Even as the Trump administration and some members of Congress look to undo NAFTA, opponents of the trade deal's cross-border trucking program with Mexico got their day in court this week.
Attorneys representing the International Brotherhood of Teamsters and the Owner-Operator Independent Drivers Assn. presented oral arguments before the 9th U.S. District Court of Appeals in San Francisco. The case was initially filed in March 2015, after the U.S. DOT opened the border to Mexico-domiciled trucking companies in January.
Speaking to a three-judge panel, Teamsters attorney Eric Brown cited the DOT Office of the Inspector General’s own review of the pilot program in arguing that the program lacked a sufficient number of participants to generate the data needed to deem the system safe for opening the border.
Asked if FMCSA was “hell-bent” to sign off on the program so Mexico would lift its targeted tariffs, Brown said he couldn’t speak for the agency but that he believes the decision was “the preferred conclusion.”
Judges, however, questioned why Congress didn’t act to stop the program’s implementation if the pilot didn’t meet its statutory aims.
“Inaction really isn’t a good basis to measure the intent,” Brown replied. “There are lots of reasons Congress doesn’t act, even if it’s simply busy with other things.”
An intervenor in the case, OOIDA attorney Paul D. Cullen Jr. argued that FMCSA in the pilot program granted the Mexico-domiciled participants an exemption to U.S. commercial driver’s license equivalence, but the exemption should not be extended to the full cross-border program.
“Even if the pilot program did show that Mexican motor carriers are as safe as U.S. carriers, FMCSA—if it wants to allow non-compliance—must seek a change in the statute,” Cullen said. “The purpose of pilot program is to test alternate forms of compliance are feasible and safe. Then they can determine changes to the law or regulations.”
For the government, DOT attorney Dana Kaersvang argued that “there was no question” FMCSA had the procedures and resources in place to verify the safe operation of Mexican carriers in the U.S.—and to keep unsafe Mexican carriers out. The intent of Congress was to continue that screening and enforcement if the pilot program proved successful.
“We did what we said we were going to do,” Kaersvang said, adding that the pilot included 15 carriers, with 55 trucks logging 1.5 million miles and some 4,000 inspections. “I don’t think there’s any real question that we had the data that we needed to draw the conclusion … that companies from Mexico can and do operate safely. They were operating orders of magnitude more safely than U.S. and Canadian trucks—their violation rates were just a tiny fraction—which is not a surprise if you look at the extensive monitoring and enforcement that was set up.”
Asked if FMCSA continues to take applications for the program, Kaersvang replied the system has continued with the change in administration, but interest remains low.
“There are really only a few carriers with the sophistication and the business relationships to operate with a profit in the U.S. under this regime,” she said. “There still has not been very much interest in this program at this point.”
Of 27 carriers with authority, only 18 are active, she noted.
The judges, however, seemed concerned that the safety of the pilot participants didn’t guarantee the safety of subsequent carriers. Kaersvang argued the point of pilot program was to establish effective procedures for opening up the program to more applicants and then monitoring their U.S. operations.
“We can be sure that the carriers operating on our roads are operating safety,” she said.
Kaersvang also discounted OOIDA’s interpretation of the statute regarding CDLs, and suggested Cullen's argument goes against a reading that has been used for 20 years. “Nothing changed in the pilot program,” she said.
