The Dept. of Transportation’s U.S.-Mexico cross-border pilot program is again a “go” in the eyes of the U.S. Court of Appeals for the District of Columbia. Whether the court’s latest rulings regarding the program— which grew out of the NAFTA treaty ratified back in 1993— will spell the end of litigation seeking to limit or squash it remains unlikely.
The pilot program, which aims to demonstrate that Mexican carriers will operate safely inside the U.S., enables Mexican carriers that have met FMCSA safety standards to provide long-haul service to and from the U.S.
The court ruled on Friday against both the Owner-Operator Independent Drivers Assn. (OOIDA) and the International Brotherhood of Teamsters (IBT). The plaintiffs sought to have the court overturn its April decision that had let the program stand.
In this latest case, OOIDA and IBT had argued that decision was flawed because it conflicted with the law and previous court rulings.
The court didn’t buy that argument: “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,” wrote Judge Janice Rogers Brown in the decision for the majority of the three-judge panel . “We conclude it is not.”
Among other points made in the decision, Judge Brown explained that “to facilitate trade, the United States has entered into ‘executive agreements’ with Mexico and Canada for reciprocal licensing of commercial drivers operating across national borders. Executive agreements are not quite treaties; while the latter require Senate ratification, the former [as in the cross-border plot program] carry the force of law as an exercise of the President’s foreign policy powers… “The Constitution places treaties and federal statutes on equal legal footing-- both are “the supreme Law of the Land,” she added later, no doubt for emphasis.
Nor did the court agree with OOIDA’s contention that, via the cross-border program, the Federal Motor Carrier Safety Administration (FMCSA) effectively was exempting Mexican—and Canadian as well--- drivers from new U.S. federal rules, which will require biennial physicals be conducted by medical professionals listed on a registry of Certified Medical Examiners.
Indeed, in the decision Brown stressed that unlike in the U.S. system that “separates medical certification from the commercial vehicle licensing process, Mexico and Canada incorporate physical fitness criteria as part of their licensing regimes. For this reason, the FHWA [Federal Highway Administration] treats commercial licenses from these countries as themselves proof of medical fitness.”
“We are still reviewing the decision to determine next steps,” OOIDA media spokesperson Norita Taylor told FleetOwner. “OOIDA will continue to work with Congress in making sure their intentions are fulfilled in requiring Mexico-based motor carriers to meet the same high safety standards expected from their U.S. counterparts.”
The IBT is also keeping its options open. The union advised yesterday that it questions the safety of Mexican trucks despite the court’s refusal to rehear its challenge to pilot program.
“The Teamsters will consider their legal options and continue to monitor the progress of DOT’s cross-border trucking program,” IBT stated in a news release.” In May, the Teamsters joined highway safety advocates in expressing concern about the Federal Motor Carrier Safety Administration’s oversight of the Mexican trucks allowed to travel freely on U.S. highways.
“The Teamsters question whether there are enough carriers in the pilot program to reach a reliable conclusion about the likely impact of Mexican trucks on U.S. highway safety,” the IBT statement continued.
The union argues that according to the DOT inspector general, “FMCSA estimated that it needed at least 46 carriers to be inspected 4,100 times within 3 years to provide a statistically valid analysis. The inspector general’s report was written [in Sept. 2012] when only four carriers had been granted long-haul operating authority and only 52 inspections had been performed beyond the commercial zone.”
IBT contends that with only “a little over a year to go, the three-year pilot program now has only 12 carriers with 44 trucks” enrolled.
On the other hand, the American Trucking Assns. (ATA)-- trucking’s largest lobby—remains enthusiastic about the program and its overarching goal of increasing the flow of goods among NAFTA signatories.
“We continue to be supportive of the U.S.-Mexico cross-border trucking program and hope that these rulings provide more certainty about its future and pave the way for increased participation,” ATA spokesperson Sean McNally told FleetOwner.
“With the continued growth in U.S.-Mexico bilateral surface trade, which travels primarily by truck, it is essential that both countries improve the efficiency of cross-border freight transportation by allowing long-haul motor carriers from both countries to transport such cargo,” he added.