Pilot Program on NAFTA Trucking Provisions, 38431-38435 [2013-15330]

Agencies

• Federal Motor Carrier Safety Administration
• DEPARTMENT OF TRANSPORTATION

[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 https://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 https://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 https://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 https://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 https://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 https://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 https://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]
------------------------------------------------------------------------
                      Name of carrier                         USDOT No.
------------------------------------------------------------------------
Sergio Tristan Maldonado dba Tristan Transfer..............      2348928
------------------------------------------------------------------------


                                          Table 2--Successful Pre-Authorization Safety Audit (PASA) Information
                                                                [See also Tables 3 and 4]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                         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
--------------------------------------------------------------------------------------------------------------------------------------------------------
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]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 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
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.............  Sergio Tristan        2348928  MX-None.......  Yes...........  None.........  Pass.........  Pass.........  Pass.........  Pass.
                 Maldonado dba
                 Tristan
                 Transfer.
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                          Table 4--Successful Pre-Authorization Safety Audit (PASA) Information
                                                                [See also Tables 2 and 3]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                          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
--------------------------------------------------------------------------------------------------------------------------------------------------------
1..............  Sergio Tristan         2348928  MX-None........          N/A  Pass...........            3            3  MX............  Laredo Urgent
                  Maldonado dba                                                                                                            Care.
                  Tristan Transfer.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    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 https://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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