# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

A rgued December 6, 2012 Decided April 19, 2013

No. 11

- 1444

I NTERNATIONAL B ROTHERHOOD OF T EAMSTERS , ET AL ., P ETITIONERS

v.

U NITED S TATES D EPARTMENT OF T RANSPORTATION , ET AL ., R ESPONDENTS

No. 11

- 1251

O WNER

- O PERATOR I NDEPENDENT D RIVERS A SSN ., I NC ., P ETITIONER

v.

F EDERAL M OTOR C ARRIER S AFETY A DMINISTRATION , ET AL ., R ESPONDENTS

On Petition s for Review of an Order of the Federal Motor Carrier Safety Administration

Barbara J. Chisholm argued the cause for petitioners International Brotherhood of Teamsters, et al. With her on the briefs were Stephen P. Berzon

, Jonathan Weissglass

, Diana S. Reddy , and Scott L. Nelson

.2

Paul D. Cullen

, Sr. argued the cause for petitioner Owner

- Operator Independent Drivers Assn., Inc. With him on the briefs were Joyce E. Mayers and Paul D. Cullen

, Jr

.

Michael P. Abate , Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief were Tony West , Assistant Attorney Gener al at the time the brief was filed, Ronald C. Machen

, Jr. , U.S. Attorney, David C. Shilton

, John L. Smeltzer , and Michael S. Raab , Attorneys, Paul M. Geier , Assistant General Counsel, Federal Motor Carrier Safety Administration, and Peter J. Plocki

, Deputy Assistant General Counsel.

Randolph D. Moss and Brian M. Boynton were on the brief for amicus curiae California Agricultural Issues Forum in support of respondents. Seth T. Waxman entered an
appearance.

Stephan E. Becker and Daron T. Carreiro wer e on the brief for amicus curiae The United Mexican States in support of respondents.

Before: H ENDERSON , R OGERS , and K AVANAUGH , Circuit Judges

. Opinion for the Court filed by Circuit Judge K AVANAUGH

.

K AVANAUGH , Circuit Judge : Pursuant to statute, t he Federal Motor Carrier Safety Administration recently authorized a pilot program that allows Mexico

- domiciled trucking companies to operate trucks throughout the United States

, so long as the trucking companies comply with certain federal safety standards. Two groups representing American truck drivers , the Owner

- Operator Independent Drivers3

Association and the International Brotherhood of Teamsters

, contend that the pilot program is unlawful . We disagree and deny the ir petitions for review

.

I

Before 1982, trucking companies from Canada and Mexico could apply for a permit to op erate in the United States. In 1982, c oncerned that Canada and Mexico were not granting reciprocal access to American trucking companies

, Congress pass ed and President Reagan signed a law that prohibit ed the U.S. G overnment from processing permits for companies domiciled in those two countries. The trucking dispute between the United States and Mexico has lingered since then.

The United States and Mexico a ttempted to resolve th e impasse when negotiating t he North American Free Trade Agreement

. After NAFTA took effect in 1994

, the U.S. G overnment announce d a program that would gradually allow Mexico

- domiciled trucking companies to operate throughout the United States. Soon thereafter, however, the U.S. G overnment anno unced that Mexico

- domiciled trucking companies would be limited to s pecified commercial zones in

s outhern border states

.

Mexico then comp lain ed to a NAFTA arbitration panel about that limited access

. The panel ruled that the United States had to allow Mexico

- domiciled trucking companies to operat e throughout the United States. B ut the panel also explained that the United States could require those companies to comply with the same regu lations that apply to American trucking companies

. The panel also ruled that if the United States failed to allow Mexico

- domiciled trucks to operate4
throughout the United States

, Mexico would be permitted t o impose retaliatory tariffs

.

In re sponse, Congress passed and President George W. Bush signed a law that authorized the Federal Motor Carrier Safety Administration, part of the Department of Transportation, to grant permits to Mexico

- domiciled trucking companies so long as the trucking com panies complied with U.S. safety requirements. See Pub. L. No. 107

- 87, § 350, 115 Stat. 833, 864 (2001). A s the U.S. G overnment worked to establish a permitting regime

, Congress passed and President Bush signed a nother law requiring the Department of Transportation to implement a pilot program to ensure that Mexico

- domiciled trucks would not make the roads more dangerous. See U.S. Troop Readiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act of 2007, P ub. L. No. 110

- 28, § 6901, 121 Stat. 112, 183 (2007).

In 2007, t he FMCSA instituted a pilot program

, but Congress passed and President Obama signed a law that expressly defunded the program before it was completed

. Se e Omnibus Appropriations Act of 2 009, Pub. L. No. 111

- 8, § 136, 123 Stat. 524, 932 (2009). After Mexico imposed $2.4 billion in retaliatory tariffs in response, Congress passed and President Obama signed a law rein stat ing funds for the
program

. See generally Consolidated Appropriations Act of 2010, Pub. L. No. 111

- 117, 123 Stat. 3034 (2009). In 2011,
t he agency again instituted a pilot program

, see 76 Fed. Reg. 40,420 (July 8, 2011), which the Drivers Association a nd the Teamsters now challenge on multiple le gal grounds.

I I

The initial question is whether the Drivers Association and the Teamsters ha ve standing to challenge the pilot program

.5

The Government argues that the groups l ack Article III standing, prudential standing, and organizational standing. We disagree.

To establish Article III standing, a plaintiff or petitioner must demonst rate that it has suffered injury in fact; that its injur ies are fairly traceable to the a llegedly unlawful conduct; and that a favorable ruling would re dress its injur ies

. See Lujan v. Defenders of Wildlife , 504 U.S. 555, 560

- 61 (1992). Here, both t he Drivers Association and the Teamsters ha ve suffered an injury in fact under the d octrine of competitor standing. The competitor standing doc trine recognizes that “economic actors suffer an injury in fact when agencies lift regulatory restrictions on their competitors or otherwise allow increased competition against them. ” Sherley v. Sebelius , 6 1 0 F.3d 69, 72 (D.C. Cir. 2010) ( quotation marks and alteration omitted)

. Because the pilot program allows Mexico

- domiciled trucks to compete with members of both these groups

, the Drivers Association and the Teamsters ha ve suffered an injury i n fact. T he causation and redressability require ments of Article III standing are easily satisfied because, a bsent the pilot program, members of these groups would not be s ubject to increased competition from Mexico

- domiciled trucks operating throughout the United States.

The Drivers Association and the Teamsters also meet the prudential standing “ zone of interests ” test . To establish prudential standing under the zone of interests test

, the groups’ asserted injuries “ must be arguably within the zone of interests to be protected or regulated by the statute [s] ” that they allege

w ere violated. Match

- E

- Be

- Nash

- She

- Wish Band of Pottawatomi Indians v. Patchak , 132 S. Ct. 2199, 2210 (2012) ( quot ation marks omitted). As the Supreme Court recently emphasized

, the prudential standing test “ is not meant to be6
especially demanding.” Id

. ( quotation marks omitted). It “forecloses suit only when a plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Id . (quotation marks omitted).

In authoriz ing the pilot program, Congress balanced a variety of interests, including safety, American truckers’ economic well

- being, foreign trade, and foreign relations. These trucking groups are plainly within the zone of interests of the s tatutes g overning the pilot program.

Finally, the Drivers Association and the Teamsters both ha ve organizational standing. An organization has standing to seek injunctive relief if at least one of its members would have standing and if the issue is germane to the organization’s
purpose

. See Hunt v. Washington State Apple Advertising Commission , 432 U.S. 333, 342

- 43 (1977)

. Both groups satisfy t h ese requirements: T heir members are hurt by increased competition

, and the groups exist to protect the economic inte rests of their members

.

We therefore conclude that both groups ha ve standing to challenge the pilot program.

III

On the merits, w e first consider the Drivers Association ’s arguments.

The Drivers Association advances seven distinct arguments that the pilot program violates various statutes and regulations. We find none to be persuasive.7

First
, the Drivers Association contends that the pilot
p rogram unlawfully allows Mexico

- domiciled truckers to use their Mexican commercial drivers’ licenses. The Drivers Association says that the pilot program thus violates a f ederal
statute that provides : “ N o individual shall operate a commercial motor vehicle wit hout a valid commercial d river ’ s license issued in accordance with section 31308.” 49 U.S.C. § 31302. Section 31308, in turn, requires the Secretary of Transportation to set “minimum uniform standards for the issuance of comm ercial drivers’ licenses . . . by the States .” Id. § 31308 (emphasis added)

. The Drivers Association contends that, working together, Sections 31302 and 31308 require all truck drivers operating in the United States to have commercial drivers’ license s issued by a State, and Mexico obviously is not a state.

The relevant portion s of Section s 31302 and 31308 were initially enacted in the 1990s. See Transportation Equity Act for the 21st C entury, Pub. L. No. 105

- 178, § 4011 , 112 Stat. 107, 407 (1998) ; Pub. L. No. 103

- 272, § 1(d) , 108 Stat. 745, 1020 ( 1994). E ven if Sections 31302 and 31308 alone might prohibit Mexican truckers from using their Mexican commercial drivers’ licenses, t wo subsequent statutes ma de clear that Mexican commercial drivers’ licenses are permissible. A statute enacted in 2001 r equires the Federal Motor Carrier Safety Administration to verify that each Mexican truck driver has the proper qualifications, “including a confirmation of the validity of the Licencia de Federal de Conductor [ the M exican

- issued commercial driver’s licens e] of each driver.” Pub. L. No. 107

- 87, § 350(1)(B)(viii), 115 Stat. 83 3 , 864 (2001). A second statute enacted in 2007 requires the Secretary of Transportation to publish “a list of Federal motor carrier safety laws and regulations, including the

commerc ial drivers [’] license requirements , for which the Secretary of Transportation will accept compliance with a8
corresponding Mexican law or regulation as the equivalent to compliance with the United States law or regulation.” U.S. Troop Readiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act of 2007, Pub. Law. No. 110

- 28, § 6901 (b)(2)(B)(v), 121 Stat. 112, 184 (2007) (emphasis added). Those two statute s

– enacted in two separate public laws directly addressing the issue of Mexican trucks

– reflect Congress’s decision to allow Mexican truckers with Mexican commercial drivers’ licenses to drive on U.S. roads.

The Drivers Association would have us find that those two laws are worthless surplusage. Reading all of the relevan t statutes together, as we must, we think the more sensible conclusion is that Congress decided that Mexico

- domiciled truckers with Mexican commercial drivers’ licenses could drive on U.S. roads and t hat a Mexican commercial driver ’ s license would be consi dered the essential equivale nt of a state commercial driver ’ s license for purposes of this statutory scheme

. We therefore conclude that the pilot program allow s Mexican truck drivers to use their Mexican

- issued commercial drivers’ licenses.

Second

, the Drivers Association argues that the pilot program violates a statute governing medical certificates for truckers. Under that statute, th e Secretary of Transportation
must ensure that “the physical condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely ” and that the physical exams required of truckers are performed by examiners who have received adequate training and are listed on a national registry. See 49 U.S.C. § § 31149(c)(1)( A)(i)

, ( d)

. T he Secretary has fulfilled that requirement by finding that issuance of a Mexican commercial driver ’ s license, which requires a physical examination every two years

, provides “proof of medical9
fitness to drive.” 49 C.F.R. § 391.41(a)(1)(i). Moreover, the requirement that the examiner be listed on a national registry has not yet taken effect

. See 77 Fed. Reg. 24,104 , 24,105 (April 20, 2012).

Third

, the Drivers Association contends that the pilot program violates federal regulations establ ishing procedures for drug testing

. By regulation, a l l drug tests must be processed at certified laboratories. See 49 C.F.R. § 40.81. The Drivers Association contends that the pilot program violates this regulation because the program allows for specimens to be collected in Mexico. But nothing in the regulation prohibits collection of the specimens in foreign countries so long as they are processed at a certified lab. Because the specimens collected under the pilot program must be se nt to certified labs for processing, the pilot program complies with th e cited drug testing regulations

.

Fourth

, the Drivers Association claims that the three previously discussed parts of the pilot program allow Mexico

- domiciled trucks to comply with M exican law instead of U.S. law. And b ecause trucking companies may receive a permit to operate in the U nited S tates only if they comply with applicable U.S. law

, see 49 U.S.C. § 13902(a)(1), the Drivers Association argues that the Secretary may not grant a permit to any company participating in the pilot program

. However, as

we have already explained, U.S. law permits Mexican truckers to use their Mexican commercial drivers’ licenses and to rely on those licenses as proof of medical fitness to drive. And the pilot program’s drug

- testing rules are valid under U.S. law. The pilot program therefore does not substitute compliance with Mexican la w for compliance with U.S. law; as a result, this catch all argument by the Drivers Association is unavailing.10
Fifth

, the Drivers Association asserts that the agency granted “ exemptions ” to Mexico

- domiciled trucking companies without following the proper statutory procedures. T he statutory procedures cited by the Drivers Association for granting exemptions from safety regulations are contained in subsection (b) of 49 U.S.C. § 31315. But the statute makes clear that pilot programs such as this one need not go through the separately listed pr ocedures for exemptions. See 49 U.S.C. § 31315 (c)

. Therefore, this argument fails.

Sixth

, the Drivers Association argues that the agency failed to meet its obligation to publish a list of safety laws and regulations for which it “ will accept compli ance with a corresponding Mexican law or regulation as the equivalent to compliance with the United States law or regulation” and that the agency failed to explain “ how the corresponding United States and Mexican laws and regulations differ.” U.S. Troop R eadiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act of 2007

, § 6901 (b)(2)(B)(v)

. But t he agency in fact publish ed such an analysis in the Federal Register. See 76 Fed. Reg. 20, 807

, 20

, 814 (April 13 , 2011)

. The agency therefore satisfied that requirement.

Seventh

, t he Drivers Association contends that the pilot
program is not “designed to achieve a level of safety that is equivalent to, or greater than, the level of safety that would otherwise be achieved through comp liance with ” applicable safety laws and regulations. 49 U.S.C. § 31315(c)(2) . The Drivers Association claims that the pilot program fails that requirement because it allows Mexico

- domiciled truck ers to rely on their commercial drivers’ licenses, accepts those licenses as proof that a driver is medically fit to drive, and includes less stringent drug

- testing procedures. However, as previously explained, federal statutes, not the pilot program,11

enable Mexico

- domiciled truckers to use their commercial drivers’ licenses, and the pilot program complies with applicable U.S. drug

- testing regulations. And the agency reasonably concluded that those requirements are designed to achieve an equivalent level of safety. Hence, the Drivers Association’s arguments fail.

IV

Having concluded that the pilot program withstands all of the Drivers Association ’s challenge s , we now turn to the six additional arguments advanced by the Teamsters.

First
, t he Teamsters a rgue that the pilot program is unlawful because not all Mexico

- domiciled trucks are required to display a decal certifying that the truck complies with American safety standards. See 49 U.S.C. §§ 30112, 30115. But that decal requirement applies only if the trucks are “import[ed] into the United States” or are “introduce[d]

. . . in interstate commerce” within the meaning of the Motor Vehicle Safety Act

. 49 U.S.C. § 30112(a) (1)

. The agency concluded that the requirement do es not apply to this class of Mexican trucks because the trucks are regularly driven in to and out of the United States ; they are not, in the agency’s view, ei ther imported or introduced in interstate commerce. We must uphold the agency ’s interpretation of “import” and “introduce

. . . in interstate commerce” unless Congress has unambiguously spoken to the contrary or unless the agency ’s interpretation is an unreasonable interpretation of an ambiguous statutory provision

. See Chevron U.S.A. Inc. v. Natural Resources Defense Coun cil, Inc. , 467 U.S. 837

, 842

- 43 (1984).

In our view, t he agency reasonably concluded th at t he ordinary meaning of “import” is “to bring (wares or12
merchandise) into a place or country from a foreign country in the transactions of commerce.” W EBSTE R ’ S N EW I NTERNATIONAL D ICTIONARY S ECOND E DITION 1250 (1945 )

. That definition would apply to Mexico

- domiciled trucks only if the trucks

– not the items they carry

– were brought into the country as commercial goods. Th at interpretation conforms
t o t he longstanding rule that “ vessels have been treated as sui generis , and subject to an entirely different set of laws and regulations from those applied to imported articles.” The Conqueror , 166 U.S. 110, 118 (1897). B ecause the trucks themselves are the in strumentalities of commerce and not wares or merchandise, it was reasonable for the agency to conclude that the trucks are not imported within the meaning of this statute

. The agency also reasonably concluded that the trucks are not introduced in interstate commerce within the meaning of the Act. The Act defines “ interstate commerce ” as “commerce between a place in a State and a place in another State or between places in the same State through another State. ” 49 U.S.C. § 30102(a)(4). That defin ition does not include cross

- border traffic between Mexico and the United States. Congress could have included fore ig n commerce in this definition, b ut it did not.

The Teamsters cite National Association of Motor Bus Owners v. Brinegar

, where this Court interpreted a definition of interstate commerce in a different statute to include all vehicles “on a public highway upon which interstate traffic is moving

. ” 483 F.2d 1294, 131 1 (D.C. Cir. 1973) (Robinson, J., controlling opinion)

. But Brinegar did not interpret th e statute at issue in this case and did not involve foreign commerce and thus that case did not reach the question presented here. See id. at 1 30 5

. As a result, Brinegar does not foreclose the agency’s interp retation of inter state13

commerce , and the agency’s interpretation is otherwise reasonable . T herefore

, we uphold the agency’s interpretation.

Second

, t h e Teamsters c ontend that the vision tests given
to Me xican truck drivers require them to recognize only the color red while American truck drivers are required to recognize red, yellow, and green. However, the Teamsters’

a rgument is foreclosed b y International Brotherhood of Teamsters v. Peña , where this Court upheld the determination that Mexican medical s tandards need not be identical to American standards. See 17 F.3d 1478, 1484

- 86 (D.C. Cir. 1994). Here, the agency adequately explained its determination that the Mexican medical standards, some of which are more stringent than the American standards, wo uld provide a level of safety at least equivalent to the American standards taken as a whole.

Third

, t he Teamsters assert that the pilot program is unlawful because Mexico has not granted U.S.

- domiciled trucks “simultaneous and comparable authority” to operate in Mexico

. See U.S. Troop Readiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act of 2007 , § 6901(a)(3) . The T eamsters acknowledge that Mexico has granted U.S.

- domiciled trucks legal authority to operate in Mexico, but complain that, as a practical matter, it is very difficult for American trucks to operate in Mexico

. Because the statute requires Mexico to grant only legal authority to American trucks, the Teamsters’ argument fails.

Fourth , the Teamsters argue tha t the pilot program impermissibly grants credit to trucking companies that participated in the 2007 pilot program. Under the relevant regulation, t he agency may “grant permanent operating authority to a Mexico

- domiciled carrier no earlier than 18 months a fter the date that provisional operating authority is14
granted.” 49 C.F.R. § 365.507(f). The agency credits any time spent in the previous pilot program toward t he 18 months required under this pilot program. The Teamsters argue that interpretation is im permissible . But the text of the regulation does not prohibit the agency from crediting a company for time that it participated in the 2007 program. We therefore cannot say that the agency’s interpretation is incorrect, mu ch less unreasonably so.

Fifth

, the Teamsters contend that the pilot program does not include a “ reasonabl e number of participants necessary to yie ld statistically valid findings. ” 49 U.S.C. § 31315(c)(2)(C). B ut this argument fails because an unlimited number of trucking companies m ay participate in the
program

. Whether Mexico

- domiciled truck ing companies ultimately avail themselves of the opportunity is outside the agency’s control. The agency has therefore met its obligation to include a sufficient number of participants so as to yield valid results. The Teamsters also argue that the program cannot yield statistically valid findings because it focuses on the number of inspections rather than the number of participants, and because it presumes that Mexico

- domiciled trucking compan ies are as safe as their American counterparts. However, the Teamsters do not explain why th e agency’s approach is flawed, and in light of the degree of deference we give to the agency’s statistical methodology, we cannot conclude that the program will yield in valid findings. See Alaska Airlines, Inc. v. Transportation Security Administration , 588 F. 3d 1116, 1120 (D.C. Cir. 2009).

Sixth

, the Teamsters contend that the agency violated the National Environmental Policy Act , which requires agencies to analyze the environmental impact of “major Federal actions significantly affecting the quality of the human environment

. ” 42 U.S.C. § 4332 (C). In this case, the Ac t required the agency15
to prepare a document called an Environmental Assessment. See 40 C.F.R. § 1501.4( b ). The agency did so.

In Department of Transportation v. Public Citizen , the Supreme Court held that the agency was not responsible under NEPA for evaluating the environmental effects of the President’s decision to allow Mexican trucks on U.S. roads. See 541 U.S. 752, 765

- 70 (2004). The Teamsters accept that holding. But t hey try to argue that the agency still had discretion to restrict the pilot program so as to mitigate the environmental impacts. The Teamsters identified several alternatives the agency should have pursued. But, as the
agency has explained, t he short and dispositive answer to the Teamsters’ argument is that the agency lacks authority to impose the alternatives proposed by the Teamsters and those alternatives would go beyond the scope of the pilot program. See Final Environmental Assessment of the Pilot P rogram on NAFTA Long

- Haul Trucking Provisions, Docket No. FMCSA

- 2011

- 0097

, at 6 , 7

- 10 (Sept. 2011) ( describing agency’s discretion and r ejecting alternatives the agency lacks discretion to implement).

In addition , the Teamsters contend that the agency rel eased its environmental analysis too late. An agency’s analysis must be released “before decisions are made and before actions are taken.” 40 C.F.R. § 1500.1(b). The Teamsters argue that the agency violated this requirement because it published its Envi ronmental Assessment after it had already issued a final notice of intent to proceed with the pilot program. However, the Teamsters have not identified any aspect of the pilot program that the agency could have designed differently to reduce the environme ntal impact s , and the agency completed its Environmental Assessment before authorizing any Mexico

- domiciled trucking companies to operate under the program. Any technical error was therefore16
harmless and not grounds for vacating or remanding

. See Nevada v. Department of Energy

, 457 F.3d 78, 90 (D.C. Cir. 2006)

.

* * *

We deny the petitions for review.

So ordered.