E8-18604. Demonstration Project on NAFTA Trucking Provisions

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA).

ACTION:

Notice; request for public comment.

SUMMARY:

FMCSA announces and requests public comment on data and information concerning the Pre-Authority Safety Audits (PASAs) for motor carriers that have applied to participate in the Agency's project to demonstrate the ability of Mexico-domiciled motor carriers to operate safely in the United States beyond the commercial zones on the U.S.-Mexico border. This action is required by the “U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007.”

DATES:

Comments must be received on or before August 27, 2008.

ADDRESSES:

You may submit comments identified by FDMS Docket ID Number FMCSA-2007-28055 by any of the following methods:

• Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments.

Alternatively, you can file comments using the following methods:

• Mail: Docket Management Facility: U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Room W12-140, Washington, DC 20590.
• Hand Delivery or Courier: West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.
• Fax: [phone].

Instructions: For detailed instructions on submitting comments and additional information on the rulemaking process, see the Request for Comments heading of the SUPPLEMENTARY INFORMATION section of this document. Note that all comments received will be posted without change to http://www.regulations.gov,, including any personal information provided. 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 complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19476).

Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov. Follow the online instructions for accessing the dockets.

FOR FURTHER INFORMATION CONTACT:

Mr. Milt Schmidt, Division Chief, North American Borders Division, Telephone [phone]; e-mail [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). 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 United States municipalities and commercial zones on the United States-Mexico border (border commercial zones).

Section 6901(b)(2)(B)(i) of the Act requires FMCSA to publish comprehensive data and information on the PASAs conducted before and after the date of enactment of the Act of motor carriers domiciled in Mexico that are granted authority to operate beyond the border commercial zones. As of July 16, 2008, 27 carriers have been granted authority to operate beyond the border commercial zones as part of this cross-border demonstration project. However, FMCSA has chosen to publish for public comment data and information relating to all PASAs conducted as of July 16, 2008. On March 24, 2008, FMCSA published in the Federal Register PASA data for all motor carriers that had applied to participate in the demonstration project, based on information available as of February 7, 2008 (73 FR 15557). FMCSA announces that the following Mexico-domiciled motor carriers in Table 1 have successfully completed their PASAs and notice of this fact was published in the FMCSA Register after the publication of the March 24 notice:

Table 1

Row number in Tables 2 through 4 of the appendix to today's notice	Name of carrier	USDOT No.
22	GOMEZ GARCIA JOSE LUIS	710473
24	GRUPO TRANSPORMEX SA DE CV	711208
63	LUIS EDMUNDO GRIJALVA GAMEZ	1598518
65	INTERLOGISTICS DE MEXICO S DE RL DE CV	1659365

FMCSA includes as an appendix to this Federal Register notice, data and information on the PASAs for which the motor carrier successfully completed the process before the enactment of the Act, and any completed since then. See Tables 2, 3, and 4 in the appendix. The appendix also includes information about carriers that failed the PASA in Table 5. Although failure to successfully complete the PASA precludes their participation in the cross-border demonstration project and the Act only requires publication of data for carriers receiving operating authority, FMCSA is publishing this information to show that 4 motor carriers in addition to the 28 motor carriers identified in the March 24 notice failed to meet U.S. safety standards. A narrative description of each column heading contained within the appendix's Tables 2, 3, and 4, “Successful Pre-Authority Safety Audit (PASA) Information as of July 16, 2008” as well as in Table 5 “Failed Pre-Authority Safety Audit (PASA) Information as of July 16, 2008,” is provided below:

A. Row Number in the Appendix: The line in the table on which all the PASA information concerning the motor carrier is presented.

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 cross-border demonstration project.

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 power unit. 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.

D. PASA Scheduled: The date the PASA was scheduled to be initiated.

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

F. 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 the FMCSA Service Center New Entrant Specialist designated for the specific FMCSA Division Office. The 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 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.

G. FMCSA Register: The date the 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.

H. U.S. Drivers: The total number of drivers the motor carrier intends to use in the United States.

I. U.S. Vehicles: The total number of power units the motor carrier intends to operate in the United States.

J. Passed Verification 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 proof of financial responsibility;

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.

K. If No, Which Element Failed: If FMCSA could not 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) could not be verified.

Please note that for items L through P below, during the PASA, after verifying the five mandatory elements discussed in item J 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.

Factor 5 relates to the transportation of hazardous materials and was omitted below, as Mexico-domiciled motor carriers that transport hazardous materials are not permitted to participate in the cross-border demonstration project.

L. 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).

M. 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).

N. 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).

O. 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.

P. 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.

Q. Number U.S. Vehicles Inspected: The total number of vehicles (power units and trailers) the motor carrier intends to operate in the United States that received a vehicle inspection during the PASA. During a PASA, FMCSA inspected all vehicles that did not display a current Commercial Vehicle Safety Alliance (CVSA) inspection decal. This number reflects the vehicles that were inspected, irrespective of whether the vehicle received a CVSA inspection decal as a result of a passed inspection.

R. Number U.S. Vehicles Issued CVSA Decal: The total number of inspected vehicles (power units and trailers) the motor carrier intends to operate in the United States that received a CVSA inspection decal as a result of an inspection during the PASA.

S. Number U.S. Vehicles With Current CVSA Decal: The total number of vehicles (power units and trailers) the motor carrier intends to operate in the United States that displayed a current CVSA inspection decal at the time of the PASA.

T. 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 who 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 § 383.5 is not subject to DOT controlled substance and alcohol testing requirements.

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

Request for Comments

In accordance with the Act, FMCSA requests public comment from all interested persons on the PASA information presented in the appendix to 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.

Issued on: August 6, 2008.

John H. Hill,

Administrator.

Appendix