FMCSA files response to Mexican truck suit in 9th Circuit

SAN FRANCISCO – The Department of Transportation on Monday filed its response to petitions seeking to halt the NAFTA cross-border trucking demonstration program with Mexico.

In its response, DOT basically argues that neither the Owner-Operator Independent Drivers Association (OOIDA) nor the Sierra Club — lead petitioners in the consolidated actions — demonstrates “the injury in fact” or “the particularized harm” necessary for Article III standing and federal court intervention. It was filed here with the U.S. Court of Appeals for the Ninth Circuit.

“The two declarations submitted by Sierra Club offer nothing more than the speculative conclusion that granting a limited number of Mexico-domiciled trucks broader access to U.S. highways will cause an increased likelihood of road accidents (a factual assertion contradicted by regulatory enforcement statistics collected by [the Federal Motor Carriers Safety Administration]),” the response states. “And OOIDA has presented neither declarations nor any other evidence.”

The filing goes on to argue that FMCSA has met congressional mandates for the program, and that none of the commercial vehicle operational issues raised in the petition “poses any impediment” to continuing it.

An OOIDA spokesman today said the association was still reviewing the response.

OOIDA’s petition contends FMCSA, “in its zeal to open all U.S. highways to Mexico-domiciled trucks,” did not follow congressional directives and legal requirements.

“We believe we have a strong case against what is being called a pilot program, but is actually a stealthily implemented, pre-ordained plan to fully open our highways to Mexican trucks. This is all done in the name of global economics and cheap labor,” said Todd Spencer, executive vice president of OOIDA, when the petition was filed.

Specifically, OOIDA questions FMCSA’s failure to issue a “Notice of Final Determination” before initiating a pilot program.

Additionally, the petition for review objects to the program’s acceptance of driver physical examinations by Mexican doctors; accepting Mexican government regulations in lieu of FMCSA rules; that the “demonstration project” does not satisfy the Congressional mandate to proceed as a “pilot program;” and that the DOT has not sufficiently compared Mexican and U.S. requirements.

OOIDA also argues that the balance of interests “tilts strongly” in favor of a stay to protect the public.

“They [FMCSA] provide nothing more than conclusory statements on safety issues that have no support in the agency record,” the OOIDA petition states.

In its action, the Sierra Club was joined by the Teamsters union and Public Citizen.

A union spokesman did not immediately reply to a request for comment. According to a recent Teamsters news release on the cross-boarder program, the case is expected to be heard in February.