Thursday, March 15, 2007 - In what some believe to be a race to open the border to 100 Mexican-domiciled motor carriers, the program is facing a build-up of hurdles.
The majority of the opposition facing the Department of Transportation in proceeding with the program centers on several unanswered questions. The hurdle that best illustrates this concern is the first lawsuit filed regarding the pilot program.
Lawsuit filed seeking information
A lawsuit filed Tuesday, March 13, against the Federal Motor Carrier Safety Administration by Advocates for Highway and Auto Safety is all about information.
The nonprofit group filed a Freedom of Information Act request with FMCSA in October 2006 requesting information about activities surrounding any program to evaluate Mexico-domiciled motor carriers that would be permitted to operate beyond the Mexico-United States border zone.
The time the FOI request was filed was the same time that word on the street in Washington, DC, was saying the pilot program brewing within the Department of Transportation was all but a done deal.
The Freedom of Information Act requires a response from agencies within 20 days of receipt of the letter. AHAS received a letter within 10 days explaining a "control number" had been assigned to the request.
According to the lawsuit, more than three months after AHAS sent the FOI request, a second letter from FMCSA's Freedom of Information Act Officer stated that FMCSA's response would be delayed.
The letter went on to state the agency would contact AHAS "as soon as possible concerning the approximate number of documents that will need to be examined and the date by which we expect to complete the review."
On March 13 - nearly five months after the initial FOI request - the lawsuit was filed. AHAS is being represented by the Public Citizen Litigation Group in the lawsuit.
The lawsuit is not an attempt to stop the Mexican pilot program, but rather a request by AHAS asking the court to force the agency to cough up the requested documents related to the program.
Senator launches 'inquiry'
The day after the AHAS lawsuit was filed, U.S. Sen. Mark Pryor, D-AR, sent a letter to Secretary of Transportation Mary Peters that, according to a press release issued by his office, will start an "inquiry" into the program. And, he wants information updates on directives facing the DOT.
Pryor's frustration with the way the program has been handled was clearly stated in his letter to Peters.
"As you may recall, during your confirmation hearing ... I expressed my interest and concern about a rumored pilot program that would allow Mexican domiciled trucks to operate beyond their current scope of authority," Pryor wrote in his letter.
"During my questioning, you clearly stated that you questioned staff at DOT about the pilot program and were told that there was no immediate plan to implement such a program. You also stated that you would get down to the bottom of the 'so-called' rumors surrounding the issue."
Pryor reminded Peters that he concluded his questioning in her confirmation hearing by stating that he would appreciate having a dialogue with the DOT and other agencies that "may be" developing this program.
"Unfortunately, I've yet to hear from you or FMCSA regarding this pilot program," Pryor wrote.
Despite the fact Pryor has not received information about the program from Peters, he has looked into the recently announced proposed pilot program.
"As you can imagine, I still have many questions regarding this program and am most concerned about potential safety and security risks that may come with its implementation," he wrote to Peters.
"The Department's failure to communicate the plan to roll out this program has frustrated me. I believe there are other members on the Senate Committee on Commerce, Science and Technology and in the Senate that share my concerns."
Pryor asked Peters to look at legislation passed in October 2006, which included three directives for the DOT, and update him on its progress. The legislation included:
- A directive for the DOT to issue regulations to verify legal status of all licensed commercial drivers;
- A directive for the DOT to develop commercial driver's license antifraud programs; and
- The final directive was for the DOT to issue guidelines for federal, state and local law enforcement personnel on how to identify noncompliance with federal laws uniquely applicable to commercial motor vehicle and commercial motor vehicle drivers engaged in cross border traffic.
Pryor reminded Peters these directives are to be completed within 18 months of the signing of the law.
Senate committee fishes for answers
The Arkansas senator wasn't stepping out on a limb when he said other senators may also have questions they want answered about the proposed pilot program.
U.S. Sen. Patty Murray, D-WA, chairwoman of the Senate Appropriations Subcommittee on Transportation, Housing and Urban Development, called for a hearing the same day word got out about the program. The hearing was held March 8.
Murray gave some background and the criteria and requirements the DOT is obligated to meet before opening the border.
"Sen. (Richard) Shelby (R-AL) and I drafted a very comprehensive provision to address the many critical safety concerns surrounding Mexican trucks without including an outright prohibition on Mexican trucks entering our country," Murray explained.
"Our provision included dozens of reasonable safety requirements that the DOT and the Mexican authorities would have to meet before long-haul Mexican trucks could have access to our entire interstate highway system. We sought to address each of the many concerns raised by the DOT Inspector General, the Government Accountability Office and others."
Murray acknowledged that the Bush administration certified that all of the criteria in the Shelby-Murray provisions - now known as Part 350 of the 2002 Transportation Appropriations legislation - had been met.
However, since the border is not opening to all Mexican-domiciled motor carriers, Murray questioned the administration's real intentions behind the pilot program.
"As I look at how this pilot project is structured, I'm concerned that DOT may be deliberately allowing only the top Mexican truck companies to participate in a pilot project simply to skew the results so the outcome looks better," Murray said.
"That makes me wonder if this pilot project is really designed just to produce a pre-ordained conclusion."
Inspector General called in
A hearing held by the House Subcommittee on Highways and Transit on March 13 revealed yet another approach by lawmakers attempting to get some answers about the pilot program.
Rep. James L. Oberstar, D-MN, chairman of House Committee on Transportation and Infrastructure, agreed that the DOT has made progress in complying with the various requirements established under Section 350.
"Yet, as we will hear from the testimony of several witnesses today, unanswered questions remain about whether adequate systems are in place to both make sure Mexican carriers meet these safety requirements beforethey are granted long-haul operating authority, and that they continue to be held to the same strict federal standards that govern U.S. commercial truck operations throughout their participation in the pilot," Oberstar said at the subcommittee hearing.
Because of that concern, Oberstar and Highways and Transit Subcommittee Chairman Rep. Peter DeFazio, D-OR, requested the DOT Inspector General conduct a separate review of the first six months of the pilot program to determine whether DOT has established sufficient controls to ensure that the 100 carriers participating in the pilot program are in full compliance with all U.S. federal motor carrier safety laws.
In particular, the Inspector General is requested to:
- Investigate what checks are in place to ensure that Mexican drivers are in compliance with U.S. hours-of-service laws, both while operating in the U.S. and prior to reaching the border;
- Determine what oversight and control measures are in place to ensure that the Mexican carriers' drug and alcohol testing programs are at least equivalent to the U.S. testing regime;
- Identify the process by which carriers participating in the pilot program obtain insurance issued by a U.S. company, and any challenges to such efforts; and
- Report any problems with inaccurate or incomplete data on vehicles and drivers submitted by Mexico-domiciled motor carriers to the Department of Transportation.
It's not all one-sided; Republicans call for answers, too
While Democrats may be getting a lot of the limelight when it comes to opposition of the pilot program, it is far from being a partisan effort. Rep. Ted Poe, R-TX, wants to know what is in it for the U.S. to open the border to Mexican trucks.
"Under this year-long pilot program, 100 Mexican companies will have unlimited access to haul international cargo throughout the United States. What does the United States get out of it?" Poe asked in a statement posted on his Web site.
With 100 companies having "free rein" to come and go across the border, Poe is concerned that there is no way to ensure these regulations are met while maintaining the security of our country.
"This sounds good for Mexico - not so good for the US. Now we are going to have thousands of polluting, overweight, Mexican trucks that are mechanical nightmares, being driven by individuals that may not be able to read a street sign on our highways," he wrote.
"Once again, our government seems to be more concerned about Mexico than it is about our nation, our highways or our people."
Where does this all lead?
Lawmakers are holding these hearings, asking the hard questions and call for investigations all in an effort to get answers. Depending on those answers and what the lawmakers believe is in the best interest of U.S. citizens, legislation of some sort could follow, according to Rod Nofziger, government affairs specialist with the Owner-Operator Independent Drivers Association.
Meanwhile, while all these hearings are being held and questions being asked, OOIDA has been busy taking a long-hard look at the program as well.
"We're researching our opportunities to stop the advancement of this program," Nofziger said. "We're actively investigating all legislative and legal avenues."
- By Jami Jones, senior editor