Federal Update
In spite of pilot-program failure, FMCSA bullies its way forward

By Jami Jones, managing editor

The U.S.-Mexico border is now open to long-haul trucks from Mexico following a surprise move by the Federal Motor Carrier Safety Administration in mid-January.

The move follows the release of an audit of the cross-border pilot program by the Department of Transportation Office of Inspector General. The audit concluded that the program did not have enough participation to project the ability of Mexico-based motor carriers to operate beyond the commercial zone.

In what the Owner-Operator Independent Drivers Association considers an “end-around move,” the agency admitted to the lackluster performance of the pilot program in a report to Congress, released Jan. 9. In spite of that admission, the same day the agency released a notice that it would begin accepting applications for operating authority from Mexico-based motor carriers on Jan. 12.

The agency reported to Congress that the performance of the pilot program participants – and 351 enterprise motor carriers, which are 55 percent Mexico-owned, U.S.-based companies that were not in the pilot program – justifies no changes to the regulations.

At the conclusion of the cross-border pilot program on Oct. 10, 2014, only 15 motor carriers participated in the program. FMCSA estimated it needed 46 motor carriers to produce a statistically valid sample. During the pilot program, 90 percent of the border crossings and 80 percent of the inspections were accumulated by two of the 15 participating characters.

“This skewed distribution of activity makes a statistical projection about the ability of Mexico-domiciled carriers to operate safely beyond the commercial zones along the United States-Mexico border unreliable,” the Inspector General report states.

In addition to very limited participation, a small percentage of the miles were generated outside the commercial zone. According to the audit, only 17 percent of the miles accrued happened while traveling outside of the four border states. And that does not take into account the miles traveled inside the border states, but outside the commercial zone. FMCSA did not differentiate between those miles in its reporting.

In spite of the additional inspection data, the OIG determined the pilot program lacked an adequate and representative sample of participant carriers to project these results across the universe of Mexico-domiciled carriers likely to engage in cross-border operations.

The agency continues to insist that the Mexico-based motor carriers operated more safely than their U.S. counterparts. A contention that OOIDA says is patently false based on research into the inconsistent enforcement between Mexico-based and U.S.-based motor carriers.

The OOIDA Foundation broke down the out-of-service rates reported by FMCSA that appears to show a higher level of regulatory compliance by Mexico-based and Mexico-owned motor carriers than their U.S. counterparts.

What the Foundation found is an inconsistency that exists between the three different types of motor carriers and how violations are treated. That inconsistency resulted in U.S. motor carriers being placed OOS at a much higher rate for the same violation.

One example is the regulation that drivers must be able to communicate in the country in which the driver/carrier is operating. If the driver is unable to communicate sufficiently, the driver is to be put out of service.

Mexico-based motor carriers had significantly more violations of the non-English speaking driver regulation in which the resulting out-of-service orders were not executed. Of the 82,841 violations reviewed by the Foundation, only 0.07 percent were placed out of service. Conversely, of the 3,335 violations found in U.S. based motor carriers, 71.95 percent were placed out of service.

Applying similar OOS rates to all three categories for the number of inspections with OOS violations, the Foundation found that Mexico-based motor carriers should have had a far higher driver OOS rate than U.S. carriers, had the drivers actually been put out of service at the same frequency.

OOIDA contends this inconsistency in the execution of OOS orders has to do with inspection procedures and logistics at the border. The inability to properly inspect trucks coming into the U.S. in a timely fashion without creating a backlog, and the sheer lack of space to put that many trucks and/or drivers out of service, keep the OOS rate artificially low.

“The FMCSA is clearly doing an end-around and playing with numbers to try and justify opening the border to long-haul trucks from Mexico,” said Todd Spencer, OOIDA executive vice president. “It’s clear from the lack of participation that Mexico-based motor carriers are not interested in hauling beyond the commercial zone, if it means complying with the same regulations that U.S. truckers do.

“FMCSA’s persistence to move this program forward is mind-boggling, especially when the agency tells us ad nauseam that their highest priority is safety. Yet this program is all about geo-political economics.” LL