FMCSA defends cross-border program in court

Jill Dunn | February 17, 2012

The Federal Motor Carrier Safety Administration has responded in federal court to organizations that petitioned to stop the agency’s cross-border trucking program with Mexico.

Additionally, in response to a media inquiry, the agency provided an update on U.S. carrier applicants for participation in Mexico’s cross-border pilot program. Three out of the 10 U.S. carriers that received operating authority during the previous cross-border project continue to operate in Mexico.

On Feb. 15, FMCSA filed separate reply briefs to the Owner-Operator Independent Drivers Association and to the Teamsters, Public Citizen and Sierra Club in the U.S. 9th Circuit Court of Appeals. The court had ordered the two cases be argued on the same day before the same panel, but has not scheduled oral arguments.

In both briefs, the agency asserted the groups are not regulated by the program or eligible for participation and, therefore, lack standing in the case. Additionally, they have not proven the program presents significant risk of harm because Mexican participants are held to equivalent safety standards with additional rules.

FMCSA also argued OOIDA had not shown evidence association members will experience a loss of business. Nor did OOIDA identify members who would be directly affected, such as those who deliver between the border zone and other U.S. locations.

Only two Mexican carriers have received authority and between those two, a total of three drivers and two trucks are authorized to operate beyond the border zone. Of the 15 additional program applicants, just two have cleared the Pre-Authorization Safety Audit required for participation.

During the cross-border project that Congress ended in 2009, more than 85 percent of deliveries by Mexican carriers were to commercial border zone destinations, FMCSA added.

The Teamsters asserted the program was not “designed to ensure participation by a reasonable and representative sample of motor carriers,” as required by law.

Participation is low, but the three-year program is in its fourth month. Also, the July Federal Register notice on the program outlines steps to ensure statistics are not skewed by a large number of inspection reports from a small number of carriers.

Federal law requires DOT’s inspector general report to Congress on the program, including verifying that a representative sample is used.

Finally, Teamsters attorneys argued the agency had not met environmental law obligations and should have considered alternatives to mitigate potential environmental harm. FMCSA lacks the authority to impose the alternatives proposed by Teamsters, however, the agency stated.

On Feb. 8, FMCSA’s Motor Carrier Safety Advisory Committee learned Grupo Behr of Apodaca, Nuevo León, had violated U.S. leasing laws pertaining to Mexican carriers. Grupo is one of the two Mexican carrier applicants that has successfully completed PASA but not yet received authority.