[Federal Register Volume 78, Number 218 (Tuesday, November 12, 2013)]
[Notices]
[Pages 67445-67449]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-26939]


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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 
Road Machinery Co SA de CV with U.S. Department of Transportation 
(USDOT) number 2091627, 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 in the United States on the United States-Mexico 
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 November 22, 2013.

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.

FOR FURTHER INFORMATION CONTACT: Marcelo Perez, FMCSA, North American 
Borders Division, 1200 New Jersey

[[Page 67446]]

Avenue SE., Washington, DC 20590-0001. Telephone (202) 510-0211 or 
email [email protected]. Office hours are from 8:00 a.m. to 4:30 
p.m., e.t., Monday through Friday, except Federal Holidays.

SUPPLEMENTARY INFORMATION: 

Public Participation and Request for Comments

    FMCSA encourages you to participate by submitting comments and 
related materials. 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 Web site. Comments received after the comment closing date will 
be included in the docket, and will be considered to the extent 
practicable.

Submitting Comments

    If you submit a comment, please include the docket number (FMCSA-
2011-0097), indicate the specific question to which each comment 
responds, and provide a reason for each suggestion or recommendation. 
You may submit your comments and material online or by fax, mail, or 
hand delivery, but please use only one of these means. FMCSA recommends 
that you include your name and a mailing address, an email address, or 
a phone number in the body of your document so the Agency can contact 
you if it has questions regarding your submission.
    To submit your comment online, go to http://www.regulations.gov and 
type ``FMCSA-2011-0097'' in the search box. Locate this document in the 
list and click on ``Comment Now!'' If you submit your comments by mail 
or hand delivery, submit them in an unbound format, no larger than 
8[frac12] by 11 inches, suitable for copying and electronic filing. If 
you submit comments by mail and would like to know that they reached 
the facility, please enclose a stamped, self-addressed postcard or 
envelope.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov and 
type ``FMCSA-2011-0097'' in the search box and locate this document in 
the list. Next, click ``Open Docket Folder'' and click on the title of 
the document you wish to view. If you do not have access to the 
Internet, you may view the docket online by visiting the Docket 
Management Facility in Room W12-140 on the ground floor of the DOT West 
Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 
a.m. and 5 p.m., e.t., Monday through Friday. 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.
    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.

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 conducted of motor carriers domiciled in 
Mexico that are granted authority to operate beyond the border 
commercial zones. This notice serves to fulfill this requirement.
    FMCSA is publishing for public comment the data and information 
relating to one PASA that was completed on August 8, 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.
    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

[[Page 67447]]

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., [INSERT MX NUMBER]);
    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 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

[[Page 67448]]

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 that has completed the PASA.

                                 Table 1
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 Row number in Tables 2, 3 and 4
   of the Appendix to today's       Name of carrier        USDOT No.
             notice
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1...............................  Road Machinery SA              2091627
                                   de CV.
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                                                 Table 2--Successful Pre-Authorization Safety Audit (PASA) Information (see also Tables 3 and 4)
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                                             Column C--                                                                                                                                Col. J--
 Column A--Row No.     Column B--Name of      U.S. DOT     Column D--FMCSA        Column E--PASA          Column F--PASA        Col. G--PASA         Col. H--FMCSA      Col. I U.S.      U.S.
                            carrier             No.          register No.            initiated              completed              results              register          drivers      vehicles
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1..................  Road Machinery Co SA       2091627  MX-729757            July 23, 2012.........  August 16, 2012......  Pass..............  October 23, 2013.....            1            1
                      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 C--                       Column K--Passed
Column A--Row No.   Column B--Name of     U.S. DOT    Column D--FMCSA     verification of 5     Column L--If no,      Column M--Passed     Column N--Passed   Column O--Passed  Column P--Passed
                         carrier            No.         register No.      elements (yes/no)   which element failed    phase 1 factor 1     phase 1 factor 2   phase 1 factor 3  phase 1 factor 4
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1................  Road Machinery Co        2091627  MX-729757........  YES.................  N/A.................  YES................  YES................  YES.............  YES
                    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--
                                                                                                   Column S--   Column T--                    Name of
                                   Column C--    Column D--                                       Number U.S.  Number U.S.    Column U--     controlled
 Column A--Row   Column B--Name     U.S. DOT       FMCSA      Column Q--Passed  Column R--Passed    vehicles     vehicles     Controlled     substances
      No.          of carrier         No.       register No.  phase I factor 5  phase I Factor 6   inspected   issued CVSA    substance     and alcohol
                                                                                                                  decal       collection     collection
                                                                                                                                              facility
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1.............  Road Machinery        2091627  MX-729757      YES.............  YES.............            1            1  U.S..........  J 2
                 Co SA de CV.                                                                                                               Laboratories
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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 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 was 
determined that Road Machinery Co SA de CV had affiliations not 
identified in the original application. This was noted during the 
Agency's vetting and documented as an attachment to the PASA. Road 
Machinery Co SA de CV submitted for the record a letter confirming the 
relationship with a U.S.-domiciled motor carrier, Road Machinery, LLC. 
In addition, Road Machinery acknowledged an affiliation with Mitsui & 
Company USA, Inc. which holds a broker authority. During its vetting of 
the application and the PASA, FMCSA confirmed that Road Machinery Co SA 
de CV did not establish or use the affiliated companies to evade FMCSA 
regulation in continuing motor carrier operations, or for the purpose 
of avoiding or hiding previous non-compliance or safety problems.
    Road Machinery Co SA de CV was issued a Certificate of Registration 
to operate wholly within the commercial zones and municipalities along 
the southern international border in 2010 and had a safety audit 
conducted on its operations in the United States on February 23, 2011. 
The company passed the safety audit but problems in its compliance were 
noted on the report.
    FMCSA is aware that its data systems show that Road Machinery Co SA 
de CV had a safety suspension of its Certificate to operate within the 
commercial zones

[[Page 67449]]

and municipalities along the southern international border from October 
27, 2011, to March 5, 2012. However, the Agency determined that, due to 
a FMCSA system problem, a ``Notice of Expedited Action'' was not, in 
fact, sent to Road Machinery Co SA de CV. Therefore, because the 
applicant was not notified and was not afforded the opportunity to 
submit a written response demonstrating immediate corrective action, 
the safety suspension was not enforced during roadside inspections. 
Road Machinery Co SA de CV was made aware of this issue on February 28, 
2012, and Road Machinery Co SA de CV submitted a written response 
demonstrating its corrective action on March 2, 2012, that was accepted 
by the Agency and the suspension was removed.
    During the PASA, the Agency found that Road Machinery Co SA de CV 
had one driver subject to controlled substance and alcohol testing 
while operating in the United States. Road Machinery Co SA de CV had 
pre-employment tested the driver and enrolled the driver in a third 
party random testing pool prior to the completion of the PASA and was 
in substantial compliance with the testing requirements of 49 CFR Parts 
40 and 382. However, it was determined that, in 2011, Road Machinery Co 
SA de CV failed to have a controlled substance testing program for its 
commercial zone operations, as required. Road Machinery Co SA de CV's 
failure to test a driver prior to performing a safety sensitive 
function and failing to implement a random controlled substance and 
alcohol testing program in the previous year was noted as a deficiency 
on the PASA, but is not grounds to fail the PASA.
    Deficiencies in Road Machinery Co. SA de CV's driver qualification 
file were identified during the PASA, as the file did not contain the 
driver's certification of violations and a complete history with 
previous employers.
    In addition, on at least one occasion the motor carrier failed to 
ensure that drivers are not permitted to drive a vehicle without the 
cargo properly distributed and adequately secured. However, these 
issues, while noted as violations on the PASA, are not grounds for the 
motor carrier to fail the PASA.
    Subsequent to the PASA, Road Machinery provided evidence of a valid 
controlled substance testing program and a corrective action plan to 
ensure that the company had rectified the deficiencies found in its 
drug and alcohol testing program and driver qualification records. 
Because the cargo securement violation was only noted one time, the 
Agency did not request corrective action in this area.
    Based on Road Machinery's safety record and corrective action plan, 
FMCSA will proceed in issuing provisional operating authority for 
participation in the pilot program.

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: November 1, 2013.
Anne S. Ferro,
Administrator.
[FR Doc. 2013-26939 Filed 11-8-13; 8:45 am]
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