Senate Commerce Committee Told Mexican Truck Program Illegal -- Neither Required Nor Authorized by NAFTA

Contact: Paul Cullen, Sr., (202) 944-8600
March 11, 2008

The Bush administration’s Cross-Border Pilot Program on Mexican trucks violates U.S. law and is not required to fulfill any obligation under NAFTA, according to testimony by Paul D. Cullen, Sr. of The Cullen Law Firm PLLC, General Counsel of the Owner-Operator Independent Drivers Association, Inc. (“OOIDA”) before the Senate Committee on Commerce Science and Transportation.

“The Secretary of Transportation has no authority under U.S. law to accept compliance with Mexican commercial drivers licenses, drug testing and medical fitness rules in place of compliance with corresponding U.S. statutes and regulations,” testified Mr.
Cullen. Under the North American Free Trade Agreement (“NAFTA”), the United States has agreed only to extend “national treatment” to Mexican motor carriers. Under NAFTA,
Mexican motor carriers may operate in the United States only if they comply with the same laws that U.S. motor carriers comply with - no more and no less, according to Cullen.

FMCSA’s decision to accept compliance with Mexican laws is in direct conflict with the position it took before the U.S. Supreme Court in a 2004 legal challenge to that agency’s
preparation for the Mexican truck program. In that case the Administration argued, and the Supreme Court agreed, that FMCSA has only a narrow, ministerial role in the award of
motor carrier operating authority, and that it has no authority to alter the terms and conditions for the entry of Mexican trucks into the United States. Applying that earlier holding to the present facts, according to Mr. Cullen, “FMCSA has no authority to waive compliance with U.S. law respecting CDL’s, drug testing and medical qualifications. But the Administration has reversed course here, arguing that FMCSA has broad discretion to
waive compliance with such laws, thereby altering the conditions under which Mexican motor carriers may qualify for such operating authority.” “FMCSA’s position seems to be
driven more by political expediency than by the rule of law,” said Mr. Cullen.

Secretary of Transportation Mary Peters held a press conference on March 10, 2008 where she cautioned that Mexico could impose fees and tariffs on various U.S. products if the Pilot Program is suspended. “Nonsense,” said Mr. Cullen. “There is no basis for such fear mongering. The Pilot Program should be terminated because it violates U.S. law. NAFTA is not violated if Mexican trucks are stopped at the border because they are unable or unwilling to obey all U.S. laws and regulations. Without a violation, no retaliation is permitted under NAFTA.” 

See full testimony here.

Court Told Mexican Truck Program Illegal --
Neither Required Nor Authorized by NAFTA

Contact: Paul Cullen, Sr., (202) 944-8600
Feb 12, 2008

The Bush administration's demonstration project on Mexican trucks violates the law and is not required to fulfill the United States' obligations under NAFTA argued Paul D. Cullen, Sr. of The Cullen Law Firm PLLC, attorney for the Owner-Operator Independent Drivers Association, Inc. ("OOIDA") before the U.S. Court of Appeals for the Ninth Circuit. (See link to audio of argument below). The Secretary of Transportation has no authority to agree to accept compliance with Mexican commercial drivers license, drug testing and medical fitness rules instead of compliance with corresponding U.S. statutes and regulations.

Under the North American Free Trade Agreement ("NAFTA"), the United States has agreed only to extend "national treatment" to Mexican motor carriers. That means that Mexican motor carriers may operate in the United States only if they comply with the same laws that U.S. motor carriers comply with - no more and no less, Cullen argued. FMCSA had no legal authority to accept different conditions for issuing operating authority to Mexican motor carriers. FMCSA's current legal position is in direct conflict with the position it took before the Supreme Court in a 2004 legal challenge to that agency's preparation for the Mexican truck program. In that case the Administration argued, and the Supreme Court agreed, that FMCSA has only a narrow, ministerial role in the award of motor carrier operating authority, and that it has no authority to alter the terms and conditions for the entry of Mexican trucks into the United States. Applying that earlier holding to the present facts, according to Mr. Cullen, "FMCSA has no authority to waive compliance with U.S. law respecting CDL's, drug testing and medical qualifications. But the Administration has reversed course here, arguing that FMCSA has broad discretion to waive compliance with such laws, thereby altering the conditions under which Mexican motor carriers may qualify for such operating authority," said Mr. Cullen. "FMCSA's position seems to be driven more by political expediency than by the rule of law," said Mr. Cullen.