FMCSA releases Independent Panels analysis of Mexican Cross Border Program

Nov 06

FMCSA releases Independent Panels analysis of Mexican Cross Border Program

By PMC Cross Border Program Add comments

An independent evaluation panel’s report on the U.S.-Mexico cross-border trucking demonstration project prepared at the request of Secretary of Transportation Mary E. Peters, definitively shows that Mexican domiciled trucks can operate safely and in compliance with all US laws and USDOT regulations.

The report was prepared by Mortimer L. Downey III, chairman of the board of PB Consult Inc., James T. Kolbe, senior advisor at McLarty Associates and a professor in the college of business at the University of Arizona, and Kenneth M. Mead, a special consultant at Baker Botts LLP and former inspector general of the Department of Transportation.

The Independent Evaluation Panel was charged with a comprehensive evaluation of the Department of Transportation’s (DOT) United States-Mexico Cross-Border Trucking Demonstration Project, which began September 7, 2007. The panel had the responsibility of independently reviewing this project for 12 months, assessing the implementation of US motor carrier safety rules, and evaluating the compliance and safety record of Mexico-domiciled carriers and trucks operating in the United States under the project. The report was issued October 31.

Although the participation levels fell far short of what had been anticipated, largely in part to the misguided and protectionists efforts of opponents to derail the project through lawsuits and Congressional actions, the panel said that their work verified that FMCSA implemented policies and regulations regarding admitting Mexico-domiciled carriers into the demonstration project, establishing safety mechanisms at the border, ensuring enforcement of safety rules by state enforcement officials, and carrying out the DOT’s commitment to check every truck and every driver every time. Exactly as Congress has demanded in the past.

“This report provides a comprehensive, independent, analysis of the safety measures the agency put in place to ensure the success of the project,” FMCSA Administrator John Hill said. “As the report makes clear, those measures have effectively shown that U.S. and Mexican carriers can safely engage in cross-border trucking operations while providing U.S. drivers new opportunities to compete and succeed in a market where they previously were unable to operate.”

Among other findings:

Demonstration trucks had no reported crashes.
The DOT has honored its commitment to check every truck everytime.
FMCSA and state safety enforcement officials reported no crashes involving Mexico-domiciled trucks participating in the demonstration project. During the project, more than 7,000 safety inspections were conducted on the participant drivers and more than 1,400 safety inspections on the participant trucks, in addition to the every-truck-every-time checks done at the border-crossing facilities used by the OP-1 carriers.
Of the 7,000 driver safety inspections, 37, or less than 1 percent, resulted in out-of-service (OOS) violations.
The panel’s work “verified” that FMCSA implemented policies and regulations regarding admitting Mexico-domiciled carriers into the demonstration project, establishing safety mechanisms at the border, ensuring enforcement of safety rules by state enforcement officials, and carrying out the Department’s commitment to check every truck and every driver every time. More specifically, the report said the authors found that
(1) the Pre-Authority Safety Audits (PASAs) were comprehensive and the agency conducted all the audits on-site in Mexico,
(2) that FMCSA honored its commitment to check every truck every time at the border, and
(3) that FMCSA provided state safety enforcement officers with guidance on enforcing safety requirements for the demonstration project.

A copy of the 2008 INDEPENDENT REVIEW PANEL report can be downloaded by clicking the link

This Report totally debunks the objections of the opposition

On July 12, 2008, I undertook a decidedly unscientific look at the stats for these Mexican carriers and published it in the post titled Mexican Cross Border Pilot Program 10th Month Assessment This independent panel report verifies my findings exactly but from a more complete review.

It’s ironic that this report was released today. Last evening, I was listening to Todd Spencer mouthing off on Landline Now radio program. In his smirking voice, he felt assured that the new administration which is believed to be pro union, would put a swift end to the Cross Border Program and shut the southern border to any and all Mexican trucks.

This report, which was undertaken under rules established by Congress, should pretty much deflate the sails of the oppositon, especially Jimmy Hoffa of the Teamsters, who continues to erroneously refer to these trucks as “dangerous and illegal”?

More Highlights from the INDEPENDENT REVIEW PANEL REPORT 2008

Crashes, Inspections, Violations, and Driver Convictions. FMCSA and state safety enforcement officials reported no crashes involving Mexico-domiciled trucks participating in the demonstration project. During the project, more than 7,000 safety inspections were conducted on the participant drivers and more than 1,400 safety inspections on the participant trucks, in addition to the every-truck-every-time checks done at the border-crossing facilities used by the OP-1 carriers.
Of the 7,000 driver safety inspections, 37, or less than 1 percent, resulted in out-of-service (OOS) violations. The driver OOS rate for the demonstration project carriers was lower than the rates of the grandfathered carriers and U.S.-domiciled carriers but similar to the rate for the border commercial zone carriers
Of the 1,400 vehicle safety inspections, 130, or 8.7 percent, resulted in OOS violations. By comparison, the vehicle OOS rate for the project participants was less than half the rates for the grandfathered carriers (24 percent), commercial zone carriers (22 percent), all U.S.-domiciled carriers (23 percent), and new-entrant U.S. motor carriers (28 percent)
The panel found a total of 6 cases out of the more than 12,000 truck trips in which a demonstration project driver was convicted for a driving offense. FMCSA provided us with records of drivers’ convictions from its Mexican Conviction Database for 2000 to 2008. Our review of the records shows that from September 7, 2007, to September 6, 2008, there were three cases in which a demonstration project driver was convicted for a driving offense. All three drivers worked for the same Mexican carrier. One of the convictions was for speeding 6 to 10 miles beyond the speed limit, and two were for general equipment failure, such as inoperable brake lights or insufficient tire tread.
The panel also reviewed the conviction records for the demonstration project drivers in the Commercial Driver’s License Information System (CDLIS) and found three additional convictions during this same period. These three convictions were for improper lane change and defective lights. Relatively minor offenses.

FMCSA’s Conduct of Demonstration Project.

The panels work verified that FMCSA implemented policies and regulations regarding admitting Mexico-domiciled carriers into the demonstration project, establishing safety mechanisms at the border, ensuring enforcement of safety rules by state enforcement officials, and carrying out the Department’s commitment to check every truck and every driver every time.

More specifically, the panel found that

The Pre-Authority Safety Audits (PASAs) were comprehensive and the agency conducted all the audits on-site in Mexico,
FMCSA honored its commitment to check every truck every time at the border, and
FMCSA provided state safety enforcement officers with guidance on enforcing safety requirements for the demonstration project.

FMCSA stated in a June 8, 2007, Federal Register notice that the Panel would review whether the agency detected violations of 11 critical safety regulations in any greater proportion than found in conducting new-entrant safety audits of U.S.-domiciled carriers. The agency also stated that ?the FMCSA has determined that a violation of any of the following 11 critical regulations is so significant that it merits failure of the safety audit.

The panel observed that FMCSA did find fewer violations of the 11 safety regulations among the Mexican carriers that passed the PASA than among the U.S. carriers that passed the new-entrant audits.

Check Every Truck Every Time.

The Department honored its commitment to check every truck every time, and FMCSA implemented a key quality-control plan to guarantee that Mexican carriers were checked, as the Department had committed to do. Our evaluation verified that FMCSA jointly developed 25 site-specific plans with U.S. Customs and Border Protection (CBP) to ensure that checks of Mexican trucks in the demonstration project would occur.

English-Language Proficiency.

FMCSA checked the English-language skills of Mexican drivers in the project. There are two components of FMCSA’s protocols for implementing the U.S. federal motor carrier regulations requiring all commercial motor vehicle drivers to have sufficient English-language skills. First,

They must be able to read and speak English sufficiently to converse with inspectors and the general public, respond to official inquiries, and make entries on reports and records.
Second, they must be able to demonstrate that they understand the meaning of highway traffic signs and signals that are in English.

For the demonstration project, FMCSA inspectors at the border tested Mexican drivers’ proficiency in English by asking a series of verbal questions and requiring the drivers to respond in English.

Inspectors separately tested comprehension of U.S. road signs by showing drivers a set of signs and having them respond in English or Spanish to indicate their understanding of the meaning of the signs.

The fact that drivers could respond with a Spanish word to indicate their understanding of the meaning of a sign (for example, ?stop? or ?detour?) in no way compromised their English proficiency, since their speaking and reading skills were tested separately in the verbal part of the test.

The panels review verified that FMCSA gave both tests to project participant drivers at the border-crossing facilities when they entered the United States. The agency also provided guidance to state inspectors on implementing these protocols.

Insurance

The panel independently reviewed the insurance information the demonstration project carriers submitted to FMCSA. They also contacted the five insurance companies that provided coverage for the 29 carriers that were granted OP-1 long-haul authority. We verified that all 29 Mexican carriers obtained the required minimum of $750,000 in bodily injury and property damage liability insurance before they received their long-haul operating authority. Of the 29 carriers, 24 had the minimum $750,000 of coverage, 4 had $1 million of coverage, and 1 had $5 million of coverage.

Observation of Border Inspections.

The Independent Review Panel conducted a comprehensive review of FMCSA’s monitoring and enforcement mechanisms at the U.S.–Mexico border from February 2008 to August 2008. They directly observed FMCSA and state safety operations at 21 of the 25 commercial truck crossings at the southern border of the United States, including all the high-volume entry points, such as Laredo and Brownsville in Texas and Otay Mesa in California. The panel determined that FMCSA had adequate site-specific plans for the commercial truck crossings and for conducting the truck checks and inspections in a manner consistent with the Department’s commitments. Additionally, their review of the border-safety operations found that FMCSA had inspection equipment and the capacity to conduct meaningful truck inspections of the demonstration project trucks at the 21 border-crossing facilities our independent inspectors visited.

State Enforcement Officers’ Implementation of Demonstration Project Guidance.

FMCSA took steps to ensure project participant carriers’ compliance with its motor carrier safety rules. These actions included ensuring that state enforcement officials were prepared to monitor the participant carriers and understood how to implement the demonstration project’s policy guidance. The panel interviewed officials from 48 states and the District of Columbia. It verified state safety officials’ understanding of the enforcement of demonstration project guidance and found states had received training and guidance from FMCSA on English-language proficiency assessment and requirements for placing Mexican vehicles out of service. From our interviews, it was clear that FMCSA prepared guidance and provided materials through the Motor Carrier Safety Assistance Program (MCSAP) coordinators for the states. Most of the states indicated that FMCSA guidance on the project had filtered to safety officers at the state motor carrier enforcement agencies. More than 30 states noted they had not encountered demonstration project trucks, and 8 states expressed concern about how to deal with nondemonstration project Mexican trucks that leave the commercial zone and operate illegally in their states.

Three Concurrent FMCSA Operating Authorities for Mexican Carriers Operating in the United States.

I have been determinedly trying to hammer this point home for more than a year. And here is verification. The panel determined that there are far more Mexican carriers operating legally beyond the border commercial zone than there were in the demonstration project—861 versus 27. These other Mexican motor carriers have been operating legally beyond the commercial zone under authority granted between 1982 and 1994. Members of the panel observed that FMCSA currently has three operating authorities for Mexican carriers to operate within the United States:

Authority to operate under this demonstration project;
Authority to operate within specific states or anywhere in the United States under pre–North American Free Trade Agreement (NAFTA) provisions; and
Authority to operate within the border commercial zone.

FMCSA’s safety requirements for Mexican trucks to operate in the United States vary under these three operating authorities. For example, only demonstration project carriers are subject to the stringent and comprehensive Pre-Authority Safety Audit (PASA). The panel found that the percentage of vehicles placed out of service during the roadside safety inspections was 9 percent for the project trucks, 24 percent for the grandfathered carriers, and 22 percent for the commercial zone carriers. The National average for US carriers is 23%.

Drug- and Alcohol-Policy Compliance

The independent panel determined that the PASAs conducted on Mexican carriers that applied for the demonstration project addressed U.S. drug- and alcohol-testing requirements, including a key requirement to use drug-testing laboratories certified by the U.S. Department of Health and Human Services. We observed that in most material respects, Mexico has a drug-testing program with protocols that are at least equivalent to U.S. protocols, although some aspects of the specimen-collection procedures are not identical to those specified in U.S. regulation 49 CFR 40. ( In other words some faggoty character watching you pee in the cup as proposed under new drug testing rules in the US, which were recently put on hold by a DC District Court injunction)

Safety Databases in Mexico for Drivers’ Licenses, Truck Inspections, and Crashes

Further debunking one of Todd Spencers pet peeves (No Databases! No Databases) which we have know to be a lie for some time, the Independent panel verified that Mexico has databases with information on the safety records of drivers engaged in commercial motor vehicle operations, on vehicle and driver violations, and on truck crashes.

Officials with Mexico’s Department of Transportation, the Secretaría de Comunicaciones y Transportes (SCT), indicated that the database of drivers’ licenses is well established and that coverage of licensed drivers and system reliability have improved over the past five years. Additionally, SCT has databases for commercial motor carrier inspections and crash data that are fairly recent and are undergoing improvements in terms of numbers of inspections and reportable accidents that are entered into the system. These databases cover inspections and incidents on Mexican federal roads and have three years of carrier- and driver-specific data on commercial motor vehicle operations.

This report should squelch all of the ridiculous assertions of the opposition as it pretty much answers all the objections real or imagined.

I doubt that it will though. Protectionist interests seem determined to undermine the credibility of this country by refusing to allow us to fulfill out promises and committments made under NAFTA.

They have wrongly used the illegal immigration debate as a vehicle to push their anti mexican agenda upon and unsuspecting American public.

Hopefully, the new administration will see through this subterfuge and resist efforts by the Teamsters, OOIDA and other self interest groups to force us to ignore our obligations.

The panel made 7 suggestions to improve monitoring and implementation of the program.

To accurately assess the safety performance of carriers in the demonstration project, FMCSA would need a larger sample of Mexican carriers than the 27 current participants. The agency could start with the 38 additional carriers that successfully passed the safety audits but because of lack of insurance were not granted OP-1 operating authority—if those carriers still have an interest in participating. If all these additional carriers secured the necessary insurance and were granted OP-1 authority, the total number of Mexico-domiciled carriers would be 65 and the total number of trucks would be about 300. The agency would have better statistical results with a larger sample size.
The panel observed that the mechanism for checking the 27 participant carriers and their 101 trucks is more stringent than what is in place for about 860 carriers and their 1,700 trucks that have ?grandfathered? status or certificates of registration to operate in specific states beyond the commercial zone. The panel strongly urge FMCSA to extend similar inspection procedures and rigor to the other carriers that have long-haul operating authority and travel beyond the commercial zone. FMCSA informed the Panel that it intends to develop a more strategic enforcement focus for its inspection procedures in conjunction with the compliance review process established for Mexican carriers operating in the United States.
The existence of three operating authorities with varying safety requirements for Mexico-domiciled carriers offers an opportunity for the Department to bring Mexican carriers currently operating beyond the commercial zone in the United States under a single safety umbrella. A combined safety program for Mexican carriers with long-haul authority would enable FMCSA to better monitor and identify the unsafe carriers within these groups so that the carriers could improve their operations or FMCSA could put them out of service. Such a program would also streamline FMCSA’s safety oversight process, allowing the agency to focus its resources on expanding the number of compliance reviews it conducts on Mexican carriers with poor safety records. The Panel recognizes that certain safety features of the current demonstration project, such as a pre-condition PASA, would not be applicable to the grandfathered and certificated Mexican carriers, although a vigorous program of compliance reviews could be a substitute. However, other features, such as a special suffix next to the USDOT number for easy identification of trucks when they operate beyond the border zone and the every-truck-every-time checks at the border, could be applicable to these long-haul carriers. FMCSA has committed to take the necessary steps to ensure these carriers have a unique identifier added to their existing USDOT number.
With regard to the PASA, because FMCSA said it did not properly articulate its intent with respect to use of the 11 safety regulations, we urge the agency to correctly state in a Federal Register notice how it plans to incorporate these regulations into the PASA. Using these 11 safety regulations (or whatever critical elements emerge in the New Entrant Rule) as pass-fail eligibility criteria in the PASA would improve the agency’s ability to identify unsafe Mexican carriers and ensure that deficient basic safety-management procedures are corrected before carriers are granted long-haul operating authority.
FMCSA equipped 73 of the 101 Mexican participant trucks with GPS tracking devices, and we believe that these devices are an important safety control. As the devices are mounted on all the remaining project trucks, FMCSA should require more accurate and specific vehicle location and destination data from the database behind the tracking system. These data would allow the agency to improve its monitoring of project trucks when they operate beyond the border zone.
FMCSA did not report any insurance-related problems to the Panel other than the one carrier that allowed its insurance to lapse. The panels interviews of the five insurance companies insuring the 29 demonstration project carriers did not indicate any further problems. However, FMCSA needs a more effective monitoring system to stop carriers who operate without the required insurance and operating authority before they enter the United States.
Considering the Department’s announcement to extend the demonstration project and the stated objective to increase the number of Mexico-domiciled carriers participating in the project, it is important for the Department to monitor the adequacy of its staffing, inspection equipment, and other resource needs for the demonstration project. The Department should determine whether it needs to augment its inspection capability, equipment, or other support resources to accommodate the expected increase in the number of project participant carriers

We totally agree that these 7 recommendations are vaild and agree with them in principle. However, they should not be used as another psuedo excuse by the opposition in an attempt to stall this program further. It has now been shown that without any doubt nor reservations, the Mexican carriers have the ability to operate as an equal to our carriers.

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