FMCSA spanks OOIDA President Jim Johnston soundly! – But will Johnston get the message?

OOIDA President Jim Johnston
FMCSA gives OOIDA President solid spanking over his spurious and erroneous comments made against the latest Mexican carrier approved for participation in the Cross Border Pilot Program
It’s been pointed out before how OOIDA has been reduced to submitting spurious protests and comments against each Mexican carrier who successfully passes it Pre-Authority Safety Audit or PASA in an attempt to delay entrance into the Cross Border Pilot Program. The latest against Transportes Monteblanco SA de CV. has been answered by the FMCSA that swiftly spanks OOIDA President Jim Johnston in a way he won’t like, with the truth. But will he finally get the message that FMCSA is tired of his foolishness?

We doubt it. He’ll continue to waste his members money and cause FMCSA to waste our tax dollars answering these frivolous charges.

Here’s the latest response from FMCSA:

Dear Mr. Johnston:

This letter is provided in response to the Owner-Operator Independent Drivers Association, Inc.(001DA) docket submission regarding the pre-authorization safety audit (PASA) results of Transportes Monteblanco SA de CV.

On September 12. the Federal Motor Carrier Safety Administration (FMCSA) published notice that Transportes Monteblanco passed its PASA, and
was being furtiher considered for the Agency’s long haul Pilot Program.

The OOIDA lette rexpressed concerns about Transportes Monteblanco. specifically, and the PASA process overall.

This letter responds to comments specific to Transportes Monteblanco and its PASA. as the other issues were addressed in previous responses to OOIDA or are not specific to this carrier.

The OOIDA expressed concern that Transportes Monteblacno did not disclose all of its affiliates on its application. On August 28, 2012, FMC SA also posted on its Web site, with the PASA, a letter from Transportes Monteblanco identifying its affiliated companies. During its vetting of the application and the PASA. FMCSA confirmed that Transportes Monteblanco did not establish or use the aftiliated companies to evade FMCSA regulation in continuing motor carrier
operations, or for the purpose of avoiding or hiding previous non-compliance or safety problems.

The affiliations data field is not a mandatory field on any of the Agency’s applications. As a result, this data field is often left blank by applicants, U.S., Mexican and Canadian carriers. The Mexico-domiciled applicants for this program are required to provide affiliation information during the PASA, which holds them to a higher standard than U .S.-domiciled carriers.

Under 49 CfR § 365.109(a)(2), FMCSA will reject materially incomplete applications. However, applications that are in substantial compliance with the rules may be accepted. The plain language of the regulations allows FMC SA discretion in determining whether an initial application that is deficient in some aspect is substantially in compliance such that the Agency may accept and process the application. Additionally, pursuant to 49 CFR § 365. I 13. FMCSA.
in its discretion, may permit an applicant to supplement an application. ln accordance with 49 CFR § 365.1 07, applications form motor carriers of property require only the finding that the applicant is fit, willing. and able to perform the involved operations and to comply with applicable statutory and regulatory provisions; these applications can be opposed only on the grounds that the applicant is not fit (e.g., is not in compliance with applicable financial
responsibility and safety fitness requirements).

As noted in the Federal Register notice, the operating authority associated with Transportes Monteblanco (US DOT number 187t386) was revoked on April 18, 2012, because a lapse of insurance. The Agency noted that this carrier has been inspected three times since tlus date, but has not been cited for operating without authority.

During the period of the lapse, the carrier was transporting exempt commodities which do not require operating authority. The company’s decision to allow the policy to lapse and resubmit evidence of insurance on April 26, 2012, with
the required reinstatement fee was a business decision, and therefore, was not under the jurisdiction of FMCSA, as no regulations were violated.

As reflected in the PASA and the Agency’s Federal Register notice, the drivers approved for participation initially failed the required English language proficiency (ELP) exam. It is the Agency’s policy to allow a retest. Each driver passed both the ELP interview and highway traffic sign evaluation portions of the exam in conformance with FMCSA policy.

While the DOT Office ofthe Inspector General’s (OIG) opinion was that FMCSA was still developing oversight mechanisms for the Pilot Program, the Agency continues to hold that prior to implementation, FMCSA established the necessary policies, procedures, and guidelines to conduct a safe and effective Pilot Program. The FMCSA has been diligent in its efforts to monitor and ensure that the Pilot Program is operating in accordance with the Agency’s
regulations and commitments, and is resulting in a safe and effective program.

The OIG identified conditions that merit consideration for further improving the Pilot Program, and the Agency is implementing changes to address inconsistencies. However, mechanisms exist to ensure full compliance.

Therefore, the Agency  affirms that the ELP testing requirements for
Transportes Monteblanco have been satisfied.

The OOIDA indicates that “The August 2012 O1G Report describes that FMCSA does not regularly ensure that the subject drivers were testing by the Mexican government (the Secretaria de Communiciones y Transportes) to ensure compliance with, at least, Mexico’s licensing standards.” This statement is erroneous on two counts.

First, the OIG reccomendation on this issue reads, “Revise FMCSA’s quality assurance procedures for PASAs to ensure that field supervisors and new entrant specialist validate the Agency’s verification of the SCT-tested
drivers … ” This 01G Report does not indicate that validation was not being completed. The Agency non-concurred with the OIG on this issue. As noted in Exhibit 1 of OOIDA’s submission, FMCSA advised that SCT testing is confirmed by staff in the Agency’s North American Borders Division.

Second, OOIDA ‘s letter expresses concern “that removing this function from the PASA process makes this process Jess transparent, allowing FMCSA to make decisions further from the public review:’ The SCT testing verification was never part of the PASA process. The purpose of the PASA is to confirm the motor carrier’s safety management systems, not the drivers. In fact, a driver may be approved after the company is issued operating authority.

Regarding the location of the PASA, OOIDA provided no data to support how this impacted Transportes Monteblanco’s safety. In addition, Congress provided the Agency with the discretion to decide if the PASAs are completed in the United States or Mexico. As a result, we did not consider this issue further.

The OOIDA questioned how FMCSA conducted the PASA. Our responses to your questions are provided as follows:

  • Did FMCSA use contractors to conduct these PASAs?     No.
  • If FMC SA used contractors, what procedures and instructions were the contractors given?       Not applicable.
  • If FMCSA used contractors, who made the final determination that the motor carrier passed of failed the PASA?      Not applicable.
  • What records and data did FMCSA review?  The FMCSA reviewed safety management documents required to be maintained by all motor carriers operating in the United States to verify that Transportes Monteblanco, (including proposed drivers and vehicles) are in compliance with all mandatory elements to satisfactorily pass the PASA. The documents required are required by 49 CFR Parts 382, 383, 387, 391, 392, 393, 395 and 396 of the Federal Motor Carrier Safety Regulations.
  • What were the sources of such data?     1. The Agency reviewed information tiom the following systems: 2.Motor CatTier Management Information System  3. Safety Measurement System 4. Licensing and Insurance System  5.  SAFER System  6.Enforcement Management Information System. In addition, FMCSA reviewed the carrier’s files during the PASA and looked at insurance policies, driver qualification fil es, drug testing contracts, and sample Jog books and driver vehicle inspections reports, as well as other carrier docunents.
  • What kinds of safety records and data concerning the motor carrier and its drivers were available to the safety auditors from Mexican state or federal databases dw·ing the PASA? Were any such safety records and data non-existent, missing, or unavailable?

All required safety management docwnents were present and available to verify
that Transportes Monteblanco, (including proposed drivers and vehicles) are in
compliance with all mandatory elements to satisfactorily pass the PASA The
Agency also reviewed information provided by Mexico’s Secretaria de
Comunicaciones y Transportes and Policia Federal.

  • Which violations of Mexican laws and rules did FMCSA use as equivalent to U.S. “acute and critical” regulations? What kinds of data were available about such violations?

Not applicable, no violations reported. Additionally, FMCSA explained the
regulations that would be considered equivalent in the Federal Register notice
published on April 13, 20 I I.

  • Who were the drivers reviewed as part of the PASA and what information was available or not available, about them from U.S. databases and Mexican state and federal databases?

Drivers are not reviewed in the PASA. In addition, FMCSA will not reveal
personally identifiable information. The FMCSA verified all proposed pilot
program drivers possessed a valid license and were qualified per 49 CFR Part
391.

  • Exactly what vehicles were inspected during the P ASA, what was their history of compliance with the FMCSRs in the United States? What, if any, data in the possession of FMCSR enforcement officials was used to review Transportes Monteblanco ‘s compliance with Mexican law?

The FMCSA does not review compliance with Mexico’s law when regulating
Mexico-domiciled motor catTiers for operations in the United States.

  • The vehicles inspected for participation in the Pilot Program and issued a Commercial Vehicle Safety Alliance decal were:

I. 2011 , International Truck-Tractor, VIN- 3HSCWAPT7BN371434
2. 2011 , International Tmck-Tractor. VTN- 3HSCWAPT3BN371432

  • By what standard did FMCSA verify a system of HOS compliance (include recordkeeping and retention) with hours of service rules? Did FMCSA look for a history of compliance with Mexico’s hours of service rules?

The FMCSA only looked at compliance with U.S. hours of service rules. The
FMCSA does not apply/use Mexico’s laws or rules when regulating Mexico domiciled motor carriers for operations in the United States.

  • Why do safety auditors conducting PASAs not have full discretion to begin full compliance reviews as is the normal procedures with U.S. carriers?

Per the Agency’s PASA and Pilot Program requirements, at no time will a PASA
be converted to a compliance review. The PASA is intended to measure the
carrier’s ability to participate in the Pilot Program, not to apply a safety fitness
determination. Under our regulations. we will do a compliance review within 18
months of the carrier being issued operating authority.

We appreciate OOIDA ‘s’ continued interest in this program. With your input, we continue to find ways to make information clearer and more transparent, and confirm the safety profile of applicant carriers. 

Sincerely,
William A. Quade
Associate Administrator
for Enforcement

We’ll see if OOIDA gets the message. We doubt it and expect to see more of these same arguments submitted as each Mexican carrier is ready to enter the program.
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