Ninth Circuit hears challenge to DOT's cross-border trucking program

By Sandi Soendker, Land Line editor-in-chief | Friday, March 17, 2017

A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit heard oral arguments March 15 in a challenge that seeks to shut down the government’s cross-border trucking program.

Despite meager participation in its cross-border pilot program, the Federal Motor Carrier Safety Administration opened up long-haul trucking in the states to motor carriers from Mexico starting in January 2015. Two separate lawsuits were filed seeking to shut down the program.

The Owner-Operator Independent Drivers Association filed one challenge. The second was filed by the International Brotherhood of Teamsters and the Advocates for Highway Safety, as well as several other organizations. The two cases were later rolled into one lawsuit.

Earlier this week, attorney for the Teamsters Eric Brown and OOIDA counsel Paul D. Cullen Jr. of the Cullen Law Firm both argued before the appellate court in San Francisco to ask the court to toss out FMCSA’s program to open the Mexican border to Mexican long-haul truckers.

IBT attorney Brown argued that there was not sufficient data gleaned from the DOT’s pilot program to conclude it was safe. Brown stressed that the agency ignored the conclusions of “its own experts.”

“DOT’s Office of Inspector General and the Motor Carrier Safety Advisory Committee both concluded that the sample size was inadequate,” IBT argued.

Representing OOIDA, Cullen addressed the issue of compliance. He asked the court to vacate the agency’s decision to grant permanent authority to the pilot program participants. On behalf of OOIDA, he also asked the court to enjoin the agency from granting authority to Mexico-domiciled carriers without requiring them to comply with the CDL law.

Cullen told the panel that a statute passed by Congress forbids operation of commercial motor vehicles by anyone not holding a valid CDL issued under federal standards. At the argument, FMCSA did not cite to any authority to exempt motor carriers from the U.S. CDL statute.  If FMCSA is going to do that, Cullen said, then the agency needs to go to Congress with the results of the pilot program and ask them to change the CDL requirements.

DOT’s attorney argued that the sample size of the pilot program participation by Mexico-based trucking companies did not affect the agency’s capability of evaluating their safe operations.

Presiding in the Ninth Circuit court Wednesday were Judges Kim McLane Wardlaw, Ronald Gould and Consuelo M. Callahan.

The panel asked the agency’s attorney Dana Kaersvang if the only data being used by the DOT came from 13 carriers, “would it be enough to determine that Mexican-domiciled carriers were safe?”

Kaersvang said yes. In further questioning by the panel, she also seemed to argue that even if it were not sufficient, they would continue to grant authority to Mexico-domiciled motor carriers. Safety compliance would be “taken care of” in an extensive post-authority acceptance monitoring system.. 

Attorneys for both Teamsters and OOIDA called the FMCSA’s final report to Congress arbitrary and irresponsible. In the final argument by Brown, IBT asked the court to set aside the grants of operating authority that the agency has issued so far. He also asked the court to set aside the final report, which he explained is the final agency action and the legal prerequisite to the agency’s current grants of authority.

Related article:
OOIDA’s cross-border trucking lawsuit oral arguments set

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