The Crittenden Automotive Library

Pilot Program on NAFTA Trucking Provisions

Pilot Program on NAFTA Trucking Provisions

Anne S. Ferro
Federal Motor Carrier Safety Administration
November 12, 2013

[Federal Register Volume 78, Number 218 (Tuesday, November 12, 2013)]
[Notices]
[Pages 67445-67449]
From the Federal Register Online via the Government Printing 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 marcelo.perez@dot.gov. 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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