Pilot Program on NAFTA Trucking Provisions |
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Anne S. Ferro
Federal Motor Carrier Safety Administration
June 26, 2013
[Federal Register Volume 78, Number 123 (Wednesday, June 26, 2013)]
[Notices]
[Pages 38431-38435]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-15330]
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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).
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
Sergio Tristan Maldonado doing business as Tristan Transfer (Tristan)
with U.S. Department of Transportation (USDOT) number 2348928, 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 July 8, 2013.
ADDRESSES: You may submit comments identified by
Federal Docket Management System Number FMCSA-
[[Page 38432]]
2011-0097 by any one of the following methods:
Federal eRulemaking Portal: To submit your comment online,
go to http://www.regulations.gov and in the search box insert the
docket number ``FMCSA-2011-0097'' and click the search button. When the
new screen appears, click on the blue ``Comment Now!'' button on the
right hand side of the page. On the new page, enter information
required including the specific section of this document to which each
comment applies, and provide a reason for each suggestion or
recommendation.
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. If
you submit your comments by mail or hand delivery, submit them in an
unbound format, no larger than 8\1/2\ 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. All submissions must include the
Agency name and docket number for this notice. See the ``Public
Participation'' heading below for instructions on retrieving 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 and in
the search box insert the docket number ``FMCSA-2011-0097'' and click
``Search.'' Next, click ``Open Docket Folder'' and you will find all
documents and comments related to this notice. You may also go 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.
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.
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 the DOT
Privacy Act Statement for the Federal Docket Management System
published in the Federal Register on December 29, 2010 (75 FR 82132),
or you may visit http://www.gpo.gov/fdsys/pkg/FR-2010-12-29/pdf/2010-32876.pdf.
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 marcelo.perez@dot.gov.
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 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 November 20, 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
[[Page 38433]]
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--not yet
assigned);
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
[[Page 38434]]
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 that has completed the PASA.
Table 1
[Row number in Tables 2, 3 and 4 of the Appendix to today's notice]
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Name of carrier USDOT No.
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Sergio Tristan Maldonado dba Tristan Transfer.............. 2348928
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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-- Column E-- Column F-- Column H-- Column I-- Column J--
Column A--row No. Column B--name of US DOT No. Column D--FMCSA PASA PASA Column G--PASA FMCSA US drivers US vehicles
carrier register No. initiated completed results register
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1................ Sergio Tristan 2348928 MX-None......... 11/13/2012 11/20/2012 Pass............ 6/17/2013 2 1
Maldonado dba
Tristan Transfer.
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Table 3--Successful Pre-Authorization Safety Audit (PASA) Information
[See also Tables 2 and 4]
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Column K--
Column C-- Column D-- Passed Column L-- If Column M-- Column N-- Column O-- Column P--
Column A--row Column B--name US DOT No. FMCSA verification no, which Passed phase passed phase passed phase passed phase
No. of carrier register No. of 5 elements element 1 factor 1 1 factor 2 1 factor 3 1 factor 4
(yes/no) failed
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1............. Sergio Tristan 2348928 MX-None....... Yes........... None......... Pass......... Pass......... Pass......... Pass.
Maldonado dba
Tristan
Transfer.
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Table 4--Successful Pre-Authorization Safety Audit (PASA) Information
[See also Tables 2 and 3]
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Column V--name
Column Q-- Column S-- Column T-- Column U-- of controlled
Column A--row Column B--name of Column C-- Column D--FMCSA passed Column R-- number US number US controlled substances and
No. carrier US DOT No. register No. phase I passed phase I vehicles vehicles substance alcohol
factor 5 factor 6 inspected issued CVSA collection collection
decal facility
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1.............. Sergio Tristan 2348928 MX-None........ N/A Pass........... 3 3 MX............ Laredo Urgent
Maldonado dba Care.
Tristan Transfer.
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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 Sergio Tristan Maldonado had an affiliation not
identified in the original application. It was noted during the
Agency's vetting and documented as an attachment to the PASA. Sergio
Tristan Maldonado submitted for the record a letter explaining the
relationship with a Mexico-domiciled motor carrier, Maria Higinia
Tristan Maldonado dba Trujillo's Transfer (USDOT 1771021).
Maria Higinia Tristan Maldonado is the sister of Sergio Tristan
Maldonado. She currently employs him as a manager and operates the
vehicle and employs the two drivers that Sergio Tristan Maldonado plans
to use in the Pilot Program. During its vetting of the application and
the PASA, FMCSA
[[Page 38435]]
confirmed that Sergio Tristan Maldonado did not establish or use the
affiliated company to evade FMCSA regulation in continuing motor
carrier operations, or fail to disclose the affiliation for the purpose
of avoiding or hiding previous non-compliance or safety problems.
FMCSA reviewed the inspection records of the affiliated carrier,
Maria Higinia Tristan Maldonado dba Trujillo's Transfer, an OP-2
carrier. This affiliated company has Safety Measurement System (SMS)
scores that exceed the Behavioral Analysis and Safety Improvement
Categories (BASICs) thresholds in two areas: Driver Fitness and Vehicle
Maintenance. The Agency will be monitoring the safety of the affiliated
carrier through SMS and will take action directly on the carriers, if
appropriate.
Researching further, FMCSA reviewed a relationship that Maria
Higinia Tristan Maldonado dba Trujillo's Transfer has with a Mexico-
domiciled motor carrier, Maria Dolores Rosas Velazquez dba Transportes
Cel; USDOT 2161024, because Trujillo's Transfer vehicles
(including the vehicle Tristan Transfer plans to use in the Pilot
Program) were used by Transportes Cel in the past. According to a
statement provided by the Pilot Program applicant Sergio Tristan
Maldonado, Transportes Cel operated these vehicles for a period of time
under an agreement made between Trujillo's Transfer and Transportes
Cel. Sergio Tristan Maldonado has no affiliation with Transportes Cel.
Two of the three vehicles submitted for planned operation in the
Pilot Program, a 1995 U.S. manufactured Volvo, and a 1996 U.S.
manufactured International, were deemed ineligible for participation as
not able to meet EPA vehicle emissions standards required for the Pilot
Program.
The two approved drivers passed the English language proficiency
evaluation during the PASA.
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: June 18, 2013.
Anne S. Ferro,
Administrator.
[FR Doc. 2013-15330 Filed 6-25-13; 8:45 am]
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