FMCSA rejects OOIDA’s frivolous protest, Grants provisional operating authority to GCC Transportes SA de CV
FMCSA today summarily rejected the frivolous protest filed by the Owner Operator Independent Drivers Association (OOIDA)against Grupo Cementos Chihuahua dba GCC Transportes SA de CV in addition to almost identical protests filed against the carrier by the bogus safety group Advocates for Highway Safety.
Both protests had questioned GCC Transportes “fitness” to operate because of what they considered “undisclosed affiliations” with other carriers.
They also questioned the fitness of GCC Transportes to operate in the US under the pilot program because of a high driver fitness basic, which resulted from the continuous failure of commercial zone drayage drivers to speak English “sufficiently”, and of a high Maintenance Basic.
In their response to OOIDA, President Jim Johnston, and Advocates for Highway Safety, FMCSA noted:
OUTSIDE CARRIER AFFILIATION
While Applicant did not initially disclose affiliated motor carriers on its initial
application form , there is no evidence that the Applicant was attempting to hide these
Applicant’s explanation that the omission was an oversight is eminently
plausible considering the specific circumstances of this application, where:
1) FMCSA was aware of the affiliates during its safety and security vetting;
2) Applicant promptly provided additional information to supplement its application;
3) the affiliated motor carrier operations are not subject to any FMCSA Order to cease or any enforcement
4) Applicant did not establish or use the affiliates to evade FMCSA
regulation or oversight, or for the purpose of avoiding the consequences of the safety,
performance or compliance history of the affiliated carriers.
FMCSA finds that under the circumstances set forth above, the failure of applicant to include information on its
affiliates on its initial OP-1 application form does not demonstrate that the Applicant is
not fit, or that the Applicant is not willing and able to comply with applicable Federal
VIOLATIONS OF 391.11.(b)(2) ENGLISH LANGUAGE PROFICIENCY
With respect to the Applicant’s safety performance, during the PASA FMCSA
verified that Applicant had adequate safety management controls in place to comply with
the FMCSRs and the requirements ofthe pilot program.
Further, while Applicant’s roadside performance data show Applicant has been cited with violations of 49 C.F.R.
§ 391.11 (b )(2) for drivers not able to communicate sufficiently in English during commercial zone operations and that these violations have resulted in the Applicant having a Driver Fitness BASIC score above an intervention threshold, FMCSA conducted English language proficiency examinations of each of the drivers Applicant
proposes to use to operate commercial motor vehicles in the United States under the pilot program; each driver approved for use in the pilot program successfully completed the interview and passed.
In a letter separate from the formal protest tendered by OOIDA, OOIDA President Jim Johnston has sent a letter to FMCSA Administrator Anne Ferro whining that Mexican carriers and drivers were be held to a “lower” standard than US drivers, in part because of the large numbers of violation of 391.11.(b)(2) where drivers were not being put “out of service”.
William Quade, Associate Administrator for Enforcement responded to Johnston complaint.
In the August 9 submission, OOIDA noted GCC Transportes’ violations of the English language
requirement for drivers.
Regarding GCC Transportes’ English language proficiency (ELP)
violations, it has been FMCSA’s enforcement policy since 2007 not to place commercial zone
carriers out-of-service for violations of 49 CFR 391.11(b)(2). This policy was established to
accommodate the high volume of Spanish-speaking motor carriers in this concentrated area.
Both FMCSA and State law enforcement in the commercial zones are purposefully bi-lingual.
Therefore, they are able to communicate with this carrier constituency. However, the Agency
recognizes that carriers with high numbers ofELP violations may have more systemic problems,
and conducts enforcement actions on the worst offenders.
Further, FMCSA conducted ELP examinations of each of the drivers that GCC Transportes
proposes to use to operate commercial motor vehicles (CMVs) in the United States under the
Pilot Program. Each driver approved for use in the Pilot Program successfully completed the
interview and passed. As set forth in the July 8, 2011, Federal Register Notice [76 FR 40420], if
a driver successfully completes the ELP interview,
FMCSA has confidence that the driver can
sufficiently communicate in English to converse with the general public, understand traffic signs
and signals in English, respond to official inquiries, and make entries on reports and records
required by FMCSA.
In the end, FMCSA has found all the protests against this applicant carrier, who also successfully participated in the 2007 Pilot Program to be baseless and will shortly be issuing provisional operating authority to GCC Transportes.
You would think that OOIDA would get the message, but I guess it’s going over their heads as they continue to submit these frivolous protests using the same claims and twisted logic that FMCSA has continually found to be without merit. But it also shows OOIDA’s agenda which is to cause as much delay as possible in order to let the program time out without the number of participants needed to provide a “valid statistical sampling” of Mexican carriers and how they perform under our rules and regulations, which in many cases are less stringent than the ones they are required to comply with in Mexico. OOIDA’s frivolous protests also serve as a tool of intimidation to force Mexican carriers who might be interested in participation to think twice about applying. Each time one of these frivolous and baseless protests against a potential entrant is filed, FMCSA is forced to suspend processing of the applicant until a decision is made on the protest.
This is a complete waste of taxpayers money and OOIDA members money which is being paid to a high dollar Washington law firm to file these protests that are ultimately dismissed.
Has it stopped OOIDA and it’s executives who seem to have a real problem with the truth and with reality in general? It hasn’t slowed them down.
They’ve already filed their next protest, practically identical to the one against GCC Transportes and other carriers before them, making the same baseless accusations, using twisted logic and generally ignoring the prior decisions of the FMCSA against their other protests.
The victim this time is TRANSPORTES MONTEBLANCO SA de CV. This time, in addition to the debunked claims used previously, OOIDA is using comments made by the USDOT OIG in a recently released audit of the program, and of course, skewing what was said in that report for their own purposes.
In regards to Transportes Monteblanco, OOIDA claims;
1) Why FMCSA continues to accept non-disclosure of affiliated motor carriers on applications for authority. This has been explained time and again to OOIDA by the FMCSA and is a non-issue
2) Why affiliated carrier Transportes Monteblanco allowed its insurance to lapse, causing their operating authority to be revoked, and what bearing should that have on the evaluations of the motor carrier’s safety management styland compliance with the rules in the future. Had OOIDA bothered to read the Federal Register Notice, which we’re sure they did, which makes this part of the protest that much more asinine, they would have seen that Transportes Monteblanco allowed their authority to lapse along with the insurance needed to maintain the authority because they were hauling exempt products.
Finally, OOIDA uses the USDOT OIG report to call into question the effectiveness of FMCSA’s PASA process, including the testing of English proficiency, raising the question of the sufficiency of Transportes Monteblanco’s PASA. This was thoroughly explained to OOIDA and their allied bogus safety group Advocates for Highway Safety in the denial of OOIDA’s protest against GCC Transportes.
They are also bringing up the resolved issue of undisclosed “Affiliate carriers”, drivers license issues which have no bearing on Transportes Monteblancos application in addition to a slew of other questions that have absolutely no bearing on the carrier or it’s fitness to operate.
We believe there should be some manner to fine and sanction OOIDA and anyone else who uses and abuses the system FMCSA has in place to receive comments on the fitness of these carriers when it can be proven, as it obviously can be in OOIDA’s case, that the system is being used in a manner inconsistent with it’s purpose.
OOIDA members should also be up in arms about the waste of their money and the reputation of their association which has become a laughingstock among a large majority of truckers for their opposition to this program.
DOWNLOAD THE DOCUMENTS HERE