[Federal Register Volume 77, Number 177 (Wednesday, September 12, 2012)]
[Notices]
[Pages 56255-56258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-22457]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No FMCSA-2011-0097]


Pilot Program on NAFTA Trucking Provisions

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice; request for public comment.

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SUMMARY: FMCSA announces and requests public comment on data and 
information concerning the Pre-Authorization Safety Audit (PASA) for 
Transportes Monteblanco SA de CV which applied to participate in the 
Agency's long-haul pilot program to test and demonstrate the ability of 
Mexico-domiciled motor carriers to operate safely in the United States 
beyond the municipalities on the international border or the commercial 
zones of such municipalities. This action is required by the ``U.S. 
Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq 
Accountability Appropriations Act, 2007'' and all subsequent 
appropriations.

DATES: Comments must be received on or before September 24, 2012.

ADDRESSES: You may submit comments identified by Federal Docket 
Management System Number FMCSA-2011-0097 by any one of the following 
methods: Federal eRulemaking Portal: Go to http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility, (M-30), U.S. Department 
of Transportation (DOT), 1200 New Jersey Avenue SE., West Building, 
Ground Floor, Room 12-140, Washington, DC 20590-0001.
     Hand Delivery: Same as mail address above, between 9 a.m. 
and 5 p.m., ET, Monday through Friday, except Federal holidays. The 
telephone number is 202-366-9329.
    To avoid duplication, please use only one of these four methods. 
All submissions must include the Agency name and docket number for this 
notice. See the ``Public Participation'' heading below for instructions 
on submitting comments and additional information.
    Note that all comments received, including any personal information 
provided, will be posted without change to http://www.regulations.gov. 
Please see the ``Privacy Act'' heading below.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov at any time or to 
Room W12-140 on the ground floor of the DOT Headquarters Building at 
1200 New Jersey Avenue SE., Washington, DC, 20590, between 9 a.m. and 5 
p.m., ET, Monday through Friday, except Federal holidays.
    Privacy Act: Anyone is able to search the electronic form of all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
Privacy Act System of Records Notice for the DOT Federal Docket 
Management System published in the Federal Register on January 17, 2008 
(73 FR 3316), or you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.
    Public Participation: The http://www.regulations.gov Web site is 
generally available 24 hours each day, 365 days each year. You can get 
electronic submission and retrieval help and guidelines under the 
``help'' section of the http://www.regulations.gov Web site. Comments 
received after the comment closing date will be included in the docket, 
and will be considered to the extent practicable.

FOR FURTHER INFORMATION CONTACT: Marcelo Perez, FMCSA, North American 
Borders Division, 1200 New Jersey Avenue SE., Washington, DC 20590-
0001. Telephone (512) 916-5440 Ext. 228; email [email protected].

SUPPLEMENTARY INFORMATION:

Background

    On May 25, 2007, the President signed into law the U.S. Troop 
Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability 
Appropriations Act, 2007 (the Act), (Pub. L. 110-28, 121 Stat. 112, 
183, May 25, 2007). Section 6901 of the Act requires that certain 
actions be taken by the Department of Transportation (the Department) 
as a condition of obligating or expending appropriated funds to grant 
authority to Mexico-domiciled motor carriers to operate beyond the 
municipalities in the United States on the United States-Mexico 
international border or the commercial zones of such municipalities 
(border commercial zones).
    On July 8, 2011, FMCSA announced in the Federal Register [76 FR 
40420] its intent to proceed with the initiation of a U.S.-Mexico 
cross-border long-haul trucking pilot program to test and demonstrate 
the ability of Mexico-domiciled motor carriers to operate safely in the 
United States beyond the border commercial zones as detailed in the 
Agency's April 13, 2011, Federal Register notice [76 FR 20807]. The 
pilot program is a part of FMCSA's implementation of the North American 
Free Trade Agreement (NAFTA) cross-border long-haul trucking provisions 
in compliance with section 6901(b)(2)(B) of the Act. FMCSA reviewed, 
assessed, and evaluated the required safety measures as noted in the 
July 8, 2011, notice and considered all comments received on or before 
May 13, 2011, in response to the April 13, 2011, notice. Additionally, 
to the extent practicable, FMCSA considered comments received after May 
13, 2011.
    In accordance with section 6901(b)(2)(B)(i) of the Act, FMCSA is 
required to publish in the Federal Register, and provide sufficient 
opportunity for public notice and comment, comprehensive data and 
information on the PASAs of motor carriers domiciled in Mexico that are 
granted authority to operate beyond the border commercial zones. This 
notice fulfills that requirement.
    FMCSA is publishing for public comment the data and information 
relating to one PASA that was completed on June 17, 2012. FMCSA 
announces that the Mexico-domiciled motor carrier in Table 1 
successfully completed the PASA. Notice of this completion was also 
published in the FMCSA Register.

[[Page 56256]]

    Tables 2, 3 and 4 all titled (``Successful Pre-Authorization Safety 
Audit (PASA) Information'') set out additional information on the 
carrier(s) noted in Table 1. A narrative description of each column in 
the tables is provided as follows:
    A. Row Number in the Appendix for the Specific Carrier: The row 
number for each line in the tables.
    B. Name of Carrier: The legal name of the Mexico-domiciled motor 
carrier that applied for authority to operate in the United States 
(U.S.) beyond the border commercial zones and was considered for 
participation in the long-haul pilot program.
    C. U.S. DOT Number: The identification number assigned to the 
Mexico-domiciled motor carrier and required to be displayed on each 
side of the motor carrier's power units. If granted provisional 
operating authority, the Mexico-domiciled motor carrier will be 
required to add the suffix ``X'' to the ending of its assigned U.S. DOT 
Number for those vehicles approved to participate in the pilot program.
    D. FMCSA Register Number: The number assigned to the Mexico-
domiciled motor carrier's operating authority as found in the FMCSA 
Register.
    E. PASA Initiated: The date the PASA was initiated.
    F. PASA Completed: The date the PASA was completed.
    G. PASA Results: The results upon completion of the PASA. The PASA 
receives a quality assurance review before approval. The quality 
assurance process involves a dual review by the FMCSA Division Office 
supervisor of the auditor assigned to conduct the PASA and by the FMCSA 
Service Center New Entrant Specialist designated for the specific FMCSA 
Division Office. This dual review ensures the successfully completed 
PASA was conducted in accordance with FMCSA policy, procedures and 
guidance. Upon approval, the PASA results are uploaded into the FMCSA's 
Motor Carrier Management Information System (MCMIS). The PASA 
information and results are then recorded in the Mexico-domiciled motor 
carrier's safety performance record in MCMIS.
    H. FMCSA Register: The date FMCSA published notice of a 
successfully completed PASA in the FMCSA Register. The FMCSA Register 
notice advises interested parties that the application has been 
preliminarily granted and that protests to the application must be 
filed within 10 days of the publication date. Protests are filed with 
FMCSA Headquarters in Washington, DC. The notice in the FMCSA Register 
lists the following information:
    a. Current registration number (e.g., MX-123456);
    b. Date the notice was published in the FMCSA Register;
    c. The applicant's name and address; and
    d. Representative or contact information for the applicant.

    The FMCSA Register may be accessed through FMCSA's Licensing and 
Insurance public Web site at http://li-public.fmcsa.dot.gov/, and 
selecting FMCSA Register in the drop down menu.
    I. U.S. Drivers: The total number of the motor carrier's drivers 
approved for long-haul transportation in the United States beyond the 
border commercial zones.
    J. U.S. Vehicles: The total number of the motor carrier's power 
units approved for long-haul transportation in the United States beyond 
the border commercial zones.
    K. Passed Verification of 5 Elements (Yes/No): A Mexico-domiciled 
motor carrier will not be granted provisional operating authority if 
FMCSA cannot verify all of the following five mandatory elements. FMCSA 
must:
    a. Verify a controlled substances and alcohol testing program 
consistent with 49 CFR part 40.
    b. Verify a system of compliance with hours-of-service rules of 49 
CFR part 395, including recordkeeping and retention;
    c. Verify the ability to obtain financial responsibility as 
required by 49 CFR 387, including the ability to obtain insurance in 
the United States;
    d. Verify records of periodic vehicle inspections; and
    e. Verify the qualifications of each driver the carrier intends to 
use under such authority, as required by 49 CFR parts 383 and 391, 
including confirming the validity of each driver's Licencia Federal de 
Conductor and English language proficiency.
    L. If No, Which Element Failed: If FMCSA cannot verify one or more 
of the five mandatory elements outlined in 49 CFR part 365, Appendix A, 
Section III, this column will specify which mandatory element(s) cannot 
be verified.
    Please note that for items L through P below, during the PASA, 
after verifying the five mandatory elements discussed in item K above, 
FMCSA will gather information by reviewing a motor carrier's compliance 
with ``acute and critical'' regulations of the Federal Motor Carrier 
Safety Regulations (FMCSRs) and Hazardous Materials Regulations (HMRs). 
Acute regulations are those where noncompliance is so severe as to 
require immediate corrective actions by a motor carrier regardless of 
the overall basic safety management controls of the motor carrier. 
Critical regulations are those where noncompliance relates to 
management and/or operational controls. These regulations are 
indicative of breakdowns in a carrier's management controls. A list of 
acute and critical regulations is included in 49 CFR part 385, Appendix 
B, Section VII.
    Parts of the FMCSRs and HMRs having similar characteristics are 
combined together into six regulatory areas called ``factors.'' The 
regulatory factors are intended to evaluate the adequacy of a carrier's 
management controls.
    M. Passed Phase 1, Factor 1: A ``yes'' in this column indicates the 
carrier has successfully met Factor 1 (listed in part 365, Subpart E, 
Appendix A, Section IV(f)). Factor 1 includes the General Requirements 
outlined in parts 387 (Minimum Levels of Financial Responsibility for 
Motor Carriers) and 390 (Federal Motor Carrier Safety Regulations--
General).
    N. Passed Phase 1, Factor 2: A ``yes'' in this column indicates the 
carrier has successfully met Factor 2, which includes the Driver 
Requirements outlined in parts 382 (Controlled Substances and Alcohol 
Use and Testing), 383 (Commercial Driver's License Standards; 
Requirements and Penalties) and 391 (Qualifications of Drivers and 
Longer Combination Vehicle (LCV) Driver Instructors).
    O. Passed Phase 1, Factor 3: A ``yes'' in this column indicates the 
carrier has successfully met Factor 3, which includes the Operational 
Requirements outlined in parts 392 (Driving of Commercial Motor 
Vehicles) and 395 (Hours of Service of Drivers).
    P. Passed Phase 1, Factor 4: A ``yes'' in this column indicates the 
carrier has successfully met Factor 4, which includes the Vehicle 
Requirements outlined in parts 393 (Parts and Accessories Necessary for 
Safe Operation) and 396 (Inspection, Repair and Maintenance) and 
vehicle inspection and out-of-service data for the last 12 months.
    Q. Passed Phase 1, Factor 5: A ``yes'' in this column indicates the 
carrier has successfully met Factor 5, which includes the hazardous 
material requirements outlined in parts 171 (General Information, 
Regulations, and Definitions), 177 (Carriage by Public Highway), 180 
(Continuing Qualification and Maintenance of

[[Page 56257]]

Packagings) and 397 (Transportation of Hazardous Materials; Driving and 
Parking Rules).
    R. Passed Phase 1, Factor 6: A ``yes'' in this column indicates the 
carrier has successfully met Factor 6, which includes Accident History. 
This factor is the recordable accident rate during the past 12 months. 
A recordable ``accident'' is defined in 49 CFR 390.5, and means an 
accident involving a commercial motor vehicle operating on a public 
road in interstate or intrastate commerce which results in a fatality; 
a bodily injury to a person who, as a result of the injury, immediately 
received medical treatment away from the scene of the accident; or one 
or more motor vehicles incurring disabling damage as a result of the 
accident requiring the motor vehicle to be transported away from the 
scene by a tow truck or other motor vehicle.
    S. Number U.S. Vehicles Inspected: The total number of vehicles 
(power units) the motor carrier is approved to operate in the United 
States beyond the border commercial zones that received a vehicle 
inspection during the PASA. During a PASA, FMCSA inspected all power 
units to be used by the motor carrier in the pilot program and applied 
a current Commercial Vehicle Safety Alliance (CVSA) inspection decal, 
if the inspection is passed successfully. This number reflects the 
vehicles that were inspected, irrespective of whether the vehicle 
received a CVSA inspection at the time of the PASA decal as a result of 
a passed inspection.
    T. Number U.S. Vehicles Issued CVSA Decal: The total number of 
inspected vehicles (power units) the motor carrier is approved to 
operate in the United States beyond the border commercial zones that 
received a CVSA inspection decal as a result of an inspection during 
the PASA.
    U. Controlled Substances Collection: Refers to the applicability 
and/or country of origin of the controlled substance and alcohol 
collection facility that will be used by a motor carrier that has 
successfully completed the PASA.
    a. ``US'' means the controlled substance and alcohol collection 
facility is based in the United States.
    b. ``MX'' means the controlled substance and alcohol collection 
facility is based in Mexico.
    c. ``Non-CDL'' means that during the PASA, FMCSA verified that the 
motor carrier is not utilizing commercial motor vehicles subject to the 
commercial driver's license requirements as defined in 49 CFR 383.5 
(Definition of Commercial Motor Vehicle). Any motor carrier that does 
not operate commercial motor vehicles as defined in Sec.  383.5 is not 
subject to DOT controlled substance and alcohol testing requirements.
    V. Name of Controlled Substances and Alcohol Collection Facility: 
Shows the name and location of the controlled substances and alcohol 
collection facility that will be used by a Mexico-domiciled motor 
carrier who has successfully completed the PASA.

                                 Table 1
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 Row number in Tables 2, 3 and 4 of
   the Appendix to  today's notice       Name of  carrier      USDOT No.
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1...................................  Transportes                1059694
                                       Monteblanco SA de CV.
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                                          Table 2--Successful Pre-Authorization Safety Audit (PASA) Information
                                                                [See also Tables 3 and 4]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Column D--
                                     Column B-- Name of   Column C--     FMCSA    Column E--  Column F--  Column G--  Column H--  Column I--  Column J--
       Column A-- Row number               Carrier          US DOT     register      PASA        PASA        PASA        FMCSA    US drivers      US
                                                            number      number     initiated   completed    results    register                vehicles
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.................................  Transportes              1059694   MX-443410      5/8/12      6/7/12        Pass     8/31/12           4           2
                                     Monteblanco SA de
                                     CV.
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                                                              Table 3--Successful Pre-Authorization Safety Audit (PASA) Information
                                                                                    [See also Tables 2 and 4]
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                                                                   Column D--
                                   Column B-- Name of  Column C--     FMCSA      Column K-- Passed     Column L-- If no,      Column M--        Column N--        Column O--        Column P--
      Column A-- Row number             carrier          US DOT     register     verification of 5   which element failed   Passed phase 1    Passed phase 1    Passed phase 1    Passed phase 1
                                                         number      number     elements  (yes/no)                             factor 1          factor 2          factor 3          factor 4
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1...............................  Transportes........     1059694   MX-443410  Yes.................  None................  Pass............  Pass............  Pass............  Pass
                                  Monteblanco........
                                  SA de CV...........
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                                                  Table 4--Successful Pre-Authorization Safety Audit (PASA) Information as of September 9, 2011
                                                                                    [See also Tables 2 and 3]
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                                                                                                                                                                              Column V-- Name of
                                                           Column C--  Column D--  Column Q--                      Column S-- Number  Column T-- Number      Column U--           controlled
       Column A-- Row number          Column B-- Name of     US DOT       FMCSA      Passed     Column R-- Passed     US vehicles        US vehicles         Controlled         substances and
                                           carrier           number     register     phase I    phase I factor 6       inspected      issued cvsa decal       substance       alcohol collection
                                                                         number     factor 5                                                                 collection            facility
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1.................................  Transportes..........     1059694   MX-443410         N/A  Pass..............  2................  2................  US................  Laredo Examiners,
                                    Monteblanco..........                                                                                                                     Inc.
                                    SA de CV.............
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    In an effort to provide as much information as possible for review, 
the application and PASA results for this carrier are posted at the 
Agency's Web site for the pilot program at http://www.fmcsa.dot.gov/intl-programs/trucking/Trucking-Program.aspx. For carriers that 
participated in the Agency's demonstration project that

[[Page 56258]]

ended in 2009, copies of the previous PASA and compliance review, if 
conducted, are also posted. All documents were redacted so that 
personal information regarding the drivers is not released. Sensitive 
business information, such as the carrier's tax identification number, 
is also redacted. In response to previous comments received regarding 
the PASA notice process, FMCSA also posted copies of the vehicle 
inspections conducted during the PASA in the PASA document.
    A list of the carrier's vehicles approved by FMCSA for use in the 
pilot program is also available at the above referenced Web site.
    The Agency acknowledges that through the PASA process it determined 
that Transportes Monteblanco SA de CV has affiliations with additional 
companies. An attachment to the PASA provides information regarding 
these affiliations. During the carrier vetting and PASA process, FMCSA 
reviewed its records related to the affiliates, and confirmed that the 
companies are U.S.- domiciled motor carriers registered with FMCSA.
    FMCSA notes that Transportes Monteblanco SA de CV is affiliated 
with two companies: Transportes Monteblanco (US DOT number 1871386, an 
interstate motor carrier) and MG Alimentos Inc. (US DOT number 1442274, 
an intrastate motor carrier). While this information was not reflected 
on the carrier's application, it was noted during the Agency's vetting 
and documented during the PASA. Additionally, the Agency is aware that 
the operating authority associated with Transportes Monteblanco (US DOT 
number 1871386) was revoked on April 18, 2012, as a result of a lapse 
of insurance. The Agency notes that this carrier has been inspected 
three times since this date, but has not been cited for operating 
without authority. The Agency confirmed that the reason for this is 
that the carrier was transporting exempt commodities which do not 
require operating authority. The carrier filed evidence of insurance on 
April 26, 2012 and submitted the required reinstatement fee. FMCSA 
reinstated Transportes Monteblanco's (USDOT number 1871386) operating 
authority effective July 23, 2012, and it may now transport non-exempt 
commodities. FMCSA is aware that one of the affiliated companies, 
Transportes Monteblanco (USDOT number 1871386), an enterprise carrier, 
has a Safety Measurement System (SMS) alert in the fatigued driving 
(hours of service) Behavior Analysis and Safety Improvement Category 
(BASIC). While this is a matter of concern with respect to the safety 
performance of that carrier, the Agency has confirmed that Transportes 
Monteblanco SA de CV (USDOT number 1059694) was created to fulfill a 
separate business need and not to evade or conceal a negative safety 
performance history of the affiliated motor carriers. The Agency will 
continue monitoring the safety of the affiliated interstate motor 
carrier through SMS and will take action directly on the carrier, if 
appropriate.
    Therefore, we will not apply the SMS scores of the affiliated 
carriers to Transportes Monteblanco SA de CV when considering whether 
Transportes Monteblanco SA de CV has demonstrated that it is willing 
and able to comply with the safety regulations. The Agency reiterates 
that during the PASA, we determined that Transportes Monteblanco SA de 
CV has the systems in place to comply with the FMCSRs, including U.S. 
hours-of-service regulations.
    Lastly, it is noted that Transportes Monteblanco SA de CV currently 
has a 100 percent Driver out of service rate as a commercial zone 
carrier. This is based on the only two inspections completed within the 
preceding 24 months. Both inspections were conducted by FMCSA staff 
members on May 10, 2012 to verify the compliance of the vehicles and 
the drivers proposed to participate in the pilot program. During these 
inspections, the drivers were cited for failing to communicate in 
English. However, these drivers proposed for participation in the pilot 
program were retested for English language proficiency on May 31, 2012, 
and passed that evaluation.
    To date, no carriers have failed the PASA. The Act requires 
publication of data of only those carriers receiving operating 
authority, as failure to successfully complete the PASA precludes the 
carrier from being granted authority to participate in the long-haul 
pilot program. FMCSA will publish this information to show motor 
carriers that failed to meet U.S. safety standards.

Request for Comments

    In accordance with the Act, FMCSA requests public comment from all 
interested persons on the PASA information presented in this notice. 
All comments received before the close of business on the comment 
closing date indicated at the beginning of this notice will be 
considered and will be available for examination in the docket at the 
location listed under the ADDRESSES section of this notice. Comments 
received after the comment closing date will be filed in the public 
docket and will be considered to the extent practicable. In addition to 
late comments, the FMCSA will also continue to file, in the public 
docket, relevant information that becomes available after the comment 
closing date. Interested persons should continue to examine the public 
docket for new material.
    FMCSA notes that under its regulations, preliminary grants of 
authority, pending the carrier's showing of compliance with insurance 
and process agent requirements and the resolution of any protests, are 
publically noticed through publication in the FMCSA Register. Any 
protests of such grants must be filed within 10 days of publication of 
notice in the FMCSA Register.

    Issued on: September 5, 2012.
Anne S. Ferro,
Administrator.
[FR Doc. 2012-22457 Filed 9-11-12; 8:45 am]
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