Cross-border trucking program in court’s hands

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A federal appeals court on Tuesday, Feb. 14, considered whether the Bush administration can go ahead with the cross-border pilot trucking program with Mexico despite congressional attempts to stop it. The 9th U.S. Circuit Court of Appeals in San Francisco heard arguments in the case.

The program, which has been in place since Sept. 6, allows a limited number of Mexican trucking companies to operate beyond the 25-mile commercial zone in the United States. Under a reciprocity agreement with Mexico, the one-year pilot program also allows a limited number of U.S. carriers to operate into Mexico. The Teamsters, Sierra Club and Public Citizen sued the administration in August to try to stop the program, which the United States agreed to as part of the 1994 North American Free Trade Agreement.

In December, Congress passed legislation banning funding to “establish” a program that allows U.S.-certified Mexican trucks to carry loads across the border and into the country. But the Department of Transportation argued Tuesday that it interpreted “establish” as meaning to start a new program rather than to stop the current one, which was launched in September.

“The congressional intent is unambiguous,” said Judge Dorothy Nelson, one of three appellate judges who will decide the issue. “The intention was to halt the pilot program.” But colleague Judge Andrew Kleinfled seemed satisfied by the administration’s position that the new law only prevents new programs and doesn’t address the current one.

The issue may hinge on the vote of Judge Michael Daly Hawkins, who didn’t tip his hand during the hearing. The court did not indicate when it might rule.

The Teamsters and environmentalists argued that the program will erode highway safety and eliminate U.S. jobs. They also say there are insufficient safeguards to ensure Mexican trucks are as safe as U.S. carriers.

A lawyer for the Sierra Club said not enough Mexican carriers have qualified to enter the United States to provide the necessary data to show the pilot program is safe. He said the Federal Motor Carrier Safety Administration had planned to have about 100 carriers certified by now, but only a dozen Mexican companies have been cleared. “The agency never considered there would be so few carriers,” Sierra Club lawyer Jonathan Weissglass said. “It means the pilot program is a sham.”

Department of Justice attorney Irene Solet said the program requires border agents to ensure all Mexican truck drivers participating in the program have valid Mexican commercial driver’s licenses. Solet further argued that if Congress intended to “turn its back on the NAFTA agreement” with the law it passed barring establishment of cross-border trucking programs, “much more clarity from Congress would be expected.”

Supporters of the plan say letting more Mexican trucks on U.S. highways will save American consumers hundreds of millions of dollars. And they say U.S. trucking companies will benefit since reciprocal changes in Mexico’s rules permit U.S. trucks new access to that country. The “program gives U.S. truck drivers opportunities to compete and succeed in a market they’ve never before been allowed to enter while ensuring the safety of our highways,” FMCSA chief John Hill said after Tuesday’s hearing.

FMCSA announced Monday, Feb. 4, that so far it has granted authority to 12 Mexican carriers to operate a total of 42 trucks in the United States under the program, and that five U.S. carriers have been allowed to operate a total of 45 trucks in Mexico. FMCSA had notified an additional 34 Mexican carriers that they had successfully passed a pre-authorization safety audit.