Court Hears Arguments on Cross-Border Pilot Plan

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WASHINGTON — The federal government fought against two lawsuits challenging its pilot program that allows Mexican trucks into the U.S. interior, saying last week the complaints rely on incorrect interpretations of laws, regulations or international agreements.

In separate lawsuits argued back-to-back before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, lawyers representing the Teamsters union and the Owner-Operator Independent Drivers Association argued that the ongoing Mexican trucking program breaks numerous federal laws and harms their members.

Barbara Chisholm opened her arguments by telling the judges that the Teamsters’ lawsuit challenged the program “on a number of safety and environmental grounds,” and that its members “face economic harms as well.”

Chisholm said that the Federal Motor Carrier Safety Administration, which oversees the program, illegally exempted Mexican carriers and drivers from the safety and environmental laws that their American counterparts face.

The program, which started in October 2011, lets Mexican carriers apply to drive throughout the United States — exceeding the border zones they are usually restricted to. It came from the North American Free Trade Agreement, and it ended billions of dollars in retaliatory tariffs imposed on U.S. goods exported to Mexico in reprisal for ending a previous pilot program.

The argument from the Teamsters, which was joined by the Sierra Club, focused heavily on exemptions they said FMCSA made to the regulations that require all trucks imported into the United States to meet certain safety and emissions standards, and to be certified to meet them.

While the government maintained that trucks in the program are not imported by most definitions of the term, Chisholm argued that import requirements must be applied broadly.

“So long as you are entering into the nation’s interstate highways,” you are importing the truck, she said.

“So just driving is enough,” asked Judge Brett Kavanaugh. “Just entering the country?”

Chisholm argued that previous court rulings say that driving on interstate highways is interstate commerce, and therefore subject to import regulations.

But Michael Abate, a Department of Justice lawyer arguing on FMCSA’s behalf, said that the agency ensures that all trucks in the program meet U.S. standards. They simply do not have to have the sticker U.S. trucks have to certify compliance.

“This program does comply with the safety standards,” Abate said. “We do not think that the sticker provision applies.”

The Teamsters also challenged FMCSA’s decision to certify that vision exams required of Mexican drivers are equivalent, in terms of safety, to those of U.S. drivers.

Specifically, while U.S. drivers must be able to differentiate red, yellow and green, Mexican drivers must only be able to recognize red.

“It makes no sense for the agency not to have considered” the effect that has on safety, Chisholm said.

In its own oral arguments, OOIDA focused on FMCSA’s decision to recognize Mexico’s truck drivers’ licenses, which includes a medical certification, as equivalent to the U.S. commercial driver license and medical card.

“The U.S. committed to give Mexican drivers and Mexican carriers national treatment,” said Paul Cullen Sr., OOIDA’s attorney. “No special treatment for Mexican drivers is demanded by Nafta.”

But in recognizing Mexico’s Licencia Federal de Conductor, FMCSA has given Mexican drivers exceptions to both the licensing and medical requirements in the United States.

While Abate said that law concerning CDLs is “simply a list of standards,” Cullen said federal law requires that states, and only states, issue the licenses truckers carry.

Abate relied upon a 1991 memorandum of understanding between the two countries agreeing to recognize each other’s truck licenses and medical certifications.

But Congress overturned that agreement when it said in later laws that CDLs must be issued by states and medical exams must take place in the United States, Cullen said.

Abate challenged the notion that Congress “intended to walk away from previous international agreements” with the laws Cullen cited.

The court has not indicated when it will rule on the case.

As of last week, only nine carriers had been approved for the pilot program. They have a total of 17 trucks, which have crossed into the United States 336 times and been inspected 213 times.

Federal officials have expressed concern over the program’s low participation, but FMCSA Associate Administrator Bill Quade said he was confident participation will increase.