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August 5, 2013 3:45 AM, EDT

U.S. Court Again Upholds Cross-Border Pilot Project

By Timothy Cama, Staff Reporter

This story appears in the Aug. 5 print edition of Transport Topics.

A federal appeals court has again ruled that the government’s cross-border trucking pilot program, which allows approved Mexican fleets to operate throughout the United States, can go forward.

The Owner-Operator Independent Drivers Association and the Teamsters union asked the U.S. Court of Appeals for the District of Columbia in June to reconsider its April decision rejecting their lawsuits against the program overseen by the Federal Motor Carrier Safety Administration.

The groups said the decision conflicted with the law and previous court rulings. The court’s latest opinion, issued July 26, reaffirmed the earlier ruling but did not provide a detailed explanation.

But the court did add a paragraph to its previous ruling. It said that because Mexican trucks in the program are not being brought into the United States to be sold, they do not need to carry the same stickers that domestic trucks must display to demonstrate safety compliance.

“The Mexico-domiciled trucks at issue in this case are driven into the United States to transport goods. The trucks themselves are not being resold,” the court wrote. “For that reason as well, the safety decal requirement simply does not apply to these trucks.”

That additional paragraph was in response to the Teamsters’ argument that Mexican trucks should have to display safety decals that other U.S.-made or imported trucks have. Bringing the trucks into the country constitutes an import, the union claimed.

The court also rejected OOIDA’s argument that by allowing the Mexican truck program, FMCSA improperly exempts Mexican drivers from medical requirements. Canadian truckers are also improperly exempt, OOIDA said.

Starting next year, all U.S. drivers will have to get their biennial physicals performed by medical professionals who are on the National Registry of Certified Medical Examiners, but Mexican and Canadian drivers will not fall under the same requirement.

The court disagreed with OOIDA, saying drivers in both countries must have biennial physicals that meet similar requirements to those in the United States.

The case revolved around international agreements in which the federal government agreed to exempt Canadian and Mexican drivers from the medical certificate requirements and a law stating that all commercial drivers must have the certificates.

“The question we must answer is whether a facially unambiguous statute of general application is enough to abrogate an existing international agreement without some further indication Congress intended such repudiation,” Judge Rogers Brown wrote for a majority of the three-judge panel. “We conclude it is not.”

Judge David Sentelle disagreed with the opinion, saying it conflicts with the Constitution and rulings of the U.S. Supreme Court.

OOIDA said it was reviewing the decisions.

“U.S. motor carriers must meet high safety standards, and nothing less should be accepted from Mexico-based motor carriers,” spokeswoman Norita Taylor said. “OOIDA will continue to work with Congress in making sure their intentions in this regard are fulfilled.”

The Teamsters union said in a statement that it still questions the safety of trucks in the program and is considering legal options.

“The court . . . issued an amended decision that used an alternative basis for its ruling that Mexico-domiciled trucks do not have to comply with certain federal safety certification requirements,” the union said. “Nothing in the amended decision suggests Mexican trucks are safe.”

FMCSA launched the pilot program in October 2011 to comply with the North American Free Trade Agreement, which requires that both the United States and Mexico allow trucks to enter from the other country. A previous test program ran from 2007 to 2009 before being canceled when Congress cut off funding for it. Mexico then instituted $2.4 billion in annual punitive tariffs on U.S. goods, which lasted until the new pilot program was announced.

The test is scheduled to run for three years in an attempt to test whether Mexican carriers are safe enough to operate in the United States.

As of press time, FMCSA data showed that 12 carriers had been approved to participate in the program, with a total of 44 trucks and 44 drivers. They had crossed into the United States 4,320 times and been inspected by law enforcement officers 1,605 times.

FMCSA has said that to accurately judge Mexican carriers’ safety, it would take 46 carriers to participate and 4,100 roadside inspections.