Rhetoric ramps up as Cross Border Pilot Program with Mexico winds down

October 2014 marks the end of the Cross Border Pilot Program with Mexico designed to show that Mexican trucks and trucking companies were capable of operating on US highways and in compliance with U.S. laws and regulations.

TRACSO
TRACSO, a Cd. Juarez based Mexican motor carrier is the latest to earn entry into the Cross Border Pilot Program adding another 6 2013 tractors and 4 drivers to the program

Three years that included frivolous and baseless lawsuits filed by opponents to Mexican trucks that were quickly dismissed by the federal courts that were assigned the cases. One even made it to the US Supreme Court where it was denied a hearing by the justices.

Now we are at the end of this unnecessary experiment that was never specified to be part of the trucking provisions in the North American Free Trade Agreement.

Has it done as intended and shown that Mexican trucks and drivers are safe and compliant and able to operate under our rules and regulations? In that regard, there was never any doubt. Statistics maintained by the FMCSA have consistently shown that Mexican truckers have a lower Out of Service (OOS) rate than U.S. drivers.

As expected, the Owner Operators Independent Drivers Association (OOIDA) is first in line to challenge that assertion with their usual collection of debunked claims and allegations that stretch the bounds of credibility.

Today, OOIDA sent a letter to acting FMCSA Administrator Scott Darling, recently appointed to the position following the resignation of Ann Ferro who guided the program from its inception. The letter signed by Executive Vice President Todd Spencer gives us a glimpse of the next lawsuit that will be filed in their failed attempts to prevent the US from complying with their moral and legal obligations under NAFTA.  And even though every lawsuit except one has been tossed by the various courts that have reviewed the arguments, none have caused the Pilot Program to be stopped. With a track record like that, most people would accept the judgment of those smarter than they are and drop the opposition.

D.C. Court of Appeals decision

U.S. law permits Mexican truckers to use their Mexican commercial drivers’ licenses and to rely on those licenses as proof of medical fitness to drive. And the pilot program’s drug-testing rules are valid under U.S. law. The pilot program therefore does not substitute compliance with Mexican law for compliance with U.S. law; as a result, this catchall argument by the Drivers Association is unavailing

In response to OOIDA’s frivolous claim that Mexican licenses and drug tests are not valid in the US

In fact, most of what they are challenging in the letter to the acting director has already been ruled on by the various appeals courts who have reviewed the cases. The DC Circuit Court of Appeals as recently as April of 2013 found that all arguments presented by OOIDA and the Teamsters were not found to be persuasive.

OOIDA begins by a deliberate attempt to misinform the acting director who being new to the job, probably is not up to speed on this issue as former administrator Ferro would have been. OOIDA say;

FMCSA initially set a number of benchmarks to determine the success of the pilot program and the safety of the trucks entering the U.S., most notably that 46 carriers would need to participate in the program and that at least 4,100 inspections would need to be conducted on those carriers in order for program data to be statistically valid.

FMCSA initially based those numbers on the assumptions that there would be significantly more participants than eventually were allowed into the pilot program. After spending countless thousands of dollars to come into compliance with US regulations, most notably, record keeping, during the first Demonstration Program that was defunded, many carriers in Mexico stood back to see how this one would be managed. And many of these same Mexican carriers were already operating legally in the U.S. using affiliated companies or satellite offices located in the United States. All perfectly legal and above board.

This issue had been addressed by the D.C. Court of Appeals in their ruling in April 2013, of the consolidated petitions of OOIDA (11-1251) and the International Brotherhood of Teamsters (11-1444) The Teamsters raised the question of “statistically valid data” as they tossed all of Teamsters bogus arguments. The Justices wrote

the Teamsters contend that the pilot program does not include a “reasonable number of participants necessary to yield statistically valid findings.” 49 U.S.C. § 31315(c)(2)(C). But this argument fails because an unlimited number of trucking companies may participate in the program. Whether Mexico-domiciled trucking companies ultimately avail themselves of the opportunity is outside the agency’s control.

 

The agency has therefore met its obligation to include a sufficient number of participants so as to yield valid results. The Teamsters also argue that the program cannot yield statistically valid findings because it focuses on the number of inspections rather than the number of participants, and because it presumes that Mexico-domiciled trucking companies are as safe as their American counterparts. However, the Teamsters do not explain why the agency’s approach is flawed, and in light of the degree of deference we give to the agency’s statistical methodology, we cannot conclude that the program will yield invalid findings. See Alaska Airlines, Inc. v. Transportation Security Administration, 588 F.3d 1116, 1120 (D.C. Cir. 2009).

So we’ve put that argument to rest and shown it for what it is. Another attempt by OOIDA to confuse the issue before the public and their steadily declining membership.

Read the letter for yourself and make your own decision. All claims made by OOIDA have been solidly debunked by the researchers at Mexico Trucker Online, the Federal Courts and the performance of the truckers themselves.

QUESTIONS POSED BY OOIDA CONCERNING CONCLUSION OF CROSS BORDER PILOT PROGRAM
  • What actions does the agency plan to take regarding the carriers and drivers operating in the current Pilot
    Program following October 1, 2014? What authority would FMCSA have to extend the program? Does
    FMCSA plan to accept applications from new carriers for Cross Border operating authority after October 1,
    2014?
  • Will FMCSA be establishing a permanent US-Mexico Cross Border Trucking Program? If so, under what
    statutory authority? What timeline does the agency have for moving forward with a permanent Program?
  • Will FMCSA be establishing a permanent US-Mexico Cross Border Trucking Program? If so, under what
    statutory authority? What timeline does the agency have for moving forward with a permanent Program?
  • Under a permanent Cross Border Program, if FMCSA plans to grant “permanent authority” to Mexico
    domiciled motor carriers, is FMSCA going to continue to use the exact same procedures and safety
    standards going forward that it used during the Pilot Program to grant authority to and monitor the safety
    performance of Mexico-domiciled motor carriers? If a different regulatory scheme is contemplated for the
    future, then please describe in detail.
  • What authority does FMCSA have, beyond the authority to conduct a pilot program, to 1) accept Mexico’s
    commercial driver’s licenses in lieu of U.S. CDLs required under 49 USC Section 31302, 2) not require
    drivers for Mexico domiciled motor carriers to hold a medical certificate required of U.S. drivers under 49
    USC section 31149(c)(1)(B), or 3) to permit drivers for Mexico Domiciled motor carriers to submit drug
    testing samples to facilities in Mexico that are not under the supervision of DOT or FMCSA under 49 USC
    Part 40 Subpart C?
  • A Mexican government official has discussed at several recent meetings at the Commercial Vehicle Safety
    Alliance that FMCSA has provided Mexico with comments, advice, or similar communications as to 1)
    how Mexico could bring its safety standards up to those in the United States, and 2) what it would need to
    do for the countries to enter into new Memorandums of Understanding regarding Commercial Drivers
    Licenses and other safety requirements. Would FMCSA please put into the Pilot Program record, or
    otherwise release to the public copies of all such communications so that FMCSA’s efforts to conduct the
    pilot program and lay the groundwork for future action in this area are transparent?
  • Finally, FMCSA has never released any analysis of the apparent lack of databases in Mexico collecting the
    same breadth of information about individual driver behavior, including behavior in personal vehicles,
    which is relied upon to determine a U.S. driver’s continued qualification to hold a CDL. Has it ever
    performed such an analysis? If so, would the agency make this publicly available?

Mostly reasonable questions although as expected, OOIDA inserts some ringers that have already been answered by the Courts and others, such as the query about “apparent lack of databases” in Mexico to be a blatant lie. Mexico is under no obligation to supply this information nor do they track the information because logically, performance in a personal vehicle is not indicative of behavior in a commercial vehicle.  Also, the question of medical certification has been challenged and rejected by several appeals courts.

WHILE BACK AT THE HACIENDO IN MEXICO…………………………………

The National Chamber of Cargo Transport (Canacar) has indicated it will push ahead with its claim against the United States for presumed losses suffered by Mexican carriers as a result of Teamsters and OOIDA actions to prevent US compliance with our treaty obligations.

Our friends at TRANSPORTE.MX are reporting that Refugio Muñoz López, Director General of CANACAR is pressing for $2 billion dollars a year for every year the United States has remained in non compliance with their obligations. NAFTA, signed in 1995 required nothing more than “equal national treatment” for the three signatories. OOIDA, TEAMSTERS and their allies in Congress are directly responsible for this violation that could cost the US government, you and I more than $38 billion dollars if successful.

Muñoz said that if successful the money would be used to upgrade the national fleet and to provide education and training to the nations truckers.

“We are prepared to compete as long as ‘the playing field is even’, and the same conditions that apply to the carriers from both countries,” he said; “It’s not fair that being Mexican carriers are being forced to comply with  special conditions and rules.”

 

This post is part of the thread: Mexico Cross Border Pilot Program – an ongoing story on this site. View the thread timeline for more context on this post.