No free pass
OOIDA challenges regulatory inequities built into cross-border trucking proposal

By Jami Jones, senior editor

The Owner-Operator Independent Drivers Association challenged the DOT’s legal authority to give Mexican motor carriers a free pass from some U.S. regs in comments filed in mid-May.

On May 13, OOIDA submitted its official comments to the docket on the Federal Motor Carrier Safety Administration’s proposed cross-border trucking program.

“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 except insofar as such exemptions or waivers may also be available to U.S.-domiciled motor carriers,” state the comments filed by OOIDA.

The comments address the Department of Transportation’s acceptance of certain Mexican regulations in place of complying with U.S. regs. The Association points out that the only way the DOT can excuse compliance with the regulations is to grant a waiver – something that is not required under NAFTA.

The DOT’s cross-border plan states that the Mexican LF (CDL), Mexican driver medical qualification standards and Mexican drug testing procedures will be accepted in place of compliance with U.S. standards.

“FMCSA’s two-tier approach requires U.S. Truckers to follow a gold standard in safety regulation while they compete with Mexican truckers who work under far less stringent safety and enforcement standards,” said OOIDA President Jim Johnston. “This approach is unfair to U.S truckers and degrades the level of safety for all those who travel on American highways.”

U.S. motor carriers must go through a lengthy process to receive exemptions from regulations. Once the motor carrier pleads its case, the agency must publish the request, accept comments, and back that decision up when publishing a final decision.

None of that occurred in the DOT’s decision to accept Mexican CDL, medical certification and drug testing as compliance with U.S. regs, according to OOIDA comments.

“FMCSA’s offer of special treatment not only goes beyond our NAFTA obligations, but it violates a federal statute that prevents the U.S. Secretary of Transportation from issuing operating authority unless a motor carrier is willing and able to comply with all U.S. safety laws and regulations,” Johnston said.

The Association’s comments state that based on a Supreme Court decision, the agency doesn’t have the authority to depart from the requirement that all motor carriers demonstrate they are willing and able to comply with U.S. laws and regulations.

The comments also reminded the DOT of a 2001 NAFTA Tribunal decision that ultimately ruled against the U.S. for refusing to consider authority applications from Mexican motor carriers, but did not matter-of-factly state that the border must be opened.

“It is important to note what the panel is not determining,” the tribunal decision stated. “It is not making a determination that the parties to NAFTA may not set the level of protection that they consider appropriate in pursuit of legitimate regulatory objectives.

“It is not disagreeing that the safety of trucking services is a legitimate regulatory objective. Nor is the panel imposing a limitation on the application of safety standards properly established and applied pursuant to application obligations of the parties under NAFTA.”

That decision, OOIDA contends, allows the DOT latitude in implementing additional procedures, as long as it is done in good faith.

Following the close of the comment period, the DOT initially anticipated that it would respond to comments within 30 days and release a final plan 60 days after that, or sometime in mid-August. LL