Senator: DOT breaking law by continuing cross-border program

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U.S. Sen. Byron Dorgan (D-N.D.) took issue Thursday, Jan. 3, with last week’s announcement by the U.S. Department of Transportation that it would continue the pilot program allowing Mexican long-haul trucks into the United States – despite a provision in law authored by Dorgan that shuts the program down.

In a letter to Secretary of Transportation Mary Peters, Dorgan said the Bush administration’s statement that it will continue the pilot program – despite a law enacted last month scrapping it – is both arrogant and wrong. The provision that shuts down the program was approved as part of the appropriations bill.

“There are not equivalent safety standards dealing with Mexican trucks and drivers, including the sharing of safety inspections, drivers’ records and accident reports between the U.S. and Mexico,” Dorgan says. “Until that time, allowing long-haul Mexican trucks into this country increases risks on the American roadway. That’s the reason Congress has adopted my amendment prohibiting the pilot program.”

The Federal Motor Carrier Safety Administration said last week that the current cross-border pilot project will continue despite the funding ban, saying the language in the appropriations bill prohibiting funds “to establish” a program doesn’t apply to the program already in place. “In accordance with the 2008 omnibus appropriations act, the U.S. Department of Transportation will not establish any new demonstration programs with Mexico,” FMCSA said in its prepared statement. “The current cross-border trucking demonstration project – established in September – will continue to operate.”

Dorgan says what appears to be the administration’s intentional misinterpretation of that amendment flies in the face of established law, precedent and the facts. As evidence, he presented a letter from the Senate Legislative Counsel, which drafted the amendment, reaffirming the amendment’s intent to prevent the pilot program from continuing. He also noted that the record of the Senate debate clearly shows that senators – both those in favor and opposed – agreed the amendment would put an end to any such pilot program.

The cross-border program, which has been in place since Sept. 6, allows a limited number of Mexican trucking companies to operate beyond the 25-mile commercial zone in the United States. Under a reciprocity agreement with Mexico, the one-year pilot program also allows a limited number of U.S. carriers to operate into Mexico.

Dorgan says before the administration started the program last September, their own Inspector General said the United States does not have adequate access to vehicle inspections, accident reports or drivers’ records dealing with Mexican long-haul trucking. Until those records exist and equivalent standards are developed, there should not be a pilot program with Mexico, Dorgan says.

If DOT continues the pilot program that began last September, it will be clearly and directly in violation of federal law, Dorgan asserted in his letter to Peters. He called on Peters and DOT to end the pilot program.

FMCSA says that so far it has granted authority to 13 Mexican carriers to operate a total of 58 trucks in the United States under the program, and five U.S. carriers have been allowed to operate a total of 45 trucks in Mexico. FMCSA had notified an additional 34 Mexican carriers that they had successfully passed a pre-authorization safety audit.

The Teamsters has expressed outrage at the administration and vowed to press ahead with a lawsuit against the program, which is pending in a federal appeals court in San Francisco. “We’re not happy,” Teamsters spokeswoman Leslie Miller told the Kansas City Star. “We believe they are breaking the law.”

The Teamsters planned to file a letter Monday, Jan. 7, with the 9th Circuit Court of Appeals in San Francisco. The letter would submit that Section 136 of the omnibus budget, known as the 2008 Consolidated Appropriation Act, provides new authority to kill the Mexican truck program. “If there were any doubt, however, legislative history conclusively demonstrates that Section 136 governs this case,” states the letter, formally known as a “28(j) letter.”

A Feb. 12 hearing date has been set before the 9th Circuit.