May 10, 2021

U.S. Government Publishes Rules for Investigating Mexican Carriers Operating in the United States

By Ramón Concha and Pablo Sáenz Baltazar

On April 8, 2021, the U.S. International Trade Commission (“ITC”) published details on its implementation of rules with respect to the investigation of Mexican carriers providing cross-border trucking services in the United States.  The purpose of the investigations is to determine whether the operations of Mexican carriers will cause or threaten to cause material harm to U.S. carriers.

The new rules arose from complaints by the ITC and various trucking associations in the United States with respect to the manner in which cross-border trucking services were regulated in the North American Free Trade Agreement (“NAFTA”). As a result of negotiations on the issue, in the United States-Mexico-Canada Agreement (“USMCA”) the parties agreed on the possibility of the ITC issuing new rules to structure a legal process that U.S. carriers can use to seek remedies against alleged material harm caused by Mexican carriers operating in the United States.

For purposes of the new rules, material harm means “a significant loss in the share of the United States market or relevant sub-market for cross-border long-haul trucking services held by persons in the United States”.

It is worth noting that the Mexican government opposed the language included in the rules, arguing that the ITC rules define material harm in a manner that is inconsistent with its definition in the USMCA, and that the U.S., Mexico and Canada agreed upon a more narrow definition in the USMCA, meanwhile the new rules follow a broader definition contained in U.S. domestic law in the Tariff Act of 1930.

Note that an interim version of the rules existed, and that the only update made to the interim rules is that these final rules require that petitioners requesting investigations include freight rates in their petitions to clarify the type of pricing information necessary instead of including pricing information in their requests.

These new rules are effective as of May 10, 2021.

Please contact us if you have any questions regarding the investigation process established by the ITC and/or the rules applicable to Mexican carriers in the United States.