The Owner-Operator Independent Drivers Association wants to join a lawsuit designed to block the Department of Transportation’s decision to open the U.S. border to Mexican truckers, a step the DOT announced earlier this year after years of heated debate.
The lawsuit, filed in March by the Teamsters union, is a last-ditch attempt to stop the Federal Motor Carrier Safety Administration from granting U.S. operating authority to Mexican carriers that meet U.S. standards, a step promised by the 1994 North American Free Trade Agreement but blocked by opposition from the Teamsters, OOIDA and other groups for 20 years.
“OOIDA can bring a unique practical and legal perspective compared to the other petitioners regarding the ability of Mexico-domiciled trucking companies to operate safely on U.S. highways,” OOIDA said in a petition to intervene in the case. “The economic interests of small-business truck drivers differs from the interests represented by the other petitioners.”
When the FMCSA announced in January it would grant U.S. authority to Mexican carriers based on the findings of three-year cross-border trucking pilot project, opponents of a more open border with Mexico attacked the decision and criticized the results of the project. “The U.S. DOT’s three-year pilot program did not generate enough data to reach an informed conclusion about whether the border should be opened,” OOIDA said in a statement. The agency said its pilot “validated” the ability of Mexican carriers to operate safely on U.S. roads.
Only 15 Mexican trucking companies participated in the program, a fact noted by the DOT Inspector General in a critical report. FMCSA noted the trucks operated by those carriers were inspected by U.S. officials more than 5,500 times. The agency said it also reviewed safety data from 952 other Mexican-owned trucking companies already operating in the U.S. under “grandfathered” authorities issued by the old Interstate Commerce Commission.
OOIDA focused not on those inspections but on what it claims is the lack of a comparable truck safety regulatory regime in Mexico. Mexican carriers should not be granted U.S. authority “until Mexico establishes equivalent regulatory trucking standards,” OOIDA said.
The association may make that argument, but NAFTA and Congress made no such requirement of Mexico. The federal court is likely to look closely whether the FMCSA’s pilot project met all statutory requirements rather than try to rewrite federal policy. And the FMCSA is focused on whether Mexican carriers comply with U.S. rules when in the U.S., not what rules Mexico may promulgate for trucking companies and drivers in its jurisdiction.
And regardless how the appeals court decides, the battle could go to the U.S. Supreme Court.
In the course of the long, often bitter debate about cross-border trucking, the U.S. DOT has conducted two pilot projects, one under President Bush and the second under President Obama. The introduction of the latter suspended $2.4 billion in punitive tariffs imposed by Mexico after the first pilot program was scrapped by Congress and president in 2009.
Those punitive tariffs were allowed after a 2001 NAFTA arbitration panel found the U.S. in violation of the 1994 treaty’s cross-border trucking provisions. In 2009, Canacar, the Mexican trucking association, filed an arbitration claim against the U.S. under NAFTA seeking billions of dollars in economic damages for Mexican trucking companies. The association could still pursue that claim — just as OOIDA and the Teamsters may pursue lawsuits.
Meanwhile, astonishingly few Mexican carriers show any interest in obtaining U.S. operating authority, outside those that already participated in the cross-border pilot project. By mid-March, only four Mexican carriers had applied to FMCSA for U.S. authority.
That’s despite flourishing cross-border truck-borne trade. The number of trucks crossing the U.S.-Mexican border is fast approaching the level of U.S.-Canadian trade by truck, with 5,414,568 trucks crossing the U.S.-Mexican border in 2014, according to the U.S. Bureau of Transportation Statistics, a DOT agency. Most of those trucks stop somewhere within the narrow commercial zone along the border and either drop off or unload a trailer, with goods being transferred to a U.S. truck. If they’re lucky, they may find a southbound load.
Perhaps it’s not surprising few Mexican carriers have applied for U.S. authority. Some experts in the cross-border business say the economics of long-haul trucking north of the border would work against for Mexican carriers, cutting into their profit margins. Besides, there aren’t many voices crying out “bienvenidos” to Mexico’s camioneros as they head north.