OOIDA: FMCSA ‘getting cart before the horse’ on cross-border program

| 9/16/2011

The very agency charged with ensuring the compliance of Mexican trucks participating in a cross-border program is apparently operating above the law by even moving forward with the program, according to OOIDA.

The Department of Transportation’s recent announcements that two Mexico-domiciled motor carriers have passed Pre-Authority Safety Audits drew fire from the president of the Owner-Operator Independent Drivers Association on Wednesday, Sept. 14.

OOIDA President Jim Johnston sent a letter to Secretary of Transportation Ray LaHood that outlines the numerous legal requirements the agency faces – before proceeding with a cross-border program.

In order to open the border to long-haul trucks from Mexico, the DOT must comply with an extensive list of requirements outlined by Congress and signed into law. These requirements are contained in Section 350 of Public Law 107-87 and Section 6901 of Public Law 110-28.

The agency’s compliance shortcomings were recently outlined in an audit released by the DOT’s Office of Inspector General.

Johnston points out that in light of the noncompliance noted in the audit, that Section 6901 requires the DOT now supply Congress with a follow-up report addressing issues raised in the audit and detailing needed actions to resolve the issues.

“Aren’t you getting the cart before the horse?” Johnston asks LaHood in the letter. “How can the FMCSA utilize taxpayer resources to review and process those applications or initiate the so-called pilot program in any way before complying with (those) terms and conditions.”

One significant shortcoming outlined in the audit was the failure of the DOT to establish procedures for conducting 50 percent of the Pre-Authority Safety Audits onsite in Mexico.

“FMCSA has not finalized its plans for nor identified the specific process it will use to comply with five requirements to conduct 50 percent of PASAs and compliance reviews in Mexico, and its policy on conducting PASAs for the new pilot program does not address where the reviews will be conducted,” the OIG’s audit states.

“To my knowledge FMCSA has not supplied Congress with the follow-up report as required,” Johnston wrote. “Yet the agency has gone forward with conducting Pre-Authority Safety Audits as it process authority applications for Mexico-domiciled carriers.”

The audit also concluded that while FMCSA has the staffing to conduct inspections on the border, what those inspections will entail remains a big question mark.

“Although FMCSA has taken positive actions to improve monitoring of Mexican drivers and trucks, it has not yet addressed certain issues for implementing the pilot program,” the audit states. “Specifically, FMCSA has not (1) issued coordinated site-specific plans for checking drivers and trucks at the border; (2) established a system to verify driver and vehicle eligibility for the pilot program; (3) issued an implementation plan nor acquired electronic monitoring devices for use in the pilot program; and (4) conducted pilot program training for inspection personnel at the border and within the United States.”

Johnston reminded LaHood in the letter that sufficient enforcement and monitoring activities by federal and state personnel are also stipulated in Section 6901 and are fundamental to the program FMCSA has initiated.

“As the secretary of transportation you have repeatedly conveyed an expectation that truckers in the United States strictly adhere to the laws and regulations of our nation,” Johnston wrote.

“It is disingenuous for your department to not abide by those same expectations and to disregard laws that Congress has put in place to ensure that Mexico-domiciled trucking companies comply with the same standards that already apply to U.S.-based companies.”