FMCSA responds to cross-border trucking lawsuit

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A union-backed effort to halt a program to give U.S. truck drivers access into Mexico and allow a limited number of Mexican trucks to operate long-haul routes within the United States lacks merit, according to documents filed Thursday, Aug. 30 with the U.S. Court of Appeals for the Ninth Circuit.

The documents were filed on behalf of the Federal Motor Carrier Safety Administration in response to an emergency stay request filed by the Teamsters and other groups Wednesday, Aug. 29.

The emergency motion is “notable for the complete absence of any assertion of immediate and irreparable injury,” according to the government’s court filing. The government argues that the court should not issue a stay “in light of the petitioner’s failure to show any irreparable injury.”

The government filing notes, for example, that each year trucks from Mexico make 4.5 million trips across the border into U.S. cities like San Diego and El Paso, Texas. These trucks have a safety record that meets and in some cases exceeds the safety record of U.S. trucks, the filing states.

The filing adds that the Department of Transportation’s cross-border truck demonstration program will have no impact on safety, given the thorough pre-screening and safety inspections that every truck from Mexico will have to endure before being allowed to travel into the United States and beyond the existing commercial border zones.

The government response to the stay motion also notes that 44 trucks from Mexico are expected to participate in the program during its first 30 days, and that during the yearlong program no more than 100 carriers will be authorized to participate.

In addition, the agency separately noted that the DOT’s Inspector General must submit a congressionally-mandated assessment of the program, the Department must respond to that assessment, and U.S. companies must begin receiving clearance to operate in Mexico, before the agency will begin allowing a small number of Mexican trucks to change the way they operate within the United States. The filing makes clear that the program is not anticipated to start any sooner than Thursday, Sept. 6.

The groups arguing for the stay “have made absolutely no showing that they will be irreparably harmed by commencement of the demonstration project,” the filing concludes.

The emergency motion to stop the cross-border plan was filed Wednesday, Aug. 29. FMCSA had not announced a start date, but the Teamsters said the agency told the union the controversial program would begin as soon as Saturday, Sept. 1.

The other groups in the suit are Public Citizen, the Sierra Club, the Environmental Law Foundation and Local 70 of the Auto and Truck Drivers union. The Owner-Operator Independent Drivers Association also said it would request an injunction to halt the program.

The plaintiffs argue that the program violates a law Congress passed in May that has requirements FMCSA has not met, including:

  • That federal officials publish information on inspections of Mexican carriers planning to operate beyond the border zone and provide for public comment; and
  • That the program have sufficient participants to produce statistically valid findings for an informed decision on whether to allow Mexican trucks to operate freely in the United States.
  • The Bush administration has been careful to call the cross-border program a “demonstration project.” Its opponents maintain that it is, instead, a “pilot program” subject to all the requirements of federal pilot programs, including extended periods of public comment.

    “Congress responded to concerns about the safety and security implications of this pilot program,” says Todd Spencer, OOIDA executive vice president. “It is truly amazing that the administration is choosing to ignore Congress and the people they were elected to represent.”

    “The administration has thumbed its nose at Congress by its clear failure to comply with lawmakers’ requirements,” says Bonnie Robin-Vergeer, a Public Citizen lawyer. “There is no harm in delaying the program for a short time to make sure it is done right.”