SPECIAL REPORT: LaHood inks cross-border deal; OOIDA heads to court

By Jami Jones, senior editor | 7/6/2011

Wednesday, July 6, 2011 – Despite promises of transparency, the U.S. Secretary of Transportation hopped a plane for Mexico early Wednesday morning and inked the cross-border trucking deal, without any advance notice or warning to the public or Congress.

“If the agreement is good for the U.S. why the hell is he (Secretary LaHood) sneaking down there to sign it?” said Jim Johnston, president of OOIDA. “So much for their supposed transparency. Why not let the public see the details before signing the agreement? Seems like the administration is dead set on caving to Mexico’s shakedown regardless of the costs to the American public and our tax coffers.”

The Owner-Operator Independent Drivers Association immediately filed a petition for review with the U.S. Court of Appeals for the D.C. Circuit. The Association is asking the court to review the program and to “enjoin, set-aside, suspend (in whole or in part) or determine the validity of the implementation of this program.”

“Implementation of the pilot program is arbitrary, capricious and abuse of discretion and otherwise not in accordance with law,” the Association’s petition states.

Noted in the petition is a “final agency action” that occurred on June 29, well in advance of the final plan being released to the public or signed.

While copies of the final agreement were under lock and key in the U.S., apparently copies of the agreement and a notice of the signing had been widely circulated in Mexico and reported on in the days leading up to the signing.

After the agreement was signed, sources confirmed to Land Line Magazine that the Federal Motor Carrier Safety Administration immediately began accepting authority applications from Mexican motor carriers that want to participate in the program.

The Association has adamantly opposed opening the border because Mexico has failed to institute regulations and enforcement programs that are even remotely similar to those in the United States and because there would be no relevant corresponding reciprocity for U.S. truckers.

“People in Washington are constantly talking about two things these days: creating good jobs for Americans and cutting wasteful spending. This program does exactly the opposite for both,” Todd Spencer, executive vice president of OOIDA. “This program will jeopardize the livelihoods of tens of thousands of U.S.-based small business truckers and professional truck drivers and undermine the standard of living for the rest of the driver community.”

In the pending Federal Register notice detailing the final program, FMCSA officials repeatedly state that the agency is to regulate safety. Neither the economic impact on the trucking industry nor the environmental concerns raised by commenters were considered relevant arguments in the agency’s rebuttal comments, because the agency focuses on safety.

For example, when addressing the economic impact on the U.S. trucking industry and individual truckers, FMCSA officials simply stated that they do “not believe the pilot program will have a significant adverse impact on U.S. motor carriers or drivers.”

The agency followed up quickly by saying “it is important to note that FMCSA lacks the authority to alter the terms under which Mexico-domiciled motor carriers operate in the United States based on the possible economic impact of those motor carriers on U.S. motor carriers.”

Environmental arguments did not invoke significant response from the agency, either. The agency responded by simply stating that beyond what is in the Federal Motor Carrier Safety Regulations, the agency does not have authority to regulate environmental concerns. Those lie with the Environmental Protection Agency and that agency’s state counterparts.

When addressing issues the agency clearly has authority over – such as operating authority – the agency officials did little more than further muddy the waters as to the real intention of the final cross-border trucking agreement.

Essentially, the program differs little from the proposed program published in the Federal Register in April.

The program still allows for a three-tiered monitoring program tied to the Mexican motor carriers’ operating authority. The main point of contention and concern with that approach is that after 18 months of participation in the pilot program Mexican motor carriers would be eligible for “Stage 3” of the program.

Stage 3 of the pilot program “would begin for each motor carrier upon receipt of permanent operating authority,” according to the proposed program.

However, in the final program FMCSA officials contended the statement confused some, before stating simply: “if, at the end of 18-months of monitoring the motor carrier‘s most recent safety rating is satisfactory and the motor carrier does not have any pending enforcement or safety improvement actions, the Mexico-domiciled motor carrier’s provisional operating authority becomes permanent.”

The final plan does not outline any procedures for revoking permanent authority granted under the pilot program when the program ends.

In addition to what appears to be the prelude to a fully open border, U.S. taxpayers will continue to foot the bill on the electronic monitoring devices on Mexican trucks.

Agency officials continue to justify the expense by stating that under NAFTA, because U.S. truckers aren’t required to install and pay for the devices on U.S. trucks, the agency cannot require that of Mexico.

However, as OOIDA has repeatedly pointed out, the expense – and cost of the program – goes well beyond the monitoring of the trucks.

“U.S. taxpayers have already seen too much of their money wasted as our government has attempted to accommodate trucking companies from Mexico,” Spencer said.

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