DOT faces ‘consequences’ for continuing cross-border program

| 3/11/2008

Secretary of Transportation Mary Peters was warned in a Senate hearing that choosing to continue the cross-border trucking program despite a funding cut and congressional intent that the program stop will have consequences.

Sen. Byron Dorgan, D-ND, repeated that message Tuesday, March 11, throughout a hearing before the Senate Commerce, Science and Transportation Committee regarding the cross-border program with Mexico.

“The intent of Congress on this issue could not be more clear: The Department of Transportation is prohibited from using appropriated funds to operate this program,” Dorgan said in a prepared statement submitted to the committee record.

“Yet Secretary Peters has found lawyers who are willing to tell her that some technical loophole in the language allows the pilot program to proceed.”

The language in the omnibus appropriations legislation that addressed funding of the cross-border program states:

“None of the funds made available under this Act may be used to establish a cross-border motor carrier demonstration program to allow Mexico-domiciled motor carriers to operate beyond the commercial zones along the international border between the United States and Mexico.”

The Department of Transportation General Counsel D.J. Gribbin testified at the Senate hearing that the decision to proceed with the program after the funding provision was signed into law centered on a “plain language” standard.

He said that the DOT legal team took the basic definition of “establish” to mean “begin.” That, in his interpretation, means the DOT cannot begin a new pilot program, but could continue the existing one.

Dorgan took exception with Gribbin’s narrow interpretation; especially given he was the sponsor of the language in the Senate and asked the Legislative Counsel to draft the language for him.

Dorgan repeatedly quizzed Gribbin about whether the DOT legal counsel considered congressional intent. Gribbin continued to stand by the DOT’s legal team’s decision to stand behind the “plain language” standard.

“It’s clear what the drafters meant … It’s clear what Congress meant,” Dorgan said.

Dorgan point-blank told Secretary Peters that everyone, including her and members of the Senate who voted to protect the funding, knows the funding to the program was indeed cut off by the Omnibus Appropriations legislation.

“And yet you believe you’ve found a loophole … and frankly, I’m sick and tired of it,” Dorgan said.

“Failure to meet your responsibility under the law will have consequences.”

Program shortcomings
In the first panel testifying at the hearing, the Department of Transportation Inspector General Calvin L. Scovel III gave brief testimony on an interim report issued on the program, Monday, March 10.

Scovel addressed Secretary Peters’ assurances that every truck crossing the border would be inspected every time.

“First, FMCSA has implemented plans to ensure every truck is checked every time it crosses the border, but it has not implemented a key quality control to ensure that checks are being done, despite a commitment to do so,” Scovel said in his prepared testimony.

In addition to questioning the completeness of inspecting every truck involved in the program, Scovel said that with the limited number of companies participating in the program there’s no way to statistically determine the safety performance of the program’s participants.

How did this happen?
Both Dorgan and Sen. Mark Pryor, D-AR, challenged the fact that Trinity Industries, a Mexico-based motor carrier, was ever admitted into the program.

DOT officials have repeatedly contended that participants in the cross-border program from Mexico are actually safer than U.S. based trucking companies.

However, research by OOIDA staff and legal counsel revealed that Trinity Industries had a safety record that amounted to more than 100 violations per truck within the past calendar year.

Trinity left the cross-border program in early February and returned to commercial zone authority only without ever having made a trip past the commercial zone, according to Peters.

She indicated that Trinity company officials were uncomfortable with the level of scrutiny cross-border participants were under. Later in her testimony, Peters said that the company was actually withdrawn from the program and did not leave voluntarily.

In repeated questioning, neither Dorgan nor Pryor understood why Trinity was ever allowed into the program and why it is still operating in the commercial zone. Dorgan went so far as to request that the Office of Inspector General look specifically at Trinity and submit a report on the company and the events leading up to the company’s acceptance into the cross-border program.

NAFTA obligations
Among the four witnesses invited to testify before the Senate Commerce, Science and Transportation hearing was Paul Cullen Sr., legal counsel for the Owner-Operator Independent Drivers Association.

In one of her defenses of the program, Secretary Peters asserted that the United States is required by the North American Free Trade Agreement to allow open access to Mexican motor carriers.

Cullen’s testimony on behalf of OOIDA’s membership debunked that defense.

“The United States has agreed to treat Mexico-domiciled motor carriers exactly the same as it treats U.S.-domiciled motor carriers – no better, no worse,” Cullen said in his prepared testimony.

“The United States has undertaken no obligation under NAFTA to provide exemptions or waivers from the application of U.S. trucking laws or regulations to Mexico-domiciled motor carriers.”

Cullen also challenged decisions by officials within the Department of Transportation to accept Mexican regulations as equivalent to U.S. regulations governing trucking.

“OOIDA challenges the legal authority of the Secretary and FMCSA to accept compliance with Mexican regulations covering commercial driver’s licenses, drug testing and medical standards in lieu of compliance with corresponding U.S. statutes and regulations,” he said.

– By Jami Jones, senior editor