Two of NAFTA provisions are strongly debated the strictness of the rules of origin, and the cross-border trucks. NAFTA established a schedule to opened national borders to trucks. In the case of the US, by December 17, 1995 the border states should be opened for Mexican trucks, and by January 1, 2000 all of the US and Canada. Nevertheless, due to previous financial crisis Mexican trucks were very old, and strong concerns on safety were placed by the U.S. Department of Transportation (US DOT). The US DOT decided that until safety concerns were resolved Mexican trucks would only be able to operate in what is called commercial zones (Frittelli 1).

Safety concerns were sustained by the 45% of inspected Mexican trucks that were declared dangerous by the US DOT in 1996. Several other concerns such as American job loss, and low Mexican drivers requirements make the trucking provision to be postponed. Mexico formally protested in 1998 using the methods of dispute settlements established in NAFTA. The arbitration panel resolved that the US was in breach of the legal obligations contracted under NAFTA, thus the concerns of the safety of the trucks were not enough to relieve the obligation. President Bush told U.S. Federal Motor Carrier Safety Administration to start accepting Mexican applications by 2001, for long-haul operations. Nonetheless, Congress passed the FY2002 Department of Transportation Appropriations Act (P.L. 107-87) requiring 22 preconditions for Mexican trucks to be allowed to operate beyond the commercial zone (Frittelli 1).

The Secretary of Transportation declared in November 2002 that all the 22 preconditions of FY2002 Appropriations Act were already in placed by the FMCSA. Therefore, the FMCSA was prepared to start processing applications. Despite that, in January 2003 the Ninth Circuit of Appeals delayed the implementation of the program, due to the Public Citizen v. Department of Transportation case until an environmental impact statement was made under the Clean Air Act, and the National Environment Policy Act. The case reached the Supreme Court, who reversed the Appeals decision in June 2004 (Frittelli 2).

Border Trucks

Border Trucks

However, the U.S. DOT Inspector General announced in January 2005 that the FMCSA was only able to comply with only 8 of the 22 requirements of the FY2002 Appropriations Act. It was not until February 2007 that requirements were met. Therefore, U.S. and Mexican Secretaries of Transportation started a demonstration project to begin implementation of NAFTA trucking provisions. To prove that Mexico-based motor carriers were able to comply with all American regulations, 100 companies of each country will be authorized to make long-haul trips in each other country. The participants would be heavily monitored to evaluate the program, including official GPS to address cabotage concerns (Frittelli 3).

All the same, with the approval of the U.S. Troop Readiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007 (P.L. 110-28, section 6901) on May 2007, Congress added new requirements to the demonstration project. In September 2007, the new requirements were complied by the DOT and the demonstration project begun (Frittelli 3).

Still, with the FY2008 Consolidated Appropriations Act (P.L. 110-161) in December 2007, Congress forbid the use of funds for the cross-border trucking program. Bush administration claimed that the as the program had started before the passage of the law, the program can continue. The unions and environmentalist groups filed suit under the 9th Circuit Court of Appeals in San Francisco, which oral arguments were held in February 2008, although the decision is still pending. Because of the low participation by carriers the demonstration project was extended for two more years in August 2008 (Frittelli 4).

Nevertheless with the approbation of the FY2009 Omnibus Appropriations Act (P.L. 111-8) in May 2009, Congress mandated the immediate termination of the demonstration project. In retaliation, on March 2009, Mexico approved an increased in tariffs on 90 US products with an estimated value of 2.4 billion dollars. These duties imposed in consumer goods range from a 45% on fresh onions to 10% in toilet paper. Since the North American Summit in August 2009 negotiations are being held to resolve this issue (Alexander n.p.; Organo 50-51; “Joint” n.p.)