OOIDA continues to defraud and mislead American truckers on cross border trucking issue

Mexican trucks at the border! Que Yonke!!!!
As the reality of a new and final cross border program to allow Mexican trucks access to American highways as we promised almost 20 years ago, comes closer to fruition, the desperation coming coming from the offices of OOIDA or Owner Operators Independent Drivers Association, is palpable.

For instance, OOIDA spokesman Norita Taylor appeared on an interview on Houston radio station KTRH News Radio 740 along with Congressman Kevin Brady giving counterpoint, and alleged that Mexican carriers have no regulatory costs in their country. You can listen to the interview here. What Taylor doesn’t say is not only does Mexico have to comply with their regulatory costs, but the additional costs of complying with US requirements also. OOIDA doesn’t want you to know this.

As a matter of fact, Mark Reddig sounded as if he had tears in his eyes this afternoon in his pleas for people to call Congress and try to stop this small handful of Mexican trucks that he fears his membership cannot compete with.

 

DEBUNKING OOIDA CLAIMS THAT MEXICO MUST MIRROR OUT REGULATORY CLIMATE

One of the biggest lies coming from OOIDA and others, such as the Teamsters, is that according to the 2001 NAFTA Arbitration panel agreement, the United States had the right to set standards for Mexican trucks that Mexico would be forced to abide by in their own country, is very easy to debunk.

First off, common sense should tell you that FMCSA has no statutory right to force any rules upon the sovereign country of Mexico. All they can do is set the standards that Mexican and Canadian trucks must adhere to when operating within the United States. Period! It leaves no room for discussion.

Let’s take a look at the decision of the NAFTA ARBITRATION PANEL in 2001.

Mexico v United States—Cross-Border Trucking

The NAFTA obligates the United States and Mexico to open restricted areas near their mutual border to cross-border trucking services three years after the date of signing, and to broadly open their territories to cross-border trucking services 6 years after entry into force of the agreement. Chapter 9 NAFTA sets forth rules applicable to the setting and maintenance of technical standards. Under the technical standards rules, each party is entitled to adopt and maintain measures relating to human safety (Art. 904 (1) NAFTA) at a level it considers appropriate (Art. 904 (2) NAFTA) in accordance with certain risk assessment rules (Art. 907 (2) NAFTA). Mexico alleged national treatment and violations of the ? most-favored-nation clause (‘MFN’) with regard to regulatory measures, as well as national treatment and MFN violations with respect to investment.

This sets the rules and the dispute

The US argued that fundamental disparities between US and Mexican regulatory systems legitimized a blanket restriction on allowing Mexican cross-border trucking into the US. It claimed that it was only required to provide national treatment under ‘like circumstances’, and that deficiencies in the Mexican regulatory system meant that US and Mexican trucks were not in ‘like circumstances’. The United States made a similar argument with respect to the denial of MFN treatment as compared with Canada

This is the US argument and the basis of OOIDA’s claims.

In its decision, the panel invoked principles established in GATT-WTO jurisprudence, including panel and appellate body reports, as well as customary international law, decisions of the ? International Court of Justice (ICJ), and expert commentators. The panel stated that the NAFTA and WTO national treatment principles are basically the same, and common to the field of international trade. In looking at conduct by the United States, it indicated it would avoid inquiring into motivation, for example union pressure on the Clinton Administration

What the arbitration panel is saying is that it recognizes the interference and pressure being brought upon the Clinton administration by the Teamsters and would abstain from exploring the protectionist motivations of the unions, none of which have to do with safety, as has been alleged.

The panel rejected the US defense to the claim of national treatment violation, holding the United States was obligated to treat US and Mexican truckers performing similar functions in the same way. Each Mexican trucking license application must be reviewed on its own merits, just as were US national applications. The panel said that if harmonization of regulatory systems was required as a precondition of national treatment, this would undermine the concept of national treatment. Regarding the MFN claim, the panel said that the United States was obligated to provide equivalent treatment to cross-border trucking from Canada and Mexico, and that the United States had not done this.

In this paragraph, the panel summarily rejected the US claims that they had the right to deny Mexico access to the US because of what they consider an inferior regulatory environment. Applications by Mexican carriers must be considered on their own merits, as are US and Canadian applications. HARMONIZATION of REGULATORY SYSTEMS is what OOIDA maintains must occur before the US must allow Mexican trucks access. The panel soundly rejected this idea. It further stated in the last sentence, that the US is obligated to provide EQUIVALENT TREATMENT. This has not been done and the US remains in violation of their obligations.

The US invoked Art. XX (b) GATT analogue of NAFTA to justify failure to provide national and MFN treatment. Regarding the burden of proof, the panel said that, as a general matter, a party alleging an inconsistency with the NAFTA generally has the burden of proof to establish it. It says that the party invoking an exception also has the burden of proof to establish its entitlement. Thus, the US had the burden to show its restrictions on Mexican trucking were ‘necessary’. The panel invoked, inter alia, the WTO appellate body decision in United States—Import Prohibition of Certain Shrimp and Shrimp Products ([12 October 1998] WT/DS58/AB/R) to support its holding that the US could have pursued less trade restrictive conduct

This paragraph deals with the burden of proof and who is responsible for providing it. The US failed to provide that proof and the panel ruled the US could have pursued less restrictive conduct.

In response to Mexico’s claim that the US had failed to permit non-discriminatory national and MFN investment, the US argued that since there was no demonstrated Mexican interest in investing in US trucking, Mexico could not demonstrate violations. The panel said that under WTO law it is not necessary to demonstrate ‘actual’ trade effects—ie nullification or impairment. An imbalance in competitive conditions is adequate

This is pretty self explanatory, but to take it one step further. If you consider the Mexican carriers who have invested in US through establishment of subsidiaries in the US, since this ruling was rendered, Mexico’s claim is further substantiated and the US has no defense for it’s non compliance.

The panel concluded by emphasizing that it was not holding that the United States should lower its trucking safety standards, but rather that it must allow Mexican truckers to demonstrate compliance with them.

This final paragraph both supports OOIDA’s statement that the US should not lower our standards, a position I support. As you can see though, it says absolutely nothing in this paragraph or the others, that Mexico must establish regulatory standards identical to ours before the US is obligated to allow them access as OOIDA continues to maintain. Instead, it states firmly that the US MUST ALLOW MEXICO TO DEMONSTRATE COMPLIANCE WITH OUT RULES. During the 18 month cross border demonstration program, Mexico showed that not only could they comply, but their compliance and safety standards exceeded those of comparable US and Canadian trucks.

CONTROVERSY OVER EOBR’s IN MEXICAN TRUCKS

As we’ve talked before, the controversy over requiring EOBR’s or Electronic Onboard Recorders in Mexican trucks continues to heat up and with good cause.

I have two problems with it. First being requiring the recorders, period, and secondly, having the FMCSA paying for them, although I understand why they plan to do so.

It gives them ownership of the data and real time access to the data which in the end, will debunk they claims of OOIDA, the TEAMSTERS and others that Mexican drivers work 20 hour days 7 days a week.

But under the provisions of NAFTA, as we saw in the breakdown of the Arbitration Panels decision, it is supposed to be equal treament for US, Canadian and Mexican trucks. Not one set of rules for US and Canadians and a third more stringent set for Mexicans, but equal. All three countries play by and comply with the rules of the country they are operating in.

Requiring Mexican carriers, 85% of whom already have Qualcomm tracking and communication systems in their fleets, violates this provision. Equal and comparative treatment. Nothing more, nothing less.

Ironically, Teamster, OOIDA and other “stakeholders” pushed for this provision, and now the same ones are opposed to it.

FMCSA can require it, in violation once again of NAFTA and require Mexico to pay for it. However, without similar legislation or regulation requiring US and Canadian trucks to have the same systems, FMCSA would have no right to access the data except during safety audits. We can’t have it both ways.

I’m hoping that this is a “throwaway” point for negotiation. Otherwise, it is likely to hasten the installation of these same devices in US trucks, something the CTA (Canadian Trucking Association) is already pushing for.

To sum it up folks. Follow OOIDA’s “Call to Action” and call your Senator’s and Congressmen and whine about how the 4,000,000 US CDL holders are incapable of competing with a 100 or so Mexican carriers or truckers. Be sure to tell them about all the illegals and drugs and terrorist and all the other objects of the oppostions fantasies that will be coming into this country, although there is no evidence of it. And in the end, cross border trucking with Mexico will become a reality. It must or the next round of tariff’s with be even more devastating than the last.
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