Advancing The Nafta Spirit and Letter Of The Law: Policy Recommendations for Eliminating Barriers to Free Trade

*Comments by Charles Cervantes
Pan American Health Organization
Washington, DC
April 12, 2004

I thank you for this opportunity to be in your company today to discuss the global problem of road safety. The United States, being a member of the 1992 North American Free Trade Agreement (NAFTA), has committed itself to economic integration with both Canada and Mexico. Consequently, American highways have become one of the many stages in which free trade has manifested itself.

When the trilateral NAFTA economic agreement entered into effect on January 1, 1994, the goal was a gradual phase out of economic barriers and ultimately the achievement of "free trade" between the three North American neighbors. In the transportation area, NAFTA established the liberalization of cross-border motor carriers by setting up a timetable for granting motor carriers access to their partners' marketplace. December 18, 1995 was the agreed upon date for the United States to open its borders to Mexican motor carriers.

However, the United State's Department of Transportation (DOT) refused to authorize Mexican motor carriers to deliver cross-border shipments beyond commercial zones past the December 18th deadline. Arguing that Mexico's regulatory safety inspections were inadequate to guarantee compliance with American safety standards, the United States prevented the liberalization of motor carrier access.

In response, a NAFTA arbitral panel was established at Mexico's request to review the matter. The Panel unanimously determined on February 2001 that the United States was in breach of its obligations under NAFTA because the less stringent Mexican truck safety inspection system inadequately justified the complete denial of access of Mexican motor carriers to the U.S. market. Nevertheless, the Panel did recognize Mexico's less stringent safety inspection system as a justification for a more comprehensive application process that ensured compliance with American safety standards.

Since the Arbitration Panel decision, the American border has been opened to Mexican motor carriers on a case by case basis. Mexican motor carriers applying for access beyond the U.S.-Mexico commercial zone must meet stringent safety requirements established by the U.S. Department of Transportation to be authorized to operate in the United States.

Despite this, public concern persists in regards to the safety of sharing American roads with Mexican motor carriers. Resistance to opening the U.S.-Mexico border to Mexican carriers undermines the basic NAFTA principal of creating an integrated North American economic community which inevitably hinders advancement toward this goal. New policy solutions must be developed to address public safety concerns while at the same time honoring our commitment to NAFTA.

Currently, Mexican cross-border carriers are subject to the same federal transportation standards as domestic carriers. However, federal regulations are established as the minimum domestic carriers must satisfy since they are also subject to state regulations that can equal or exceed federal standards. Requiring Mexican motor carriers to also comply with border state requirements would elevate their safety level to that of American carriers.

State requirements for the issuance of commercial driver's licenses should be made applicable to Mexican motor carriers soliciting admission into the American marketplace. In addition to the federal drug and alcohol exams required of Mexican drivers, comprehensive medical examinations should be incorporated as a requirement, as states require of American carriers. Such a requirement would help evaluate the physical ability of a Mexican driver to operate a carrier in American roads.

Additionally, certain harmonization must take place to establish common regulations between the two trade partners as a means of facilitating enforcement and compliance. The same hours of service regulation should be adopted by the United States and Mexico as their carriers will be operating within the same environment their behavior should coincide for safety purposes.

Compliance with American traffic regulations must also be required of Mexican cross-border carriers as they will be subject to these regulations when operating in the United States. Training programs to inform Mexican drivers of American traffic laws are necessary for the preservation of the integrity of road safety after the addition of Mexican motor carriers to American highways. Similarly, a minimum knowledge of the English language becomes essential for comprehending road side information that may be encounter during operation within the United States. To ensure that drivers have this knowledge, a comprehensive examination on American traffic laws and the necessary mastery of the English language should be issued in Mexico and satisfactorily passed by Mexican carrier drivers prior to gaining cross-border access. By establishing these requirements, Mexican drivers will be able to comply with American traffic standards without jeopardizing the safety of other drivers.

Furthermore, since September 11th, 2001, American security has become a national safety issue as well. Granting Mexican motor carriers access to the American market may be considered a security threat because of the introduction of a foreign vehicle into the nation. Fear of terrorism should not interfere with North America's progress towards achieving free trade. By combining safety and security principals, inspections of Mexican cross-border carriers by both Mexican and American authorities can prevent the introduction of terrorist or terrorist material into American territory. In addition, at the private level, Mexican companies operating in the United States should be trained in regards to the terrorist threat being faced by the U.S. and their role as potential agents. Steps at the company level such as employee background checks, and cargo and client clearances can serve to prevent involuntary company involvement with terrorism. In order to continue our journey towards free trade, terrorist security threats must be removed as an obstacle for granting access of Mexican motor carriers to the United States through the enforcement of security measures at multiple levels.

Advancing the NAFTA spirit of free trade through the opening of American roads to Mexican motor carriers inevitably complicated the preservation of road safety by introducing a new variable -- the Mexican driver. The issue of road safety is of concern to every person on the road including Mexican cross-border drivers. It is beneficial to preserve the integrity of American road safety standards by holding these new drivers operating in American roads to the same standards American carrier drivers must meet. Progress made towards free trade must not necessarily come at the expense of American safety standards. Our trading partners should be required to elevate their standards to equal our own so as not to compromise the American quality of life.1

1Special thanks to Adriana Payan, a student at UCLA, who is a spring intern with the United States - Mexico Chamber of Commerce for her research and writing on this article.

Charles Cervantes is director of Privacy and Legal of the U.S. Mexico Chamber of Commerce