Drivers Beware: Proposed NAFTA Trucking Provision Puts Motorists at Risk

Under the North American Free Trade Agreement (NAFTA), the Federal Motor Carrier Safety Administration (FMCSA) has proposed a new pilot program that would allow trucks from Mexico to operate long-hauls into the United States. While the pilot program is seen as a good move for the economies of both the United States and Mexico, some are urging FMCSA to consider safety in more detail.

Currently, most carriers from Mexico are allowed to operate within the United States, but only within 25 miles from the border. Every year, commercial trucks from Mexico cross the border in the United States about 4.5 million times.

FMCSA has made it clear that these carriers domiciled in Mexico would be required to comply with all U.S. laws and regulations. This means they would be subject to the same safety requirements, registration requirements, and taxation as U.S. commercial trucks.

But the proposed pilot program has one fatal flaw--carriers from Mexico would be allowed to operate within the United States as self-insured carriers. In other words, if the driver of a Mexican carrier operating in the United States collides with another car, and it's his fault, the carrier will be liable for any injuries the passengers in the other car receive. But if the carrier is insolvent, anyone injured in the accident may never recover damages.

In its proposed rulemaking, FMCSA has focused on the restrictions that would be placed on the carriers, but has downplayed the number of crashes that happen each year due to carrier negligence. In fact, in its proposed rulemaking, FMSCA states that these "crashes are, in fact, rare events, and it is not likely that many, if any, will be recorded during this current effort." (See 76 Fed. Reg. 20807, at 20818) Yet, the statistics show that accidents involving commercial trucks kill nearly 4,000 people each year, and injure an additional 100,000 people. These accidents are hardly rare occurrences.

FMCSA estimates that only 316 carriers will take advantage of the pilot program, out of 6,900 total Mexican carriers. Not only does this increase the number of commercial trucks on already busy U.S. roads, but it also has the potential to increase the number of accidents on our roads.

Despite the proposed standards that Mexican carriers would have to meet, the American Association for Justice (AAJ) argues that these Mexican carriers do not have the same safety requirements as U.S. carriers do, and allowing them to operate on U.S. roads will increase the risk of truck accidents. Moreover, the AAJ worries that if anyone is injured in an accident with these carriers, he or she will not be able to recover for any injuries suffered, and a strain will be placed on programs like Medicare and Medicaid to pay for these injuries.

AAJ has submitted comments to FMCSA asking the agency to require Mexican carriers to purchase an insurance policy rather than self-insuring their trucks. The comment period ended May 13, so it may be a few months before we learn what insurance will be required for these carriers.

The pilot program is expected to last for three years. During that time, FMCSA hopes to collect and evaluate data on the safety performance of Mexican carriers on U.S. roads.

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