2014-15936. Pilot Program on NAFTA Trucking Provisions

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA).

ACTION:

Notice.

SUMMARY:

FMCSA announces information concerning the Pre-Authorization Safety Audit (PASA) for Trans-Mex Inc., SA de CV (USDOT# 710381) 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 along the United States-Mexico international border or the commercial zones of such municipalities. This motor carrier did not successfully complete the PASA.

FOR FURTHER INFORMATION CONTACT:

Marcelo Perez, FMCSA, North American Borders Division, 1200 New Jersey Avenue SE., Washington, DC 20590-0001. Telephone [phone] Ext. 228; email [e-mail].

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 U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007 (the Act), FMCSA is required to publish 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 in the Federal Register to provide sufficient opportunity for public notice and comment. There is no requirement to provide information to the public on the motor carriers that failed the PASA, and, therefore, will not be granted authority to operate in the pilot program. However, FMCSA committed in previous notices to provide information on the motor carriers that did not pass the PASA.

The Mexico-domiciled motor carrier in Table 1 did not successfully complete the PASA.

Tables 2, 3 and 4 all titled (“Failed Pre-Authorization Safety Audit (PASA) Information”) set out additional information on the carrier 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 U.S. beyond the border commercial zones and was considered for participation in the long-haul pilot program.

C. U.S. DOT Number: The identification number assigned to the Mexico-domiciled motor carrier and required to be displayed on each side of the motor carrier's power units. If granted provisional operating authority, the Mexico-domiciled motor carrier will be required to add the suffix “X” to the ending of its assigned U.S. DOT Number for those vehicles approved to participate in the pilot program.

D. FMCSA Register Number: The number assigned to the Mexico-domiciled motor carrier's operating authority as found in the FMCSA Register.

E. PASA Initiated: The date the PASA was initiated.

F. PASA Completed: The date the PASA was completed.

G. PASA Results: The results upon completion of the PASA. The PASA receives a quality assurance review before approval. The quality assurance process involves a dual review by the FMCSA Division Office supervisor of the auditor assigned to conduct the PASA and by the FMCSA Service Center New Entrant Specialist designated for the specific FMCSA Division Office. This dual review ensures the successfully completed PASA was conducted in accordance with FMCSA policy, procedures and guidance. Upon approval, the PASA results are uploaded into the FMCSA's Motor Carrier Management Information System (MCMIS). The PASA information and results are then recorded in the Mexico-domiciled motor carrier's safety performance record in MCMIS.

H. FMCSA Register: The date FMCSA published notice of a successfully completed PASA in the FMCSA Register. The FMCSA Register notice advises interested parties that the application has been preliminarily granted and that protests to the application must be filed within 10 days of the publication date. Protests are filed with FMCSA Headquarters in Washington, DC. The notice in the FMCSA Register lists the following information:

a. Current registration number (e.g., MX-123456);

b. Date the notice was published in the FMCSA Register;

c. The applicant's name and address; and

d. Representative or contact information for the applicant.

The FMCSA Register may be accessed through FMCSA's Licensing and Insurance public Web site at http://li-public.fmcsa.dot.gov/​,, and selecting FMCSA Register in the drop down menu.

I. U.S. Drivers: The total number of the motor carrier's drivers approved for long-haul transportation in the United States beyond the border commercial zones.

J. U.S. Vehicles: The total number of the motor carrier's power units approved for long-haul transportation in the United States beyond the border commercial zones.

K. Passed Verification of 5 Elements (Yes/No): A Mexico-domiciled motor carrier will not be granted provisional operating authority if FMCSA cannot verify all of the following five mandatory elements. FMCSA must:

a. Verify a controlled substances and alcohol testing program consistent with 49 CFR part 40.

b. Verify a system of compliance with hours-of-service rules of 49 CFR part 395, including recordkeeping and retention;

c. Verify the ability to obtain financial responsibility as required by 49 CFR 387, including the ability to obtain insurance in the United States;

d. Verify records of periodic vehicle inspections; and

e. Verify the qualifications of each driver the carrier intends to use under such authority, as required by 49 CFR parts 383 and 391, including confirming the validity of each driver's Licencia Federal de Conductor and English language proficiency.

L. If No, Which Element Failed: If FMCSA cannot verify one or more of the five mandatory elements outlined in 49 CFR part 365, Appendix A, Section III, this column will specify which mandatory element(s) cannot be verified.

Please note that for items L through P below, during the PASA, after verifying the five mandatory elements discussed in item K above, FMCSA will gather information by reviewing a motor carrier's compliance with “acute and critical” regulations of the Federal Motor Carrier Safety Regulations (FMCSRs) and Hazardous Materials Regulations (HMRs). Acute regulations are those where noncompliance is so severe as to require immediate corrective actions by a motor carrier regardless of the overall basic safety management controls of the motor carrier. Critical regulations are those where noncompliance relates to management and/or operational controls. These regulations are indicative of breakdowns in a carrier's management controls. A list of acute and critical regulations is included in 49 CFR Part 385, Appendix B, Section VII.

Parts of the FMCSRs and HMRs having similar characteristics are combined together into six regulatory areas called “factors.” The regulatory factors are intended to evaluate the adequacy of a carrier's management controls.

M. Passed Phase 1, Factor 1: A “yes” in this column indicates the carrier has successfully met Factor 1 (listed in part 365, Subpart E, Appendix A, Section IV(f)). Factor 1 includes the General Requirements outlined in parts 387 (Minimum Levels of Financial Responsibility for Motor Carriers) and 390 (Federal Motor Carrier Safety Regulations—General).

N. Passed Phase 1, Factor 2: A “yes” in this column indicates the carrier has successfully met Factor 2, which includes the Driver Requirements outlined in parts 382 (Controlled Substances and Alcohol Use and Testing), 383 (Commercial Driver's License Standards; Requirements and Penalties) and 391 (Qualifications of Drivers and Longer Combination Vehicle (LCV) Driver Instructors).

O. Passed Phase 1, Factor 3: A “yes” in this column indicates the carrier has successfully met Factor 3, which includes the Operational Requirements outlined in parts 392 (Driving of Commercial Motor Vehicles) and 395 (Hours of Service of Drivers).

P. Passed Phase 1, Factor 4: A “yes” in this column indicates the carrier has successfully met Factor 4, which includes the Vehicle Requirements outlined in parts 393 (Parts and Accessories Necessary for Safe Operation) and 396 (Inspection, Repair and Maintenance) and vehicle inspection and out-of-service data for the last 12 months.

Q. Passed Phase 1, Factor 5: A “yes” in this column indicates the carrier has successfully met Factor 5, which includes the hazardous material requirements outlined in parts 171 (General Information, Regulations, and Definitions), 177 (Carriage by Public Highway), 180 (Continuing Qualification and Maintenance of Packagings) and 397 (Transportation of Hazardous Materials; Driving and Parking Rules).

R. Passed Phase 1, Factor 6: A “yes” in this column indicates the carrier has successfully met Factor 6, which includes Accident History. This factor is the recordable accident rate during the past 12 months. A recordable “accident” is defined in 49 CFR 390.5, and means an accident involving a commercial motor vehicle operating on a public road in interstate or intrastate commerce which results in a fatality; a bodily injury to a person who, as a result of the injury, immediately received medical treatment away from the scene of the accident; or one or more motor vehicles incurring disabling damage as a result of the accident requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle.

S. Number U.S. Vehicles Inspected: The total number of vehicles (power units) the motor carrier is approved to operate in the United States beyond the border commercial zones that received a vehicle inspection during the PASA. During a PASA, FMCSA inspected all power units to be used by the motor carrier in the pilot program and applied a current Commercial Vehicle Safety Alliance (CVSA) inspection decal, if the inspection is passed successfully. This number reflects the vehicles that were inspected, irrespective of whether the vehicle received a CVSA inspection at the time of the PASA decal as a result of a passed inspection.

T. Number U.S. Vehicles Issued CVSA Decal: The total number of inspected vehicles (power units) the motor carrier is approved to operate in the United States beyond the border commercial zones that received a CVSA inspection decal as a result of an inspection during the PASA.

U. Controlled Substances Collection: Refers to the applicability and/or country of origin of the controlled substance and alcohol collection facility that will be used by a motor carrier that has successfully completed the PASA.

a. “U.S.” 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 § 383.5 is not subject to DOT controlled substance and alcohol testing requirements.

V. Name of Controlled Substances and Alcohol Collection Facility: Shows the name and location of the controlled substances and alcohol collection facility that will be used by a Mexico-domiciled motor carrier who has successfully completed the PASA.

Table 1— Applicant That Failed the PASA

Row number in Tables 2, 3 and 4 of the Appendix to today's notice	Name of carrier	USDOT No.
1	Trans-Mex Inc., SA de CV	710381

Table 2—Failed Pre-Authorization Safety Audit (PASA) Information

[See also Tables 3 and 4]

Column A—Row No.	Column B—Name of Carrier	Column C—US DOT No.	Column D—FMCSA Register No.	Column E—PASA Initiated	Column F—PASA Completed	Column G—PASA Results	Column H—FMCSA Register	Column I—US Drivers
1	Trans-Mex Inc. SA de CV	710381	MX-324695	10/22/2013	10/22/2013	Failed	Not published	10

Table 3—Failed Pre-Authorization Safety Audit (PASA) Information

[See also Tables 2 and 4]

Column A—row No.	Column B—name of Carrier	Column C—US DOT No.	Column D—FMCSA register No.	Column K—passed verification of 5 elements (yes/no)	Column L—If no, which element failed	Column M—passed phase 1 factor 1	Column N—passed phase 1 factor 2	Column O—passed phase 1 factor 3	Column P—passed phase 1 factor 4
1	Trans-Mex, Inc SA de CV	710381	MX324695	No	Hours of Service	Not Completed	Not Completed	Not Completed	Not Completed

Table 4—Failed Pre-Authorization Safety Audit (PASA) Information

[See also Tables 2 and 3]

Column A—Row No.	Column B—Name of carrier	Column C—US DOT No.	Column D—FMCSA Register No.	Column Q—Passed Phase I Factor 5	Column R—Passed Phase I Factor 6	Column S—No. US vehicles inspected	Column T—No. US Vehicles issued CVSA decal	Column U— Controlled substance collection	Column V—Name of controlled substances and alcohol collection facility
1	Trans-Mex Inc. SA de CV	710381	MX-324695	Not Completed	Not Completed	None	None	Not Completed	Not Completed.

At the point that the Auditor determined that the applicant failed Phase 1, the PASA was discontinued. As a result, other factors were not assessed and are marked “Not Completed.”

To date, this is the third carrier that has failed the PASA. The Act only requires publication of data for carriers receiving operating authority, as failure to successfully complete the PASA prevents the carrier from being granted authority to participate in the long-haul pilot program. FMCSA agreed to publish this information to show motor carriers that failed to meet U.S. safety standards.

Issued under the authority of delegation in 49 CFR 1.87: June 20, 2014.

Anne S. Ferro,

Administrator.