[Federal Register Volume 78, Number 84 (Wednesday, May 1, 2013)]
[Notices]
[Pages 25525-25529]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-10305]
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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
Servicio de Transporte Internacional y Local SA de CV (STIL) with U.S.
Department of Transportation (USDOT) number 557341, 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 May 13, 2013.
ADDRESSES: You may submit comments identified by Federal Docket
Management System Number FMCSA-2011-0097 by any one of the following
methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
Fax: 1-202-493-2251.
Mail: Docket Management Facility, (M-30), U.S. Department
of Transportation (DOT), 1200 New Jersey Avenue SE., West Building,
Ground Floor, Room 12-140, Washington, DC 20590-0001.
Hand Delivery: Same as mail address above, between 9 a.m.
and 5 p.m., ET, Monday through Friday, except Federal holidays. The
telephone number is 202-366-9329.
To avoid duplication, please use only one of these four methods.
All submissions must include the Agency name and docket number for this
notice. See the ``Public Participation'' heading below for instructions
on submitting comments and additional information.
Note that all comments received, including any personal information
provided, will be posted without change to http://www.regulations.gov.
Please see the ``Privacy Act'' heading below.
Docket: For access to the docket to read background documents or
comments, go to www.regulations.gov at any time or visit Room W12-140
on the ground level of the West Building, 1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5 p.m., ET, Monday through Friday,
except Federal holidays. The on-line Federal document management system
is available 24 hours each day, 365 days each year. If you want
acknowledgment that we received your comments, please include a self-
addressed, stamped envelope or postcard or print the acknowledgement
page that appears after submitting comments on-line.
Privacy Act: Anyone is able to search the electronic form of all
comments received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
Privacy Act System of Records Notice for the DOT Federal Docket
Management System published in the Federal Register on January 17, 2008
(73 FR 3316), or you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.
Public Participation: The http://www.regulations.gov Web site is
generally available 24 hours each day, 365 days each year. You can get
electronic submission and retrieval help and guidelines under the
``help'' section of the http://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.
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 [email protected].
[[Page 25526]]
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 June 13, 2012. FMCSA
announces that the Mexico-domiciled motor carrier in Table 1
successfully completed the PASA. Notice of this completion was also
published in the FMCSA Register.
Tables 2, 3 and 4 all titled (``Successful Pre-Authorization Safety
Audit (PASA) Information'') set out additional information on the
carrier(s) noted in Table 1. A narrative description of each column in
the tables is provided as follows:
A. Row Number in the Appendix for the Specific Carrier: The row
number for each line in the tables.
B. Name of Carrier: The legal name of the Mexico-domiciled motor
carrier that applied for authority to operate in the United States
(U.S.) beyond the border commercial zones and was considered for
participation in the long-haul pilot program.
C. U.S. DOT Number: The identification number assigned to the
Mexico-domiciled motor carrier and required to be displayed on each
side of the motor carrier's power units. If granted provisional
operating authority, the Mexico-domiciled motor carrier will be
required to add the suffix ``X'' to the ending of its assigned U.S. DOT
Number for those vehicles approved to participate in the pilot program.
D. FMCSA Register Number: The number assigned to the Mexico-
domiciled motor carrier's operating authority as found in the FMCSA
Register.
E. PASA Initiated: The date the PASA was initiated.
F. PASA Completed: The date the PASA was completed.
G. PASA Results: The results upon completion of the PASA. The PASA
receives a quality assurance review before approval. The quality
assurance process involves a dual review by the FMCSA Division Office
supervisor of the auditor assigned to conduct the PASA and by the FMCSA
Service Center New Entrant Specialist designated for the specific FMCSA
Division Office. This dual review ensures the successfully completed
PASA was conducted in accordance with FMCSA policy, procedures and
guidance. Upon approval, the PASA 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-226885);
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
[[Page 25527]]
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. ``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 who has successfully completed the PASA.
Table 1
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Row number in Tables 2, 3 and 4 of
the Appendix to today's notice Name of carrier USDOT No.
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1 Servicio de Transporte 557341 .................
Internacional y Local SA de CV...
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Table 2--Successful Pre-Authorization Safety Audit (PASA) Information (see also Tables 3 and 4)
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Column E-- Column F-- Column H--
Column A--row Column B--name of Column C--US Column D--FMCSA PASA PASA Column G--PASA FMCSA Column I--US Column J--US
Number carrier DOT number register number initiated completed results register drivers vehicles
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1............ Servicio de 557341 MX-226885 05/23/2012 06/13/2012 Pass........... 4/17/2013 13 20
Transporte
Internacional y
Local SA de CV.
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[[Page 25528]]
Table 3--Successful Pre-Authorization Safety Audit (PASA) Information (see also Tables 2 and 4)
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Column K-
Column A- Column B-name of Column C-US Column D-FMCSA passed Column L-If Column M- Column N- Column O- Column P-
row Number carrier DOT number register verification no, which passed phase 1 passed phase passed phase passed phase
Number of 5 elements element failed factor 1 1 factor 2 1 factor 3 1 factor 4
----------------------------------------------------------------(Yes/No)--------------------------------------------------------------------------------
1.......... Servicio de 557341 MX-226885 Yes........... None.......... Pass.......... Pass......... Pass......... Pass
Transporte
Internacional y
Local SA de CV.
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Table 4--Successful Pre-Authorization Safety Audit (PASA) Information as of September 9, 2011 (see also Tables 2 and 3)
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Column V--Name
Column Q-- Column R-- Column S-- Column T-- Column U-- of controlled
Column A-- Column B--name Column C--US Column D-- passed phase I passed phase I Number US Number US controlled substances and
row No. of carrier DOT No. FMCSA factor 5 factor 6 vehicles vehicles substance alcohol
register No. inspected issued CVSA collection collection
decal facility
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1.......... Servicio de 557341 MX-226885 N/A........... Pass.......... 20........... 20 MX........... Quest
Transporte Diagnostics
Internacional y Mexico SA de
Local SA de CV. CV.
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In an effort to provide as much information as possible for review,
the application and PASA results for this carrier are posted at the
Agency's Web site for the pilot program at http://www.fmcsa.dot.gov/intl-programs/trucking/Trucking-Program.aspx. For carriers that
participated in the Agency's demonstration project that ended in 2009,
copies of the previous PASA and compliance review, if conducted, are
also posted. All documents were redacted so that personal information
regarding the drivers is not released. Sensitive business information,
such as the carrier's tax identification number, is also redacted. In
response to previous comments received regarding the PASA notice
process, FMCSA also posted copies of the vehicle inspections conducted
during the PASA in the PASA document.
A list of the carrier's vehicles approved by FMCSA for use in the
pilot program is also available at the above referenced Web site.
During the PASA process, the auditor conducting the PASA identified
no acute violations but did identify violations of three critical
regulations: (1) driver qualification files that did not include
drivers' certification of violations (49 CFR Sec. 391.51(a)), (2)
absence of carrier inquiries about drivers' drug and alcohol history
(49 CFR 391.51(b)(2)), and (3) improper use of the 100-air-mile-radius
exemption (49 CFR 395.1(e). None of the violations, alone or in
combination, rises to a level that results in a failure of the PASA or
a failure in any of the five factors for evaluation.
The Agency acknowledges that through the PASA process it was
determined that STIL had affiliations not identified in the original
application. It was noted during the Agency's vetting and documented as
an attachment to the PASA. STIL submitted for the record a letter
confirming the relationship with a U.S.-domiciled motor carrier,
International Transportation Services, Inc. (USDOT2257332).
During its vetting of the application and the PASA, FMCSA confirmed
that STIL did not establish or use the affiliated companies to evade
FMCSA regulation in continuing motor carrier operations, or for the
purpose of avoiding or hiding previous non-compliance or safety
problems.
FMCSA reviewed the inspection records of the affiliated carrier,
International Transportation Services, Inc. (USDOT number 2257332), an
OP-1 carrier. International Transportation Services is currently in the
Agency's New Entrant program and has limited inspection data. The
company's SMS data reflects scores of 0% in the Unsafe Driving, Hours
of Service Compliance, Driver Fitness and Controlled Substances/Alcohol
BASICs. International Transportation Services has insufficient
inspections to receive a score in the Vehicle Maintenance BASIC.
FMCSA notes that STIL exceeds the intervention thresholds in the
Safety Measurement System (SMS) in the Driver Fitness (99.5%) and
Vehicle Maintenance (94.8%) Behavioral Analysis and Safety Improvement
Categories (BASICs), as of the most recent 2-year period of data ending
on March 22, 2013.
Of the 1,332 violations in the Driver Fitness BASIC, 1,320 involve
the English language proficiency (ELP) of the drivers. The drivers
approved for this pilot program completed ELP testing during the PASA.
Regarding Vehicle Maintenance, the Agency notes that STIL will be using
2008 and 2011 model year vehicles in the program and the vehicles
passed the inspections required to obtain a Commercial Vehicle Safety
Alliance (CVSA) decal. As a requirement of the pilot program, the
vehicles must be reinspected every 90 days and display a valid CVSA
decal.
STIL has requested the use of 13 drivers and 20 vehicles to
participate in the pilot program. None of the proposed drivers have any
driver out of service violations noted on the 415 inspections conducted
during the 24 months prior to March 22, 2013. Of the 20 vehicles on
which FMCSA conducted inspections, all passed inspection and received
CVSA decals. The fleet includes both 2008 Freightliners and 2011
Internationals.
A review of the 20 vehicles' inspection histories indicates 804
inspections during the 24 months on or before March 22, 2013. The
inspections resulted in 197 violations, of which 38 constituted out-of-
service violations.
The Agency identified 3 crashes involving STIL reported to the
Motor Carrier Management Information System (MCMIS) during the 2-year
reporting period ending March 22, 2013. All crashes involved tow-away
activity but no fatalities or injuries. STIL has had 13 enforcement
actions between 2000 and 2012; all but one of those cases occurred
prior to 2012. The most recent enforcement action in 2012 involved a
violation of 49 CFR 396.7, operating a motor vehicle in such a
condition as to likely cause accident or breakdown, discovered during a
roadside
[[Page 25529]]
inspection. The notice of claim (NOC) was closed with a signed
settlement agreement and prompt payment of assessments. STIL does not
have any open enforcement cases. The motor carrier currently has a
driver out-of-service rate of 0% and a vehicle out-of-service rate of
9.0%. Both rates fall well below the current national averages of 5.5%
and 20.7%, respectively.
STIL is currently a hazardous materials carrier (registration
060210600018SU) registered with the Pipeline and Hazardous
Materials Safety Agency (PHMSA) and reports the transportation of 7
types of hazardous materials on its MCS-150 filing for its OP-2
(commercial zone) authority. The motor carrier uses a specific fleet of
vehicles and a specific dispatch location for its commercial zone
operations. The fleet of vehicles and the dispatch location for these
operations differ entirely from the vehicles and dispatch location for
the upcoming OP-1MX authority operations. STIL will be subject to the
terms and conditions of the pilot program, and during the PASA process
FMCSA confirmed that STIL will not transport placardable hazardous
materials under the upcoming OP-1MX authority the pilot program.
To obtain additional information about the current operating
characteristics of the company and to further explore the reasons for
the carrier's high BASICs scores, FMCSA completed a compliance review
on February 15, 2013. The results identified five violations: (1) Sec.
382.301(a), using a driver before the motor carrier has received a
negative pre-employment controlled substance test result; (2) Sec.
390.15(b), failing to maintain, for a period of 3 years after an
accident occurs, an accident register; (3) Sec. 391.11(b)(6), failing
to require driver to furnish list of motor vehicle traffic violations
each 12 months; (4) Sec. 395.8(a), failing to require driver to make a
record of duty status; and (5) Sec. 396.9(d)(3), failing to maintain
completed inspection form for 12 months from the date of inspection at
the carrier's principal place of business). No acute violations were
discovered, and the violations of critical regulations did not rise to
the level of critical violation. The carrier received a
``Satisfactory'' safety rating upon conclusion of the compliance
review. The Agency provided the carrier with recommendations for
correcting the violations, and corrective actions will be verified when
the Agency conducts another compliance review on the company within 18
months, as required under the Pilot Program.
A copy of the compliance review report is available on the Agency's
Web site for the Pilot Program with the PASA document. The Agency noted
some differences between information provided by the motor carrier
during the PASA and the compliance review, such as vehicle and driver
counts, mileage, and gross revenues. The motor carrier explained that
they ceased some operations, reducing the vehicles, drivers, and
mileage. The differences on revenue figures were the company's total
revenue versus the revenue of the cross border operations.
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: April 19, 2013.
Anne S. Ferro,
Administrator.
[FR Doc. 2013-10305 Filed 4-30-13; 8:45 am]
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