Cover Story
DOT forges ahead with cross-border plan; OOIDA heads off to court

By Jami Jones, senior editor

Opposition built quickly following the Department of Transportation’s unveiling of its cross-border trucking plan July 6, after the secretary flew to Mexico and had inked the deal.

Within hours of the signing, the program was the subject of both a legal challenge filed by the Owner-Operator Independent Drivers Association and a bill in the House of Representatives calling for further limits on the program.

OOIDA 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.

The Association has adamantly opposed opening the border because Mexico still has not implemented or conducted enforcement programs 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,” said 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 Federal Register notice detailing the final program, FMCSA officials repeatedly state that the agency regulates 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 says its focus is 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.

The Memorandum of Understanding, or MOU, between Mexico and the United States clearly states the agreement regarding permanent operating authority:

“Motor carriers that receive a satisfactory safety rating after a compliance review and complete at least 18 months of operation are to be granted permanent operating authority.”

The MOU does not include any sort of restriction on permanent authority being tied to the pilot program once granted.

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. LL