vol I - **Published:** January 1, 2004 - **Citation:** 541 U.S. 752 ## 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 hazard [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0706%3A06. Public record. Not legal advice.