Border Snag

While the Federal Motor Carrier Safety Administration has complied with safety requirements to allow long-haul Mexican carriers to operate throughout the United States, said the U.S. Department of Transportation, a court ruling could delay opening the U.S.-Mexican border another two years.

FMCSA officials have said the delay could be longer than that if “environmental mitigation measures are required.”

Agency officials are reviewing their options, including whether they should recommend an appeal to the Supreme Court. They are also deciding if they should prepare an environmental impact statement in addition to appealing.

The FMCSA issued a report a year ago in compliance with the 2002 U.S. DOT Appropriations Act. It required the U.S. Office of Inspector General to review the agency’s implementation of safety requirements for Mexican long-haul motor carriers.

That act required the OIG to conduct a follow-up report, which was issued June 2. That report notes the FMCSA’s compliance in areas such as hiring and training inspectors, inspection facilities and inspectors’ abilities to access information on Mexican trucks and drivers electronically.

However, the OIG also points out that the DOT’s loss of a lawsuit April 10 in the U.S. 9th Circuit Court of Appeals could delay the border opening another 24 months. Public Citizen, the California Trucking Association and labor groups were among the groups that filed that lawsuit, which included the Natural Resources Defense Council and the Planning and Conservation League as petitioners-interveners.

The court’s 47-page opinion denies the DOT’s petition for a rehearing of the decision. It also refuses the department’s request for a full court review of its Jan. 16 ruling, when the appellate court ruled the Bush Administration had not met environmental law requirements when it announced it would open the border.

On Nov. 27, Bush lifted the moratorium on granting Mexican carriers operating authority and authorized the DOT to begin processing Mexican applications for long-haul authority to provide scheduled cross-border bus and truck traffic. The court upheld the petitioners’ argument that the agency is required to complete a full environmental impact statement and a Clean Air Act analysis, according to the June 2 report, which has been submitted to Congress.

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Before the ruling, negotiations between the two countries had occurred to finish a Memorandum of Understanding for FMCSA personnel to conduct safety audits and compliance reviews in Mexico. Federal law stipulates the agency perform half the reviews and audits in Mexico.
As of March 28, the agency had received 232 Mexican applications for long-haul authority, and 212 of these carriers had said they would operate a total of 1,431 trucks. Five of the applicants were passenger bus companies.

Until FMCSA completes the required environmental analysis and statement, three FMCSA regulations that are the act’s pre-conditions to the agency processing Mexican carriers’ applications seeking long-haul authority are set aside.

On March 19, 2002, the FMCSA issued three regulations. One involved Mexican carriers applying to operate beyond the commercial zone. The second dealt with a safety monitoring system and compliance initiative for Mexican trucks operating in the United States. The last involved certification of auditors, inspectors and investigators for safety.

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