FMCSA Has Authority to Issue Permits for Mexican Trucks to Operate in US, Court Says

Federal regulators have the statutory authority to issue permits for U.S. longhaul operations to Mexico-domiciled trucking companies despite poor participation by Mexican carriers in a three-year pilot used to demonstrate their safety, a federal appeals court has ruled.

The June 29 opinion by a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco was issued for a 2015 lawsuit filed by the Teamsters union that attempted to remove the operating authority of the current 18 Mexican carriers legally permitted to operate anywhere in the United States.

“The present challenge arises from a 35-year-long dispute between Mexico and the United States over cross-border trucking operations,” the panel’s opinion said. “U.S.-domiciled truckers have long opposed the entry of Mexico-domiciled truckers through both the political process and in the courts under the banner of highway safety, though their real concern appears to be preventing the increased competition threatened by the entrance of Mexico-domiciled carriers.”

The panel rejected the Teamsters contention that a 2007 law imposes requirements of sample size or statistical validity on the pilot program’s results before the Federal Motor Carrier Safety Administration may allow Mexican truckers to operate in the United States.

“The 2007 act entrusts the secretary with evaluating the results of the pilot program and deciding whether to grant longhaul authority to Mexico-domiciled carriers in light of those results,” the court said.

Other than those with U.S. operating authority, Mexican truckers are only permitted to operate in free trade areas along the U.S.-Mexico border.

In oral arguments before the appeals court in March, Teamsters attorney Eric Brown argued that FMCSA officials originally said the agency needed a sample size of at least 46 carriers participating in the pilot to establish with statistical certainty that Mexican carriers are as safe as U.S. carriers.

A total of 15 carriers enrolled in the pilot program, but one carrier withdrew and another had its pilot program operating authority revoked, leaving only 13 participant carriers when it ended, according to a U.S. Department of Transportation Inspector General audit.

However, the appellate attorney for the DOT, Dana Kaersvang, told the judges that despite a lack of interest the carriers participating put 55 trucks on U.S. roads that logged 1.5 million miles and underwent 4,000 inspections.

There are roughly 130,000 Mexican-domiciled carriers, Kaersvang said.

But despite the small sample and criticism from a DOT Inspector General audit, the agency was convinced that Mexican truckers were as safe as U.S. truckers and that they actually registered a lower violation rate than their U.S. counterparts, Kaersvang said.

“I don’t think that there’s any question that we had the data to draw conclusions that the participants in the pilot were operating safely,” Kaersvang said. “We have what we need to know that these companies from Mexico can, and do, operate safely.”

At present, 18 of 27 Mexican carriers that have been granted the authority to operate in the United States are active, Dana said.

“If the only data that the secretary [of transportation] had was from the 13 carriers that participated in the program, would such data be enough for this secretary to determine that these Mexico-domiciled carriers were safe on our roads?” Justice Consuelo Callahan asked.

“We’re not drawing a comparison for every motor carrier in Mexico,” Kaersvang responded. “What we’re saying is the carriers on our roads are operating safely.”