FAIR Legislative Update

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FAIR Legislative Update July 11, 2011






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Administration Quietly Signs Cross-Border Trucking Agreement with Mexico

Last Thursday, Department of Transportation (DOT) Secretary Ray LaHood quietly signed a controversial cross-border trucking agreement in Mexico City with Mexico’s Secretary of Communications and Transportation. (DOT Press Release, July 6, 2011) The comment period on the Federal Motor Carrier Safety Administration’s (FMCSA) proposed regulations for a pilot program had closed in early May after receiving more than 2,000 comments. (Houston Chronicle, July 6, 2011; 76 Fed. Reg. 20,807, Apr. 13, 2011)



The cross-border trucking program with Mexico has been in dispute since the North American Free Trade Agreement was signed in 1994. (CNN, April 27, 2011) NAFTA originally authorized Mexican trucks to transport goods into the U.S. beyond the border zone, to begin in 1995. (NAFTA Secretariat) Although President Clinton signed NAFTA into law, he refused to implement the cross-border trucking provisions of the agreement with Mexico, thereby limiting Mexican tractor-trailer trucks entering the U.S. to a radius of 20- to 50-miles of the ports of entry. (Secretariat File No. USA-MEX-98-2008-01; FMCSA Pilot Program on NAFTA Long-Haul Trucking Provisions) At that point, the Mexican trucks would have to transfer their load onto a U.S.-domiciled carrier. (The Texas Tribune, Jan. 23, 2011)



The Mexican government saw President Clinton’s refusal to implement the program as a violation of NAFTA, filed a complaint with the NAFTA tribunal, and won a favorable ruling. (Secretariat File No. USA-MEX-98-2008-01) In 2001, President George W. Bush took steps to comply with the NAFTA tribunal ruling by announcing he would initiate the cross border trucking program. Congress responded by passing language in the Fiscal Year 2002 Department of Transportation (DOT) appropriations bill that prohibited funds from going to the program until certain preconditions and safety requirements were met. (DOT and Related Agencies Appropriations Act, 2002, Section 350 (Pub. L. 107-87)) In 2007, the Bush Administration again proposed a cross-border trucking pilot program, arguing that the preconditions and safety requirements under Section 350 had been met.



In 2009, acknowledging the views of the U.S. public and its transportation workers, Congress passed and President Obama signed a spending bill into law preventing the DOT from funding the program. As permitted by NAFTA, Mexico retaliated by enforcing $2.4 billion in tariffs on over 90 U.S. products. (Secretariat File No. USA-MEX-98-2008-01) The Congressional ban on funding lasted only through the Fiscal Year 2009, and the Obama Administration has been pushing for a re-start of the cross-border trucking program since early this year. (New York Times, Jan. 6, 2011) According to the U.S. Troop Readiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act of 2007 (Pub. L. 110-28), DOT must first test granting authority for cross-border trucking operations through a pilot program. (FMCSA Pilot Program on NAFTA Long-Haul Trucking Provisions) As such, this purportedly three-year pilot program was authorized by the Transportation Secretaries on Thursday. (DOT Press Release, July 6, 2011)



Under the new pilot program, Mexican trucks are granted access to U.S. highways in exchange for Mexico dropping the retaliatory tariffs it imposed on U.S. goods. (See Memorandum of Understanding ; Agreement on Lifting of Retaliatory Measures) Mexico will suspend 50 percent of the tariffs within ten days and the remaining 50 percent within five days of the first Mexican trucking company receiving its U.S. operating authority. (DOT Press Release, July 6, 2011) This could be soon, as Mexican truckers can begin applying for permits immediately, with the first Mexican tractor-trailers coming across the border as early as August. (New York Times, July 6, 2011)



Just as the last pilot program was halted by Congress moving to defund the program, several Congressmen are already pushing to prevent the pilot program, citing dangers posed by Mexican trucks to U.S. motorists and implications for national security. Representative Peter DeFazio (D-OR) was particularly incensed that the DOT inserted a provision in the agreement to have American taxpayers foot the bill to outfit Mexican trucks with the Electronic On-Board Recorders which are required for Mexican trucks to meet the safety standards. (Memorandum of Understanding) “As we debate deep and harsh cuts to programs that help middle-class families,” he said, “it is outrageous that taxpayers are being told to foot the bill for the Mexican trucking industry to comply with American safety standards.” (New York Times, July 6, 2011) On May 4, 2011, in anticipation of this pilot program, 44 members of Congress wrote to President Obama urging him to forego this latest plan to open the borders to Mexican trucks. (Letter to Secretary of Transportation Ray LaHood, May 4, 2011) In their letter, the Congressional members wrote: “this proposed program could impact the safety of our roads and may create a security breach along our southern border.” (Id.) The Congressmen said that while they “understand the need to work to remove the unfair tariffs that Mexico has imposed on U.S. agriculture products as a result [of not implementing the program], doing so should not come at the expense of the safety of our highways.” (Id.)



Organizations representing U.S. truck drivers are also voicing loud concern over the program. President of the Teamsters Union, Jim Hoffa, stated in a press release that “this so-called pilot program is a concession to multinational corporations that send jobs to Mexico. It erodes our national security. It endangers motorists. It ignores the rampant corruption among Mexican law enforcement. It lowers wages and robs jobs from hard-working American truck drivers and warehouse workers.” (Hoffa Condemns Mexican Truck Pilot Program, July 6, 2011) Hoffa also questioned the legality of the pilot program, noting the agreement’s reference to “permanent operating authority” being given to some Mexican motor carriers exceeds the DOT’s legal authority. (Id.; Memorandum of Understanding)



As stated in the Memorandum, the pilot program is to last for a period of three years and will consist of three stages. (Memorandum of Understanding) Stage 1 will begin when a Mexican motor carrier is issued a provisional operating authority. (Id.) The motor carrier’s vehicles and drivers will be inspected each time they enter the United States for a period of three months. (Id.) Stage 2 will begin after a Mexican motor carrier has spent a minimum of three months in Stage 1. (Id.) During Stage 2, the motor carrier’s vehicles will be inspected at a “level more comparable to those of motor carriers operating in the U.S. commercial zone, but sufficient to meet the legal requirements for a statistically valid sample of safety data.” (Id.) After reaching Stage 3, a motor carrier’s vehicles will have unfettered access to U.S. highways as long as they are found to have a satisfactory rating under the latest compliance review.



Another City Prepares to Issue ID Cards to Illegal Aliens

In a scene mirroring last month’s Senate hearing on the DREAM Act, pro-amnesty advocates holding signs saying “Richmond IDs for all” crowded a packed hearing room to watch the Richmond, California City Council unanimously approve the first round of votes on an ordinance to allow the city to issue municipal ID cards to illegal aliens. (Richmond Confidential, July 6, 2011) Under the ordinance, illegal aliens must only establish proof of identity (which can be done by showing an easily fabricated matricula consular ID card), provide proof of Richmond residence for 15 of the past 30 days, and pay a fee not to exceed $15 ($10 for minors). (See Ordinance at §§ 2.64.030, 2.64.050; see also FAIR’s Matricula Consular ID Cards Talking Points) The municipal ID card, which also functions as a pre-paid debit card, will make it easier for illegal aliens to open bank accounts, as well as grant them access to public benefits such as use of the City’s bus services, libraries, and pools. (See Ordinance at § 4; Contra Costa Times, July 6, 2011)



The ID cards “[moves] our city in a just, in an equitable and in a healthy direction,” said Richmond Councilwoman Jovanka Beckles, sponsor of the ordinance. (The Bay Citizen, July 6, 2011) “This is a way to empower that segment of our community that might not feel empowered.” (Id.) Richmond Mayor Gayle McLaughlin also spoke in support of the ordinance and called for comprehensive immigration reform: “Of course we want to see a comprehensive and humane immigration reform policy … but in the meantime, while that seems to be stalled at the national level, we think municipal ID is really a step in the right direction.” (ABC7 News, July 6, 2011) True immigration reformers, on the other hand, are speaking out against the ordinance. “If this ordinance passes, it will encourage higher illegal immigration and therefore would put more pressure on Richmond schools and other infrastructure and therefore on the city's budget. And Richmond is pretty much broke,” said Yeh Ling-Ling, Executive Director of the Alliance for a Sustainable USA. (Id.)



Richmond, a sanctuary city, must still approve a second round of votes on the ordinance (scheduled to take place in two weeks) before it can take effect. (Id.) If the City Council approves the ordinance, Richmond will join several other cities in California’s Bay Area, such as San Francisco and Oakland, in issuing the municipal ID cards to illegal aliens. (Id.) Three New Jersey cities, Princeton, Trenton, and Asbury Park, as well as New Haven, Connecticut, also have municipal or community-based ID programs used by their city governments. (New York Times, May 16, 2010)



Congressmen Smith and Aderholt Encourage Napolitano to Enforce the Law

In a letter to Homeland Security Secretary Janet Napolitano last week, Representative Lamar Smith (R-TX) and Representative Robert Aderholt (R-AL) expressed concern over the Obama Administration using its executive authority to ‘circumvent’ Congress’ authority over U.S. immigration policy. As such, the Congressmen wrote to urge the Secretary to stop any actions being taken by the Department of Homeland Security (DHS) that would prevent immigration laws from being fully enforced.



The Congressmen referenced a U.S. Citizenship and Immigration Services (USCIS) memo circulated last year by top USCIS officials, recommending liberal use of deferred action and parole authority. An additional ‘seemingly-authentic draft DHS memo’ retained by the House Judiciary Committee further revealed an internal proposal to grant deferred action to the “entire potential legalization population,” as well as to illegal aliens who would have been eligible for legalization under the failed DREAM Act. The Congressmen’s letter points out that since DHS can grant work authorization to illegal aliens who have been granted deferred action, it is essentially a grant of legalization.



Representatives Smith and Aderholt also brought attention to the more recent memos issued by Immigration and Customs Enforcement (ICE) Director John Morton. (See FAIR Legislative Update, June 27, 2011) The Director’s memos reiterated to ICE personnel the availability of prosecutorial discretion. The Congressmen called the memos a “grossly irresponsible expansion of the use of prosecutorial discretion for the apparent purpose of administrative amnesty.”



Furthermore, the Congressmen reminded Secretary Napolitano that the Constitution grants Congress alone the authority to dictate immigration policy. And while DHS has argued that its limited resources have resulted in the Department’s disregard of immigration laws, the Congressmen pointed out that Congress has consistently provided above and beyond the budget requests of ICE since its creation. Both Congressman Smith and Aderholt strongly encouraged DHS to ensure the men and women of its agencies have the encouragement and support of its officials to rigorously enforce immigration laws.