OOIDA to DOT: Will you pull your head out?
With the cross-border program set to start, opponents continue to challenge the Bush administration and its agencies to pull their collective heads out of the sand.

By Jami Jones
senior editor

The bitter determination of the Bush administration’s DOT to charge forward with a program to open the border to 100 Mexican motor carriers with an unlimited number of trucks, despite the cries of caution, leaves many wondering why the administration doesn’t seem to listen.

Whether it’s a case of can’t – or won’t – the Bush administration simply refuses to back off from campaign promises made in 2000 to take care of Mexico’s weak economy.

Opponents such as the Owner-Operator Independent Drivers Association have relentlessly raised concerns and pointed to flawed logic, to no avail. Lawmakers asking questions have been met with curious silence as well.

With less than a couple of weeks – as of press time – before the program is to start, opponents continue to insist that cooler heads prevail and implore the Bush administration to pull its collective head out of the sand.

In late February, Secretary of Transportation Mary Peters unveiled the program and said the border would open in about 60 days – putting it somewhere around the first of May.

“Ludicrous is the best way to describe the U.S. Department of Transportation’s nearly simultaneous announcements that all safety and security issues with Mexican motor carriers have been resolved, and that 100 of these trucking companies will now be given U.S. DOT’s blessing to operate throughout the United States,” said OOIDA Executive Vice President Todd Spencer.

OOIDA, alongside an elite group of DC power brokers, immediately began looking for different ways – be it through legislation or litigation – to highlight how the U.S. is not ready for this program.

Spencer said the safety and security of U.S. motorists and truckers sharing American highways with trucks from Mexico can no more be assured now than it could in 2002 when Congress overwhelmingly told the Bush administration that safety had to be assured before the border opens.

Big-ticket concerns include a threat to national security with rubber-stamp approved Mexican trucks rolling virtually unchecked through the border. Then, their ability to perform on U.S. highways has many fearing the worst for highway safety.

Factor all that in with the naïve assumption that just because the motor carrier is given a clean bill of health that it will somehow be exempt from exploitation by Mexican drug czars for “more efficient shipment” of drugs across the border and onto playgrounds in the U.S. and some fear you have a recipe for disaster.

Even if the DOT wants to brush those issues aside as melodramatic, there are just too many unanswered questions and safety concerns for this program, right now. Because of that, OOIDA immediately began pushing for legislative remedies to stop the pilot program.

As of press time, three bills look to tackle the questions swirling around the Mexican cross-border program. Those include an amendment to the Global War on Terror Supplemental Appropriations bill added by Sen. Patty Murray, D-WA.

Two other stand-alone bills in the House of Representatives are also looking to slow down the program – one from Rep. Duncan Hunter, R-CA, and a second submitted by Rep. Nancy Boyda, D-KS.

Murray’s amendment to put the brakes on the pilot program has become Section 4001 of S965, the Senate version of the supplemental appropriations bill. It has a better shot at becoming law simply because the stand-alone bills face almost certain veto, according to OOIDA’s Director of Regulatory Affairs Rod Nofziger.

Despite the moves in the legislation, congressional hearings, and an inquiry (see related story on Page 25) – the Bush administration is poised to go full steam ahead, without additional explanation.

Even if legislation doesn’t get through before the first Mexican trucks begin to roll into the U.S., hope is not lost.

“There are far too many standards these Mexican motor carriers must meet, and we’re not seeing that happen, said Nofziger. “Just because the border may open to them, that doesn’t mean we’re going to sit back and let them run roughshod all over the country, while American truckers continue to play by the rules.

“There are still plenty of options out there to stop this ill-advised program.”

Seeking the truth

Despite assurances that things are ready to allow Mexican motor carriers into the U.S., demands for real answers mount

By Jami Jones
senior editor

In what some believe to be a race to open the U.S. border to 100 Mexican-domiciled motor carriers, the program is facing a build-up of hurdles.

The majority of the opposition facing the Department of Transportation in proceeding with the program centers on several unanswered questions. The hurdle that best illustrates this concern is the first lawsuit filed regarding the program.

Lawsuit filed seeking information
A lawsuit filed March 13 against the Federal Motor Carrier Safety Administration by Advocates for Highway and Auto Safety is all about information.

The group filed a Freedom of Information Act request with FMCSA in October 2006 requesting information about activities surrounding any program to evaluate Mexican-domiciled motor carriers that would be permitted to operate beyond the Mexico-United States border zone.

According to the lawsuit, more than three months after AHAS sent the FOI request, a letter from FMCSA’s Freedom of Information Act Officer stated that FMCSA’s response would be delayed.

On March 13 – nearly five months after the initial FOI request – the lawsuit was filed. AHAS is being represented by the Public Citizen Litigation Group in the lawsuit.

The lawsuit is not an attempt to stop the program, but rather a request asking the court to force the agency to cough up the requested documents related to the program.

Senator launches ‘inquiry’
The day after the AHAS lawsuit was filed, U.S. Sen. Mark Pryor, D-AR, sent a letter to Secretary of Transportation Mary Peters that, according to a press release issued by his office, will start an “inquiry” into the program. And, he wants information updates on directives facing the DOT.

Pryor’s frustration with the way the program has been handled was clearly stated in his letter to Peters.

“As you may recall, during your confirmation hearing ... I expressed my interest and concern about a rumored pilot program that would allow Mexican-domiciled trucks to operate beyond their current scope of authority,” Pryor wrote in his letter.

In response to that question, Peters told Pryor there was no immediate plan to implement such a program. She offered to get to the bottom of the “rumors” around the issue and get back to Pryor.

“Unfortunately, I’ve yet to hear from you or FMCSA regarding this pilot program,” Pryor wrote.
Rather than wait any more, Pryor told Peters to look at legislation passed in 2006 and get back to him on the status of three specific directives.

Those directives are:

  • A directive for the DOT to issue regulations to verify legal status of all licensed commercial drivers;
  • A directive for the DOT to develop commercial driver’s license antifraud programs; and
  • The final directive was for the DOT to issue guidelines for federal, state and local law enforcement personnel on how to identify noncompliance with federal laws uniquely applicable to commercial motor vehicle and commercial motor vehicle drivers engaged in cross-border traffic.

Inspector General called in
A hearing before the House Subcommittee on Highways and Transit on March 13 revealed yet another approach by lawmakers attempting to get some answers about the program.

Rep. James L. Oberstar, D-MN, chairman of House Committee on Transportation and Infrastructure, agreed that the DOT has made progress in complying with the various requirements established under Section 350.

“Yet, as we will hear from the testimony of several witnesses today, unanswered questions remain about whether adequate systems are in place to ... make sure Mexican carriers meet these safety requirements,” Oberstar said at the subcommittee hearing.

Because of that concern, Oberstar and Highways and Transit Subcommittee Chairman Rep. Peter DeFazio, D-OR, requested the DOT Inspector General conduct a separate review of the first six months of the pilot program to determine whether DOT has established sufficient controls to ensure that the 100 carriers participating in the pilot program are in full compliance with all U.S. federal motor carrier safety laws.

Secret society

When it comes to settling problems about NAFTA, mum's the word

By Jami Jones
senior editor

Any time there are tweaks or changes implemented that impact NAFTA, the U.S. government better be ready to answer to a higher power – and suffer any consequences handed down.
For example, neither the Department of Transportation nor Congress can simply change their minds and say the U.S. isn’t going to let Mexican trucks in.

The North American Free Trade Agreement has a provision that keeps decisions like that from going unchecked. The agreement’s Chapter 11 lists two international arbitration bodies in which NAFTA investor-state disputes can be heard.

Back in 2000, the NAFTA Dispute Resolution Panel, comprised of U.S. and Mexican trade officials, said that the U.S. or Mexico could be liable for damages resulting from one side or the other not meeting its treaty requirements.

Just recently, these dispute arbitrators were acknowledged as possibly having some say so over the future of Mexican trucks operating within the U.S.

FMCSA Administrator John Hill told a House Appropriations subcommittee March 29 that the U.S. could be forced to pay a penalty to Mexico if the pilot program does not move forward.

Hill was quoted by Bloomberg as saying those sanctions could be in the billions. The amount is purely speculative at this point, according to an FMCSA spokesman.

Duane DeBruyne with the FMCSA said Hill was pointing out that the U.S. potentially could face significant financial jeopardy if it does not fulfill its treaty obligations.

While the thought of sanctions may be scary for some, who comes up with those sanctions and how they go about it is even more so.

NAFTA’s Chapter 11 lists two international groups designated to hear NAFTA investor-state disputes. These groups operate with similar rules and procedures that exclude the public.
These groups, or tribunals as they are often called, are designed to actually handle contract disputes between investors and governments.

When a problem crops up and a challenge is filed, both sides pick an arbitrator. Those arbitrators then pick a final “impartial” arbitrator. This tribunal of arbitrators is then charged with sorting out the problem and issuing a final decision – which can include sanctions against one side.

The tricky thing is though – they meet in secret, behind closed doors.

One group, the International Center for the Settlement of Investment that operates under the World Bank, at least publishes its decisions. The other group, United Nations Commission on International Trade Law, does not.

The power these tribunals have must be acknowledged. Any decision handed down by a tribunal is the end of the situation. There are no appeals.

‘We don’t want it either’

When it comes to settling problems about NAFTA, mum's the word

By Jami Jones
senior editor

A trade association representing Mexican motor carriers has asked the Mexican Senate to cancel the cross-border program with the United States.

The association, the National Chamber of Transportation known as CANACAR, represents the general interests of the Mexican trucking industry.

“CANACAR has formally requested not to open the borders for trans-border services and to have the pilot program suspended until conditions for a fair, competitive environment are existing and that the Mexican trucking industry has the guarantee of not being subject to unfair, inequitable and discretional treatment by U.S. authorities,” CANACAR National President Tirso Martinez Angheben wrote in a March press release.

Angheben appeared before the Communication and Transportation Committee of the Mexican Senate recently to explain why the transportation industry opposes the opening of trans-border services and the pilot program between the U.S. and Mexico, according to a press release issued by CANACAR.

CANACAR is an organization which represents the general interests of the Mexican trucking industry.

The group claims the U.S. government has not complied with agreements established in the 1995 North American Free Trade Agreement. Mexican trucking companies were not allowed to invest in U.S.-based trucking businesses or allowed to provide services within the U.S.

However, according to the Angheben, U.S.-based trucking companies have invested in infrastructure within Mexico and already have a “commercial presence in our country … which represents a commercial disadvantage of a great importance.”

In the released message, Angheben said he also told the Mexican Senate committee that the regulations facing Mexican trucking companies coming into the U.S. “include uneven regulation for Mexican carriers that will not guarantee a fair competitive market in U.S. territory.”

Angheben said the pilot program moved forward without Mexican Senate approval and without input from the Mexican motor carrier industry.

CANACAR president Manuel Gomez told the committee that opening the border will not have any benefits to Mexico because:

  • Transportation prices in Mexico are lower than in the U.S.;
  • It will cause transportation prices in Mexico to increase;
  • It will not accelerate the border crossing process;
  • It will generate strong pressure on salaries paid to Mexican drivers, which in turn will increase the cost of domestic freight in Mexico; and
  • The Mexican government lacks the capacity and infrastructure to supervise U.S. carriers entering Mexico and to prevent foreign companies from providing domestic transportation only reserved for Mexican nationals.

This isn’t the first time CANACAR has tried to shut down a NAFTA provision.

In 2001, the group petitioned the Mexican Senate to cancel the trucking section of NAFTA.

“The majority of people in the United States don’t want Mexican trucks to go there, and we told our president that we don’t want to go, either,” said CANACAR’s Gomez in 2001. “Nor are we interested in having U.S. trucks come to Mexico.”

Staff writer Clarissa Kell-Holland contributed to this report.