Court combines cases opposing cross-border plan
A court has consolidated lawsuits opposing the U.S. cross-border program with Mexico and operating authority has been granted to a second Mexican carrier.
The Teamsters union, Public Citizen and Sierra Club petitioned the U.S. Court of Appeals for the 9th Circuit Nov. 15. The court granted the Department of Justice’s request to transfer that case to the District of Columbia’s appellate court, where the Owner-Operator Independent Drivers Association had filed suit July 6, also seeking to block the program from proceeding.
On Jan. 6, the court ordered oral arguments in both cases are to be on the same day before the same panel of judges, but no date had been set. The Federal Motor Carrier Safety Administration’s brief is due Feb. 1 and the petitioners’ reply brief Feb. 22.
The agency had granted provisional operating authority to Moises Alvarez Perez of Tijuana, Baja California Dec. 28. The carrier, DBA Distibuidora Marina El Pescador, lists one truck and one driver, according to a Jan. 9 FMCSA report.
Transportes Olympic, which has one truck and two drivers, was the first program participant to deliver beyond the border zone Oct. 21. The carrier, based in Apodaca, Nuevo León, is the only applicant to receive permanent operating authority.
Distibuidora Marina, Transportes Olympic and Grupo Behr of Apodaca, Nuevo León, have cleared Pre-Authority Screening Audits, which the agency conducts on applicants to verify program compliance.
The FMCSA had intended to grant Grup0 Behr authority, but announced Oct. 14 it would extend review to investigate questions raised by groups on its PASA results.
The agency reported Jan. 9 it had conducted compliance reviews in Mexico on Distibuidora Marina and Transportes Olympic in February 2009 under the previous cross-border program.
PASA results are pending for three additional program applicants. FMCSA representatives conducted PASAs in the United States on Transportes Unimex SA de CV of Reynosa, Tamaulipas and GCC Transporte SA de CV of Chihuahua, Chihuahua. Transportes Unimex has 30 trucks and 28 drivers and GCC Transporte has 15 trucks and 15 drivers.
The third company awaiting PASA results is Baja Express Transportes SA de CV, but the FMCSA website did not provide additional company information or did it identify six applicant companies that had failed PASAs.
On Oct. 20, the agency’s Office of Inspector General began its program audit for Congress, in accordance with 2007 law. It will decide if sufficient data exists to determine if the program reduces trucking safety and whether compliance can be assured.
The OIG also will decide if participants are a representative and adequate sample of Mexican carriers that would seek cross-border operations, as this was considered lacking in the previous program. Over a three-year period, 46 participants would be necessary to produce sufficient results to validate the program, according to a congressional report issued in May.
The Teamsters’ Dec. 21 petition stated the program is not designed to include sufficient participants to yield statistically valid findings. Both the union’s and OOIDA’s petitions state the program is arbitrary and capricious.