Wednesday, Dec. 5, 2007 – The argument tossed out by FMCSA that Mexican trucks are “safer” than U.S. trucks took a big hit in the latest court filing by OOIDA in its lawsuit seeking to stop the cross-border program.
Officials with the Federal Motor Carriers Safety Administration and the Department of Transportation continue to say that statistics prove the Mexico-based trucks are actually safer than their U.S. counterparts.
However, statistics on inspections of Mexican motor carriers participating in the cross-border program with the U.S. tell a very different story according to a reply brief filed by the Owner-Operator Independent Drivers Association.
Monday, Dec. 3, the Association filed the brief in its challenge of the cross-border program with the U. S. Court of Appeals for the 9th Circuit in San Francisco.
In the brief, Rick Craig, OOIDA’s Director of Regulatory Affairs dissects data from FMCSA’s own SafeStat database collected and analyzed by OOIDA staff and a paralegal at The Cullen Law Firm, OOIDA’s legal counsel.
Safety inspection reports were collected on four of the seven carriers participating in the cross-border program at the time the brief was filed.
“My review of these inspection reports revealed patterns of unsafe operations by Mexico-domiciled motor carriers in the border areas of the United States,” Craig testified in a declaration filed with the reply brief.
Catherine O’Mara, a paralegal with The Cullen Law Firm of Washington, DC, compiled the safety inspection reports on the Mexican motor carriers and compiled a summary of selected SafeStat Data that really shines a light on Craig’s assertion.
O’Mara provided a table summarizing total inspections with violations, total violations, driver out-of-service orders, vehicle out-of-service orders, number of power units and the number of violations per vehicle.
In the span of one year, Sept. 21, 2006, through Sept. 21, 2007, the four Mexican motor carriers amassed more than 1,700 violations. One of the companies averaged more than 112 violations per truck for the 10 power units in the fleet during that year.
“I observe that these motor carriers also received many violations for which an out-of-service order should have been issued, but was not,” Craig testified.
Examples included violations related to lighting, suspension, tires and all other driver violations, such as a non-English speaking driver.
Craig also noted there were numerous other violations that could have been the basis for an out-of-service order, but the inspection report does not provide enough information to make that determination.
Examples included violations related to brakes and inspection or repair and maintenance of parts and accessories.
In the reply brief, the Association also defended its right to bring suit against the DOT seeking to stop the cross-border program. The Association’s “standing” was challenged extensively in a response filed by the DOT in late November.
In its response to initial arguments filed by OOIDA and the Sierra Club, the DOT claims that OOIDA’s petition in the legal challenge has no standing.
The Association’s legal team pointed to a previous decision on a trucker’s right to sue over cross-border trucking programs with Mexico.
“In IBT v. Peña, the DC Circuit upheld standing of professional truck drivers to challenge agency action permitting Mexican truck drivers to operate within the United States under Mexican commercial drivers licenses on the ground that the risk posed to American truck drivers ... is ‘concrete’ and ‘reductions in highway safety would cause more harm to them than to typical members of the public at large,” OOIDA asserts in its reply brief.
“The more than 157,000 professional drivers within OOIDA’s membership face the same concrete risk of harm through ‘reductions in highway safety’ that the DC Circuit found to confer standing upon American drivers in Peña,” the brief states.
Firing back with data from FMCSA’s own database, SafeStat, OOIDA’s says the numbers prove truckers are at risk.
“In light of the empirical data set forth in Mr. Craig’s declaration, there is no question that the harm faced by American truckers is concrete,” OOIDA’s reply brief states.
Too little, too late
In earlier court filings, the DOT had not questioned OOIDA’s standing in the case. It wasn’t until the agency’s most recent response that the question was raised.
The Association’s reply brief takes significant issue with this.
“FMCSA has made no attempt to distinguish Peña even though OOIDA cited Peña in both its Sept. 7, 2007, petition for emergency review filed with the DC Circuit, and in its opening brief in this proceeding,” OOIDA points out in its brief.
The Association calls FMCSA “stubborn refusal” to offer any acknowledgment or distinction of Peña on the issue of standing is the same as “a concession that there is none that could be offered.”
In its reply brief, the Association says its standing is “obvious under the Peña case and FMCSA’s tardy attempt to raise it now should be rejected.”
The Association continued to challenge the DOT’s ability to give Mexican motor carriers a free pass from complying with a variety of U.S. regulations U.S. truckers must abide by every day.
For example, the Association continues to challenge the drug and alcohol testing programs in Mexico, the medical qualification standards in Mexico, and commercial drivers licenses offered in Mexico.
The next step in OOIDA’s court challenge seeking to stop the cross-border program is oral arguments in front of the court. The date for those arguments has not yet been set.
– By Jami Jones, senior editor