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    March 7 - NAFTA Cross-Border Trucking Case


    By Lori Wallach and Todd Tucker, Public Citizen’s Global Trade Watch division.


    Background and Timeline: Bush Administration Move On Mexico-Domiciled Trucks Accessing U.S. Highways Undermines Safety, Environment

    The Bush administration proposal to permit Mexico-domiciled trucks broad access to the U.S. highway system is the latest twist in a 12-year-long North American Free Trade Agreement (NAFTA) fight. Many wonder why the administration would propose such a plan. The answer: a NAFTA tribunal ordered the United States to do so. Mexico is threatening trade sanctions if the United States fails to comply.

    The NAFTA-ordered border opening will only fuel growing U.S. public sentiment against NAFTA-style trade pacts. The case comes in the midst of a heated debate between the administration and Congress over pending NAFTA-expansion deals to Peru, Panama and Colombia, and the president’s request for Fast Track trade negotiating authority. If in fact the administration’s proposal is implemented, the foreseeable safety and environmental problems that will ensue are likely to become prime exhibits in the case against the Bush administration trade policy, which repeatedly has placed allegiance to the failed NAFTA model above workers’ rights, safety, health and the environment in both the United States and Mexico.

    BACKGROUND:  NAFTA included a requirement that all three countries’ highways be fully accessible to trucking companies based in any NAFTA nation, an item pushed by large U.S. trucking firms seeking lower-waged Mexican drivers. NAFTA also recommended, but did not require, that Mexican and U.S. truck and driver standards be harmonized (i.e. made uniform, although not necessarily at the higher U.S. level). The U.S. Department of Transportation’s Inspector General (IG) conducted studies that revealed severe safety and environmental problems with Mexico’s truck fleet and drivers’ licensing.

    For NAFTA’s first seven years, the Clinton administration relied on the IG reports and did not implement the NAFTA trucking rules. In 2001, Mexico won a formal NAFTA challenge against the United States. An extrajudicial NAFTA tribunal ordered the United States to open the border or face permanent trade sanctions. Newly elected Bush, who supported open-border trucking while Texas governor over opposition of the Texas State Patrol, sought to implement the tribunal order. In 2002 and 2003, Public Citizen and a coalition of consumer, labor and environmental groups successfully sued in U.S. federal court to block the administration’s order. This victory for safety and the environment was overturned by a 2004 Supreme Court ruling.

    Meanwhile, Congress passed the FY 2002 Transportation Appropriations bill in 2001, sponsored by U.S. Sen. Patty Murray (D-Wash.), which required that Mexico-domiciled trucks be inspected every 90 days and that the U.S. government collect data to determine whether Mexico-domiciled trucks and drivers meet U.S. standards.[1] But Mexico rebuffed the conditions and refused access for U.S. inspectors. The border remained closed beyond a 20-mile cargo transfer zone. Further negative IG reports were issued. The National Transportation Safety Board has stated that it lacks resources to adequately inspect trucks within U.S. borders – much less those in Mexico. Yet, the Bush administration is again seeking to implement the NAFTA tribunal order, thus putting poor border and Latino communities at risk, as well as the entire U.S. highway-driving population and environment.


    • 1994: Among its 900 pages of rules and regulations, NAFTA includes provisions calling for, but not requiring, standardization of NAFTA countries’ truck length, weight, safety and drivers’ licensing standards.[2] NAFTA also explicitly required that by 1995, Mexico-domiciled trucks be permitted to drive throughout U.S.-Mexico border states and that by Jan. 1, 2000, trucks from any NAFTA country could drive anywhere in all NAFTA countries.[3] Absent these NAFTA border opening rules, Mexico-domiciled trucks are permitted only to travel in a border commercial zone up to 20 miles into the U.S. to unload and pick up freight to take back to Mexico.[4]
    • 1995: These NAFTA open-border trucking requirements were particularly ill-advised considering that even before the initial 1995 NAFTA-required opening of U.S. highways in the border states, the General Accounting Office (now Government Accountability Office) found the same serious truck safety problems that were initially reported by border safety inspectors: Of the few Mexico-domiciled trucks that overwhelmed U.S. highway inspectors were able to examine, more than half had to be taken out of service for serious safety violations.[5] Indeed, fewer than 1 percent of Mexico-domiciled trucks that cross the border were inspected by U.S. safety inspectors.[6]
    • 1995: The Clinton administration delayed implementation of the NAFTA open-border trucking rules due to concerns about the safety of the trucks. These concerns were documented in a series of Department of Transportation Inspector General reports. Clinton noted three major problems that were unsolved when he kept the border closed in 1995: 1) major differences between U.S. and Mexican safety regulations; 2) major differences in the application and enforcement of the safeguards; and 3) the inability of states and federal regulators to effectively enforce U.S. standards on Mexico-domiciled trucks.[7] The Clinton administration said that when these problems were resolved, the NAFTA provisions could be safely implemented.
    • 1996: Subsequent reports documented that the problems were not being resolved. A 1996 Los Angeles Times exposé described how Mexico-registered drivers work under notoriously poor conditions where extremely long hours leading to driver fatigue are often the requirements for keeping a job. Long-haul truck drivers in Mexico who bring freight to the shipping terminals at the U.S. border call their runs “working on the blade of the knife” because of the dangers of Mexican highways. This, in turn, contributes to preventable highway deaths in Mexico.[8] NAFTA has concentrated these underpaid, overworked drivers in the border areas. There, the lucrative temptations of transporting narcotics, undocumented migrants and contraband such as weapons and stolen cars contribute to a border area that is more like the Wild West than the modern West. Indeed, Mexico-domiciled trucks are posing an increasing threat to motorists in Texas border counties. The percentage of Texas border county truck fatalities and incapacitating injuries from trucks registered in Mexico nearly doubled between 1997 and 1998.[9]
    • 1998: Mexico initiated a formal NAFTA tribunal challenge of the Clinton administration’s refusal to open the border, demanding that the United States abide by its NAFTA commitments and open its highways.[10] On Nov. 29, 2000, the NAFTA tribunal released its preliminary ruling on the case supporting Mexico’s claim: The U.S. must open its highways to Mexico-domiciled trucks or pay a penalty to Mexico for refusing to comply with the NAFTA ruling.
    • 2001: The preliminary ruling was confirmed by a NAFTA tribunal on Feb. 6, 2001, setting off years of subtle and not-so-subtle threats by Mexico to begin launching trade sanctions against the United States.[11]
    • 2001: When Bush came into office in 2001, he moved to open the border to trucking by 2002.[12] This was consistent with his past positions; when Bush was governor of Texas, he signed a letter to the Clinton administration criticizing the refusal to open the border.[13]
    • 2001: Appalled at the lack of safeguards and information on safety, the House of Representatives stepped in during the summer of 2001 and attached an amendment to a transportation appropriations bill prohibiting the administration from processing any applications from Mexico-domiciled trucking companies to operate in the United States.[14] A final House-Senate conference version of the same bill opened up the border, but only subject to U.S. ability to enforce U.S. safety standards on Mexico-domiciled trucks, and ordered the Bush administration to monitor Mexico’s truck regulation regime far more closely than was planned.[15]
    • 2001: Mexico rejected U.S. demands for access for U.S. inspectors and other demands made by Congress.[16]
    • 2002: In December 2002, the Bush administration lifted the Clinton-era moratorium on implementing the NAFTA trucks rules.[17] In issuing its new regulation, the Bush administration failed to comply with the National Environmental Policy Act (NEPA) and the Clean Air Act, which requires Environmental Impact Statements on major government actions.
    • 2002: Public Citizen and a coalition of other consumer, labor and environmental groups sued the administration in federal court over its failure to comply with NEPA and the Clean Air Act, which require an examination of the air quality and health effects of increased emissions and congestion from open-border trucking. The lawsuit was brought by Public Citizen, the Natural Resources Defense Council, the Environmental Law Foundation, the International Brotherhood of Teamsters, the California Federation of Labor AFL-CIO and the California Trucking Association, with many state officials as amici.
    • 2003: The U.S. Court of Appeals for the Ninth Circuit ordered the Bush administration to conduct a full environmental review before opening the border.[18] The administration appealed to the U.S. Supreme Court.
    • 2004: On June 7, 2004, the Supreme Court ruled that the Federal Motor Carrier Safety Administration did not have to do a detailed environmental impact study of the opening of the border. The Court based this conclusion in part on its determination that U.S. obligations under “free trade” agreements must be given priority in interpreting domestic law. (This line of argument directly conflicts with provisions in NAFTA’s implementing legislation, which explicitly state that NAFTA has no effect in domestic law. These provisions were added after a group of state attorneys general and legal scholars raised concerns about NAFTA’s sovereignty threats. At the time of the NAFTA vote, many critics noted that the implementing legislation language would be ineffective given NAFTA’s built-in enforcement system, which includes imposition of trade sanctions if domestic laws are found not to comply with NAFTA.)
    • 2004: From June 2004 to the present, the Bush administration and the Mexican government have worked to finalize a policy framework (memorandum of understanding) for Mexico-domiciled trucks.[19]
    • 2005: In January 2005, the U.S. Department of Transportation’s Office of the Inspector General concluded that, “until an agreement or other understandings related to on-site safety reviews is reached with Mexico, [the U.S. government] cannot, in our view, grant long-haul operating authority to any Mexican motor carrier.” The report noted that U.S. law requires “50 percent of all reviews of all Mexican carriers be conducted on-site and that on-site reviews be conducted for 50 percent of the estimated truck traffic in any year.” According to the report, as of 2004, that would mean that “339 of the 678 Mexican carriers seeking long-haul authority would need to receive on-site safety reviews.” As the report noted at the time in 2005, “No agreement or understanding has yet been reached between Mexico and the United States on conducting these on-site reviews.”[20] As recently as 2007, DOT spokespersons were saying, “the U.S. and Mexico are still negotiating over the issue of allowing [U.S. government] inspectors to enter Mexico to conduct on-site mechanical safety inspections.”[21]
    • On Feb. 23, 2007, the Bush administration announced that it will open the southern U.S. border to 100 long-haul, interstate trucking companies from Mexico – despite 13 years of safety and environmental objections raised by the Department Transportation’s Inspector General and by consumer, highway safety, labor and environmental advocates.[22] On Feb. 26, DOT announced that Mexico will allow on-site inspections,[23] although it remains to be seen whether the test inspections regime will be as rigorous in practice as U.S. regulation and practice. Deborah Hersman, a member of the National Transportation Safety Board, an independent federal agency charged by Congress with issuing safety recommendations aimed at preventing traffic accidents, has pointed out that the United States cannot even adequately inspect its own trucks, much less those of another country. According to The Associated Press, Hersman “questioned how the United States could spare sending inspectors to Mexico when only a tiny percentage of American truck companies were inspected every year.”[24]


    [1]“Congress Strikes A Deal On NAFTA Trucks Supported By White House,” Inside U.S.Trade, Nov. 30, 2001; Teamsters press release, Nov. 29, 2001.

    [2]NAFTA, Annex 913.5.a-1(2)(a).

    [3]NAFTA, Annex I, Schedule of the United States.

    [4]U.S. Mexico Border: Issues and Challenges Confronting the United States and Mexico, GAO, July 1999.

    [5]“Commercial Trucking: Safety and Infrastructure Issues Under the North American Free Trade Agreement,” General Accounting Office, GAO/RCED-96-61, February 1996.

    [6]“FY 1999 Windows of Opportunity for Drug Smuggling (Southwest Border),” U.S. Customs Service, Nov. 4, 1999;“NAFTA Offers Freedom of the Road: U.S. May Have to Open its Borders to Neighbor’s Trucks, Regardless of Safety Concerns,” Financial Times, Nov. 28, 2000.

    [7]NAFTA Border Opening Remarks, Secretary of Transportation Federico Pena, Dec. 18, 1995; White House Press Briefing, Mike McCurry, Dec. 18, 1995.

    [8]“Working on the Blade of a Knife,” Los AngelesTimes, March 18, 1996.

    [9]For more information on the NAFTA trucks issue in the early years of NAFTA, please see “The Coming NAFTA Crash: The Deadly Impact of a Secret NAFTA Tribunal's Decision to Open U.S. Highways to Unsafe Mexico-domiciled trucks,” Public Citizen’s Global Trade Watch, February 2001.

    [10]Mexico’s initial complaint was that the U.S. did not open the U.S. border states in December 1995 as agreed under NAFTA. However, the NAFTA tribunal did not issue a preliminary ruling until after the NAFTA transportation schedule also required the U.S. to open up the entire country to Mexico-domiciled truck traffic. Public Citizen has been unable to determine whether during the course of the dispute Mexico amended its complaint to include the U.S. refusal to open its highways countrywide or not, despite repeated inquiries to the United States Trade Representative, the Mexican Embassy, the American Trucking Association, as well as consumer, highway safety and labor organizations concerned with the case.

    [11]“Bush Promises To Fight House Language Blocking Mexican Trucks,” Inside U.S. Trade, June 29, 2001; “U.S. Bid To Soothe Congress Over NAFTA Trucks Risks Angering Mexico,” Inside U.S. Trade, July 6, 2001; “Fox Calls On U.S. To Implement Truck Decision, Cut Ag Subsidies,” Inside U.S. Trade, Sept. 14, 2001; “Mexico Outlines 22 Specific Objections To U.S. Rules For Trucks,” Inside U.S. Trade, June 14, 2002; “Mexican Trucks Still Halted At Border As Sides Discuss Inspections,” Inside U.S. Trade, Nov. 12, 2004; “Mexico Sees HFCS Tax Repeal As Part Of Sweetener Deal Until 2008,” Inside U.S. Trade, March 31, 2006.

    [12]“Bush Administration Begins Discussion On Implementing Truck Panel,” Inside U.S.Trade, Feb. 16, 2001.

    [13]“Mexican Truckers Face U.S. Obstacle Course,” USAToday, Feb. 5, 2001.

    [14]“Bush Promises To Fight House Language Blocking Mexican Trucks,” Inside U.S.Trade, June 29, 2001.

    [15]“”Congress Strikes A Deal On NAFTA Trucks Supported By White House,” Inside U.S.Trade, Nov. 30, 2001.

    [16]“Mexico To Hold Its Fire On U.S. Rules For NAFTA Trucks,” Inside U.S.Trade, June 7, 2002; “Mexico Outlines 22 Specific Objections To U.S. Rules For Trucks,” Inside U.S.Trade, June 14, 2002.

    [17]“U.S.Lifts Ban On Mexican Trucks, Wrestles With Audit Procedures,” Inside U.S.Trade, Dec. 6, 2002.

    [18]“Court Blocks Bush Implementation Of NAFTA Truck Panel,” Inside U.S.Trade, Jan. 24, 2003.

    [19]“Mexico Sees HFCS Tax Repeal As Part Of Sweetener Deal Until 2008,” Inside U.S. Trade, March 31, 2006; “Mexican Trucks Still Halted At Border As Sides Discuss Inspections,” Inside U.S. Trade, Nov. 12, 2004.

    [20]Office of the Inspector General, “Follow-up Audit of the Implementation of the North American Free Trade Agreement’s Cross-Border Trucking Provisions,” U.S. Department of Transportation, Jan. 3, 2005.

    [21]“Oberstar Lays Out Conditions For Mexican Truck Pilot Program,” Inside U.S.Trade, Jan. 27, 2007.

    [22]U. S. Department of Transportation, Office of Inspector General, Statement on Announcement of Cross-Border Truck Safety Pilot Plan, Feb. 23, 2007.

    [23]“U.S. Officials Will Travel to Mexico to Conduct On-Site Safety Audits of Trucking Companies As Part of New Program Announced Today by U.S. Secretary of Transportation Mary E. Peters,” Department of Transportation Press Release, Feb. 26, 2007.

    [24]“Bush Plan to Allow Mexican Truckers Throughout U.S. Draws Criticism,” Associated Press, Feb. 24, 2007.

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