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9/23/2011
IN DEPTH: OOIDA says pilot program creates 'two-tiered safety regime'
By Jami Jones, senior editor

If a Federal Register notice announcing the first Mexican motor carrier passing its safety audit was supposed to lay concerns to rest, it didn’t.

The Owner-Operator Independent Drivers Association filed comments on Thursday, Sept. 22, in response to a Federal Register notice published by the Federal Motor Carrier Safety Administration seeking comments on cross-border applicant Grupo Behr De Baja California SA DE CV.

While the notice was to provide comprehensive insight into Grupo Behr and its ability to comply with U.S. safety regulations, the Association’s comments draw a very different conclusion.

“This notice continues to demonstrate that FMCSA intends to give special treatment to Mexico-domiciled motor carriers under the proposed pilot program, not the ‘national treatment’ required under NAFTA,” the Association comments state.

“The pilot program continues to be on course to create a two-tiered safety regime under which U.S.-domiciled motor carriers and drivers will be required to follow a gold standard for transportation safety while their Mexican competitors follow a significantly inferior standard that will put the safety of Americans traveling on our highways in jeopardy.”

More questions than answers
OOIDA’s comments call into question FMCSA’s own readiness to move with a pilot program and ensure Mexican motor carrier compliance with U.S. safety rules.

In addition to the agency’s compliance with statutory restrictions on PASAs, the Association also asks how the notice satisfies statutory requirements to publish “comprehensive data” related to audits and how did Grupo Behr pass given publicly available information suggesting the company has inadequate safety history.

The agency’s cross-border plan was recently evaluated by the Department of Transportation Office of Inspector General. The subsequent audit stated that the agency was falling short in some area, notably the requirement to conduct 50 percent of the PASAs in Mexico.

“How could FMCSA conduct a PASA of Grupo Behr on Aug. 25 and 26 with the serious lack of preparation identified by the IG just one week before?” the OOIDA comments ask.

“The possibility of such speedy progress in correcting such deficiencies is even more doubtful given the agency’s assertion reported by the IG that ‘they had previously informed us in April and May 2011 that they did not plan to conduct reviews in Mexico due to safety concerns,’” OOIDA’s comments state.

The results of the PASA published in the Federal Register raised even more doubt in the minds of OOIDA’s leadership.

“OOIDA would expect that a Notice providing comprehensive data on a PASA would include the agency’s methodology and specific data about the motor carrier, the equipment, and the drivers to be involved in the pilot program,” the OOIDA comments state.

The comments go on to list 14 questions that the Association’s leadership believes the notice should have answered. Among the questions asked were the following: Where was the audit conducted? What data was reviewed? Did the inspector trigger a full compliance review when “acute and critical” violations were revealed?

The Association contends the notice is “simply devoid” of any information where the public could comment not only on FMCSA’s statutory compliance, but Grupo Behr’s ability to meet the requirements of the program and comply with U.S. safety standards.

Tilted information
OOIDA turned to publicly accessible documents to highlight what it believes to be a less-than-stellar safety history demonstrated by Grupo Behr.

The company currently has five trucks registered with FMCSA and operates two of those in the border zone. The company has a CSA BASIC rating of 45.8 percent in the Vehicle Maintenance compliance category. While that is far below the 80 percent threshold that would trigger FMCSA compliance actions, OOIDA counters that a glitch in CSA’s “peer grouping” methodology is creating a score that is skewed making the company appear safer than they are.

Under CSA, companies are grouped in the Vehicle Maintenance BASIC, or category, by the number of inspections they receive. Generally speaking, a U.S. operation with five trucks would encounter very few inspections. However, because Grupo Behr operates in the border zone with a higher occurrence of inspections, it is grouped with much larger U.S. motor carriers that, by sheer number of trucks on the road, accumulate more inspections.

Once the companies are grouped together based on the number of inspections, FMCSA compares the number of violations a company receives to other motor carriers in the same group. If a motor carrier has more than the average, it receives a higher score. If it has less, the score is lower.

Grupo Behr’s CSA data reflects 36 inspections with 23 total violations in the Vehicle Maintenance category.

OOIDA’s comments claim that rate of inspection creates an “anomaly,” which results in Grupo Behr being “peer grouped” with motor carriers operating many more vehicles.

FMCSA’s “Overall Performance Overview” for Grupo Behr shows that the carrier has been placed in the “Safety Event Grouping” category of 21-100.

“OOIDA believes that this methodology results in Grupo Behr’s scores being effectively ‘watered down,’” the OOIDA comments state.

Accountability questioned
While Grupo Behr has what appears to be a middle-of-the-road safety rating in the CSA Vehicle Maintenance category, a closer look at the violations noted raised even more reason for doubt for OOIDA as to the company’s intention to comply with U.S. regulations.

“FMCSA inspection records for Grupo Behr demonstrate what appears to be a history of two of their vehicles being repeatedly cited and placed out of service for the same violations – calling into question whether or not the cited defects were ever corrected,” OOIDA comments state.

The comments outline two instances where Grupo Behr’s trucks were repeatedly cited for out-of-service violations.

One truck, a 1989 GMC C6500 two-axle straight truck, was cited in inspection on June 7 of this year for inoperative brakes and placed out of service. The same truck was cited for the same violation and again put out of service six days later on June 13.

Similarly, Grupo Behr’s 1991 Freightliner tractor was inspected on May 2 and July 18 of this year and was placed OOS both times for violating the regulation governing “inspection/repair and maintenance of parts and accessories.”

In addition to a stiff fine for noncompliance, the Association points out the new entrants in the U.S. faced far more severe consequences for ignoring the situation.

“Furthermore, under §385.321, just a single violation of 49 C.F.R. §396.9(c)(2) demonstrates a failure ‘of safety management practices’ and ‘a lack basic safety management controls’ and requires the automatic failure of a New Entrant Audit and revocation of that motor carrier’s registration,” OOIDA comments state.

“Did FMCSA truly review the pattern of Grupo Behr’s recent safety violations and grant, rather than deny, the carrier’s new operating authority?”

Why the secrecy?
The Association’s leadership also outlined what appears to be a concerted effort to limit public access to information pertaining to Mexican motor carriers applying for authority to operate in the program.

“Most noticeable in OOIDA’s research is the information about Grupo Behr that FMCSA has apparently sought to hide, rather than disclose to the public,” OOIDA comments state.

In researching Grupo Behr, FMCSA’s Licensing and Insurance Public database noted removal of information regarding the company.

“A PASA conducted during the previous MX Long Haul Demonstration Program has been temporarily removed from this carrier’s Census record but can be viewed using EDMS (electronic document management system),” the website states.

The timing of the removal and the lack of detail about what information was removed drew fire from the Association in the comments.

“This removal of information is particularly disturbing because in its April 2011 notice regarding this Pilot Program, the agency announced that it intended to give prior participants in the Mexican truck Demonstration Project credit for the time in which they operated under that program,” OOIDA comments state.

In addition to removing information from the agency’s website, when an OOIDA representative attempted by phone, email and in person to obtain a copy of Grupo Behr’s application, the representative was repeatedly denied access by FMCSA.

“OOIDA’s request was not unusual. OOIDA regularly requests from FMCSA, and regularly receives from FMCSA, without issue, copies of applications for motor carrier authority by U.S.-domiciled individuals for the purpose of monitoring, and sometimes protesting, applications for motor carrier and broker authority by persons who have a history of not complying with motor carrier laws and statutes,” the Association’s comments state.

“FMCSA‘s refusal to comply with its own disclosure regulation under §365.117 appears typical of the opaque and secretive manner in which it has sought to conduct this pilot program.”

For the record
In addition to filing the comments to the official docket requesting comments on Grupo Behr’s application, OOIDA requested that the docket be recertified to the U.S. Court of Appeals for the District of Columbia.

The association filed legal action on July 6, the day the agency announced the pilot program in the DC Circuit. The case was recently placed on an expedited schedule.

Copyright © OOIDA

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