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[Federal Register: June 8, 2007 (Volume 72, Number 110)]
[Notices]
[Page 31877-31894]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08jn07-108] ------------------------------------------------------------------ DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration [Docket No. FMCSA-2007-28055] Demonstration Project on NAFTA Trucking Provisions AGENCY: Federal Motor Carrier Safety Administration (FMCSA). ACTION: Notice; supplemental request for public comment. --------------------------------------------------------------- SUMMARY: The FMCSA announces additional details about the initiation of
a project to demonstrate the ability of Mexico-domiciled motor carriers
to operate safely in the United States beyond the commercial zones
along the U.S.-Mexico border. On May 1, 2007, FMCSA published a notice
in the Federal Register announcing its plans to initiate the project as
part of the Agency's implementation of the North American Free Trade
Agreement (NAFTA) cross-border trucking provisions. In response to
section 6901(b)(2)(B) of the "U.S. Troop Readiness, Veterans" Care,
Katrina Recovery, and Iraq Accountability Appropriations Act, 2007,"
FMCSA provides for public comment certain additional details concerning
the demonstration project. The FMCSA will carefully consider all
comments received in response to the May 1, 2007, notice and this
supplemental notice before further decisions are made concerning the
implementation of the NAFTA trucking demonstration/pilot project. DATES: Comments must be received on or before June 28, 2007. ADDRESSES: You may submit comments identified by DOT DMS Docket Number
FMCSA-2007-28055 by any of the following methods: - Web Site: http://dms.dot.gov. Follow the instructions for
submitting comments on the DOT electronic docket site. Please note that
the web site will not be available for use from June 13 through June
17, 2007 (72 FR 28092; May 18, 2007). During this period the Department
of Transportation will be relocating the computers that host the
electronic dockets. The electronic docket will again be available to
users beginning on June 18, 2007. While the electronic docket is down
from June 13 through June 17, interested parties may submit comments by
fax, mail, or hand delivery, as described below. However, staff will
not begin to place documents received during this period into the
electronic docket until the computer goes back on line June 18.
- Fax: 1-202-493-2251.
- Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590.
- Hand Delivery: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington DC, 20590 between 9 a.m. and 5 p.m.,
e.t., Monday through Friday, except Federal holidays.
- Federal eRulemaking Portal: Go to http://www.regulations.gov.
Follow the online instructions for submitting comments. Please note
that submission of comments via this web site will be affected by the
relocation of the Department's computers which host its electronic
docket system.
Instructions: All submissions must include the Agency name and
docket number for this notice. For detailed instructions on submitting
comments and additional information, see the Public Participation
heading below. Note that all comments received will be posted without
change to http://dms.dot.gov, including any personal information
provided. Please see the Privacy Act heading below. Docket: For access to the Docket Management System (DMS) to read
background documents or comments received, go to http://dms.dot.gov at
any time or to the U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington DC, 20590 between 9 a.m. and 5 p.m.,
e.t., Monday through Friday, except Federal holidays. The DMS is
available electronically 24 hours each day, 365 days each year, except
as noted above. 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 19477-78) or you may visit http://dms.dot.gov. Public Participation: The DMS is available 24 hours each day, 365
days each year, except during the relocation period noted above. You
can get electronic submission and retrieval help and guidelines under
the "help" section of the DMS Web site. Comments received after the
comment closing date will be included in the docket, and will be
considered to the extent practicable. FOR FURTHER INFORMATION CONTACT: Mr. Milt Schmidt. Telephone (202) 366-
4049; E-mail: milt.schmidt@dot.gov. SUPPLEMENTARY INFORMATION: Background On May 1, 2007, FMCSA announced the initiation of a project to
demonstrate the ability of Mexico-based motor carriers to operate
safely in the United States beyond the commercial zones along the U.S.-
Mexico border (72 FR 23883). The demonstration project will allow up to
100 Mexico-domiciled motor carriers to operate throughout the United
States for one year. Up to 100 U.S.-domiciled motor carriers will be
granted reciprocal rights to operate in Mexico for the same period.
Participating Mexican carriers and drivers must comply with all
applicable U.S. laws and regulations, including those concerned with
motor carrier safety, customs, immigration, vehicle emissions, vehicle
registration and taxation, and fuel taxation. The Agency explained the
safety performance of the participating carriers will be tracked
closely by FMCSA and its State partners, a joint U.S.-Mexico monitoring
[[Page 31878]] group, and an evaluation panel independent of the Department of
Transportation (DOT). The FMCSA indicated the resulting data will be
considered carefully before further decisions are made concerning the
implementation of the NAFTA trucking provisions. The comment period for
the notice ended on May 31. 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. Section 6901(a) of
the Act requires that granting of such authority be tested as part of a
"pilot program." The pilot program must comply with section 350 of
the DOT and Related Agencies Appropriations Act for Fiscal Year 2002
(Pub. L. 107-87, 115 Stat. 833, at 864) and 49 U.S.C. 31315(c),
concerning requirements for pilot programs. Section 6901(a)--Fulfilling the Requirements of Section 350 Section 350 of the DOT Appropriations Act, 2002 (Pub. L. 107-87),
prohibited FMCSA from using Federal funds to review or process
applications from Mexico-domiciled motor carriers to operate beyond the
border commercial zones until certain conditions and safety
requirements were met. The requirements of section 350 have been
reenacted in each subsequent DOT Appropriations Act since 2002. The
rulemaking requirements of section 350 were met by a series of rules
published on March 19, 2002 (67 FR 12652, 67 FR 12702, 67 FR 12758, 67
FR 12776) and a further rule published on May 13, 2002 (67 FR 31978). In November 2002, Secretary of Transportation Norman Mineta
certified, as required by section 350(c)(2), that authorizing Mexican
carrier operations beyond the border commercial zones does not pose an
unacceptable safety risk to the American public. Later that month, the
President modified the longstanding moratorium to permit Mexico-
domiciled motor carriers to provide cross-border cargo transportation
beyond the border commercial zones. The Secretary's certification was
made in response to the June 25, 2002, report of DOT's Office of
Inspector General (OIG) on the implementation of safety requirements at
the U.S.-Mexico border. In a January 2005 follow-up report, the OIG
concluded that FMCSA had sufficient staff, facilities, equipment, and
procedures in place to substantially meet all eight requirements under
section 350 the OIG was required to review. In consideration of the above OIG reports which are available in
docket FMCSA-2007-28055, and FMCSA's May 1, 2007, announcement that
participating carriers will be required to comply with all rules issued
in response to section 350 (in addition to full compliance with all
safety regulations applicable to U.S.-domiciled motor carriers), the
Agency believes the provision in the 2007 supplemental appropriations
act mandating that the demonstration project satisfy the requirements
of section 350 has already been satisfied. The Agency requests public
comment on this issue. Section 6901(a)--Fulfilling the Requirements of 49 U.S.C. 31315 Section 4007 of the Transportation Equity Act for the 21st Century
(TEA-21) amended 49 U.S.C. 31136(e) and 31315 concerning the Secretary
of Transportation's authority to grant waivers from the Federal Motor
Carrier Safety Regulations (FMCSRs) for those seeking regulatory relief
from those requirements. With the enactment of TEA-21, FMCSA may grant
a waiver or exemption that relieves a person from compliance in whole
or in part with a regulation if the Agency determines that the waiver
is in the public interest, and the waiver or exemption would be likely
to achieve a level of safety equivalent to, or greater than, the level
that would be achieved by complying with the applicable regulation.
Section 4007 of TEA-21 also permits FMCSA to conduct pilot programs to
evaluate alternatives to regulations relating to motor carrier,
commercial motor vehicle (CMV), and driver safety.\1\
-------------------------------------------------------------- \1\ On August 20, 2004, FMSCA published a final rule implementing section 4007.
--------------------------------------------------------------------- In a pilot program, the FMCSA collects specific data for evaluating
alternatives to the regulations or innovative approaches to safety
while ensuring that the safety performance goals of the regulations are
satisfied. A pilot program may not last more than 3 years. The number
of participants in a pilot program must be large enough to ensure
statistically valid findings. Pilot programs must include an oversight
plan to ensure that participants comply with the terms and conditions
of participation, and procedures to protect the health and safety of
study participants and the general public. As part of a pilot program,
temporary regulatory relief from one or more FMCSR may be given to a
person or class of persons subject to the regulations, or a person or
class of persons who intend to engage in an activity that would be
subject to the regulations. During the pilot program, these
participants would be given an exemption from one or more sections or
parts of the regulations. The FMCSA believes the requirement that the demonstration project
satisfy the pilot program statutory provision is satisfied through the
May 1, 2007, notice, and the additional details contained in this
notice. The Agency notes that during the demonstration project
participating Mexico-domiciled motor carriers would not be provided
with relief from any of the rules implementing section 350, or any of
the safety regulations. Section 6901(b)(2)(B) of the Act Section 6901(b)(2)(B) of the Act provides that FMCSA must request
public comment on five specific aspects of the demonstration project.
For the convenience of the reader, these items are listed below. A
complete copy of section 6901 is included in the docket FMCSA-2007-
28055. (1) Comprehensive data and information on the pre-authorization
safety audits (PASAs) conducted before and after the date of enactment
of this Act of motor carriers domiciled in Mexico that are granted
authority to operate beyond the United States municipalities and
commercial zones on the United States-Mexico border; (2) Specific measures to be required to protect the health and
safety of the public, including enforcement measures and penalties for
noncompliance; (3) Specific measures to be required to ensure compliance with
section 391.11(b)(2) of title 49, CFR, concerning FMCSA's English
language proficiency requirement, and section 365.501(b) of title 49,
CFR, concerning FMCSA's prohibition against Mexico-domiciled drivers
engaging in the transportation of domestic freight within the U.S.; (4) Specific standards to be used to evaluate the pilot program and
compare any change in the level of motor carrier safety as a result of
the pilot program; and (5) A list of Federal motor carrier safety laws and regulations,
including the commercial driver's license (CDL) requirements, for which
the Secretary of Transportation will accept compliance with a
corresponding Mexican law or regulation as the equivalent to [[Page 31879]]
compliance with the United States law or regulation, including for each
law or regulation an analysis as to how the corresponding United States
and Mexican laws and regulations differ. FMCSA Approach for Fulfilling the Requirements of Section 6901(b)(2)(B)
of the Act Comprehensive Data and Information on Pre-Authorization Safety Audits As noted above, 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 this Act of motor carriers
domiciled in Mexico that are granted authority to operate beyond the
United States municipalities and commercial zones on the United States-
Mexico border. No carriers have yet been granted authority to operate
beyond the municipalities and commercial zones as part of this
demonstration project. Consequently, at this time there is no
requirement to publish data or information from any of the PASAs
conducted. Nonetheless, FMCSA has chosen to go ahead and publish data
and information relating to all PASAs conducted to date. The FMCSA includes one table in the text of this notice and three
additional tables at the end of this Federal Register notice. Table 1
below outlines the specific U.S. and Mexican regulations in the three
areas where the Mexican regulations or processes are being accepted as
meeting U.S. requirements. Table 2 contains general information on the PASAs the Agency
completed before the enactment of the Act, and any completed since
then. Table 3 contains the results of each applicant's PASA, if
applicable. Table 4 contains data about each applicant's PASA, if
applicable. The first three columns of tables 2, 3, and 4 are the same
in each table for the ease of the reader. The information for all three
tables is in USDOT number order. Applicants who had not been issued a
presumptive USDOT number as of May 31, 2007 are listed at the end of
the table. Rows 1 through 107 on each of the three tables applies to
the same motor carrier applicant. For example, row 6 contains
information for David Klassen Peters, USDOT Number 556741 on tables 2,
3, and 4. A narrative description of each column heading contained
within tables 2, 3, and 4 is provided below: A. Column A--Row: Sequential number for ease of reading across
tables 2, 3, and 4. Row 6 contains all the information for the same
motor carrier split across the three tables. FMCSA has repeated this
column on tables 2, 3, and 4. B. Column 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 municipalities and commercial zones and
was considered for participation in the cross border demonstration
project. FMCSA has repeated this column on tables 2, 3, and 4. C. Column C--US DOT Number: The identification number presumptively
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. FMCSA has repeated this column on tables 2, 3, and 4. D. Column D--PASA Scheduled: The date the PASA was scheduled to be
initiated. E. Column E--PASA Completed: The date the PASA was completed. F. Column F--PASA Results: The results upon completion of the PASA.
The PASA undergoes a quality assurance review prior to 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 is 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. 1. "Passed" status refers to a motor carrier that has
successfully completed the PASA and the quality assurance process and
is listed as approved in MCMIS. 2. "Pending" status refers to a motor carrier that has
successfully completed a PASA, but the results are pending FMCSA
approval through the quality assurance review. 3. "Failed" status refers to a motor carrier for which FMCSA was
unable to verify one or more of the five mandatory elements in Part
365, Subpart E, Appendix A, Section III; or a motor carrier that has
inadequate basic safety management controls in three or more factors
set forth in Part 365, Subpart E, Appendix A, Section IV(f). 4. "Withdrew" status refers to a motor carrier that, after being
contacted by the Safety Auditor, has chosen to withdraw from
participating in the cross border demonstration project, or has
withdrawn its application required to obtain authority to operate
beyond the municipalities and commercial zones. 5. "Unable to contact" status refers to a motor carrier that the
assigned FMCSA Safety Auditor has been unable to contact based on the
information submitted or filed by the motor carrier in its application. G. Column G--FMCSA Register: The date the publication notice was
generated in the FMCSA Register of a successfully completed PASA. 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 FMCSA Register can
be viewed by going to: http://li-public.fmcsa.dot.gov/LIVIEW/pkg_html.prc_limain
and then selecting "FMCSA Register" from the drop-down box in the upper right corner of the screen. The notice in the
FMCSA Register lists the following information: 1. Current registration number (e.g., MX-123456);
2. Date the notice was filed in the FMCSA Register;
3. The applicant name and address, and 4.Representative or contact
information for the applicant. H. Column H--Drivers Identified Who Motor Carrier Intends to
Operate in the United States: The total number of drivers the motor
carrier intends to operate in the United States. I. Column I--Vehicles Identified Which Motor Carrier Intends to
Operate in the United States: The total number of power units the motor
carrier intends to operate in the United States. J. Column 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: 1. Verify a controlled substances and alcohol testing program
consistent with 49 CFR part 40. 2. Verify a system of compliance with hours-of-service rules
consistent with 49 CFR part 395, including recordkeeping and retention; 3. Verify proof of financial responsibility consistent with 49 CFR
part 387; 4. Verify records of periodic vehicle inspections consistent with
49 CFR part 396; and [[Page 31880]] 5. Verify the qualifications of each driver the carrier intends to
use under such authority, as required by parts 383 and 391, including
confirming the validity of each driver's Licencia Federal de Conductor. K. Column K--If Motor Carrier Failed Pre-Authorization Safety
Audit, Which Element(s) Failed: If FMCSA could not verify one of the
five mandatory elements outlined in Part 365, Appendix A, Section III,
this column will specify which mandatory element(s) could not be
verified. Please note that for columns L through P below and shown on table 3
at the end of this notice, during the PASA, after verifying the five
mandatory elements discussed in column J above and also shown on table
3, FMCSA will gather additional information. The additional information
FMCSA will gather is to review a motor carrier's compliance with
"acute and critical" regulations of the FMCSRs and Hazardous
Materials Regulations (HMRs). This is nearly identical to new entrant
audits and compliance reviews of U.S.- and Canada-domiciled motor
carriers, except for those statutory provisions unique to Mexico-
domiciled motor carriers. 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
are indicative of breakdowns in a carrier's management controls. A list
of acute and critical regulations is included in 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 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. Column 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. Column 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 Standard;
Requirements and Penalties) and 391 (Qualifications of Drivers and
Longer Combination Vehicle (LCV) Driver Instructors). N. Column 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. Column 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. Column 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 per
million miles traveled 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. Note: If the Mexico-domiciled motor carrier has successfully met
all five mandatory elements, but the PASA reveals the motor carrier
has inadequate basic safety management controls in at least three
separate factors, the motor carrier will fail the PASA and not be
granted provisional operating authority. Q. Column Q--Number of Vehicles Inspected Which Carrier Intends to
Operate in the US: 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 available vehicles that did not display a current
Commercial Vehicle Safety Alliance (CVSA) inspection decal. This number
reflects the vehicles that were inspected. R. Column R--Number of Vehicles Issued CVSA Decal During PASA Which
Carrier Intends to Operate in the US: 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. Column S--Number of Vehicles Displaying Current CVSA Decal
During PASA Which Carrier Intends to Operate in the US: The total
number of vehicles (power units and trailers) the motor carrier intends
to operate in the United States that displayed a current Commercial
Vehicle Safety Alliance (CVSA) inspection decal at the time of the
PASA. T. Column T--Controlled Substances Collection: Refers to the
applicability and/or country of origin of the controlled substance and
alcohol collection facility contracted to use/or will be used by a
motor carrier who has successfully completed the PASA. 1. "US" means the controlled substance and alcohol collection
facility is based in the United States. 2. "MX" means the controlled substance and alcohol collection
facility is based in Mexico. Currently there are not any collection
facilities certified in Mexico to collect controlled substance and
alcohol specimens in accordance with 49 CFR part 40. 3. "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). Note: Any motor carrier that does not operate commercial motor
vehicles as defined in Sec. 383.5 is not subject to controlled
substance and alcohol testing requirements. U. Column U--Name of Controlled Substances and Alcohol Collection
Facility: "Name of Controlled Substances and Alcohol Collection
Facility" is the name and location of the U.S. drug and alcohol
collection facility for a Mexico-domiciled motor carrier who has
successfully completed the PASA. Measures To Protect the Health and Safety of the Public The FMCSA has developed an extensive oversight system to protect
the health and safety of the public and FMCSA will apply it to Mexico-
domiciled motor carriers. These measures are outlined in 49 CFR parts
350-396 and include providing grants to States for commercial vehicle
enforcement activities, regulations [[Page 31881]] outlining the application procedures, regulations explaining how FMCSA
will assess safety ratings and civil penalties as well as amounts of
possible civil penalties, insurance requirements, drug and alcohol
testing requirements, commercial driver's license (CDL) requirements,
general operating requirements, driver qualification requirements,
vehicle parts and maintenance requirements, and hours-of-service
requirements. These requirements apply to Mexico-domiciled carriers
operating in this demonstration project, just as they do to any
commercial motor vehicle, driver, or carrier operating in the United
States. The description below is limited to the main features of
FMCSA's system to protect the health and safety of the public during
this demonstration project, but is not intended to imply that all
regulations outlined above do not apply at all times. Application Process The process begins with a 28-page application that gathers specific
information about the carrier, its affiliations, its insurance, its
safety programs, and its compliance with U.S. laws. In addition to
providing general information, the carrier must complete up to 35
safety and compliance certifications and provide information regarding
its systems for monitoring hours-of-service and accidents and complying
with DOT drug and alcohol testing requirements. Pre-Authorization Safety Audits The next step in the oversight system is the PASA. Upon completion
of the application and its review, FMCSA will then schedule a PASA. The
PASA evaluation process developed by the FMCSA is used to evaluate
safety management controls and determine if a Mexico-domiciled carrier
and each driver is able to operate safely in the United States. It also
identifies motor carriers and drivers that have safety problems and
need to improve their compliance with the FMCSRs, before FMCSA grants
the carrier's provisional authority to operate beyond the U.S.
municipalities and commercial zones on the US-Mexico international
border. The PASA will be conducted at the carrier's principal place of
business in Mexico in accordance with the procedures in Appendix A to
Subpart E of Part 365. The carrier will not be granted provisional
operating authority unless FMCSA can: (1) Verify a controlled substances and alcohol testing program
consistent with DOT requirements in 49 CFR part 40; (2) Verify a system of compliance with FMCSA's hours-of-service
rules in 49 CFR part 395, including recordkeeping and retention; (3) Verify proof of financial responsibility; (4) Verify records of periodic vehicle inspections; and (5) Verify the qualifications of each driver the carrier intends to
assign to operate under such authority, as required by 49 CFR parts 383
and 391, including confirming the validity of each driver's Licencia
Federal de Conductor. Upon verification of the five essential elements listed above,
FMCSA will then: (1) Verify performance data and safety management programs; (2) Review data concerning the carrier's safety history, and other
information necessary to determine the carrier's preparedness to comply
with the Federal Motor Carrier Safety Regulations, 49 CFR parts 382
through 399, (3) Inspect commercial motor vehicles to be used under provisional
operating authority, if any of these vehicles do not display a current
Commercial Vehicle Safety Alliance (CVSA) inspection decal required by
49 CFR 385.103(d); (4) Evaluate the carrier's safety inspection, maintenance, and
repair facilities or management systems, including verification of
records of periodic vehicle inspections; and (5) Interview carrier officials to review safety management
controls and evaluate any written safety oversight policies and
practices. In addition to sampling records for compliance, FMCSA will also
compile a list of vehicles and drivers the carrier intends to use in
the U.S. and will conduct vehicle inspections of any trucks and
trailers intended to be used in the U.S. which does not display a
current CVSA inspection decal. Once all this information is collected
and/or verified, it will then be evaluated according to the criteria
set forth in Section IV of Appendix A to Subpart E of part 365. The
results of the PASA are reviewed at the FMCSA Division Office where the
auditor is assigned and the respective FMCSA Service Center for that
Division office. Upon approval by the Division Office and Service
Center, the PASA is uploaded into FMCSA's information system (MCMIS). FMCSA Register--Public Comment If the carrier has passed the PASA, FMCSA will publish the
carrier's request for authority in the FMCSA Register. The FMCSA
Register can be viewed by going to: http://li-public.fmcsa.dot.gov/LIVIEW/pkg_html.prc_limain
and then selecting "FMCSA Register" from the drop-down box in the upper right corner of the screen. Any member
of the public may, within ten days of publication in the FMCSA
Register, protest the carrier's application before the Agency on the
grounds that the carrier is not fit, willing, or able to provide the
transportation services for which it has requested approval.\2\ FMCSA
will consider all protests before determining whether to grant
provisional operating authority. Under FMCSA regulations, all motor
carriers receive provisional operating authority for 18 months after
receiving a USDOT number and are subject to enhanced safety scrutiny
during the provisional operating period.
-------------------------------------------------------------------- \2\ See 49 CFR 365.201 through 365.207 on how to oppose requests
for FMCSA provisional operating authority.
--------------------------------------------------------------------- Financial Responsibility and Process Agent Filing Requirements If FMCSA grants the carrier's application, it will not issue
provisional operating authority until: (1) An insurance company licensed in the United States files with
FMCSA verification that the carrier maintains the legally required
level of public liability insurance coverage; and (2) The carrier provides FMCSA with a list of agents for the
service of legal process for each State in which the carrier will
operate. Limitation on Authority Carriers that successfully complete the PASA will receive
provisional operating authority to provide long-haul transportation in
the U.S. under this demonstration program. However, their authority
will be limited in several ways compared to U.S.-domiciled carriers.
They will not be permitted to transport hazardous materials or
passengers, and they will not be permitted to provide point-to-point
transportation while operating in the United States. In addition, as a condition of participating in the demonstration
program, Mexico-domiciled motor carriers must sign a form that allows
FMCSA to revoke their authority. Cross Border Monitoring Any carrier that receives provisional operating authority to
provide transportation outside the commercial zone will be subject to
inspection each time it crosses the border. Because these vehicles will
have a DOT number that ends in an "X," they will be easily
identifiable to FMCSA, State, or Customs and Border Protection staff.
All [[Page 31882]] commercial motor vehicles used by a Mexican carrier with long-haul
authority will be required to have current CVSA inspection decals at
all times when operating in the U.S. The CVSA inspection decal is
evidence that the vehicle passed a comprehensive 38-point inspection
within the past 90 days. When crossing the border these trucks will, at
a minimum, be checked to verify that the driver is properly licensed
and that the vehicle displays a current CVSA inspection decal. If the
vehicle lacks a current decal, the driver and vehicle will receive a
comprehensive inspection and will not be permitted to proceed unless
both the driver and vehicle pass this inspection. License checks will be conducted through the Mexican LFIS
(Licencias Federales de Conductor Information System) database and the
FMCSA repository of Mexican driver convictions while in the U.S., known
as the ``52nd State'' system. Any driver who is not properly licensed
in the Mexican database will not be allowed to provide transportation
in the U.S. In addition, any Mexican driver with traffic convictions in
the U.S. that would have resulted in disqualification from driving a
commercial motor vehicle under 49 CFR 383.51 will be prohibited from
providing transportation in the U.S. In addition to the check of the CVSA inspection decal and Mexican
drivers' licenses described above, all vehicles used by a carrier with
long-haul authority will be subject to more comprehensive driver
inspections, walk-around inspections, or full vehicle inspections.
During 2006, FMCSA and its State partners performed over 210,000
inspections of Mexican vehicles entering the U.S. On-Going Monitoring The FMCSA will be providing on-going performance monitoring of
carriers participating in the demonstration project. Monitoring will
include checking the carrier's compliance during cross-border and
roadside inspections as well as any vehicle crashes that occur in the
United States. The FMCSA will conduct a compliance review if the
carrier is flagged as high-risk in FMCSA's SafeStat \3\ system. In
addition, 49 CFR 385.105 sets forth certain violations and conditions
that, if discovered, will prompt FMCSA to conduct a compliance review
or require the carrier to provide written response demonstrating
corrective action. These conditions include:
------------------------------------------------------ \3\ SafeStat (short for Motor Carrier Safety Status Measurement
System) is an automated, data driven analysis system designed by
FMCSA. For more information, see http://ai.fmcsa.dot.gov/safestat/disclaimer.asp?RedirectedURL=/safestat/safestatmain.asp.
--------------------------------------------------------------- Using a driver not possessing or operating with a valid
Licencia Federal de Conductor (an invalid Licencia Federal de Conductor
includes one that is falsified, revoked, expired or missing a required
endorsement), Operating vehicles that have been placed out of service
for violations of the CVSA North American Standard Out-of-Service
Criteria without making repairs,
Using a driver who tests positive for controlled
substances or alcohol or who refuses to submit to testing,
Operating within the U.S. without valid insurance, or
Having a driver or vehicle out-of-service rate of more
than 50 percent based on at least three inspections occurring within a
consecutive 90-day period. Compliance Reviews The FMCSA may conduct a compliance review on a motor carrier for a
variety of reasons including but not limited to: The carrier is identified as being "high-risk" based on
FMCSA's SafeStat system, The carrier is the subject of a non-frivolous complaint,
FMCSA discovers one or more of 11 violations during a pre-
authorization safety audit that requires a compliance review. Carriers participating in the demonstration project will be subject
to compliance reviews for the above conditions, as would any other
carrier operating in the U.S. The compliance review is an in-depth examination of a carrier's
safety management practices. During the compliance review the FMCSA
investigator will look at the carrier's compliance with all applicable
regulations including driver qualifications, hours of service, drug and
alcohol testing, insurance, maintenance, and operating authority. The
compliance review will result in a safety rating based on five factors
\4\ as outlined in Appendix B to Part 385.
-------------------------------------------------------------- \4\ While there are 6 factors considered in determining a motor
carrier's safety rating, only 5 will be applicable to carriers
operating in the demonstration project because transportation of
hazardous materials will not be authorized.
--------------------------------------------------------------- Penalties Any Mexico-domiciled carrier operating as part of this
demonstration program will immediately be subject to suspension and
revocation of its registration if it receives an Unsatisfactory safety
rating. Any Mexico-domiciled carrier that receives a Conditional safety
rating as a result of a compliance review will have its authority
revoked unless it can demonstrate corrective action within 30 days. In
addition, any carrier in the demonstration project will have its
authority suspended if it fails to maintain insurance on file with
FMCSA. Any vehicles found operating in the United States by a carrier
without active operating authority will be placed out of service. In addition to loss of authority for less than satisfactory safety
ratings or absence of insurance, drivers and carriers participating in
the demonstration project, like all commercial motor vehicle drivers
and motor carriers operating in the U.S., are subject to civil
penalties for violations of the Federal Motor Carrier Safety
Regulations. The amounts of the civil penalties are laid out in
Appendices A and B to 49 CFR Part 386 and include: Up to $2,100 per violation for operating a vehicle after
being placed out of service (driver),
Up to $16,000 per violation for requiring or permitting a
driver to operate a vehicle after being placed out of service
(carrier),
Up to $550 per day for each recordkeeping violation, up to
$5,500,
Up to $5,500 for knowingly falsifying documents,
Up to $11,000 for each non-recordkeeping violation \5\
-------------------------------------------------------------------- \5\ Violations of the English proficiency and cabotage rules are
both non-recordkeeping violations.
---------------------------------------------------------------- Up to $3,750 for each violation of the CDL regulations,
Up to $16,000 for each violation of financial responsibility (insurance) regulations. Finally, FMCSA has the authority under 49 U.S.C. 521(b)(5) to shut
down any vehicle, driver, or carrier operation, whether U.S., Canadian,
or Mexican, whose regulatory violations are so serious that they
constitute an imminent hazard. Measures to Ensure Compliance with 49 CFR 391.11(b)(2) and 365.501(b) English proficiency Section 391.11(b)(2) requires drivers operating commercial motor
vehicles, as defined in 49 CFR 390.5, in interstate commerce to be able
to "read and speak the English language sufficiently to converse with
the general public, to understand highway traffic signs and signals in
the English language, to respond to official inquiries, and to [[Page 31883]]
make entries on reports and records." CVSA recently adopted English
proficiency as a part of its North American Standard Out-of-Service
criteria; CVSA gave the States guidance on this matter. FMCSA and its State partners will check each driver and vehicle
entering the U.S. as part of this demonstration project. During that
check, which will include verification of a current CVSA decal on the
vehicle and the driver's Mexican CDL, inspectors will interact with the
driver in English. If there appears to be a communication problem, the
driver will be directed to a secondary inspection site where a full
driver inspection will be conducted. If this inspection results in a
finding the driver does not speak sufficient English to satisfy the
regulation, the violation will be cited on the inspection report and
the driver will be placed out-of-service. English proficiency will also
be evaluated during any other vehicle inspections occurring in the U.S.
and will likewise result in an out-of-service order if the driver can
not meet the requirements of this section. Prohibition Against Point-to-Point Transportation Services Within the
U.S. Section 365.501(b) requires that "a Mexico-domiciled carrier may
not provide point-to-point transportation services, including express
delivery services, within the United States for goods other than
international cargo." The transportation of domestic freight between
points in the United States is known as "cabotage." The provisional operating authority granted to a Mexican domiciled
motor carrier to operate beyond the commercial zone is limited to the
transportation of international freight. Therefore, a carrier providing
point-to-point transportation services in the U.S. is operating beyond
the scope of its operating authority and is in violation of 49 CFR
392.9a(a). Commercial vehicles found to be operating beyond the scope
of the carrier's provisional operating authority will be placed out of
service, and the motor carrier may be subject to penalties. The FMCSA has trained all State truck inspectors in the enforcement
of operating authority restrictions and conducted significant outreach
to the law enforcement community to ensure they are aware of these
provisions and that they will examine MX trucks to determine if they
are violating these restrictions. Additionally, we have and will
continue to provide training to State and local law enforcement
agencies on conducting roadside vehicle/driver traffic stops and
detecting cabotage violations during stops of commercial motor vehicles
for traffic violations. This training, aimed at law enforcement agents
who are not full-time truck inspectors, but may encounter a Mexican
truck during a traffic stop, is being conducted in association with the
International Association of Chiefs of Police. The FMCSA's training on enforcement of operating authority has been
successful. In 2006 the Southern border States (California, Arizona,
New Mexico, and Texas) discovered 2,328 instances (from 951,229
inspections) where a Mexico-domiciled carrier was found to be operating
outside the scope of its operating authority. While these carriers may
have been operating outside the scope of their authority for reasons
other than cabotage (i.e., operating beyond the commercial zones or
having not received authority), this data shows State and Federal
enforcement personnel are enforcing this regulation. The Agency will also use records like logbooks and associated
supporting documents, such as bills of lading, during compliance
reviews to determine if a Mexican carrier has operated beyond the scope
of its authority by engaging in cabotage. Specific Standards to be Used to Evaluate the Pilot Program The Secretary has appointed a panel of three transportation experts
to assess the safety performance of Mexico-domiciled carriers operating
beyond the border commercial zone in the United States. The team is
Mortimer L. Downey III, former Deputy Secretary of Transportation,
Kenneth M. Mead, former DOT Inspector General, and James T. Kolbe,
former U.S. Congressman from Arizona. The FMCSA has entered into a
Memorandum of Understanding (MOU) with the Research and Innovative
Technology Administration's Transportation Safety Institute (TSI) to
provide independent management of the project. The evaluation will provide an assessment of whether the safety
performance of Mexico-domiciled carriers operating beyond the border
commercial zone in the U.S. differs from the performance exhibited by
U.S.-domiciled carriers. Specifically, the evaluation will focus on
answering the following five key safety questions: Are the available crash data for Mexico-domiciled carriers
participating in the project statistically different from comparable
U.S.-domiciled carriers? Do Mexico-licensed commercial drivers pose a greater risk
to the traveling public than U.S. CDL holders in terms of demonstrated
unsafe driving practices, such as speeding, improper lane changes,
controlled substances use/alcohol misuse? Are the trucks operated by Mexico-domiciled motor carriers
maintained at levels similar to those of U.S.-domiciled carriers, or do
they have higher out-of-service rates? In the course of conducting PASAs, did FMCSA detect
violations of the 11 critical safety regulations in any greater
proportion than found in new entrant audits of U.S.-domiciled carriers? What other safety problems are being experienced by
enforcement personnel and others in the course of implementing the
demonstration project? Crash Rate (Recordable Crashes Per Million Miles) Consistent with the New Entrant Safety Assurance Process, the
evaluation will consider whether the crash rate of a participating
carrier is indicative of a carrier with inadequate basic safety
management controls. Driver Behavior (Violations for Unsafe Driving Practices) The evaluation will assess the number of moving violations, such as
excessive speed and unsafe lane changes, and for violations of
regulations relating to licenses, hours of service, and controlled
substances use/alcohol misuse, compared to the national average for
U.S.-domiciled driver. Violation/Driver Safety Compliance (Number of Out-of-Service Orders) The evaluation will assess the number of times a motor carrier's
drivers or vehicles are placed out of service for violations of the
FMCSRs or compatible State laws and regulations, compared to the
average for U.S. carriers. Carrier Safety Compliance (Number of Pre-Authorization Safety Audit
Violations) Using carrier PASA data, the evaluation will assess the number of
carriers that had violations of 11 critical safety regulations,
compared to the average found for U.S. carriers. The FMCSA has
determined that a violation of any of the following 11 critical
regulations is so significant that it merits failure of the safety
audit: 1. Failing to implement an alcohol and/or controlled substances
testing program. 2. Using a driver who has refused to submit to an alcohol or
controlled substances test required under 49 CFR part 382. [[Page 31884]] 3. Using a driver known to have tested positive for a controlled
substance. 4. Knowingly allowing, requiring, permitting, or authorizing an
employee with a CDL which is suspended, revoked, or canceled by a State
or who is disqualified to operate a commercial motor vehicle. 5. Knowingly allowing, requiring, permitting, or authorizing a
driver to operate a commercial motor vehicle while the driver is
disqualified. 6. Operating a commercial motor vehicle without having in effect
the required minimum levels of financial responsibility. 7. Using a disqualified driver. 8. Using a physically unqualified driver. 9. Failing to require a driver to make a record of duty status. 10. Requiring or permitting the operation of a commercial motor
vehicle declared "out of service" before repairs are made. 11. Using a commercial motor vehicle that has not been periodically
inspected. Carrier Safety Compliance (Number of Post-Authorization Safety Audit
Violations) The evaluation will consider the number of violations of critical
safety regulations found when a safety audit is triggered by operating
violations, compared to the average found for U.S. carriers. Following
the PASA, few carriers are expected to be cited for violations.
However, under 49 CFR 385.105, violations of six regulations,
identified through roadside inspections or any other established means,
may subject the Mexico-domiciled carrier to an expedited safety audit,
compliance review, or submission of evidence of correcting the
deficiency. The six violations include: 1. Using a driver without a valid license. 2. Using a vehicle that has been placed out of service without
completing the required repairs. 3.Involvement in, due to an act or omission of the carrier, a
hazardous materials incident within the U.S. 4.Using a driver who tests positive for controlled substances or
alcohol or refuses to submit to required tests. 5.Operating in the U.S. without the required minimum levels of
financial responsibility. 6.Having a driver or vehicle out-of-service rate of 50 percent or
more, based on at least three inspections occurring within a 90
consecutive-day period. List of Federal Motor Carrier Safety Laws and Regulations for Which
FMCSA Will Accept Compliance With a Corresponding Mexican Law or
Regulation The Secretary of Transportation will accept only three areas of
Mexican regulations as being equivalent to United States regulations.
The first area is the regulations governing Mexican Commercial Driver's
Licenses (CDL). The U.S. acceptance of a Mexican CDL, known as the
Licencia Federal de Conductor, dates back to November 21, 1991, when
the Federal Highway Administrator determined that the Mexican CDLs are
equivalent to the standards of the U.S. regulations. Mexico will
disqualify a driver's CDL for safety infractions or testing positive
for the use of drugs. However, since Mexico's disqualification
standards are not identical to U.S. standards, FMCSA, working with the
States, has developed a system to monitor the performance of Mexican
drivers while in the U.S. and take steps to disqualify these drivers if
they incur violations that would result in a U.S. driver's license
being suspended. Therefore, the U.S. is not relying solely on Mexico's
disqualification standards, but is imposing its own standards in
addition to any disqualifications that may be taken by the Mexican
government. Second, the Secretary of Transportation will also consider that
physical examinations conducted by Mexican doctors and drug testing
specimens collected by Mexican collection facilities are equivalent to
examinations and test specimens conducted or collected in the United
States. In Mexico, in order to obtain the Licencia Federal de Conductor
a driver must meet the requirements established by the Ley de Caminos,
Puentes y Autotransporte Federal (LCPAF or Roads, Bridges and Federal
Motor Carrier Transportation Act) Article 36, and Reglamento de
Autotransporte Federal y Servicios Auxiliares (RAFSA, or Federal Motor
Carrier Transportation Act) Article 89, which state a Mexican driver
must pass the medical exam performed by Mexico's Secretariat of
Communications and Transportation (SCT), Directorship General of
Protection and Prevention Medicine in Transportation (DGPMPT). This is
the same medical exam performed on applicants in all modes of
transportation (airline pilots, merchant mariners, and locomotive
operators). It is conducted by government doctors instead of the
private physicians performing the examination on U.S. drivers. Third, controlled substances testing in Mexico is also conducted by
personnel from Mexico's SCT. The U.S. DOT and SCT have a Memorandum of
Understanding (MOU) under which Mexico has agreed to collect drug
testing specimens using U.S. specimen collection procedures and U.S.
collection forms. The U.S. DOT has translated its drug testing
collection forms into Spanish as part of this MOU. While to date all
Mexican carriers that have undergone a PASA from the FMCSA are sending
their drivers to U.S. collection facilities, the Secretary of
Transportation would accept a drug test using a specimen collected in
Mexico using our forms and procedures. Table 1 below outlines the specific U.S. and Mexican regulations in
the three areas where the Mexican regulations or processes are being
accepted as meeting U.S. requirements.
Table 1
------------------------------------------------------------------------
Description United States Mexico
------------------------------------------------------------------------
Drug and Alcohol Testing 49 CFR Requires
Procedures--Random Testing. Part 382. random drug testing
by motor carrier at
a
50 percent rate.
Reglamento
del Servicio de
Medicina Preventiva
del Transporte.
Government
conducts random drug
testing at
terminals, ports of
entry, and specific
areas along
corridors.
[[Page 31885]]
Drug and Alcohol Testing 49 CFR Part 40... Reglamento
Procedures--Collection of del Servicio de
Samples. Collection of Medicina Preventiva
procedures del Transporte.
outlined and DGPMPT-IT-02-
detailed 01; DGPMPT-PE-02-F-
description of 01.
the custody.. -DGPMPT-PE-02
.
DGPMPT-IT-02-
01 thru 08.
Collection
procedures have been
ISO certified.
The U.S. and
Mexico have a
Memorandum of
Understanding that
Mexico will, when
collecting samples
to satisfy U.S. drug
testing regulations,
use U.S. collection
procedures and
forms. These forms
have been translated
into Spanish and
provided to Mexico.
Drug and Alcohol Testing 49 CFR Reglamento del
Procedures--Laboratory Part 40. Servicio de Medicina
Testing. Preventiva del
Laboratories Transporte.
approved by the DGPMPT-PE-01-
U.S. Department IE-01.
of Health and Regulations
Human Services.. and procedures are
equivalent to U.S.
standards.
Laboratory
is not certified due
to lack of proper
equipment and other
procedural
requirements.
Commercial Driver's License-- 49 CFR Ley de
Issuance. Part 383. Caminos, Puentes y
Outlines Autotransporte
the knowledge, Federal.
skills and Articlos 89
testing y 90, Reglamento de
procedures Autotransportes
required to Federal y Servicio
obtain a Auxilares.
commercial Driver must
driver's provide proof of
license.. medical
qualification, proof
of address, and
training(both skills
and knowledge).
Must be
renewed every 2
years.
Commercial Driver's License-- 49 CFR Ley de
Disqualifications. Part 383. Caminos, Puentes y
Outlines Autotransporte
CDL Federal.
disqualification Reglamento
s for major and del Servicio de
serious traffic Medicina Preventiva
violations.. del Transporte.
Provides for
the disqualification
of drivers for major
and serious traffic
violations.
License can
be canceled by a
judge.
License can
be canceled for
three speeding
violations in a one
year period.
License can
be canceled for
leaving the scene of
an accident without
notifyingthe closest
authority or
abandoning the
vehicle.
License can
be canceled for
altering the
license.
License can
be canceled for
failing to a drug
test.
License
cannot be obtained
after failing a drug
test without proof
of success
completion of a
rehabilitation
program.
License can
be suspended for
failing to provide
accurate information
on application.
Cancellation
is valid for 10
years--cannot obtain
a license for 10
years.
Medical Standards............. 49 CFR Reglamento del
Part 391. Servicio de Medicina
US-- Preventiva del
Requires a Transporte.
comprehensive MX--Requires a
physical and comprehensive
psychological physical and
examination.. psychological
Medical examination.
examination is Medical
not part of the Medical examination
CDL issuance is a pre-requisite
process.. to obtaining a
Licencia de Federal
de Conductor.
Medical
examination may be
required while the
driver is "in
operation" (on
duty) to determine
if the driver is
still qualified to
drive.
------------------------------------------------------------------------
Request for Comments In accordance with the Act, FMCSA requests public comment from all
interested persons on the Agency's plan for fulfilling the requirements
of sections 6901(a) and 6901(b)(2)(B)(i) through (v). All comments
received before the close of business on June 28, 2007 will be
considered and will be available for examination in the docket at the
location listed under the address 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: June 5, 2007.
John H. Hill,
Administrator.
BILLING CODE 4910-EX-P [FR Doc. 07-2870 Filed 6-6-07; 9:09 am]
BILLING CODE 4910-EX-C
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