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3/11/2009
SPECIAL REPORT: Cross-border trucking program cut

Wednesday, March 11, 2009 – The so-called pilot program allowing trucks from Mexico full access to the U.S. is once again running on fumes.

The Senate voted late Tuesday, March 10, to cut funding to the program. The funding cut was included in the omnibus spending bill that doles out money annually to various federal agencies to pay for various programs and enforcement of those programs.

President Barack Obama signed the legislation into law today.

“We’re thankful to see the end of the program,” said Todd Spencer, executive vice president of the Owner-Operator Independent Drivers Association.

OOIDA has fought the opening of the border to long-haul trucks from Mexico before the program even began more than a year ago. The Association even filed suit with the U.S. Court of Appeals for the 9th Circuit. A decision in that case is still pending – but may very well be a moot point now that the program has lost its funding.

“The will of the Congress and the American people have now been fulfilled,” Spencer said with the passage of the funding cut into law. “We’re thankful for the Congress for putting the safety and security ahead of the economic interests of a few multinational corporations.”

Spencer praised the efforts of OOIDA members, friends and family who rose to the occasion repeatedly during the long-fought battle to end the program.

“We appreciate our members stepping up and talking to their lawmakers on the importance of this issue,” Spencer said. “We’re especially thankful for those communications, given the history on the issue and the many, many times we have asked them to communicate with lawmakers.”

Spencer said it was that consistent contact with lawmakers and the response from lawmakers that played a major role in seeing the program come to an end.

“We believed that lawmakers did what was needed to be done to end the program,” Spencer said.

The provision that yanked the funding from the cross-border trucking program with Mexico was introduced by Sen. Byron Dorgan, D-ND. It was the second time Dorgan introduced legislation that cut funding from the program.

Congress voted to cut the program’s funding in the 2008 appropriations legislation. Dorgan introduced the language. It passed both chambers of Congress and was even signed into law by then-President Bush.

What followed were legal word games.

Dorgan’s amendment in the 2008 appropriations legislation stated: “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 DOT attorneys zeroed in on the word “establish” and said that because the program started in September of 2007, and not after the legislation was signed into law, the program could continue.

Dorgan defended the intent behind his legislation to no avail. The program continues to this day.

In the 2009 transportation appropriations legislation signed into law, Dorgan was back with an amendment that cuts off funding of the program, this time with careful wording that would prevent the word game end-around.

His amendment prohibits the DOT from spending any money, either directly or indirectly, to “establish, implement, continue, promote, or in any way permit a cross-border motor carrier demonstration program to allow Mexican-domiciled motor carriers to operate beyond the commercial zones …”

The legislation goes on to cut the funding of ongoing programs, “… including continuing, in whole or in part, any such program that was initiated prior to the date of the enactment of this Act.”

While the legislation has been signed into law removing funding from the cross-border program, the shutdown of the long-haul trucks from Mexico operating beyond the border zone now lies with the Federal Motor Carrier Safety Administration.

Internal communications at FMCSA indicate agency officials are prepared for the fact that the program will draw to a close.

In a memo sent to FMCSA staffers in late February from acting administrator Rose McMurray, which was obtained by Land Line Magazine, she acknowledged the agency must be prepared to end the program if the funding was indeed cut.

“If the bill is passed in its present form, and signed by the president, we will have to plan to end the demonstration program,” she wrote.

The U.S. Department of Transportation issued a statement following the signing of the bill indicating the administration would comply with the shutdown of the current program, but would look at options in the future.

“The Congress has opposed the project in the past because of concerns about the process that led to the program’s establishment and its operation,” the DOT statement read.

“The Administration recognizes these concerns. The president has tasked the Department of Transportation to work with the U.S. Trade Representative and the Department of State along with leaders in Congress and Mexican officials to propose legislation creating a new trucking project that will meet the legitimate concerns of Congress and our NAFTA commitments. Sen. Dorgan, the sponsor of the amendment that ended the program, has written to us to express his willingness to work with the Administration in good faith to address this issue.”

Spencer said that safety concerns revolving around Mexican trucks are not required to be dismissed or overlooked just because of the NAFTA treaty.

“Nothing in the NAFTA treaty obligated the U.S. to look the other way on safety issues,” he pointed out.

That very point was settled once before when an international arbitration panel ruled on a NAFTA issue related to the opening of the border to Mexican trucks.

“When this issue was raised with the arbitration panel in 2001, the panel was clear and specific about the U.S. being able to address the safety issues on trucks from Mexico and insist on those issues being resolved,” he said.

– By Jami Jones, senior editor
jami_jones@landlinemag.com

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