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April 29, 2013 4:00 AM, EDT

Court Backs Cross-Border Trucking Plan

Panel Rejects Challenges to U.S.-Mexico Program
By Timothy Cama, Staff Reporter

This story appears in the April 29 print edition of Transport Topics.

A federal appeals court has upheld the U.S. government’s cross-border Mexico trucking plan, rejecting challenges brought by the Owner-Operator Independent Drivers Association and the Teamsters union.

“In authorizing the pilot program, Congress balanced a variety of interests, including safety, American truckers’ economic well-being, foreign trade and foreign relations,” Judge Brett Kavanaugh wrote April 19 for the unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit.

As a result of the court ruling, the Federal Motor Carrier Safety Administration is free to continue its pilot program that allows Mexican carriers to drive throughout the United States, beyond the zone near border crossings to which they’re usually restricted.

The Teamsters focused on environmental objections, including that Mexican trucks should be considered imports and subject to the same environmental regulations as trucks that are to be sold in the United States.

However, the court ruled FMCSA correctly interpreted import laws to apply only to trucks meant to be sold.

OOIDA, meanwhile, said FMCSA illegally exempted Mexican truck drivers from the requirement to hold a U.S. commercial driver license, instead allowing them to substitute a Mexican license. In addition, it objected to FMCSA’s substitution of Mexican medical certifications and allowing drug tests to be conducted in Mexico.

But the court ruled that two laws Congress passed “made clear that Mexican commercial driver licenses are permissible” as CDL alternatives. The law also allows Mexican medical certification and drug testing, the court said.

The Teamsters union blasted the April 19 court decision and vowed to continue fighting against what it said are unsafe Mexican trucks.

“It’s important to note that nothing in the court’s decision says Mexican trucks will be safe,” the union said in a statement. “In fact, the court found that Mexico-domiciled trucks don’t have to comply with federal safety requirements for vehicles introduced into interstate commerce.”

Norita Taylor, OOIDA’s spokeswoman, shared a similar sentiment.

“OOIDA laid out careful, detailed arguments describing how Mexican laws do not meet U.S. safety standards and how the pilot program permits Mexican truckers not to comply with U.S. laws. It is disappointing that the court’s opinion does not describe how it analyzed those issues,” she said.

Conversely, FMCSA spokesman Duane DeBruyne welcomed the decision, saying it found “that we apply the same rigorous safety standards under the program that we require of all U.S. carriers.”

“We remain committed to the success of the pilot program and will continue to work with everyone involved to ensure it is carried out safely,” he told Transport Topics.

FMCSA launched the current program in 2011 to comply with the 1994 North American Free Trade Agreement, which stipulated that both countries allow access for each other’s trucks. A previous pilot program ran from 2007 until Congress stopped it in 2009, which caused Mexico to place $2.4 billion in annual retaliatory tariffs on U.S. goods.

Public Citizen, which has helped the Teamsters union in its legal fight, previously went to the Supreme Court to challenge the government’s right to allow Mexican trucks into the United States. In 2004, the high court ruled that Public Citizen’s environmental objections weren’t valid.

The Teamsters also previously tried to challenge the 2007 test program in the U.S. Court of Appeals for the 9th Circuit, but that court refused to block it.

Other than the pilot programs, Mexican trucks generally have been required to drop freight at commercial loading zones shortly after crossing the border.

Following the court’s latest decision, several lawmakers maintained it is bad for U.S. workers and companies.

“I continue to have serious concerns about Mexico’s lenient hours-of-service regulations and licensing procedures, and a virtually nonexistent drug testing program for drivers originating in Mexico,” said Rep. Peter DeFazio (D-Ore.), ranking member of the House Transportation Committee’s subcommittee on highways.

Rep. Duncan Hunter (R-Calif.) also was critical.

“Could it, or should it, continue are two different things,” he said. “The program itself puts American businesses at a disadvantage, and it puts American security at risk, but it has continued because federal law has allowed it.”

American Trucking Associations, which supports the cross-border trucking program, praised the ruling.

“We’re happy that the court is allowing the pilot program to go forward,” said ATA spokesman Sean McNally. “We feel the pilot program is a good step towards improving efficiency along our southern border.”

Separately, FMCSA announced last week that RAM Trucking, a Mexican carrier, passed a safety audit for the cross-border program. If approved, RAM will become the 11th carrier in the program.

There has been growing concern from many government officials that participation is too low for FMCSA to be able to assess the safety of Mexican carriers during the three-year program.

But DeBruyne told TT he was confident FMCSA would find enough carriers before the program concludes in October. The agency has estimated it needs 46 carriers to make a sound safety judgment.

“We continue to believe our target is achievable,” he said.

FMCSA said that, as of April 14, there have been 2,547 crossings under the program. The agency also has said it is aiming for 4,100 roadside inspections. There were 912, as of April 14.