[Senate Hearing 107-983]
[From the U.S. Government Publishing Office]
S. Hrg. 107-983
CROSS BORDER TRUCK AND BUS OPERATIONS
=======================================================================
HEARING
before the
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
JULY 18, 2001
__________
Printed for the use of the Committee on Commerce, Science, and
Transportation
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SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
ERNEST F. HOLLINGS, South Carolina, Chairman
DANIEL K. INOUYE, Hawaii JOHN McCAIN, Arizona
JOHN D. ROCKEFELLER IV, West TED STEVENS, Alaska
Virginia CONRAD BURNS, Montana
JOHN F. KERRY, Massachusetts TRENT LOTT, Mississippi
JOHN B. BREAUX, Louisiana KAY BAILEY HUTCHISON, Texas
BYRON L. DORGAN, North Dakota OLYMPIA J. SNOWE, Maine
RON WYDEN, Oregon SAM BROWNBACK, Kansas
MAX CLELAND, Georgia GORDON SMITH, Oregon
BARBARA BOXER, California PETER G. FITZGERALD, Illinois
JOHN EDWARDS, North Carolina JOHN ENSIGN, Nevada
JEAN CARNAHAN, Missouri GEORGE ALLEN, Virginia
BILL NELSON, Florida
Kevin D. Kayes, Democratic Staff Director
Moses Boyd, Democratic Chief Counsel
Mark Buse, Republican Staff Director
Jeanne Bumpus, Republican General Counsel
C O N T E N T S
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Page
Hearing held on July 18, 2001.................................... 1
Statement of Senator Allen....................................... 7
Statement of Senator Boxer....................................... 6
Prepared statement........................................... 6
Statement of Senator Breaux...................................... 141
Statement of Senator Dorgan...................................... 5
Statement of Senator Ensign...................................... 14
Statement of Senator Fitzgerald.................................. 48
Statement of Senator Hollings.................................... 1
Prepared statement........................................... 2
Statement of Senator Kerry....................................... 9
Prepared statement........................................... 10
Statement of Senator McCain...................................... 3
Statement of Senator Nelson...................................... 50
Statement of Senator Stevens..................................... 45
Witnesses
Acklie, Duane W., Chairman, American Trucking Associations....... 132
Prepared statement........................................... 135
Claybrook, Joan, President, Public Citizen....................... 76
Prepared statement........................................... 78
Emmett, Edward M., President, The National Industrial
Transportation League.......................................... 65
Prepared statement........................................... 66
Hoffa, James P., General President, International Brotherhood of
Teamsters...................................................... 68
Prepared statement........................................... 70
Mead, Hon. Kenneth M., Inspector General, Department of
Transportation................................................. 22
Prepared statement........................................... 25
Mineta, Hon. Norman Y., Secretary, U.S. Department of
Transportation................................................. 14
Prepared statement........................................... 17
Pantuso, Peter J., President and CEO, American Bus Association... 128
Prepared statement........................................... 129
Vaughn, Captain Steve, President, Commercial Vehicle Safety
Alliance....................................................... 55
Prepared statement........................................... 57
Appendix
Donohue, Thomas J., President and CEO, U.S. Chamber of Commerce,
prepared statement............................................. 151
Giermanski, Dr. James R., Professor and Director, International
Business Studies, Belmont Abbey College, prepared statement.... 154
Gillan, Jacqueline S., Vice President, Advocates for Highway and
Auto Safety, prepared statement................................ 157
Johnston, Jim, President, Owner-Operator Independent Drivers
Association, Inc., prepared statement.......................... 162
La Sala, James, International President, Amalgamated Transit
Union, AFL-CIO, prepared statement............................. 165
Pikrallidas, Susan G., Vice President, Public Affairs, AAA,
prepared statement............................................. 153
Wytkind, Edward, Executive Director, Transportation Trades
Department, AFL-CIO, prepared statement........................ 168
CROSS BORDER TRUCK AND BUS OPERATIONS
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WEDNESDAY, JULY 18, 2001
U.S. Senate,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Committee met, pursuant to notice, at 9:35 a.m. in room
SR-253, Russell Senate Office Building, Hon. Ernest F.
Hollings, Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. ERNEST HOLLINGS,
U.S. SENATOR FROM SOUTH CAROLINA
The Chairman. Good morning. The Committee will come to
order. This morning we have a hearing on Mexican trucking and
it would probably be in order to say that this is not a hearing
to repeal NAFTA, as somebody would think my holding the
hearings due to my opposition to NAFTA at the time, this would
be my first chance to repeal it.
The truth of the matter is that I have the highest regard
for this new President, President Fox, and the opportunity, I
think we really do have a chance with Mexico and I am going to
do my dead level best to make NAFTA work. In that light, when I
see the headlines this morning, United States files scrutiny of
trucks, of tougher policy for Mexican carriers. Not tougher at
all in what we require of our own trucks and truck drivers.
I hear that that is the irony of what we are going to use
is use this to block Mexican trucking. On the contrary, we are
not doing anything to discriminate against Mexican trucks. We
have to make sure our trucks and trucking is not discriminated
against. And it is a two-way street. We have got some catch up
ball to practice in the sense that two years ago, almost, well,
a year and a half, we created the Federal Motor Carrier Safety
Administration, and the Clinton Administration appointed Clyde
Hart the acting administrator, who helped us write it, and
since January, this new administration hasn't even appointed
one, so all of us politicians are running around flailing about
safety, safety, safety, and we hadn't even appointed a safety
administrator.
The 27 checkpoints coming in from Mexico to the United
States, and 22 of them have inspection facilities, so we have
got to get some inspection facilities there. We have got to
beef up our own work. I want to commend Senator Murray of
Washington, the chairman of the Appropriations Subcommittee on
Transportation because she has fashioned the right requirements
on the appropriations bill that was marked up yesterday in the
full--day before, last week, I guess it was, the transportation
appropriation measure that will be debated probably tomorrow.
Those provisions in there are objective and necessary and
the ones that would be required of us, and, Mr. Secretary, I
see there is some plans on course that the administration has,
but we are going to have to get into that, because, for
example, we found that the administration was opposing the fact
of making a safety check at the site so that we could see the
facilities and everything else down in Mexico, and the
administration was saying no, all that was unnecessary, was
just to send the paperwork up and we would audit the paperwork.
That is not a safety check. Those are the kind of things
that we want to be fair to our own trucking, and we want to be
fair to Mexican trucking. With that, I put my full statement in
the record and yield to our distinguished ranking member.
[The prepared statement of Senator Hollings follows:]
Prepared Statement of Hon. Ernest Hollings,
U.S. Senator from South Carolina
I would like to welcome all of the witnesses here today, including
Secretary Mineta, to discuss this very important issue.
If the Administration wants to open the border, we need to address
safety concerns and make sure Mexican drivers and companies are playing
by the same set of rules that our companies and drivers are held to.
The language in the Senate Appropriations bill increases the amount
of funding for border safety activities to $103 million--$15 million
more than the Administration's request.
The DOT IG asserts that more inspectors and improved inspection
facilities are needed to ensure that unsafe Mexican trucks and drivers
do not come into the United States and endanger American lives. We
don't have these safeguards today.
We should not ignore all of the safety and worker regulations that
United States companies are required to comply with in the name of free
trade. This debate demonstrates the problems associated with treaties
like NAFTA. Because these trucks will be operating on our highways and
in our towns we are finally looking at the difference between operating
a business in the United States and operating a business in Mexico.
We already have an important trade relationship with Mexico. United
States Customs data show that there were over 4.5 million commercial
motor vehicles crossings at the United States-Mexico border in 1999
into the commercial zones. No one is proposing that we stop that
existing traffic. We will however, require safety improvements before
the DOT can grant authority for Mexican trucks to travel beyond those
commercial zones.
It is one thing to allow Mexican trucks to operate in defined
border zones, but it is an entirely different proposition when they
will be operating in your town or my home town.
This language is not discriminatory, but requires that there be
adequate funding for inspectors and facilities, and to ensure that we
have the needed access to information about Mexican trucks and drivers
and access to Mexican trucking companies to perform safety audits.
These measures will allow us to open the border safely.
Yes, the panel ruling required the United States to lift the
blanket moratorium on Mexican trucks. But the panel ruling very clearly
stated that the ``United States may not be required to treat
applications from Mexican trucking firms in exactly the same manner as
applications from United States or Canadian firms, as long as they are
reviewed on a case-by-case basis''. It seems to me that safety ought to
be a higher priority than increasing our truck traffic across the
border.
If you want to talk about free trade and our obligations under
NAFTA, that is fine. But we have an obligation to the American public,
to our citizens--it is our responsibility to ensure the safe operation
of trucks within U.S. territory, whether ownership is United States,
Canadian or Mexican--we should prioritize our obligations and put
safety at the top of the list.
Questions have been raised about the effectiveness of the Mexican
drug and alcohol testing program for commercial drivers. About 10 years
ago, I pushed through an amendment to make sure that we required drug
and alcohol testing because it would save lives--this same standard
should apply to all truck drivers on United States highways, regardless
of where the truck is registered.
We know that Mexico allows heavier trucks on their highways. We
also know that one fully loaded 18-wheeler does the same amount of
damage to the highway as 9,600 cars. The safety issues and costs of
heavier Mexican trucks on United States roads must be addressed before
we open the border.
STATEMENT OF HON. JOHN McCAIN,
U.S. SENATOR FROM ARIZONA
Senator McCain. I thank you, Mr. Chairman, for holding this
morning's hearing. It is particularly appropriate in light of
an appropriations bill, which included provisions concerning
the cross-border implementation of NAFTA, that may be on the
floor as early as today or certainly very soon. I think it is a
very important hearing. Some will be approaching today's
hearing from a trade perspective, others will be taking a truck
safety perspective. I will be approaching it from both.
I firmly believe that we must abide by all of our
obligations under NAFTA. I believe we must implement the cross
border provisions and can do so while carrying out a strong and
balanced safety enforcement agenda. While Chairman Hollings and
I may hold differing views on NAFTA as it relates to trade, we
have worked closely over the years in an effort to promote
safety, which has been one of this Committee's top priorities.
Senator Hollings and I worked on a bipartisan basis to help
craft the safety provisions included in TEA-21. We also joined
together in sponsoring legislation to create the Federal Motor
Carrier Safety Administration, working to ensure the critical
issue of motor carrier safety was not overlooked within the
Department. Ken Mead and his staff were critical to this
legislative initiative, designed to improve truck and bus
safety and to make our highways safer. And the continued work
by the IG in monitoring work with the new safety agency remains
key to our Committee's oversight efforts.
In my judgment, we must continue to address motor carrier
safety across the board and on a nondiscriminatory basis. I
will remain a strong advocate of highway safety, and will do so
as an equally enthusiastic advocate of free trade.
Let me say from the outset I strongly support the
President's plan to implement the cross border provisions under
NAFTA. Since the Clinton Administration's last-minute
announcement to prevent cross border operations in the four
border states in December 1995, I have consistently and
repeatedly prodded the Administration to let us know what was
needed from the Congress, what resources were necessary in
order for us to comply with our legal obligations under the
trade agreement--I emphasize our legal obligations--to address
any legitimate safety issues and safety concerns, to address
the Administration's publicly stated rationale for the delay.
Of course, these efforts landed largely on deaf ears because
the former Administration simply did not intend to open the
border. Its goal was simply to appease special interests.
Period.
On February 6th, the former Administration's blanket
refusal to implement the cross border provisions was determined
by a dispute panel to be in violation of the North American
Free Trade Agreement. In response to that finding, President
Bush announced the United States would open the border and do
so by the end of year.
I applaud the President for understanding the necessity of
abiding by our trade agreement and also for proposing
additional resources to ensure safety resources to carry it out
at the same time. If we do not comply with NAFTA, the Mexican
government holds full authority to impose harsh sanctions on
our exports into their country.
The Mexican government could impose sanctions immediately
but has demonstrated the willingness to allow the United States
additional time in order to finalize rules that will ensure
compliance with our federal laws and regulations and to ensure
safety of Mexican trucks that will be operating in the U.S.
Unfortunately, the other body has taken action as part of
the fiscal year 2002 DOT Appropriations bill to prevent the
President from abiding by NAFTA. It adopted an amendment to
prohibit the federal approval of any Mexican carriers to
operate in this country. This is wrong. It is in direct
violation of NAFTA. It is discriminatory. And, it must not
prevail.
Last week, the Senate Appropriations Committee approved its
version of the DOT Appropriations bill, which could be brought
before the Senate any time. This appropriations bill provides
significant funding to enable the Department of Transportation
to hire more inspectors and build more inspection facilities at
the southern border, and I commend the Committee for this
action. I have concerns, however, over a number of requirements
included in the bill that if enacted without modifications,
could effectively prevent the opening of the border
indefinitely.
I strongly support balanced transportation safety
initiatives, and stand ready to work with my colleagues to
strengthen our safety enforcement regime uniformly. But I
cannot support provisions that place unnecessary requirements
on Mexican operators that are not required of Canadian or
American operators. I am also concerned that while some of the
provisions are well-intended, they could be improved upon to
ensure the most efficient use of resources. Above all, I cannot
support provisions designed to simply prevent the opening of
the border and maintain delay under the guise of safety.
Given the DOT Appropriations bill could be on the floor as
soon as today, I will be very eager to hear Secretary Mineta's
views regarding the pending bill's provision. I urge this
Committee to consider the Secretary's views carefully as he is
one of the most respected members of the Cabinet and a former
colleague of ours. I am also very interested in hearing the
views of the DOT Inspector General and the rest of the
witnesses.
I pledge to do all I can to ensure the scare tactics of the
special interests do not prevail. I will fight to ensure that
the border is opened by the end of this year and is done so in
a safe and balanced manner. I thank you, Mr. Chairman.
The Chairman. Very good. Senator Dorgan.
STATEMENT OF HON. BYRON DORGAN,
U.S. SENATOR FROM NORTH DAKOTA
Senator Dorgan. Mr. Chairman, thank you very much. It is
not a secret that I think NAFTA has been a failure both on the
Mexican side and Canadian side for U.S. interests. This
discussion is broader than just that, and let me just describe
my concerns. We are trying to plug together two economies that
in many ways are very difficult to connect. The Inspector
General report of just May 8th of this year has the following
information.
Currently, the only permanent inspection facilities at the
United States Mexican border are in Calexico and Otay Mesa,
California. Two of them. At 20 crossings, of the other 25
border crossings, FMCSA inspectors did not have dedicated
telephone lines to access databases and validate commercial
driver's licenses. At 19 crossings, inspectors had no space to
inspect more than one or two trucks at a time. At 14 crossings
inspectors had one or two spaces to park vehicles placed out of
service.
The Inspector General's report is 2 months old. Go to the
San Francisco Chronicle, a reporter did a fascinating report,
riding with a Mexican trucker. Rode 3 days, the trucker slept 7
hours, 3 days, 7 hours. There are no minimum standards of
service. There are no logbooks, there is a requirement but they
do not keep logbooks, no drug testing. The fact is there isn't
anything near the standards we impose on American truckers with
respect to the Mexican truck industry and it seems to me we
have every right in this country to want to make sure we have
continued safety on America's highways.
Mexican truckers are paid an average of about $7 a day. In
most circumstances, they are driving trucks that when inspected
at our borders show very significant serious safety violations.
I won't go over that, but it is in the IG's report.
Now, Mr. Chairman, the ultimate perversion of our trade
policies it seems to me will be a future in which unsafe
Mexican trucks haul unfairly subsidized Canadian wheat into
U.S. cities. And you will pardon me for thinking that is just
nuts. The fact is it is not radical to demand policies that
require both fair trade and safe highways, and that is what
this issue is about. There isn't anyone who in my judgment can
tell us that there is a ghost of a chance in any near term to
have a system with respect to the Mexican truck industry that
anywhere nearly equates to what we do in this country to assure
safety on America's highways, safety inspections, logbooks,
minimum hours of service, drug testing and on and on down the
line.
That does not now exist with the Mexican trucking industry,
and we ought not point to some trade agreement which
incidentally I did not support in the first instance, but we
ought not point to a trade agreement to suggest that requires
us to allow that trucking industry to move those vehicles into
this country.
So, Mr. Chairman, this will be a fascinating hearing. I
think it is very important. I do not know whether I will offer
an amendment to adopt the House standards on the Senate floor,
but I am considering that, and my feeling is at this point we
simply ought to say no, you cannot do this until we have
standards that assure safety on United States highways with
respect to Mexican trucks.
The Chairman. Very good. Senator Boxer.
STATEMENT OF HON. BARBARA BOXER,
U.S. SENATOR FROM CALIFORNIA
Senator Boxer. Thank you very much, Mr. Chairman, for
holding this hearing. I asked for it and you complied and I
greatly appreciate it. It is a very important issue to my home
state as Mr. Mineta knows. My state has about 23 percent of all
the NAFTA truck traffic. If our nation's highways are
completely open to these trucks, I am concerned that there will
be many unsafe trucks or I should say I know there will be many
unsafe trucks driving on our highways and our roads.
In 1999, there were 4.5 million commercial motor vehicles
crossing at the border. It is estimated that most of those
crossings were made by 80,000 trucks. The opening of the border
is expected to increase the number of NAFTA trucks. Currently,
the DOT has 190 applications from companies wanting full
access. Unless safety standards are improved and enforced, the
result will be that Californians, whether driving to work or
whether driving their kids to soccer games, Mr. Chairman, will
be sharing the road with drivers who are sleep deprived and
whose trucks are not safe.
And I respect my colleagues who say that my opposition to
this is a special interest, and I plead guilty. I have a
special interest in ensuring that the people of my state who I
represent are safe. That is my concern and that is my interest.
I would ask unanimous consent that my statement be entered into
the record.
[The prepared statement of Senator Boxer follows:]
Prepared Statement of Hon. Barbara Boxer,
U.S. Senator from California
Good morning. Mr. Chairman, I appreciate you holding a hearing on
this important topic today.
This is a key issue for the state of California. My state has about
23 percent of all of the North American Free Trade Agreement (NAFTA)
truck traffic. If our nation's highways are completely open to these
trucks, I am concerned that there will be many unsafe trucks driving on
our highways and roads.
In 1999, there were 4.5 million commercial motor vehicles crossing
at the border. It is estimated that most of these crossings were made
by 80,000 trucks.
The opening of the borders is expected to increase the number of
NAFTA trucks. Currently, the Department of Transportation has 190
applications from companies wanting full access. Unless safety
standards are improved and enforced, the result will be that
Californians-whether driving to work or to their children's soccer
game-will be sharing the road with drivers who are sleep deprived and
whose trucks are not safe.
There are several issues that I hope will be addressed today.
First, I am concerned about the safety standards of NAFTA drivers.
If we compare U.S. standards to those in Mexico, we can see that
Mexican workers are not protected. For example, U.S. drivers can drive
up to ten hours consecutively and work up to 15 consecutive hours, with
a mandatory eight hours of rest. Overall, U.S. truck drivers cannot
drive more than 70 hours during each eight day period. Mexican drivers
do not have such protections. They are forced into working long hours-
and tired drivers are not safe on our highways.
For the protection of all drivers on the highways, U.S. drivers
have random drug tests, medical condition disqualifications, and must
be 21 to receive a commercial drivers' license. This is not true for
cross-border truck drivers.
Second, I am concerned about the condition of the trucks. Cross-
border trucks are not required to have as comprehensive standards as
U.S. trucks in areas such as anti-lock brakes, underride guards, night
visibility, and front brakes.
Cross-border trucks have a higher weight limit of 135,000 pounds
versus 80,000 in the U.S. Trucks that weigh more than the limit will
cause highways and roads to deteriorate more quickly. Also, heavier
trucks result in accidents because they cannot brake as quickly. For
example, a 100,000 pound truck travels 25 percent further after the
driver steps on the brakes than will an 80,000 pound truck.
Third, I am concerned about lax standards in hazardous materials.
If there is an accident and certain chemicals are not labeled, this can
be a life-threatening situation for police and firefighters who arrive
at the scene of the accident.
Fourth, I am concerned about enforcement. Currently, one percent of
all trucks crossing the border are inspected. The Inspector Generator
has stated that more inspectors-at least 139-are crucial as a deterrent
to unsafe trucks.
Mr. Chairman, I look forward to discussing these issues with the
witnesses, and I thank you again for holding this hearing.
Senator Boxer. In about 1 minute I'd like to share with the
Committee a chart that summarizes my concerns. It is kind of
small, but I am going to read it. In the United States, the
rules on hours of service, 10 hours of consecutive driving, up
to 15 hours of consecutive duty, 8 hours consecutive rest,
maximum of 70 hours of driving in the 8-day period.
In Mexico, hours of service laws, zero. There are none.
Random drug tests. In America, yes for all drivers. In Mexico,
none. Medical condition disqualification, in the United States,
yes, you can disqualify a driver because of a medical
condition. In Mexico, no. Driver's age for interstate driving,
21 in America. 18 in Mexico. Logbooks in Mexico, not required.
Are they required in our country? Yes. Maximum weight, 80,000
pounds in the United States, 135,000 pounds in Mexico. Roadside
inspections, yes in the United States, no in Mexico. Vehicle
safety standards, we have comprehensive standards for
components such as anti-lock brakes, night visibility of
vehicles and front brakes. In Mexico, less rigorous, for
example, front brakes are not required. Hazardous material
rules. We have district standards, training, licensure and
inspection regime. In Mexico, it is lax, fewer identified
chemicals and substances and fewer licensure requirements.
[The information referred to follows:]
Senator Boxer. So, Mr. Chairman, I don't think that you
need a degree in truck safety to understand the differences
here. As Senator Dorgan has said, you are talking about two
very, very different regimes here, and the important thing is
that we make sure that the trucks on our highways are safe and
that the drivers in those trucks are rested.
Anything less than that is putting our people at risk.
Period. End of quote. I do not see how we could rationalize it
any other way. I want to see this trade go forward, but I want
to see it go forward in a manner which protects the people who
are on the highways. And that is, that is the essence of my
statement. And I again thank you so much for this hearing. I
think it is timely and very important.
The Chairman. Very good. Senator Allen.
STATEMENT OF HON. GEORGE ALLEN,
U.S. SENATOR FROM VIRGINIA
Senator Allen. Thank you, Mr. Chairman. I am coming here,
Mr. Chairman, to get more information because I know there may
be a vote, however inappropriate it may to be have policy
amendments on appropriations bills, this is probably the place
these issues ought to be discussed--in the Committee that deals
with transportation. I know that Senator McCain argues very
strongly for proper discipline and protocol in legislating
matters and process.
As far as NAFTA, I do not think that this is so much an
argument over whether NAFTA is good or bad. I generally think
on balance NAFTA has been very good for our country, and
respectfully disagree with Senator Dorgan on one aspect. It
doesn't matter what they are hauling, whether it is wheat or
avocados. The question is more like what I believe Senator
Boxer said, and the question is really safety, the issue of
safety and that is it and the fact that the United States has
entered into the NAFTA agreement means that we have to comply
with certain agreements.
Well, I think we should keep our word, and again, I do
think on balance, NAFTA is been very good for both countries.
But on the issue of safety, the United States retains the right
and jurisdiction to monitor safety and have safety standards on
our roads. And we do want to have free trade, but the safety of
our roads cannot be compromised. We have a right to set
standards. And, if Mexico wants to have speed limits that are
higher than ours, it may. I wish our speed limits were higher
on our interstates personally, but regardless, that is set by
the states in our country, and if Mexico wants to set higher
ones, that is fine, on their roads. On the other hand, they
have to abide by our laws when they are on our roads and that
is simply a matter of our sovereignty and jurisdiction.
Regarding the Mexican license procedures, they can have
whatever they choose, but it seems to me that we ought to be
assured that those drivers from Mexico or residents of Mexico
who are driving on our roads do meet whatever our requirements
are for our safety. Whether they have front and back brakes and
so forth on trucks in Mexico is up to the people of Mexico,
however, if a Mexican truck is going to drive on the roads of
California, Virginia, Texas, or New Hampshire, they ought to
have the same safety equipment that we require on our roads.
And the fact that Mexico doesn't have hours of service
rule, I almost wish you had your chart there, but regardless,
the fact is they do not have many hours of driving restrictions
or they have no requirements, and that is their business. The
only thing that would matter to us on that issue would not be
to make Mexico have the same rules as we do on their roads, but
to have some assurance that when a driver is coming into the
United States, find out how long have they been behind the
wheel prior to coming to our border in those previous 24 hours.
That is all that matters to us.
So there are some parts of that that are probative and
useful. There are other parts that I don't think are. But that
is the only way that I think it matters to us is what have they
been doing for the 24 hours previously. I think that our open
policy is one that is fully consistent and dependent on the
safety issues involving both trucks and the men and women who
are behind the wheel and driving them.
I personally do not have a great deal of confidence in the
ability at this point of the Federal Government or the states
to implement a plan to ensure the safety of our roads and
further advance economic benefits of free trade for both the
people of Mexico and the people of the United States. And I
think it is very important, Secretary Mineta, Mr. Mead, to
address these safety concerns and these inadequacies with our
current system.
No one should be blissfully saying everything is fine and
we can handle it, and I think that the administration's efforts
and specifically it is not just efforts, it is actual
allocation of money, appropriations, to hopefully address these
inadequacies to make sure there are those safety inspections of
those trucks as well as our trucks, United States trucks, as
well as making sure that the drivers are properly licensed and
capable of handling these rigs on our roads is very important
and I think that is going to be the most essential thing to me
is convincing not just this Senator from Virginia, but other
Senators that these appropriations and the increased staffing
and the facilities that would be created for inspections
generally at the border will adequately protect the safety of
motorists on the roads of the United States. Thank you, Mr.
Chairman.
The Chairman. Senator Kerry.
STATEMENT OF HON. JOHN KERRY,
U.S. SENATOR FROM MASSACHUSETTS
Senator Kerry. Mr. Chairman, thank you very much for having
this hearing. I'd like to ask unanimous consent the full text
of my statement be put in the record.
The Chairman. Without objection.
Senator Kerry. I sent a letter together with nine
colleagues to the administration recently reflecting our
concern, the concern that a number of us who have been pro-
trade about the question of, the Senator I just heard him
talking about safety issues, and I am deeply concerned about
the gap between what happens in the United States, what
happens, we are all familiar with the issue here of the safety
inspection itself, concerns about increased pollution on our
roads, as there is no compliance in certain cases with
inspections there, safety. The question of drivers who are
fatigued, who come into the United States by a whole different
standard in this country.
Normally, in the trade relationship, Mr. Chairman, as you
know better than anybody, we are talking about goods going from
one country to another. Last year in Massachusetts, we exported
over $1.1 billion worth of goods to Mexico. That was a 60
percent increase over the prior year, but in this particular
case, you are not just talking about the goods crossing the
border, you are talking about a vehicle and an individual in
the sense of job coming across that continues from what took
place in another country here and our country.
It is really a variance on the norm that has guided our
thinking about these relationships, so I think it is
appropriate for us to be thinking considerably differently
about what is proper for us, even in the context of NAFTA and
the agreements and the finding of the board recently about what
our requirements are. There were some very clear imperatives
that ought to guide us in this.
I might add that I wrote the President last month to
express the dissatisfaction a number of us had. I was joined by
nine colleagues, all of whom have very strong free trade
credentials. We have yet to have any kind of substantive
response to those concerns that we have expressed, so I am glad
you are having this hearing today as an opportunity to explore
some of these concerns.
[The prepared statement of Senator Kerry follows:]
Prepared Statement of Hon. John Kerry,
U.S. Senator from Massachusetts
Mr. Chairman, thank you for holding this timely hearing.
I'd like to make clear at the outset that I take very seriously the
importance of honoring our international trade agreements. If we are to
expect other nations to abide by international agreements, we must play
by the rules as well. So I fully support the President's stated desire
to open the border to Mexican-domiciled trucks so that we are in
compliance with the February ruling of the NAFTA arbitration panel.
Mexico is a valuable trading partner for my state and a strong ally
for our nation. Last year, Massachusetts exported $1.1 billion million
worth of goods to Mexico--a 60 percent increase over the previous year.
Since NAFTA took effect in 1994, our state's exports to Mexico have
more than doubled. Mexico is now Massachusetts' seventh-largest trading
partner. Clearly, I do not want to see damage done to our relationship
with this important trade partner.
That being said, I believe that when it comes to allowing Mexican
trucks on United States highways, highway safety and our international
obligations need not be mutually exclusive.
I think it's pretty clear that the Administration's rhetoric
regarding highway safety did not match the rules that the Federal Motor
Carrier Safety Administration promulgated this spring. Last month, I
wrote to the President to express my dissatisfaction with these rules
and I was joined by nine of my colleagues, all of whom have very strong
free trade credentials. Unfortunately, we have yet to receive a
substantive response.
According to the rules proposed by the Administration, Mexican-
domiciled trucks will not be subject to thorough safety reviews until
at least 18 months after receiving full access to American roads, and
may not ever be subject to on-site safety reviews. I believe that this
delay could seriously jeopardize highway safety, road conditions and
environmental quality. The Mexican government does not have a domestic
truck safety system that is equivalent to United States law--a fact
acknowledged by the NAFTA panel. Mexico does not have hours-of-service
laws and has only recently proposed the use of logbooks to record
driving history. These facts raise the possibility that cross-border
truckers could easily enter United States highways in fatigued
condition. The Department of Transportation Inspector General has
argued repeatedly that ``fatigue is a major factor in commercial
vehicle crashes.''
The lack of sufficient inspection resources at the border and the
proposed 18-month delay between the approval of general cross-border
trucking applications and actual safety enforcement means that trucks
may easily enter the United States over federal weight and size limits,
a condition both inherently more dangerous to travelers and more
stressful to our roadways. The sheer size of these vehicles ensures
that when trucks are involved in highway accidents, the damage is
disproportionately greater than in non-truck crashes. Although large
trucks were involved in only 4 percent of injury-only and property-only
motor vehicle crashes in 1998, they were involved 9 percent of fatal
crashes. Greater truck size or weight could easily lead to more serious
accidents, resulting in more truck-related fatalities on our highways.
I am pleased that Senator Murray--working with my good friend
Senator Hutchison who is on this committee--has crafted language in the
Transportation Appropriations bill that addresses many of these safety
concerns.
I would also like to see the bill address some of the environmental
concerns raised. I'm afraid that without the ability to safeguard
emissions standards on trucks entering the US, we may find a further
dirtying of the air in cities not only around the border, but up to
Dallas, Little Rock and other cities on major interstates that connect
to border crossings. I may offer an amendment to address this problem
by requiring a joint DOT and EPA study of the impact on US air quality
of full implementation of NAFTA's cross-border trucking provisions as a
precondition for a full border opening.
Nevertheless, I know that Senator Murray and Senator Hutchison
worked many hours to develop the language in the bill, and I am
grateful, Senator Hutchison, for the leadership that you both have
demonstrated and I thank Chairman Hollings for his leadership on this
issue as well.
The Chairman. Just a second now, Mr. Secretary. I am going
to insert in the record what you will find in the Committee
report on the transportation appropriation bill on the Senate
side entitled on the one side the problem and the solution on
the other. The Murray truck provisions that are included in
that appropriations bill. You can see it outlined actually, I
think, the administration had asked for 80 million and we
increased it some 15 million dollars to see if we couldn't beef
up these inspection points, otherwise there was that question,
too, of the blanket refusal to permit Mexican trucks into the
United States and it came before the NAFTA arbiter panel in the
matter of cross border trucks and I will include that finding
also in the record, but I quote just a couple of sentences.
It is not disagreeing, that is, the finding is not
disagreeing that the safety of trucking services is a
legitimate regulatory objective, nor is the panel imposing a
limitation on the application of safety standards properly
established, and apply pursuant to the applicable obligations
of the parties under NAFTA.
United States authorities are responsible for the safe
operation of trucks within United States territory, whether
ownership is United States, Canadian or Mexican, so we are not
in violation of NAFTA, and we welcome you to the Committee and
are delighted to hear from you at this time.
[The information referred to follows:]
The Problem
Absence of Border Inspectors
At present, federal and state border inspectors are on duty 24
hours-a-day at only 2 of 27 border crossings. Mexican trucks crossing
the border during off hours are not subject to inspection.
The Solution as addressed in the Murray Truck Safety Provision
The Murray provision prohibits the full opening of the border until
the DOT Inspector General certifies that all border crossings
accommodating Mexican trucks have inspector coverage when the border is
open.
[Note: ``Mexican trucks'' here, and hereafter in this document,
refer to Mexico-domiciled commercial motor vehicles operating beyond
the commercial zone]
The Problem
More Fully Trained Inspectors Needed
At present, the level of inspector resources is not adequate to
handle even the current level of limited traffic from Mexican trucks--
much less the influx of trucks expected once the border is fully
opened. It takes anywhere from 6 months to a year to actually hire and
fully train a new safety inspector.
The Solution as addressed in the Murray Truck Safety Provision
The Appropriations bill fully funds the Administration's request
for 80 additional border inspectors. The Murray provision prohibits the
full opening of the border until the DOT Inspector General certifies
that all of these inspectors are fully trained as safety specialists
capable of conducting compliance review and that the Administration has
not accomplished this goal by transferring experienced inspectors
elsewhere in the country to the border so as to undermine the level of
inspection coverage and safety elsewhere in the nation.
The Problem
Inspection Plans Are Inadequate
The DOT plans to issue conditional operating certificates to
Mexican trucking firms to enter the United States based largely on the
answers from a questionnaire. The DOT will perform a full safety audit
of these firms within 18 months of the operating certificate being
granted. The firm can operate freely in the United States throughout
this 18-month period.
The Solution as addressed in the Murray Truck Safety Provision
The Murray provision requires the DOT to perform a full safety
audit of each Mexican trucking firm before any conditional operating
certificate is granted and then perform a full follow-up safety audit
again within 18 months before a permanent operating certificate can be
granted.
The Problem
Inspection Venue is Inadequate
The DOT is planning to perform its safety audits of Mexican
trucking firms at the border rather than at each firm's facilities. For
both United States and Canadian trucking firms, the DOT conducts
compliance reviews at each firm's facilities.
The Solution as addressed in the Murray Truck Safety Provision
The Murray provision requires that all safety audits of Mexican
trucking firms take place on-site at each firm's facilities.
The Problem
Mexican Trucks Have No Record Of Compliance with Hours-Of-Service
Only in the last few months has Mexico established hours-of-service
rules and the vast majority of Mexican truckers are exempt. As such,
Mexican truckers will have no experience with compliance with such
rules and United States inspectors will not know how long a trucker has
already been driving when they arrive at the border.
The Solution as addressed in the Murray Truck Safety Provision
The Murray provision prohibits the full opening of the border until
the DOT Inspector General certifies that the Federal Motor Carrier
Safety Administration has implemented a policy to ensure compliance on
the part of Mexican truckers with pertinent hours-of-service rules. The
DOT will be required to give a distinctive DOT number to all Mexican
trucks operating beyond the commercial zone to assist state inspectors
in enforcing hours-of-service regulations.
The Problem
Validity of Driver's Licenses, Vehicle Registration and Proof of
Insurance Are Not Verifiable And Are Not Routinely Checked
Most border crossing inspection stations do not even have telephone
lines much less computer linkages to confirm that licenses carried by
Mexican truckers are valid. Many state inspectors do not routinely
check the status and validity of the licenses, registration or
insurance of Mexican drivers/vehicles that are inspected at the
roadside. This is true even where the telephone or computer links do
exist. The Mexican computer databases regarding licenses are terribly
inadequate.
The Solution as addressed in the Murray Truck Safety Provision
The Murray provision prohibits the full opening of the border until
the DOT Inspector General certifies that the information infrastructure
of the Mexican authorities is sufficiently accurate and accessible to
verify licenses and that adequate telephonic and computer links exist
at all border crossings and in all mobile enforcement units operating
adjacent to the border to ensure the opportunity to verify licenses.
The DOT will require all federal and state inspectors to electronically
verify the status and validity of the license of every Mexican trucker
crossing the border.
The Problem
Federally-Funded Inspectors Not Enforcing Federal Regulations
Even though most state truck inspectors are compensated largely
with federal tax dollars, many inspectors at the border do not enforce
federal registration regulations when they differ from state
requirements. For example, only California inspectors require Mexican
trucks to show proof of operating authority. Moreover, state
inspectors, when they find a deficiency that is a violation of federal
but not state law, do not always refer the case to a federal inspector
for enforcement.
The Solution as addressed in the Murray Truck Safety Provision
The Murray provision prohibits the full opening of the border until
the DOT requires that all state inspectors funded in part or in whole
with federal funds will check for violations of federal regulations.
All violations detected by state inspectors of federal law will be
either enforced by state inspectors or forwarded to federal authorities
for enforcement action.
The Problem
Inadequate Facilities for Truck Inspections
At seventy percent of border crossings, motor carrier inspectors
currently have space to only inspect 1 or 2 trucks at a time. At more
than half of the border crossings, inspectors currently have only 1 or
2 spaces to park vehicles placed out of service, undermining the
ability of the inspectors to order unsafe trucks off the road.
The Solution as addressed in the Murray Truck Safety Provision
The Murray provision prohibits the full opening of the border until
the DOT Inspector General has certified that there is adequate capacity
to conduct a sufficient number of meaningful truck inspections to
maintain safety.
The Problem
Insurance Should be Valid, Easily Verified, and carry the same minimum
liability requirements applied to US and Canadian motor
carriers
Public liability insurance is a basic requirement for motor
carriers operating in the US. Different minimum levels exist for
passenger, household goods, hazmat and cargo operations. In addition,
US insurers have a working relationship with the DOT and notify them in
situations where a motor carrier's insurance lapses, at which time the
DOT will revoke operating authority.
The Solution as addressed in the Murray Truck Safety Provision
The Murray provision would require that a motor carrier provide
proof of valid insurance with an insurance company licensed and based
in the United States. These same requirements currently apply to
Canadian motor carriers operating in the United States.
The Problem
Inadequate Capacity To Check Compliance With United States Weight
Limitations
Mexican trucks are currently permitted to operate in Mexico at axle
and gross weights which are far higher than United States standards.
Overweight trucks pose a greater safety risk to the driving public but
there is little if any infrastructure to weigh trucks at the border.
The Solution as addressed in the Murray Truck Safety Provision
The Murray provision prohibits the full opening of the border until
the DOT has equipped all Mexican border crossings with Weigh-In-Motion
(WIM) systems as well as fixed scales suitable for enforcement action.
The DOT will be required to verify the weight of all commercial
vehicles entering the United States
The Problem
Inadequate Data On Safety Record Of Mexican Trucking Firms and Drivers
Unlike the United States, Mexico does not currently have a
comprehensive mechanism to collect data on the safety record of Mexican
trucking firms and drivers.
The Solution as addressed in the Murray Truck Safety Provision
The Murray provision prohibits the full opening of the border until
the DOT Inspector General certifies that there is an accessible
database containing sufficiently comprehensive data to allow for safety
performance monitoring of all Mexican firms applying for operating
certificates and for all Mexican drivers that may enter the United
States. Also, the DOT IG must certify that measures are in place
similar to those in the United States to ensure that Mexican drivers
who lose their licenses cannot obtain another one through surreptitious
means.
The Problem
Critical Safety Rules Not In Place
DOT has rushed to implement the rules to allow Mexican trucks to
enter the United States. At the same time, several safety-related
rulemakings which pertain to Mexican carriers and are required by law,
have not been finalized.
The Solution as addressed in the Murray Truck Safety Provision
The Murray provision prohibits the full opening of the border until
the DOT publishes in final form the following overdue regulations:
rules establishing minimum requirements for motor carriers,
including foreign motor carriers, to ensure they are
knowledgeable about federal safety standards, including the
administration of a proficiency exam;
rules implementing measures to improve training and provide
for the certification of motor carrier safety auditors;
rules requiring the development of staffing standards to
determine the appropriate number of federal and state motor
carrier inspectors for the Mexican border;
rules prohibiting foreign motor carriers from leasing their
vehicles to another carrier to transport products to the United
States while the firm is subjected to a suspension,
restriction, or limitation on its right to operate in the
United States; and
rules disqualifying permanently from operating in the United
States any foreign motor carrier that is found to have operated
illegally in the United States.
The Chairman. John, excuse me. I apologize.
STATEMENT OF HON. JOHN ENSIGN,
U.S. SENATOR FROM NEVADA
Senator Ensign. Thank you, Mr. Chairman. I actually have to
apologize. I have a Banking Committee markup and I have to be
going to that, but I am pleased that you are having this
hearing today because I think that this is a very important
issue. As somebody living in the Southwest who has the CanaMex
Highway coming right through our state, I think it is very
important that we have absolute safety requirements met for the
public, address environmental concerns, and all the various
issues that the other Senators have been talking about this
morning. I think having a hearing and discussing these issues
this morning, making sure that we are able to enforce United
States laws on United States highways, and making sure that the
trucks, whether they are from Canada or Mexico or the United
States, are meeting all of those safety and environmental
concerns. I think it is very important so I applaud you for
having this hearing. I apologize. I will be coming in and out.
Hopefully the Banking Committee markup won't take too long.
Thank you, Mr. Chairman.
The Chairman. I understand. Secretary Mineta.
STATEMENT OF HON. NORMAN Y. MINETA, SECRETARY,
U.S. DEPARTMENT OF TRANSPORTATION
Secretary Mineta. Mr. Chairman and Senators of the
Committee, it is a great pleasure for me to have this
opportunity to appear before you and to have this chance to
explain our plans for the safe admission of commercial trucks
and buses into the United States from Mexico.
Approved by Congress in 1993, the North American Free Trade
Agreement was based on a single premise, that all of the
countries in North America would be integrated into one free
trade area. However, NAFTA's requirements that all countries in
North America open their borders to commercial vehicle traffic
still has not been implemented 8 years after ratification.
Last February, a NAFTA arbitration panel determined that
the United States had violated its legal obligations to Mexico.
It authorized Mexico to impose significant economic sanctions.
President Bush has assured President Fox that the United States
would move in a timely manner to meet our NAFTA obligations.
I acknowledge the significant concerns that everyone has
expressed, including the public, about the NAFTA issues. Recent
votes by the United States House of Representatives and the
United States Senate Appropriations Committee on this matter
have sent a very clear message. Congress will insist that the
United States have a rigorous, effective safety program in
place prior to implementing the truck and bus access provisions
of the NAFTA.
Now Mr. Chairman, as all of you know, I have been the
Secretary of Transportation since the 25th of January of this
year. You have my personal assurance that I also share the same
commitment that all of you have expressed. The Bush
Administration wants to work with Congress to reach consensus
on a plan to meet our NAFTA obligations without sacrificing
safety. I am disappointed, therefore, that the House voted to
bar the use of any departmental funds in the next fiscal year
to process applications for Mexican carriers that seek to
operate outside United States commercial zones.
As the Administration has formally stated, on at least one
previous occasion, President Bush's senior advisors would
recommend that he veto any bill containing provisions that
foreclose the possibility of meeting our NAFTA obligations.
While I am grateful to the Senate Appropriations Committee for
providing funding for the inspectors and improvements described
later in this testimony, I have serious concerns that the
numerous conditions that the Committee at this point has
placed, that the Committee has placed on actions to open the
border. I believe that four core principles must guide our
efforts to implement the NAFTA truck and bus access provisions.
First, safety is the Department of Transportation's highest
priority, and we will not sacrifice safety to implement NAFTA's
trucking and bus provisions. And with the support of Congress,
Mexico's government, federal and state enforcement officials,
and the industry, I think we can implement an effective safety
enforcement program and meet our NAFTA obligations by January
1, 2002. The President's budget lays out requirements to do
that. However, if our ongoing work should prove that we need
more time, then we will take it. If we will need more
resources, we will insist upon them. But in the end, we will do
the job right.
Second, every Mexican firm, vehicle, and driver that seeks
to operate in the United States at the border or beyond must
meet the identical safety and operating standards that apply to
United States and Canadian carriers. Nothing less than this is
acceptable.
Third, the United States must fully comply with our NAFTA
obligations. Not everyone on this Committee supported approval
of NAFTA in 1993. As a Member of Congress, I did. But only
after careful consideration of the possible impact on a wide
range of issues, including safety. I concluded then and I
continue to believe that the free and open trade fostered by
NAFTA is the best, is in the best interests of the people of
this nation and of our economic future. The Mexican government
has assured the United States that it will allow United States
trucks access to Mexico, and as Secretary of Transportation,
now my task is to work with the Congress and decide how to meet
our existing and very real international legal obligations.
Fourth, Mr. Chairman, Mexican carriers lawfully operating
in the United States must be guaranteed the same high standards
of fairness and protection that we offer United States and
Canadian carriers. There is a technical term in NAFTA that
gives Canadian, Mexican and United States carriers operating in
one of the other countries so-called national treatment, and
that means that we must provide a level playing field for
competition. Because Mexico's safety enforcement regime differs
in significant ways from that of Canada and the United States,
the arbitration panel granted us reasonable flexibility in
choosing the best way to ensure a Mexican carrier's compliance
with our safety regulations.
There can be civil discussions about what constitutes
reasonable flexibility. I must say, however, that I am
concerned about the tenor of some of the debate. Some seem to
argue that a Mexican carrier, precisely because it is from
Mexico, cannot and will not comply with our laws. In
implementing NAFTA, President Bush and I will insist on full
compliance with our safety laws, but we will not accept
enforcement requirements that create a de facto system that
unfairly discriminates against Mexican drivers and carriers.
As a result of decisions taken by the previous
administration, the administration or the Department of
Transportation did not on January 20th of this year have a
program that would allow us to open our southern border to
commercial vehicle traffic, nor did we have an adequate plan
for developing one. Today, we are well on the way to having the
effective safety enforcement program that will allow us to move
forward with NAFTA by the year's end.
In May, the Department of Transportation proposed several
rules relating to the carrier application process that we need
to implement for border opening. The public comment period on
the draft rules closed 2 weeks ago, and we anticipate issuing
final rules sometime in October. These rules represent only one
part of the department's comprehensive safety implementation
plan. The actual safety considerations in implementing our
NAFTA obligations are in fact very different from the picture
that has been painted by some opponents.
Our plan places heightened requirements on Mexican carriers
currently operating in the commercial zone along the border,
more scrutiny than currently exercised, and it means a new
stricter system outside the commercial zone. My written
testimony provides details of our implementation plan, and the
resources that the department needs to carry it out.
Of course, none of us can guarantee that a Mexican truck,
Canadian truck or for that matter a United States truck will
never have a catastrophic accident somewhere in the United
States. However, I can guarantee that the United States
Department of Transportation directs and will continue to
direct its full efforts on a daily basis to preventing that
accident. Our NAFTA safety implementation plan will bring
greater resources and a substantially enhanced focus on
enforcement.
Opening the border to Mexican trucks and buses by the
beginning of next year will require considerable effort, but I
am thoroughly convinced that we can fulfill our NAFTA
obligations while putting in place an effective safety
enforcement regimen. I will close, Mr. Chairman, by reiterating
my personal commitment and that of the Bush Administration to
work with the Congress to find an acceptable plan for NAFTA
implementation, a plan that allows us to meet the four
principles of safety and equity that I outlined today. Mr.
Chairman, that is the end of my statement. I ask unanimous
consent that my full statement be made a part of the record.
[The prepared statement of Secretary Mineta follows:]
Prepared Statement of Hon. Norman Y. Mineta, Secretary,
U.S. Department of Transportation
Mr. Chairman, Members of the Committee, it is a pleasure to appear
before you today and to have the opportunity to explain our plans for
the safe admission of commercial truck and bus traffic to the United
States from Mexico.
Introduction
Approved by Congress in 1993, the North American Free Trade
Agreement was based on a simple premise--that all of the countries in
North America would be integrated into one free trade area. Eight years
later, one major portion of NAFTA has yet to be implemented--the
requirement that all countries in North America be open to commercial
vehicle traffic. This matter has generated vigorous dispute and
considerable misunderstanding--on both sides of the border, in the
public and private sectors.
A NAFTA arbitration panel ruling in February of this year
determined that the United States had violated its legal obligations to
Mexico. President Bush has assured President Fox that the United States
would move in a timely manner to meet our NAFTA obligations.
In May, the Department of Transportation proposed several rules
relating to the carrier application process, rules that will be needed
to implement the border opening. These rules form only one part of the
Department's comprehensive safety implementation plan. The rules
themselves will not be final until October, and applications for
operating permits cannot be requested by Mexican carriers until then.
The public comment period on the draft rules closed 2 weeks ago.
I want to acknowledge the significant concerns that some members of
Congress and the public have expressed. Recent votes by the House of
Representatives and the Senate Appropriations Committee on this matter
have sent a clear message: Congress will insist that the United States
have a rigorous, effective safety program in place prior to
implementing the truck and bus access provisions of NAFTA.
Mr. Chairman, you have my personal assurance that I share this very
same commitment to implementing a truly effective NAFTA safety program.
You will hear today that the Bush Administration is prepared to
enhance and significantly expand our safety implementation plan. I want
to work with Congress to try to reach consensus on a plan and the
resources required to meet our NAFTA obligations without sacrificing
safety.
Today I will discuss the practical steps that the Administration is
taking to meet that objective. My remarks focus on two topics: (1) the
four principles that guide the Department's work to implement NAFTA;
(2) the specifics of the Department's safety implementation plan
regarding Mexico's truck and bus access.
Guiding Principles
Four core principles guide our work to implement the NAFTA truck
and bus access provisions.
First, safety is the Department of Transportation's highest
priority, and we will not sacrifice safety to implement NAFTA's
trucking and bus provisions. With the support of Congress, Mexico's
government, Federal and State enforcement officials, and the industry,
I think we can implement an effective safety enforcement program and
meet our NAFTA obligations by January 1, 2002. The President's budget
lays out requirements to do that. However, if our ongoing work should
prove that we need more time, we will take it; if we need more
resources, we will insist upon them. We will do the job right.
Second, every Mexican firm, vehicle and driver that seeks authority
to operate in the United States--at the border or beyond--must meet the
identical safety and operating standards that apply to United States
and Canadian carriers. Nothing less than this is acceptable.
Third, the United States must fully comply with our NAFTA
obligations. Not everyone on this Committee supported approval of NAFTA
in 1993. As a Member of Congress I did, but only after careful
consideration of the possible impact on a wide range of issues,
including safety. I concluded then, and I continue to believe, that the
free and open trade fostered by NAFTA is in the best interest of the
people of this Nation and our economic future. The Mexican government
has assured the United States that it will allow United States trucks
access to Mexico. As Secretary of Transportation, my task is to work
with Congress to decide how to meet our existing and very real
international legal obligations.
Fourth, Mexican carriers lawfully operating in the United States
must be guaranteed the same high standards of fairness and protection
that we offer United States and Canadian carriers. There is a technical
term of the NAFTA that gives Canadian, Mexican and United States
carriers operating in one of the other countries so-called national
treatment. That means we must provide a level playing field for
competition. Because Mexico's safety enforcement regime differs in
significant ways from that of Canada and the United States, the
arbitration panel granted us reasonable flexibility in choosing the
best way to ensure a Mexican carrier's compliance with our safety
regulations. There can be civil discussion about what constitutes
reasonable flexibility.
I must say, however, that I am concerned about the tenor of some of
the NAFTA implementation debate. Some seem to argue that a Mexican
carrier--precisely because it is from Mexico--cannot or will not comply
with our laws. President Bush and I will insist on full compliance with
our safety laws. But we will not accept enforcement requirements that
create a de facto system that unfairly discriminates against Mexican
drivers and carriers.
All four of these guiding principles must be met in implementing
NAFTA's truck and bus access provisions. Let me now turn to a summary
of the specifics regarding the Department's comprehensive safety
implementation plan.
Implementation of the NAFTA Truck and Bus Access Provisions
On January 20 of this year, the Department of Transportation did
not have a program, nor an adequate plan, that would allow us to open
the border. Today we are well on the way to having the effective safety
enforcement program that will allow us to move forward with NAFTA by
year's end.
None of us can guarantee that a Mexican truck, a Canadian truck or,
for that matter, a United States truck will never have a catastrophic
accident somewhere in the United States. I can guarantee that the
efforts of three DOT agencies--FMCSA, FHWA, and NHTSA--are directed, on
a daily basis, to helping prevent that accident. Our NAFTA safety
implementation plan will bring greater resources and a substantially
enhanced focus on enforcement.
I know that the actual safety considerations in implementing our
NAFTA obligations are very different from the picture painted by some
opponents. I would like to address a few of those points.
I will begin with a discussion of the new resources requested by
the Administration. I will then describe the comprehensive safety
enforcement program we propose to carry out, which has five basic
elements:
(1) La safety review of truck and bus firms before the awarding
of operating authority;
(2) LAn expanded vehicle inspection regime, including
significantly more safety compliance inspections for all
commercial vehicles and enough inspectors to staff all border
crossings during the times commercial vehicles are allowed to
cross;
(3) Laudits of drivers to assure compliance with licensing,
hours of service regulations and all other driver requirements;
(4) Lsignificant border infrastructure improvements; and
(5) Lan extensive industry education program conducted on both
sides of the border.
Full implementation will involve close coordination--already
underway--with Federal and State officials in the United States, with
the Mexican government, and with the truck and bus industries on both
sides of the border. In short, the program focuses on firms, vehicles,
drivers, infrastructure and education.
Resources. The Administration's budget request for FY2002 seeks an
unprecedented increase in funds to prepare us for the new cross-border
traffic. These funds would provide the increased number of Federal and
State inspectors and inspection facilities that both our Inspector
General and a ``Blue Ribbon'' Commission, which I had the honor to
chair, called for in 1999.
To support comprehensive State and Federal safety enforcement
activities at the southern border, the Department requested $88.2
million in additional funds, which included $13.9 million to hire 80
additional Federal inspectors to perform safety inspections and conduct
safety audits of Mexican carriers. We plan to have all Federal
enforcement personnel hired and trained by December 2001. In addition,
we requested $18 million to support staffing of State inspection
facilities, increasing significantly State motor carrier safety
inspection activities at the border.
The Department also requested $54 million to provide the Federal
share of costs for construction and improvement of State commercial
motor vehicle inspection facilities. The Department requested $2.3
million for immediate construction of areas to park commercial vehicles
that are placed out-of-service for safety violations. We anticipate
working closely with our Federal and State colleagues to conduct
inspections. Currently 23 border commercial crossings do not have
permanent inspection facilities. We want to help the border States
address this gap.
Operating Authority for Mexican Truck and Bus Firms. On May 3,
2001, the FMCSA published three Notices of Proposed Rulemaking to
govern the application process for Mexico-domiciled carriers seeking
United States operating authority. The purpose of the rulemakings was
to specify a process whereby Mexican-domiciled carriers may be granted
conditional United States operating authority, and later, if its safety
compliance record justifies, permanent operating authority. Here is how
the process would work:
First, a carrier must specify whether it seeks authority to operate
within the commercial zone or outside the commercial zone. Carriers
with a currently valid authority to operate within the commercial zone
will have a 1-year transition period to begin the process described
below, leading to permanent commercial zone operating authority.
Second, a carrier must undergo a mandatory safety review by FMCSA
to obtain conditional operating authority. Mexican-domiciled carriers
must provide detailed information on their operations, and make
specific certifications regarding their ability to comply with United
States safety regulations before they may obtain conditional operating
authority.
Such requirements include United States safety regulations,
including hours-of-service requirements, drug and alcohol testing
regulations, the carrier's safety monitoring program, and the
obligation to maintain an accident register. Carriers would, for
example, be obligated to supply the name of their insurance carrier and
drug and alcohol testing service. The FMCSA will independently validate
such coverage in each case prior to granting conditional authority. To
perform these safety reviews, FMCSA will establish a consolidated
safety review center. At FMCSA discretion, any such reviews may be
conducted in person, at an appropriate Federal office at the border or
at the carrier's place of business in Mexico.
Third, upon successful completion of the safety review, a carrier
would be granted a provisional operating permit valid for 18 months.
Fourth, during the 18-month period, FMCSA will begin to collect
safety and operational data on the carrier in the Motor Carrier
Management Information System (MCMIS). The FMCSA will pull all
available data from Mexican databases on carriers, vehicles, and
drivers, but we will rely on our own information systems to continually
monitor the safety of carriers operating in the United States. Data on
authority, vehicles, drivers, violations, accidents, insurance, and
other safety information will be tracked by United States safety
information systems. State and Federal inspectors at the border and
throughout the United States will have complete access to the safety
data maintained on Mexican carriers.
Investigators will review information in MCMIS collected on the
carriers and documents required under Federal safety regulations. This
includes records on driver medical qualifications, hours of service,
drug and alcohol testing, and vehicle inspection, repair and
maintenance. If safety problems are detected, FMCSA would take
immediate action to help bring carriers into compliance or remove their
provisional operating authority. To complement the new entrant regime,
it will be necessary to modify existing regulations to provide
appropriate penalties for any carrier that operates outside the
commercial zone without valid operating authority. FMCSA will do so
this Fall.
Fifth, after sufficient observation data has been accumulated on a
given carrier (after approximately 4-12 months), the carrier must
submit to a mandatory safety audit. The safety audit requires a face-
to-face meeting with FMCSA inspectors and may, at FMCSA's discretion,
take place at an appropriate Federal office at the border or at the
carrier's place of business in Mexico. The safety audit incorporates
review of all safety inspection and performance data gathered on the
carrier, as well as an examination of the carrier's required records to
prove compliance with United States carrier, vehicle and driver safety
regulations.
Finally, after successful completion of the safety audit, and prior
to the end of the 18-month provisional operating authority, FMCSA will
determine whether to award a permanent operating authority.
Taken in sum, this process will provide considerable scrutiny of
the motor carrier's ability to comply with United States safety
standards. It should be noted that this new regime means heightened
requirements for Mexican carriers currently operating in the commercial
zone--more scrutiny than currently exercised--and it means a new,
stricter system outside the commercial zone. These requirements go
significantly beyond that imposed on United States and Canadian cross-
border operations, for which there are currently no such waiting period
or other new entrant requirements. The Department considers this regime
an appropriate level of scrutiny and consistent with the national
treatment provisions of NAFTA.
The Department expects most of the carriers now operating in
commercial zones to apply to continue that type of operation. We do
not, in other words, expect a large number of immediate applications
for authority to operate beyond the commercial zones.
Vehicle Compliance. All Mexican-domiciled vehicles seeking United
States operating authority must comply with United States safety and
performance standards for United States commercial vehicles. Based upon
consultations with the industry, FMCSA believes that Mexican carriers
that seek to operate outside the commercial zone will be equipped with
the modern vehicles that compare favorably with the average over-the-
road vehicle in the United States.
Over 50 percent of northbound trucks get inspected now. Based on
United States Customs fees and license plate readings, there are at
least 63,000 Mexican vehicles entering United States commercial zones.
Our Inspector General has estimated the number may be as high as
85,000. In FY 2000, more than 53,000 safety inspections were performed
on these Mexican trucks. FMCSA estimates that this is roughly twice the
rate of inspections performed on domestic commercial vehicles. While
there are 4.5 million crossings of the border each year, most trucks
are engaged in drayage operations, making multiple border crossings
daily.
The Department seeks to make routine Level 1 inspections--the most
thorough type of vehicle and driver check--the rule for all Mexican-
domiciled vehicles operating in the United States. Interim facilities
must be created for inspections and for parking vehicles placed out of
service. During the 1-year transition period for NAFTA truck and bus
access, the Department has planned to deploy teams of inspectors on
both sides of the border to make Level 1 inspections available to
carriers seeking United States operating authority.
California has already invested in inspection stations and has
successfully brought out-of-service rates for Mexican commercial
vehicles down to a level comparable with United States-based trucks. In
that State, a Level 1 inspection--actually getting under the vehicle--
is performed on each commercial vehicle that does not display a current
Commercial Vehicle Safety Alliance (CVSA) decal indicating that an
inspection has been performed within the last 3 months. In FY 2000, the
out-of-service rate for Mexican trucks inspected in California is 27
percent and the national average is 24 percent.
With construction of additional permanent state inspection
facilities and inspectors requested by the President, far more Level 1
inspections can be conducted, and a screening system similar to that of
California could be implemented all along the border. DOT will work
with States to locate the new facilities where commercial vehicles
cannot evade inspections and ensure that truck size and weight
enforcement is performed at each location.
Hiring of more Federal inspectors is underway. The FMCSA is now
recruiting eighty new Federal inspectors. Combined with our current
Federal inspection staff of 60, we would more than double our Federal
safety presence at the border and exceed the level of Federal
inspectors recommended by the DOT Inspector General in his December
1998 report.
As stated above, the Department also is seeking $18 million to
double the number of State safety inspectors. With this increase, a
combined State and Federal enforcement staff will total an impressive
496 inspectors. To put that figure in better perspective, there were
only seven Federal safety inspectors at the border in December 1995,
and about 45 State inspectors. If our FY 2002 budget request is
approved, it would provide a 10-fold increase in overall Federal and
State inspectors since 1995. This should allow us to meet DOT's goal of
having vehicle inspectors on duty during all hours when the commercial
crossings are open for business.
Driver Standards. The Level 1 CVSA inspections described above also
include review of driver credentials. The expanded regime that includes
vehicle inspections will thus also yield greater scrutiny of drivers.
There will be no distinction between the requirements for drivers from
Mexico, the United States or Canada. In the case of hours-of-service
compliance, for example, the driver must produce logs that indicate
authoritatively his or her driving time start and restart periods in
Mexico for the runs that include a border crossing. The clock does not
stop at the border, and we will not tolerate lapses.
Infrastructure Improvements. Our infrastructure improvements apply
not only to the physical safety inspection facilities covered by the
President's infrastructure request. We continue to work with our
Mexican colleagues on the information and safety networks linking the
two nations. Our actions involve a major initiative to improve the
safety information systems that are available to Federal and State
enforcement officials in the United States. We will be able to verify
certain carrier application information directly with Mexican
transportation officials, automate the review of applications, provide
real-time safety performance and other data to Federal and State
inspectors and effectively monitor the safety performance of Mexican
motor carriers operating in the United States. All inspectors will have
access to available United States and Mexican driver license, carrier,
and other safety databases by January 1, 2002.
The Department of Transportation is working with Mexico to increase
regulatory compatibility between our countries, establish cooperative
agreements on the exchange of safety information, and provide technical
assistance to build United States-compatible compliance and enforcement
programs in Mexico. The objective is to bring Mexican safety
requirements up to United States standards. The adoption and
implementation of comparable programs in Mexico will provide greater
assurance that vehicles entering the United States are already in
compliance with United States safety standards.
Implementation and Education. The Department is committed to being
proactive in helping Mexican carriers understand applicable U.S law and
regulations. The FMCSA, in concert with Mexico and the border States,
will conduct a series of safety compliance seminars to educate Mexican
carriers and drivers about compliance with Federal and State motor
carrier safety regulations. The seminars will take place on both sides
of the border this Fall. When rules are finalized, meetings such as
this will thoroughly explain the new application requirements. The
seminars will supplement ongoing efforts to translate and distribute
educational materials to Mexican carriers and drivers.
Also, with the Free Trade Alliance San Antonio, the Department is
co-sponsoring a NAFTA Information Conference in that city on October
21-24, 2001. The conference will include all Federal and State agencies
that have border enforcement responsibilities. The Departments of
Transportation, Labor, and Agriculture, the United States Customs
Service, the Immigration and Naturalization Service, the Environmental
Protection Agency, and State enforcement officials will conduct panels
explaining the various requirements that motor carriers must meet when
operating in the United States. The Governments of Mexico and Canada
will make similar presentations about their requirements and all three
countries will distribute bilingual reference books that summarize
their operating
Conclusion
Opening the border to Mexican trucks and buses by the beginning of
next year will require considerable effort. But I am thoroughly
convinced that we can fulfill our NAFTA obligations while putting in
place an effective safety enforcement regime.
I am disappointed, therefore, that the House voted to bar the use
of any Department funds next fiscal year to process applications for
Mexican carriers that seek to operate in the United States outside the
commercial zone. As the Administration has formally stated, President
Bush's senior advisors would recommend that he veto any bill containing
provisions that foreclose the possibility of meeting our NAFTA
obligations. While I am grateful to the Senate for providing funding
for the inspectors and improvements described in this testimony, I have
serious concerns about the numerous conditions the Senate has at this
point placed on actions to open the border.
I want to close by reiterating my personal commitment, and that of
the Administration, to work with the Congress to try to find an
acceptable plan for NAFTA implementation--a plan that allows us to meet
the four principle s of safety and equity that I outlined at the
beginning of this testimony. Mr. Chairman, I will be pleased to respond
to any questions you or the Committee may have.
The Chairman. It will be part of the record. Let us go
first with Mr. Mead.
STATEMENT OF HON. KENNETH M. MEAD, INSPECTOR GENERAL,
DEPARTMENT OF TRANSPORTATION
Mr. Mead. Thank you, Mr. Chairman. I will submit my
prepared statement for the record. Our statement today is based
on three reports, and it focuses on current conditions at the
border, and actions that need to be taken to implement a solid
safety strategy.
I want you all to know, I am honored to be here with
Secretary Mineta. He and his team are drawing very heavily, and
most responsibly on our work. As the law began to focus on this
issue, what we have seen from our work, including visits from
my staff to all 27 of these border crossings, is that the
United States has made some improvements in its inspection
presence and controls, and Mexico, even, has made some
progress, too.
But it is very clear that substantial additional actions
are needed to reasonably ensure the safety of trucks and
qualified drivers at the southern border, especially if they
wish to traverse into the interior of the United States. I
would like to highlight the actions as we see them in the
Inspector General's office, but before doing so, I do want to
point out that the focus on Mexican trucks ought not to obscure
the need to continue improving the safety of United States
trucks and drivers.
Last year, more than 5,300 people died in United States
truck crashes, and that is equivalent to a major airline crash
every 2 weeks. Over 9,000 United States motor carriers
currently have unsatisfactory safety fitness ratings. I believe
safety oversight has been strengthened at the Department since
passage of the 1999 Act, and I think it is important that this
level of emphasis be sustained, if not indeed increased.
As for a Mexican truck driver and truck safety, until
Mexico fully implements safety requirements and has a tight
oversight program, the fact is that we will need to have
sufficient controls in place in the United States to ensure
safety. We found a direct correlation between the condition of
Mexican trucks entering the United States, the number of
inspections, and the level of inspection resources at the
border.
The chart being displayed shows that, and this chart is in
my prepared statement. This purple line is the out-of-service
rate. When the safety violations are so serious that you cannot
let a truck go on the road any longer, it is placed out of
service. The out-of-service rate for Mexican trucks decreased
from 44 percent in fiscal year 1997 to 37 percent in fiscal
year 2000.
That improvement correlates with the increase in the number
of inspections, which is shown by the dark line, from about
17,000 inspections in fiscal year 1997 to 56,000 in fiscal year
2001. The out-of-service rate for United States trucks
nationwide is about 24 percent.
Mr. Chairman, California has an inspection presence during
all operating hours at its major Otay Mesa facility, and it
inspects each truck that does not have a current inspection
decal.
The out-of-service rate for Mexican trucks crossing at the
Otay Mesa border crossing is 24 percent, substantially better
than the Mexican trucks entering through other crossings with a
lesser inspection presence. In fact, the rate runs as high as
50 percent out-of-service at one border crossing in Texas. Many
of the safety program elements that we endorse and we
understand DOT plans to adopt, are based on that California
model. I want to highlight six critical elements of a safety
strategy that should be in place when the border is open.
First, is staffing, placing inspectors at all commercial
border crossings during all operating hours. Currently,
inspectors are not on duty at all border crossings during all
hours of operations. For example, my staff was at the Laredo
facility in Texas, that is one of the major crossings, on a
weekend day, and the trucks went right on through. No inspector
was there, and that needs to be corrected.
In 1998, we estimated 139 inspectors were needed to provide
coverage at all border crossings during all operating hours.
The Department increased the authorized number of inspectors at
the southern border from 13 in 1998 to about 60 in fiscal year
2001. The President's budget for 2002 includes about $14
million to hire 80 additional enforcement people. These funds
are really needed. I think that chart illustrates why, and it
is important that these 80 people be deployed at the border.
Over time, that can change. If the States build permanent
inspection facilities and increase the staffing, maybe these
inspectors can be deployed into other locations. But we think
it is important that you have inspection coverage at the border
crossings now.
Second, is safety reviews and inspections. We feel that
performing safety reviews before granting Mexican carriers
authority to operate in the United States, and inspecting the
long haul vehicles and drivers before they enter and operate in
the United States, would be a good move.
At least initially, DOT will have to decide on a case-by-
case basis whether safety reviews need to be performed on-site
in Mexico at the carrier's location. That decision is going to
depend on a number of factors, such as the availability and
quality of the applicant safety performance data. And I think
the Department will need some discretion to decide where it is
going to do these reviews. Because long-haul carriers will be
new entrants, their vehicles ought to be inspected as they
enter the United States unless the vehicle passed a United
States inspection within the preceding 3 months. The vehicle
will carry a decal just like those at the Otay Mesa facility in
California. Vehicles come through there, and every 3 months,
they get inspected and get a new sticker.
Long haul drivers ought to be inspected at the border to
make sure they have a valid license and a logbook, and that
they are in compliance with hours of service rules. This should
apply to passenger buses and their drivers as well, which could
well be the subject of a separate hearing some day. So
inspectors can readily distinguish between these Mexican long-
haul trucks and the Mexican trucks that are only going to the
commercial zone adjacent to the border, Mexican long-haul
trucks ought to have identification numbers that distinguish
them from vehicles authorized to operate only in the commercial
zones.
Mr. Chairman, the 1999 Motor Carrier Act specifies that new
entrant requirements, including safety reviews, will apply to
domestic and foreign carriers. DOT has not implemented this
provision yet for United States carriers. It is important that
this be done for safety reasons, as well as to provide
evenhanded treatment to United States carriers and Mexican
carriers.
Third, is enforcement--taking strong prompt enforcement
action against carriers that do not comply with safety
regulations, and authorizing states to place vehicles out of
service for operating illegally in the United States. In 1999,
we reported that 52 Mexican domiciled carriers were operating
illegally in 20 states outside the four Southern border States,
and the border had not even been opened.
We found this problem continues. In 2000, inspections
throughout the United States show that 56 Mexican carriers
operated illegally in 25 states outside the four Southern
border States. The 1999 Act that you enacted provided stiff
fines and disqualification sanctions for carriers exhibiting
this type of behavior. That provision of law is due to expire
when the border opens, and we think it makes sense that that
provision of law be carried over so you can take action against
carriers operating illegally and evading the safety net that
the Department puts in place.
Another point I think needs to be tended to is that DOT has
not yet issued an order that gives the States the authority to
place these vehicles out of service if they are found to be
operating without authority. I understand DOT will do this.
Fourth is facilities--providing adequate facilities and
space to conduct inspections and to place unsafe vehicles out
of service. Currently, as you pointed out in your opening
remarks, the only permanent facilities at the U.S.-Mexico
border are the State facilities in California. Construction is
under way at two others crossings, in New Mexico and Arizona.
I can give you some interesting statistics here. At the 25
crossings without permanent facilities, the inspectors use
space provided by the U.S. Customs Service. At eight of those,
DOT has small, portable buildings, and I mean small. At 19
crossings, inspectors only have space to inspect one or two
trucks at a time. At 14, and this is important, they only have
one or two spaces to park trucks that they place out of
service. If you have an out-of-service rate of even 25 percent,
that is one in every four trucks, and if you only have spaces
to park two trucks, you are going to have some trouble.
This problem is going to require time to be fully resolved,
but we think there are a number of near-term actions that the
Department can undertake with the help of some other agencies.
We contacted the General Services Administration and found that
land is available on and adjacent to 16 of these crossings. It
is true that the other Federal agencies have long-term plans
for using that land. But many of their plans aren't yet funded
so the Department may be able to obtain agreements to use some
of it in the near term, such as for paving a parking lot.
The fifth and sixth elements of the strategy are
rulemakings and education outreach. To establish the elements
of the safety strategy as legal requirements, obviously
rulemakings will be required. The rulemakings that are
currently out in draft will need to be revised to reflect the
elements of the safety strategy that is outlined in the
Secretary's statement. I think education and outreach are
necessary for the obvious reason, familiarizing the drivers and
carriers in Mexico on what the safety requirements are. Thank
you, Mr. Chairman.
[The prepared statement of Mr. Mead follows:]
Prepared Statement of Hon. Kenneth M. Mead, Inspector General,
Department of Transportation
Mr. Chairman and Members of the Committee:
We appreciate the opportunity to testify on motor carrier safety at
the U.S.-Mexico border. Since 1998 we have issued three reports dealing
with the Department of Transportation's efforts to improve safety at
the border. Our statement today is based on those reports and our
ongoing work, and focuses on the (1) current safety conditions at the
southern border, and (2) actions the Department needs to take to
implement a comprehensive safety strategy for the southern border.
What we have seen from our work--that includes visits to all 27
commercial border crossings--is a need to strengthen safety controls at
the southern border. (Exhibit A, for a map and listing of the border
crossings). During fiscal year (FY) 2000, 37 percent of the Mexican
trucks inspected were placed out of service because they had serious
safety violations. (Exhibit B, for a listing of out-of-service rates by
crossing)
The United States has made improvements in its inspection presence
and controls, and Mexico has made progress in establishing safety
oversight requirements. However, it is clear, that additional actions
are needed to reasonably ensure the safety of commercial vehicles and
drivers as they enter at the southern border, operate within the
commercial zones, and traverse the United States.
Specific actions that need to be taken include:
Placing inspectors at all commercial border crossings during
all operating hours. There is a direct correlation between the
condition of Mexican trucks entering the United States and the
level of inspection resources at the border.
Performing (1) safety reviews before granting Mexican-
domiciled carriers conditional authority to go into the
interior of the United States, and (2) inspecting all long-haul
vehicles and drivers before they enter and operate in the
United States. (Long-haul vehicles are those authorized to
travel beyond the U.S. commercial zones.)
Taking firm enforcement actions against carriers that do not
comply with U.S. safety regulations, and authorizing States to
place vehicles out of service for operating beyond authority or
without authority.
Providing adequate facilities to conduct inspections and
place unsafe vehicles out of service.
Revising the recently issued proposed rulemakings on
application procedures and a monitoring system to require
safety reviews and physical inspections of trucks and drivers
before they operate in the United States, and issuing the final
rules.
Conducting workshops and outreach sessions to provide
information to potential applicants on U.S. procedures and
safety regulations.
In the course of developing the Department's plans for implementing
the North American Free Trade Agreement's (NAFTA) provisions, the
Office of the Secretary, Federal Motor Carrier Safety Administration
(FMCSA), and Office of Inspector General have held extensive
discussions about our work and the elements of a comprehensive safety
strategy. We understand the Department is committed to incorporating
substantially all of the actions discussed above into its safety
strategy. This would include placing inspectors at all border crossings
during all operating hours, safety reviews, and physical inspection of
trucks and drivers desiring to operate in the United States beyond the
commercial zones. We endorse this approach and believe, when
implemented, it will provide a more solid predicate for ensuring the
safety of Mexican trucks and drivers operating in the United States.
The key to the effectiveness of the safety strategy will then be in
implementation of the details, including deploying sufficient
inspectors, performing thorough safety reviews and inspections, and
taking firm enforcement action against carriers that do not comply with
U.S. safety regulations. We will continue to audit and monitor the
Department's progress in developing and implementing its safety
strategy.
The actions needed to support the Department's safety strategy will
also require funding. The Administration requested $88.2 million in
additional funding for FY 2002 to facilitate implementation of NAFTA
cross-border trucking provisions. The FY 2002 Transportation Bill
approved by the House of Representatives does not provide additional
funds for this purpose, while the Bill approved by the Senate
Appropriations Committee provides $103 million in additional funding.
It is important to note that we should not let the current focus on
Mexican commercial vehicles obscure the need to continue to improve the
safety of U.S. trucks and drivers. In 2000, more than 5,300 people died
in truck crashes in the United States. This equates to a major airline
crash with 200 fatalities every 2 weeks. Also, in the United States,
one out of every four trucks inspected at a roadside stop is placed out
of service for safety violations. In FY 2000, 9,900 (2 percent) of the
560,000 interstate motor carriers operating in the United States had an
unsatisfactory safety rating. Moreover, 426,000 (76 percent) of the
interstate motor carriers had not been subjected to a compliance review
by FMCSA and were operating without a safety rating.
The Motor Carrier Safety Improvement Act of 1999 established FMCSA
and set safety as its highest priority. FMCSA has made progress in
increasing the number of compliance reviews, increasing civil penalties
for noncompliance, and shutting down unsafe carriers. It is important
that this level of emphasis be sustained domestically.
Current Safety Conditions at the Border
The out-of-service rate for Mexican trucks is declining. We
determined that 37 percent of the Mexican trucks inspected in FY 2000
were removed from service because of serious safety violations. This
represents an improvement from FY 1997 when 44 percent of the Mexican
trucks inspected were removed from service. The out-of-service rate for
U.S. trucks inspected nationwide in FY 2000 was 24 percent.
Available data also show that Mexican drivers were placed out of
service at the same rate--8 percent--as U.S. drivers nationwide during
FY 2000. However, these data may not be comparable because U.S.
inspectors at the border crossings did not have the capability to
verify that Mexican Commercial Drivers Licenses (CDLs) were current and
authentic during FY 2000. That capability is now available so data
obtained in FY 2001 should provide a comparable basis for driver out-
of-service rates.
NAFTA countries agreed to use standards established by the
Commercial Vehicle Safety Alliance (CVSA) that include minimum safety
requirements and criteria for placing trucks and drivers out of service
for noncompliance. In the United States, Federal and State safety
inspectors perform vehicle inspections using CVSA criteria. A vehicle
receives a CVSA decal when it passes a Level 1 inspection--the most
rigorous involving a physical inspection of the truck's compliance with
all safety requirements. The decal is valid for 3 months.
Trucks are put out of service for a variety of serious safety
violations, including inoperative and defective brakes, defective
frames and steering systems, and bad tires. Truck drivers are placed
out of service because they do not have valid CDLs, are not in
compliance with hours-of-service rules, or do not have logbooks to
document the number of hours they were on duty.
There is a direct correlation between the condition of Mexican
trucks entering the United States and the level of inspection,
resources at the border. That is, the more likely the chance of
inspection the better the condition of the vehicle. As the following
chart illustrates, out-of-service rates at the border have declined as
the number of inspections performed increased.
California has an inspection presence during all operating hours at
its two major crossings and inspects each commercial truck that does
not have a current CVSA inspection decal. Consequently, the condition
of the Mexican trucks entering at the Mexico-California border is much
better than those trucks entering through all other border States that
do not have an inspection presence during all operating hours.
For example, during FY 2000, the out-of-service rate for Mexican
trucks inspected in California was 27 percent. This compares to out-of-
service rates of 40, 34, and 41 percent in Arizona, New Mexico, and
Texas, respectively. During this same timeframe, the range of the out-
of-service rates varied significantly among the border crossings, from
24 percent in Otay Mesa, California, to 50 percent at the Bridge of the
Americas in El Paso, Texas.
Exhibit B shows the out-of-service rates for the last 2 fiscal
years at each of the southern border crossings.
Until Mexico fully implements safety requirements and an oversight
program, the United States will need to have sufficient controls in
place to ensure the safety of Mexican trucks and drivers entering and
operating in the United States. At this time, there are some
outstanding questions about the workload this will generate. These
questions include how many Mexican carriers will apply for long-haul
authority, where the carriers are located, and which and how many
trucks they will operate in the United States.
It is a matter of speculation as to how many carriers will want to
operate long-haul vehicles in the interior of the United States beyond
the commercial zones. This decision will be affected by a number of
factors, including economic conditions and the need to comply with U.S.
safety regulations. While all carriers are not likely to apply,
available information shows that the number of carriers that could seek
to operate in the interior could vary significantly. For example:
10,000 Mexican carriers currently have authority to operate
in the United States.
4,750 Mexican carriers had vehicles inspected at the
southern border in FY 2000.
1,500 of the 4,750 Mexican carriers with vehicles inspected
at the border came from States south of Mexico's border States,
primarily from the Mexico City area.
Over 70,000 Mexican carriers are domiciled in Mexican States
away from the border States.
Regarding the number of trucks, a September 20, 2000 FMCSA report
estimated that about 80,000 trucks were operating at the U.S.-Mexico
border and that 63,000 trucks were from Mexico. One analysis used to
make the 63,000 estimate relied on 1998 data for the total number of
trucks registered in Mexico. However, in 1999, the number of registered
Mexican trucks grew by 18 percent, and indications are that this trend
is continuing. This would mean that the number of Mexican trucks
operating at the border could range from 63,000 to 89,000 trucks. Our
analysis showed that 26,600 Mexican trucks were inspected at least one
time at the border during FY 2000.
Actions the Department Needs to Take to Implement a Safety Strategy for
the Southern Border
Our work points to the need to strengthen controls at the southern
border in order to provide reasonable assurance of the safety of
Mexican trucks and drivers operating in the United States. The
Department recognizes the need to strengthen controls and is developing
a safety strategy. In the near term, developing an inspection
capability that includes providing inspectors and inspection facilities
at the border crossings, and using that capability to enforce
compliance with U.S. safety regulations are key to ensuring the safety
of Mexican trucks and drivers.
In this regard, there are six areas that will need to be addressed
in the near term as part of the safety strategy. They are: Staffing,
Safety Reviews and Inspections, Enforcement, Facilities, Rulemakings,
and Outreach. We believe these are strong elements that would enhance
the Department's safety strategy, facilitate the implementation of
NAFTA's provisions, and ensure the safety of Mexican trucks and drivers
operating in the United States.
1. LStaffing. Deploying additional onsite inspectors during all
operating hours at all southern border crossings.
Currently, inspectors are not on duty at all border crossings
during all hours of operation. In 1998, we estimated that 139
inspectors were needed to provide sufficient coverage at all crossings
during operating hours. FMCSA increased the authorized number of
inspectors at the southern border from 13 in FY 1998 to 60 in FY 2001.
Currently, 58 of the 60 authorized positions are filled. The following
chart shows, by border State, the number of Federal inspectors onsite
and the number we estimated was needed.
The Administration's budget request for FY 2002 includes $13.9
million to hire 80 additional enforcement personnel for the southern
border. Deploying the additional 80 enforcement personnel at the border
would bring the total number of authorized Federal inspectors there to
140, and be responsive to our 1998 recommendation. However, over time
the requirement for Federal inspectors to be physically located at the
border crossings is likely to change if the States establish permanent
inspection facilities and increase their inspection staffs.
The Department is developing a deployment plan for these 80
enforcement personnel as part of its safety strategy. If the 80
enforcement personnel are not deployed onsite at the border in the near
term, sufficient inspectors will not be in place at all border
crossings during hours of commercial vehicle operations except for two
of California's crossings. We will be monitoring the development of the
Department's deployment plan for the 80 enforcement personnel as well
as the actions taken by the States.
2. LSafety Reviews and Inspections. Performing safety reviews
before granting conditional authority to operate in the United
States, and inspecting all long-haul vehicles and drivers
before or as they enter the United States.
Safety reviews should be performed and successfully completed
before conditional authority is granted to new entrant carriers. At
least initially, the Department will need to decide on a case-by-case
basis whether safety reviews should be performed onsite at the
applicant carrier's location to: verify the accuracy of safety
performance data and required safety management programs (including
drug and alcohol testing, driver qualifications, and driver's hours-of-
service), inspect vehicles, and ensure applicants are knowledgeable of
U.S. safety regulations. The decision on where safety reviews should be
performed will depend on the availability and quality of the
applicant's safety performance data. Also, inspecting vehicles onsite
during a safety review would reduce the impact on traffic congestion of
performing vehicle safety inspections at the border.
Because the long-haul carriers are new entrants, their vehicles
should be inspected as they enter the United States unless they have a
current CVSA inspection decal indicating that the vehicle has passed a
U.S. inspection within the preceding 3 months. Long-haul drivers should
be inspected at the border to verify they have a valid CDL, a logbook,
and that they are in compliance with hours-of-service rules. For
inspectors to readily identify long-haul vehicles, vehicles should be
assigned identification numbers that distinguish them from vehicles
authorized to operate only in commercial zones.
The Motor Carrier Safety Improvement Act of 1999, Section 210,
specifies that new entrant requirements shall apply to all motor
carriers, domestic and foreign. The new entrant requirements call for
safety reviews to ensure applicant carriers are knowledgeable about
Federal Motor Carrier Safety Regulations. FMCSA has not yet implemented
Section 210 of the Act for U.S. carriers. It is important that this be
done for safety reasons and to provide evenhanded treatment for U.S.
and Mexican carriers.
Passenger buses also receive access to the United States under
NAFTA. During FY 2000, there were only 100 passenger buses inspected at
southern border crossings. However, the U.S. Customs Service reports
that about 300,000 bus crossings occurred at the border during FY 2000,
and 80 percent of those were at 3 ports of entry: San Diego,
California, and Laredo and Hildalgo, Texas. Inspections of buses and
drivers should also be part of the Department's safety strategy.
3. LEnforcement. Implementing procedures for monitoring the
safety performance of new entrants with conditional authority
and taking firm action against those carriers that do not
comply with safety regulations and those that evade the safety
net and enter the United States without authority.
Effectively enforcing safety regulations requires a system that
tracks a carrier's safety performance and triggers action for
noncompliance with U.S. safety regulations. These triggers should
initiate the issuance of deficiency letters and suspension notices of
U.S. operating authority. This will be particularly important during
the 18-month period when new entrants are operating under conditional
authority. FMCSA's proposed rulemaking defines the 18-month conditional
period as a time of enhanced safety oversight for new entrants. At the
end of the 18-month period, the conditional authority would become
permanent if a carrier's most recent safety review is satisfactory.
A key element of FMCSA's ability to take firm enforcement action is
a system that provides good safety performance data and allows
inspectors immediate access to those data. To accomplish this, FMCSA is
developing a single access system that will provide inspectors
information from FMCSA and Mexican databases on carrier safety
performance. FMCSA needs to ensure the system is completed and deployed
by the end of 2001 as currently scheduled.
Strong enforcement will be needed for the minority of carriers that
are egregious offenders and a risk to public safety. The Motor Carrier
Safety Improvement Act of 1999, Section 219, provided fines and
disqualification sanctions for Mexican carriers operating without
authority or beyond their authority in the United States. The fines
range from $10,000 to $25,000. However, the Act's provision has not
been implemented, and this provision will expire when NAFTA cross-
border trucking provisions are implemented. A comparable provision will
have to be carried over to deal with carriers operating beyond or
without authority in the United States.
In 1999, we reported that 52 Mexico domiciled motor carriers were
operating improperly in 20 States outside the 4 southern border States,
and 202 motor carriers were operating improperly beyond the commercial
zones within the border States. These carriers were operating beyond
authority or without authority. Our ongoing work shows this problem
continues. Data on FY 2000 roadside inspections throughout the United
States show that 56 Mexican carriers operated improperly in 25 states
outside the 4 border States.
Also, FMCSA has not issued an order on enforcement of registration
requirements provided in Section 205 of the Motor Carrier Safety
Improvement Act of 1999. This order would give the States the authority
to place vehicles out of service if found operating without authority
or beyond the scope of authority granted.
FMCSA needs to take swift action to give States the authority to
enforce the operating authority requirements.
4. Facilities. Obtaining available land at southern border
crossings to provide inspectors space and facilities needed to
safely perform inspections and park vehicles placed out of
service.
Currently, the only permanent inspection facilities at the U.S.-
Mexico border are the State facilities in Calexico and Otay Mesa,
California. Construction is underway for two permanent State inspection
facilities in Santa Teresa, New Mexico, and Nogales, Arizona. Both of
these facilities will be adjacent to the U.S. Customs Service port of
entry lots.
At the 25 border crossings where permanent facilities are not
available, Federal and State inspectors work within the U.S. Customs
Service's port of entry lots. FMCSA has provided portable buildings at
eight of these crossings. At 19 of the 25 crossings, FMCSA inspectors
have space to inspect only 1 or 2 trucks at a time, and at 14 crossings
have only 1 or 2 spaces to park vehicles placed out of service. It
takes at least 2 years to get permanent inspections facilities built.
In the near term, FMCSA must secure additional space at the border
crossings to safely perform inspections and place vehicles out of
service.
Not all of the space requirements can be easily addressed because
land is not readily available at all border crossings. However, we
contacted the General Services Administration (GSA) and found that land
is available on or adjacent to the U.S. Customs Service port of entry
lots at 16 border crossings. Although other Federal agencies have long-
term plans for using most of this available land, many of the plans are
not yet funded. For example, at the Pharr border crossing, with about
370,000 truck crossings in FY 2000, there are 14 acres in GSA's
inventory for which there are no currently funded plans.
FMCSA may be able to obtain agreements to use available land in the
near term without impacting other Agencies' long-term plans for the
space. Resolving the space issue will likely require high-level
attention because it will involve extensive coordination with other
Federal agencies, tenants, and lessors.
5. Rulemakings. Revising the recently issued proposed
rulemakings on application procedures and a monitoring system
to require safety reviews and physical inspections of trucks
and drivers before they operate in the United States, and
issuing the final rules.
Two proposed FMCSA rulemakings establish new application procedures
for Mexican carriers seeking new operating authority beyond and within
the commercial zones, and require carriers to provide detailed
information about their safety practices and to self-certify compliance
with U.S. safety regulations. A third rulemaking proposes implementing
a safety monitoring system to determine whether Mexican carriers
operating in the United States comply with safety regulations.
FMCSA issued the three Notices of Proposed Rulemaking on May 3,
2001. The period for public comment on the proposed rules closed on
July 2, 2001, and FMCSA plans to finalize the rules by the end of
October 2001. However, the rulemakings will need to be revised to
incorporate changes that are made as the Department develops its safety
strategy. For example, the existing proposed rules do not include
requirements that a safety review be completed before conditional
operating authority is granted, or that long-haul vehicles and drivers
be inspected before they enter and operate in the United States.
One of FMCSA's proposed rulemakings requires carriers currently
operating within the commercial zones to reapply for operating
authority under the ``new entrant'' program. Under the Motor Carrier
Safety Improvement Act, the ``new entrant'' provision applies to
carriers seeking ``new'' authority, not those with existing authority.
In the near term, FMCSA may be able to reduce its workload by focusing
its efforts on carriers that are truly new entrants in that they do not
have authority to operate in the United States at all.
6. Outreach. Conducting workshops and outreach sessions to
provide potential applicants with guidance on how to complete
applications, which should result in more complete and accurate
applications and facilitateqtimely processing.
FMCSA's strategy includes provisions to sponsor eight 1-day
workshops that provide an overview of the Federal safety rules and the
border States' rules. This would also help provide the target audience
for the workshop and show motor carriers how to apply for operating
authority. These workshops should provide excellent opportunities for
the Mexican carriers and FMCSA to benefit from an exchange of
information. The limitation we see at this time is the plan to conduct
these workshops before finalizing the rulemakings covering the
application processes and the monitoring system.
The Chairman. General Mead, your testimony is good, but
when we learned that there are only two checkpoints of the 27,
in other words, trucks can come over at 25 other points without
inspection, you couldn't be happy about that, can you?
Mr. Mead. No, sir.
The Chairman. The fact of the matter that we haven't even
appointed a Federal Motor Carrier Safety Administrator, we have
had six, going on 7 months, and they have not even sent one to
us, you cannot be happy about that?
Mr. Mead. No. This has been a problem for almost a year and
a half.
The Chairman. NHTSA itself, you only set up the
administrator, that took 7 months, just last week. But at the
end of the year last year on the Firestone tire hearing before
this Committee, we learned that of 99 million recalls, motor
vehicle recalls in a 5-year period, that NHTSA, National
Highway Safety Transportation Administration, had yet to order
one of the 99 million. That was Secretary Slater's testimony at
that time.
The only reason they are being recalled I guess is on
account of the trial lawyers. It was only on account of the
trial lawyers that we learned about Firestone, 200 deaths. Then
it finally came--in other words, we got, I got confidence in
you, but we got a lot of work to do on the safety side. I mean,
we sound strong and pretty in our plan and this point, point
five, point nine and everything else, but we are seeing darn
little safety when they do not even set up an administrator and
they do not even make a recall and 99 million recalls and when
the distinguished chairman on the House side said the tires
were being replaced with faulty tires, the administration said
it would take us months to find out about the replacement
tires. We do not know whether they are safe or not.
So let us gear it up. You are in charge. You are the
inspector general. Secretary Mineta, with respect to the time
it is going to take, now, we say we are going to open the
border, but we got less than 6 months. Do you think we can do
all of these things you have attested to and General Mead has
attested to by January 1st?
Secretary Mineta. Yes, sir, I do. First of all, there are,
our request was for $88.2 million.
The Chairman. Right.
Secretary Mineta. Roughly $56 million of it was for
facilities. $54 million to the states for facilities, and some
$2.6 million as I recall for Federal, for Federal facilities.
And then $18 million is in there for additional inspectors. The
recommended number by the attorney general, I mean by the
Inspector General is the number that we are following, and so--
--
The Chairman. We got enough money because we have given you
on the Senate side, we plan to give you at least 15 million
more.
Secretary Mineta. The House knocked out all the money and
then also prohibited us from processing any motor carrier
applications. But if we have the financial resources and get
the inspectors in place, I am still hoping to be able to comply
with that, hopefully in the January timeframe.
The Chairman. General Mead just testified, attested to,
what about that, are you going to replace those at all of the
27 checkpoints and everything? California is good, but can we
get a California check at the other 26?
Secretary Mineta. Well, what we are hoping is that we will
have that CVSA decal procedure being followed as part of the
procedure on inspections. And the--the part about California is
that all of the states get motor carrier safety money.
California receives roughly $8 million in MCSAP money. But they
have on top of that implemented it with about $30 to $35
million of their own California money in order to do the
inspection program at Calexico and Otay Mesa.
None of the other states--I take it back. Arizona and New
Mexico have some money of their own into it, in addition to the
MCSAP money. But the other states, the states have not put in
as much money as the state of California.
The Chairman. What about land? We released the land that
you need now down there or what?
Secretary Mineta. Land is something that we do need. As the
Inspector General mentioned, we need the land to perform the
truck inspections and to park out of service vehicles. And we
are working on those agreements right now at the locations. To
me, land is not going to be a problem.
The Chairman. My time is going to be up, Mr. Secretary.
With respect to conditions, you said in your opening statement
you had serious concerns about the conditions that the
Appropriations Committee in its transportation appropriations
bill enunciated. What are those things that you have serious
concerns about?
Secretary Mineta. There were a number of things, I am
trying to recall some of them. Requirements, for instance, of
weigh motion devices and scales at crossings. I have no problem
if we want to do both. I am not sure why we would want to put
in both weigh-in-motion devices as well as scales at the border
crossings.
There are a number of issues in terms of certification that
are being placed on me in terms of the safety of the trucks, in
terms of, and I have, as I say, no problem with the inspection
portion of it, but there are a number of the requirements in
the Murray amendment that were troublesome to me, and raised
some concerns.
The Chairman. Can you itemize those for the Committee and
give it to us because we will be debating the transportation
appropriation bills. Senator McCain.
Senator McCain. Thank you, Mr. Chairman. Mr. Chairman, we
are all frustrated at the slow pace of the nominating process,
but I think it is important and, in light of your previous
statement, to point out that the office of truck safety
administrator was created in January 1 of the year 2000. The
previous administration never sent over a nominee to fill that
job.
The Chairman. Clyde Hart was enacted.
Senator McCain. There was never a nomination sent over. To
accuse this administration----
The Chairman. I am trying to get the post filled. We cannot
fill it unless they send one over. They did not have to send
one over under the Clinton Administration. They just put the
fellow there and he administered.
Senator McCain. That is curious logic.
The Chairman. That is not curious logic. It is fact.
Secretary Mineta. Hopefully at the 1 o'clock briefing that
Mr. Fleisher has every day, he will be announcing the
President's nomination for the Administrator of the Federal
Motor Carrier Safety Administration.
Senator McCain. Something that hasn't happened since
January 1st of the year 2000. I thank you, Mr. Mineta. First of
all, Mr. Mead, do you have any disagreement with Secretary
Mineta's statements, not only principles, but specifics as to
how the Department of Transportation would implement the NAFTA
trucking and bus access provisions? Do you have any additions
to that, or deletions?
Mr. Mead. I think we are in substantial agreement. One
point needing closure, I believe, is whether the Department
establishes a rule or a policy that before Mexican trucks can
come into the interior States, the trucks will be inspected and
pass the inspection, and the drivers will be inspected as well.
Either that, or the vehicle has a current decal indicating that
that type of inspection has occurred in the preceding 3 months.
I know the Administration has committed to increasing very
substantially the number of those inspections, but I think the
details of exactly how that would be implemented will need to
be worked out.
Senator McCain. In other words, the model that is now
pretty much in place in California?
Mr. Mead. Yes. Even more robust than California. A
difference in California, sir, is when trucks come across the
border, the truck gets inspected, but California does not
inspect the carrier per se to make sure, for example, that all
of its drivers are qualified. The Department's plan will have
to go into checking the carrier itself, as well as the
individual trucks and drivers.
Senator McCain. Thank you. Secretary Mineta, You have
stated a couple of times now that you have reservations or
objections to the language which was put into the DOT
Appropriations bill that will be up on the floor shortly. How
serious are those concerns? Are you prepared at this time to
say whether those concerns are strong enough to prompt the
threat of a Presidential veto and finally, do you believe that
those provisions cause the United States to be in violation of
NAFTA?
Secretary Mineta. First of all, in my statement, Senator, I
did indicate that there are senior advisors to the President
who have indicated they would recommend a veto if the present
language stays in the bill and does come to the President for
signature.
Senator McCain. The Senate version.
Secretary Mineta. The Senate version. Yes, sir. And also,
as to whether or not those provisions are in violation of
NAFTA, they would indicate that it is.
Senator McCain. Well, I know that there will be further
discussions and an examination of this issue with the
Administration. Though there are many people involved in the
deliberations, we need to have a very definitive position from
the Administration on this issue since I think it would affect
the level and tenor of the debate. It would be helpful to know
the President's position not only as to whether it will provoke
a veto if the Senate Appropriations bill language were allowed
to stand, but also whether those provisions would, upon review
of the Administration, be in violation of the North American
Free Trade Agreement.
Secretary Mineta. We are in the throes of preparing that
comparison in terms of the conditions of the Murray amendment,
but let me just give some general observations, that the terms
of the amendment are overly rigid and burdensome, and that
thought about whether or not we could be doing many of the
things through administrative regulations rather than having it
in the statute.
The cumulative effect of the 22 separate requirements,
standing alone, many of the requirements would be acceptable,
but taken in the aggregate, they could result in a violation of
our commitments under NAFTA.
The additional cost that would be above what we had
submitted originally, we, as I said submitted an $88.2 million
request. The Senate did add, based on I believe it was Senator
Hutchinson's amendment, $15 million, but in order to fully
implement all of the requirements, it would cost an additional
$77.3 million above the funds that had been requested by the
President.
Senator McCain. Thank you very much. Mr. Mineta, should all
Canadian trucks be inspected? Mr. Mead? Yes? No?
Mr. Mead. I don't think the same circumstance applies to
the condition of Canadian trucks.
Senator McCain. Thank you, Mr. Chairman. My time has
expired.
The Chairman. Thank you. Senator Dorgan.
Senator Dorgan. Mr. Chairman. Let me ask you, Secretary
Mineta, more specifically on the Murray provisions which in my
opinion are not as effective as the Sabo amendment in the
House. Which of the Murray provisions could not be complied
with? I mean, it seems to me that if you oppose the Murray
provisions, it is perhaps because you cannot comply with some
or all of the provisions. Which of the provisions do you
believe you are not able to comply with?
Secretary Mineta. Subsection 1-A of Section 343, that the
Department of Transportation must conduct two full compliance
reviews with satisfactory or better results of Mexican carriers
who wish to go operate outside a commercial zone, and one of
those would be a review prior to granting conditional authority
and a second would be prior to granting permanent authority.
Again, in terms of making sure that our inspection services are
not any different from United States to Mexican, to Canadian
carriers, that is not required of United States or Canadian
carriers.
In terms of----
Senator Dorgan. Mr. Mineta. Mr. Secretary--just on that
point, we do not require reciprocal requirements. For example,
inspect meat from Canada. Right now today there is going to be
a truckload of fresh meat coming to North Dakota from Canada.
We do not accept that--we accept that. We have well-established
that in Canada they have a rigid inspection process for meat
which we accept. So it's not reciprocal treatment all around.
As we begin this process of certifying whether Mexican
trucks are safe, this provision, Part A, talks about a full
safety compliance review consistent with and you are saying
that that is unnecessary or that you cannot comply with it?
Secretary Mineta. I am saying that when that truck comes
into the United States, that truck will have to observe all the
rules, regulations and laws of the United States.
Senator Dorgan. But are you not able to comply with that
Section A or you just disagree with it?
Secretary Mineta. No. In terms of conducting two full
compliance reviews, to me would be very, very costly, very
difficult to do.
Senator Dorgan. You think unnecessary?
Secretary Mineta. Compliance reviews, including going to
Mexico to the terminals that they operate, and to deal with the
inspection of the records at their site.
Senator Dorgan. So you believe it is unnecessary. Let me go
on. Other than that one, are there other----
Secretary Mineta. I am not saying it is unnecessary. I am
saying that under these two requirements of two full compliance
reviews that that is, I think, more than what we really have to
do.
Senator Dorgan. That is unnecessary. Mr. Secretary----
Secretary Mineta. We will be doing compliance reviews.
Senator Dorgan. Mr. Secretary, if you think it is
unnecessary, fine, just say that. If you think it is too costly
or unnecessary. I understand. Are there other portions of the
Murray amendment that you believe you cannot comply with or
that you think are unnecessary?
Let me come back to that just for a moment. I want to ask a
question about numbers. Mr. Mead, you and Secretary Mineta
talked about 80 new inspectors at the border. Now, my
understanding is that in the budget submission to the Congress,
40 of those are in fact inspectors, and 40 of those are
investigators. Is it your understanding that the investigators,
which will be doing I think what is anticipated in Part A that
the Secretary just described, they are not going to be out
there on the line inspecting trucks so if you only have 40
rather than 80 as both you and the Secretary testified to, that
comes up to a substantial number short of what you indicated in
your testimony is necessary to have full coverage at the
border. Can you describe that problem?
Mr. Mead. Yes, it would. We have had some discussions in
the Department about this. You should know that the 140
inspectors figure is one that we calculated in the Inspector
General's office in 1998, made a recommendation on, and this
Administration accepted. It was calculated on the assumption
that you have inspectors at the border crossing during all
hours of operation for each one of the crossings. There was
some discussion earlier that maybe we do not need to deploy all
of these inspectors at the border, but I think that issue has
been resolved in the affirmative: they will be placed at the
border and they will be inspectors.
Senator Dorgan. Mr. Mead, do you agree that we are short of
that. The Secretary is testifying there are 80 new positions.
Is it not the fact that 40 of those will not be inspecting
trucks at the border?
Mr. Mead. I believe that the Department is now committed.
The Secretary will speak to this. We specifically had this
discussion, and I think that they are all going to be
inspectors and they are all going to be at the border.
Senator Dorgan. General Mead, they are either going to be
inspectors and inspecting trucks or they are going to be
conducting investigations. My point is that the Secretary's
testimony says that we have 80 new inspectors. The submission
to the Congress for appropriations talks about 40 inspectors
and 40 investigators. Those are very difference functions. Now,
which of those functions will not be done in your judgment?
Mr. Mead. Well, I understood that it was 80 inspectors.
That is what I understood.
Senator Dorgan. So then where is the resources? Where will
the resources for the investigations come from? My
understanding from the appropriations submission is that you
are talking about 40 inspectors and 40 investigators, and part
of this discussion we just had about the Murray amendment is
the requirement for safety compliance reviews. That is all
investigated.
You are investigating the circumstances of that truck line,
that industry. That is as opposed to full-time inspectors being
available when a truck is presented at the border, and I just
think someplace here we are short 40 people in terms of what is
being represented in the Committee.
Mr. Mead. I see your point. The staffing for the Motor
Carrier Administration has been increasing sharply since the
law was passed. And for 2002, they have asked for 850 people,
compared to 714 in 2001. So some of those people would have to
do the investigations.
Senator Dorgan. Let me just for the record, let me indicate
that the Office of Inspector General report, interim report on
the status of implementation, you say FMCSA has not released
its plan for where these additional personnel will be
stationed, however 40 will be inspectors and 40 will be
investigators. Normally inspectors inspect commercial vehicles,
drivers and--normally inspectors inspect commercial vehicles
and drivers and investigators conduct compliance reviews of
motor carriers.
My point is that the 80 number that has been given us today
to try to assure us that you have got plenty of inspectors is
not an 80 number that complies with what is in your report and
in my judgment, doesn't correspond with what Mr. Mineta is
saying the 80 would be used for. So we are missing--something
is not being represented here.
Secretary Mineta. May I respond?
Senator Dorgan. Sure.
Secretary Mineta. The amount of money that we have
requested is something like $50 million for facilities and then
we have requested some $18 million for inspectors. You are
correct. Some of those people are investigators, but they are
also interchangeable. There is also an additional $18 million
that will be going for state inspectors at the border. So it is
not just the 80 additional that we are adding to the 60 we
already have.
We are also implementing through the MCSAP program to the
states additional inspectors at the crossing. Now, you were
just asking a little while ago, are you going to be conducting
compliance reviews? Yes, we are. But as you say, those are done
by investigators, but these are interchangeable in terms of
inspectors and investigators. And they can sit there and wear
one hat 1 day and change it and do their inspections. They are
not just clothed as investigators, or clothed as inspectors.
They can take their hat off and go from a border crossing
inspector to do compliance review at a terminal site in
Guadalajara, Cancun, Chihuahua, or whatever and do inspections
at the border. If we don't have that kind of flexibility to do
this, then we will have to have more than what we have already
requested in terms of money for the people we need to do the
job.
The Chairman. Senator Allen.
Senator Allen. Thank you, Mr. Chairman. I have been reading
through all this. Senator Dorgan, whatever his bill is,
actually lists several perspectives or principles that I think
make a great deal of sense. They meet United States
requirements. That there is full-time enforcement program with
respect to compliance requirements, that you implement the
Inspector General's recommendations, there is an ongoing
program of monitoring, an evaluation in place.
I think a lot of that is very probative and helpful to me
in this. One thing you could do is probably translate all this
money that we are talking about in here into how many more
full-time employees. How many more personnel will there be with
this? Have you done any calculations on how this amount of
money will calculate into the number of people actually
inspecting and ensuring safety compliance?
Secretary Mineta. Our request, original request was based
on our----
Senator Allen. Let us just assume you are adding another
$15 million at least.
Secretary Mineta. We are adding $18 million in order to,
when the Inspector General talked about needing 80 additional
inspectors. That was what our $18 million request was based on
to come up with the 80 additional bodies on top of the 60 that
were already there. And then the balance, there is another $18
million that will go for state inspectors.
Senator Allen. How many will that translate to?
Secretary Mineta. 180 in terms of state inspectors.
Senator Allen. All right. Now, you are talking about
needing land. If these trucks are defective, you park them.
Generally, in the United States if they are parked, it is
because they simply are not going to move them until they fix
them. And maybe this is a common sense approach. Why don't we
just require those trucks to turn around and go back to Mexico
and let Mexico figure out where to park them while putting on
some markings on it so that they do not just change the
tractor.
Say the trailer was the problem, as opposed to the actual
tractor. Why not just turn around and let Mexico worry about
where the heck they are going to park them as opposed to us
worrying about getting more land. Whoever is carrying the
freight is pretty upset they have to bring another shipment
vehicle.
Mr. Mead. They often do send them back. It is just that
logistically, you have all these trucks coming across and the
chance of getting one that is fatally defective from a safety
standpoint is fairly high right now. They have to have
somewhere to put them, even temporarily while they write out
the paperwork, before they can turn them around and send them
home. The point here is that when you only have room for a
couple of trucks, that is not sufficient, and we ought to take
advantage of whatever land we can use, even temporarily, that
is on the site to park these out-of-service trucks.
Senator Allen. You were explaining this as if these trucks
are just sitting there for a long while until some mechanic
comes--or whatever they are going to do with them--or bring
that tractor and send the other back.
Mr. Mead. Sometimes that happens. I saw one of these
inspections where you wouldn't want to turn the truck around--
it did not have any brakes.
Senator Allen. In a roundabout way it might make the
compliance people in Mexico be more concerned, as we would be,
if that truck had gotten through. You mentioned on the analysis
of those vehicles that had decals and you found the various
compliance rates or defect rates of 24 percent in California,
50 percent in El Paso or somewhere in New Mexico.
Have you done any analysis of the truck that did have the
decals to verify the credibility of those inspections and
whether those--even in this country, there are folks who get
their vehicles inspected and they wonder why some vehicles are
passing inspection that shouldn't be passing it. Do you have
any verification of the accuracy or credibility of those with
decals?
Mr. Mead. I have not done a quantitative analysis, Senator
Allen, but I have spoken directly to the people at the Otay
Mesa facility and asked that question. They said yes, they do
see a difference--the fact is that the recurring 3-month
inspection does have an effect. It is true sometimes you get a
truck in there with the decal on it and it has a safety
problem, but it tends not to be as grave as some of the others
you might find, such as no brakes.
Senator Allen. Mr. Secretary, I think you ought to be
quantifying success in whether you are doing things right in
the ongoing aspects of this, and how are you going to quantify
the safety compliance of these tractors and trailers and the
capabilities of the drivers as this goes forward.
I think this is a very ambitious program to get this all
done by the end of this year. But regardless of all of that,
how are you going to quantify it? What matrix are you going to
use to give us assurance other than there is a Mexican truck
that has gotten in a wreck and that is less per mile than it is
for United States trucks, and that sort of thing, as opposed to
waiting until there is a wreck and comparing that collision
record versus United States or Canadian vehicles. How are you
going to determine that?
Secretary Mineta. Let me take first the driver's side.
There is a commercial driver license requirement in Mexico.
Mexico is building its database so that when that driver comes
to the border, we are going to be able to have direct online
capability into the data on that driver, through the commercial
driver's license database, and be able to check it out that
way.
We will also require as they are at the border, a physical
inspection of the driver in terms of the license requirement,
so that both in terms of what Mexico is developing in its
database and improving upon it, building that database, and our
ability to get into it, I feel that we are working toward
making sure that we have driver's safety requirements built in.
Second, as it relates to the truck site, again, when you
look at the amount of traffic at the border, most of it is
drayage. Some 4.5 million trips back and forth. That 4.5
million is across the border, just back and forth. Pick up a
trailer, bring a trailer over, tractor goes back, picks up
another trailer. It is back and forth. Those opeations are
conducted by about roughly 80,000 trucks, I believe, is the
number generally.
Now, of the 80,000 trucks, roughly, I think about 63,000,
as I recall, 65,000 were Mexican trucks. And of the Mexican
trucks, I believe, something like 47,000 were inspected. So of
the trucks that are back and forth, of the Mexican trucks that
are going back and forth, we have a relatively high number
being inspected right now. That will be intensifying in terms
of what we are attempting to implement through our
appropriations request.
So that we have both on the driver's side, as well as on
the truck side, the ability to do the kind of inspections that
the arbitration panel said, ``United States, you are in
violation of the NAFTA treaty, but also United States, you can
impose your rules, regulations and laws against the Mexican
carriers coming in.'' And that is all we are trying to do is to
use those safety regulations, no more, no less, and to apply it
against those trucks coming in.
Now, I do not believe we are prepared to be able to deal
with the whole truck, whether it is coming in just across the
commercial zone back and forth, or the truck that decides to
come through that is destined for Cleveland or Chicago or New
York. Because under the NAFTA agreement, again, I don't recall
the exact dates, but I believe it said that by 1995, trucks
would be allowed to go beyond the commercial zone to within the
border of the four border states.
And then in the year 2000, January 1, 2000, I believe it
was, they would be able to go anywhere in the United States.
Since the 1995 and 2000 deadlines were not met, we are going to
be collapsing both of those to allow both commercial zone
traffic, as well as beyond commercial zone traffic to be
implemented on January 1, 2002. And we will have again the kind
of rigorous inspection of the driver and the trucks of those
long haul operators.
On the other hand, my observation has been the long haul
operators in Mexico are as good truck operators as United
States truck companies. And so my concern is really more with
the drayage type operation. We will have equal focus on the
long haul carriers. But I have found them to be very good truck
operators.
Senator Allen. Mr. Chairman, let me just----
The Chairman. It is about a 10-minute answer and Senator
Boxer has been waiting.
Senator Allen. No. 1, if you would provide us a specific
bill of analysis, legal analysis as to why you think that the
Murray amendment or any of these somehow are in legal violation
of NAFTA.
Finally, gentlemen, I think to get sufficient confidence-at
least in the Senate-to support what you are trying to do as far
as the safety compliance, you in the administration are going
to have to perform more duties than you may think are necessary
to get enough votes for this, so I----
Secretary Mineta. I am willing to step up to that if I am
given the resources to meet those requirements.
The Chairman. Senator Boxer.
Senator Boxer. Thanks, Mr. Chairman. I have to say I cannot
overstate my concern, and sometimes at hearings you feel
better, you know, after a while. You come in with a concern.
You feel better. I am feeling worse. Mr. Mead, I say to you,
you have a lovely smile, but you have got some situation to
monitor here, and we are going to be counting on to you monitor
it in the most straightforward way.
When we talk about Senator Dorgan's question about 40
inspectors and 40 investigators and Mr. Mineta says well, they
are interchangeable. If I had an accident and I go to an
insurance company and someone investigates that accident, I do
not want that guy fixing my car. It is a very different set of
skills. So let us be careful and precise.
Now, my understanding is we are currently inspecting,
Federal Government, 1 percent of the trucks, and out of that 1
percent, and you can fudge it any way, you can come up with any
number you want, and I will show you where I got that, 36
percent of those failed that inspection and Mr. Mead talks
about a truck, he couldn't bring it back over the border
because it had no brakes. Well imagine, we are only inspecting
1 percent.
And then I look at my state that is putting tens of
millions of dollars of its state money, and we talk about
unfunded mandates. This was one of the issues with NAFTA that
was raised by many of us. You know, what happens when the state
now has to fund some of the problems?
Mr. Mead, where would you be if California said today, this
is a Federal Government responsibility, we did not sign on to
NAFTA, we are out of the inspection business. Where would you
be?
Mr. Mead. I am glad you raised that. Do you know for years
on this NAFTA issue, there has been a dispute between the
Federal Government and the States?
Senator Boxer. I do not want you to get into that. I am
asking you where would you be if the state----
Mr. Mead. If California were to stop inspecting, you would
be in real trouble; there is no doubt about it. You have nice
facilities there, and we need to replicate them all along the
Southern border.
Senator Boxer. We have a situation where we are responsible
for NAFTA and we have a huge unfunded mandate on the states and
some of the states aren't stepping up to the plate. Maybe they
do not have the resources. They have other problems,
priorities. I am in no position to be critical. But this is
very discouraging to me.
Now, Secretary Mineta, you say that you recommend to the
President that he veto the bill if the Murray language goes
through. I want to read to you the description of what Murray
is, and by the way it is Murray-Shelby, Mr. Chairman. This is
bipartisan.
Language prohibits the DOT from granting operating
authority until a number of safety and compliance measures are
put in place. These measures include adequate border staffing,
inspection facilities, the ability to check the validity of
Mexican driver's licenses, vehicle registration, and to verify
insurance.
Now, I do not think this is a radical trade busting
amendment here, and I say this, if the President vetoes this
legislation, the transportation appropriation because of this,
I think he is going to be subjected to a lot of criticism and I
think it will be well-placed. We have to ensure that our people
are safe.
Even with our own truck drivers, we have problems today. A
lot of us are worried that they are working too long. My
goodness. I was at a press conference a year ago with victims,
and I say this to my colleagues, because we all do these, we
all meet the families of victims. And look in their eyes and
trucks where the drivers were tired and so on and so forth. I
have shown you the difference in the laws here. They do not
have random drug testing there. They get paid 7 bucks a day. We
have a different situation than we have in countries where we
have very similar laws. So I would hope there would be no veto
threat, but rather that we roll up our sleeves and get the work
done.
Mr. Mineta, I want to ask you this. You threatened to veto
if the Murray-Shelby language goes through. Do you threaten to
veto if the House action goes through? You did not mention
that.
Secretary Mineta. Senator Boxer, let me recap what I said,
and I apologize.
Senator Boxer. I have so little time. Can you just answer
the question.
Secretary Mineta. First of all, I misspoke. The--first of
all, it is not my recommendation about a veto. That came from
senior advisors to the President. If I said Murray amendment, I
apologize. I really meant the House language, the House-passed
bill.
Senator Boxer. Okay.
Secretary Mineta. I apologize if I said----
Senator Boxer. So in other words, the senior staffers to
the President are not recommending a veto if the Murray-Shelby
language stays. They are if the Don Young----
Secretary Mineta. I am talking about the difficulty in some
of the requirements in Murray, but the veto was regarding the
House-passed bill.
Senator Boxer. That is important. I am glad that you
clarified that because I look at the Murray amendment, I can't
imagine why anybody would veto over something I think is pretty
mild. I have a number of questions and my time is running out
so let me just before it runs out say the areas I am concerned
about.
The proposed rules for Mexican trucks require carriers to
maintain copies of their proof of insurance in all trucks
crossing the border. Do Federal inspectors check for the proof
of insurance at this time? Mr. Mead?
Mr. Mead. Yes, they do, but the carriers often just buy 1
day insurance when they are coming across.
Senator Boxer. That is very interesting.
Mr. Mead. What we would like to see, based on our work, is
an inspection of the carrier itself and their certificate of
insurance. The insurance information would be entered into an
automated database, and when a truck tries to get clearance to
come into the United States, an inspector would enter the
firm's identifying information and access the database showing
evidence that the firm has insurance.
Senator Boxer. My time is up but this has made me even more
nervous. A 1-day insurance and then by the way, only 1 percent
of the trucks are inspected. Imagine how many trucks are going
back and forth with no insurance, and wait until, God forbid,
something happens to someone we care about in our states. This
is a nightmare. We are not ready for this. We will be some day.
We are not ready for this. I am increasingly concerned. Thank
you, Mr. Chairman.
The Chairman. Thank you. Senator Stevens.
STATEMENT OF HON. TED STEVENS,
U.S. SENATOR FROM ALASKA
Senator Stevens. Mr. Secretary, I want to make sure about
this because I have a substantial disagreement over the current
version of our transportation bill from the Senator from
Arizona. Am I to understand that your statement about the veto
reference was that it applied to the House bill, but not to the
Murray-Shelby amendment?
Secretary Mineta. That is correct. I misspoke on that in
terms of the veto. The veto message, so to speak, that it
applied to the House bill.
Senator Stevens. I thank you for that and I hope that
Senator McCain's assistants will convey that to him because it
is going to be substantial scrutiny and it changes a statement
I was going to make, Mr. Secretary, because our Appropriations
Committee voted unanimously to accept the amendment that is in
the bill on the basis of the representation that was made to us
that the administration preferred that substantially as opposed
to the House version of the bill, that there was still some
items they wished to negotiate, but they did support that
amendment to go to conference.
Now, I think it is very important for us to do that, to
have that understanding of where the administration stands as
we go to the floor. But one thing that bothers me, Mr. Mead, is
as I understand it, there is a series of these areas, crossings
and I should say parenthetically as chairman of the
Appropriations Committee, I took portions of the Committee down
to the border 2 years ago and was appalled at some of the
things we saw down there in terms of lack of inspection and the
way trucks were just coming through. How many of the border
crossings--we do not have full inspection staffs. What is that
figure? There are 27 crossings, right?
Mr. Mead. 25. The example I gave about Laredo, that is
probably the busiest crossing. They do not have sufficient
coverage there for all operating hours even during the
weekdays. And on the weekends, they had none at all. So that
needs to change.
Senator Stevens. I apologize for coming in late. I had
another meeting, and I have got to leave in a few minutes for
another. But we will not get the full shot of these testimonies
today. Did any of you talk about the number of these trucks
that have been involved in accidents in our country? Do we have
that accident rate?
Mr. Mead. No. And we do not know.
Senator Stevens. You estimate that the number of Mexican
trucks operating across the border can range from 63,000 to
89,000 and that 26,000 of them were inspected at least one time
during fiscal year 2000, right?
Mr. Mead. Yes, sir.
Senator Stevens. If we have the funds that are in this bill
we were talking about, particularly the Senate version, can you
give us an estimate how much the inspections will increase? If
we approve the money that was asked for plus the additional $15
million that we have provided in the Senate version bill, do
you know how many inspections there will be, how that would
increase inspections and how many border crossings we will
cover?
Mr. Mead. We will have every border crossing covered during
all operating hours. However, the analysis has not been done to
determine how many inspections that will translate into, and it
probably ought to be done. There is also the point Senator
Dorgan raised about the number of investigators that would be
needed to perform safety reviews, which would be different from
actually inspecting the trucks at the border. I apologize for
that Senator Dorgan, I did not quite grasp the question.
Senator Stevens. My memory was when we discussed NAFTA,
that there was an understanding that these trucks that were not
inspected would not go beyond 25 miles from the border. Is that
25-mile limitation still in place?
Mr. Mead. Yes. What you are referring to is a commercial
zone, which is usually 20 miles, and in some cases, I think it
is even less than that. Mexican trucks can go in there now, but
they need operating authority to do so.
Senator Stevens. Operating authority in terms of inspection
of the system that they run, right, rather than individual
trucks?
Mr. Mead. Sir, now only individual trucks are inspected.
Senator Stevens. It is. I thought there was inspection of a
system of the organization and that they ran the trucks.
Mr. Mead. A review of a Mexican carrier is not yet in
place. That is part of the Department's proposal, and it needs
to be put in place. Right now they just inspect trucks and
drivers.
Senator Stevens. I am interested in Senator Dorgan's
comparison of the Canadian border to the Mexican border. I am
sure we have great friends on both sides of the border, but the
Canadian side is based on an understanding of the totality of
inspections on their side, as compared to the totality of
inspections on our side. We have sort of a mirror. What they
do, we do, as I understand it. Do we have that arrangement with
the Mexicans? Do they perform inspections on their side of our
trucks?
Mr. Mead. We have not seen evidence of that.
The Chairman. Evidence of it.
Senator Stevens. Are our trucks allowed into Mexico as
freely as their trucks are allowed into our country?
Mr. Mead. It is the same restriction. Our trucks do not go
into the interior of Mexico, they go down to the commercial
zone.
Senator Stevens. I am interested now in these 25 states
where they have showed up. How do we get those statistics
where, we found these trucks in 25 other states?
Mr. Mead. Because a policeman inspected them, Senator
Stevens. A policeman stopped the truck and it turned out to be
a Mexican truck operating illegally without any authority at
all outside the border states.
Senator Stevens. Did you have any of your investigations
talk about violation of immigration laws on those trucks? I
heard about some. I am wondering if you sent them up?
Mr. Mead. No, sir, I'm not familiar with that.
Senator Dorgan. Mr. Chairman, would the Senator from Alaska
yield?
Senator Stevens. I do not have any time left, I do have to
leave. I would say this to my friend, we are committed to this
amendment, Mr. Secretary, because we voted unanimously for it.
When we get to the floor, if you have some suggestions to make,
I hope you deliver them to us and I hope we do not find
opposition to something we approved on the basis of
representation that is something that the administration
favored as opposed to the House bill.
The Chairman. That's exactly why I asked that you list
those serious concerns or the conditions, and I would say in
the Committee bill. Go ahead.
Senator Dorgan. The Senator from Alaska indicated he felt
from some discussions that the administration perhaps supported
the Murray amendment coming out of the Committee. From the
testimony here, it wasn't clear to me whether they simply do
not oppose it or I guess the testimony is they would veto the
Sabo amendment.
Senator Stevens. They indicated they preferred it to the
House version of the bill.
Senator Dorgan. The reason I ask the question, does that
mean they support the Murray amendment?
Senator Stevens. That was our understanding. They weren't
overjoyed with it, but they preferred it to the House bill, and
we were told there would be some discussion about some of the
provisions that we have not had yet.
The Chairman. Mr. Secretary, on behalf of the Committee, do
you favor the Senate bill?
Secretary Mineta. No, sir. I do not.
The Chairman. Why not?
Secretary Mineta. Because of the requirements it places on
me in terms of some of the certification requirements, even in
terms of as I look at weigh-in-motion devices and scales at the
same place. I do not know why we would want to do that. Why
would we want to put weigh-in-motion devices at an inspection
station? Weigh-in-motion devices cost maybe three quarters of a
million dollars.
Senator Stevens. May I suggest, Mr. Secretary, that you get
together with the chairman and ranking member of that
Subcommittee. This bill is going to come up early next week,
and it is currently scheduled to have 1 day. It sounds to me
like it could take more than a day to explore this amendment
unless we resolve some of your objections before it gets there,
and I think we could.
Secretary Mineta. We will do that. Senator, in response to
your request about accident rates for Mexican trucks within
commercial zones, the accident rate is .07. Now, as far as I
know, there have only been 56 trucks that have gone beyond the
commercial zone into other states, and, but that is, that
determines the accident rate is .07.
The Chairman. Senator Nelson?
Senator Nelson. I will wait until the next round.
The Chairman. Senator Fitzgerald?
STATEMENT OF HON. PETER FITZGERALD,
U.S. SENATOR FROM ILLINOIS
Senator Fitzgerald. Thank you, Mr. Chairman. I want to
welcome the Secretary and the Inspector General to the
Committee. I want to compliment the Secretary. I think he has
been doing a wonderful job as the head of the Department of
Transportation and I think your experience is showing. You have
vast knowledge in a wide range of areas.
I think I just want to reiterate what Senator Stevens said.
If we could get some clarification as to the DOT's position
with respect to the Murray-Shelby amendment, maybe different
than the White House's opinion, in any respect, we ought to
iron those differences out and get some clear guidance before
we have that bill on the floor.
This past Sunday, Vincente Fox, the President of Mexico,
was in Chicago, and Senator Durbin and I had the opportunity to
talk to him about this very issue. And I do know that this is a
very important issue, and our solving it will go a long way
toward enhancing our friendship with our neighbors to the
south. I do hope that our country can comply with NAFTA, and I
think that if we can put a man on the moon or even have a
successful test of our missile defense system, we should be
able to find a way to comply with NAFTA while at the same time
having proper oversight over the safety of our trucks in this
country.
But I do not think that the safety issue should be
minimized. It is a legitimate issue. As you know, in my state
of Illinois, we had a situation where there were bribes for
commercial driver's licenses, schemes which resulted in some
trucking firms paying bribes to have inspectors from the
Secretary of State's office issue driver's licenses to people
who are not qualified--commercial driver's licenses--and we had
some serious injuries, even fatalities.
In one case, an unqualified truck driver was driving a
truck just south of our northern Illinois border with
Wisconsin, a piece fell off the truck, it hit the car behind
them, there were seven children in that car who died in the
fiery accident, and the parents survived. They lost seven kids.
So there are serious consequences that have real-life
implications if we do not ensure the safety of our trucks.
I guess I would want to ask, Mr. Mead, do you believe that
if you received the additional funding that you requested, and
that you did the things you were going to do, that that would
reasonably guarantee that the safety of Mexican trucks would be
comparable to that of United States and Canadian trucks?
Mr. Mead. Well, as you know, the Inspector General makes
recommendations. We do not administer the programs, but we made
some recommendations. I believe from the Secretary's statement
that the Department is saying that it is prepared in
substantial part to adopt them. I think this is very ambitious.
I think the administration's budget request of $88 million
extra was very much needed, and I am sure that the plus up that
the Senate provided, although it wasn't in the President's
budget request, could probably be put to good use at the
border.
Senator Fitzgerald. My understanding is that right now
Mexican long haul trucks that are headed for Canada are able to
travel through the United States, and maybe I am not informed
properly on that, but if their destination is in Canada, as
opposed to in the United States, are they able to pass through?
Mr. Mead. Technically yes.
Senator Fitzgerald. They are?
Mr. Mead. I think so.
Senator Fitzgerald. And are they doing that now?
Mr. Mead. Yes.
Senator Fitzgerald. Is there any evidence that those
Mexican trucks which are passing through the United States on
the way to Canada are less safe than our United States trucks,
or do we have any information on that?
Mr. Mead. No. No evidence.
Senator Fitzgerald. But they are driving through on their
way to Canada right now without restriction?
Mr. Mead. That is my understanding. I can't quantify that.
I don't know how much, but it is technically legal.
Senator Fitzgerald. So that is kind of a--that is a little
bit of a glitch here then. Also, my understanding is a United
States firm that owns a Mexican trucking company is able to
have its subsidiary company from Mexico drive on our highways.
Is that correct?
Mr. Mead. Yes. That carrier is considered a Mexican
domiciled carrier, with U.S. ownership. The trucks we are
speaking of today are primarily Mexican domiciled carriers,
with Mexican ownership.
Senator Fitzgerald. The bottom line, if you have the United
States firms that own Mexican trucking companies and you have
Mexican trucking companies whose destination is Canada, there
are a lot of Mexican trucks coming through the United States
right now as we hold this hearing, without restriction.
Mr. Mead. I wouldn't go so far as to quantify it. I can't
support the quantification that you just did.
Senator Fitzgerald. There would be some?
Mr. Mead. There would be some. Yes, sir.
Senator Fitzgerald. Okay. One final question, in that
accident that we had in Illinois, there was evidence that the
driver was unable to read English. And that clearly can be a
problem if you cannot read our road signs here in the United
States. Has there been any discussion about some kind of
requirement that the drivers from Mexico be able to understand
our road signs?
Mr. Mead. Yes. They are supposed to be able to do so.
Senator Fitzgerald. Okay, and that is current law now?
Current requirements?
Mr. Mead. Yes.
Senator Fitzgerald. Okay. With that, Mr. Chairman, thank
you very much.
The Chairman. Back to you, Senator Nelson.
STATEMENT OF HON. BILL NELSON,
U.S. SENATOR FROM FLORIDA
Senator Nelson. Mr. Chairman, thank you. I want to refer to
Senator Boxer's chart here and ask the two panelists if that is
an accurate comparison in your understanding of the difference
between the Mexican standards and the United States standards?
Secretary Mineta. Senator Nelson, the--those are United
States requirements, and it is true that Mexico does not have
those laws. But by the same token, once their driver or their
truck comes into the border, then they are required to comply
with United States laws, rules and regulations. And that is
what we are attempting to, since I have been there since the
25th of January, my whole effort has been to make sure that
trucks and drivers that are coming in are safe.
We could have all the laws that we might have, whether it
is on trucking or on other things, but they do not necessarily
apply in a foreign country, and so yes, that is correct. Those
are United States laws. That is the state of Mexican law, but
our laws do not apply in Mexico, but our laws do apply to their
trucks and drivers when they come in.
Mr. Mead. There have been a couple of developments in the
past year that put an asterisk on that. The logbooks, where
drivers record where they are going and how long they have been
driving, are now required of Mexican drivers, and that is an
important step because before March of 2000, Mexico did not
require them except for hauling hazardous material.
The next step would be hours of service, but at least
logbooks are required to record the time that they are driving.
We understand that they recently adopted vehicle inspection
standards. I think it is also fair to say they have made some
progress in establishing databases that record carrier
information and which drivers have commercial licenses.
Senator Nelson. Well, I think from this comparison, Mr.
Mineta, the Secretary, would understand, as well as any of us
up here having been a very distinguished member of the House,
and representing a constituency, that the American people, if
they know this and know that trucks from Mexico operating under
these standards, they are simply not going to tolerate this.
The American people, if they knew this, that Mexican trucks
were operating on United States highways with these kind of lax
or lessened conditions, you know, are going to absolutely
insist of their elected representatives that we not allow this
to occur.
Now, let me ask you, if in fact that the Congress did not
provide the adequate funding for the inspections, what would
the administration respond? Would you continue the current
implementation schedule?
Secretary Mineta. I am not sure what you mean, because we
wouldn't be able to implement anything. We do not have any,
based on the House bill, they have knocked out all the $88.2
million funding that we requested, and they adopted the Sabo
amendment which prohibits us from processing any motor carrier
applications. So based on the House bill, we have nothing to
do.
Senator Nelson. So if at the end of the day in
appropriations, it was not provided for all of the additional
inspections and so forth, would those Mexican trucks still be
allowed to enter the United States and operate on the American
highways?
Secretary Mineta. Within the commercial zone, they would
still, I believe be able to operate.
Senator Nelson. And I am sorry that I wasn't here earlier
to hear you define the commercial zone.
Secretary Mineta. 20 miles within the border.
Senator Nelson. Mr. Chairman, thank you very much.
The Chairman. Thank you, Senator Dorgan has one point of
clarification.
Senator Dorgan. Mr. Chairman, I want to go back to this
issue of inspectors because while I disagree with the
Secretary, I have great respect for the Secretary and I am
pleased that he has come today to answer questions.
The success or failure of what the administration and the
Secretary want to do depends directly on a couple of things,
one of which is having adequate resources to do the
inspections, and I made the point that the Inspector General
indicates that they have previously estimated they would need
139 inspectors to provide sufficient coverage at all crossings
during operating hours. And that there are now 58 inspectors in
place, 60 authorized, 58 in place, and that there are,
according to the Secretary's testimony, 80 additional Federal
inspectors to perform safety inspections.
But my question was, is it not the case that 40 of those 80
are investigators to do the compliance reviews and so on, if
so, if that is the case, if they are only 40 additional
inspectors, it seems to me you are short of doing the
inspections that you say are necessary in order to ensure
safety on America's roads. Mr. Mead wanted to speak to that and
I want on to another question. Mr. Mead, am I correct here in
the way that I look at these numbers?
Mr. Mead. Yes. There is money in the budget for the state
inspectors. What happened here was we did our calculation of
how many Federal inspectors you would need, inspectors, not
investigators, and the number was about 139. We made that
recommendation in 1998 based on our calculation. As you know,
we make recommendations, people are free to accept or reject
them.
The Federal Motor Carrier Safety Administration thought,
yes, we can see the point for 140, but of the 80, which is what
you are referring to, we need 40 of those as investigators,
people that would do things like safety and compliance reviews,
and the other 40 we will put right at the border. When we
learned of that, and we reflected this in our report to you, we
said, ``no'', our calculation was that we needed 139 Federal
Inspectors at the crossings to provide coverage. Now, if the
Department needs additional Federal people to do compliance
reviews or safety reviews, then they would have to provide you
an estimate of what the plus up would be to do those or which
current resources they would use to perform these reviews.
Secretary Mineta. Mr. Chairman, the--in terms of the
combination of state and Federal enforcement people, these are
inspectors, the total will be 496. Now, to put that figure in
perspective, in December 1995, there were seven Federal safety
inspectors at the border and about 45 state inspectors. So we
have gone from roughly 52 now to 496 if we get our request
approved. And I am not sure really where this division of 40
comes.
Senator Dorgan. Mr. Secretary, while you are getting that,
I mean it comes from what I had read previously to you. The--
let me also just mention that the map that the Inspector
General provided in his IG report shows that we have had
Mexican trucks in North Dakota, and yet you seem to suggest
that it is just sort of a minimum problem of having these
trucks violate the 20-mile limit. I do not know.
Secretary Mineta. I have been told there are 56 trucks in
that situation. 56 carriers.
Senator Dorgan. 56 carriers. That is a big difference. But
how on earth would we know how many trucks have come in if the
Inspector General was telling us the states in which they have
been apprehended and my point is they have been moving up in
North Dakota. I do not know at this point what's been happening
except I do not--look, Mr. Chairman, I don't think there is a
ghost of a chance of accomplishing what you want to accomplish
at the end of this year, and I just think that there is a lot
of fuzzy math being used in all of these numbers about
inspectors and compliance and so on. I am only interested in
the issues of trucker safety and I do not think there is a
ghost of a chance of accomplishing what you want to accomplish
at the end of this year.
Secretary Mineta. Well, Senator, I am trying my best to try
to put an effective program together. That is my
responsibility. So given the resources we have in terms of
money and people, and to try to--where very little had been
done in the past, I am trying to get the resources and the
people to make sure that safety, because that is our paramount
interest, that safety is adhered to, and so again, I am trying
to make sure that in terms of inspections at the border,
whenever those border crossings are open, that we in fact will
have inspectors there. To me, that is an obligation that I want
to follow really closely.
The Chairman. Very good.
Senator Nelson. Mr. Chairman? May I just ask one followup?
The Chairman. We have two other panels here.
Senator Nelson. I understand. Just a very quick followup,
Mr. Chairman, if I may. I just want to make sure that I did not
misunderstand the Secretary. Senator Murray is ready to come to
the floor, I think tonight with her transportation
appropriations bill. And in there, she is going to have either
an amendment offered or it is already going to be in the bill,
I know not which.
The Chairman. It is in the bill.
Senator Nelson. Prohibiting DOT from granting operating
authority until a number of safety and compliance measures are
put in place. And those, Senator Boxer has already articulated,
such as adequate border staffing, inspection facilities, the
ability to check the validity of the Mexican driver's licenses,
vehicle registration and verifying insurance.
Now, is it the administration's position that you do not
support that provision in the transportation bill?
Secretary Mineta. You mentioned the insurance provision,
Mr. Chairman, may I respond on that?
The Chairman. Yes.
Secretary Mineta. In the Murray language, as I recall, it
says that the insurance must be provided by an American
insurance company. There are no other laws that require that
United States companies be the insurer of a foreign entity
doing business here. And some questions have been raised as to
whether or not that is a WTO violation. I have not gotten to
the end of the story to see whether or not that in fact is
true.
But there are a number of those kinds of requirements in
the Murray--I can implement or certify to I think in terms of
driver licenses, we have the ability to get on-line with their
information system. Their system may not be as robust or as
good as ours, but I think given the time that they have had to
try to implement it, I think they have made very strong efforts
at trying to get their commercial driver's license requirements
up.
Senator Nelson. So your answer is there are parts that you
support. There are parts that you do not support, but when
confronted with how we will be voting, the administration is
opposed to the provision included within the transportation
appropriation, is that correct?
Secretary Mineta. Because of the certification requirement
on me. You know, I----
Senator Nelson. Okay. I do not want to take the time of the
chairman.
The Chairman. We have got to move on. Senator Boxer.
Senator Nelson. I just want to add that I think, Mr.
Secretary, you are one of the people in government that I
admire most and I think that policy as articulated by the
administration is clearly out of step with the American people.
The Chairman. Senator Boxer.
Senator Boxer. Mr. Chairman, I will be very fast here.
Under the administration's proposed rules, Mr. Mineta, for
allowing NAFTA trucks access, offenses committed by NAFTA motor
carriers call for letters to be sent to the company that they
work for, but for the same violations, United States drivers
are subjected to fines, suspension of operating authority, and
even criminal penalties.
Now, how is this a level playing field for United States
drivers which you say that you support? How is it a United
States, how are United States drivers in a level playing field
situation when if they have an offense, they are subject to all
kinds of fines and revocations and all you need to do is send a
letter to the company?
How could you stand behind that? I don't understand.
Secretary Mineta. Well, they will be, first of all, subject
to the same fines and violations. When you added operating
authority, I am not sure how we impact on the operating
authority of the carrier through a driver violation. On that, I
would have to take a look at it. But in terms of fines,
penalties, those are, would be meted out.
Senator Boxer. Where is the paper on that because the paper
we saw is quite different. Do you have paper where you made
this recommendation? Is it equal to the truck drivers in
America, exactly equal, the same kind of penalties, because we
have not seen that information.
Secretary Mineta. Let me get it for you, but as far as I
know----
Senator Boxer. Where is it? Where would I find that
information?
Secretary Mineta. In May, we proposed rules. They were in
the Register. The comment period has now closed on those rules,
but in that proposed rulemaking, that was in there.
Senator Boxer. So you are saying there will be equal
penalties for the Mexican driver as there are for the American
driver, and I have yet to see that, so I look forward to
reading that rule and I will do that during the next panel.
Secretary Mineta. We will get that to you.
The Chairman. Secretary Mineta, you can tell by the
question, what we did in the Appropriations Committee, we have
worked very closely with your Department of Transportation and
our staff here at the authorizing Committee and for example,
with respect to insurance, a requirement that they be based in-
country, in the United States, licensed in the United States is
required by Canada of us and us from Canada, and you got that
information that there had to be a United States company
license to cover that Mexican carrier.
We got that from your department, so let us get together
this afternoon here and with your department and outline the
various points in the Shelby-Murray amendment because we will
be debating it and the whole intent that was passed out
unanimously from our Appropriations Committee is to present a
bill that the President would sign. We are not trying to be
confrontational. It is very interesting and amusing in a sense.
Our differences this morning is not with Mexico. It is with us.
Thank you very, very much.
Secretary Mineta. I think I want to thank you as well, Mr.
Chairman. But no, it's----
The Chairman. You all both have been very helpful to the
Committee.
Secretary Mineta. It is always been my pleasure to be
before this Committee and to be with my colleagues from the
House, as well. I never had the opportunity to serve with you,
Senator, but you know, in terms of the chairmanship of this
Committee, your stewardship has been great and so I appreciate
your leadership.
The Chairman. You have been admired by all of us on the
Senate side for years. So thank you very, very much. Will the
next panel come forward, please, the next two panels. We have
Captain Steve Vaughn, the president of the Commercial Vehicle
Safety Alliance, James P. Hoffa, the general president of the
International Brotherhood of Teamsters, Duane Acklie, the
chairman of the American Trucking Associations, Edward Emmett,
president of the National Industrial Transportation League, Ms.
Joan Claybrook, the president of Public Citizen, and Mr. Peter
J. Pantuso, president and CEO of the American Bus Association.
Let us try and do it as orderly and as quickly as we can.
The reason I am combining the two panels is so that we will get
their full statements in before the Committee before we have
this roll call.
We welcome you all and we really appreciate your patience
and understanding of the situation we have got here this
morning. All of the full statements will be included in the
record and we will ask five or six, at least a half hour there,
to try to summarize within 5 minutes your particular
presentation. We will start here on the left with Captain
Vaughn.
Captain Vaughn. Thank you.
The Chairman. Move the microphone so you can be heard,
Captain.
STATEMENT OF CAPTAIN STEVE VAUGHN, PRESIDENT, COMMERCIAL
VEHICLE SAFETY ALLIANCE
Captain Vaughn. Thank you very much, Mr. Chairman. My name
is Steve Vaughn and I currently serve as the president of the
Commercial Vehicle Safety Alliance. Thank you for allowing me
to testify on behalf of CVSA.
CVSA represents law enforcement agencies in all 50 states,
Canadian provinces, and Mexico. If I may, Mr. Chairman, I would
like to submit a written statement for the record that
supersedes the statement by CVSA on Monday, July 16th, 2001.
Technical changes were made to Section 4 of our previous
submission, and I will give that to the Committee.
Chairman Hollings. Move that microphone a little bit
closer, please.
Captain Vaughn. How is that?
Chairman Hollings. Go ahead. That is much better.
Captain Vaughn. I will offer you today both through the
testimony today and through our written statement CVSA's
perspective on the most recent border plan for consideration
that has been addressed in a very comprehensive manner last
week by the Senate Appropriations Committee. Also I believe
that our written statement addresses the questions and concerns
that were discussed here earlier by this Committee in the
earlier testimony.
Furthermore, I will discuss the approach the Commercial
Vehicle Safety Alliance has recommended since the issue has
become a high priority this year. And last, I will touch upon
the rulemaking recently proposed by the Department of
Transportation.
CVSA offers its support and assistance in the directive of
the Appropriations Committee that a full safety compliance
review of Mexican carriers be conducted before entering the
United States However as a practical matter, we suggest that a
different approach also be considered.
As I will shortly point out in more detail, conducting case
studies is one of the initiatives CVSA recommends in our plan.
We think this will better serve the intended results of this
specific directive as well as many of the other provisions. We
have studied these provisions of the Appropriations Committee
specifying a determination of the appropriate level of
inspectors at the border and their on-duty requirements, as
well as the level of other infrastructure facilities. We urge
that serious consideration be given to limiting the number of
openings at the border crossings designated by each state as a
commercial motor vehicle crossing.
Almost 96 percent of all commercial vehicle traffic occurs
at 10 of the 27 southern border crossings. By phasing in the
opening of the border and limiting commercial traffic to the 10
crossings, a more realistic determination of the need for full-
time staffing and other infrastructure requirements can be
made. Just as important in the short term, it will be easier
for both the United States DOT and border state enforcement
agencies to better allocate and concentrate resources where
they are most needed.
As I already indicated earlier this year, when the NAFTA
issue rose to the forefront, CVSA developed a plan to address
this issue. It is designed to gather information on and educate
those carriers that seek authority to do business throughout
the United States. In all of the NAFTA discussions in recent
years, there has been little, if any, data collected on these
carriers.
This lack of information with respect to Mexican carriers
is largely due to the fact that one, until recently there have
been very few safety regulatory requirements on Mexican
carriers which would be comparable to those placed on carriers
in the United States and Canada. Two, there are a limited
number of personnel trained and continually performing
oversight functions in Mexico. And three, the current motor
carrier safety information infrastructure has not been in place
long enough to capture and record the results of the oversight
being performed by the Mexican Government.
The key elements of our plan are to, in conjunction with
Mexico, prepare an analysis of the Mexican government's current
and planned safety regulations, policies, procedures and
penalty structures as related to the oversight of the
commercial vehicle industry.
In-depth, 1-day case studies on the Mexican motor carriers
seeking cross-border authority. These onsite visits in Mexico
will include the evaluation of company safety management
practices, review of crash records, knowledge and compliance
with United States regulations, vehicle inspections, driver
selection and training, dispatch operations, maintenance
programs, drug and alcohol testing programs and overall company
management--many of the elements that are contained in
compliance reviews that were addressed earlier.
Most importantly, this will be done jointly with the
Mexican government officials and this can serve as a training
for them as well, as they have sought our assistance.
Conduct CVSA Inspection Familiarization Seminars or similar
seminars at strategic locations across Mexico, and to be
coordinated with the government and industry associations.
Develop educational kits for the motor carriers and drivers
which can be provided during case studies, inspection seminars
and roadside inspections.
Develop options for technology implementation. In addition,
to the tools available, which were mentioned by Mr. Mead, we
can use the CVSA decal which we apply in California as a means
to award vehicles that are inspected and found not to have any
critical safety defects.
Create a database for recording and managing the
information from the above activities. This information can be
fed into the Motor Carrier Management Informational System
known as MCMIS so that both Federal and state enforcement
officials in both Mexico and the United States have access to
the data.
Mr. Chairman, it is important to recognize that this
approach, which CVSA is presenting, will allow the existing
institutional and technology infrastructure to be used to
facilitate operations without having to make major changes to
policy, procedures, legislation, or expend a large amount of
resources. Equally important is that these activities are
front-loaded so that we can have information to make more
informed decisions on what to do and what not to do.
This is extremely critical since our member agencies are
implementing commercial vehicle safety programs based on
carrier performance. CVSA is uniquely qualified to be a lead
partner in carrying out this plan with our mission and goal to
foster uniform international commercial vehicle safety
standards.
We appreciate the efforts made by the Federal Motor Carrier
Safety Administration in issuing its rulemaking. However we
have serious reservations about this approach and confining
NAFTA planning to rulemaking alone. It precludes the necessary
cooperation and partnership with the states and with groups
such as CVSA that can be of great assistance in this effort.
We also have concerns about DOT's proposal. It places
almost the entire emphasis on state enforcement activity along
the border and thus a greater burden on state inspectors
throughout the United States and Canada. Our detailed analysis
and concerns about the proposed rules have been filed in the
docket.
We hope that Secretary Mineta will stress to FMCSA the
importance of a cooperative, true partnership approach on the
NAFTA issue. We believe that provided with the proper direction
and authority, by working in a cooperative fashion, we can keep
our commitment to Mexico, provide the appropriate safety
assurances to the traveling public, and limit the operational
impacts. Thank you, Mr. Chairman, for the opportunity to speak
before this Committee and I will answer any questions you might
have.
[The prepared statement of Captain Vaughn follows:]
Prepared Statement of Captain Steve Vaughn, President,
Commercial Vehicle Safety Alliance
I. Introduction
My name is Steve Vaughn, and I currently serve as the President of
the Commercial Vehicle Safety Alliance (CVSA). I am also a Captain with
the California Highway Patrol presently serving as the Commander of the
Motor Transport Section Thank you for holding this hearing and for
inviting me to testify on behalf of CVSA and the State of California.
CVSA is an organization of commercial vehicle enforcement agencies
and industry representatives in the U.S., Canada, and Mexico. It's
mission is to achieve uniformity, compatibility and reciprocity of
commercial vehicle inspections and enforcement activities throughout
North American through effective motor carrier, driver, vehicle, cargo
safety standards, compliance, education, and enforcement.
To briefly highlight some of our accomplishments since we were
organized in 1980, we point to the development of the North American
Uniform Inspection Standard; our internationally recognized inspection
sticker that is awarded to commercial vehicles that are found to be
defect free which serves as an effective roadside screening process;
our uniform Out-of-Service Criteria; a complete training course and
certification program for over 7,500 inspection officers in North
America as well as standards for maintaining certification; uniform
inspection procedures for vehicles transporting spent fuel and high
level radioactive and transuranic waste; uniform cargo tank inspection
procedures, and uniform bus inspection procedures.
While the Motor Carrier Safety Assistance Program (MCSAP) through
its grant program to the states serves as the underpinning of a
national commercial vehicle safety program, CVSA is the organization
responsible for the uniform practices and procedures of this both
national and international inspection and enforcement program. Without
CVSA, the MCSAP program would not be the success that it is today.
Mr. Chairman, there are a wide range of issues with respect to
NAFTA that I know you and other Members of the Committee want to
discuss today. To assist with today's hearing, we have divided our
comments into three parts which we believe should be considered. First,
we will comment on the provisions of the very comprehensive NAFTA plan
of the Senate Transportation Appropriations bill passed by the
Appropriations Committee last week. Secondly, we will describe the
approach to the NAFTA issue that CVSA as an organization has
recommended since this issue rose to the forefront at the beginning of
this year. Thirdly, I will describe in some detail how California has
been handling the NAFTA issue since the early 1990's. As you know, my
home state has been anticipating the opening of the border for some
time and has committed significant state resources to the NAFTA effort.
We certainly appreciate the fact that the members of this
Committee, the Senate Appropriations Committee, and indeed, all members
of Congress want to be sure that the Mexican trucks that cross the
border to do business throughout this country are safe and meet U.S.
standards. We view the current process of debate and discussion on how
to deal with this important issue as a constructive process. We are
confident that in the end a final border plan will be produced that
satisfies everyone's concerns and that will be fair to the United
States and Mexico. As the leading safety enforcement association in
North America, we pledge our cooperation and support to make this
happen.
II. Senate Appropriations Committee Plan
Our review of the key provisions in the Appropriations bill dealing
with NAFTA is as follows.
A. Safety Audits
With respect to the requirement of a full safety compliance review
of a Mexican carrier on site before entering the U.S., we would suggest
that FMCSA's effort should begin with the current drayage operations
(those carriers who are now conducting drayage operations and are
applying for the additional authority to go beyond the commercial
zones) because they are carriers that have already agreed to comply the
Federal Motor Carrier Safety Regulations. Thus, they should be expected
to already know U.S. safety requirements and have the supporting
documentation and evidence with respect to drug testing procedures,
maintenance programs, driver selection and training and all other major
items that are checked when a compliance review is done on a carrier in
the U.S. We offer our assistance in conducting these reviews.
The information and data gathered from these audits should be very
helpful in determining an overall border enforcement plan both in the
short and long term.
With respect to this provision, we offer one technical correction.
There are only three U.S. carrier rating levels: satisfactory,
conditional, and unsatisfactory.
B. Driver License Verification
With respect to the requirement that Federal and State inspectors
verify electronically the status and validity of the license for each
driver of a Mexican motor carrier commercial vehicle, we believe this
would be too burdensome on inspectors, result in excessive and
unnecessary bottlenecking at the border, and would not sufficiently
accomplish the intended affect. We recommend that the license check be
done as a part of the complete vehicle and driver inspection process,
rather than as a separate action. The purpose of this license check
should be to determine the validity of the Mexican driver's license.
C. Distinctive DOT Transportation Number for Mexican Carriers
We suggest that the purpose of assigning such identification number
would be to enforce all Federal Motor Carrier Safety Regulations, not
just the U.S. hours-of-service regulations.
D. Requirement That State MCSAP Funded Inspectors Check Violations of
All U.S. Federal Regulations
We recommend that this provision be clarified to specify that these
inspectors only check for violations of Federal Motor Carrier Safety
Regulations (FMCSR) or those adopted by their home state that are
compatible to the FMCSR. Enforcement of other federal regulations is
the responsibility of the appropriate federal agency.
E. Use of Weigh-in-motion (WIM) Systems at All Border Crossings
As much as we can appreciate the intent and purpose of this
provision, after careful consideration, we would propose limiting such
requirement to those crossings which have been designated by the state
as commercial motor vehicle border crossings.
F. Proficiency Examination Requirement for Foreign Motor Carriers as
Well as New Carriers in the U.S.
The term ``proficiency'' should be clearly defined.
G. New Regulations for Training and Certification of Motor Carrier
Safety Auditors
We actively supported inclusion of this provision in the Motor
Carrier Safety Act of 1999 and support going ahead with a rulemaking
process as soon as possible as required in the Senate appropriations
bill.
H. Establishment of Standards for Determining the Appropriate Number of
Federal and State Inspectors at the Border and the On-duty
Requirements for These Inspectors
We understand the intent of Congress with respect to these issues
and after careful deliberation with our border state members, we
suggest that very serious consideration be given to limiting the
opening of the border to Mexican carriers, at least in the first phase,
to those crossings which have been designated by the state as
commercial motor vehicle border crossings (2 in California, 1 in
Arizona, 1 in New Mexico, and 9 in Texas). We think this is a way to
more realistically both determine and fulfill the need for full time
staffing as well as all other adequate infrastructure requirements at
the border. Furthermore, we believe the individual border states should
be permitted flexibility in determining their staffing needs.
I. Inspector General Certification
Finally, we support DOT Inspector General certification of all
important safety measures as identified in the appropriations bill
relative to the opening of the border.
III. What CVSA's Approach to NAFTA Has Been
A. NAFTA Border Issue Requires Information and Education First
A fundamental approach when attempting to address the issue of
transportation safety, regardless of mode, or whether national or
international traffic, is to gather enough information so an accurate
assessment of the necessary actions can be determined . This couldn't
be more true than when faced with the challenge of assuring that
Mexican trucks and buses that cross the border to do business
throughout the United States are safe. Yet even though NAFTA has been a
major topic of discussion over the last several years, there has been
little, if any, information on the safety fitness of such carriers. The
safety fitness of the Mexican operators currently doing business and
being inspected along the borders today in the commercial zones may, or
may not, be indicative of operators that may engage in long haul travel
into the U.S. once the border is opened. We believe it is necessary to
try and obtain the facts with respect to these carriers before the
border is opened through a plan I will shortly describe.
This lack of information with respect to Mexican carriers is
largely due to the fact that: 1) there have been few safety regulatory
requirements placed on the Mexican industry which would be comparable
to those placed on carriers in the United State and Canada until
recently; 2) there are a limited number of personnel trained and
continually performing oversight functions in Mexico; and 3) the
current motor carrier safety information infrastructure has not been in
place long enough to capture and record the data resulting from the
oversight being performed by the Mexican government.
In addition to obtaining this needed information, we must at the
same time lend our hand to help educate the Mexican carriers.
Therefore, our strategy can be summed up as ``gather information, plan,
and educate''. This strategy has been the hallmark of CVSA's approach
to all safety challenges since it was created more than 20 years ago.
It has been the key ingredient in the success we have had in getting
not only all of the state jurisdictions in this country, but also, all
of the Canadian provinces to agree to uniform and reciprocal North
American enforcement standards and procedures. We have every reason to
believe that this approach will succeed with Mexico as well.
Earlier this year CVSA developed a plan to specifically implement
this overall strategy. It's key elements are as follows:
In conjunction with Mexico, prepare an analysis of the
Mexican government's current and planned safety regulations,
policies, procedures and penalty structures as related to the
oversight of the commercial vehicle industry.
Conduct 1-day ``Case Studies'' (audits) on the Mexican motor
carriers seeking cross border authority. These on site-visits
in Mexico will include the evaluation of company safety
management practices, knowledge and compliance with U.S.
regulations, vehicles inspections, driver selection and
training, dispatch operations, maintenance programs, and
overall company management. These ``Case Studies'' would be
conducted on at least a representative number of those carriers
(currently believed to number approximately 200 in total) that
have applied for authority to operate in the U.S. beyond the
commercial zones. Most importantly they would be conducted
jointly with Mexican government officials.
Conduct CVSA ``Inspection Familiarization Seminars'' at
strategic locations across Mexico, to be coordinated with the
Mexican government and CANACAR, CANAPAT, CONATRAM, and ANTP.
Develop educational kits for motor carriers and drivers
which could be provided during the case studies, inspection
seminars and roadside inspections.
Develop options for technology implementation that will
facilitate freight and passenger movements across the borders
and provide incentives for deployment.
Create a database for recording and managing the information
from the above activities. This information can be fed into the
Motor Carrier Management Information System (MCMIS) so that
both federal and state enforcement officials in both Mexico and
the U.S. have access to the data. This will provide the basis
for determining what the nature of high-risk Mexican motor
carriers may be and to develop whatever appropriate roadside
enforcement practices may be necessary at the border as well as
in this country.
A more detailed description of the CVSA plan is attached at the end
of this statement.
CVSA believes this plan can be implemented on a timely basis. It is
possible for case studies to be done on a significant number of Mexican
carriers in 60 to 90 days.
We feel that as an organization CVSA is uniquely qualified to be
the lead partner in carrying out this plan. We are an international
organization with members in Mexico and know how to approach matters
from an international perspective Mexican government officials are
familiar with and have participated in CVSA activities and programs.
The case studies would be performed by a team of at least four people:
2 U.S. CVSA state inspectors, 1 FMCSA inspector, and a minimum of one
representative of the Mexican government. We believe the CVSA plan will
be more acceptable to the Mexicans than if it were to be solely
presented to them as a plan of the U.S. Department of Transportation
alone.
B. The NAFTA Border Plan Cannot Just Be Confined to Rulemaking Alone
As you are aware, the U.S. DOT has issued three recent notices of
proposed rulemaking on NAFTA border issues. We have reservations about
having so rigidly confined this process to rulemaking alone because
this approach does not allow for the constructive and open dialogue
necessary to address all of the safety concerns that are being
expressed at today's hearing. To the best of our knowledge, the U.S.
DOT did not consult or meet with key groups and organizations in this
country, including CVSA a major safety enforcement partner, to obtain
input on dealing with the NAFTA issue before assuring the current
rulemaking. Certainly a rulemaking is not necessary to implement the
key elements of the CVSA plan I have just described. To advance the
cause of safety and to promote free and safe trade with our friends to
the south, CVSA strongly believes that it will take cooperation from
U.S., Canadian and Mexican federal government agencies, as well as
state and provincial government agencies and industry. Safety is the
responsibility of each of these groups and information sharing is
critical to advancing the cause and ensuring the utmost contribution by
each group.
C. An Analysis of the Current DOT Proposed NAFTA Rules
While CVSA recommends taking a proactive approach and identifying
potential issues before the border opens, DOT suggests conducting
similar activities after the border opens and places a greater burden
on state inspectors. We believe that by conducting the research before
the border opens, and by limiting border crossings, either by carrier
or border locations, we can enhance safety on our highways.
To subject the Mexican carriers to a cursory paperwork review
process at the border as the DOT proposes to be followed by intensive
roadside monitoring through the inspection process after they commence
operations throughout the United States does not reflect proper
priority in assuring safety, nor does it adequately address the issue
of safety compliance.
In addition, the DOT proposal prescribes ``expedited action'' to be
taken against Mexican carriers operating in this country who do not
meet seven criteria established in this rulemaking. The expectation by
DOT is that the seven items will be identified by enforcement personnel
during roadside inspections. In all seven cases, these items cannot
currently be established at the roadside. Most of these criteria are
violations that are discovered only during traditional Compliance
Reviews done face to face with carrier management and at the carrier's
place of business, not during roadside inspections. Drug testing is an
excellent example. Review of detailed information at the carriers place
of business establishes that the carrier has met, or did not meet,
federal requirements. In addition, the ASPEN software and other systems
such as the Inspection Selection System used by roadside enforcement do
not provide the inspector with the necessary information to assure
compliance to the established criteria.
D. Current State of Readiness at the Border
Much of the discussion about NAFTA to date has been about adequacy
of resources at the border including both inspectors and the
infrastructure to support inspection activities. Progress is being
made. My own state of California has certainly made a special effort in
this regard which has been ongoing for many years and I will speak in
more detail about California's efforts shortly. California's plan
through the use of the CVSA inspection sticker ensures that every
vehicle that crosses the border is inspected, at a minimum, once per
quarter. The other border states are certainly making every effort to
strengthen their resources. At this point, I will again put an option
on the table we suggested in our comments on the Senate appropriations
plan, and that is to initially open the border at only those crossings
which have been designated by the state as commercial motor vehicle
crossings.
Although the DOT and CVSA plans differ in timing and detail, the
common element is a higher level of enforcement oversight at least in
the short term. No matter what plan this Committee and the Congress may
finally decide is appropriate, we must realize this is a one-time plan
to deal with a very special set of circumstances. At some point in time
after the border is open, it is certainly our goal and belief that
operations between Mexico and the U.S. will be no different than our
current operations with Canada. In the short term, we believe an
approach that best ensures safety in this country, but one that is fair
to the Mexican carriers, and provides support to the effort of the
Mexican government officials can best benefit all involved parties.
That is why our emphasis on education and outreach to them is such an
important part of our plan and must go hand in hand with the on-site
carrier reviews we recommend, or the safety audits recommended in the
Senate Appropriations plan.
IV. California Commercial Motor Vehicle Safety Program NAFTA
Preparation Overview
Since enactment of the NAFTA treaty, the Governor, and the
Business, Transportation and Housing Agency (BT&H) of California, have
continually supported the CHP's commercial vehicle inspection program.
Recognizing that additional facilities, personnel, and equipment would
be necessary to prepare for additional Mexican commercial motor
vehicles crossing the border, the Administration approved and funded
the addition of these resources.
BT&H, in anticipation of the implementation of NAFTA, directed the
California Highway Patrol to begin the construction of the Calexico and
Otay Mesa Inspection Facilities at a combined cost of approximately
$32.5 million. The Otay Mesa Inspection Facility opened in May 1996 and
the Calexico Inspection Facility opened in December 1996. Their hours
of operation mirror the hours of operation at the US Customs commercial
port of entry. These facilities provide a means for commercial vehicle
inspection personnel to immediately identify and correct problems with
drivers and commercial vehicles as they cross the border into
California.
The CHP maintains a compliment of nine commercial officers and 15
commercial vehicle inspection specialists at the Otay Mesa Inspection
Facility. Five commercial officers and 9 commercial vehicle inspection
specialist have also been assigned to the Calexico Inspection Facility.
In addition, the Governor has allocated funding to allow the CHP's
Rainbow Inspection Facility (seven officers and 12 CVIS) and San Onofre
Inspection Facility (11 officers and 20 CVIS) to expand their hours of
operation and to enforce the NAFTA provisions of the Commercial Zone.
Furthermore, six Mobile Road Enforcement officers are assigned north of
the Commercial Zone (San Diego, Orange, and Imperial Counties) to
enforce these regulations.
The California Highway Patrol offers Mexican Inspectors, Motor
Carrier Specialists and trucking industry representatives with the
opportunity to observe our inspection techniques. With the approval of
the Administration, the CHP continues to provide Level 1 commercial
vehicle inspection training to Mexican enforcement personnel at the
Calexico and Otay Mesa Inspection Facilities, the Winterhaven Platform
Scale, and at Tijuana and Mexicali.
The California Highway Patrol has continued to provide support to
the Mexican trucking industry by both providing and participating in
training seminars and industry events. Furthermore, industry support
has been provided by maintaining an effective liaison with Mexican
commercial vehicle enforcement representatives.
With the support of BT&H, the California Highway Patrol continues
to confer with governmental agencies of the United States and Mexico in
an attempt to link their computerized Commercial Driver License and
Commercial Vehicle Registration databases, while retaining the security
of each country's databases.
Thanks in large part to the Administration's redirection of state
funds, the CHP's commercial vehicle safety program has helped bring
about an improved safety compliance rate of Mexican commercial vehicles
operating in California. In fact, their out-of-service rate is
comparable to US commercial vehicles entering California through the
Otay Mesa and Calexico Inspection Facilities. Since 1999, the out-of-
service rates for both country's commercial vehicles have remained
consistently lower than the other border states. Mexican motor carriers
want to comply with federal and state safety standards and try to
maintain their vehicles to avoid paying higher US wages for towing and
vehicle repair. However, some Mexican motor carriers understandably are
experiencing difficulty interpreting the intricacies of federal and
state regulations.
In 1996, the CHP developed a conversational Spanish training course
with emphasis on commercial vehicle nomenclature. The class was
provided to all field commercial enforcement officers and commercial
vehicle inspection specialists. Departmental personnel also provided
train-the-trainer training to law enforcement officers from Arizona,
New Mexico and Texas
Enforcement Program
In 1991 Assembly Bill (AB) 1355 was enacted in California which
prohibits foreign based MCs from operating in California beyond
specified commercial (border) zones without a Certificate of
Registration (CR) issued by the ICC. The provisions of AB 1355 enacted
California Vehicle Code (VC) Sections 34517 (Commercial Zones: Vehicles
from other Countries) and 22651.4 (Foreign Commercial Vehicles:
Impoundment).
The CHP conducts on-and off-highway commercial vehicle and driver
inspection throughout the state. The CHP's commercial program currently
consists of nearly 1,000 personnel involved in full-time enforcement of
commercial vehicles. Approximately 240 officers and 280 non-uniformed
Commercial Vehicle Inspection Specialists (CVIS) are dedicated to 19
Inspection Facilities and 34 platform scales statewide. An additional
250 non-uniformed Motor Carrier Specialist (MCS) are dedicated to the
off-highway inspection of both truck and bus terminals. Finally,
approximately 150 officers are funded each year by the Governor and are
deployed as Mobile Road Enforcement officers throughout the state.
Through the efforts of these dedicated individuals, California
commercial enforcement personnel continue to conduct nearly 22 percent
of all roadside inspections. Governor Davis, BT&H Secretary Maria
Contreras-Sweet, and Commissioner Dwight Helmick of the CHP have vowed
their continued support for improving the safety on California highways
and assuring that California is ready for the opening of the border
with Mexico once the NAFTA issue is resolved.
Thank you for the opportunity to present this testimony today.
Statistics
The Chairman. Thank you very, very much, Captain Vaughn.
Mr. Emmett.
STATEMENT OF EDWARD M. EMMETT, PRESIDENT, THE NATIONAL
INDUSTRIAL TRANSPORTATION LEAGUE
Mr. Emmett. Thank you Mr. Chairman and Senators. I am Ed
Emmett. I appear this morning as president of the National
Industrial Transportation League. The League is an organization
that dates back to 1907 which represents the shippers of
freight of all kinds using all modes of transportation, both
domestic and international.
In other words, League members are the customers of the
trucking industry. And even though all modes of transportation
are used, there is no question that the vast majority of
shippers and receivers view trucking as the key to successful
operations. Quite simply, trucking is the life line of our
economy.
In recent years, there have been some major changes in the
world of shippers and receivers in the way they do business,
and I think that comes into play today, certainly seeing some
of the confusion that came out of the earlier panel. We have in
place what are called just-in-time delivery systems, where
shippers and receivers, retailers and manufacturers of all
types, rely on timely delivery of products from source to
destination. Along with that, we now have a globalization of
commerce, much more international commerce, and of course NAFTA
is a part of that.
The combination of those two makes it absolutely critical
that we have trucking capacity from the United States to Mexico
and vice versa. Safe, efficient trucks going to and from Mexico
need to be part of the equation of the United States economy. I
must say at this point, and I believe it was Senator Allen who
raised the issue earlier, as far as shippers and receivers in
the United States are concerned, the only efficient truck is a
safe truck. The absolute worst thing that could happen to a
shipper or receiver would be to have their shipment sitting out
of service on a truck somewhere rather than getting there just
in time as the delivery system requires.
So, we are absolutely committed to having safe, efficient
operations. Having said that, we look forward to working with
the Congress and the Administration and any of the other groups
here to be sure that that system gets put in place. However, we
believe strongly that simply banning all Mexican trucks is the
wrong way to go.
We much prefer rigorous enforcement. Senator Boxer's chart,
or table, does point out the difference between what occurs in
Mexico and what occurs in the United States, but it is our
clear understanding that any Mexican truck and Mexican driver
operating in the United States will have to comply with U.S.
laws, will be subject to the same penalties as U.S. drivers and
so we take that as a given and if that needs to be clarified,
then we certainly want to work with you to clarify that.
The reason a simple ban, we believe, would be
inappropriate, is that safety is better addressed directly
rather than through economic means. It is better to have the
inspectors in place, make sure the inspections occur, and deal
with it that way. The second reason is that a total ban
produces the maximum economic harm for our members, because it
says there will be no trucks available to do that just-in-time
delivery between the United States and Mexico. So, we would
much prefer a system that allows at least the good operators in
Mexico into the country.
Third, and this follows on the second, to make a blanket
judgment against all Mexican truckers, is I know it may sound a
little harsh, but it really borders on racial profiling of a
whole nation. Because there are some bad apples, no matter what
that number is, I do not think it is fair to tell a Mexican
truck owner, the owner of a company who may run an absolutely
perfect operation, maybe even one of those operators who is
going to Canada that was mentioned earlier, it is absolutely
unfair to tell them that even if they are willing to meet all
the criteria you put before them that just because they are
Mexican, they are not allowed to operate in the United States.
That just doesn't strike us as right.
And fourth, as has been mentioned, and I certainly am not
an international lawyer so I do not want to get into this too
far, but to continue the ban does seem to violate NAFTA. We
believe that the measures of NAFTA need to be fulfilled fully.
With that in mind, Mr. Chairman, I know you have a long day
and I keep hearing about votes and further meetings. I am
actually going to give you back a little bit of your time and I
will be happy to answer any questions, but the League stands
ready to work with you and the Administration in any way
possible. And I was particularly pleased to hear you, Mr.
Chairman, at the beginning, talk about Senator Murray's
approach as being preferable, I believe in what you said, and
that is what we wanted to come say, even though some of the
specifics might need to still be worked out.
[The prepared statement of Mr. Emmett follows:]
Prepared statement of Edward M. Emmett, President, The National
Industrial Transportation League
Good morning, Mr. Chairman and members of the Committee. I am Ed
Emmett, president of The National Industrial Transportation League.
The League is a voluntary organization of shippers conducting
industrial and commercial enterprises in all States of the Union and
all over the world. Formed 94 years ago, the League is the nationwide
organization representing shippers and receivers of all types of
commodities, using all modes of transportation, including trucks, to
move their goods in intrastate, interstate, and international commerce.
The League representatives of member companies are transportation
and logistics professionals, the people who design the distribution
systems for their products, arrange for their transportation, and pay
the transportation bills. Some of our member companies also own and
operate their own truck fleets. Therefore, the League is vitally
interested in this important issue.
The League has a long history of supporting highway safety for the
general public as well as for commercial traffic. As customers of
trucking companies, League members rely on freight being delivered in a
safe manner. The League is also aware of the need for efficient
transportation if the U.S. economy is to realize its potential. Make no
mistake, though, transportation safety and efficiency are not counter
forces. Unsafe transportation is the ultimate inefficiency.
Given that background, the League is very concerned with provisions
in the fiscal year 2002 Department of Transportation Appropriations
Bill, recently passed by the House, that could delay or prohibit the
full implementation of the North American Free Trade Agreement (NAFTA)
with respect to trucking.
On July 6, the League sent a letter to the Senate Appropriations
Committee, strongly urging the Committee to delete the House language
that prohibits Mexican trucks from being granted operating authority
and to restore the funding needed to ensure effective inspections for
U.S.-Mexico cross-border trucks. Our goal was to address the issue of
truck safety directly, rather than through protectionist measures
masquerading as safety. Over the years, special interests trying to
protect their market share have used ``safety'' arguments to keep
competitors away. Such arguments have proven false in the past, and, I
believe, will be proven false in this instance.
Please keep in mind that each truck entering the U.S. from Mexico
must comply with every U.S. safety regulation, both those relating to
the truck and those relating to the driver. Full implementation of
NAFTA will not change that. The League will be the first to argue for
strong truck safety provisions. However, the House provision is not
about safety. It is protectionism.
If Congress really wants to address international truck safety,
then we would support DOT having the additional funding it has
requested to inspect trucks and drivers at the U.S.-Mexican border.
That is the way to protect the American driver from unsafe trucks and
drivers, not by refusing to let trucks into the country, whether or not
they are safe. DOT-funded safety inspectors are the first and best line
of defense against those that are unsafe, whether they be Mexican,
Canadian, or U.S. The more inspectors there are and the better tools
they are given, the more trucks and drivers they can inspect and decide
whether to put out of service.
I have stated that the proposed ban on Mexican trucks is
protectionism. That is true, but I fear it could be worse than that.
None of these arguments were raised about Canadian trucks. Why not?
Even if there is a higher percentage of Mexican trucks that are deemed
unsafe under U.S. laws, why choose to punish all Mexican truckers?
Those who have supported this all-encompassing approach would never
support enforcing traffic laws against one race of people differently
than against others. That would be considered ``racial profiling.'' If
a ban on Mexican truckers is put into effect, will that not be viewed
as ``racial profiling'' on a national level?
It is also important to remember that NAFTA is about partnerships
between the United States, Canada, and Mexico. Clearly, the U.S. is
treating its partners differently and, in fact, has been found in
violation of the treaty.* The previous Administration refused to fully
implement NAFTA, yet they took no steps to address the perceived
problems with Mexican trucks. Mexico deserves fair treatment under the
terms of NAFTA.
1. A five-member NAFTA Arbitration Panel unanimously determined
``that the U.S. blanket refusal to review and consider for approval any
Mexican-owned carrier applications for authority to provide cross-
border trucking services was and remains a breach of the U.S.
obligations under Annex I (reservations for existing measures and
liberalization commitments), Article 1202 (national treatment for cross
border services), and Article 1203 (most-favored-nation treatment for
cross border services) of NAFTA.''
In addition to the safety and fairness considerations, there are,
obviously, economic considerations. The ``giant sucking sound'' that
NAFTA opponents warned of before NAFTA was signed, and which referred
to U.S. jobs that would be lost, actually turned out to be the sound of
economic benefits accruing to both countries. NAFTA has directly led to
a three-fold increase in the value of trade between the U.S. and
Mexico.
However, the full benefits of NAFTA are not being realized.
Shippers and carriers find that the way cross-border trucking
operations are conducted today is very inefficient, since costly extra
handling via ``border shuttle'' carriers is required. They want the
increased efficiency and flexibility from running trucks straight
through to their ultimate destination, without the extra cost of
shuttle operations. Giving them this flexibility and reducing those
costs helps them to compete.
If the U.S. border is not opened to its trucks, Mexico has
announced its intention to retaliate by raising customs and import fees
on U.S. goods, and has raised the possibility of banning the
importation of certain commodities. U.S. businesses and manufacturers
are the ones that will have to pay these higher fees, and U.S. workers
and consumers will be the ultimate losers. Given global competition and
the economic situation, it would only take a slight increase to price
those U.S. goods targeted for retaliation out of the market completely.
Ultimately, these increased costs will be passed on to the U.S.
consumer in the form of higher prices, and to U.S. workers in possible
layoffs of manufacturing jobs.
Mr. Chairman and Senators, the continued banning of all Mexican
trucks from U.S. highways is simply the wrong way to go. It is the
wrong way to make our highways safer. It is the wrong way to provide
for economic growth. And, it is the wrong way to treat a neighboring
nation, a partner, and a group of people.
The Chairman. The Murray-Shelby amendments, on to the
transportation appropriations bill reported out of the floor to
the United States Senate was unanimous and bipartisan. Mr.
Hoffa.
STATEMENT OF JAMES P. HOFFA, GENERAL PRESIDENT, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS
Mr. Hoffa. Mr. Chairman and Members of the Committee. My
name is James P. Hoffa, I am president of the International
Brotherhood of Teamsters. I want to thank you for the
invitation to testify here today regarding the cross border
trucking impact on highway safety. The Teamsters Union has
submitted extensive comments for the record. I will summarize
my testimony in what I am going to be saying regarding cross
border trucking.
I recently had the opportunity to meet with the President
of Mexico, Vincente Fox, last Monday and we had a frank and
open discussion in the meeting in the half-hour that we had
together, and I raised the issue of highway safety with him,
and he indicated an acknowledgment that it is his objective not
only to raise the standard of living of the people in his
country, but also I believe he acknowledges that they have a
long way to go with regard to highway safety and with regard to
the equipment they use and driver training.
I give that you comment because it is a recent interview
that I had with him and met with him. I was impressed with his
candor with regard to the issue.
First, let me dispel a few myths about why the Teamsters
Union is so concerned about this issue. About 625,000 of our
1.4 million members turn a key on a truck to start their
workday. Their workplace is our nation's highways and city
streets. And these drivers deserve as safe a workplace as any
person working in a factory. Since 1994, the Teamsters Union
has been on the record telling Congress and the administration
that neither the United States nor Mexico had the necessary
safeguards in place to assure the safety on our highways.
After Congress and many other groups, including the
Teamsters, raised safety concerns, the Clinton Administration
wisely chose to institute the current moratorium. Now, for
those who would believe that the border remain closed as a
political favor to the Teamsters, they need only read the words
of the latest Inspector General's report. As they should review
the administration's own submission, they can also review the
administration's own submission to the NAFTA resolution dispute
resolution panel. I will get to those in a minute. But first I
want to address another issue.
Some claim that the only reason the Teamsters care about
Mexican trucks is the fear that lower wage Mexican drivers will
take our jobs away. While there is a concern that unscrupulous
drivers will entice and exploit Mexican drivers to violate our
laws and to make deliveries from point to point in the United
States when delivering international loads. However, we welcome
an opportunity to talk to our Mexican brothers and sisters
about working conditions in that country, and we also hope that
some day, we will have the right to go down there and organize.
Ultimately, if there is parity in wages and benefits, as
there is with Canadian drivers, then there is no incentive for
employers to violate our labor laws. Returning to the safety
question, there is real evidence that trucks from Mexico cannot
meet all the United States safety standards. Let us look at the
facts.
The Inspector General's latest report indicates that still
only 1 percent of Mexican trucks crossing into commercial zones
are inspected. Of these inspected more than one of three is
placed out of service for serious safety violations. In Texas
and Arizona, for more than 75 percent of the Mexican trucks
crossing, the out-of-service is over 40 percent. There are
those that argue that drayage trucks are not representative of
the fleet of long haul trucks that will be utilized once the
boarder is open but listen to what the United States itself
said in its submission to the NAFTA panel. I am going to quote
it. This is what our people said.
In terms of safety, the service provided with the drayage
trucks, those that run with a 25-mile limit, is no different
from that provided by the long haul trucks. Furthermore, there
is no evidence that the Mexican long haul carriers are safer
than Mexican drayage carriers. They haul goods on the same
roads, through the same cities and towns through which long
haul trucks operate.
Indeed, many of the Mexican trucks that are now inspected
at the border have traveled considerable distances from the
interior of Mexico just to get to the border and thus are in
fact, long haul trucks just getting to our border. Plus, there
is no guarantee that drayage truck operators would not seek to
operate the trucks beyond the commercial zone which we have
already talked about. And that is the problem we have been
talking about. We talked earlier about 65 trucks that have been
impounded or found to be operating as far as North Dakota. That
was last year's statistic and those are the only ones that are
caught, so what has changed? Why is it that the administration
is now in such a rush?
In fact, the administration's announcement of its intent to
open the border by the 1st of the year was a major tactical
error. They gave away any leverage they had to compel the
Mexican government to continue to improve its safety program.
Frankly, the United States is under no legal obligation to
implement the findings of the NAFTA panel. Under the terms of
the NAFTA, the United States is entitled to disregard the
panel's recommendation and simply allow Mexico to take
equivalent reciprocal measures. Or it could negotiate
compensation for a new grant of trade benefits to Mexico.
Now, let us dispel another myth that under NAFTA the United
States cannot initiate safeguards to protect its own highways.
If you have not already done so, I encourage each member of
this panel to read the NAFTA dispute panel's report. It made a
point of stating that ``the parties to NAFTA may set the level
of protection that they consider appropriate in pursuit of
legitimate regulatory objectives. In fact, one of the
recommendations of the NAFTA panel states that given the
different enforcement mechanisms currently in place in Mexico
and the United States, it may not be unreasonable for the DOT
to address legitimate safety concerns by declining to rely
largely on self-certification by Mexican carriers seeking
authority to operate in the United States.'' That ends the
quote.
This leads to the one final point I'd like to discuss, the
proper action for Congress to take to address the safety
concerns of the Mexican carriers. It is clear from the NAFTA
panel report that the United States is within its rights to not
rely on a stack of paperwork to determine the safety of
carriers coming out of Mexico. Unfortunately, representative
Sabo's common sense amendment to require a safety review before
the DOT would grant conditional operating authority was not
given a chance to be voted on by the House. But the vote on his
more restricted amendments, barring funds from review and
processing of any Mexican carrier was passed by an overwhelming
vote of 285-143.
I think that vote was indicative of the frustration that
many Members of Congress feel about the administration's
failure to recognize a serious safety concerns of unsafe trucks
on our highways. The vote should be a wake-up call to everyone
who is ignoring the potential danger of this wrong-headed
policy.
DOT needs to put a process in place that ensures the safety
of our highways and that should include one, more properly
trained safety inspectors at the border crossings to maintain
surveillance 24 hours a day 7 days a week.
Two, permanent inspection facilities with enough space to
take care of out of service trucks so we can put them in a
place where they cannot be on our highways.
Three, equipment to weigh the commercial vehicles entering
the United States.
Four, an adequate enforcement program to assure that
Mexican truckers will comply with hours of service regulations.
And five, a safety audit of Mexican carriers before the DOT
grants conditional operating authority. These are just a few of
the criteria that should be met before the cross border
trucking provisions of NAFTA are implemented. These and other
necessary provisions are included in House Resolution 152 that
we support. They are also included in the Senate transportation
appropriations bill.
The Teamsters Union strongly supports these legislative
measures that ensure the safety of American highways. That is
what the 285 Members of Congress wanted when they voted for the
Sabo amendment. That is what the American public wants and that
is what the Teamsters want and their families, and we deserve
no less. I will be willing to answer questions if you have any.
[The prepared statement of Mr. Hoffa follows:]
Prepared Statement of James P. Hoffa, General President,
International Brotherhood of Teamsters
Chairman Hollings, Senator McCain and Members of the Committee:
My name is Jim Hoffa, and I am General President of the
International Brotherhood of Teamsters. I am pleased to appear today
before this Committee on behalf the 1.4 million members of the
Teamsters Union and the hundreds of thousands of our members who
literally make their living on our nation's highways.
The Teamsters Union has taken a serious interest in the work that
Congress and, in particular, this Committee has undertaken to ensure
safety on our nation's highways. It was just 2 years ago that most of
the people on this panel and on the following panel were testifying
before you on the need to strengthen motor carrier safety here in the
United States.
And now, as this Committee moves forward with hearings concerning
the issue of whether Mexican-domiciled motor carriers should be allowed
to operate throughout the United States, we are pleased to have the
opportunity to share our views on this important safety issue.
In general, the Teamsters Union believes that the United States is
not prepared to begin approving Mexican carrier applications to operate
throughout the United States because the safety of Mexican carriers
cannot be assured. But before I delve into this issue, I think it's
important that we first review how the United States got to this point.
When the North American Free Trade Agreement (NAFTA) was enacted in
1993, the existing moratorium on the registration of Mexican motor
carriers was initially left in place; however, operating authority for
Mexican carriers was planned to be phased-in over an eight-year period.
The first phase was to have occurred in 1995, when Mexican trucks were
to be allowed to operate beyond the commercial border zones into the
four border states (California, Arizona, New Mexico, and Texas). In
2000, Mexican carriers were scheduled to operate throughout the United
States. To alleviate safety concerns, the agreement also provided for
the establishment of a Land Transportation Standards Subcommittee whose
function was to implement a work program to harmonize the truck and bus
safety standards of the United States and Mexico.
In 1995, however, when the first phase was scheduled to occur, and
again in 2000, it was apparent that Mexico had not yet made the kinds
of safety improvements that were required when the schedule was agreed
upon. Although the Clinton Administration initially planned to
implement the first phase of the schedule, when Congress and numerous
groups including the Teamsters Union made it aware of the serious
safety concerns it acted responsibly and kept the moratorium in place.
These concerns were outlined in four separate Congressional letters to
the President: One in 1997, which was signed by 236 House Members on
both sides of the aisle; another in June of 1999, which was signed by
258 House Members; another in November 1999, which was signed by 48
Senators, many of which serve on the Senate Commerce Committee; and
another sent just 2 months ago to President Bush by Senator John Kerry
(D-MA) and 9 other Senators who supported NAFTA but are concerned about
the safety implications of cross-border trucking. The Teamsters Union
wishes to submit all of these letters for the record.
In response to the moratorium, Mexico sought consultations under
NAFTA's Article 20 dispute resolution mechanism. And from 1995 through
January 2000 various consultations and meetings took place, but the
parties could not resolve the serious safety issues at hand. An
arbitration panel was then formed on February 2, 2000. During the year-
long panel proceedings, the United States vigorously opposed the entry
of Mexican carriers into the United States because of serious safety
concerns and the United States' inability to adequately ensure the
safety of the traveling public if Mexican carriers were to enter the
United States prior to Mexico's establishment of a comprehensive safety
regime. The United States explained the problem as follows:
LMexico's existing truck and operator safety rules are not yet
compatible with those in the United States and large and
important gaps remain. Mexico does not impose key record-
keeping requirements. It has no roadside inspection program and
thus does not generate reliable nationwide statistics on
vehicle out-of-service rates. Mexico has only recently begun a
limited program of on-site inspections and audits, and Mexican
enforcement resources remain quite limited. Mexico and the
United States do not yet have a functioning data exchange
arrangement.
LAll this means that when Mexican trucks cross into the United
States, there is no assurance that, based on the regulatory
regime in place in Mexico, those trucks already meet U.S.
highway safety standards.
In the Matter of Cross-Border Trucking Services, Secretariat File
No. USA-MEX-98-2008-01, Counter-Submission of the United States at 48
(Feb. 23, 2000), the United States further explained that these safety
problems could not be adequately addressed through border inspections:
L[T]he effectiveness of any [border inspection] program is
limited given the huge number of trucks that cross the southern
border each day, the time and resources required to conduct
even a small number of rigorous inspections, and the commercial
disruptions that would accompany any system other than
occasional spot-checks. As a practical matter, the deterrent
effect of any reasonably practicable system of border safety
inspections is limited since the likelihood of inspection on
any given cross-border transit is small.
LSince a border inspection system alone cannot sufficiently
assure safety compliance, the United States is in a position in
which it must rely on Mexico, much as it relies on Canada, to
ensure that the great preponderance of its trucks already meet
U.S. standards by the time they arrive at the border.
On February 6, 2001, the NAFTA panel issued a report which
determined that ``the inadequacies of the Mexican regulatory system
provide an insufficient legal basis for the United States to maintain a
moratorium on the consideration of applications for U.S. operating
authority from Mexican-owned and/or domiciled trucking service
providers.'' It also held that the United States was and remains in
breach of its obligations under Annex I (reservations for existing
measures and liberalization commitments), Article 1102 (national
treatment), and Article 1103 (most-favored-nation treatment) to permit
Mexican nationals to invest in enterprises in the United States that
provide transportation of international cargo within the United States.
It is important, however, to note what the Panel did not determine.
According to its Findings, Determinations And Recommendations,
Secretariat File No. USA-MEX-98-2008-01, the panel ``is not making a
determination that the Parties of NAFTA may not set the level of
protection that they consider appropriate in pursuit of legitimate
regulatory objectives. It is not disagreeing that the safety of
trucking services is a legitimate regulatory objective. Nor is the
Panel imposing a limitation of the application of safety standards
properly established and applied pursuant to the applicable obligations
of the Parties under NAFTA.''
In fact, in its report, the Panel even provided U.S. authorities
permission to establish inspection and licensing requirements that are
not ``like'' those in place for U.S. carriers, so long as their
expectations are the result of legitimate safety concerns.
LWith regard to the inspection and licensing requirements of
Mexican trucks and drivers operating in the United States, the
circumstances may well not be ``like,'' even though those
trucks and drivers are fully subject to the U.S. regulatory
regime. For example, given the different enforcement mechanisms
currently in place in Mexico and in the United States as of the
date of this Report, it may not be reasonable for the
Department of Transportation to address legitimate U.S. safety
concerns by declining to rely largely on self-certification by
Mexican trucking firms seeking authority to operate in the
United States.
LIf the United States implements differing specific
requirements for Mexican carriers from those imposed on U.S.
and Canadian carriers, in order to meet legitimate U.S. safety
concerns, it must do so in good faith and those requirements
must conform with the requirements of Chapter Nine and other
relevant NAFTA provisions. [Secretariat File No. USA-MEX-98-
2008-01 Findings, Determinations, and Recommendations]
Such legitimate objectives are addressed in Article 904.2 of NAFTA:
``Notwithstanding any other provision of this Chapter, each party may
in pursuing its legitimate objectives of safety or the protection of
human, animal or plant life or health, the environment or consumers,
establish the level of protection that it considers appropriate.''
Therefore, the United States has two choices: (1) it can establish
a program, which requires Mexican trucks to meet more stringent
standards than is the case under current U.S. law. The Teamsters Union
believes the United States would be acting responsibly in fulfilling
its safety obligations to the American public by establishing such a
program and that such action would not be in conflict with NAFTA. Or
(2) it can refuse to implement the findings of the NAFTA Panel because
it is under no legal obligation to do so. Let me repeat that: The
United States is under no legal obligation to implement the findings of
the NAFTA panel.
Under U.S. law, the health, safety and welfare of U.S. citizens is
paramount, and to the extent NAFTA conflicts with any U.S. law dealing
with health, environment, and motor carrier/worker safety, U.S. law
prevails. 19 U.S.C. Sec. 3312(a). Even under the terms of NAFTA, the
U.S. is entitled to disregard the panel's recommendation, and simply
allow Mexico to take equivalent reciprocal measures or negotiate
compensation or a new grant of some trade benefits to Mexico. Indeed,
the United States has not traditionally allowed foreign countries or
international bureaucracies to dictate its domestic policy,
particularly where the health and safety of U.S. citizens is concerned.
Despite these options, the Bush Administration has indicated that
it plans to begin processing Mexican carrier applications at the behest
of the NAFTA panel, and has set a target date of January 2002 for doing
so. It is in accordance with this decision that the Department of
Transportation (DOT) has proposed three rules, which, unfortunately,
achieve the opposite of what is permitted under the NAFTA Panel ruling.
In order to save time, I'd like to dispense with the details of our
specific concerns with the proposed rules and instead submit our
comments to the docket for the record.
What I would like to emphasize, however, is that the DOT's
proposals actually allow greater latitude in several key areas for
Mexican-domiciled carriers and drivers than currently apply to U.S. and
Canadian companies and drivers under U.S. law. In fact, the
Department's proposed 18- month safety review process for Mexican
carriers is more lenient and far less comprehensive than inspections of
U.S. carriers since, among other things, those done for Mexican
carriers would be off-site. Affectively, the DOT proposal creates a
safe harbor for Mexican-domiciled entrants to the market and a
competitive disadvantage for U.S. interests.
Moreover, the rules appear--although surely the DOT is not--to be
almost entirely uninformed about the real risks that these dangerous
provisions pose to the U.S. public.
We believe that the U.S. is acting far too quickly, with far too
little attention to the actual and potential costs, and at the risk of
causing hazardous material spills, horrific truck crashes and other
unnecessary suffering and death on U.S. highways. After all, the
serious safety concerns expressed by the United States before the NAFTA
panel have not yet been resolved.
Now I want to take a moment and highlight some of the United
States' own submissions to the NAFTA Panel because I think it is
crucial that when this Committee considers whether to act on this issue
that all of the Members take a close look at and compare what the
United States Government, under the direction of the DOT and the United
States Trade Representative (USTR), submitted to the NAFTA Panel and
what the two agencies are asserting now--two entirely different things.
LTrucking firms operate in Mexico under a far less
comprehensive and less stringent safety regime than that in
place in either Canada or the United States. The Mexico safety
regime lacks core components, such as comprehensive truck
equipment standards and fully functioning roadside inspection
or on-site review systems. In light of these important
differences in circumstances, and given the experience to-date
with the safety compliance record of Mexican trucks operating
in the U.S. border zone, the United States decision to delay
processing Mexican carriers' applications for operating
authority until further progress is made on cooperative safety
efforts is both prudent and consistent with U.S. obligations
under NAFTA. (Secretariat File No. USA-MEX-98-2008-01, June 8,
2000)
LThe safety of Mexican carriers cannot be ensured on a case-by-
case basis. Rather, as the United States has explained, highway
safety can only be assured through a comprehensive, integrated
safety regime. (Secretariat File No. USA-MEX-98-2008-01, June
8, 2000)
LU.S. safety inspectors may easily audit, inspect, and enforce
compliance vis-a-vis firms based in the United States, and can
rely on Canadian inspectors to enforce Canadian rules and
regulations in a similar manner, but this is not the case for
companies based in Mexico. In light of these important
differences, and given the experience to-date with the safety
compliance record of Mexican trucks operating in the U.S.
border zone, the United States is within its rights to insist
that the necessary regulatory and enforcement framework be in
place--and working--prior to authorizing Mexican trucking firms
to operate across the U.S. roadway system. And, given the high
volume of cross-border truck traffic, and the fact that truck
safety regulation requires a comprehensive, integrated
regulatory regime, border inspections alone are not sufficient.
(Secretariat File No. USA-MEX-98-2008-01, April 24, 2000)
LRoadside inspections alone, without on-site inspections,
accident and carrier information, and other elements of a
safety regime, are not sufficient to identify problem carriers.
Thus, a Mexican carrier's safety performance cannot be assured
simply because, for example, it uses only new trucks in its
U.S. operations that are more likely to pass roadside
inspections. (Secretariat File No. USA-MEX-98-2008-01, June 9,
2000)
LThe Government of Mexico cannot identify its carriers and
drivers so that unsafe conduct can be properly assigned and
reviewed. While we understand that the Government of Mexico is
engaged in an effort to register all of its motor carriers and
place them in a database that would facilitate the assignment
of safety data, that database does not contain any safety data.
Therefore, Mexico cannot track the safety fitness of its
carriers and drivers. (Secretariat File No. USA-MEX-98-2008-01,
June 9, 2000)
LIt is the position of the United States that Mexico must
develop and implement a safety oversight program that ensures
that Mexican carriers planning to engage in cross-border
transportation meet minimum safety standards, and which allow
the Mexican and U.S. Governments to share relevant and complete
motor carrier noncompliance data. Without such carrier safety
performance history, the United States cannot conduct a
meaningful safety fitness review of Mexican carriers at the
application stage. In light of this . . . the Mexican case-by-
case approval scenario would be unworkable. (Secretariat File
No. USA-MEX-98-2008-01, June 9, 2000)
LNo review of a Mexican carrier based solely on an unverifiable
application for operating authority can give the United States
a sufficient level of confidence regarding the safety of that
carrier's vehicles, no matter how detailed an application is
required. (Secretariat File No. USA-MEX-98-2008-01, June 9,
2000)
LMexico has not yet completed the process of establishing
safety enforcement mechanisms with respect to a number of
important areas of truck safety. (Secretariat File No. USA-MEX-
98-2008-01, June 9, 2000)
LMexico has neither promulgated final safety standards for
motor carrier inspections nor implemented a safety oversight
and enforcement program for carriers seeking U.S. operating
authority. (Secretariat File No. USA-MEX-98-2008-01, June 9,
2000)
LWhen Mexican trucks cross into the United States, there is no
assurance that, based on the regulatory regime in place in
Mexico, those trucks already meet U.S. highway safety
standards. (Secretariat File No. USA-MEX-98-2008-01, June 9,
2000)
These admissions become even more disturbing when you read the DOT
Inspector General's (IG) interim report, which was issued shortly after
the DOT published its proposed rules. The report, entitled Status of
Implementing the North American Free Trade Agreement's Cross-Border
Trucking Provisions (Report No. MH-2001-059, May 8, 2001) found that
while some improvements have been made since the IG last investigated
the safety of Mexican trucks in 1998, Mexican trucks are still not as
safe as U.S. and Canadian trucks, and U.S. border inspection facilities
are still inadequate to evaluate and monitor the safety of Mexican
trucks as they cross the border.
According to the IG, there are only two permanent inspection
facilities, both of which are state facilities in California. Of the 25
remaining border crossings, a vast majority lack dedicated phone lines
to access safety databases and therefore cannot perform as simple a
safety check as validating a commercial driver's license. Further,
almost all of these inspection facilities lack adequate space to
inspect vehicles and/or place dangerous vehicles out of service. In
addition, there are not currently enough inspectors to adequately staff
border operations. The IG indicates that DOT has requested increased
funding to hire additional personnel, and if all such funding is
approved, DOT will be able to hire and train an additional 80
inspectors. However, this is not enough to implement all three proposed
rules. Although the number of inspectors would meet the minimum
recommended by the IG in its 1998 report if all 80 are designated to
border operations, only 40 have been designated by the DOT as
inspectors. The remainder are designated as investigators who will
conduct compliance reviews. As such, the number of inspectors still
falls far short of the 1998 goal. Indeed, the IG indicates that its
1998 recommendation was conservative and that even more inspectors are
actually needed. Thus, there is no basis to believe the situation will
be improved by the time the DOT begins processing Mexican carrier
applications to operate throughout the United States, and in each of
your congressional districts, by January 2002.
The IG also reported that over 4.5 million trucks entered the U.S.
at the southern border in FY2000. Of those, 46,114 inspections were
performed--less than one percent. Now, some will claim that this number
is skewed: That the 4.5 million trucks that entered the U.S. was the
result of 80,000 trucks crossing the border more than once in FY2000.
The Committee Members should not be fooled by this assertion because
assuming for a moment that this figure is correct--and it may very well
be correct--then the situation is even worse than we thought. In fact,
this means that on average each of those 80,000 trucks traveled across
the border about 56 times in FY2000. Taking past inspection rates into
consideration (less than 1 percent inspected), this would mean that
about 800 of those trucks were inspected. The Committee should then
question how so many trucks that crossed the border 56 times in one
year went un-inspected. If the rather low 80,000 figure is accurate,
then it is the Teamsters' position that every truck should have been
inspected, and Mexico's out-of-service rate should be equal to if not
better than the United States.
But the fact is that, of those trucks that were inspected in
FY2000, 36 percent of them were placed out-of-service as a result of
being in an unsafe condition. While that rate has improved from the
1997 out-of-service rate of 44 percent, it is still 50 percent high
than the U.S. out-of-service rate and even higher than the Canadian
out-of-service rate of 17 percent. The Teamsters Union needs not to
remind this Committee that it was not too long ago that we were all
concerned about the United States' own high out-of-service rate of 24
percent. A higher out-of-service rate for foreign motor carriers that
are not going to be directly monitored by the DOT should be an even
greater concern.
The average out-of-service rate for Mexican carriers, however, may
not accurately reflect the entire picture. But not because of what our
opponents have been claiming: That the high out-of-service rates for
Mexican carriers are due to the fact that most of the trucks taken out
of service are drayage trucks that provide a different service than
that provided by long haul trucks. Even the DOT disagrees with that in
each of the U.S. submissions to the NAFTA Panel:
LIn terms of safety, the service provided by drayage trucks is
no different from that provided by long-haul trucks--they haul
goods on the same roads, through the same cities and towns
through which long-haul trucks operate. Furthermore, the
Government of Mexico has presented no evidence that Mexican
long-haul carriers are safer than Mexican drayage carriers.
Indeed, many of the Mexican trucks that are inspected at the
border have traveled considerable distances from the interior
of Mexico to the border and thus are, in fact, long-haul
trucks. Plus, there is no guarantee that drayage truck
operators would not seek to operate their trucks beyond the
commercial zone once the moratorium is lifted. [Secretariat
File No. USA-MEX-98-2008-01]
LIn order to truly evaluate the accuracy of the average out-of-
service rate for Mexican carriers, the Committee must look at
the rates for each of the four border states, individually. At
the state funded, permanent inspection facility in Otay Mesa,
California, the out-of-service rate for FY 2000 was 23 percent,
comparable to U.S. rates. The total out-of-service rate for
California was 26 percent. This is because California has a
comprehensive state funded inspection program. California,
however, only receives 23 percent of the commercial cross-
border traffic. By comparison the out-of-service rate for
Texas, which receives 69 percent of all commercial cross-border
traffic, was 40 percent. At the El Paso, Texas, border crossing
alone, the out-of-service rate for FY 2000 was an alarming 50
percent. Meanwhile, the out-of-service rates for New Mexico and
Arizona are 32 and 40 percent, respectively. Combined, these
out-of-service rates make up the 36 percent average out-of-
service rate. Taken separately, these rates are a recipe for
disaster, particularly in Texas.
Equally troubling is the fact that Mexico still has not harmonized
its safety standards with the United States and Canada, as NAFTA
requires. The IG confirmed that Mexico still hasn't established an
effective drug and alcohol-testing program. Mexico still has no hours
of service regulations and has only recently proposed in its Diario
Official logbook requirements to record hours of service. And to this
day, no database exists for our two nations to exchange information on
past violations of Mexican drivers and carriers.
Despite these serious concerns, the IG found that the DOT does not
yet have an implementation plan to ensure safe opening of the U.S.-
Mexico border to commercial vehicles, according to the Inspector
General. In this regard, the IG recommended that the DOT take the
following actions:
Finalize and execute a comprehensive plan that identifies
specific actions and completion dates for the implementation of
NAFTA's cross-border provisions (including staffing and
facilities), and that reasonably ensures safety at the southern
border and as the commercial vehicles traverse the United
States.
Increase the number of Federal safety inspectors at the U.S.-
Mexico border to at least 139 (our 1998 estimate of 126 plus
the 13 authorized in 1998) to enforce Federal registration and
safety requirements during all port operating hours, and
provide the requisite inspection facilities.
Unfortunately, none of these actions have been taken. It is
therefore incomprehensible to understand how the DOT will be prepared
to begin processing applications from Mexican carriers by the end of
this year. We are clearly nowhere near ready to implement NAFTA's
cross-border trucking provisions. And it is impossible for the Bush
Administration to do in one year what the Clinton Administration could
not do in eight.
For these reasons, the Teamsters Union supports House Resolution
152. We also support the provisions that were included in both the
House and Senate Transportation Appropriations bills. In fact, many of
the provisions in the Senate bill came out of the House Resolution.
It is important to stress that we still believe that the ban on
cross-border trucking should be continued--the U.S. has that option
under NAFTA, as explained earlier in this testimony. But if Congress
chooses against going in that direction, then it must at least ensure
that the many safety issues highlighted in the IG report are resolved
before the DOT begins processing Mexican carrier applications--not
after. Safety should never be an afterthought.
Now I understand that our opponents will claim that such actions
discriminate against Mexico and Mexican-citizens. Nothing could be
farther from the truth. The Teamsters Union has the largest Latino
membership amongst all the unions in the AFL-CIO, and our members know
that this issue has nothing to do with discrimination. In fact, we'd
like to submit for the record a letter to both the House and Senate
from the President of the Teamsters' Hispanic Caucus, Bob Morales. In
it, President Morales, writes what this issue is really about:
corporate greed.
LThe Administration does not want the border to be opened for
the benefit of the poor Mexican driver desperate to reach for a
better life. Rather, it will be opened for monetary gain to a
trucking industry reaching for better and higher profits
through unrestricted motor carrier access to the United States,
and, of course, for political gain with Mexican President
Vicente Fox.
LThe impoverished Mexican may drive the truck, but he will
never see the profit. That will belong to the industry, which
will pay him a meager wage, and use him to hide behind the
official NAFTA policy that exploits the poor in Mexico, while
endangering both Mexican and Mexican-American U.S. Citizens
with unsafe and largely unregulated trucks.
LThus, Mexican drivers are offered at best four things: first,
the spur of poverty; second, the incentive of a wage slightly
higher than the meager wages that consign most of their
countrymen to a kind of economic involuntary servitude; third,
unsafe vehicles, and no rest; fourth, a requirement that they
drive across the border, into and across the United States, and
deliver their cargo on time and in good condition. And this is
what Latinos, on both sides of the border, are supposed to
think is a good deal. [Letter to Congress from Teamsters
Hispanic Caucus President, July 11, 2001]
The fact is that for Latinos on both sides of the border--the
drivers coming across from Mexico and the Mexican-American families
that are living here in the in the United States--this is a potentially
dangerous deal. And without a much-needed re-evaluation of the NAFTA
cross-border trucking provisions, there will inevitably be a tragic
crash, a loss of life, and a devastated family, on one or both sides of
the border.
Mr. Chairman, the Teamsters Union urges you and the members of this
Committee to turn this policy around and to get the DOT off the fast
track and on the right track before it's too late.
Thank you again for providing me the opportunity to testify. I'm
happy to answer any questions that you might have.
The Chairman. Thank you very much. Ms. Claybrook.
STATEMENT OF JOAN CLAYBROOK, PRESIDENT, PUBLIC CITIZEN
Ms. Claybrook. Thank you, Mr. Chairman, Members of the
Committee. I am pleased to be here to testify on behalf of
Public Citizen, a national public interest organization that
has 150,000 members around the United States on the issue of
Mexican trucks. Let me be clear, we endorse what the Senate
Appropriations Committee has put together. We think it is
absolutely essential. And with all due respect to my colleague
on this panel, we are not calling for a permanent ban. That is
a red herring and our proposals are not racist and I would like
to make that completely clear for this record.
We are concerned about safety. In short, our belief is that
the administration's now revised proposals are totally
inadequate and it is going to take action by the Congress to
correct this problem. We believe that the NAFTA ruling when you
read it clearly allows for the United States Government to set
strong safety standards. Not only do the Mexican trucks have to
meet our standards, but we can set tougher requirements under
the NAFTA ruling than even for the United States itself.
There is a fatal flaw in NAFTA. It sets a deadline for
opening the border, but it doesn't set a deadline for the
Mexican trucks to meet our standards, and that delinking of
those two particular requirements means that we are now in this
very difficult situation because the Mexican government has not
taken the initiatives it should have to issue strong safety
standards. In fact, the standards that they have proposed are
extremely weak, much weaker than ours. They are voluntary for
the first year and their enforcement--what they would enforce
is a paper penalty yet the Administration would still allow
these trucks to operate in the United States.
In the United States, these trucks would be put out of
service, and they wouldn't be allowed to operate, so there is
not comparability between Mexican and United States
requirements. That puts tremendous pressure on the United
States government and on the border facilities.
We believe what the administration has proposed is
disgraceful. It is totally inadequate. It is a paper audit and
it is not an onsite audit. The only way that we are going to be
able to deal with these issues is an onsite audit. The other
issue that is very important to remember is that when there is
a dispute under trade agreements, there is a process of
negotiation and bargaining if you would, horse trading, between
countries that does allow some leeway so that there is time to
meet the government standards in the United States, and the
U.S. government has not done that.
They are setting a very short deadline of next January for
the opening of the border and we think that that is not
possible to meet and totally beyond the capacity of the Mexican
government and our border facilities. Among other things,
Mexico has no functioning database, so even when Mexican trucks
come across the border, there is no ability to really check
whether or not these trucks that are coming across the border
have had any problems in Mexico. There is no database on the
drivers and there is no working database on the companies, as
there is in Canada, and as there is in the United States.
Mexican trucks are allowed to be heavier than ours. There
must be a continuous weigh station so that when these trucks
come across we can catch those that are heavily overweight. Not
only are they much more dangerous, and many documented studies
have shown that much heavier trucks are much more dangerous,
but they also ruin our highways. We have enough trouble with
our infrastructure as it is without having more. We cannot rely
alone on the border facilities, and they must be beefed up, as
they are totally adequate on this point. There is no permanent
facility in any of the border areas, except for California, and
66 percent of the traffic that crosses comes across in Texas.
So we have submitted extensive comments to the docket
justifying our views, the docket of the Department of
Transportation submitted as an attachment to my full testimony
requiring why we think that there has to be onsite audits for
these Mexican companies.
The other thing I would like to mention is as to
California. Although California is cited as a model because
there is a label that is put on the truck and that is
considered a very efficient and effective way, I would like to
point out three deficiencies in the California model.
One is that California inspectors cannot verify the
validity of the truck's operating authority. The decal may be
there, but they have no ability to verify the validity of the
operating authority. Second, the California inspectors have
themselves said that there is evidence of the decals being used
on more than one truck, that is, blue doors on brown trucks and
brown doors on white trucks. They take that door with the decal
on it and they just switch it to another truck, and that truck
in fact hasn't been inspected and there is no operating
authority for it. And then third, California has not, so far
checked the driver's hours of service or driver's licenses.
Hours of service are basically nonexistent in Mexico and these
drivers could be very tired and I think the Committee knows
there is a tremendous correlation between fatigue and accidents
and crashes. With these heavy trucks, that fatigue means that
people are going to be killed, or they are going to be
desperately injured. It is going to mean that traffic is
stopped for hours.
So we believe that we have to take the initiative here. We
urge the Congress to do this. We urge the Congress to act on
this authority and perhaps the fastest way to do it initially
is in the appropriations bill. We are urging the Commerce
Committee to do this on an authorization basis so that there is
no getting around these kinds of requirements, which we think
are absolutely essential. Thank you very much, Mr. Chairman,
for the opportunity to testify.
[The prepared statement of Ms. Claybrook follows:]
Prepared Statement of Joan Claybrook,
President, Public Citizen
Mr. Chairman and Members of the Committee:
I am pleased to offer this testimony on the United States' and
Mexico's lack of preparedness for the opening of the southern border of
the U.S. to commercial carrier traffic, under the short-sighted
timetable set out in the North American Free Trade Agreement (NAFTA). I
am President of Public Citizen, a national public interest organization
with 150,000 members nationwide that represents consumer interests
through lobbying, litigation, regulatory oversight, research and public
education. My comments today will focus on the inadequacy of the Bush
Administration's proposed rules for the admission of Mexican carriers
and the dire need for further steps by Congress to assure the safety of
American motorists, before the border is opened to nationwide
commercial traffic.
The Committee is addressing a critical safety issue. Under the
current system in the U.S., 5,000 people are killed and 101,000 injured
every year in crashes involving large trucks. Large truck crashes also
cause disasters on the highway, including hazardous materials spills
and costly traffic delays. The Congress, government and safety
advocates have worked for many years to improve this record, enhancing
U.S. safety regulations and establishing enforcement mechanisms with
teeth. Now we may see these accomplishments, and the areas where
additional work is needed, imperiled by an influx of dangerous large
trucks. I urge this Committee to look closely at our recommendations
and at the recent actions taken by the Senate Appropriations Committee
and to delay opening the border until safety is assured.
NAFTA Failed to Provide Safety Incentives With Teeth, Creating a False
Double Bind
I will first address the reason that a trade agreement has put us
in a false double bind, in which it appears that we must choose between
domestic safety and the imperatives of trade. In short, the problem is
that NAFTA was drafted with a fatal flaw. NAFTA required the United
States to open its border to Mexican trucks in phases beginning in
1995. While the agreement also required Mexico to draft and implement
trucking safety regulations commensurate to those in the United States
and Canada, the agreement failed to link these required Mexican
domestic safety improvements to the timetable for the U.S. to open the
border to Mexican commercial trucks.
Without acting at all on its domestic obligations, almost 3 years
ago the Mexican government brought a dispute before a NAFTA arbitration
panel to open the southern U.S. border to nationwide commercial
traffic. Last summer, the Mexican government finally issued a fledgling
set of very basic rules for commercial carrier safety. Public Citizen's
analysis of the rules shows that they are deficient in many ways and do
not compare favorably to U.S. law.
These new Mexican commercial carrier inspection standards are far
weaker than those of the U.S. Among other flaws, the new laws require
roadside inspections to be done within an unreasonably short time
period. For hazardous materials carriers, inspections must be completed
within a mere 20 minutes. They also merely require a fine and warning
letter for a number of violations that would cause a truck to be placed
out of service in the U.S. In addition, the rules, which were just
issued last summer, are voluntary for the first year, and are to be
phased in over 2 years.
Other difficulties show the still-considerable gaps between
Mexico's new rules and the absence of any practical consequences for
infractions. While Mexico has agreed to implement a drug and alcohol
testing program, it has no laboratories that are U.S.-certified for
drug testing. In addition, while Mexico has enacted a law requiring
driver logbooks, U.S. border officials admitted that they have yet to
see a single Mexican logbook.
Most importantly, despite a promise to establish comprehensive
domestic safety systems, Mexico has not limited its drivers' hours of
service. Mexican officials claim that the general labor laws applying
to every workplace provide for an 8-hour workday, but there is no
evidence that any general limitation on working hours is enforced as to
commercial drivers, and anecdotal evidence in news stories suggests
that working hours are very long indeed. Fatigue is a significant cause
of often-catastrophic truck crashes. Although Mexican drivers crossing
the border will ostensibly be bound by U.S. hours-of-service limits, it
will be impossible to enforce U.S. laws without both meaningful
enforcement of Mexico's new logbook requirements and enactment of
hours-of-service laws in Mexico.
In short, little has changed since the Clinton Administration,
prompted by safety concerns, refused to take steps to open the border
in 1995. Mexico has not yet put in place a regulatory system comparable
to that of the U.S. and Canada. The out-of-service rate for Mexico-
domiciled trucks that cross the border is a significantly higher rate -
36 percent - than the out-of-service rate for trucks in the U.S., which
is 24 percent. Border areas are still woefully short on federal
inspectors, who numbered a mere 50 in March 2001, and lack the
resources to ensure that unsafe trucks are not admitted.
Despite this well-demonstrated lack of progress on safety standards
for commercial carriers in Mexico, the NAFTA panel ruled on February 6,
2001 in Mexico's favor and found that the U.S. was in violation of its
treaty obligations under NAFTA. While this has been depicted in the
press as meaning that the U.S. must either open the border or face
trade sanctions, the panel's ruling was actually far more solicitous of
Clinton Administration's demonstrated concern for safety than has been
explained.
The NAFTA arbitration panel found that the United States may
implement different admission procedures for Mexican carriers than
apply to U.S. or Canadian carriers, in order to ensure that Mexican
carriers will be able to comply with U.S. regulations. Furthermore, the
U.S. may impose requirements on Mexican carriers that differ from those
imposed on domestic or Canadian carriers, so long as the decision to
impose such requirements is made in good faith and with respect to a
legitimate safety concern. Therefore, although the panel ruled that the
U.S. could not maintain its ban on all Mexican carriers, under the
ruling the U.S. can evaluate Mexico-domiciled carriers on a case-by
case basis and can refuse to issue them operating authority if a
particular carrier will not be compliance with U.S. safety regulations.
In the aftermath of this ruling, the Bush Administration has
adopted the course of action that is least likely to protect public
safety, and is the most subservient to the over-arching goal of free
trade. Despite 5 years of U.S. government documentation of major safety
problems by such neutral parties as the General Accounting Office and
the Department of Transportation's Office of Inspector General, the
Bush Administration has rushed to propose a set of three totally
inadequate regulations for monitoring and oversight of Mexican carriers
and the processing of applications for operating authority in the
border zones and beyond. The Administration's new proposals fail to
hold Mexican carriers even to the same standards U.S. carriers must
meet.
This course of action by the U.S. DOT is particularly disgraceful
given that there are other options available that are far more likely
to protect public safety. These include both trade mechanisms and
opportunities contained in the implementation of the panel decision. I
will address the trade options first.
When governments involved in a trade dispute are truly concerned
about the disagreement underlying the dispute, and seek to maintain
their own laws in the face of a hostile ruling, the countries
frequently engage in a process of negotiation called compensation. In
this process, countries will trade off concessions to satisfy
outstanding trade rulings. Thus, the United States could exchange its
victory in the World Trade Organization case against Mexico on high
fructose corn syrup to maintain U.S. domestic highway safety rules.
Comparable amounts of revenue can also be exchanged as compensation to
balance accounts between countries. Alternatively, the United States
could simply award Mexico additional trade benefits to compensate for
maintaining our safety rules and restrictions upon U.S. access for
Mexican trucks.
Instead, as I will explain, the Bush Administration's proposed
rules fail even to require that Mexican carriers fully comply with
existing U.S. law. Because the NAFTA panel ruling expressly provided
permission for U.S. authorities to establish case-by-case review of
applications for operating authority as well as inspection and
licensing requirements that are not ``like'' those already in place for
U.S. or Canadian carriers, the U.S. could establish a program which
requires Mexican trucks to meet more stringent standards than is the
case under for U.S. and Canadian carriers under current U.S. law. This
type of accommodation by the panel is highly unusual in a trade ruling,
and is an open invitation for the U.S. to act responsibly to fulfill
its safety obligations to the American public.
Despite such considerations by the panel, FMCSA has proposed rules
which achieve the opposite of what is permitted under the ruling. The
agency's proposals actually allow greater latitude in several key areas
for Mexican-domiciled carriers and drivers than apply to U.S. and
Canadian trucking companies and drivers. The Administration's proposed
rules create an 18-month ``safe harbor'' for Mexican carriers by
limiting their penalties for infractions, undercutting any incentive
for Mexican carriers to follow U.S. law and misleading new Mexican
entrants as to the seriousness of their infractions.
For example, under the proposed rules, the agency's 18-month safety
review of newly admitted Mexican carriers need not be performed on-
site. Compliance reviews for U.S. carriers, however, must occur on-
site. In addition, during a Mexican carriers' 18-month ``safe harbor,''
for the following offenses carriers will be sanctioned only by a
deficiency letter or an expedited safety review--a review which they
presumably would have received within 18 months regardless of the
offense:
using a driver without a valid Commercial Driver's license
or its equivalent;
operating without insurance,
using drivers who have tested positive for drugs and
alcohol; and
using a vehicle that has been placed out of service without
correcting the violation incurring the penalty.
For U.S. carriers, these violations would incur fines for the
driver or the carrier, and could even trigger criminal penalties,
including jail time.
Comparisons Between Mexico and Canada on Commercial Carriers Are
Inappropriate and Misleading
Some commentators have misleadingly compared the U.S.-Mexico
relationship regarding commercial carrier access to that of the United
States and Canada. But this is comparing apples and oranges, because
Canadian domestic safety standards are very similar to those in the
U.S. and unlike Mexico, Canada maintains up-to-date databases on
Canadian trucking companies and drivers that are accessible to U.S.
authorities. Canadian databases, like those in the U.S. and unlike
Mexico's, include driver conviction records and carrier out-of-service
records. As proof of Canadian success in these areas, the out-of-
service rate for Canadian trucks traveling in the U.S. is even lower
than the out-of-service rate for U.S. trucks. In sum, the United States
can rely on Canada to enforce its own, comprehensive safety regulations
with respect to Canadian carriers. The United States does not have such
a relationship with Mexico.
The Administration's Proposed Rules Are A Safety Scandal
In its latest series of three proposed rules, the Federal Motor
Carrier Safety Administration (FMCSA) contemplates granting operating
authority to Mexican carriers without creating a process that will
assure the safety of American drivers. Despite the clear lack of
preparedness, the agency's proposed rules are scheduled to be
implemented before the end of the year--in less than 6 months. To
evaluate the safety fitness of Mexican carriers, the agency intends to
rely heavily on an unpopulated--that is, an empty--database that
currently lacks the basic information necessary to process Mexican
applications or to perform a safety review.
The agency also allows 18 months to pass before a safety audit is
completed, while carriers are permitted to cross the border and roam
throughout the United States. Eighteen months is far too long to wait
for verification of a company's compliance and safety record. In
addition, it is likely that FMCSA will not perform the audits in an
expeditious fashion. The proposed rules provide that the agency's
``safety oversight program'' will continue indefinitely after the 18-
month period has expired if the agency fails to conduct a safety review
within the allotted time. During this time unaudited Mexican carriers
can continue to operate throughout the U.S.
How the Proposed Rules Fail to Assure Safety
In the paper-based universe created by the proposed new DOT rules,
operating authority is granted by U.S. officials if the application
from a carrier is complete. This approach falls far short of the
assurances that are needed for safety. For example, the application
asks carriers to certify their knowledge of, and intention to follow,
U.S. regulations by checking boxes indicating the answer is ``yes,''
yet fails to provide a box to check ``no''! Although applicants must
describe their plans to monitor employee logbooks and implement an
accident monitoring system, the FMCSA has no process in place to verify
this or any other information provided the application. The Department
of Transportation has never implemented a verification process for
Mexican truck registration information, and as a result, according to
DOT's own Inspector General, much of the information that the DOT
currently has in its databases regarding Mexican-domiciled carriers is
outdated or unverified.
Indeed, the instructions on the proposed applications contained in
the rule suggest that applicants' business information cannot be
compared or cross-checked, because the application forms instruct
applicants to enter the name of the carrier exactly the same way each
time a name is required, or, the form implies, the department's data
system may list two slightly different names as two different
companies. This instruction suggests that the DOT has no way to cross-
check the owners, addresses, and other information of a company to
ensure that a company is not counted twice. A simple typographical
error in the name of a carrier for an entry of inspection or crash data
into the database, then, could prevent the agency from matching
negative safety data with that carrier. In addition, carriers with a
poor safety record could re-register under a new name to get a second
``chance'' in the DOT database.
According to the proposed rules, for the agency's 18-month Mexican
carrier safety review, FMCSA will examine ``performance-based safety
information'' in its Motor Carrier Management Information System
(MCMIS), as well as the documents that must be maintained by motor
carriers under the rules. FMCSA officials have stated that the purpose
of the 18-month interval is to allow U.S. officials to compile
inspection and truck crash information on a carrier during its
operation in the United States. At the same time, it is undisputed that
the Mexican carriers will face a ``learning curve'' similar to that of
other new entrant carriers--indicating that these new carriers will
necessarily be more dangerous in the beginning of their operations.
Using the public highways as a testing ground for the safety of
inexperienced foreign carriers is outrageous and completely
unnecessary.
Mexico is supposed to maintain its own database of inspections and
crash information. If Mexico were conducting regular roadside
inspections and compiling crash data consistently and reliably, this
database would be useful in evaluating the safety fitness of Mexican
carriers before they are granted operating authority in the U.S.
Unfortunately, members of the Land Transportation Standards
Subcommittee, a group assembled under NAFTA to achieve comparable
safety standards among the treaty's countries, admitted that this
database is not yet populated with any meaningful data, such as
inspection and crash data. There is no evidence of the level of access
that Mexican authorities on the road have to the database, nor do we
know whether the information being added has any assurance of
reliability. And even if the information is being added, it may not be
representative of a Mexican carrier's safety fitness on U.S. roads
because Mexican inspection standards are considerably weaker than those
in the U.S.
According to FMCSA's proposed rules, the required 18-month safety
review may be conducted within the United States or at the carrier's
place of business in Mexico. This proposal is inadequate on its face.
Any meaningful audit system should, without doubt, require an on-site
evaluation and inspection of the carrier's place of business.
The integrity of the application and review process is critical
because the high out-of-service rates and anecdotal evidence regarding
the status of the Mexican trucking fleet show that tremendous
improvement would be necessary to meet U.S. safety standards. This
situation is nothing short of critical, given that U.S. border
inspection facilities lack the resources and large number of new
inspectors that will be needed to pick up the slack created by weak
Mexican regulations and enforcement.
Our Stretched Border Resources Will Not Protect the Public
The already inadequate inspection force at the border will be
completely unprepared for the influx of newly admitted carriers. The
number of federal inspectors at the border is less than half of the
number that was estimated to be necessary in 1998, and that number did
not include the investigators that will be necessary for the agency to
conduct its 18-month safety reviews. Hiring and training a new FMCSA
inspector requires at least 6 months--additional inspectors, even were
they authorized today, would not be in place before the end of the
year.
Most states, including the border states, are completely unprepared
to deal with the increased traffic that will result from opening the
border. Texas, which has the most border crossings and the highest
traffic volume of Mexico-domiciled carriers, does not have permanent
inspection facilities at any crossing point. The Texas legislature
recently passed a resolution asking Congress to recognize the impact
that further opening the border to Mexican trucks will have on Texas
and its resources. The Texas legislature also asked Congress for
increased funding, amounting to an amazing $11 billion, to offset the
costs of greater infrastructure needs for border crossings and trade
corridors within its state.
In fact, most of the border crossings are sorely in need of
infrastructure improvements. Most border states do not have full-time
state inspectors at the border during all hours of operations. While
plans for building projects have been made, no permanent inspection
facilities have been built since 1998, and no permanent facilities
exist outside the California border areas. A recent study documented
that border crossings lack Internet connections, inspection space, and
space to park out-of-service vehicles. In preparing a May 2001 DOT
Inspector General report, investigators visited all 27 border crossings
and found that at 20 crossings, FMCSA inspectors did not have dedicated
phone lines to access databases, such as those for validating a
driver's license; at 19 crossings, FMCSA inspectors had space to
inspect only 1 or 2 trucks at a time; and at 14 crossings, FMCSA
inspectors had only 1 or 2 spaces to park vehicles placed out of
service. In addition, the sites' out-of-service space was shared with
inspection space at a majority of the crossings. FMCSA must address
these serious shortcomings before the volume of cross-border traffic
increases or trucks crossing the border are operating throughout the
United States.
Our research has also shown that once a truck gets beyond the
border, it is not likely to face inspection or verification of
operating authority, called registration, by either state or federal
officials. This is truly a tragic impediment to enforcement, because
the primary means of enforcing U.S. standards for Mexican carriers
during the 18-month safety oversight program is for U.S. officials to
suspend or revoke a carrier's registration. However, trucks crossing
the border are only checked for registration when they are inspected,
and only 1 percent of trucks crossing the border are inspected at all.
Even at the border, it is unlikely that illegal trucks will ever get
caught, because only federal inspectors and California's state
inspectors routinely check for certificates of registration. U.S.
customs officials and other state inspectors do not routinely check for
valid registration.
Mexican Drivers Will Escape New Penalties for Dangerous U.S. Commercial
Drivers
Another proposed rulemaking by FMCSA would disqualify the
commercial drivers licenses of drivers who are convicted of serious
driving violations, such as drunk driving, leaving the scene of an
accident, violating railroad-highway grade crossing signs, excessive
speed, and reckless driving, regardless of whether the offense was
committed while driving a personal vehicle or a commercial vehicle.
This new rule, a significant step toward insuring the safety of
commercial vehicle traffic, cannot presently be enforced with respect
to Mexican drivers, due to the lack of data in the shared Mexico-U.S.
database about the personal driving records of Mexican truck drivers.
Therefore, it appears that FMCSA will not be able to enforce this law
for Mexican commercial drivers due to practical constraints,
demonstrating once again that safety steps applicable to U.S. and
Canadian commercial drivers will far less frequently be applied to
Mexican drivers, and that the penalties for infractions committed by
Mexican carriers and drivers will, for technical reasons, in practice
be far less severe.
Recommendations
We support the well-tailored proposals passed last week by the
Senate Appropriations Committee. A plan for strengthening border
oversight and crafting a reliable system for the admission of safe
Mexican commercial carriers cannot be rushed or addressed in a
piecemeal fashion. Only a comprehensive plan that addresses all of
these safety concerns will insure the safety of U.S. highways and the
public. Our recommendations are the minimum that should be required and
are as follows:
As the Senate Committee required, FMCSA must require on-site
safety reviews of Mexican carriers prior to granting operating
authority. FMCSA must not test the safety of Mexican carriers
on U.S. motorists. On-site safety reviews can evaluate factors
indicating the ability of a carrier to comply with U.S. laws,
while review of a paper application cannot. Safety compliance
reviews, conducted at a carrier's place of business with
independent federal verification of drivers' license validity,
equipment safety, inspection and repair facilities, safety
management controls, and interviews with on-site company
officials, among other elements of a complete safety compliance
effort, should be the primary basis for evaluating the safety
of Mexico-domiciled carriers and should be a predicate of
operating authority, as they are in the United States.
As recommended by the Senate Committee, FMCSA should require
Mexican carriers to complete a proficiency test to demonstrate
their knowledge of U.S. laws and safety regulations. The Motor
Carrier Safety Improvement Act of 1999 directs the Secretary of
DOT to establish minimum requirements for applicant motor
carriers to ensure that they are knowledgeable about federal
motor carrier safety standards; it also directs the Secretary
to consider the establishment of a safety proficiency
examination for these applicants to test their knowledge of
safety requirements. This requirement is supported by law and
is reasonable prior to a grant of operating authority.
As indicated by the Committee, FMCSA must increase the
number of full-time federal inspectors at the border and help
states to supply state inspectors so that inspectors are
present at all border crossings during all hours of operation.
According to the General Accounting Office, each of the 161
state and federal inspectors who were on the job in March 2000
would have to inspect an incredible 24,800 Mexican trucks
annually to inspect those then crossing the border. The DOT
Inspector General should be required to certify, as the
Committee indicates, that an adequate number of inspectors have
been hired and trained to perform meaningful border and on-site
safety inspections. FMCSA must provide for the hiring and
training of additional inspectors to conduct the on-site safety
reviews. As the Committee required, DOT should require that
trucks be permitted to cross the border only at times when
inspectors are on duty.
FMCSA must require that the licenses, certificates of
registration, and proof of insurance of all drivers and trucks
crossing the border are checked and verified, and that a far
more substantial proportion of trucks crossing the border are
inspected. In addition, the border should not be opened until
DOT has assured Congress that Mexico's information
infrastructure is established, accurate, functional and
informative, as the Committee specified.
As the Committee required, FMCSA must ensure that all border
crossings have permanent inspection facilities that include
weigh stations (Weigh-In-Motion systems), dedicated phone lines
for accessing databases, and ample space to conduct inspections
as well as parking places for out-of-service vehicles. Until
all 27 border areas are upgraded, and until the Inspector
General certifies that telephone connections and computer links
exist at all border crossings and mobile enforcement units,
commercial carriers should be limited to crossing where there
are adequate inspection facilities. As the Committee required,
DOT should be required to electronically verify the license of
carriers crossing the border. In addition, DOT should be
required to electronically verify the registration information
of carriers.
As the Committee provided, the border should remain closed
until DOT Inspector General certifies that FMCSA has put in
place a plan to ensure compliance with U.S. hours-of-service
rules. To assist with enforcement, the Inspector General should
also certify that DOT has assigned Mexican trucks an operating
number to allow state inspectors to track the carrier's
movements.
As the Committee required, state inspectors who receive
federal funds should be made to check for violations of federal
law, including the validity of registration and drivers'
licenses. DOT should also implement, as the Committee required,
a system similar to that for U.S. drivers that prevents Mexican
drivers from being able to acquire a new license if their
license has been lost as a penalty for legal infractions.
As the Committee provided, prior to opening the border, DOT
must issue rules regarding: (1) proficiency examinations; (2)
improved training for domestic safety auditors; (3) staffing
standards for inspection sites at the U.S.-Mexico border; (4)
prohibitions on foreign motor carriers' leasing vehicles to
another carrier while suspended for rule infractions; (5)
disqualifications of carriers that have operated illegally in
the U.S.
The border must not be opened until all of these conditions are
met.
______
In Mexico, Graft Infects Every Aspect of Society
By Laurie Goering
About 10 times each day in Mexico City, the transit policeman pulls
over a traffic offender. The encounter is nearly always the same.
The driver offers a bribe of about $4, eager to avoid a drive to
the nearest police delegation and a wait of an hour or more to be
issued a formal $30 ticket. The officer accepts. On his salary of just
$275 a month--too little for a home of his own or a car--the extra
money is crucial to paying basic bills for his wife and two children,
he insists.
``We have to accept. It's out of necessity,'' says the 10-year
veteran of the force, leaning against his white squad car. ``Anyway,
we're not the ones asking. Corruption comes from both sides.''
Since ending 71 years of one-party rule in Mexico last year,
President Vicente Fox has made battling Mexico's deeply entrenched
corruption a top priority. But the scale of the job--excising a cancer
that has metastasized into nearly every aspect of Mexican life--is
enormous.
In Mexico, anyone with a few dollars to spare pays for a driver's
license, rather than taking the test and standing in line for most of a
day. Businessmen seeking a license to open a new store are asked for a
hefty ``voluntary donation'' to speed the process. Mexican newspapers
run almost daily headlines about police involved in kidnapping rings,
drug traffickers bribing their way out of prison or state companies
firing whistle-blowers.
In the most recent Transparency International ranking, Mexicans
themselves put their country nearly in the top third of corrupt nations
worldwide, closer to Nigeria, the most corrupt, than Finland, the
least.
A daunting task
``Corruption is almost a lifestyle here,'' says Guadalupe Loaeza, a
Mexico City author of books on Mexican social conditions. ``It's part
of our mentality and it's hard for us to fight against it.''
The fight, however, has begun. In January, Mexico's first
Commission for Transparency and Combating Corruption was installed, and
it has moved quickly to begin identifying and combating corruption
problems, particularly in the nation's executive and administrative
branch.
An initial study of corruption problems in 205 federal institutions
found 5,328 separate kinds of corruption, said Hugo Gutierrez, the
executive secretary of the commission.
Staff in those offices came up with 7,118 ideas on how to stop
corruption--but also 2,427 kinds of problems standing in the way of
doing that, including everything from low salaries to reluctance to
turn in corrupt colleagues.
To find solutions, the commission is turning to foreign examples,
from cash controls at Las Vegas casinos--``dealers don't even have
pockets in their pants,'' Gutierrez notes--to transparency agreements
that have worked to cut customs and industry corruption in nations like
Panama.
The commission has signed anti-corruption accords with the nation's
major universities, labor groups, farm organizations and bankers and
lawyers associations. Even the Institutional Revolutionary Party, or
PRI, which ruled Mexico with a corruption-tainted iron grip for 70
years, has signed on.
Coordinated attack needed
What is clear, Gutierrez says, is that successfully cracking down
on corruption will require a coordinated attack on many fronts, from
training public workers in professionalism and ethics to ending
impunity for violators. Complicated bureaucratic processes will have to
be trimmed, sanctions revamped, workers trained to be more efficient,
and society at large persuaded, through education and public-relations
campaigns, not to pay la mordida--the bite.
``We have to strengthen the ethical infrastructure of our people,''
Gutierrez said.
A new sign on his office wall sports an apple with a bite missing,
and a bright red slash across it. ``Don't feed corruption,'' it says.
The fight won't be an easy one. Members of the Mexican
Congressional Commission and Public Security have begun introducing
legislation considered key to the anti-corruption effort, including a
rewrite of a national law of responsibilities for public workers and a
measure to allow suspected ill-gotten gains of corruption to be frozen
while a suspect is tried.
Anti-corruption advocates also hope to pass a new law giving the
public and the media access to basic government data, boost penalties
for influence peddling and create a federal register of public workers
to make it easier for government employers to check for past corruption
violations.
Fighting corruption ``is our highest priority,'' says Armando
Salinas, the president of the congressional commission and a member of
Fox's National Action Party, or PAN. ``Mexicans say they want no more
of it.''
Passing all the new reforms, however, will be a challenge. Miguel
Barbosa, another member of the congressional committee, says he has
already begun to see lobbying against the measures by powerful
interests that have grown rich on corruption and have plenty of money
to spread among friendly members of Congress.
``This isn't going to be easy,'' he said. ``Politics have changed
in Mexico, but the interests have not.''
Victor Gandarilla, a PRI member on the commission, agrees.
``People say this is another Mexico, but we're continuing with the
same Mexicans,'' he said. In his view, the best way to turn Mexicans
against corruption ``is for them to see it punished.''
Punishing corruption is critical, analysts say, to the new
government's efforts being taken seriously. But some corruption,
especially that associated with drug trafficking, will be hard to
prosecute, much less stop.
Fernando Tenorio, the head of Secure Cities, a program through
Mexico's National Institute of Penal Sciences, says an increasing
percentage of Mexico's corruption is ``not just corruption but
organized corruption'' that involves rings of criminals, from private
security officers to prison guards.
Unraveling those networks, which have based themselves on cartels,
will be tough. Tenorio believes firings combined with
professionalization programs--his program offers master's and doctorate
programs for judges and public administrators--is the answer.
``It's unthinkable that we're going to eliminate corruption but it
could be reduced to tolerable levels in 6 years,'' the length of Fox's
term, he predicted.
Among other keys to rooting out entrenched corruption in Mexico,
national and international analysts say, is sending out undercover
officers to offer bribes, then following up with suspensions, loss of
government jobs, fines and arrests and convictions for those who take
them. Anti-corruption officials say they plan just that.
PRI as watchdog
Mexico's newly strengthened democracy also should play a key role
in the effort. With the PRI now out of power and eager to return, it
will act as a watchdog on spending in Fox's new PAN government,
analysts say.
Finally, the government will need to boost salaries for key
underpaid workers, and remove what Alberto Aziz, a professor at the
Center for Investigation and Advanced Study in Social Anthropology
calls ``laws so absurd you have to violate them,'' from driver's exams
asking what Violation 36 is, to bureaucratic licensing processes that
take years unless bribes are paid to bypass the system.
Perhaps the best sign that things really might change in Mexico is
an increasingly evident shift of attitudes on the street. A foreign
businessman who told Mexican colleagues recently about paying off a
traffic cop was met not with knowing nods but with disdain.
``How is the country ever going to change if you keep doing that?''
they demanded angrily.
Since Fox's election and the end of one-party rule in Mexico,
``people are feeling more like citizens,'' Tenorio suggests. ``I think
if the government puts forward a good example, people will follow it.
______
Recent Mexican Trucking Rules Do Not Solve Serious Safety Hazards:
NAFTA Ruling Could Expose U.S. Public to Dangerous Cross-Border Trucks
February 7, 2001
A final ruling was handed down February 6, 2001 following a
complaint filed by Mexico under the North American Free Trade Agreement
(NAFTA), in which Mexico argued that its commercial trucks should be
allowed unlimited access to U.S. highways. A NAFTA arbitration panel,
after meeting for months in secret, found that the U.S. must allow
Mexican commercial trucks to carry cargo throughout the U.S. or else
pay trade sanctions for our refusal to comply, regardless of a well-
documented history of U.S. safety concerns.
NAFTA outlined an arbitrary schedule that allowed Mexican carriers
limited access to U.S. border states in 1995 and access to the entire
U.S. by January 2000. NAFTA also created cross-border working groups on
vehicle standards and safety, and Mexico agreed to improve safety at
home. But the safety provisions of NAFTA, predictably, have no teeth,
because the timelines for both partial and full commercial access were
not linked to any progress in the safety of Mexico's trucking fleet.
And the promised improvements have not been made. Due to the
serious and unresolved concerns about the grave risk to U.S. motorists
of crashes with dangerous, overloaded trucks, until the panel decision,
Mexican trucks were limited to a small zone near the border. Last
January, President Clinton explained that the Mexican highway
inspections and monitoring system was inadequate to assure safety.
Although Mexican trucks in theory have to comply with U.S. law
before they can cross the border, in practice the U.S. needs Mexico to
improve safety at home because U.S. border inspectors cannot possibly
check every cross-border truck. In fact, studies by the Department of
Transportation Inspector General and the General Accounting Office
showed that even though less than one percent of cross-border Mexican
trucks were inspected, 35 percent of those trucks had to be taken out
of service because of serious safety violations. For all of these
reasons, the Clinton Administration's policy was that Mexican trucks
would not be allowed full access to the U.S. until considerable safety
and oversight improvements were complete.
Last July, the Mexican government finally established a set of
fledgling ``standards'' for commercial trucks and the authority and
guidelines for roadside inspections. But a majority of the new
inspection standards for critical items such as tires, headlights and
hazardous materials are merely voluntary in the first year. Even once
they become mandatory, the new rules are far from comprehensive, and in
many cases they could provide legal cover for very dangerous practices.
The rules provide the basis for roadside inspections only on
Mexico's federal highways--only 10 percent of Mexican roads-- without
additional money for inspectors or inspection sites. Until a system of
privately owned inspection areas is established, the rules say that
inspection checks will be ``random'' and done by ``General Road
Inspectors.'' There is no mention of special training programs or of
any increase in the number of safety checks near border areas.
I. Summary of Flaws and Omissions in the Recently Enacted Mexican Rules
When the final ruling was announced, the United States Trade
Representative stated that President Bush supports allowing the Mexican
trucking fleet unlimited access to the U.S. Public Citizen examined the
new rules issued by Mexico to ascertain whether they are likely to
reduce the risks posed by a fresh onslaught of Mexican trucks. Across
every category, researchers found, the rules come up short.
A. General Problems:
LIndustry Wrote the Rules: Industries that will profit from the
lack of adequate safety rules for cross-border trucks had a
heavy hand in crafting the regulations. The second and third
pages of the Mexican government's new rules identify the
participating groups as the National Association of Producers
of Buses, Trucks, and Tractor Trailers, the National Chamber of
Motor Transport Hauling, the National Chamber of Rubber
Industry, the National Chamber of Iron and Steel Industries,
and the National Association of the Chemical Industry, as well
as about twenty other companies and industry alliances.
LVery Limited Application: Only a very small portion of the
roads in Mexico are part of a national set of highways and thus
under federal oversight. Over 90 percent of the surface mileage
in Mexico on which trucks operate are under provincial and
local jurisdiction. Trucks on these roads are not subject to
inspection under the new rules.
LSevere Time Limits on Inspections: Although the new inspection
process requires 31 separate equipment checks, with more than
143 actions to test components of the truck, the rules state
that the maximum time for an inspection of a general cargo
carrier is 30 minutes, while an inspection of a hazardous
materials carrier is limited to an even less generous 20
minutes. In the U.S., there is no time limit for inspections,
and discovery of a serious infraction may trigger a
comprehensive safety inspection, which can take hours.
LTotal Lack of Monitoring and Oversight: Although creation of a
joint U.S.-Mexico database is in progress, it is years from
completion. Company and driver safety records will be difficult
to track until much better systems (that include roadside
compliance data) are developed and fully implemented as an
enforcement and monitoring tool.
LStill No Hours-of-Service Limitations: Hours-of-service
regulations limit the number of hours that commercial drivers
may spend behind the wheel of large, dangerous trucks and have
been a focus of safety efforts in the U.S. Mexico has no
limitations in this area whatsoever. In fact, Mexico's new rule
on logbook inspections states that ``The driver's hours of
service is designed by company, according to its needs.'' This
statement surely was enshrined in regulation by companies that
profit by maintaining control over their workers' hours and, in
context, evinces a near-total disregard for the safety of other
drivers on the highway.
LTwo-Year Across-the-Board Exemptions for New Vehicles: New
vehicles are exempt from all standards and inspections for 2
full years from the date of manufacture.
LSafety Problems Are Treated in Isolation: The rules do not
work cumulatively, so vehicles with multiple, but borderline,
safety problems will be able to stay on the road.
LThe Deterrence Effect of Fines is Unclear: Although fines are
authorized, the rules do not state their amount or consider
their deterrent effects against industry profits.
II. Severe Safety Defects Are Systematically Overlooked by the New
Rules
To fully convey the serious limitations of the newly-created
Mexican inspection and certification regime, we compiled a list of the
safety failures covered by the regulations. The violations listed below
would result in a vehicle's automatic or very probable removal from
U.S. highways (called an ``out-of-service order''). In Mexico these
safety violations merely incur a fine and a promise to fix the problem
within twenty days.
Sections of the Recent Mexican Regulations
That Allow Unsafe Mexican Vehicles to Remain on the Road
For the following types of failures, an out-of-service order would
be automatic under U.S. law, but in Mexico will merely incur a ticket
and a promise to fix the problem within 20 days:
Transport of Hazardous Materials (Section 4.2)
1. LIncompatible materials in the same shipment
2. LBulk loads improperly blocked or secured
3. LIdentifications and warnings do not match material being
transported
4. LMore than 25 percent of anchoring components are missing
5. LUse of tanks not designed or authorized for transported
products
6. LEscaping, leaking or spilling material from a transport
tank
7. LFailure to carry the appropriate Transport Emergency
information
Logbooks (Section 4.2)
1. LNon-existent
For the following types of failures, an out-of-service order would
be extremely probable under U.S. law, but in Mexico will merely incur a
ticket and a promise to fix the problem in 20 days:
Lighting Systems (Section 4.1)
1. LElectrical system fuses missing and bridged instead with
wire, aluminum or other materials
2. LWorn, exposed wires, missing insulation, wire twisted with
other cables
3. LHeadlights missing or inoperable when needed for
climatological reasons or night travel
4. LBrake lights missing or inoperable
Windshield Wipers (Section 4.3)
1. LNo windshield wipers and spray jets
Windshield (Section 4.4)
1. LShattered or missing windshield
Tires, Inner Tubes and Belts (Section 4.5)
1. LTires: walls cut or damaged, structural material exposed,
not designed for highway use, tire tread separation, rubbing
against adjacent surfaces, exposed radial belts, tires
separating from wheels
Wheels and Rims (Section 4.6)
1. LBent, broken or cracked wheel rims
Frames, Rails or Truck Chassis; Semi-Trailer/Trailer Frame (Sections
4.7 and 4.8)
1. LCracked, loose, bent or broken frame rails, including those
permitting movement of the chassis, and twists, bends and
weaknesses due to cracks in the vehicle chassis
Fuel System (Section 4.9)
1. LGas cap missing, filling pipe permits fuel spillage and
fuel lines leak
Vehicle Load Securing (Section 4.1)
1. LCracked, broken, stretched, twisted, worn, ruptured and
knotted load securement chains, and cables and cut, burned or
punctured synthetic belts
2. LSeparation of load containment side boards or stakes, or
the inadequate height of side walls which are unable to prevent
load from falling
Exhaust System (Section 4.11)
1. L``Unsafe'' mounting of, or broken or damaged parts of
exhaust pipes for gases, smoke, and/or multiple collectors
Steering System (Section 4.12)
1. LLoose steering wheel or detached joints, missing U-bolts or
securing bolts for steering column
2. LSteering gear box detached from its mounting on the chassis
or a rupture in the gear box or its mounting brackets
Suspension System (Section 4.13)
1. LNo springs on mechanical suspension
2. LPneumatic suspension with cracked suspension frame or loose
U-bolts.
Pneumatic Brake System (Section 4.14)
1. LCurled, obstructed or broken hoses or pipes
2. LBrake drums with cracks on their sides
3. LDetached or loosely mounted brake chambers
4. LMore than 20 percent of the brake system's ``push rods''
out of adjustment
Hydraulic Brake System (Section 4.15)
1. LInoperative brake linings (non-moving) and/or oil
contamination of brake drums
2. LMissing brake lining segments
Electric Brake System (Section 4.16)
1. LMissing, non-existent, ruptured or defective brake on
vehicle wheel
Cabin (Truck Cab) (Section 4.18)
1. LInoperative instruments and interior controls, including
inoperative air pressure gauge for air brakes, emergency
warning signal, emergency brake control, seatbelts, fire
extinguishers
2. LNo seats
3. LNo ``speed control device'' (throttle)
Although inapplicable to commercial trucks, the rules are also lax
about the safety of passenger buses:
Passenger Area in Buses (Section 4.19)
1. LNo emergency equipment, no emergency exit, inoperative
emergency exit, holes in bus passenger area floor, seats not
secured to floor, no seatbelts, inoperative interior lights
The translated text of the Mexican regulations is available on the
Public Citizen Web site at www.citizen.org.
A more comprehensive report on the serious safety hazards of the
NAFTA panel decision and the options open to the Bush administration is
available on the Public Citizen Web site at www.citizen.org/pctrade/
nafta/reports/truckstudy.htm
______
Mexico's Trucks on Horizon Long-distance haulers are headed into U.S.
once Bush opens borders
Robert Collier, Chronicle Staff Writer
Altar Desert, Mexico--Editor's Note: This week, the Bush
administration is required by NAFTA to announce that Mexican long-haul
trucks will be allowed onto U.S. highways--where they have long been
banned over concerns about safety--rather than stopping at the border.
The Chronicle sent a team to get the inside story before the trucks
start to roll.
It was sometime way after midnight in the middle of nowhere, and a
giddy Manuel Marquez was at the wheel of 20 tons of hurtling, U.S.-
bound merchandise.
The lights of oncoming trucks flared into a blur as they whooshed
past on the narrow, two-lane highway, mere inches from the left mirror
of his truck. Also gone in a blur were Marquez's past 2 days, a nearly
Olympic ordeal of driving with barely a few hours of sleep.
``Ayy, Mexico!'' Marquez exclaimed as he slammed on the brakes
around a hilly curve, steering around another truck that had stopped in
the middle of the lane, its hood up and its driver nonchalantly smoking
a cigarette. ``We have so much talent to share with the Americans--and
so much craziness.''
Several hours ahead in the desert darkness was the border, the end
of Marquez's 1,800-mile run. At Tijuana, he would deliver his cargo,
wait for another load, then head back south.
But soon, Marquez and other Mexican truckers will be able to cross
the border instead of turning around. Their feats of long-distance
stamina--and, critics fear, endangerment of public safety--are coming
to a California freeway near you.
Later this week, the Bush administration is expected to announce
that it will open America's highways to Mexican long-haul trucks, thus
ending a long fight by U.S. truckers and highway safety advocates to
keep them out.
Under limitations imposed by the United States since 1982, Mexican
vehicles are allowed passage only within a narrow border commercial
zone, where they must transfer their cargo to U.S.-based long-haul
trucks and drivers.
The lifting of the ban--ordered last month by an arbitration panel
of the North American Free Trade Agreement--has been at the center of
one of the most high-decibel issues in the U.S.-Mexico trade
relationship.
Will the end of the ban endanger American motorists by bringing
thousands of potentially unsafe Mexican trucks to U.S. roads? Or will
it reduce the costs of cross-border trade and end U.S. protectionism
with no increase in accidents?
Two weeks ago, as the controversy grew, Marquez's employer,
Transportes Castores, allowed a Chronicle reporter and photographer to
join him on a typical run from Mexico City to the border.
The 3-day, 1,800-mile journey offered a window into a part of
Mexico that few Americans ever see--the life of Mexican truckers, a
resourceful, long-suffering breed who, from all indications, do not
deserve their pariah status north of the border.
But critics of the border opening would also find proof of their
concerns about safety:
--American inspectors at the border are badly undermanned and will
be hard- pressed to inspect more than a fraction of the incoming
Mexican trucks.
California--which has a much more rigorous truck inspection program
than Arizona, New Mexico or Texas, the other border states--gave full
inspections to only 2 percent of the 920,000 short-haul trucks allowed
to enter from Mexico last year.
Critics say the four states will be overwhelmed by the influx of
Mexican long-haul trucks, which are expected to nearly double the
current volume of truck traffic at the border.
--Most long-distance Mexican trucks are relatively modern, but
maintenance is erratic.
Marquez's truck, for example, was a sleek, 6-month-old, Mexican-
made Kenworth, equal to most trucks north of the border. But his
windshield was cracked--a safety violation that would earn him a ticket
in the United States but had been ignored by his company since it
occurred 2 months ago.
A recent report by the U.S. Transportation Department said 35
percent of Mexican trucks that entered the United States last year were
ordered off the road by inspectors for safety violations such as faulty
brakes and lights.
--Mexico's domestic truck-safety regulation is extremely lax.
Mexico has no functioning truck weigh stations, and Marquez said
federal police appear to have abandoned a program of random highway
inspections that was inaugurated with much fanfare last fall.
--Almost all Mexican long-haul drivers are forced to work
dangerously long hours.
Marquez was a skillful driver, with lightning reflexes honed by
road conditions that would make U.S. highways seem like cruise-control
paradise. But he was often steering through a thick fog of exhaustion.
In Mexico, no logbooks--required in the United States to keep track
of hours and itinerary--are kept. Marquez slept a total of only seven
hours during his 3-day trip.
``We're just like American truckers, I'm sure,'' Marquez said with
a grin. ``We're neither saints nor devils. But we're good drivers,
that's for sure, or we'd all be dead.''
Although no reliable statistics exist for the Bay Area's trade with
Mexico, it is estimated that the region's exports and imports with
Mexico total $6 billion annually. About 90 percent of that amount moves
by truck, in tens of thousands of round trips to and from the border.
Under the decades-old border restrictions, long-haul trucks from
either side must transfer their loads to short-haul ``drayage''
truckers, who cross the border and transfer the cargo again to long-
haul domestic trucks. The complicated arrangement is costly and time-
consuming, making imported goods more expensive for U.S. consumers.
Industry analysts say that after the ban is lifted, most of the two
nations' trade will be done by Mexican drivers, who come much cheaper
than American truckers because they earn only about one-third the
salary and typically drive about 20 hours per day.
Although Mexican truckers would have to obey the U.S. legal limit
of 10 hours consecutive driving when in the United States, safety
experts worry that northbound drivers will be so sleep-deprived by the
time they cross the border that the American limit will be meaningless.
Mexican drivers would not, however, be bound by U.S. labor laws, such
as the minimum wage.
``Are you going to be able to stay awake?'' Marcos Munoz, vice
president of Transportes Castores jokingly asked a Chronicle reporter
before the trip. ``Do you want some pingas?''
The word is slang for uppers, the stimulant pills that are commonly
used by Mexican truckers. Marquez, however, needed only a few cups of
coffee to stay awake through three straight 21-hour days at the wheel.
Talking with his passengers, chatting on the CB radio with friends,
and listening to tapes of 1950s and 1960s ranchera and bolero music, he
showed few outward signs of fatigue.
But the 46-year-old Marquez, who has been a trucker for 25 years,
admitted that the burden occasionally is too much.
``Don't kid yourself,'' he said late the third night. ``Sometimes,
you get so tired, so worn, your head just falls.''
U.S. highway safety groups predict an increase in accidents after
the border is opened.
``Even now, there aren't enough safety inspectors available for all
crossing points,'' said David Golden, a top official of the National
Association of Independent Insurers, the main insurance-industry lobby.
``So we need to make sure that when you're going down Interstate 5
with an 80,000-pound Mexican truck in your rearview mirror and you have
to jam on your brakes, that truck doesn't come through your window.''
Golden said the Bush administration should delay the opening to
Mexican trucks until border facilities are upgraded.
California highway safety advocates concur, saying the California
Highway Patrol--which carries out the state's truck inspections--needs
to be given more inspectors and larger facilities to check incoming
trucks' brakes, lights and other safety functions.
Marquez's trip started at his company's freight yard in
Tlalnepantla, an industrial suburb of Mexico City. There, his truck was
loaded with a typical variety of cargo--electronic components and
handicrafts bound for Los Angeles, and chemicals, printing equipment
and industrial parts for Tijuana.
At the compound's gateway was a shrine with statues of the Virgin
Mary and Jesus. As he drove past, Marquez crossed himself, then crossed
himself again before the small Virgin on his dashboard.
``Just in case, you know,'' he said. ``The devil is always on the
loose on these roads.''
In fact, Mexican truckers have to brave a wide variety of dangers.
As he drove through the high plateaus of central Mexico, Marquez
pointed out where he was hijacked a year ago--held up at gunpoint by
robbers who pulled alongside him in another truck. His trailer full of
canned tuna--easy to fence, he said--was stolen, along with all his
personal belongings.
What's worse, some thieves wear uniforms.
On this trip, the truck had to pass 14 roadblocks, at which police
and army soldiers searched the cargo for narcotics. Each time, Marquez
stood on tiptoes to watch over their shoulders. He said, ``You have to
have quick eyes, or they'll take things out of the packages.''
Twice, police inspectors asked for bribes--``something for the
coffee,'' they said. Each time, he refused and got away with it.
``You're good luck for me,'' he told a Chronicle reporter. ``They
ask for money but then see an American and back off. Normally, I have
to pay a lot.''
Although the Mexican government has pushed hard to end the border
restrictions, the Mexican trucking industry is far from united behind
that position. Large trucking companies such as Transportes Castores
back the border opening, while small and medium-size ones oppose it.
``We're ready for the United States, and we'll be driving to Los
Angeles and San Francisco,'' said Munoz, the company's vice president.
``Our trucks are modern and can pass the U.S. inspections. Only
about 10 companies here could meet the U.S. standards.''
The border opening has been roundly opposed by CANACAR, the Mexican
national trucking industry association, which says it will result in
U.S. firms taking over Mexico's trucking industry.
``The opening will allow giant U.S. truck firms to buy large
Mexican firms and crush smaller ones,'' said Miguel Quintanilla,
CANACAR's president. ``We're at a disadvantage, and those who benefit
will be the multinationals.''
Quintanilla said U.S. firms will lower their current costs by
replacing their American drivers with Mexicans, yet will use the huge
American advantages--superior warehouse and inventory-tracking
technology, superior access to financing and huge economies of scale--
to drive Mexican companies out of business.
Already, some U.S. trucking giants such as M.S. Carriers, Yellow
Corp. and Consolidated Freightways Corp. have invested heavily in
Mexico.
``The opening of the border will bring about the consolidation of
much of the trucking industry on both sides of the border,'' said the
leading U.S. academic expert on NAFTA trucking issues, James
Giermanski, a professor at Belmont Abbey College in Raleigh, N.C.
The largest U.S. firms will pair with large Mexican firms and will
dominate U.S.-Mexico traffic, he said.
But Giermanski added that the increase in long-haul cross-border
traffic will be slower than either critics or advocates expect, because
of language difficulties, Mexico's inadequate insurance coverage and
Mexico's time- consuming system of customs brokers.
``All the scare stories you've heard are just ridiculous,'' he
said. ``The process will take a long time.''
In California, many truckers fear for their jobs. However,
Teamsters union officials say they are trying to persuade their members
that Marquez and his comrades are not the enemy.
``There will be a very vehement reaction by our members if the
border is opened,'' said Chuck Mack, president of Teamsters Joint
Council 7, which has 55, 000 members in the Bay Area.
``But we're trying to diminish the animosity that by focusing on
the overall problem--how (the opening) will help multinational
corporations to exploit drivers on both sides of the border.''
Mexican drivers, however, are likely to welcome the multinationals'
increased efficiency, which will enable them to earn more by wasting
less time waiting for loading and paperwork.
For example, in Mexico City, Marquez had to wait more than 4 hours
for stevedores to load his truck and for clerks to prepare the load's
documents--a task that would take perhaps an hour for most U.S.
trucking firms.
For drivers, time is money. Marquez's firm pays drivers a
percentage of gross freight charges, minus some expenses. His 3-day
trip would net him about $300. His average monthly income is about
$1,400--decent money in Mexico, but by no means middle class.
Most Mexican truckers are represented by a union, but it is nearly
always ineffectual--what Transportes Castores executives candidly
described as a ``company union.'' A few days before this trip,
Transportes Castores fired 20 drivers when they protested delays in
reimbursement of fuel costs.
But Marquez didn't much like talking about his problems. He
preferred to discuss his only child, a 22-year-old daughter who is in
her first year of undergraduate medical school in Mexico City.
Along with paternal pride was sadness.
``Don't congratulate me,'' he said. ``My wife is the one who raised
her. I'm gone most of the time. You have to have a very strong
marriage, because this job is hell on a wife.
``The money is okay, and I really like being out on the open road,
but the loneliness . . .'' He left the thought unfinished, and turned
up the volume on his cassette deck.
It was playing Pedro Infante, the famous bolero balladeer, and
Marquez began to sing.
``The moon of my nights has hidden itself.
``Oh little heavenly virgin, I am your son.
``Give me your consolation,
``Today, when I'm suffering out in the world.''
Despite the melancholy tone, Marquez soon became jovial and
energetic. He smiled widely and encouraged his passengers to sing
along. Forgoing his normal caution, he accelerated aggressively on the
curves.
His voice rose, filling the cabin, drowning out the hiss of the
pavement below and the rush of the wind that was blowing him inexorably
toward the border.
How NAFTA Ended the Ban On Mexico's Trucks
The North American Free Trade Agreement, which went into effect in
January 1994, stipulated that the longtime U.S. restrictions on Mexican
trucks be lifted.
Under NAFTA, by December 1995, Mexican trucks would be allowed to
deliver loads all over the four U.S. border states--California,
Arizona, New Mexico and Texas--and to pick up loads for their return
trip to Mexico. U.S. trucking firms would get similar rights to travel
in Mexico. And by January 2000, Mexican trucks would be allowed
throughout the United States.
However, bowing to pressure from the Teamsters union and the
insurance industry, President Clinton blocked implementation of the
NAFTA provisions. The Mexican government retaliated by imposing a
similar ban on U.S. trucks.
As a result, the longtime status quo continues: Trucks from either
side must transfer their loads to short-haul ``drayage'' truckers, who
cross the border and transfer the cargo again to long-haul domestic
trucks.
The complicated arrangement is time-consuming and expensive. Mexico
estimates its losses at $2 billion annually; U.S. shippers say they
have incurred similar costs.
In 1998, Mexico filed a formal complaint under NAFTA, saying the
U.S. ban violated the trade pact and was mere protectionism. The
convoluted complaint process lasted nearly 6 years, until a three-
person arbitration panel finally ruled Feb. 6 that the United States
must lift its ban by March 8 or allow Mexico to levy punitive tariffs
on U.S. exports.
______
Comparing Trucking Regulations
The planned border opening to Mexican trucks will pose a big
challenge to U. S. inspectors, who will check to be sure that trucks
from Mexico abide by stricter U.S. truck-safety regulations. Here are
some of the differences:
Hours-of-service limits for drivers:
In U.S.: Yes. Ten hours' consecutive driving, up to 15 consecutive
hours on duty, 8 hours' consecutive rest, maximum of 70 hours' driving
in 8-day period.
In Mexico: No
Driver's age
In U.S.: 21 is minimum for interstate trucking
In Mexico: 18
Random drug test
In U.S.: Yes, for all drivers
In Mexico: No
Automatic disqualification for certain medical conditions
In U.S.: Yes
In Mexico: No
Logbooks
In U.S.: Yes. Standardized logbooks with date graphs are required
and part of inspection criteria. In Mexico: A new law requiring
logbooks is not enforced, and virtually no truckers use them.
Maximum weight limit (in pounds)
In U.S.: 80,000
In Mexico: 135,000
Roadside Inspections
In U.S.: Yes
In Mexico: An inspection program began last year but has been
discontinued.
Out-of-service rules for safety deficiencies
In U.S.: Yes
In Mexico: Not currently. Program to be phased in over 2 years.
Hazardous materials regulations
In U.S.: A strict standards, training, licensure and inspection
regime.
In Mexico: Much laxer program with far fewer identified chemicals
and substances, and fewer licensure requirements.
Vehicle safety Standards
In U.S.: Comprehensive standards for components such as antilock
brakes, underride guards, night visibility of vehicle.
In Mexico: Newly enacted standards for vehicle inspections are
voluntary for the first year and less rigorous than U.S. rules.
Sources: Public Citizen, California Department of Transportation
and Chronicle research
______
The Coming NAFTA Crash:
The Deadly Impact of a Secret NAFTA Tribunal's Decision to Open U.S.
Highways to Unsafe Mexican Trucks
New Evidence Suggests that a NAFTA Ruling Allowing Mexican Trucks
Access to U.S. Will Expose the Public to Significant Threats
Introduction
A legal ruling by a North American Free Trade Agreement (NAFTA)
tribunal will be released in February 2001. The NAFTA ruling--requiring
the U.S. to permit access to U.S. highways by Mexican trucks--may not
only put American motorists and communities at great risk, but could
destroy NAFTA itself. Ironically, this NAFTA ruling--which could bring
NAFTA's threat to public health and safety directly into communities
nationwide--comes as President George W. Bush calls for the expansion
of NAFTA. Already his plan for the expansion of NAFTA to all the
Americas faces a decidedly negative U.S. public opinion as a result of
NAFTA.
The NAFTA dispute America faces about open-border trucking is
indicative of the split in the U.S. over corporate managed trade: on
one side are corporate pressures to use ``trade'' deals to further a
broad agenda of deregulation regardless of the environmental, health or
safety consequences; and on the other, the public pressures to demand
that international commercial agreements do not undermine important
social and environmental goals.
L``Just one unfortunate accident between an overweight, unsafe
Mexican truck and a Texas school bus . . . could escalate into
an international incident.''--Former Texas Attorney General Dan
Morales, Los Angeles Times, 3/18/96.
Imminently in early February, 2001, a final ruling will be issued
in a simmering trade dispute between the U.S. and Mexico that pits
commercial trucking interests against the public interest of safe
highways. A preliminary ruling in the case rejected U.S. arguments
regarding the lack of safety of Mexican trucks and ordered the U.S. to
permit access by Mexican trucks to U.S. highways.
The North American Free Trade Agreement went into effect in 1994
with provisions allowing Mexican trucks increasing access to U.S.
highways. These NAFTA provisions required the U.S. to open access to
all U.S.-Mexico border states in 1995 and to permit Mexican trucks to
travel throughout the entire U.S. as of January 1, 2000. Until these
provisions are implemented, because of a pre-existing U.S.-Mexico
agreement, Mexican trucks may operate in a border commercial zone
ranging from 3 to 20 miles into the U.S. to drop off loads destined for
U.S. interior states. There are no interior checkpoints to enforce the
border zone, however, and Mexican trucks have been pulled over many
times in the border states and beyond.
Other provisions of NAFTA require the U.S., Mexico and Canada to
negotiate unified standards for truck safety and commercial driver
licensing. Proponents of open border trucking argued that this would
allow Mexico to develop domestic standards at least as protective as
those in the U.S. Yet the standardization process was not linked in
NAFTA to the opening of the border and has not thus far led to the
establishment of cross-border, uniform safety standards. In defending
the administration's decision to keep the border closed, the U.S.
Department of Transportation (DOT) has repeatedly documented the
significant safety risks Mexican trucks would pose to U.S. highways.
L``We are seeing some frightening violations: air brakes that
aren't responding; brake and tail lights that are not working
or missing entirely. It's scary stuff.''--Lawrence Weintrob,
Department of Transportation Assistant Inspector General on
condition of Mexican trucks, USA Today 1/11/99.
Moreover, the standards that do exist for commercial trucks in the
U.S. are hardly a model for safety. Some critical standards, such as
restrictions on the number of hours that truckers may drive, date from
the 1930s. A consensus has been growing on Capitol Hill that this and
other safety measures need to be updated soon in order to protect the
public highway. If U.S. standards are upgraded the U.S. and Mexico
would have to go back to the drawing table on many issues, so that
Mexican trucks and driving rules would not lag behind the new U.S.
standards.
Because of all these concerns, while in office President Clinton
maintained the limited access to the border commercial zones and did
not allow any greater access to the four U.S. states bordering Mexico
or the rest of the U.S.
In 1998, Mexico challenged Clinton's refusal to open the border
before a NAFTA enforcement tribunal, demanding that the U.S. abide by
its NAFTA commitments and open its highways.* On November 29, 2000, the
NAFTA tribunal released its preliminary ruling on the case supporting
Mexico's claim: the U.S. must open its highways to Mexican trucks or
pay an as-yet-unnamed penalty to Mexico for refusing to comply with the
NAFTA ruling. A final ruling is due to be made by February 5, 2001 and
must be released to the public 15 days later.
---------------------------------------------------------------------------
* Mexico's initial complaint was that the U.S. did not open the
U.S. border states in December 1995 as agreed under NAFTA. However, the
NAFTA tribunal did not issue a preliminary ruling until after the NAFTA
transportation schedule also required the U.S. to open up the entire
country to Mexican truck traffic. Public Citizen has been unable to
determine whether during the course of the dispute Mexico amended its
complaint to include the U.S. refusal to open its highways countrywide
or not, despite repeated inquiries to the United States Trade
Representative, the Mexican Embassy, the American Trucking Association,
as well as consumer, highway safety and labor organizations concerned
with the case.
---------------------------------------------------------------------------
The final ruling was supposed to be released December 29, 2000 and
released to the public by January 14, 2001, according to NAFTA's pre-
set tribunal time lines (final decision is supposed to be provided 30
days after the preliminary ruling and released to the public 15 days
later). The delay of the ruling at least until February 5, 2001 may
suggest that the NAFTA tribunal sought to allow a transition in the
U.S. government to be completed so that President Bush, whose election
had only been certified days before the preliminary ruling, would be
the decision maker.
The preliminary ruling in the NAFTA truck case contained the legal
sophistry which is becoming increasingly common in trade tribunal
rulings as public oversight of this realm has increased. The panel
ultimately ordered the U.S. to open its border, but did so using crafty
language: the panel ruled that the U.S. can maintain its own truck
safety standards as long as it also complies with NAFTA's provisions.
In fact, there was never any question whether the U.S. could keep
its domestic truck safety rules on the books. The issue was whether
those safety standards could be enforced in the context of Mexican
trucks.
Owners of commercial fleets who wish to operate in the U.S. must
apply for operating permits from the U.S. Department of Transportation.
According to the NAFTA panel, the U.S. may require that Mexican
trucking companies which apply to be able to cross the border will meet
all U.S. safety and labor standards. While this sounds good in theory,
in practice given the state of Mexican inspection and enforcement, the
only way to monitor whether a company is upholding its obligations is
to check every truck which crosses the border and maintain good records
on the companies and trucks that fail inspection there or elsewhere in
the U.S. Although our government has been working with Mexico to
develop a common database to do just that since NAFTA was implemented,
no system is currently in place, and we are years away from a workable
monitoring process.
Additionally, although the imminent NAFTA border opening deadline
creates pressure on Mexico to develop a meaningful motor vehicle safety
standard and oversight system little progress has occurred. Although
some new Mexican laws are on the books, compliance is voluntary for the
first year, and there is little evidence on the level of the Mexican
government's commitment to enforce the new rules.
What the preliminary panel ruling actually required was that the
U.S. must comply with NAFTA and open its borders--regardless of our
state of readiness to enforce critical American health and safety
standards. If the U.S. also seeks to try to enforce U.S. safety
requirements, it must do so on a truck-by-truck basis. The U.S.
inspects approximately 40 percent of domestic trucks with inspections
being merely one element of its multifaceted truck safety regulatory
system.\1\ And the safety standards in Mexico will not do much to
assure American safety once the trucks cross the border. As described
in this report, Mexico has only a fledgling truck safety system. Our
experience thus far has demonstrated the risks. While fewer than 1
percent of Mexican trucks now entering the U.S. are inspected, fully 35
percent of those trucks are forced out of service due to serious safety
failures.
To attempt to fully enforce U.S. truck safety standards in the
context of Mexican trucks would require that every single Mexican truck
be inspected on the border. When President Bush was governor of Texas,
he signed a letter to the Clinton Administration criticizing the
refusal to open the border.\2\ The new administration may argue that
the U.S. can ensure safety by inspecting each Mexican truck. But the
government and the U.S. trucking industry (which seeks to hire cheap
Mexican drivers) know this is impossible.
Currently, 2 million trucks are inspected in the U.S. annually.
This includes the 1 percent of 4 million (or approximately 35,000)
Mexican trucks now crossing that are checked. DOT estimates that an
additional 3 million Mexican trucks would cross yearly if the border
were open. Thus, to inspect all entering Mexican trucks, U.S.
inspections per year must rise from 2 million to 9 million trucks.
Currently, there are about 101 state commercial truck inspectors and 60
federal inspectors at the border who are able to cover 1 percent of the
current 4 million Mexican trucks.* Thus, to cover every Mexican truck
if the border were opened with even a cursory inspection would require
32,000 inspectors. It is unlikely that the administration will
guarantee this enormous resource allocation or the necessary funding
for the construction of the huge new inspection facilities that would
be needed to avoid week-long border backups.
---------------------------------------------------------------------------
* Through interviews with state regulators, Public Citizen
discerned that the state of Texas provides 45 commercial truck
inspectors at the border, Arizona has 31 and California provides 25.
Public Citizen was not able to find out the current number of state
inspectors in New Mexico, but there were none in 1998, according to a
Department of Transportation Office of Inspector General Audit Report.
---------------------------------------------------------------------------
Yet, even if the U.S. had the additional resources to try to
enforce U.S. safety standards on a truck-by-truck basis, the
preliminary NAFTA truck ruling also included a cryptic reference to a
NAFTA provision that could require the U.S. to treat U.S. and Mexican
trucks identically for inspection purposes. In typical trade
doublespeak, the preliminary ruling contains language suggesting that
the U.S. could treat Mexican trucks differently for inspection
purposes. However, at the same time, the ruling requires that the U.S.
comply with NAFTA's Technical Barriers to Trade Chapter, which
explicitly forbids domestic and foreign players from being treated
differently.
L``We now have evidence that two-thirds of the trucks that come
across the border are not safe; they don't meet our standards.
And I intend to see the rules are followed before I follow the
rules on this.''--President Clinton on delaying the NAFTA truck
provisions, 10/99.
Amid the presidential election chaos, the crucial story of the
NAFTA truck ruling received little media coverage outside the ``trade
press.'' Yet, the upcoming decision has enormous policy and political
implications. President Bush has two basic options:
to reject the NAFTA tribunal's orders to open the border and
compensate Mexico for keeping the border closed until Mexican
trucks can meet U.S. safety requirements; or
to allow Mexican trucks to enter the U.S. and risk that
inevitable future crashes will lead to additional loss of life
and to a massive public backlash against NAFTA.
The high price to be paid under either response scenario--either
financially, to maintain safety, or personally and politically, with
increasing fatalities and injuries if the border is opened to unsafe
trucks--demonstrates that NAFTA is a severely flawed agreement.
President Clinton noted three major problems that were unsolved
when he kept the border closed in 1995:
major differences between U.S. and Mexican safety
regulations;
major differences in the application and enforcement of the
safeguards; and
the inability of states and federal regulators to
effectively enforce U.S. standards on Mexican trucks.\3\
Those concerns are still valid--permitting greater access for
Mexican trucks will endanger U.S. motorists, which is why U.S. consumer
and highway safety groups urge President Bush to keep the border closed
until the safety issues are addressed and to compensate Mexico as
NAFTA's rules require.
President Bush's response to this crisis will significantly impact
American public opinion regarding trade and President Bush's public
image. Many people in the corporate business lobby that financed Bush's
campaign and inauguration are eager for him to open the border and
allow underpaid Mexican drivers to transport the corporations' cheap-
labor Mexican-made goods to the U.S. for sale (long haul drivers in
Mexico earn about 6 a mile compared to about 28 a mile for U.S.
drivers).\4\ Most other Americans--especially in the border states of
Texas, California, Arizona and New Mexico--are legitimately concerned
that a flood of unsafe, basically unregulated freight trucks from
Mexico would pose a significant threat to the quality of life and to
highway safety. The safety threat is so significant that a California
trucking industry association opposes opening the border, foreseeing a
backlash against all trucking when the inevitable accident occurs.
The current NAFTA truck crisis is one of the most dramatic examples
of how ``trade agreements'' such as NAFTA reach far beyond appropriate
commercial issues and can threaten vital domestic health and safety
standards, even when these standards are applied equally to domestic
and foreign commerce. If U.S. federal highway safety officials conclude
that Mexican trucks do not meet U.S. safety standards, why should that
well-substantiated safety policy be challengeable before a NAFTA
dispute resolution tribunal as a trade barrier?
Indeed, raising Mexican truck safety standards would have an
enormous benefit for the safety of Mexican motorists and communities.
Currently, Mexico has a highway fatality rate more than three times
that of the U.S. or Canada. With the opening of the border according to
an arbitrary timeline that is set and enforced under the NAFTA
agreement without any connection to compelling safety considerations,
safety advances in Mexico and the U.S. will lose critical leverage for
improving standards.
In short, the panel's decision will force the opening of the border
to occur far too soon. The border should remain closed until there is a
consensus that meaningful safety standards and oversight are in place.
The continuing trend is that ``trade'' agreements will undermine
safety, health and other domestic social policies. This ongoing
diminishment of our hard-won health and safety safeguards fuels the
backlash against NAFTA and the World Trade Organization (WTO).
Background
Among its 900 pages of rules and regulations, NAFTA includes
provisions requiring standardization of NAFTA countries' truck length,
weight, safety and drivers'-licensing standards.\5\ NAFTA also required
that by 1995, Mexican trucks be permitted to drive throughout U.S.-
Mexico border states and that by January 1, 2000, trucks from any NAFTA
country could drive anywhere in all NAFTA countries.\6\ Absent these
NAFTA border openings, Mexican trucks are permitted to travel in a
border commercial zone up to 20 miles into the U.S. to unload and pick
up freight to take back to Mexico.\7\
However, the two sets of truck-related NAFTA commitments were not
linked. Thus, even though U.S. and Mexican standards were not
harmonized, the U.S. still faces NAFTA rules which required it to allow
access to U.S. highways by Mexican trucks. Yet, before the initial 1995
NAFTA-required opening of U.S. highways in the border states, the
General Accounting Office found the same serious truck safety problems
that were initially reported by border safety inspectors: of the few
Mexican trucks that overwhelmed U.S. highway inspectors were able to
examine, more than half had to be taken off the highway for serious
safety violations.\8\ Indeed, fewer than 1 percent of Mexican trucks
that cross the border are inspected by U.S. safety inspectors.\9\
Given the data on serious safety problems, the U.S. announced that
the initial 1995 border-state opening had to be delayed until Mexican
truck safety was improved. Mid-1998, Mexico filed a formal challenge of
that U.S. policy before a NAFTA dispute resolution tribunal.\10\ At the
end of 1998, the U.S. DOT again reviewed the Mexican truck border
inspection data to determine whether to recommend a border opening and
concluded that the same serious failings existed.\11\ DOT thus
maintained the status quo of only permitting the Mexican trucks in the
limited commercial zone. It will be far from adequate to merely bulk up
federal and state inspection resources at a few border checkpoints,
because the most dangerous parts of the trucking fleet will inevitably
be drawn to cross the border at the weakest inspection areas, where
oversight is the most tenuous.
The safety problems of the Mexican trucking industry are legion.
The Mexican government provides little to no regulatory oversight to
its trucking industry. Moreover, as documented in a 1996 Los Angeles
Times expose, Mexican drivers work under notoriously poor conditions
where extremely long hours and driver fatigue are often the
requirements for keeping a job. Long-haul truck drivers in Mexico who
bring freight to the shipping terminals at the U.S. border call their
runs ``working on the blade of the knife'' because of the dangers of
Mexican highways. This, in turn, contributes to excess preventable
highway deaths in Mexico.\12\
LAlthough Mexico does not keep track of highway fatalities by
type of vehicle, Mexico has an overall highway fatality rate
more than three times that of the U.S. or Canada.
NAFTA has concentrated these underpaid, overworked drivers in the
border areas. There, the lucrative temptations of transporting
narcotics, undocumented migrants, and contraband, like weapons and
stolen cars, contribute to a border area that is more like the Wild
West than the modern West. Indeed, Mexican trucks are posing an
increasing threat to motorists in Texas border counties. The percentage
of Texas border county truck fatalities and incapacitating injuries
from trucks registered in Mexico nearly doubled between 1997 and 1998.
When NAFTA passed 7 years ago, Mexico promised to improve its
national truck safety standards to meet U.S. safety requirements
covering inspection and enforcement. However, Mexican law does not
require many fundamentals of highway safety policy that are elements of
the U.S. motor carrier oversight program. For example: \13\
There are no hours-of-service restrictions for drivers;
Although a new policy require use of logbooks will soon be
required in Mexico, U.S. inspectors have yet to see even one in
use at the border;
Roadside inspections are now voluntary and will be ``phased-
in'' over the next 2 years, as will be vehicle out-of service
standards, however, it is unclear if these programs are funded;
Driver's licensing requirements are brand-new and permit
commercial drivers under the age of 21;
There is no safety rating system;
Truck weight limitations are significantly higher; and
Hazardous materials rules are significantly more lax.
It is this comprehensive safety regulatory system in the U.S. which
provides the measure of safety for American motorists. Trucking firms
are required by law to implement and enforce safety programs
established under federal guidelines for their drivers and vehicles to
help ensure safety. Roadside and spot inspections provide an added
level of safety both by deterring trucking companies from shirking the
rules and by actually pulling the most dangerous trucks off the
highway.
Without such a system in place, evidence to date that Mexican
trucks are significantly less safe than U.S. trucks and thus pose
greater risks to motorists is not surprising. The latest analysis of
safety data from September 2000 shows that substantially more Mexican
trucking firms pose significant threats to drivers than U.S. firms.
Additionally, more than 5 years of border and highway inspections have
shown that Mexican trucks have had to be pulled off the highway for
serious safety violations at alarmingly high rates and much higher than
U.S. truck rates.
``There must be no trading of human lives for dollars in the zeal
to facilitate truck commerce.''--Robert Dibble, Senior VP for
government relations National Association for Independent Insurers,
National Underwriter, 1/18/99.
Lastly, even without the additional traffic, a border-opening would
cause a critical shortage of U.S. safety inspectors to perform the
rapidly growing task of monitoring Mexican trucks for safety concerns
at the U.S. border. Currently, more than 99 percent of Mexican trucks
cross the border without inspections because of short staffing, despite
the acknowledged problems with safety on Mexican trucks.\14\ The
majority of these inspections are of the most cursory type allowed, the
so-called ``walk arounds.'' In addition to missing important safety
problems, such inspections are also missing shipments of narcotics and
stolen goods, such as automobiles and weapons, crossing the border.
Meanwhile, the deluge of trucks across the Mexican border has been
growing rapidly--now over 4 million a year--even without the opening of
U.S. highway border beyond commercial zones, and it is predicted to
skyrocket--perhaps by 3 million annually--if more access is permitted.
L``You learn quickly, or you die young.''--34-year veteran
truck driver Vicente Sanchez on the highway safety dangers
facing Mexican truck drivers, Los Angeles Times, 3/18/96.
Already, the increase in Mexican trucks within the limited border
zone has had an adverse affect on safety in the U.S. The Texas border
counties, within the commercial border zone, have seen a dramatic
increase in highway fatalities and serious injuries from trucks with
Mexican registrations. In one dramatic case in California, a Mexican
truck was involved in a 10-car pileup that killed four California
motorists north of San Diego--well north of the commercial zone. These
fatal accidents are bound to increase if the border is opened and the
number of trucks increases rapidly without Mexican safety systems in
effect, given that U.S. inspectors are already overwhelmed.
Highway safety groups felt it was imperative for the NAFTA tribunal
hearing Mexico's truck challenge to consider these dangerous realities.
Thus, while the NAFTA tribunal was hearing the case, American safety
experts asked to present evidence to the tribunal on the negative
health and safety impacts of allowing unlimited access for Mexican
trucks onto U.S. highways. In an ominous premonition of the NAFTA
tribunal's decision, the tribunal refused to take any oral or written
testimony from highway safety experts regarding Mexican truck standards
or truck safety compliance.
On November 29, 2000, the preliminary report of the NAFTA truck
panel was released. The panel ruled that the U.S. had violated NAFTA by
prohibiting unsafe Mexican trucks from roaming freely (either within
the U.S. border states or throughout the country, depending on whether
Mexico amended its complaint). Under NAFTA dispute settlement rules, if
the U.S. does not agree to open the border to Mexican trucks, it can
offer to compensate Mexico with new trade benefits or cash payments.
However, if Mexico refuses to negotiate terms of compensation, NAFTA
permits Mexico to take compensation in the form of levying trade
sanctions against the U.S.
As noted above, the clever drafting of the panel opinion may force
the U.S. into the position of choosing from only one of the above three
options. However, assuming for the sake of argument that another option
exists, it would be to open the border and then attempt to try to
enforce U.S. safety standards truck-by-truck. Yet, even with granting
additional truck access, the already swelling flood of trucks from
Mexico since NAFTA's inception is putting a strain on federal and state
truck safety inspectors.
Currently, there are about 2 million roadside inspections of large
trucks throughout the U.S. This number includes Mexican truck border
crossings. The U.S. Department of Transportation's total budget for the
Federal Motor Carrier Safety Administration, which is the federal
agency responsible for such inspections, for fiscal year 2001 is $269
million.\15\ In 1999, the most recent year for which data is available,
4.1 million trucks crossed the Mexican border into the U.S., according
to the U.S. Customs Service.\16\ Given the increase in Mexican truck
traffic since NAFTA (about 2.5 million crossed in 1993), border
inspectors are only able to inspect fewer than 1 percent of the Mexican
trucks.\17\ With the borders wide open to Mexican truck traffic,
Department of Transportation officials estimated at an October 1999
field hearing in Los Angeles that as many 7 million trucks could cross
the U.S. border annually.\18\ For U.S. truck safety inspectors to
ensure that each of these Mexican trucks was inspected at the border,
U.S. truck inspections would have to jump from 2 million annually to 9
million. More than 5,000 Americans die each year in large truck
crashes, almost entirely involving U.S. trucks which are lighter and
relatively safer than Mexican trucks. Allowing a deluge of heavier,
relatively less safe large trucks onto U.S. highways is likely to
increase highway deaths attributable to large trucks.
I. Absence of Mexican Truck Safety Rules or Enforcement
Large truck crashes already pose a considerable danger to U.S.
motorists. In 1999, there were 5,362 fatalities in the U.S. caused by
large truck crashes--up 20 percent from a low of 4,462 in 1992.\19\
This included 433 deaths in Texas, 363 in California, 108 in Arizona,
and 66 in New Mexico in 1999. In comparison, in the same year there
were 691 fatalities in all aviation accidents--a sum which totals just
13 percent of the number of people killed in large truck accidents.\20\
These fatalities occur even though the U.S. regulatory system
provides some safeguards against the most dangerous trucks--limiting
hours of service, implementing and enforcing vehicle safety standards,
limiting total vehicle weights, requiring licensing and training for
drivers, and operating a regulatory system to remove the most dangerous
vehicles and ensure safety systems are in effect in U.S. trucking
firms. But even the U.S. truck safety regulatory program has been
harshly criticized and is under pressure to be upgraded. For just one
example, the current pressure from non-union U.S. carriers to have
drivers work outside of the hours of service rules is recognized as a
significant threat to U.S. motorists.
Although Mexico does not keep track of highway fatalities by type
of vehicle, Mexico has an overall highway fatality rate more than three
times that of the U.S. or Canada. Mexico has a death rate of 7.5
fatalities for every 10,000 vehicles on the road compared with 2 per
10,000 vehicles for the U.S. and Canada in 1996, the most recent year
comparable data are available. \21\
Allowing Mexican trucks onto U.S. highways will exacerbate the
current problem significantly. The Mexican truck safety standards that
exist are significantly less stringent than U.S. standards. Little
training has historically been required of drivers and Mexican's
licensing requirements are more lax. Below is a chart comparing U.S.
and Mexican safety requirements:
------------------------------------------------------------------------
Safety Consideration In U.S. In Mexico
------------------------------------------------------------------------
Hours-of Service Yes. 10 hrs consecutive No
Limits for drivers driving, up to 15
consecutive hours on
duty, 8 hours
consecutive rest,
maximum of 70 hours
driving in an 8-day
period
------------------------------------------------------------------------
Driver's Licensure
\22\
Time period: 2 to 6 years 10 years
Age of driver: 21 years old min. for 18 years old
interstate
Skills test: \23\ Yes--for all drivers New skills test for new
drivers
Medical card: Yes--federal requirement No--medical
qualification on
license
Automatic
disqualification
for certain medical
conditions:
National monitoring Yes No
system:
Drug testing req'd Yes to detect violations Information system still
for domestic and Testing and in infancy DOT
international documentation required personnel indicate that
drivers: some drivers are found
w/o documentation.
------------------------------------------------------------------------
Logbooks Yes, standardized While a new law is on
logbooks with date the books, to date no
graphs are required and Mexican-style logbooks
part of inspection have been seen by U.S.
criteria inspectors at the
border; new rules do
not standardize
logbooks in U.S. format
------------------------------------------------------------------------
Weight Limits 80,000 is the federal As high as 135,560
(in pounds) Gross
Vehicle Weight limit
Single Axle 20,000 14,300
Tandem Axle 34,000 42,990
Tridem Axle 34,000 49,604
Five Axle 80,000 97,000
Six Axle 80,000 106,900
Turnpike Double 80,000 135,560
------------------------------------------------------------------------
Roadside Inspections Yes Not currently. New rule
is to be phased in over
2 years, but the
program is currently
voluntary.
------------------------------------------------------------------------
Out-of-Service Rules Yes Vehicle out of service
for Safety rules will be phased in
Deficiencies over 2 years, and are
currently voluntary.
------------------------------------------------------------------------
Hazardous Materials A strict standards, Much laxer program with
Regulations training, licensure and far fewer identified
inspection regime chemicals and
substances, and fewer
licensure requirements
------------------------------------------------------------------------
Vehicle Safety Comprehensive standards Newly-enacted standards
Standards for components such as for vehicle inspections
antilock brakes, are voluntary for the
underride guards, night first year and far from
visibility of vehicle comprehensive
------------------------------------------------------------------------
Safety Rating System Yes No
\23\ About half the
states have
grandfathered-in
higher limits on
the interstates and
limits on state
highways vary
considerably.
------------------------------------------------------------------------
Anecdotal evidence from news stories suggests that the long hours
Mexican drivers are required to spend behind the wheel in order to keep
their jobs significantly contribute to Mexico's highway fatalities.
Long-haul truck drivers in Mexico who bring freight to the shipping
terminals at the U.S. border call their runs ``working on the blade of
the knife'' because of the dangers of long hours in unsafe trucks.\24\
On an average 14 hour run from central Mexico to the border a driver
might pass hundreds or thousands of white crosses at the side of the
road signifying fatal crashes.\25\
Although the Mexican government committed to increase its truck
safety standards and oversight in time for the NAFTA border openings,
in practice few gains have been made. After NAFTA went into effect in
1994, the three NAFTA countries established a Land Transportation
Standards Subcommittee (LTSS) to address the differences in the
countries' regulatory standards. However, to date this committee has
accomplished little and certainly has not accomplished a leveling-up of
Mexican highway safety standards.
The latest LTSS draft report trumpets the committee's success at
establishing new technical subgroups and creating side-by-side charts
of rules and standards between the NAFTA countries. The committee
report notes that it ``continues to work beyond the timeframes
established'' by NAFTA to address ``reaching compatibility in some
areas,'' which has been a ``difficult task.'' \26\ Until the standards
and enforcement in Mexico are as protective as those in the U.S., it
will remain a challenge for border authorities to be sure that Mexican
trucks are in compliance with U.S. safety standards.
Mexico currently does not have a mandatory inspection system for
large trucks, nor does Mexican law provide authority to pull dangerous
trucks off the highway. Mexico published new rules in July 2000 on
truck inspection procedures and criteria to place trucks out-of-
service.\27\ However, these rules are only voluntary for the first
year. Then they are to be ``phased in'' over 2 years according, to U.S.
DOT officials.\28\ However, Mexico does not have a safety audit system
in place or compliance review programs.\29\ In addition, there is no
evidence of the level of funding or enforcement resources for even the
newly-required measures.\30\
Mexico has failed to establish a border truck safety inspection
program. In 1995, Mexico stated to the U.S. its intention to start
inspecting its trucks at the border and issuing inspection decals as
part of Mexican preparation for NAFTA open-border trucking. However, it
has not done so to date.\31\ With the pledge to initiate a truck
inspection system, 285 Mexican personnel trained to be border truck
inspectors since 1993. However, many of the officials and trained
workers have left the program and there has been little enforcement
activity to date.\32\
``Let's keep those Mexican trucks down south until we're sure they
won't pose a major safety threat. I don't want to become roadkill in
the name of free trade.''--Fort Worth Star Telegram editorial writer
Jack Smith in 11/2/99 column, who was hit by a Mexican truck.
While U.S. roadside inspections are an effective tool that
increases motor vehicle safety, Mexico's lack of roadside inspections
is a serious deficiency in its regulatory apparatus. A 1998 study by
the U.S. Department of Transportation's Motor Carrier Safety Analysis,
Facts and Evaluation department (in the Office of Motor Carriers) found
that highway inspections successfully avoided 347 truck crashes. The
report found that by both removing dangerous trucks from the highway
and by providing deterrence to safety violations, truck inspection
saved $47 million dollars in crash-related costs, about $135,000 per
crash. The study also found that a carrier's out-of-service rate
declined as the number of inspections increased. These findings
indicate that the risks \33\ to people and communities in Mexico and
the U.S. posed by Mexican trucks could be mitigated by an effective,
comprehensive inspection program by Mexican authorities. Absent these
programs in Mexico, drivers and communities are left without any
protection. In the U.S., given the structural and budgetary
impossibility of inspecting every Mexican truck if the border were to
be opened, the number of people newly exposed to additional harm could
be huge.
Mexican trucks are heavier than is permitted under American
standards and thus pose greater safety dangers. According to the most
recent National Truck Crash Profile, 83 percent of the fatal truck
crashes in the U.S. involved trucks with gross vehicle weight over
26,000 pounds in 1998.\34\ The gross weight limit for U.S. trucks is
80,000 pounds on federal highways, although many states have
grandfathered-in exceptions. Mexican truck limits are substantially
higher. The most common Mexican truck, the six-axle semi-trailer, which
comprises 37 percent of the Mexican carrier fleet, is permitted a gross
weight of 106,900 pounds. The second most common Mexican truck, the
five axle semi-trailer which makes up 35 percent of the Mexican carrier
fleet, has a gross weight limit of 97,000 pounds--33 percent and 21
percent higher than the American standard respectively.\35\
Mexican trucks also damage U.S. highways and bridges even more
severely than U.S. trucks because of their heavier weights on both
single and tandem axles. In addition, most Mexican trucks are designed
with ``walking beam suspensions''--heavier duty suspensions for driving
on the dirt roads that are still in widespread use in Mexico. This type
of vehicle suspension transmits weight to the road in a much more
damaging way. Damage to U.S. highways is both a financial and safety
concern. There is already a huge backlog in the U.S. of highways and
bridges in need of repair that is disproportionately subsidized by the
gas taxes paid by passenger car drivers, because commercial carriers
underpay their share. The damage would also create safety hazards and
dangers when repairs are made.
The Mexican hazardous materials control system is much more lax
than the U.S. and presents a continuing danger to the public. Although
Mexico has regulations on the transportation of hazardous materials,
many substances which must be identified in the U.S. need not be marked
with an official placard in Mexico. Unmarked materials would endanger
highway safety personnel such as fire fighters and police officers, who
would be unaware of the nature of the hazardous substance and its
proper treatment. Because some hazardous materials are excluded from
Mexico's regulations, Mexican drivers are not given the special
licensing training and certification which is required to transport
those substances in the U.S.\36\ According to a recent study by the
Teamsters, ``[a]s many as 25 percent of trucks coming to the U.S. from
Mexico contain toxic or hazardous materials . . . and only 1 out of 14
of those trucks is properly marked to show the dangerous chemicals that
are inside.'' \37\
Mexico has no limitation on hours-of-service for drivers, meaning
exhausted drivers put themselves and others at risk. Currently, Mexico
does not set any limits to the length of time drivers can spend behind
the wheel. U.S. sets limits, known as ``hours-of-service,'' which are
monitored by a driver's log books. Mexico has recently published
regulations requiring drivers to maintain logbooks, but U.S. border
inspectors have yet to see a single logbook.\38\ Fatigue-related
factors are one of the most significant causes of fatalities for U.S.
large truck crashes. The National Transportation Safety Board found
driver fatigue to be a factor in 30 percent of truck crashes.\39\ Truck
companies in Mexico require unusually long hours for their drivers to
maintain their jobs, leading to an increase in truck crashes due to
fatigue. Even the best firms require as much as 16 hours a day behind
the wheel and serious crashes on Mexican highways are common.\40\
Allowing truck drivers without hours-of-service limitations onto U.S.
highways is likely to increase the number and percentage of fatal
crashes.
``The evidence is that Mexican trucks aren't as safe as they should
be.''--Former Chairman of House Transportation Committee, Rep. Bud
Schuster, USA Today, 10/20/99.
Working conditions for Mexican truck drivers are poor. Mexican
drivers are notoriously overworked by U.S. standards. It is not unusual
for drivers to work 7 days a week, making runs of about 1,400 miles
from Mexico City to the U.S. border with only a few hours of sleep
before the next haul. Some drivers report being required to drive 36
hours straight with only a 6 hour break before returning to the road.
Drivers are paid poorly for this hard work, as little as $400 a
month.\41\ The risks are high, Mexican truck drivers have almost all
been involved in fatality-causing accidents, according to anecdotal
reports (Mexico does not keep highway fatality data by type of
vehicle).\42\
U.S. owners of Mexican carriers use NAFTA to skirt U.S. safety and
labor standards. In 1998, 150 Mexico-based motor carriers with DOT
identification numbers listed U.S. citizens as the majority owners.
Two-thousand, two-hundred Mexican motor carriers were registered as
having Mexican addresses in DOT's operating database, but U.S.
addresses in the identification number database.\43\ Increasingly,
American firms are buying up Mexican trucking companies, gaining access
to lower wage drivers, lower regulatory safety regulations and lower
worker safety requirements. These owners can use these cheaper trucks
and drivers to compete against the safer trucks and higher wage drivers
in the U.S. Opening the border without either ensuring a working
Mexican regulatory process for truck safety or having the resources to
inspect every truck creates a perverse incentive to gain financially by
racing to the bottom in safety.
II. Recent Evidence Shows Mexican Motor Carriers are Substantially Less
Safe than Carriers in the U.S.
In 1999, development of the Federal Motor Carrier Safety
Administration as an independent truck and bus safety enforcement and
monitoring executive agency within the U.S. Department of
Transportation signified an increasing amount of U.S. public awareness
to truck safety issues.
Data collected and analyzed by the new agency under its ``Safety
Status'' program on the relative safety of motor carriers (trucking and
bus companies) provides increasingly detailed information about the
safety and regulatory compliance of each trucking company and the
trucks and buses that are operated by these carriers. The program is a
new statistical safety database that provides a more comprehensive
evaluation of the actual performance and safety of trucking firms from
the U.S., Canada and Mexico than ever before available. The program
included * data on safety programs, crashes, drivers' safety records
and vehicles. Using the Safety Status tracking data, Public Citizen
examined the relative safety of the carrier fleet in Mexico and the
carrier fleet in the U.S. and found that Mexican carriers are
substantially less safe than U.S. motor carriers.\44\
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* The Safety Status data examines all trucking companies licensed
by the Department of Transportation. For U.S. firms, this includes all
freight trucking firms. For Mexico, this includes all of the companies
that are licensed to bring a truck into the commercial zones of the
border-states. These Mexican trucks are required to have DOT
registration numbers.
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Advocates of fully opening the border argue that the trucks now
licensed to cross the U.S. border are Mexico's oldest, worst-maintained
trucks and that this is why the inspection data is so negative. The
thrust of this argument is that companies are using older trucks,
called ``drayage'' trucks, to make the short runs from Maquiladora
plants located in Mexico near the border. However, many of the Mexican
trucks crossing the border actually come from Mexico's interior.\45\ In
addition, opening the border would mean that the worst trucks would be
permitted new access in addition to the hypothetically safe trucks
presumed to exist in the interior--meaning a large number of extremely
unsafe trucks would still have access to the U.S.
Mexican motor carriers have much higher rates of deficient vehicle
inspection indicators than U.S. carriers, regardless of years of
operation experience. A Vehicle Inspection Indicator is determined by
evaluating a trucking company's performance over the previous 30 months
at roadside inspections, taking particular consideration of a company's
out-of-service rates and the comprehensiveness of the inspection
(whether it is a full inspection or the less stringent ``walkaround''
variety).\46\ Comparisons of the ``Safety Status'' vehicle safety
indicators in 2000 found that nearly 60 percent of Mexican carriers had
deficient Vehicle Inspection Indicators, regardless of how long the
carrier had been operating. By comparison, 32.8 percent new U.S.
carriers had deficient Vehicle Inspection Indicators and 27.0 percent
of experienced U.S. carriers had deficient Vehicle Inspection
Indicators. While American carriers have improved performance after
operating 2 years, the majority of Mexican carriers continued to have
vehicle inspection problems even after 2 years of operations.\47\
Because there are no roadside inspections in Mexico, the program
analyzed the U.S. roadside and border inspection data of the Mexican
trucks now licensed by the Department of Transportation to cross the
U.S. border.
The Mexican carrier fleet now licensed to operate in the permitted
20-mile U.S. border zone has three times more ``at-risk'' carriers than
the U.S. carriers, according to an analysis of 2000 data provided by
the Federal Motor Carrier Safety Administration. The latest
comprehensive examination of safety records found that 2.3 percent of
Mexican carrier companies licensed to operate in the U.S. were
considered ``at risk'' compared to 0.77 percent of U.S. carriers--a
more than three-fold difference. ``At risk'' carriers are companies
that rank in the worst 25 percent in at least two of the four safety
measurements and have accident rates that are more than 200 percent of
that of companies that are not rated ``at-risk.'' \48\
Mexican truck carriers and Mexican trucks were more than three
times as likely to have safety deficiencies than U.S. carriers in 2000.
Mexican carriers are 3.5 times more likely to be identified with safety
deficiencies than American carriers: 4.7 percent of Mexican carrier
companies were identified to have some safety deficiencies, compared to
1.3 percent of U.S. carriers. The percentage of Mexican trucks with
safety deficiencies was more than three times higher than U.S. trucks--
13.7 percent of Mexican trucks had safety deficiencies compared to 4.2
percent of U.S. trucks.\49\
Mexican trucks are twice as likely to be deficient in one safety
category as U.S. trucks. 12.8 percent of Mexican carriers were found to
be deficient in at least one safety category, compared to 5.6 percent
of U.S. motor carriers.
Mexican trucks are three times as likely as U.S. trucks to be
deficient in the vehicle safety evaluation category as U.S. carriers.
10.5 percent of Mexican carriers were deficient in the ``accident
safety'' category compared to 3.1 percent of U.S. carriers. The
``accident safety'' category evaluates a carrier on vehicle safety
elements such as safety standards compliance review and roadside
inspection data.
III. Mexican Standards and Enforcement Must Improve Because Every
Mexican Truck Cannot Realistically be Inspected by U.S.
Proponents of opening the border argue that the U.S. should take
care of its safety concerns by simply increasing border truck
inspection resources--for instance, by inspecting every Mexican truck.
Trucking industry representatives have made similar arguments while
trying to spin the initial NAFTA ruling as somehow being a ruling in
favor of U.S. safety policies. Yet the reality is that the skyrocketing
number of Mexican trucks already crossing the border has greatly
outpaced the number of inspectors to monitor these trucks and pull
dangerous vehicles off the road.
Even without allowing access by Mexican trucks beyond the narrow
border commercial zones, the number of Mexican trucks crossing the
border have risen dramatically since NAFTA went into effect--by more
than 300 percent in Texas and by nearly 50 percent in California, the
two states where the majority of the crossings are made.\50\ The number
of Mexican trucking firms with Department of Transportation licenses to
operate in the commercial zones is rising faster than the number of
both U.S. and Canadian firms with DOT registrations to operate in the
U.S.\51\ If the U.S. commercial zone limitations were lifted, the
number of Mexican trucks crossing into the U.S. is estimated to
increase substantially. In 1999, 4.1 million trucks crossed the border
from Mexico and some federal officials have indicated that an
additional 3 million Mexican trucks will cross the border if the
commercial zone limitations were ended--nearly a 75 percent
increase.\52\
At the same time, the numbers of federal and state inspectors are
grossly inadequate to monitor the number of trucks that are already
crossing the border. For just one example, in 1998, the DOT's Office of
the Inspector General recommended that at least 120 federal safety
inspectors be posted at the border to meet the critical need to remove
dangerous trucks from the road, but by 2001 only 60 inspectors were
funded.
At many crossings, only one safety inspector is detailed to examine
the literally thousands of trucks that cross the border each day. If
the border were fully opened, the inspectors who now are unable to
handle the current traffic load could face millions more trucks. Yet
all of these trucks would be authorized to travel throughout the
border-states or even the entire country.
If estimates of the impact of opening of the border are realistic,
seven million Mexican truck crossings per year would require
inspection. Thus, to inspect all entering Mexican trucks, U.S.
inspections per year must rise from 2 million to 9 million trucks.
Currently, there are about 101 state commercial truck inspectors and 60
federal inspectors at the border who are able to cover 1 percent of the
current 4 million Mexican trucks.\53\ Thus, to cover every Mexican
truck if the border were opened with even a cursory inspection would
require 32,000 inspectors. Given the fledgling nature of the domestic
Mexican truck safety inspection system, every one of these trucks would
need to be checked by U.S. inspectors and massive, new border
inspections facilities would need to be constructed to avoid huge
backups. Since this enormous new allocation of inspection funding and
personnel training is entirely unrealistic, only Mexico's establishment
of a comprehensive, enforceable and well funded safety system can
ensure improvements. But such a system is years away from being ready.
Border truck inspections are currently unable to meet the rising
demand by increasing truck crossings. The General Accounting Office
reported in March 2000 that despite efforts to increase collaboration
of the federal and state inspectors at the border and some
infrastructure investments, collective efforts have failed to keep up
with the skyrocketing flood of trucks coming over the Mexican border
even without further border opening.\54\ The 161 federal and state
truck inspectors would each currently have to inspect more than 24,800
Mexican trucks to inspect all the Mexican trucks now crossing the
border.
There is an appalling lack of border truck inspectors. The total
number of U.S. federal truck inspectors in 2000 was 40, less than a
third of the number requested by the 1998 Department of Transportation
audit, and an additional 20 were scheduled to start in January
2001.\55\ This figure of 60 is still less than half the recommended 126
inspectors to have two inspectors for every border crossing and
additional inspectors for high-volume border crossings. In 1997, 13
federal and 97 state safety inspectors monitored the nearly 2000 mile
U.S.-Mexico border when 3.5 million Mexican trucks entered the U.S.\56\
At Pharr, Texas, two federal inspectors monitored five border crossings
that received nearly 8 percent of the total Mexico truck traffic. New
Mexico provided no state inspectors and the 37 Texas state inspectors
only spent one-quarter of their time inspecting cross border
trucks.\57\ Requests to double the number of federal inspectors to 27
by Federal Highway Administration Regional Directors responsible for
the Mexican border regions was rejected by federal budget negotiators
in January 1998.\58\ Similarly, the Texas Department of Public Safety's
request for 127 inspectors was rejected. Instead only five new state
inspectors were authorized: three in 1998 and two in 1999.\59\
Truck Crossings from Mexico into Texas increased 324 percent since
NAFTA. Three quarters of the Mexican truck freight traffic enters the
U.S. through Texas. Between 1990 and 1993, the year before NAFTA was
implemented, truck traffic from Mexico into Texas decreased 29.8
percent to 509,477 crossings.\60\ By 1999, 2.29 million trucks entered
Texas from Mexico.\61\ Based on the first 8 months of year 2000
traffic, Public Citizen projects that truck crossings from Mexico to
Texas will have surged to 2,798,839 by the end of 2000--a 324 percent
increase over the pre-NAFTA traffic. In comparison, rail car crossing
to Texas increased 173 percent between 1990 and 1994, but grew at a
more modest 158 percent rate between 1994 and 2000.\62\
Fewer than 1 percent of Mexican trucks are inspected at the border.
Despite slight improvements in the number and percentage of Mexican
trucks that are inspected at the border, very few Mexican trucks
undergo safety inspections. Especially given the unusually high out-of-
service rates for the trucks that are inspected, the failure to inspect
more than 99 percent of Mexican trucks crossing the border represents
an almost-total failure to protect U.S. motorists and border
communities. In 1999, 0.8 percent of the 4.1 million Mexican trucks
that crossed the border were inspected.\63\ In 1998, 0.6 percent of the
3.9 million trucks that crossed the border were inspected.\64\ In
comparison, approximately 40 percent of the U.S. truck fleet was
inspected in 1998.\65\
Some border crossings have no inspectors for hours every day. A
Department of Transportation audit found that at some border crossings
there are no U.S. or state inspectors present on most weekdays.\66\ At
other sites there were inspectors present during regular business
hours, but no inspectors regularly assigned to evening or weekend
hours.\67\ Thus, the drivers of trucks that may have inspection
problems can plan to cross at un-staffed hours. The 3 full-time and 3
quarter-time truck safety inspectors at the busy Laredo, Texas border
crossing could average about 34 inspections a day.\68\ However, on
weekdays, an average of 4,800 Mexican trucks cross the border at Laredo
making for an 0.7 percent inspection rate.\69\
The number of Mexican motor carrier firms registered with the U.S.
has grown faster than either Canadian or U.S. registrations. Mexican
companies with DOT licenses to operate within the commercial zone--and
with the expectation that the border-states and the entire country will
be open to Mexican haulers if the border is opened--have been growing
more rapidly than the number of American or Canadian firms seeking DOT
registrations. The number of active Mexican motor carrier companies
registered with DOT grew by more than half between 1997 and 1999--54.9
percent. Over the same period, the number of American carriers grew by
21.1 percent and Canadian carriers grew by 27.2 percent.\70\
Mexican truck traffic to California increased by nearly half
between 1994 and 1999. Since NAFTA's passage, northbound truck
crossings from Mexico to California increased 48 percent to 949,651
trucks.\71\ Top Mexican truck imports to California have grown three
times as fast as top California truck exports to Mexico between 1997
and 2000. In the first quarter of 1997, California trucked $860 million
worth of its top six goods to Mexico, and by the first quarter of 2000,
the figure was $1.1 billion a 22 percent increase. In comparison, top
Mexican truck exports to California grew 62 percent between the first
quarter of 1997 and first quarter 2000, from $1.6 billion to $2.6
billion.\72\
Removing the limitations to operate only in the border state
commercial zones will rapidly increase the number of Mexican trucks
crossing the border. At a National Transportation Safety Board field
hearing in Los Angeles in October of 1999, Department of Transportation
officials predicted that an additional 3 million Mexican trucks will
cross the border every year with the Mexican border commercial zone
limitations eliminated.\73\
IV. Much Stricter Penalties and Enforcement Are Needed
The DOT Inspector General's office and safety advocacy groups have
complained about lacking enforcement, low fines and failure to pull
operating authority for repeated violations in the U.S. for domestic
trucking corporations. These same practices of inadequate penalties
currently the practice for operator violations. These inadequacies must
be addressed for both domestic and Mexican trucks.
Both for Mexican trucks now allowed in the border zone and in the
future, there must be greater U.S. penalties for Mexican operators
violating their DOT permits. DOT must have a policy of rescinding
permits to operate in the U.S. for Mexican trucking companies that
routinely violate safety standards. Now, DOT uses minimal monetary
penalties for the trucks it finds to be out of compliance. Given that
99 percent of trucks are not inspected and the fines for those which
are caught violating safety standards are minimal, there is, in effect,
no deterrence of potential violations.
Along the same lines, major fines must be levied for Mexican motor
carriers found operating outside permitted areas without U.S.
authorization. Of the 202 Mexican motor carriers found operating
outside the existing commercial zones in 1998, only 3 enforcement
actions were initiated. In 1999, only 2 actions * were initiated
against carriers operating illegally outside the commercial zones, and
none were taken against Mexican motor carriers operating outside the
border states, despite being potentially thousands of miles from their
permitted operating range.\74\ Federal law provides the authority to
penalize Mexican drivers operating outside the border commercial zone,
but it also allows discretion to hit violators with heftier fines than
state law provides.\75\ Yet, these even this policy provides no minimum
fines, only caps on how large a fine may be. Absent any punishment for
violating the rules limiting Mexican drivers to the narrow commercial
border zones, increasing numbers of trucks are likely to flaunt the
law. This lack of sanctions creates incentives for dangerous conduct by
companies who can profit by violating the law than improving the safety
of their trucks.
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* According to the Department of Transportation Inspectors General
Office, fines for Mexican motor carriers in violation of operating
regulations are too low to spur compliance with U.S. law. Texas and New
Mexico send a warning letter for the first violation of operating
outside commercial zones, and a $1,000 fine for the second violation
with an additional $1,000 increase for each subsequent violation. In
Arizona and California, the fines are $500 for operating outside the
commercial zones. The Department of Transportation Inspector General
criticized these small fines because companies consider them to be ``a
cost of doing business.'' Higher fines and loss of operating authority
are needed to effectively deter infractions.
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``We simply cannot jeopardize highway safety by opening the border
to increased truck traffic.''--U.S. Trade Representative Charlene
Barshefsky in letter to Rep. Jim Kolbe in 1996 on why the border wasn't
opened in 1995.
V. Case Studies of Mexican Trucks Causing Fatalities on U.S. Highways
Already, the increase in Mexican trucks within the limited border
zone has had an adverse affect on safety in the U.S. The Texas border
counties, within the commercial border zone, have seen a dramatic
increase in highway fatalities and serious injuries from trucks with
Mexican registrations. In one dramatic case in California, a Mexican
truck was involved in a 10-car pileup that killed four California
motorists north of San Diego--well north of the commercial zone. These
fatal crashes are bound to increase if the border is opened, and the
number of trucks increases rapidly without meaningful Mexican safety
systems in effect.
Mexican trucks are a significant and growing portion of Texas
border counties truck accidents and fatalities. Mexican trucks are
posing an increasing threat to motorists in Texas border counties.
According to data from the Texas Department of Safety, trucks
registered in Mexico accounted for 9.7 percent of the fatal commercial
vehicle accidents in 1998--nearly doubling from 5 percent in 1997.
Trucks registered in Mexico accounted for 13.5 percent of the
incapacitating injuries in commercial vehicle crashes in 1999, up from
7 percent in 1997, according to preliminary data from the Texas
Department of Safety.\76\ If Texas' experience of increasing fatalities
from Mexican trucks along the border were extrapolated to the entire
state using the latest fatalities data, an additional 39 people would
have died in crashes with Mexican trucks in Texas. If it were expanded
to the entire country, an additional 530 people would have died in
crashes with Mexican trucks.
Mexican truck caused deadly 10 car pile-up north of California's
commercial zone. A Mexican truck driver crashed into a construction
slowdown at 60 miles an hour in March 1997, killing four adults and
injuring 4 others, one critically.\77\ The driver fled the scene. The
truck may have been overweight, but the towing company that removed it
from the scene offloaded and sold some of its cargo of tomatoes, so
investigators will never know.\78\ The crash occurred under dry road
conditions and clear visibility, and a civil suit against the trucking
company alleged that the driver ignored brake lights from the traffic
congestion.\79\
If Texas' experience of increasing fatalities from Mexican trucks
along the border were expanded to the entire state using the latest
fatalities data, an additional 39 people would have died in accidents
with Mexican trucks in Texas. If it were expanded to the entire
country, an additional 530 people would have died in crashes with
Mexican trucks.
Mexican truck caused a chemical spill in Brownsville, Texas. In
January 2000, a short-haul Mexican truck headed south in the commercial
zone was responsible for a chemical spill that killed millions of fish.
The driver fled to Mexico before authorities discovered he was
uninsured and the brakes on his truck were inoperable.\80\
VI. Border Community Conditions Declining at Truck Border Crossings
Population growth near the U.S.-Mexico border has created a
cauldron of declining social conditions. Long waits by trucks at the
crossings fill Mexican border communities with unhealthy diesel
exhaust. A surge in population has occurred on the Mexican side of the
border without any of the requisite increases in infrastructure needs.
Many Mexican border communities--called Colonias which are located near
the export processing factories called Maquiladoras--lack even the most
basic sanitation services or access to utilities like water or
electricity. The border crossing areas attract smugglers and narcotics
traffickers. The stranglehold the Mexican drug cartels have on border
communities means the presence of additional crime, from money
laundering to gun running. Competitive, violent gangs of drug
traffickers make border communities especially vulnerable to high
homicide rates and unsolved missing persons, cases known as
``disappeareds.'' Added to this are the environmental and social
problems caused by thousands trucks lining up daily for multiple-hour
waits for crossing.
The majority of narcotics entering the U.S. come through Mexico.
Mexican drug cartels operating at the border are one of the main
conduits for narcotics entering the U.S. U.S. officials estimate that
60 percent of the cocaine entering the U.S. in 1998 passed through
Mexico. Mexico is also a major source of marijuana and heroin--nearly
all the 6 metric tons of heroin produced in Mexico in 1998 was destined
for the U.S.\81\ Total narcotics seizures at the Mexican border
increased 78 percent between 1996 and 1999 to more than 1 million
pounds--accounting for 77 percent of all seizures nationally.\82\
Border federal court districts are experiencing surging crime
rates. Criminal cases in Texas' western district increased 182 percent
since 1995 and grew in the southern district by 145 percent. The five
federal court districts serving the U.S.-Mexico border region represent
one-fourth of all federal court filings.\83\
Drug money is laundered through legitimate transportation
companies. The large volume of drug money generated by Mexican drug
cartels is laundered through ordinary businesses to conceal the source
of the profits. The cartels favor transportation companies, like the
trucking industry, because they can both launder money and facilitate
the smuggling of drugs, weapons and cash.\84\
Low wages for Mexican drivers encourage the transport of
contraband. Mexican truck drivers, who make as little as $400 a month,
are often approached to transport drugs, money, weapons or undocumented
migrants across the border. Low wages and the rising cost of living
make these opportunities tempting for drivers trying to support their
families. Indeed, Drug Enforcement Administration officials found that
Mexican drug cartel leaders looked forward to the prospect of
increasing the traffic of narcotics to the U.S. under NAFTA.\85\
Access to border crossings increases concentration of crime.
Illegal smugglers of people, products and narcotics gather at border
crossing communities for easy access to the traffic of people and
trucks to transship their illegal goods. The drug cartels in Juarez
across the border from El Paso have been linked to 500 murders in the
1990's and another 200 people have simply disappeared. Ciudad Juarez
has become a haven for smugglers of cars, guns and drugs and has one of
the highest homicide rates in Mexico, including the brutal rapes and
murders of 238 women over several years in the late 1990's.\86\
Drug Enforcement Administration officials found that Mexican drug
cartel leaders looked forward to the prospect of increasing the traffic
of narcotics to the U.S. under NAFTA.
Increasing truck traffic exposes border community to dangerous
levels of air pollution. Border crossings from Mexico to the U.S. are
in use 24 hours a day, 7 days a week. During peak periods, the lines of
idling trucks waiting to enter the U.S. can run several miles long,
contributing to pollution and safety concerns.\87\ Diesel exhaust from
Mexican truck traffic waiting to cross the border contributes to the
high levels of air pollution on both sides of the border. Thirteen
border cities exceeded or were expected to exceed ambient air quality
standards in 1996--and traffic is the leading cause.\88\ The border
communities show high levels of respiratory disease and high levels of
lead in children.\89\
VII. Recommendations
When should more access to U.S. roads be granted to Mexican trucks?
The Mexican government must fulfill its promise to implement high
safety standards and a regulatory framework necessary to enforce them.
What is required is well known. A working regulatory system would need,
at a minimum:
considerable funding by the Mexican government to implement
a Mexican truck safety program, including completion of the
monitoring database for domestic and international trucking
companies,
safety standards for every truck and significant truck
component--including tires, brakes, lighting, length, weight,
etc.,
enforcement of safety standards for motor carrier operators
that establish fleet-wide responsibility,
creation and enforcement of hours-of-service limits on
drivers,
enforcement of logbook requirements for drivers,
better training and effective levels of staffing of Mexican
safety inspectors,
regular spot and roadside inspections,
establishment of the legal authority of Mexican inspectors
to take dangerous trucks out-of-service; and
imposition of strong penalties to deter violations.
Once a comprehensive Mexican truck safety system is in place, the
U.S. would need to ensure that safety standards are being enforced by
doing a statistically significant number of border safety checks. This
would require an additional commitment of resources by Congress to
increase inspection staffing and building border inspection facilities.
Yet, even without any further border opening, U.S. resources
devoted to border truck inspection are woefully inadequate. Significant
improvements in border inspections need to be funded by the U.S.
Congress simply to do a reasonable job inspecting the 4 million trucks
that already enter the U.S. on an annual basis.
In November 1999 the report of the DOT Inspector General stated
that ``[a]dequate mechanisms are not in place to control access of
Mexico-domiciled motor carriers into the U.S.'' \90\ The report
described the monitoring systems that would be necessary on the
American side of the border to assure safety.
According to the Department of Transportation's Inspector General's
report, U.S. controls and safeguards should, at a minimum, include:
the use of automated data and state safety inspectors to
monitor truck safety compliance;
systems for verification of registration information;
implementation of consistent enforcement policies for non-
compliance;
increased fines;
and additional resources for the border program.
This is by no means an exhaustive list: any future opening of the
border would require a major effort over several years to develop,
implement and test these systems for their adequacy in protecting the
American public. While both U.S. and Mexican governments have been
taking some steps toward achieving these goals, their efforts to date
fall far short of what would be required to protect the public health
and safety.
VIII. Conclusion
The Mexican government has had 7 years to fulfill its commitments
to enact and enforce a truck safety program that would ensure that the
Mexican trucks seeking access to U.S. highways meet U.S. safety
standards. Instead of fully complying with that requirement, the
Mexican government has used NAFTA to attack U.S. truck safety
enforcement.
Depending on how the conflict is resolved, this case could create a
concrete NAFTA threat--deadly trucks--in every U.S. community with dire
implications for already negative U.S. public opinion about NAFTA and
additional dire implications for public safety.
Perhaps the most disappointing aspect of this NAFTA-based attack on
highway safety is the fact that the data regarding public safety is so
compelling. Instead of permitting additional access to Mexican trucks,
the Bush Administration should focus on the scandal of the millions of
dangerous Mexican trucks now rolling into the U.S. uninspected.
Since NAFTA, the number of Mexican trucks crossing the border has
skyrocketed to 4 million per year. Because there is now no meaningful
domestic Mexican truck safety program, overwhelmed U.S. border
inspectors are all that stands between people living and driving in the
20-mile border zone in which Mexican trucks are permitted.
Although U.S. officials are only able to inspect less than 1
percent of the Mexican trucks currently crossing the border, safety
inspectors have routinely found--and continue to find --that the severe
safety problems that result in a truck being put ``out-of-service'' for
Mexican trucks exceeds the out-of-service rates for U.S. trucks.
Meanwhile, the U.S. Department of Transportation estimates that
opening the border would add another 3 million trucks crossing into the
U.S. bringing the annual total to 7 million. It is not feasible from a
financial or infrastructure perspective for the U.S. to inspect every
single Mexican truck that crosses the border. And, if the NAFTA
tribunal ruling were implemented, it would no longer be a 20-mile strip
of the border-states, but the entire country which would be exposed to
the new threat.
The U.S. must ensure domestic highway safety for motorists and
communities. Given the current absence of any meaningful Mexican truck
safety program, the high safety failure rates of Mexican trucks, and
the impossibility of even inspecting all the Mexican trucks that would
cross an open border, the only option to ensure safety is to continue
to limit access to the narrow commercial zones and to significantly
increase inspection to intercept more of the dangerous trucks already
traveling in the border zone.
In terms of NAFTA, this means that the Bush Administration must
resolve the current case by agreeing to pay the NAFTA sanctions and
continue to limit access until there is a meaningful Mexican truck
safety system. Otherwise, the public will learn, painfully and first-
hand, the dangers that an anti-democratic and anti-safety decision by a
secret international trade tribunal can bring to its front door.*
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* Public Citizen does not believe a price can be put on a human
life, thus the cost of having to pay NAFTA sanctions to keep a basic
safety measure should be viewed as yet more damage resulting from the
flawed NAFTA. However, for those of the Chicago School ilk who would do
a cost-benefit analysis of maintaining this safety measure: even a mere
1,000 additional crashes from the 7 million cross-border trucks would
cost more than $100 million, according to Department of Transportation
calculations on truck crash costs, a figure which is more costly than
even a high trade sanction would be.
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ENDNOTES
\1\ ``Mexico-Domiciled Motor Carriers,'' Department of
Transportation, Office of Inspector General Audit Report, Nov. 4, 1999.
1\2\ ``Mexican Truckers Face U.S. Obstacle Course,'' USA Today,
Feb. 5, 2001.
\3\ NAFTA Border Opening Remarks, Secretary of Transportation
Federico Pena, Dec. 18, 1995; White House Press Briefing, Mike McCurry,
Dec. 18, 1995.
\4\ `` `Working on the Blade of A Knife,' '' Los Angeles Times,
Mar. 18, 1996.
\5\ NAFTA, Annex 913.5.a-1(2)(a)
\6\ NAFTA, Annex I, Schedule of the United States.
\7\ U.S. Mexico Border: Issues and Challenges Confronting the
United States and Mexico, GAO, Jul. 1999.
\8\ ``Commercial Trucking: Safety and Infrastructure Issues Under
the North American Free Trade Agreement,'' General Accounting Office,
GAO/RCED-96-61, Feb. 1996.
\9\ ``FY 1999 Windows of Opportunity for Drug Smuggling (Southwest
Border),'' U.S. Customs Service, Nov. 4, 1999; ``NAFTA Offers Freedom
of the Road: U.S. May Have to Open its Borders to Neighbor's Trucks,
Regardless of Safety Concerns,'' Financial Times, Nov. 28, 2000.
\10\ ``Mexico Pursues the NAFTA Dispute Settlement Mechanism
Regarding the Opening of Cross-Border,'' Embassy of Mexico press
release, Jul. 24, 1998.
\11\ ``Motor Carrier Safety Program for Commercial Trucks at U.S.
Borders,'' Department of Transportation, Office of Inspector General
Audit Report, Dec. 28, 1998.
\12\ `` `Working on the Blade of a Knife,' '' Los Angeles Times,
Mar. 18, 1996.
\13\ ``Motor Carrier Safety Program for Commercial Trucks at U.S.
Borders,'' Department of Transportation, Office of Inspector General
Audit Report, Dec. 28, 1998.
\14\ ``FY 1999 Windows of Opportunity for Drug Smuggling (Southwest
Border),'' U.S. Customs Service, Nov. 4, 1999; ``NAFTA Offers Freedom
of the Road: U.S. May Have to Open its Borders to Neighbor's Trucks,
Regardless of Safety Concerns,'' Financial Times, Nov. 28, 2000.
\15\ Department of Transportation and Related Agencies
Appropriations Fiscal Year 2001, Conference Report, House Appropriation
Committee Summary Table.
\16\ ``FY 1999 Windows of Opportunity for Drug Smuggling (Southwest
Border),'' U.S. Customs Service, Nov. 4, 1999.
\17\ ``FY 1999 Windows of Opportunity for Drug Smuggling (Southwest
Border),'' U.S. Customs Service, Nov. 4, 1999; ``NAFTA Offers Freedom
of the Road: U.S. May Have to Open its Borders to Neighbor's Trucks,
Regardless of Safety Concerns,'' Financial Times, Nov. 28, 2000;
``Motor Carrier Safety Program for Commercial Trucks at U.S. Borders,''
Department of Transportation, Office of Inspector General Audit Report,
Dec. 28, 1998.
\18\ ``Foreign Trucking a Safety Concern; Inspectors Unprepared, a
Federal Official Says,'' Ft. Worth Star-Telegram, Oct. 21, 1999;
``Delay Urged in Loosening Truck Limits; Safety Concerns Have Some
Officials Worried About Allowing Foreign Vehicles Free Movement in the
U.S.,'' Ft. Worth Star-Telegram, Oct. 23, 1999.
\19\ ``Fatalities in Crashes Involving Large Trucks by State 1990-
1999,'' Analysis Division, Federal Motor Carrier Safety Administration,
Sep. 11, 2000.
\20\ ``Administrator's Fact Book,'' Federal Aviation
Administration, U.S. DOT, October 2000.
\21\ ``Mexico's Traffic Death Rate Surpasses NAFTA Neighbors,''
Journal of Commerce, Jan. 6, 2000.
\22\ A final rule issued by the Office of Motor Carriers on July
16, 1992, see 57 FR 31454 et seq., declared that a Memorandum of
Understanding had been signed by the U.S. and Mexican governments
recognizing the ``equivalence'' of the U.S. Commercial Driver's License
and the Mexican Licencia Federal de Conductor. Notwithstanding a
declaration of functional equivalence between the licenses, however,
real difference between the two countries' programs exist. Some of
those differences are noted in the chart.
\23\ Current U.S. regulations also require ``English proficiency''
for drivers in interstate commerce.
\24\ `` `Working on the Blade of a Knife,' '' Los Angeles Times,
Mar. 18, 1996.
\25\ `` `Working on the Blade of a Knife,' '' Los Angeles Times,
Mar. 18, 1996.
\26\ ``Meeting of the NAFTA Land Transportation Standards
Subcommittee, San Juan del Rio, Oct. 23-27, 2000,'' draft report.
\27\ ``Meeting of the NAFTA Land Transportation Standards
Subcommittee, San Juan del Rio, Oct. 23-27, 2000,'' draft report;
briefing by the Transportation Consultative Group, Nov. 28, 2000.
\28\ ``Meeting of the NAFTA Land Transportation Standards
Subcommittee, San Juan del Rio, Oct. 23-27, 2000,'' draft report;
briefing by the Transportation Consultative Group, Nov. 28, 2000.
\29\ ``Background to New Entrant Safety Fitness Assurance
Process,'' John A. Volpe Transportation Systems Center for Federal
Motor Carrier Safety Administration, Mar. 2000.
\30\ ``Meeting of the NAFTA Land Transportation Standards
Subcommittee, San Juan del Rio, Oct. 23-27, 2000,'' draft report;
briefing by the Transportation Consultative Group, Nov. 28, 2000.
\31\ ``Background to New Entrant Safety Fitness Assurance
Process,'' John A. Volpe Transportation Systems Center for Federal
Motor Carrier Safety Administration, Mar. 2000.
\32\ ``Background to New Entrant Safety Fitness Assurance
Process,'' John A. Volpe Transportation Systems Center for Federal
Motor Carrier Safety Administration, Mar. 2000.
\33\ ``Roadside Inspection: Effectiveness and Assessment,'' Motor
Carrier Safety Analysis, Facts and Evaluation Newsletter, vol. 3 no ii,
Jan. 1998.
\34\ ``Large Truck Crash Profile: The 1998 National Picture,''
Analysis Division Federal Motor Carrier Safety Administration, Jan.
2000.
\35\ ``Comparative Truck Size and Weight Study: Volume III Scenario
Analysis,'' U.S. Dept. Of Transportation, Aug. 2000.
\36\ Memorandum by Jerry Donaldson, Advocates for Highway and Auto
Safety, June 20, 2000.
\37\ See NAFTA and Trucking, http://www.teamster.org/
nafta_truck_safety.html.
\38\ ``Meeting of the NAFTA Land Transportation Standards
Subcommittee, San Juan del Rio, Oct. 23-27, 2000,'' draft report;
briefing by the Transportation Consultative Group, Nov. 28, 2000.
\39\ ``Staying Alive on Texas Roads; Increase Oversight of Big
Rigs,'' Austin American Statesman, Jan. 22, 1999.
\40\ `` `Working on the Blade of a Knife,' '' Los Angeles Times,
Mar. 18, 1996.
\41\ ``The NAFTA Trucker,'' The Teamster, Nov., 1999; `` `Working
on the Blade of a Knife,' '' Los Angeles Times, Mar. 18, 1996.
\42\ ``The NAFTA Trucker,'' The Teamster, Nov., 1999; `` `Working
on the Blade of a Knife,' '' Los Angeles Times, Mar. 18, 1996.
\43\ ``Mexico-Domiciled Motor Carriers,'' Department of
Transportation, Office of Inspector General Audit Report, Nov. 4, 1999.
\44\ SafeStat Analysis Report, Sep. 23, 2000 for Mexican carriers
and U.S. carriers; SafeStat Motor Carrier Safety Status Measurement
System, version 8.1, prepared for the Federal Motor Carrier Safety
Administration by John A. Volpe National Transportation Systems Center,
Mar. 25, 2000. The comprehensive, layered data approach of examining
Federal Motor Carrier compliance reviews, inspection status, safety
measures, event data (like accident reports) and carrier descriptive
data provides ratings for four specific safety areas (accident, driver,
vehicle and safety programs) and identifies which specific carriers are
in the worst quartile in at least two of these categories to discern
relative safety. Carriers found to be deficient in at least two safety
categories were deemed ``at risk;'' At risk carriers were found to be
more than twice as likely to be involved in accidents as carriers that
had no identified safety deficiencies. Public Citizen examined the
aggregated data from the Safety Status Measurement System from
September 23, 2000 for carriers based in Mexico and the U.S. and found
significantly worse relative safety records for Mexican carriers.
\45\ `` `Working on the Blade of a Knife,' '' Los Angeles Times,
Mar. 18, 1996; ``Mexico-Domiciled Motor Carriers,'' Department of
Transportation, Office of Inspector General Audit Report, Nov. 4, 1999.
\46\ SafeStat Analysis Report, Sep. 23, 2000 for Mexican carriers
and U.S. carriers; SafeStat Motor Carrier Safety Status Measurement
System, version 8.1, prepared for the Federal Motor Carrier Safety
Administration by John A. Volpe National Transportation Systems Center,
Mar. 25, 2000.
\47\ ``Background to New Entrant Safety Fitness Assurance
Process,'' John A. Volpe Transportation Systems Center for Federal
Motor Carrier Safety Administration, Mar. 2000.
\48\ SafeStat Analysis Report, Sep. 23, 2000 for Mexican carriers
and U.S. carriers; SafeStat Motor Carrier Safety Status Measurement
System, version 8.1, prepared for the Federal Motor Carrier Safety
Administration by John A. Volpe National Transportation Systems Center,
Mar. 25, 2000.
\49\ SafeStat Analysis Report, Sep. 23, 2000 for Mexican carriers
and U.S. carriers; SafeStat Motor Carrier Safety Status Measurement
System, version 8.1, prepared for the Federal Motor Carrier Safety
Administration by John A. Volpe National Transportation Systems Center,
Mar. 25, 2000.
\50\ Texas Center for Border Economic and Enterprise Development
data, updated May 10, 2000, available on the internet at www.tamiu/edu/
cob/bti/trucks.; projection calculated by Public Citizen.
\51\ ``Background to New Entrant Safety Fitness Assurance
Process,'' John A. Volpe Transportation Systems Center for Federal
Motor Carrier Safety Administration, Mar. 2000.
\52\ ``Foreign Trucking a Safety Concern; Inspectors Unprepared, a
Federal Official Says,'' Ft. Worth Star-Telegram, Oct. 21, 1999;
``Delay Urged in Loosening Truck Limits; Safety Concerns Have Some
Officials Worried About Allowing Foreign Vehicles Free Movement in the
U.S.,'' Ft. Worth Star-Telegram, Oct. 23, 1999.
\53\ Through interviews with state regulators, Public Citizen
discerned that the state of Texas provides 45 commercial truck
inspectors at the border, Arizona has 31 and California provides 25.
Public Citizen was not able to find out the current number of state
inspectors in New Mexico, but there were none in 1998 according to
``Motor Carrier Safety Program for Commercial Trucks at U.S. Borders,''
Department of Transportation, Office of Inspector General Audit Report,
Dec. 28, 1998.
\54\ ``U.S.-Mexico Border: Better Planning, Coordination Needed to
Handle Growing Commercial Traffic,'' General Accounting Office, March
2000.
\55\ ``Top Ten Management Issues,'' Department of Transportation
Office of Inspector General Report No. PT-2001-017, Jan. 18, 2001.
\56\ ``Motor Carrier Safety Program for Commercial Trucks at U.S.
Borders,'' Department of Transportation, Office of Inspector General
Audit Report, Dec. 28, 1998.
\57\ ``Motor Carrier Safety Program for Commercial Trucks at U.S.
Borders,'' Department of Transportation, Office of Inspector General
Audit Report, Dec. 28, 1998.
\58\ ``Motor Carrier Safety Program for Commercial Trucks at U.S.
Borders,'' Department of Transportation, Office of Inspector General
Audit Report, Dec. 28, 1998.
\59\ ``Motor Carrier Safety Program for Commercial Trucks at U.S.
Borders,'' Department of Transportation, Office of Inspector General
Audit Report, Dec. 28, 1998.
\60\ Texas Center for Border Economic and Enterprise Development
data, updated May 10, 2000, available on the internet at www.tamiu/edu/
cob/bti/trucks.
\61\ Texas Center for Border Economic and Enterprise Development
data, updated May 10, 2000, available on the internet at www.tamiu/edu/
cob/bti/trucks.
\62\ Truck Crossing into Texas from Mexico, 1990-1999; Truck
Crossing into Texas from Mexico, 2000 YTD; Rail Car Crossing into Texas
from Mexico, 1990-1999, all from Texas Center for Border Economic and
Enterprise Development, May 10, 200 and Oct. 23, 2000; projection based
on first 8 months of 2000 truck entries extrapolated to entire year.
\63\ ``FY 1999 Windows of Opportunity for Drug Smuggling (Southwest
Border),'' U.S. Customs Service, Nov. 4, 1999; ``NAFTA Offers Freedom
of the Road: U.S. May Have to Open its Borders to Neighbor's Trucks,
Regardless of Safety Concerns,'' Financial Times, Nov. 28, 2000.
\64\ Opening Statement of Jim Hall, Chairman of the National
Transportation Safety Board, Third NTSB Hearing on Truck and Bus
Safety: The Highway Transportation Aspects of NAFTA, Oct. 20-22, 1999,
Los Angeles, CA.
\65\ ``Mexico-Domiciled Motor Carriers,'' Department of
Transportation, Office of Inspector General Audit Report, Nov. 4, 1999.
\66\ ``Motor Carrier Safety Program for Commercial Trucks at U.S.
Borders,'' Department of Transportation, Office of Inspector General
Audit Report, Dec. 28, 1998.
\67\ ``Motor Carrier Safety Program for Commercial Trucks at U.S.
Borders,'' Department of Transportation, Office of Inspector General
Audit Report, Dec. 28, 1998.
\68\ ``Motor Carrier Safety Program for Commercial Trucks at U.S.
Borders,'' Department of Transportation, Office of Inspector General
Audit Report, Dec. 28, 1998.
\69\ ``Motor Carrier Safety Program for Commercial Trucks at U.S.
Borders,'' Department of Transportation, Office of Inspector General
Audit Report, Dec. 28, 1998.
\70\ ``Background to New Entrant Safety Fitness Assurance
Process,'' John A. Volpe Transportation Systems Center for Federal
Motor Carrier Safety Administration, Mar. 2000.
\71\ California and Baja California Border Indicators, San Diego
State University, California Center for Border and Regional Economic
Studies, based on U.S. customs data 1994-1999.
\72\ California and Baja California Border Indicators, San Diego
State University, California Center for Border and Regional Economic
Studies, based on Bureau of Transportation Statistics.
\73\ ``Delay Urged in Loosening Truck Limits,''Fort Worth Star-
Telegram, Oct. 23, 1999.
\74\ ``Mexico-Domiciled Motor Carriers,'' Department of
Transportation, Office of Inspector General Audit Report, Nov. 4, 1999.
\75\ H.R. Res. 3419, 105th Cong. Sec. 219 (1999).
\76\ Texas Department of Public Safety data, 1997, 1998, 1999,
preliminary.
\77\ ``Big Rig Driver Released From Jail; Police Have Not Charged
the Man Arrested After a Chain-Reaction Accident that Killed Four,''
Orange County Register, Mar. 29, 1997.
\78\ ``Tow Firm's Contract Suspended; It Gave Away a Big Rig's
Tomatoes After a Crash,'' Orange County Register, Jul. 16, 1997.
\79\ ``Survivors of Crash Victims File Lawsuit,'' orange County
Register, Jul. 12, 1997.
\80\ ``Officials Spar on Letting Mexican Trucks Beyond Border,''
San Antonio Express-News, Mar. 19, 2000.
\81\ ``U.S.-Mexico Border: Issues and Challenges Confronting the
U.S. and Mexico,'' General Accounting Office, Jul. 1999.
\82\ Fiscal year 1999 Windows of Opportunity for Drug Smuggling
(Southwest Border), U.S. Customs Service, Nov. 14, 1999.
\83\ ``DAs Quit Checkpoint Cases: Soaring Border Drug Arrests Add
Much to Local Workloads,'' Associated Press, May 11, 2000.
\84\ ``U.S.-Mexico Border: Issues and Challenges Confronting the
U.S. and Mexico,'' General Accounting Office, Jul. 1999.
\85\ ``The NAFTA Trucker,'' The Teamster, Nov., 1999.
\86\ ``Young Women Follow Journeys of Hope to Factories--and Then,
to Violence; Bright Lights, Dark City,'' Washington Post, Jun. 25,
2000; ``1 Killing but Many Victims; Ex-DEA Agent Phil Jordan Sees Drug
Lords' Hand in his Brothers Slaying and Related Misfortunes,'' Los
Angeles Times, Jul. 8, 2000.
\87\ U.S.-Mexico Border: Better Planning, Coordination Needed to
Handle Growing Commercial Traffic, GAO, Mar. 2000.
\88\ ``U.S.-Mexico Border: Issues and Challenges Confronting the
U.S. and Mexico,'' General Accounting Office, Jul. 1999.
\89\ ``U.S.-Mexico Border: Issues and Challenges Confronting the
U.S. and Mexico,'' General Accounting Office, Jul. 1999.
\90\ ``Mexico-Domiciled Motor Carriers,'' Department of
Transportation, Office of Inspector General Audit Report, Nov. 4, 1999.
______
Public Citizen
July 6, 2001
U.S. Department of Transportation
Dockets Management Facility
Room PL-401
400 Seventh Street, SW.
Washington, DC.
Re:
1. LDocket FMCSA-98-3297; 66 Fed. Reg. 22327 (May 3, 2001)
LRevision of Regulations and Application Form for Mexican-
Domiciled Motor Carriers to Operate in U.S. Municipalities and
Commercial Zones on the U.S.-Mexico Border
2. LDocket FMCSA-98-3298; 66 Fed. Reg. 22371 (May 3, 2001)
LApplication by Certain Mexican Motor Carriers to Operate
Beyond U.S. Municipalities and Commercial Zones on the U.S.-
Mexico Border
3. LDocket FMCSA-98-3299; 66 Fed. Reg. 22415 (May 3, 2001)
LSafety Monitoring System and Compliance Initiative for
Mexican Motor Carriers Operating in the United States
Public Citizen appreciates the opportunity to comment on the
Federal Motor Carrier Safety Administration's (FMCSA) proposed new and
revised applications and safety monitoring procedures for opening the
border to Mexican-domiciled trucks under the North American Free Trade
Agreement (NAFTA). We believe that the proposed rules fail to
acknowledge the inadequacy of the existing enforcement structure and
will not protect the public from unsafe trucks crossing into the United
States.
If the border opens by the January 1, 2002 deadline announced by
President Bush, under these proposed rules, unsafe trucks will
inevitably escape detection and travel freely throughout the United
States, endangering motorists and risking a trade-related debacle. For
these reasons, the issue has already triggered widespread and deep
opposition. A group of ten senators who support NAFTA sent a letter to
President Bush expressing reservations about the inadequate inspection
force at the border and the proposed 18-month period in which carriers
may operate without a safety review.\1\ A majority of House members
have also indicated their concern about the safety of Mexican cross-
border traffic in a recent vote denying funding for the processing of
applications on behalf of Mexican carriers.\2\
Business interests argue that allowing long-haul trips from the
interior of Mexico into the United States would be more efficient than
the present system, but some Mexican truckers find that the present
system of long-haul to short-haul transitions at the border is
relatively quick and that the physical transfer of truck loads takes
less time than it takes for customs officials to process cross-border
paperwork.\3\ Congestion at the border will increase, not decrease, as
more businesses take advantage of Mexico's network of cheaper trucking
and warehouse labor to ship cargo to the interior United States.
Little has changed since the Clinton Administration, prompted by
safety concerns, refused to open the border in 1995. Mexico has not yet
put in place a regulatory system comparable to those in the U.S. and
Canada, as it is required to do under NAFTA. The out-of-service rate
for Mexican-domiciled trucks crossing the border is still significantly
higher than the out-of-service rate for trucks in the U.S. and Canada.
The border is still woefully short on federal inspectors and resources
to ensure that unsafe trucks are not admitted.
The United States must limit access to Mexican-domiciled trucks
until it can implement an effective system to ensure that these trucks
comply with U.S. regulations. The proposed rules are inadequate to meet
that objective in a number of respects. The agency evidently plans to
grant operating authority based only on a paper application, without
verifying the information submitted by applicants. To evaluate the
safety fitness of Mexican carriers, the agency intends to rely heavily
on an unpopulated database that currently lacks the basic information
necessary to process applications or to perform a safety review. The
agency permits itself an 18-month window before completing a safety
review of a Mexican carrier after it has been granted a certificate of
registration, but 18 months is far too long to wait to verify a
company's regulatory compliance and safety record.
The integrity of the application and review process is critical
because information long available on the safety record of the Mexican
trucking fleet shows that great improvement would be needed to meet
U.S. safety standards. Border inspection facilities lack the resources
and new inspectors necessary to pick up the slack created by weak
enforcement of regulations on both sides of the border and inspect all
Mexican trucks. The number of inspectors is not likely to increase this
year. On June 27, 2001, the Washington Post reported that the money
earmarked for the hiring of an additional 80 inspectors was ``struck
from the spending bill on technical grounds yesterday.'' Juliet
Eilperin, ``House Acts to Block Mexican Trucks,'' Washington Post, 6/
27/2001./ As our comments show, once a truck gets beyond the border, it
is not likely to face inspection or verification of operating authority
by either state or federal officials.
The NAFTA arbitral panel ruling directing the U.S. to open the
border expressly provided permission in its ruling for U.S. authorities
to establish inspection and licensing requirements that are not
``like'' those already in place for U.S. carriers, so long as their
expectations are the result of legitimate safety concerns.\5\ Thus, the
U.S. could establish a program which requires Mexican trucks to meet
more stringent standards than is the case under current U.S. law. Such
an accommodation is highly unusual in a trade ruling, and is an open
invitation for the U.S. to act responsibly to fulfill its safety
obligations to the American public.
Despite such considerations by the panel, FMCSA has proposed rules
which achieve the opposite of what is permitted under the ruling. The
agency's proposals actually allow greater latitude in several key areas
for Mexican-domiciled carriers and drivers than currently apply to U.S.
and Canadian companies and drivers under U.S. law. In fact, the
agency's proposed 18-month safety review process imposes far fewer and
generally less serious consequences for safety violations than applies
in its absence, thus creating a safe harbor for Mexican-domiciled
entrants to the market and a competitive disadvantage for U.S.
interests.
NAFTA failed to link the development of a commercial carrier safety
infrastructure in Mexico with the time-line for opening the U.S.-Mexico
border to commercial trucks. The FMCSA is clearly struggling, in these
rules, between the ``rock'' of the NAFTA-globalization juggernaut and
``hard place'' of its assigned mission to assure the safety of
commercial carriers in the U.S. The proposed rules, however, answer to
trade at the expense of safety. Because the agency puts trade first,
and because agency decision makers are all too aware of the practical
impediments to reasonable enforcement, the proposed rules demonstrate
far less concern with technical feasibility than is usual in the
agency's history.
The rules appear--although surely the FMCSA is not--to be almost
entirely uninformed about the real risks that these dangerous proposals
pose to the U.S. public, and to the image of ``free'' trade here at
home. We are acting far too quickly, with far too little attention to
the actual and potential costs, and at the risk of causing hazardous
material spills, horrific truck crashes and other unnecessary suffering
and death on U.S. highways. We urge the agency to reconsider its rules
in light of the real risks to American motorists and its safety
mission, and to formulate its future proposals with full awareness of
the practical consequences and importance of its actions.
I. The push to open the border to Mexican trucks without assurance of
their safety is the result of a fatal flaw in the North
American Free Trade Agreement.
The NAFTA agreement required the United States to open its border
to Mexican trucks in phases beginning in 1995. The time-line laid down
in the agreement was not linked in any way to Mexico's promise, also in
the agreement, to improve its domestic level of safety for commercial
carriers and to build up its oversight and safety inspection resources
to levels commensurate with the U.S. and Canada.
Without acting whatsoever on its domestic obligations, almost 3
years ago the Mexican government brought a dispute before a NAFTA
arbitral panel to open the southern U.S. border to cross-border
commercial traffic. Last summer, the Mexican government, following work
with trucking industry representatives, finally issued a fledgling set
of basic rules for commercial carrier safety. The rules are voluntary
for the first year and are phased in over 2 years. Public Citizen's
analysis of the rules (see ``Recent Mexican Trucking Rules Do Not Solve
Serious Safety Hazards,'' attached) shows the rules are deficient in
many areas, and do not compare favorably to protections provided by
U.S. standards and rules.
Regardless of the lack of progress on safety standards in Mexico,
the NAFTA panel ruled that the U.S. should open the border or face
trade sanctions, thus demonstrating the untenability of the agreement's
structure. Once the U.S. actually opens the border, it of course will
have no leverage with Mexico to encourage it to continue or improve
this regulation process.
Moreover, the massive funding for the necessary inspection and
border resources amounts to an in-kind subsidy of federal dollars to
cross-border companies that will grease the wheels of trade and further
erode border communities and infrastructure. In this case, public tax
dollars must be spent to facilitate a trade agreement, which will in
turn enable the flow of commercial traffic across the border and
enhance of the profitability of private trucking companies. Because the
agreement itself allows no operating room to control expenditures at
the border, and because the border's opening was not linked to a safety
time-line, NAFTA is a gun to the head of both FMCSA and the U.S. budget
for federal border inspections.
II. Mexico's fledgling commercial carrier regulatory system has little
substance.
A. Mexico's new regulations are weak and not yet actively enforced.
The Mexican government finally began to honor its obligations under
NAFTA last summer with the passage of new, albeit weak, regulations for
commercial carriers. The inspection standards adopted under the new
laws have been voluntary since their enactment a year ago, and have not
been in place long enough to generate data. Planned to be ``phased in''
over the next 2 years, they become compulsory this summer, but there is
as yet little evidence of enforcement or new funding for roadside
inspections or database development. According to the translated text
of the Mexican statute, the standards were drafted by a panel that
included a number of industry representatives.\6\
The new Mexican inspection standards are far less stringent than
U.S. standards, and have been written so as to work against a thorough
inspection. While the inspections called for in the law include more
than 143 actions to test components of the truck, inspectors must
complete each inspection within an impossibly short time: 20 minutes
maximum for a hazardous materials vehicle and 30 minutes maximum for a
general cargo vehicle.\7\ Although the Mexican inspection standards are
purported to be ``based'' on Commercial Vehicle Safety Alliance (CVSA)
out-of-service criteria, CVSA does not set limits on the time necessary
to make an inspection. The standard CVSA Level I inspection takes an
estimated 45 to 60 minutes to complete, and the discovery of a serious
violation may trigger a longer, more thorough inspection that can take
hours. The Mexican standard also provides for inspection facilities to
be run by non-governmental third parties, which are likely to generate
fees that will trigger conflicts of interest.\8\ There is no reason to
believe that the inspection process will be untouched by the corruption
which, according to news reports, is a constant challenge for the
government and people of Mexico.\9\
The new Mexican inspection regulations allow unsafe vehicles to
slip through the cracks. New vehicles are completely exempted from
inspections for 2 years after the date of manufacture.\10\ Vehicles
with multiple borderline infractions are not sanctioned because the
inspection criteria are not cumulative. While the law allows for fines,
it does not specify their amount, indicating that they may be so small
that carriers can treat such fines as a cost of doing business. A
number of safety defects that merely incur a fine and a request that
the problem be fixed within 20 days in Mexico would be sufficient cause
to remove a truck from the road in the U.S. These defects include
improperly stored hazardous materials, missing fuses, worn or exposed
wires, a lack of windshield wipers, a shattered windshield, damaged
tires, broken wheel rims, leaky fuel lines, worn or cracked load
securement chains, loose steering wheels, cracked brake drums and
inoperative brake linings.\11\
B. The new Mexican regulatory system is not supported by a regulatory
infrastructure.
There is little evidence of funding or administrative structure for
enforcing these laws. The wildly optimistic report released last fall
by the Land Transportation Standards Subcommittee (LTSS), a group
established under NAFTA to serve as a liaison among the governments of
Canada, Mexico, and the United States in establishing a shared safety
program, fails to emphasize the following serious problems documented
in the report:
Training for the road inspection program in Mexico fell
apart.\12\
Mexico has higher weight restrictions than the U.S., and no
operational weigh stations.\13\
Although Mexico has had a drug and alcohol testing
requirement stemming from a 1998 Memorandum of Understanding
with the U.S., Mexico has no laboratories that are U.S.-
certified for drug testing.\14\
The Mexican safety regulations are to be enforced only by
Mexican federal officers, and only on Mexican federal highways,
which represent 10 percent of all the highways in Mexico.
There is no evidence to indicate the level of access that
Mexican authorities on the highway have to the safety database
they are developing or how regularly they are adding to it.
Currently, the lack of information in the database renders it
functionally inoperational.
Mexico has required hours of service logbooks for hazardous
materials drivers since 1993 and for all other commercial
vehicle drivers since March 29, 2000,\15\ but U.S. border
officials have yet to see a Mexican logbook.\16\
C. Mexico still has no hours of service rules.
Unlike safety regulation in the U.S. and Canada, Mexican laws do
not include hours of service rules. Mexican carriers often require
their workers to drive for much longer periods per day than the U.S.
statutory hours of service limit.\17\ In fact, the new Mexican
regulations leave carriers to design logbooks for hours of service
``according to its needs.'' \18\
D. Assuring the safety fitness of trucks must be a priority in Mexico
before they reach the border.
A functioning road inspection system in Mexico will be crucial for
assuring the fitness of Mexican trucks before they reach the border.
The Mexican trucking fleet is older and receives more out-of-service
orders than the U.S. fleet when trucks are inspected at the border.\19\
A recent report indicates that it would take some years and billions of
dollars to bring the Mexican trucking fleet up to the quality of the
U.S. fleet.\20\
III. Admission processes at the border will not filter out unsafe
trucks.
A. The proposed application process for Mexican-domiciled trucks will
not ensure compliance.
The proposed rules do not provide for verification of the information
submitted in the paper application.
The application procedures for Mexican-domiciled carriers that are
included in the proposed rules do not provide for verification of the
claims and submitted information. They rely heavily on self-reporting
and do not outline or mention any process by which the truth of this
information will be ascertained. In fact, some of the application
information requested by FMCSA may prove to be unverifiable.
Under the proposals, registration is granted primarily on the basis
of information supplied by the applicant on the application and on the
applicant's reassurance that it has knowledge of, and will comply with,
relevant U.S. safety regulations.\21\ All the applicant must do to
demonstrate knowledge of applicable regulations is check ``yes.''
Interestingly, there is no box to check ``no.''
The carrier also need only describe its ``plan'' for complying with
drug testing and other programs, rather than submit proof that drug
tests have been taken and results have been acceptable. Any inaccurate
information supplied in an application likely will not be caught before
a certificate of registration is issued.
The Department of Transportation Office of the Inspector General
investigated and reported on the failure of FMCSA and its
predecessor to verify information supplied by Mexican-domiciled
carriers.
The Department of Transportation has never implemented a
verification process for Mexican registration information, and as a
result, much of the information that the DOT currently has in its
databases regarding Mexican-domiciled carriers is outdated or
unverified. A November 1999 Office of the Inspector General audit
report found that ``there was too much reliance on the information
contained in the application [of Mexican-domiciled motor carriers]
without verification.'' \22\ The Inspector General found that there
were no processes in place to confirm the claims.\23\
Furthermore, the report pointed out that the application process
did not require that documents to be submitted with the application be
certified copies.\24\ The proposed rules present the same serious
problems, but the negative effects of granting operating authority on
the basis of inaccurate information will extend beyond the commercial
zone to the entire United States, where such operating authority is
granted.
The information requested may be distorted through error or fraud.
Much of the information provided by applicants may not be
verifiable under current practices. The applicant is asked to report
whether it is ``affiliated'' with a carrier that has been disqualified
from operating in the United States, but it does not define
``affiliated'' and it is unclear whether FMCSA has the ability to track
any of this information.
Indeed, the instructions of the proposed applications imply that
applicants' business information cannot be compared or cross-checked.
The application forms instruct applicants to enter the name of the
carrier exactly the same way each time a name is required, or the
department will list two slightly different names as two different
companies. The instruction suggests that the DOT has no way to cross-
check the owners, addresses, and other information of a company to
ensure that a company is not counted twice. A simple typographical
error in the name of a carrier for an entry of inspection or crash data
into the database, then, could fail to match negative safety data with
that carrier. In addition, carrier with a poor safety record could re-
register under a new name to get a second ``chance'' in the DOT
database.
Information on drivers' safety records may not be available.
While important safety information involves individual drivers'
safety records, it is not clear that this information has been compiled
in Mexico and would be included in the database. This omission presents
another example of the problem in monitoring the Mexican trucking
industry as opposed to the U.S. trucking industry. Information vital to
determining the safety of drivers and carriers will inevitably be more
accurate and more complete regarding U.S. drivers. As a result, danger
signs that would be detected regarding U.S. carriers will not be
detected in Mexican carriers, compromising the level of safety we have
sought to achieve through regulation, and burdening only U.S. carriers
while leaving Mexican carriers unaffected.
B. The database to be used in the safety review contains little data
and will be completely inadequate in evaluating the safety of
Mexican carriers.
Authorities have added little or no data to the database.
A significant problem with the proposed rules is their dependence
on a joint database to be maintained between the U.S. and Mexico. Under
the agency's proposal, registration is conditional upon a satisfactory
safety review, including an evaluation of the ``safety fitness'' of the
carrier as reflected in its inclusion in the Motor Carrier Management
Information System (MCMIS) database. According to Department of
Transportation officials at the Land Transportation Standards
Subcommittee briefing last November, the database has been set up for
Mexican carriers, but it is not yet ``populated'' with information.\25\
Therefore, the database is likely to provide little or no data on a
particular carrier.
While the Land Transportation Standards Subcommittee (LTSS)
declares that Mexican carriers are being added to the database,\26\
simple inclusion in the database is not nearly sufficient. Inspection
data and crash data are necessary for any evaluation of the safety
record of a carrier, and no evidence is available that Mexican
authorities are entering this data. According to oral statements of a
member of Congress at a recent press conference, very little has been
added about Mexican carriers on the Mexican side.
Safety information from Mexico is not comparable to U.S. data.
Even if data is entered into the database, the information gathered
from Mexican reports, such as an out-of-service rate, is not likely to
reflect the safety of the carrier by U.S. standards. The Mexican
standards are weaker and the inspection standards remain voluntary
until later this summer. Once the border is opened, the U.S. will
retain little leverage with Mexico, and the FMCSA will have no way to
improve any shortcomings that affect data or the lack of data on the
Mexican side.
Difficulties that the U.S. has encountered in implementing MCMIS will
likely pose problems for Mexico as well.
The MCMIS database, used to evaluate carrier and driver safety in
the U.S. has presented a number of difficulties during use. It is
foreseeable that Mexico will encounter similar problems. Discrepancies
and deficiencies in the ways that different state enforcement agencies
have entered or coded data in the database have affected the accuracy
of the Safety Status Measurement System (SafeStat) scores of
carriers.\27\ SafeStat scores are important in evaluating the safety
fitness of carriers and detecting ``at risk'' carriers. Delays also
present problems, because SafeStat weighs accidents that occurred
within the last 6 months three times more than accidents that occurred
in the last 18 months or longer.\28\ In fact, a significant proportion
of the crashes reported in 1997 were reported after the period in which
they would have been weighed the most heavily.\29\ U.S. law enforcement
has been working on reducing the delay of information added to the
database, but Mexico would likely experience similar problems with
delays.
If Mexican authorities do not enter complete information, the data
will be extremely inadequate. The Inspector General's office found in
an audit of MCMIS that less than 40 percent of the crashes entered into
MCMIS for the U.S. in 1997 identified the carriers involved.\30\ The
same IG report also found that MCMIS contains no information on cause
or fault in its crash data; \31\ if this information is not supplied on
the Mexican side, the FMCSA will have no way to recover it.
A new law will penalize U.S. commercial drivers for poor personal
driving records but will likely not be practically applicable
to Mexican drivers, reducing the effectiveness of the law and
allowing Mexican drivers a competitive advantage over their
American and Canadian counterparts.
A rule recently proposed by FMCSA would disqualify the commercial
drivers licenses of drivers who are convicted of violations like drunk
driving, leaving the scene of an accident, violating railroad-highway
grade crossing signs, excessive speeding, and reckless driving,
regardless of whether the offense was committed while driving a
personal vehicle or a commercial vehicle.\32\ However, the MCMIS
database will not carry information regarding Mexican drivers' private
driving records, making it impossible for FMCSA to enforce this law
with respect to Mexican drivers. To enforce this law with respect to
U.S. drivers but not Mexican drivers would be unfair to U.S. commercial
drivers, creating a competitive disadvantage far beyond the foreseen
consequences of NAFTA.
C. The proposed safety monitoring program is too weak to deter non-
compliance. It also provides an 18-month safe harbor for
Mexican-domiciled carriers.
Administrative difficulties will greatly hamper enforcement.
The proposed safety monitoring program is not likely to motivate
carriers to comply with all regulations before the 18-month period
expires. If the FMCSA is overwhelmed with applications, unable to
conduct the number of safety reviews in a timely manner, or unable to
keep track of suspended carriers, a carrier may operate indefinitely
under hazardous conditions. Registration is so infrequently checked
that finding a truck operating with suspended or revoked registration
will be like finding a needle in a haystack. The consequences for
carriers operating on a revoked or suspended license are neither
certain nor serious.
The rules create an 18-month safe harbor for Mexican carriers and
drivers.
In contrast to the NAFTA panel's ruling that Mexican-domiciled
carriers could be subject to special provisions, the penalties for
Mexican-domiciled carriers under the safety monitoring program are
weaker than those that currently apply to U.S.-domiciled carriers.
Proposed section 385.23 provides a list of violations that are
likely to result in an expedited safety review or deficiency letter.
These violations include serious infractions such as using drivers
lacking proper qualifications,\33\ operating vehicles that have been
placed out of service without correcting the fault, involvement in
accidents leading to a hazardous materials incident, using drivers
testing positive for drugs and alcohol, and operating a vehicle that is
not insured.\34\ For any one of these serious violations, a carrier
would receive a safety review--a review to which it would have to
submit anyway--or a deficiency letter instructing the carrier to notify
FMCSA in writing that the problem has been corrected.
The consequences of violations such as these for U.S. carriers are
considerably more severe, including civil and criminal fines or even
jail time.\35\ Allowing Mexican carriers to receive weak penalties for
serious violations fails to communicate the seriousness of these
violations to carriers and will not prepare them to comply with these
regulations at the end of the safety oversight program.
A number of serious violations were omitted from the proposed program,
compromising safety and placing U.S. carriers at a market
disadvantage.
The FMCSA has also omitted some serious violations from the list of
violations that would trigger an expedited safety review or deficiency
letter. Under its proposal, an accident resulting in a hazardous
materials incident prompts the expedited safety review or deficiency
letter process, but an accident resulting in death does not.
Furthermore, a violation of the hours of service limit is not on the
list of violations that would result in an expedited safety review or
deficiency letter. The hours of service limit is of particular concern
because Mexican carriers often require their workers to drive for much
longer periods per day than the U.S. statutory hours of service limit,
and Mexican laws do not include hours of service rules.\36\ The FMCSA
should add these infractions to the list, and publish its plan for
enforcing hours of service limits for drivers crossing the border who
are not subject to any time controls while in Mexico.
Enforcement of penalties for carriers in the safety oversight program
is weak and uncertain.
The safety oversight provision has no teeth. The rule does not
specify a time limit for the carrier to address the problem and respond
to the deficiency letter. During that interval, the carrier would be
operating in spite of documented safety concerns. A deficiency letter,
or FMCSA's intention to conduct a safety review sooner, does nothing to
keep an unfit carrier off the road and does not communicate to the
carrier the severity of the violation. Is an uninsured carrier allowed
to operate while the safety review or deficiency letter process is
going on? The agency must clarify its plan for ensuring that non-
compliant carriers do not continue operating under hazardous
conditions.
If a carrier fails to respond to the agency's deficiency letter,
that carrier's registration may be suspended until corrective action is
taken. If a carrier fails the safety review, the carrier's registration
will be suspended until it takes corrective action. If the carrier does
not take corrective action, or if the carrier operates in violation of
a suspension order, the carrier's registration may be revoked following
notice and an opportunity for a proceeding.
However, this rule does not specify a time limit for the carrier to
respond to the deficiency letter before a suspension is issued. It is
also unclear how soon after a violation an expedited safety review
would take place. Without time limits, an unsafe carrier could operate
indefinitely before any limitations are placed on it. The rule does not
specify how long a carrier can be suspended without taking corrective
action before its registration is revoked. The agency must clarify this
rule and set definite time restrictions to ensure that non-compliant
carriers do not slip through the cracks.
No system is in place at the border to enforce the suspension or
revocation of operating authority.
The agency's suspension or revocation of a license will not change
a carrier's ability to send trucks across the border. A November 1999
IG report found that, while suspension and revocation notices were sent
to carriers, the carriers nevertheless were able to retain their
certificates in their vehicles and continue operating across the
border.\37\ No information is available to inspectors to verify that a
certificate of registration is valid, or to verify that a driver has a
certificate of registration if he or she is not able to present it upon
request.
D. Trucks crossing the border are not likely to be inspected because
border facilities lack the resources and inspectors to step up
inspections.
The vast majority of cross-border trucks are not inspected at the
border.
About 1 percent of all trucks crossing the border are
inspected.\38\ The overwhelming majority of these inspections are
cursory ``walk-around'' inspections. Trucks that are not inspected at
the border will not likely be checked for a certificate of
registration. Even if a truck is inspected, there is no information
available to an inspector to verify that a certificate of registration
is valid, or to verify that a driver has a certificate of registration
if he or she is not able to present it upon request.
Border officials do not routinely check the registration of cross-
border trucks.
Only federal inspectors and California state inspectors routinely
check certificates of registration at the border. U.S. Customs
officials and other state inspectors do not routinely check
certificates of registration.\39\ Many border crossings do not have
full-time federal inspectors or federal inspectors present during all
hours of operation. If a truck is not inspected by a federal inspector,
it is much less likely to have its certificate of registration checked.
A substantial inspection presence may deter non-compliance.
Unsafe and non-compliant trucks that attempt to cross the border
are not likely to be detected. There is a direct correlation between
the lack of inspectors or full-time inspectors at a border crossing and
the out of service rate of trucks that use that crossing.\40\
Border facilities still lack resources to inspect an adequate
proportion of trucks crossing the border.
Currently, border crossings do not have the resources to inspect
every truck at the border. In the absence of a comprehensive Mexican
regulatory system, the border crossings present the only opportunity
for the U.S. to filter out non-compliant, unregistered, uninsured, or
unsafe trucks before they can travel U.S. highways.
Border crossings need many more federal inspectors.
The number of federal inspectors at the border is less than half
the 139 inspectors the IG called for in 1998.\41\ While 60 inspector
positions have been authorized and funded, only 50 inspectors had been
hired as of March 27, 2001.\42\ The estimate of 139 inspectors was
based on 1998 numbers for truck crossings. The volume of NAFTA traffic
has increased since 1998, however, and that estimate did not include
the inspectors needed for the 18-month proposed safety reviews.\43\
The proposed safety oversight program will strain the inspection forces
at the border.
The proposed rule creates the need for additional inspectors to
perform the safety reviews of carriers either at a point within the
U.S. or at the place of business of carriers in Mexico.\44\ The FMCSA
is still short of the federal inspectors it needs to conduct truck
inspections at the border, however, and the proposed rules do not
include estimates as to how many additional inspectors are needed for
the on-site safety reviews. The proposed rules do not estimate the
amount of time each safety review would take, or the size of the
workload attributed to a single inspector. Workloads would be
exacerbated by the time and cost of traveling to places of business
within Mexico. The greater the time and cost of each inspection, the
longer carriers will operate without a thorough safety review.
Inspection facilities are sorely inadequate.
While plans have been made, no new border inspection facilities
have been built since 1998.\45\ A recent study has documented that
border crossings lack Internet connections, inspection space, and space
to park out-of-service vehicles. In a May 2001 IG report, investigators
visited the 27 border crossings and found: at 20 crossings, FMCSA
inspectors did not have dedicated phone lines to access databases, such
as those for validating a CDL; at 19 crossings, FMCSA inspectors had
space to inspect only 1 or 2 trucks at a time; and at 14 crossings,
FMCSA inspectors had only 1 or 2 spaces to park vehicles placed out of
service. Also, the out-of-service space was shared with the inspection
space at the majority of these crossings.\46\ The FMCSA must address
these serious shortcomings before the volume of cross-border traffic
increases under the proposed rules.
E. Insurance and proof-of-insurance requirements are dangerously
inadequate to protect other drivers on public highways.
The applicant need not submit proof of insurance with the
application. Carriers operating in the border commercial zones need
only carry proof of insurance with them when they cross the border. It
is unclear whether U.S. Customs officials, state or federal inspectors
will routinely check for proof of insurance. Carriers operating beyond
the border zones must submit insurance forms only after notice of their
applications appear in the federal register. This process does not do
anything to guarantee that registration will not be granted to an
uninsured carrier.
While a Mexican carrier may have a general level of insurance,
Mexican carriers sometimes transport a combination of freight and
passengers, or freight and hazardous materials. These different
shipping practices carry different required insurance levels, and a
carrier may only meet the lower insurance level, thus creating a hazard
for other drivers.
F. New problems will arise after completion of the 18-month safety
oversight program.
Once the safety oversight program is completed, and a carrier's
registration becomes permanent, the oversight of Mexican carriers is
considerably reduced. Serious violations, such as using unqualified
drivers or drivers testing positive for drugs or alcohol, operating
vehicles that have been placed out of service without correcting the
violation, and involvement in accidents involving hazardous materials
will not prompt a safety review. It is unclear whether, or for what
infraction, a Mexican-domiciled carrier's registration could be
suspended or revoked after the safety oversight program is complete.
The agency must clarify what circumstances would lead to the suspension
or revocation after the 18 month period has expired.
Lawfully imposed U.S. penalties may trigger conflicts.
When Mexican drivers and carriers encounter the full force of U.S.
regulations, conflicts will result. Assuming that the normal statutory
penalties would begin to apply once the registration is permanent,
drivers and carriers would be subject to the same civil and criminal
penalties to which U.S. drivers and truckers are subject.
However, when the Nogales border inspectors began inspecting trucks
crossing the border and fining Mexican drivers when the trucks failed
to comply with safety regulations, a group of Mexican truckers
protested, blocking the border crossing at Nogales for 8 hours.\47\ The
drivers, who receive twenty to thirty dollars per border crossing, had
been fined up to $1,400 each because their vehicles did not comply with
safety regulations. The workers protested that they should not be fined
for the condition of their vehicles, but U.S. law requires that truck
drivers be responsible for inspecting their vehicles before they begin
operations, and provides for the issuance of fines to both drivers and
carriers when trucks are placed out of service.
U.S. penalties will be particularly hard on Mexican drivers, who
are typically compensated at lower rates than drivers in the U.S. This
incident illustrates a conflict that could become more pronounced as
far more Mexican drivers encounter the enforcement of U.S. safety
regulations.
IV. Non-border states are completely unprepared for the influx of
Mexican trucks.
Trucks that are not inspected at the border are unlikely to be
checked at any point beyond the border for certificates of
registration. A November 1999 Office of the Inspector General report
noted that, in FY 1998, 202 Mexican-domiciled motor carriers were found
operating outside of their authority beyond the commercial zones in the
border states, and 52 motor carriers were found operating outside of
their authority in 20 non-border states.\48\ The trucks, which were
supposed to travel only within commercial zones at the border, were
found in North and South Dakota, Washington state, New York, New
Jersey, and Florida.\49\ These trucks were detected only because they
had been selected for roadside inspections.
Much of the data that the safety oversight program and safety
review will depend on is the safety data gathered and entered into the
database from roadside inspections in the U.S. However, the likelihood
that a truck will be selected for a roadside inspection in the U.S. is
small. Trucks are usually selected for roadside inspections on the
basis of visual clues that they may not comply with safety standards or
if their carrier has been selected for closer monitoring on the basis
of its SafeStat score. The SafeStat scoring system is not generally
accurate for small carriers because they do not generate enough data,
and most Mexican carriers are small carriers.
If a truck operating without authority or outside of its authority
does not appear to have physical defects, it is unlikely to be stopped
at all. Inspectors in non-border states are much less likely to check
certificates of registration, because the non-border states lack state
laws banning Mexican-domiciled trucks from operating without
registration or operating outside of their authority.\50\ Roadside
inspectors cannot place a Mexican-domiciled vehicle out of service
simply because it is operating without registration or operating
outside of its authority.\51\
An inspector may issue an out-of-service order for other violations
meeting the necessary criteria or issue a fine for operating outside of
authority, but while the fine limits for operating outside of authority
have been raised, the actual assessed fines have remained the same, in
the range of $500-$1000, an amount that a carrier could view as a cost
of doing business.\52\ There are few safeguards to monitor Mexican
trucks operating beyond the border in the interior U.S.
V. The proposed rules present significant hidden economic costs for the
U.S., utilizing government funds to subsidize the private
sector.
The opening of the border under this proposed rulemaking will be
costly to the United States economy in that it increases the
probability of costly accidents and places all the expense of insuring
Mexican compliance on U.S. border and road inspection resources.
Mexican drivers and commercial carriers can, under the proposed
rules, procure a marketplace advantage under the 18-month safety
monitoring program. While they are in this program, they need not
follow hours of service laws, and penalties for drivers and carriers
for violating other laws are only as costly as correcting the
violation. U.S. carriers in the same circumstances face fines,
disqualification, or even time in jail.
According to Department of Transportation calculations on the costs
of truck crashes, just an additional 1,000 truck crashes resulting from
this proposal would cost over $100 million, in addition to the
intangible costs of injury and death. Even if the administration
increases inspectors and their facilities at the border in an effort to
avert disaster, the measure would amount to the U.S. performing the
enforcement function of the laws that Mexico put on the books and is
obligated to enforce under NAFTA.
VI. Conclusion
While the administration purports to require Mexican-domiciled
carriers to adhere to the same safety standards as American carriers,
the application process in the proposed rules indicates that its lofty
goals are only accomplished on paper. Numerous failings in the current
registration process for Mexican-domiciled carriers that were found and
reported by the DOT Inspector General have not been addressed or even
acknowledged in the proposed rules.
The DOT is willing to do on paper what it is not willing to do in
practice. Requiring only that carriers promise to know and follow
regulations and failing to verify the information supplied by the
carrier will place the public at risk. Under the proposed rules, FMCSA
would evaluate carriers' fitness for registration on paper before
granting them authority, not conducting an actual on-site safety
fitness review until after operating authority has been granted and the
carriers have begun cross-border operations.
The effectiveness of the entire truck safety oversight program
depends on the deterrent effect of suspension or revocation of
certificates of registration, but certificates of registration are
rarely checked and cannot be verified at the border. While FMCSA can
suspend or revoke the registration on paper, it has no enforcement
system in place to prevent carriers with suspended or revoked
registration from operating across the border in practice. With the
opening of the border, the impact of these failings will significantly
increase.
The evaluation of the safety records of Mexican-domiciled carriers
will depend in large part on the completeness and reliability of
information supplied to the safety database on the Mexican side. We
have no evidence to indicate that data is being entered promptly,
completely, or accurately on the Mexican side, and no way to insure
that its database programs are or will be implemented or funded in the
future. The DOT relies on the MCMIS to analyze safety information and
raise red flags for dangerous carriers in the U.S. If the database is
not administered as conscientiously on the Mexican side, these same
safeguards will be rendered ineffective for Mexican-domiciled carriers.
Opening the border under the proposed rules will seriously
compromise the safety of the public on U.S. highways. The lax
enforcement of U.S. regulations will give Mexican-domiciled carriers a
competitive advantage over U.S.-domiciled carriers. If FMCSA does not
address and correct the systemic problems outlined in a number of
reports by the Office of the Inspector General, it need only wait until
the inevitable crash occurs. Public safety must not suffer under NAFTA,
and indeed the NAFTA dispute panel gives the U.S. full authority to
firmly enforce U.S. law for any truck traveling in the U.S.
VII. Recommendations
The proposed rules must be rejected in favor of a plan that
provides for extensive verification of safely fitness and an
enforcement infrastructure to ensure that Mexican-domiciled trucks meet
U.S. safety regulations and to deter noncompliance. Such a plan should:
As a precondition for granting operating authority, provide
an application process in which statements made by carriers on
paper applications are verified and unannounced, on-site safety
inspections of the carriers occur;
As a precondition for granting operating authority,
establish a proficiency test for all foreign carriers through
which their knowledge of U.S. operating standards may be
verified;
As a precondition for granting operating authority, set
minimum amounts of inspection, crash and other performance and
enforcement data that must be in the database for a applicant
carrier, i.e., enough to allow a SafeStat score to be
calculated;
Clarify the consequences, time-line, and oversight resources
needed to monitor suspended and revoked registrations and
carrier responses to deficiency letters;
Strengthen inspection forces at the border. This should
include inspection facilities with adequate space to conduct
inspections and place vehicles out of service, drive-through
weigh-in-motion systems, and dedicated phone lines for access
to databases. This should also include a substantial increase
in the number of federal inspectors at the border--enough to
ensure that a significant proportion of trucks are inspected at
the border;
Increase coordination with state inspectors to facilitate
the enforcement of certificates of registration and operating
authority, and to ensure that border crossings are staffed with
adequate numbers of inspectors at all hours of operation.
ENDNOTES
\1\ Letter to the President from Senators Kerry, Baucus, Bingaman,
Harkin, Daschle, Wyden, Kennedy, Bayh, Lieberman, and Durbin, June 11,
2001.
\2\ A recent Wall Street Journal article reported: ``. . . 82
Republicans joined 201 Democrats and two independents in voting to halt
the safety permits. House leaders said one reason for the big margin
was that lawmakers wanted to send a message to Mr. Bush to toughen
regulations governing Mexican trucks.'' Helene Cooper,``Bush Wants to
Reverse House Attempt to Keep Mexican Trucks Off U.S. Roads,'' Wall
Street Journal, 6/28/2001.
\3\ The Associated Press interviewed Mexican truck drivers who
oppose the opening of the border to long-haul trucks: ``Gomez said that
unhitching a trailer from a Mexican truck and hooking it to a U.S. one
at the border usually occurs as the drivers wait for officials to
process their border-crossing papers.
`` `We're always much faster' than the officials, he said.''
Associated Press, ``Mexico Might Strike Against the United States,'' 6/
27/2001.
\4\ The number of inspectors is not likely to increase this year.
On June 27, 2001, the Washington Post reported that the money earmarked
for the hiring of an additional 80 inspectors was ``struck from the
spending bill on technical grounds yesterday.'' Juliet Eilperin,
``House Acts to Block Mexican Trucks,'' Washington Post, 6/27/2001.
\5\ Recommendations of the arbitral panel state:
``300. The panel notes that compliance by the United States with
its NAFTA obligations would not necessarily require providing favorable
consideration to all or to any specific number of applications from
Mexican-owned trucking firms, when it is evident that a particular
applicant or applicants may be unable to comply with U.S. trucking
regulations when operating in the United States. Nor does it require
that all Mexican-domiciled firms currently providing trucking services
in the United States be allowed to continue to do so, if and when they
fail to comply with U.S. safety regulations. The United States may not
be required to treat applications from Mexican trucking firms in
exactly the same manner as applications from U.S. or Canadian firms, as
long as they are reviewed on a case by case basis. U.S. authorities are
responsible for the safe operation of trucks within U.S. territory,
whether ownership is U.S., Canadian or Mexican.
``301. Similarly, it may not be unreasonable for a NAFTA Party to
conclude that to ensure compliance with its own local standards by
service providers from another NAFTA country, it may be necessary to
implement different procedures with respect to such service providers.
Thus, to the extent that the inspection and licensing requirements for
Mexican trucks and drivers wishing to operate in the United States may
not be ``like'' those in place in the United States, different methods
of ensuring compliance with the U.S. regulatory regime may be
justifiable. However, if in order to satisfy its own legitimate safety
concerns the United States decides, exceptionally, to impose
requirements on Mexican carriers that differ from those imposed on U.S.
or Canadian carriers, then any such decision must (a) be made in good
faith with respect to a legitimate safety concern and (b) implement
differing requirements that fully conform with all relevant NAFTA
provisions.''
North American Free Trade Agreement Arbitral Panel Established
Pursuant to Chapter Twenty: In the Matter of Cross-Border Trucking
Services, Secretariat File No. USA-MEX-98-2008-01, Final Report of the
Panel, Feb 6, 2001, 81-82.
\6\ Translation of ``Official Mexican standard NOM-068-SCT-2-2000,
Ground Transportation--Federal motor transport service for passengers,
tourism, hauling and private transportation--Mechanical and safety
conditions for operating trucks on national roads and bridges,'' Diario
Oficial, July 4, 2000. The preface lists over twenty companies and
industry alliances.
\7\ ``Official Mexican Standard MON-068-SCT-2-2000,'' section
5.2.1.2.
\8\ ``Official Mexican standard NOM-068-SCT-2-2000,'' section
5.2.2.1.
\9\ See Robert Collier, ``Mexico's Trucks on Horizon: Long-distance
haulers are headed into U.S. once Bush opens borders,'' San Francisco
Chronicle 3/4/2001 (describing a ride-along with a Mexican long-haul
trucker; police asked the trucker for bribes twice on the 3-day trip).
See also ``In Mexico, Graft Infects Every Aspect of Society,'' Chicago
Tribune, 4/15/2001 (describing traffic stops in which motorists pay
bribes to transit policemen to avoid the long process of being issued a
formal ticket, and discussing what the Mexican government is doing to
try to stop the graft).
\10\ ``Official Mexican Standard MON-068-SCT-2-2000,'' section
5.2.2.2.
\11\ See attachment A: ``Recent Mexican Trucking Rules Do Not Solve
Serious Safety Hazards.''
\12\ ``Marquez said federal police appear to have abandoned a
program of random highway inspections that was inaugurated with much
fanfare last fall.'' Robert Collier, ``Mexico's Trucks on Horizon:
Long-distance haulers are headed into U.S. once Bush opens borders,''
San Francisco Chronicle, 3/4/2001. See also statements made at Land
Transportation Standards Subcommittee briefing, 11/28/2001.
\13\ Robert Collier, ``Mexico's Trucks on Horizon: Long-distance
haulers are headed into U.S. once Bush opens borders,'' San Francisco
Chronicle, 3/4/2001.
\14\ Department of Transportation Office of the Inspector General
report MH-2001-059, ``Interim Report on Status of Implementing the
North American Free Trade Agreement's Cross-Border Trucking
Provisions,'' May 8, 2001, at 17.
\15\ Ibid.
\16\ Statements of Tom Kosloski, 11/28/2000.
\17\ Robert Collier, ``Mexico's Trucks on Horizon: Long-distance
haulers are headed into U.S. once Bush opens borders,'' San Francisco
Chronicle, 3/4/2001.
\18\ ``The logbook of driver's hours of service is designed by the
company, according to its needs.'' Translation of ``Official Mexican
Standard MON-068-SCT-2-2000,'' Appendix ``A'', Annex 1.
\19\ ``FMCSA reports that in FY 2000, 36 percent of the Mexican
trucks that were inspected were placed out of service. This contrasts
with a 24 percent out-of-service rate for U.S. trucks nationwide in FY
2000.'' Department of Transportation Office of the Inspector General
report MH-2001-059, ``Interim Report on Status of Implementing the
North American Free Trade Agreement's Cross-Border Trucking
Provisions,'' May 8, 2001, at 7.
\20\ ``Many of Mexico's 375,000 freight trucks have been in service
for 15 to 20 years, compared with an average of 5 years in the United
States. Industry leaders say it would cost billions of dollars over the
next decade to bring the Mexican fleet to U.S. standards, though many
defend the safety of their vehicles.'' ``Mexico Might Strike Against
the United States,'' Associated Press, 6/27/2001.
\21\ Registration for operating within the border zone is granted
upon consideration of both the application information and the
carrier's inclusion in Mexican databases. Registration for operating
beyond the border zone is conditional upon the satisfactory completion
of a safety review to be conducted within 18 months after the grant of
registration, including an evaluation of the carrier's safety record as
reflected in information from the MCMIS database.
\22\ Office of the Inspector General Audit Report TR-2000-013:
``Mexico-Domiciled Motor Carriers.'' Nov 4, 1999, at 9.
\23\ Ibid. When the IG attempted to verify certain information
about Mexican carriers in DOT records, it found that it could not
confirm ownership or even the mailing addresses of some carriers.
\24\ Ibid.
\25\ Statements of Tom Kosloski, 11/28/2000.
\26\ Department of Transportation Office of the Inspector General
report MH-2001-059, ``Interim Report on Status of Implementing the
North American Free Trade Agreement's Cross-Border Trucking
Provisions,'' May 8, 2001, at 18.
\27\ Department of Transportation Office of the Inspector General
report TR-1999-091, ``Motor Carrier Safety Program,'' April 26, 1999,
19-24.
\28\ Id. at 25.
\29\ ``During FY 1997, 31 percent of the crashes were uploaded more
than 180 days after the crash date.'' Id. at 25.
\30\ Id. at 21.
\31\ Id. at 25-26.
\32\ 66 Fed. Reg. 22499; ``The FMCSA estimates that nearly 500 CMV-
related crashes would be avoided annually as a result of these
disqualifications.'' Department of Transportation press release, FMCSA
9-01, May 4, 2001.
\33\ Section 385.23(a)(1): ``Using drivers not possessing, or
operating without, a valid Licencia Federal de Conductor (LFC) or
Commercial Driver's License (CDL). A non-valid LFC or CDL includes one
that is falsified, revoked, expired, or without a Hazardous Materials
endorsement, when required.'' 66 Fed. Reg. 22415 (May 3, 2001) at
22419.
\34\ Section 385.23(a)(6): ``Operating within the United States a
motor vehicle that is not insured as required by 49 CFR part 387.''
\35\ Penalties for U.S. drivers and carriers are more severe: ``The
Federal penalty to a driver who violates the CDL requirements is a
civil penalty of up to $2,500 or, in aggravated cases, criminal
penalties of up to $5,000 in fines and/or up to 90 days in prison. An
employer is also subject to a penalty of up to $10,000, if he or she
knowingly uses a driver to operate a CMV without a valid CDL.'' FMCSA
website: <>
The corresponding regulation for insurance of U.S. carriers, 49 CFR
387.17 states: ``Any person (except an employee who acts without
knowledge) who knowingly violates the rules of this subpart shall be
liable to the United States for civil penalty of no more than $10,000
for each violation, and if any such violation is a continuing one, each
day of violation will constitute a separate offense. The amount of any
such penalty shall be assessed by the FHWA's Associate Administrator
for the Office of Motor Carriers, by written notice. In determining the
amount of such penalty, the Associate Administrator, or his/her
authorized delegate shall take into account the nature, circumstances,
extent, the gravity of the violation committed and, with respect to the
person found to have committed such violation, the degree of
culpability, any history of prior offenses, ability to pay, effect on
ability to continue to do business, and such other matters as justice
may require.''
\36\ ``Almost all Mexican long-haul drivers are forced to work
dangerously long hours.'' Also, ``Industry analysts say that after the
ban is lifted, most of the two nations' trade will be done by Mexican
drivers, who come much cheaper than American truckers because they earn
only about one-third the salary and typically drive about 20 hours per
day.'' Robert Collier, ``Mexico's Trucks on Horizon: Long-distance
haulers are headed into U.S. once Bush opens borders,'' San Francisco
Chronicle 3/4/2001.
\37\ Office of the Inspector General Audit Report TR-2000-013:
``Mexico-Domiciled Motor Carriers.'' Nov 4, 1999, at 9.
\38\ Department of Transportation Office of the Inspector General
audit report TR-2000-013, ``Mexico-Domiciled Motor Carriers,'' Nov 9,
2000, at 10.
\39\ ``State inspectors in Arizona, New Mexico, and Texas did not
routinely review the certificates of registration because State laws
are not compatible with Federal requirements regarding operating
authority. According to State officials in these three border States,
legislation has not been initiated to provide for enforcement against a
motor carrier for operating without a certificate of registration or
for operating beyond the authority granted. Consequently, unless the
truck happens to be selected for a safety inspection by a Federal
inspector at the border, the certificate of registration will probably
not be reviewed.'' Id. at 16.
\40\ ``A direct correlation exists between the condition of Mexican
commercial trucks entering the United States and the level of
inspection resources at the border. California has an inspection
presence during all operating hours at its two major crossings and
inspects each commercial truck that does not have a valid inspection
sticker (Commercial Vehicle Safety Alliance sticker valid for 3
months). The condition of the Mexican commercial trucks entering at the
Mexico-California border is much better than those entering through all
other border States.'' Id. at 7.
\41\ ``FMCSA increased the authorized number of inspectors at the
southern border from 13 in FY 1998 to 60 in FY 2001 and requested 80
additional enforcement personnel in its FY 2002 budget request. . . .
Deploying the additional 80 enforcement personnel at the border would
bring the total number of authorized Federal inspectors there to 140,
and be responsive to the recommendation in our 1998 report. If these 80
enforcement personnel are not deployed onsite at the border in the near
term, sufficient inspectors will not be in place at all border
crossings during all hours of commercial vehicle operations except for
California's two major crossings at Calexico and Otay Mesa.'' (emphasis
in original). Department of Transportation Office of the Inspector
General report MH-2001-059, ``Interim Report on Status of Implementing
the North American Free Trade Agreement's Cross-Border Trucking
Provisions,'' May 8, 2001, at 3.
Funding for the additional 80 federal inspectors has been struck
from the Transportation Spending bill, see note 2.
\42\ ``As of March 27, 2001, FMCSA filled 10 of the 20 FY 2001
inspector positions, resulting in a total of 50 Federal inspectors
assigned to the southern border.'' Department of Transportation Office
of the Inspector General report MH-2001-059, ``Interim Report on Status
of Implementing the North American Free Trade Agreement's Cross-Border
Trucking Provisions,'' May 8, 2001, at 9.
\43\ ``Our 1998 estimate of 126 additional Federal inspectors for
the U.S.-Mexico border is conservative because it was an estimate for
the near term, and did not:
include the amount of time an inspector would be away from
work for training and approved absences,
allow for expanded hours for commercial port operations,
account for continued commercial traffic growth,
include providing inspectors to perform only visual
inspections of trucks or electronic verification of Commercial
Driver's Licenses (the capability to electronically verify
Mexican Commercial Driver's Licenses is now available to
Federal inspectors at the U.S.-Mexico border), and
include inspectors to perform visual inspections of
passenger buses and safety inspections for commercial bus
drivers. Four port cities accounted for 80 percent of about
269,000 passenger bus crossings at the U.S.-Mexico border in FY
2000 (Otay Mesa and San Ysidro, California; and Hidalgo and
Laredo, Texas).''
Department of Transportation Office of the Inspector General report
MH-2001-059, ``Interim Report on Status of Implementing the North
American Free Trade Agreement's Cross-Border Trucking Provisions,'' May
8, 2001, at 11.
\44\ ``In addition to performing safety inspections, an FMCSA
official said that the resources will be used to perform safety audits
of motor carriers as proposed in the Motor Carrier Safety Improvement
Act of 1999 and also to review applications requesting authority to
operate in the United States. The FMCSA official further stated that,
`as the Agency assesses the volume of applications for operating
authority and begins to conduct safety reviews of Mexican carriers,
flexibility will be required to deploy enforcement personnel to perform
critical safety oversight tasks,' '' Department of Transportation
Office of the Inspector General report MH-2001-059, ``Interim Report on
Status of Implementing the North American Free Trade Agreement's Cross-
Border Trucking Provisions,'' May 8, 2001, at 10.
\45\ Department of Transportation Office of the Inspector General
report MH-2001-059, ``Interim Report on Status of Implementing the
North American Free Trade Agreement's Cross-Border Trucking
Provisions,'' May 8, 2001, at 12.
\46\ Id. at 14.
\47\ ``Truck driver threatening to block port again over fines,''
Associated Press, 4/11/2001. See also ``U.S. Strangling `Cruzadores,'
Truckers say,'' Hernan Rozemberg, The Arizona Republic, 4/22/2001.
\48\ Department of Transportation Office of the Inspector General
Audit Report TR-2000-013, ``Mexico-Domiciled Motor Carriers,'' Nov 4,
1999, at iii.
\49\ Id. at iii.
\50\ ``After foreign motor carriers go past the border in
California, state inspectors review certificates of registration during
roadside inspections throughout the state. We found no evidence to
indicate that any other states review certificates of registration
during roadside inspections. Consequently, unless the truck happens to
be selected for a safety inspection by a Federal . . . inspector at the
border, the certificate of registration will probably not be
reviewed.'' Office of the Inspector General Audit Report TR-2000-013:
``Mexico-Domiciled Motor Carriers.'' Nov 4, 1999, at 10.
\51\ Office of the Inspector General Audit Report TR-2000-013:
``Mexico-Domiciled Motor Carriers.'' Nov 4, 1999, at 11-12.
\52\ ``The Motor Carrier Safety Improvement Act of 1999
providesincreased fines for foreign motor carriers operating without
authority. The increased fines are not more than $10,000 for an
intentional operating authority violation and not more than $25,000 for
a pattern of intentional operating authority violations. FMCSA's
assessed fines have remained constant since 1998, averaging $500 to
$1000 for operating authority violations.'' Department of
Transportation Office of the Inspector General report MH-2001-059,
``Interim Report on Status of Implementing the North American Free
Trade Agreement's Cross-Border Trucking Provisions,'' May 8, 2001, at
16.
The Chairman. Thank you very much. Mr. Pantuso.
STATEMENT OF PETER J. PANTUSO, PRESIDENT AND CEO, AMERICAN BUS
ASSOCIATION
Mr. Pantuso. Thank you, Mr. Chairman. Members of the
Committee. My name is Peter Pantuso, I am president and CEO of
the American Bus Association and we appreciate the opportunity
to testify before your Committee today.
ABA is the trade organization of the intercity bus industry
in the United States and Canada. Our members carry people, the
most precious and important cargo. We do not carry melons, we
do not carry freight. Our members represent nearly two-thirds
of all motor coaches on the road today. In the United States,
they transport more than 774 million passengers annually. That
is 200 million more than the airlines and it is more than
double the number of passengers Amtrak and commuter rail
together move. We serve 4,000 communities across the United
States and we log more than 2.6 billion miles annually.
Intercity buses are the safest mode of commercial passenger
transportation. ABA does support the timely, safe, and
reciprocal provisions of NAFTA. For buses, NAFTA currently
provides changes in access by lifting cross border restrictions
on charter and tour buses, a provision that has already been
implemented, and must yet implement reciprocal lifting of
restrictions on regular route carriers.
We are very concerned by gaps in recent DOT safety
proposals, and of primary concern is a loophole of enforcement
and oversight for United States domestic subsidiaries of
Mexican carriers. I led an ABA delegation to Mexico City last
month to learn more about the Mexican bus industry and about
NAFTA, and I must say that we were very impressed with what we
saw. The Mexican people have realized that bus service is an
affordable and a common sense method of transportation. Buses
connect the most rural towns with Mexico City, or with even the
smallest villages in Mexico. Future partnerships make sense
between United States carriers and Mexican bus companies,
whereby their relative strengths and their market advantage can
be combined to form strategic alliances and allow for growth in
expanded service.
However, there are important differences between the United
States and Mexican motorcoach industry. Ninety-two percent of
intercity trips are by bus in Mexico, with three billion
passenger trips taken annually. That is versus the 774 million
passenger trips in the United States. Small fleets are very
common among United States bus operators, compared to very
large fleets in Mexico. And perhaps the most significant
differences are in vehicle safety standards.
Cross border service in the United States works well along
our northern border with Canada because Canada has adopted very
similar, almost identical safety regulations for buses. But the
rules between United States and Mexico are not identical. On
our trip, ABA also visited Veteran's Bridge, one of four border
crossing points in Brownsville, Texas. Over 350 buses cross
that bridge every single week. Customs and INS inspects all of
the buses daily for contraband and for passenger documentation.
DOT inspects trucks daily at that border crossing point, but
inspects buses only 1 day every month. This greatly concerns us
and it must change.
Authorities must be always mindful always that buses carry
passengers, and not freight. We are not saying that buses in
Mexico are inherently unsafe. In fact, Mexican buses are made
by Dina, Volvo and Mercedes. These are companies which also
manufacture buses for the U.S. market. But the buses they
manufacture for the U.S. market are built to U.S. Federal Motor
Vehical Safety Standards. In Mexico, these standards do not
apply.
Frequent border inspections will ensure the consistent
application of U.S. standards. We urge DOT to create a specific
plan to ensure motorcoach and passenger safety prior to
finalizing their proposal. That plan should address some
specific issues, including the creation of an effective
mechanism for preventing entry by Mexican manufactured buses
that do not comply with United States safety standards. It
should include enforcement of rules relating to Mexican drivers
providing passenger service in the United States and finally,
it should include a clarification that the proposed rules apply
both to motorcoaches and to commercial passenger vans engaged
in intercity service.
Market equity with Mexican bus operations is also very
important to our industry. Mexico will grant cross border
authority for United States carriers to serve only one point in
Mexico. It will not allow United States bus carriers to own or
operate bus terminals in Mexico. And, it will not authorize
those carriers to provide package service in Mexico. DOT
proposals contain no such limitations on Mexican bus companies,
and these differences could cripple the United States bus
industry.
In conclusion, Mr. Chairman, we would like to say that
NAFTA, we believe, can be implemented fairly and safely and in
a way that provides opportunities for bus operators, and the
customers we serve throughout North America. However, we do
urge Congress and this Administration to work together with the
Mexican Government to ensure that the highest level of safety
exists for the traveling public. With that, Mr. Chairman, I
thank you for the opportunity to testify before this Committee
today.
[The prepared statement of Mr. Pantuso follows:]
Prepared Statement of Peter J. Pantuso, President and CEO,
American Bus Association
Introduction
Good morning Mr. Chairman and Members of the Committee. My name is
Peter J. Pantuso and I am President and CEO of the American Bus
Association. Thank you for the opportunity to testify on the impact of
the North American Free Trade Agreement on motorcoach transportation.
ABA is the trade organization of the intercity bus industry with
more than 3,400 member motorcoach operator, tour and travel
organizations and suppliers to the industry in the United States and
Canada. We are currently celebrating our 75th year of service to the
industry. Buses in the United States transport over 774 million
passengers annually--over 200 million more than airlines and more than
double Amtrak and commuter rail. We serve more than 4,000 communities
and log more than 2.6 billion miles annually.
We are the safest mode of commercial passenger transportation with
the lowest fatality rate per 100 million passenger miles traveled.
According to the National Safety Council's Injury Facts reporting on a
period from 1995--1997, U.S. motorcoach travel averaged .01 passenger
fatalities per 100 million passenger miles compared to .04 passenger
fatalities for both rail and air travel for the same period and the
same number of passenger miles. The industry strongly believes that
even a single fatality is one too many and we continue to look for ways
to further improve safety. Motorcoach operators and manufacturers
themselves accomplished this safety record in large part through their
own efforts to promote the highest standards of safe design and
operation and vigilant compliance to stringent safety regulation.
NAFTA and Motorcoach Operations
I am here today to make you aware of motorcoach issues related to
the implementation of motor carrier provisions of the North American
Free Trade Agreement, or NAFTA. Although most commentary focuses on
trucks, the fact is that there are unique and important bus issues that
must be addressed.
ABA supports timely, safe and reciprocal implementation of NAFTA.
However, we are concerned that the NAFTA implementation rules
recentlyproposed by the Federal Motor Carrier Safety Administration of
the Department of Transportation do not ensure reciprocity or safety in
bus operations. Those proposals could open up U.S. markets to Mexican
bus companies without limitation, notwithstanding the Mexican
government's stated intent to limit U.S. bus companies' ability to own
and operate Mexican terminals; to provide crossborder service to
multiple points in Mexico and to carry incidental package express. Bus
service is not viable with these limitations.
We are equally concerned by the gaps in the safety proposals.
Unlike trucks, NAFTA authorizes Mexican motorcoach companies to set up
U.S. subsidiaries to provide domestic U.S. bus service. DOT recognized
that special procedures must be in place to ensure the safety of
Mexican bus and truck operations, but without explanation, declined to
apply those procedures to subsidiaries of Mexican motorcoach companies
providing domestic U.S. service. Furthermore, there is little
indication of a DOT program to ensure the safety of Mexican buses and
bus operations. Indeed, existing border scrutiny of motorcoaches is
sadly lacking.
The NAFTA surface transportation provisions are designed to
eliminate restrictions in all three NAFTA countries that limit access
for and investment in transportation companies. For buses, changes in
access refer to lifting of crossborder restrictions on charter and tour
buses, a provision that has already been implemented, and a reciprocal
lifting of restrictions on regular route carriers which has yet to be
implemented. In terms of new investment opportunities under NAFTA, the
U.S. is to allow 100 percent investment in bus companies owned by
Mexicans while Mexico is to allow 51 percent U.S. ownership of Mexican
companies this year and 100 percent in January, 2004. Again, it is
important to emphasize that unlike Mexican-owned U.S. trucking
companies, which are limited to carrying international cargo, Mexican-
owned U.S. bus companies will be allowed to provide both domestic and
international service in the U.S.
The Mexican Bus Industry
An ABA delegation of members and staff visited Mexico last month in
order to gain a better understanding of the opportunities and
challenges facing our members under NAFTA. I must say, frankly, that we
were impressed with what we saw. Perhaps most extraordinary was the
information provided by the Mexican Bus Association, CANAPAT, that
passengers in Mexico took more than 3 billion bus trips last year
alone. Over 92 percent of the Mexican population rides the bus for
intercity trips at least once per year. A number of companies operate
more than 4,000 motorcoaches. This is no small business in Mexico.
We were impressed with the facilities we visited in Mexico City.
Mexican bus companies operate out of centralized bus terminals that
compare favorably to many airports in the U.S. with comfortable waiting
areas, well-established gates, electronic ticketing, pre-boarding
security procedures, shopping, and friendly, convenient and abundant
service. Again, this is a significant industry. Clearly people in
Mexico have realized that bus service is an affordable and common-sense
alternative when road congestion and environmental concerns are at
issue. Bus service connects the most rural towns with Mexico City and
other metropolitan areas and with other villages.
Several things were made clear to us during that trip. Mexico
represents a large market of people that rely heavily on bus service.
Mexican bus companies pay lower wages to their workers than U.S. bus
companies but have considerably less access to capital than their
neighbors to the north. Partnerships make sense between U.S. and
Mexican bus companies given these conditions as a backdrop and some of
these partnerships are already in place.
However, I must emphasize that we also learned that there are
important differences between the U.S. motorcoach industry and the
Mexican motorcoach industry. First, the magnitude of the difference in
size of both the industry as a whole and the individual companies
within the industry--3 billion passenger trips by bus annually in
Mexico versus 774 million in the U.S.; small fleets in the U.S.
compared to large fleets in Mexico. And, perhaps most significantly,
differences in vehicle safety standards and the way in which industry
is regulated. For all these reasons, we must be able to rely on strong
enforcement in the United States to ensure safe highways and to ensure
a level playing field for U.S. operators.
We will work with the Mexican bus association in the months ahead
to insure that they better understand the rules they must abide by in
the U.S. in order to operate safely on our roads. We expect to learn
from them, as well, regarding the rules of the road in Mexico. The
reason that crossborder bus service works well along our northern
border with Canada is because, to a large extent, Canada has adopted
almost identical regulations for drivers, vehicles, hours of service
and various other safety provisions.
The rules between the U.S. and Mexico, however, are not identical.
So, for now, while we are in Mexico, we will operate under their rules
and when they are in the U.S., they will be expected to operate under
U.S. rules. Eventually, given the proper authority and necessary
resources, the NAFTA Land Transport Standards Subcommittee (a NAFTA
working group including government regulators from all three NAFTA
countries), working with groups like ABA and the Commercial Vehicle
Safety Alliance, should be able to bring those rules into closer
alignment to the benefit of us all. But in the meantime, it is of
utmost importance that enforcement officials are vigilant in their
efforts to ensure that all motorcoach companies operating on U.S. roads
comply with U.S. highway safety rules.
Enforcement of Motorcoach Safety
Following our visit to Mexico City, our group traveled to the U.S.-
Mexico border to see the Veteran's Bridge (one of four border crossing
bridges in Brownsville) to meet with U.S. Customs officials. Over 350
buses cross that border point every week over the Veterans Bridge.
Customs inspects all of those buses for drugs or other forms of
contraband and the Immigration and Naturalization Service (INS) reviews
passenger documentation. However, we were told that although the U.S.
Department of Transportation inspectors inspects trucks daily, they
only inspect buses one day per month. That means that, on that one
bridge alone, more than 1,300 of the over 1,400 buses crossing monthly
go uninspected by DOT. This concerns us greatly.
It seems that somewhere during the highly-charged debate on NAFTA
and trucking, the authorities forgot that buses carry passengers--not
freight--across the border. It seems to us that we have a much greater
stake in fair and effective enforcement than has been reflected in the
dialog to date. The current practices need to change to assure
passenger safety and the safety of the traveling public on the roads.
We are not suggesting that Mexican buses are unsafe, they are made
by Dina, Volvo and Mercedes--all of whom supply the U.S. market. We are
only suggesting that frequent inspections will assure compliance with
U.S. Federal Motor Vehicle Safety Standards (FMVSS) and Federal Motor
Carrier Safety Regulation (FMCSR) requirements and keep safety the
number one priority.
ABA has several specific concerns relating to the safety regulatory
framework recently proposed by DOT relating to full implementation of
NAFTA crossborder access rules. The proposals fail to take into account
that, unlike for trucks, the NAFTA bus provisions allow for domestic
operations by Mexican-owned bus operations
In the recent rulemaking proposal, DOT proposes to establish a
system of special application procedures and oversight for Mexican
companies providing crossborder services. But they specifically exempt
from those procedures and that oversight Mexican passenger carriers
that establish U.S. subsidiaries to provide domestic service in the
U.S. This creates a giant loophole--Mexican companies operating in
crossborder service are subject to the special application procedures
and oversight while Mexican companies operating domestically are not.
We urge DOT to modify its proposal to apply its proposed special
safety procedures for crossborder carriers to Mexican owned, U.S.-based
companies applying to provide domestic U.S. bus service.
We also urge DOT to create a specific plan to ensure the safety of
Mexican passenger motor carriers prior to finalizing their proposed
rules and include the details of that plan in its decision promulgating
the final rules.
The plan should address specific issues such as:
Creation of an effective mechanism for preventing Mexican-
manufactured buses that do no comply with the Federal Motor
Vehicle Safety Standards or the Federal Motor Carrier Safety
Regulations from entering the United States.
Enforcement of rules relating to Mexican drivers providing
passenger service in the U.S. The law requires that only U.S.
citizens or resident aliens can provide domestic passenger
service in the U.S. We believe that Mexican officials
incorrectly interpret NAFTA as overturning this U.S.
immigration law. DOT should work with INS to develop mechanisms
to effectively enforce the immigration laws.
DOT should also make clear that the proposed rules apply to
both buses and commercial passenger vans carrying nine or more
people in intercity service, including the driver. The
department is expected to publish a final rule soon related to
these ``camioneta'' operations that would increase these
operators' safety compliance responsibilities--this should not
fall through the cracks as the Department plans for the border
opening.
Reciprocity with Mexican Bus Companies
We also have a number of concerns in relation to market equity with
Mexican bus operators. NAFTA requires that the implementation of the
crossborder transportation provisions be executed in a reciprocal
manner with both countries providing the same treatment to citizens of
the other country. However, there are several ways in which Mexico
appears to be taking positions contrary to that mandate.
Mexico has taken the position that it will grant cross-border
service authority for U.S. carriers to serve only one point in Mexico;
it will not allow U.S. carriers to own or operate bus terminals in
Mexico; and it will not authorize those carriers to provide incidental
package express service as part of its crossborder trips. DOT's
proposals contain no such limitations. Mexican companies would be free
to serve multiple U.S. points; could own and operate bus terminals
wherever they like; and would be able to carry incidental package
express on any of their schedules.
If DOT implements its crossborder service proposals without
ensuring reciprocal treatment of U.S. companies in Mexico, it could
devastate the U.S. bus industry, which is much smaller than the Mexican
bus industry. We urge DOT to engage in discussions with its counterpart
in Mexico to determine what the terms and conditions of crossborder
authority should be. Whatever terms and conditions are mutually agreed
upon during those discussions should be implemented in the final rules.
Conclusion
We believe that NAFTA can be implemented fairly, safely and in a
way that provides opportunities for bus operators and the customers we
serve throughout North America. However, in order for this opportunity
to be recognized, we are urging Congress and the Administration to work
together with the Mexican government to ensure that the requests we
have made which, we believe, will ensure the highest level of safety
for the traveling public, are implemented with all due haste.
Thank you for the opportunity to testify today Mr. Chairman.
The Chairman. Very good. We thank you, sir. Mr. Acklie.
STATEMENT OF DUANE W. ACKLIE, CHAIRMAN,
AMERICAN TRUCKING ASSOCIATIONS
Mr. Acklie. Mr. Chairman, Committee members, my name is
Duane Acklie. I am Chairman of the American Trucking
Associations or ATA, the national trade association of the
trucking industry. Through our affiliated trucking
associations, we have over 30,000 motor carrier members
throughout the United States. I am also Chairman of Crete
Carrier Corporation, a rather small trucking company based in
Lincoln, Nebraska but serving customers in Canada, Mexico and
the United States.
ATA supports the North American Free Trade Agreement,
because it means increasing business for trucking companies and
more jobs. According to the numbers of the United States
Department of Commerce since NAFTA was implemented, trade
between the United States and Mexico has more than tripled from
81 billion in 1993 to 246 billion in 2000. When measured by
value, trucks move over 80 percent of the U.S.-Mexico trade and
move 70 percent of the U.S.-Canada trade. In 1994, when NAFTA
was implemented, there were about two and a half million truck
crossings in the United States-Mexico border. In the year 2000,
nearly five million truck crossings took place at the southern
border.
With that background, let me say that ATA has a stakeholder
position based upon the growing volumes between United States
and Mexico. ATA members have worked hard to improve safety on
our highways, which can be seen in the reduced rates of truck
accidents each year over the past 3 years. As truckers, we
cannot afford to have our record blemished by unsafe trucks
from either the United States, Canada, or Mexico.
ATA supports the proposed process in which applications
from Mexican carriers to get United States operating authority
will be reviewed under the proposed Federal motor carrier
safety rules on a case-to-case basis.
The information being requested from the Mexican carrier
goes beyond what is required from the new United States and
Canadian carriers seeking United States operating authority.
Let me also point out that when we started cross border with
Canada, that they had no safety database, which they do today.
They had no safety rating system, which they do today. And they
had no alcohol and drug testing. In Canada, they still do not
have, and it is prohibited, as I understand, by their
constitution, a random testing on drugs and alcohol. But they
must comply with all rules and regulations that we have in the
United States.
So what we are looking at here today implementing is not
all that different than what was implemented in Canada. In
order to get a better understanding of why NAFTA is good for
trucking, it is important to look at a snapshot of trucking at
the border today. Today cross border freight is handed off on
the United States side of the border at one of the 27 truck
border crossings, but predominantly in the commercial zones of
California and Texas.
Through interlying partnership, freight is handled on the
United States side by the United States carrier and on the
Mexican side by the Mexican carrier with a middleman or a
cartage hauler in between, ferrying loads back and forth across
the border to warehouses or freight yards to pick up and
subsequent final delivery.
Now, my own opinion is that there is so much congestion at
the moment and, at the border, that the reason we are seeing
the older trucks from Mexico doing a cartage is simply because
there is really very little utilization because a lot of it is
tied up. I don't think the long haul Mexican carrier at the
moment or the United States carrier is that interested in
having their trucks tied up the border. That is why they--older
trucks--are being used. I think there will be a different
standard and different kind of truck once NAFTA is truly
implemented.
In other words, one shipment from the United States and
Mexico today generally requires three drivers, the United
States carrier, the border carrier, or the, as I would call,
the cartage carrier and the long haul or Mexican carrier. It
takes three different pieces of equipment to move. Opening the
border will allow a free interchange between the responsible
United States carrier and the responsible Mexican carrier or
allow the United States carrier to go into Mexico and the
Mexican carrier to go into the United States
Our company, for example, being a smaller company, will
continue interchange at the border with a very limited number
of carriers we now use. We use responsible Mexican carriers. We
have not had a problem in hijacking. We have not had a problem
in theft or damage. All of our trailers go into Mexico, but our
tractors stop at the border.
NAFTA's trucking provisions require all foreign carriers in
the United States to abide by all United States standards.
What's that mean? We had some talk here today about there
wasn't going to be any laws. To be able to come into the United
States, a Mexican carrier is going to have a week's logs when
they arrive there or they do not get in. They are going to have
to have a week's logs. We are going to have to do everything to
check them in the very same manner as we check U.S. carriers.
NAFTA's trucking provisions require all foreign carriers
operating in the United States to abide by U.S. standards and
regulations, including the ability to speak and read the
English language. ATA supports that position 100 percent. We
believe in safety. We believe that the Mexican carriers should
have to do the very same thing as all U.S. carriers.
In the opinion of ATA and its members, we believe that
California has demonstrated the strong enforcement and proper
inspection at the border works. The fact is that every trucking
company and every driver entering the United States will be
required to meet each and every safety requirement after
undergoing a comprehensive review through the proposed Federal
Motor Carrier Safety Administration application process to
comply with United States safety standards.
One of the things I have not heard here today is any
discussion about insurance. Before a Mexican carrier or United
States carrier can get liability and cargo insurance, the
insurance company goes out and does a thorough inspection, when
we have renewals each year. They come in. They look at our
hiring procedures. They check our hiring records. They check
our out-of-service rate. They do everything to decide whether
or not they are going to insure. I will say to you that each
Mexican carrier will have to obtain that insurance, and they
will have a further safety check by the United States insurance
carrier that is issuing the insurance.
Such a review would include capturing information regarding
hiring and training practices, maintenance practices and
overall safety management. Thus the Mexican trucking companies
will undergo not only a thorough application by the Federal
Motor Carrier Safety Administration but also a far more
thorough review by potential insurance carriers.
As a practical matter now, I believe it is going to be a
number of years before we see any substantial number of Mexican
trucks operating on the United States highways. The larger
carriers will use a driver to take that tractor and trailer to
the Mexican border and the Mexican trucker will take the same
tractor and trailer and proceed on to the destination. In other
words, they will interchange drivers rather than equipment at
the border.
With carriers, like our company, that are smaller, we will
merely exchange the trailer at the border with the responsible
carrier and eliminate that cartage company that runs that old
dilapidated piece of equipment.
In conclusion, ATA strongly believes that motor carriers
operating in the United States, no matter what nationality,
must abide by United States safety standards. However, ATA is
concerned that the discussion of our Mexican counterparts are
based more on an incomplete understanding of motor safety and
prejudice toward the Mexican carriers instead of being based on
hard facts that relate to safety. Thank you, Mr. Chairman,
thank you members of the Committee.
[The prepared statement of Mr. Acklie follows:]
Prepared Statement of Duane W. Acklie, Chairman,
American Trucking Associations
The American Trucking Associations, Inc. (ATA), with offices
located at 2200 Mill Road, Alexandria, Virginia 22314-4677, is the
national trade association of the trucking industry. Through our
affiliated trucking associations, and their over 30,000 motor carrier
members, affiliated conferences, and other organizations, ATA
represents every type and class of motor carrier in the country.
ATA has long viewed free trade as an important tool in improving
our country's economic growth. Since the North American Free Trade
Agreement (NAFTA) was implemented, trade between the United States and
Mexico has more than tripled from $81 billion in 1993 to $246 billion
in 2000.\1\
---------------------------------------------------------------------------
\1\ Source: International Trade Administration, U.S. Department of
Commerce
---------------------------------------------------------------------------
The trucking industry plays a critical role in the success of
NAFTA. Trucks transport over 80 percent of the value of U.S.-Mexico
trade, and over 70 percent for U.S.-Canada trade. Trucking companies
have benefited from the growing trade volumes among the NAFTA partners,
considering that higher trade flows have resulted in more business for
motor carriers in all three nations. Implementing NAFTA's trucking
provisions will allow motor carriers to better meet the transportation
demands of our growing trade flows, doing so in an efficient,
effective, and safe manner.
NAFTA and Trucking. The trucking industry has long supported NAFTA.
Therefore, ATA firmly opposed the delay by the U.S. Government in
implementing the essential cross-border trucking provisions of NAFTA.
The delay has arbitrarily denied Canada, Mexico and the United States
the full benefits of this important trade agreement, negatively
impacting U.S. shippers and carriers engaged in NAFTA trade.
Under NAFTA, beginning on December 18, 1995, U.S. and Mexican
carriers were to have been allowed to pick up and deliver international
freight into each other's states contiguous to the U.S.-Mexico border.
By January 1, 2000, access would expand to all states on either side of
the border. NAFTA's trucking provisions would enhance the
competitiveness of U.S. goods in the Mexican market by providing U.S.
exporters and importers an efficient cross-border trucking operation.
When then Secretary of Transportation Federico Peña
announced that the implementation of NAFTA's motor carrier provisions
were being postponed, he cited safety and security concerns regarding
Mexican trucks operating in the United States as the reason for the
delay. However, it is important to remember that NAFTA's trucking
provisions require all foreign carriers operating in the United States
to abide by U.S. standards and regulations, so only Mexican carriers
who applied and then met U.S. standards would be given U.S. operating
authority. ATA fully supports rigorous enforcement of all U.S.
standards for all carriers operating in this country, U.S. and foreign.
The current freeze on NAFTA, however, imposes a presumption of guilt
based upon national origin: no matter how safe the Mexican trucking
company, it cannot get permission to leave the border zone.
The trucking provisions of NAFTA also allowed U.S. and Canadian
carriers to improve their ability to invest in the Mexican market.
Starting on December 18, 1995, U.S. and Canadian investors have been
permitted to invest in up to 49 percent ownership of Mexican trucking
companies or terminals providing exclusively international freight
services. On January 1, 2001, the investment ceiling increased to 51
percent, and, on January 1, 2004, the rights expand to 100 percent. In
the United States, starting on December 18, 1995, Mexican investors
were to be allowed to invest up to 100 percent in a U.S. trucking
company providing international freight services. This commitment had
also remained unfulfilled until President Bush lifted the moratorium on
investment by Mexican nationals on June 6 of this year.
Because the NAFTA trucking provisions have been delayed, trucking
companies that have invested in equipment to provide a first rate
freight service throughout North America, are left to operate in an
outmoded and ineffective freight transfer system at the U.S.-Mexico
border. A shipment traveling from the United States to Mexico, or vice-
versa, requires no less than three drivers and three tractors to
perform a single international freight movement. Through interline
partnerships, freight is handled on the U.S. side by a U.S. carrier and
on the Mexican side by a Mexican carrier, with a ``drayage'' hauler in
the middle. The drayage truck ferries loads back and forth across the
border to warehouses or freight yards for pickup or subsequent final
delivery.
Congestion is compounded because trailers come back empty after
delivering their freight across the border and because drayage
``bobtails'' (tractors without trailers) deliver a trailer only one-way
across the border and return solo. In addition to requiring two long-
haul carriers, one on either side of the border, and a drayage carrier
to haul the shipment across the border, the process includes freight
forwarders, customs brokers, as well as the official processing handled
by government inspectors and enforcement officials. This process
results in extra trucks on the road, congestion, delays and ``over
handling'' of shipments that invariably leads to increased costs, and
lost and damaged freight.
Furthermore, the existing border infrastructure and human resources
are seriously overburdened by the increased congestion generated by the
growth in trade flows and the present outmoded cross-border trucking
scheme. If, as anticipated, trade flows between Mexico and the United
States continue to grow, the border facilities and personnel will only
be further strained. To illustrate, according to a study by the
International Association of Chiefs of Police (IACP), from 1994 to
1999, northbound truck crossings increased from 2.7 million to over 4.5
million. It is important to remind this Committee that these numbers
reflect truck crossings and not the actual number of trucks crossing.
According to the IACP, about 80,000 trucks accounted for the 4.5
million truck crossings.\2\
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\2\ International Association of Chiefs of Police; Estimates of
Commercial Motor Vehicles Using the Southwest Border Crossings,
Economic Data Resources, Bethesda, Md, September 20, 2000, appendix A
---------------------------------------------------------------------------
Drayage vs. Long-haul. The trucks presently crossing the border
into the United States are drayage trucks. It is these drayage trucks
that are being inspected when crossing the border into the United
States and that have a high out of service rate as detailed in the U.S.
Department of Transportation Inspector General's report (IG report)
published in December 1998. (Report # TR-1999-034)
However, the very same situation that occurs with drayage
operations on the U.S.-Mexico occurs, regrettably, each day at
intermodal terminals in the United States. For example, in Kansas City,
Missouri, in the heart of America, drayage trucks perform transfer
movements at the second busiest intermodal rail facility in the nation.
According to the Kansas City Police Department, the out of service rate
in Kansas City for drayage trucks is 45 -50 percent, about the same as
drayage operations at the port of entry in Laredo, Texas.
Drayage operations use older equipment because they are simply
performing short transfers of freight from one side of the border to
the other side, or from one end of the intermodal facility to the other
end. Motor carriers, either on the U.S.-Mexico border, or in Kansas
City, Missouri, do not invest $100,000.00 in equipment to perform short
drayage operations. They simply cannot afford to do so. Motor carriers
that buy new and expensive equipment do so for long-haul movements.
Therefore, the trucks crossing the border today are not the same
Mexican trucks that would operate in the United States once NAFTA's
trucking provisions are implemented.
The IG report states that of the Mexican trucks crossing the
border, an inordinate percentage of them, 44 percent, are put out of
service, compared to 25 percent for the U.S. and 17 percent for Canada.
It is critical to note that these are not random inspections, but
targeted inspections by trained inspectors who know what they are
looking for. The report recognizes that this population of drayage
trucks may not be ``statistically representative of the universe of
Mexican trucks that are non-compliant.'' Furthermore, the study also
raises that ``once the border is open to long-haul traffic, the number
and percentage of safety compliant Mexican trucks will dramatically
increase because long haul trucks will be different from, and in better
condition, than the shorter haul trucks'' used for drayage in the
commercial zones.
It is important to note, however, that in a subsequent study of
U.S.-Mexico cross-border trucking operations, the IG reported that the
out of service rate for Mexican trucks entering the U.S. dropped from
44 percent in 1998 to 36 percent in 2000.\3\
---------------------------------------------------------------------------
\3\ Interim Rerport on Status of Implementing the North American
Free Trade Agreement's Cross Border Trucking Provisions, U.S. DOT
Inspector General Report # MH-2001-059, May 8, 2001, pg. 7
---------------------------------------------------------------------------
In addition, the IG report stated that there is a strong
correlation between the quality level of inspection procedures and
facilities, and the out-of-service rate of Mexican trucks crossing the
border into the U.S. In California, the out of service rate of Mexican
trucks is 28 percent (nearly the same as the U.S. rate), compared to
Texas at 50 percent. These out of service rates also changed in the
2001 IG report, with California down to 26 percent and Texas at 40
percent. According to both IG reports, the more rigorous inspection
procedures in California encourage Mexican truckers to make sure their
equipment is up to U.S. standards. The reports also stated that there
is a need for increased funding to hire additional inspectors and to
build adequate border inspection facilities. ATA agrees with this
assessment, and therefore believes it is critical that the resources
requested by the President for FY 2002 to hire more inspectors and to
build inspection facilities be fully funded.
The IG report concluded that too few trucks ``are being inspected
at the U.S.-Mexico border, and that too few inspected trucks comply
with U.S. standards.'' Considering that the present trucks are the pre-
NAFTA drayage trucks, this is no surprise. Once NAFTA's trucking
provisions are implemented, safety and congestion will be improved at
the border by reducing the dependency on drayage operators to transfer
trailers across the border, and therefore reducing the number of empty
trailers and bobtail tractors operating at the border.
Motor Carrier Safety Encompasses More Than Equipment Condition. ATA
believes it is important for the Committee and the public to recognize
that motor carrier safety is a much broader issue than just the
condition of the truck that is being operated on the highway. In fact,
a more important component of truck safety is the licensing and
qualification of the driver operating the truck. This statement is
supported by the fact that general vehicle crash causation studies
consistently indicate that approximately 90 percent of vehicle crashes
are caused by actions or mistakes on the part of the driver. This is
true whether the issue is passenger car crashes, or truck-involved
crashes. Conversely, only a very small percentage of vehicle crashes
are caused by defects in the vehicle being operated. Given these facts,
it is curious why so much attention in the Mexican truck safety debate
has been placed on the out-of-service rates of Mexican trucks.
In ATA's view, the overall safety of the Mexican trucking industry
has been inappropriately labeled as less than satisfactory based
primarily on the condition of Mexican drayage trucks operating in the
U.S. commercial zones. This is unfortunate, and it seems unwise from a
motor carrier safety and a general highway safety perspective, to put
so much emphasis on the equipment and pay so little attention to what
systems are in place regarding the driver.
The Committee should be aware that the Mexican federal government
has had an effective commercial driver licensing program in place for
years. In fact, in 1991 the standards and procedures for issuing a
Mexican Licencia de Federal were recognized by the U.S. Department of
Transportation as equivalent to their own Commercial Driver's License
(CDL) standards and procedures. The reciprocity agreement recognizing
this fact was signed by both countries in 1991, despite the fact that
the CDL program in the U.S. was not fully operational until a year
later.
Additionally in 1991, the U.S. Department of Transportation
recognized the Mexican government's medical requirements for truck
drivers as equivalent to those in place in the U.S. A reciprocity
agreement is in place between both countries on this important driver-
related issue as well. The Mexican government has also had in place
since 1993 hours of service and logbook regulations for truck drivers
hauling hazardous materials. These requirements were recently extended
to all Mexican truck drivers.
It is true that the Mexican regulatory regime is not identical to
that which is in place in the U.S. However, the same statement can be
made for the regulatory system in place in Canada. The fact is that
every truck and truck driver from Mexico that will operate in the U.S.
must abide by all U.S. safety requirements when operating in this
country. The U.S. Department of Transportation should be allowed to
assess during the application process a Mexican trucking company's
ability to meet the standards, and those carriers and drivers that can
pass the test, should be allowed to operate in the U.S.
Language requirements. NAFTA's Land Transportation Standards
Subcommittee (LTSS) has determined that there are minimal differences
among the three NAFTA member countries, which do not affect the safety
of cross-border trucking services.
Foreign drivers, be they from Mexico, French-speaking Quebec,
Poland or Russia, are required to have sufficient ability to understand
road signs and to have basic proficiency levels to communicate in
English when driving in the U.S. The Code of Federal Regulations, CFR
49, Section 391.11 (b)(2) states that a person is qualified to drive a
commercial vehicle if he/she ``can read and speak the English language
sufficiently to converse with the general public, to understand highway
traffic signs and signals in the English language, to respond to
official inquiries, and to make entries on reports and records.''
It is important to note that the ability to fluently speak the
language of the host country in which a truck driver is operating does
not represent an essential safety concern. Proof of this is the
European Union where truck drivers from member countries operate freely
throughout the region.
Labor requirements. Mexican drivers entering the U.S. for the
purpose of delivering and picking up international cargo are considered
as temporary business visitors, and therefore not subject to U.S.
domestic labor laws. This definition is included in the NAFTA text in
Chapter XVI, Annex 1603, Section A, Business Visitors, 1, which states:
``Transportation operators transporting goods or passengers to the
territory of a Party from the territory of another Party, or loading
and transporting goods or passengers from a territory of a Party, with
no unloading in that territory, to the territory of another Party.''
Since a Mexican driver receives compensation in Mexico, and has an
employment relationship with a Mexican-based company, the driver is
covered by Mexico's labor laws, not U.S. labor laws. These are the same
requirements that cover Canadian drivers driving in the United States.
Recent developments. ATA strongly supported the final finding
released on February 6, 2001 by the NAFTA Arbitration Panel. The panel
ruled that the U.S. had not met its commitments as established under
NAFTA, and therefore should begin processing the applications of
Mexican carriers. The arbitration panel also ruled that:
L``The United States may not be required to treat applications
from Mexican trucking firms in exactly the same manner as
applications from U.S. or Canadian firms, as long as they are
reviewed on a case by case basis. (Emphasis added) U.S.
authorities are responsible for the safe operation of trucks
within U.S. territory, whether ownership is U.S., Canadian or
Mexican . . . Thus, to the extent that the inspection and
licensing requirements for Mexican trucks and drivers wishing
to operate in the United States may not be ``like'' those in
place in the United States, different methods of ensuring
compliance with the U.S. regulatory regime may be justifiable.
However, if in order to satisfy its own legitimate safety
concerns the United States decides, exceptionally, to impose
requirements on Mexican carriers that differ from those imposed
on U.S. or Canadian carriers, then any such decision must (a)
be made in good faith with respect to a legitimate safety
concern and (b) implement differing requirements that fully
conform with all relevant NAFTA provisions.'' (Emphasis added)
Following the guidance of the Arbitration Panel, on May 3, 2001,
FMCSA published three notices of proposed rulemaking (NPRM) in the
Federal Register. These proposed rules relate to the process by which
Mexican motor carriers will have to complete to obtain U.S. operating
authority. The three proposed rules are as follow:
Revision of regulations and a new application form to be
filled by Mexican motor carriers that intend to operate in U.S.
commercial zones contiguous to the U.S.-Mexico border (Form OP-
2);
A new application form for Mexican motor carriers that
intend to operate in U.S. territory beyond the commercial zones
(Form OP-1(MX); and,
A new safety audit review mandated by the 1999 Motor Carrier
Safety Improvement Act (MCSIA), which would be required of all
new motor carriers recently granted operating authority by the
U.S. Department of Transportation within an eighteen month
period.
In its comments to FMCSA in relation to the proposed rules, ATA
recognized the Arbitration Panel's objective stated above granting the
U.S. government the ability to request information from Mexican motor
carriers above and beyond what is requested from new U.S. or Canadian
carriers. Although the proposed rules do raise questions about
violating the ``national treatment'' and ``most favored nation''
clauses established under NAFTA, ATA expects FMCSA's final rules to
still require Mexican carriers to provide far more information on their
ability to meet U.S. safety standards than carriers from the United
States or Canada. Any concerns over safety of these carriers from
Mexico and their trucks and drivers can and will be addressed in the
rules for implementing the NAFTA agreement. The bottom line is that
every trucking company, every truck and every driver entering the
United States will be required to meet each and every U.S. safety
requirement only after undergoing a comprehensive review through the
proposed FMCSA applications, of their ability to meet those standards.
Conclusion. ATA continues to encourage the United States and Mexico
to agree on comprehensive safety standards through the work of the
LTSS, establish and test effective enforcement programs, and staff
border facilities with full time inspectors as they move forward in
implementing NAFTA's trucking provisions. In 1999, ATA worked
aggressively to include language in the legislation that created the
FMCSA requiring that all trucks entering the U.S. from Mexico under
NAFTA must meet U.S. truck safety standards.
ATA strongly believes that motor carriers operating in the United
States, no matter what their nationality, must abide by U.S. safety
standards. However, ATA is concerned that attacks on our Mexican
counterparts are more based on an incomplete understanding of motor
carrier safety and prejudice towards Mexican carriers, instead of being
based on hard facts related to safety.
The U.S. trucking industry, shippers and the American consumers
that we serve have already seen considerable benefits from NAFTA, i.e.
job creation, opening of new markets for U.S. goods and services,
business expansion opportunities, reduction in tariffs, and increased
production efficiencies. Although NAFTA has proven beneficial to U.S.
industries and consumers, the U.S. Government's decision to delay
cross-border trucking service has unduly penalized not only the
transportation industry, but also U.S. exporters and importers alike.
Implementation of NAFTA's trucking provisions will eliminate a
cumbersome, outdated and costly system of moving freight across the
border, and replace it with an efficient, transparent and safe cross-
border trucking process. It is essential that public officials remember
that implementing NAFTA's trucking provisions will also allow for U.S.
carriers to increase to further improve their ability to provide cross-
border freight services between the U.S. and Mexico. Once the border is
opened, our countries can begin to recognize the full benefits of NAFTA
and increased trade between the United States and Mexico. Then, we can
focus our efforts on the many business and practical issues that will
arise from the cross-border integration process, which can only be
tackled with the goodwill of committed trading partners.
The Chairman. Thank you very much. The statement is made
that the trade has increased three times, but we have
unfortunately had to look at what really has tripled, and not
the trade of products, but the trade of jobs. My little state
has lost 43,200 textile jobs. The textile industry and the
berry industry has lost over 400,000 since NAFTA, and right to
the point with respect to going down there, the statement made
by Ms. Claybrook relative to an actual onsite audit rather than
a paper audit, Mr. Hoffa, I hope your Teamsters do not move to
Mexico. I can see----
Mr. Hoffa. I don't think they will do that.
The Chairman. I can see Hollings Manufacturing or General
Motors putting a subsidiary down there, one of their trucking
lines and if they organize them, you got to look not just at
the fact that they do have a union, but the composition of the
union itself. In Tijuana a few years ago, I went down to look
at the situation there and it so happened that the previous,
they had a heavy rain, mud and everything. Came up around San
Diego with the settlement, I guess it was 100,000 in a hard,
crusted, no roads, no real development.
They just--housing was 5 garage doors put together, for
example. Well, with that heavy rain, everything just washed out
and people trying to get their belongings together, they missed
3 days of work and under the labor rules in Mexico, they were
docked an additional one so they lost 4 days. And in February,
they had someone have his eye knocked out and they did not like
that, the particular workers and then of course, the first week
in May, their very favorite supervisor, she was expecting.
She went to the front office midday and said I have got to
go home to work. She says no, no. You are being required and
you got to continue to work. And as a result, she miscarried,
so the workers in that particular plant said we are going up to
California and we are going to organize, and they went up to
Los Angeles, and you know what they found out? They had a
union.
When that plant had moved from Santa Angelo down to Mexico,
they filled out the papers between the lawyers. Down at the
plant, they had never seen a steward or anybody from the union
or whatever it was. They just swapped the paper and swapped the
money, but that there was a compliance of having a paper union.
And under the law in Mexico, if you try to organize a union,
whereby you have a union, you file--and it was the mayor of
Tijuana that invited Senator Hollings to come in and listen to
these 12 workers who had been fired.
Now, I wrote an article about NAFTA for the foreign policy
edition, and they gave me $500. I sent it to the little lady
who showed me around, I said go down there and organize. I am
trying to organize in Mexico because it is really, we got to
look closely at these things. I can tell from the testimony,
and this is one of the best hearings that we have ever had, it
has come out that we are in trouble, namely the United States,
not Mexico.
I think the fact that you have met with President Fox, Mr.
Hoffa, and you have both gotten along and understand each other
and can talk candidly and everything else gets past all of the
politics about the NAFTA and the diplomacy and about enforcing
the agreement.
Specifically, let me just ask one question, Captain Vaughn.
You went into details about all the things that had to be
checked. Knowing from your experience all of those things that
have to be complied with and everything else like that, do you
think we are on course to really getting that done by January
1st?
Captain Vaughn. To do the CVSA plan, I believe there is an
opportunity. If we do case studies rather than compliance
reviews, what we are offering is to use state inspectors as
part of a team that will also include a Federal representative
and Mexican representative. That team will go in and we can
look at each of the carriers that are applying for authority.
Under that----
The Chairman. Have they put too much of the responsibility
on the state?
Captain Vaughn. It does fall back on the state but as the
Commercial Vehicle Safety Alliance, our focus is on the safety
of the nation's highways. And if we can get the support of our
individual states, we are willing to do that, to go down and
assure that those companies are, and should be accredited to
operate in the United States. I believe we can do so. Yes, sir.
The Chairman. Let me yield to our distinguished chairman of
the Transportation Subcommittee because he had to be earlier at
another hearing. Senator Breaux.
Ms. Claybrook. Could I just ask a question about what he
just said? He said do case studies and look at each carrier. Is
he referring to occasional case studies or is he referring to
looking at in fact every carrier with a full case study?
Captain Vaughn. What we would look at is each--currently we
have been advised there are approximately 200 carriers in
Mexico that are going to apply for authority to operate in the
United States. If questions go to those 200 carriers, do the
initial, so that they can have the authority to operate, it
would be a conditional authority to operate, then it would fall
back upon the Federal Motor Carrier Safety Administration to
follow up and do the subsequent compliance reviews. That that
is the direction this Committee, or rulemaking takes us.
Ms. Claybrook. So you are talking about doing an on-site
type of audit or just advising the company?
Captain Vaughn. No. On-site in Mexico at the carrier's
place of business.
Ms. Claybrook. But not a full compliance review.
Captain Vaughn. Not a full compliance review.
The Chairman. Senator Breaux.
STATEMENT OF HON. JOHN BREAUX,
U.S. SENATOR FROM LOUISIANA
Senator Breaux. Thank you, Mr. Chairman. I did not mean to
jump in front of our colleagues. I was chairing the aging
hearing this morning and we had a great hearing. I think this
is a subject matter that the Committee should act on, I mean,
not just be subject to an appropriations amendment, but this is
real policy, and I think that Surface Transportation
Subcommittee with the chairmen's cooperation really needs to
move into codifying these new rules, whatever we decide is an
appropriate standard. They ought to be part of the law and not
just subject to an appropriation rider.
Having said that, I think that Senator Murray and her team
worked on putting together this proposal. She has really done a
very credible job and helpful job in setting out some standards
that I think make some sense. If we had $103 million more in
the appropriations bill for border safety activity, that is
more than the administration was requesting by about $15
million.
That is a significant amount of money to be used that is
not there today to improve the ability to conduct inspections
and to assure safety which we all think is appropriate. I am
impressed with two particular aspects of the Murray amendment,
and I think it goes a long way.
Number one is that they would be prohibited from opening up
the border until the Department of Transportation is able to
certify that there is an adequate capacity to conduct a
significant number of meaningful inspections. It is one thing
to have an inspection program, but if you do not have enough
people to conduct it, it is not worth the paper that it is
written on. So the $103 million hopefully will be able to show
that this in fact has adequate people to do the job with
inspecting vehicles that come across. They cannot come across
openly until that is certified.
The second thing I think is a good feature of it is the
question of insurance. I think Mr. Acklie or someone spoke to
that question. If the Murray amendment, as I understand it,
says that they have to provide proof of valid insurance with an
insurance company that is licensed and based in the United
States. I mean, there is no insurance company worth its salt
that is going to insure vehicles that are not safe. It is an
economic loss to them.
My colleague, Senator Boxer mentioned to me that they only
buy insurance for 1 day. Well the insurance should cover the
time that they are in the United States. If it is 1 day or 1
week, it should be within that period. You cannot provide
insurance for a whole year if you are only going to be here for
7 days, it should cover the time that you are here, and I think
that is going to be a real enforcement mechanism in addition to
the government. I don't think any insurance company is going to
risk insuring a vehicle that does not meet standards which is
an incredible potential liability they would have if in fact an
accident occurred and resulted from the negligence of the
carrier.
So my simple question is with the Murray amendment, does
anyone think that that is something we should not do? Either
for the sake of it being too stringent or for the point that it
is not stringent enough?
Ms. Claybrook. We support the Murray amendment.
Mr. Hoffa. Teamsters do, too.
Mr. Acklie. I think Secretary Mineta said that it needed
some fine tuning. With that, it just seems that it should be
supported.
Senator Breaux. The bus thing. We had some terrible bus
tragedies in Louisiana, and I think the industry has moved
toward correcting some of those problems. Not so much with the
national carriers, but a lot of the private, smaller carriers
were having drivers that should have been in jail instead of
driving a bus.
Mr. Pantuso. You are right, Senator. There is still a great
deal to do. Much of this responsibility for change falls to
FMCSA.
Senator Breaux. I think we are moving in the right
direction.
Senator Dorgan. Thank you. I thank the panel for their
testimony. I guess I am missing something here. We have got
people who say yes, the Federal Government can get this done by
January 1st. I mean, am I missing, have you all worked with
Federal agencies? Have you all worked with Federal agencies?
Has anybody here had any experience in working with Federal
agencies. This is a huge job. A huge job.
I am willing to bet you it is not going to get done in the
next 5 years, let alone the next 5 months but we have got this
fiction going on here. There is an old saying never buy
something from someone who is out of breath. There is kind of a
breathless quality about this notion that you can put something
together by January 1st, assure the safety of the American
people with the trucking industry that is allowed into this
country that has such radically different standards.
With respect to Mr. Acklie's statements, I understand the
point that they have logbook requirements, do not carry
logbooks, they do not use logbooks. They have no hours of
service requirements generally that are at all respected. All
one has to do is look at the facts. We have radically different
systems that we have to fuse together. It is going to take a
good, long while.
I want to ask Mr. Hoffa and Ms. Claybrook a question. I
think the testimony demonstrates that we are not anywhere near
ready to do this. And I think by far the best approach is to
take the House amendment, the Sabo language which shuts this
down for a year and fuse it to the Murray language which then
establishes a process.
I guess I would ask Mr. Hoffa, you indicated support for
the House language. Would you indicate support for an amendment
that adds the House language to the Senate bill?
Mr. Hoffa. Yes, I will. I think it is good. It is strong. I
think we have to have verification. It is like one of those
nuclear tests. We have to verify what we are doing here. The
problem is they talk about all these things. I heard the
Secretary's testimony this morning. I am amazed that he could
think he could hire 80 people, that he could train 80 people,
and that he could acquire the land, build the facilities in 6
months.
I mean, that is just so incredible that it is not going to
happen, and we all know that. And I just think that we are
dealing with something that is very important, to put a
deadline on something so vital as American highway safety. It
is a great mistake and I just do not understand why the
administration is in such a rush. I think it is better to do it
the other way. Let us deny it and make them get the job done.
They have had 7 years to do this, and they have not done
anything, and Mexico hasn't done it. Mexico knows that this
deadline is coming up. They have not done the proper things
with regard to making sure that their trucks are ready, making
sure their drivers are trained, changing the way they operate
to make sure they have a database, they have logbooks, they
have driver training, they did CDLs, drug testing. Canada does
it. We do not have any problem with Canada.
The Chairman. Mr. Hoffa, did you discuss that with
President Fox?
Mr. Hoffa. We talked briefly. I said we have problems with
the trucks, we have problems with the training of the drivers
and he indicated that he knows that and I think that is one of
the reasons why you do not see Canada enforcing any billion-
dollar fine on us with regard to these things. I think it
should be negotiated and this administration I think should be
negotiating with the Mexican Government to set up something
that is reasonable, that has a timeline where we can verify
what they are doing, that we can get our act together with
regard to 80 inspectors. 80 inspectors is such a small amount.
I do not see anybody talking about drugs, I do not hear
anybody talking about law enforcement problems of the drugs
that are pouring across. NAFTA was the greatest thing for the
drug dealers that ever happened, and now that we are
implementing this, they are going to be, if you are inspecting
1 percent of the trucks and somebody was a drug dealer, I mean
they would know, they will give up 1 percent if the chances of
getting caught are almost impossible.
I think that there is a lot of work to be done. I think the
more pressure we put on the administration, we put on the
Mexican Government to get something that is reasonable like
Canada where they have compliance, where they have facilities
where they inspect these trucks, where we have all the things
we talked about, then we have got something we can bring back
and we can all agree on and make sure that we have safe
highways here.
Senator Dorgan. Mr. Hoffa, let me be clear on my question.
My question was about the Sabo amendment as added by the House.
The Sabo amendment is an amendment that simply prohibits the
use of funds for issuing those licenses in the coming year.
That effectively shuts us down for a year. My question was
would you support that?
Mr. Hoffa. We support that.
Senator Dorgan. Let me ask another question if I might. The
Inspector General showed us a map of where Mexican trucks are
now moving. North Dakota is one of those states. My assumption
is we know very little about what's going on here. Frankly, we
are not really keeping track of what's coming across our
border.
We inspect a relatively small percentage of trucks. We are
finding serious safety violations in a rather large percentage
but we are missing most of them that are coming across. While
they are restricted to a 20-mile limit, the map shown by the
Inspector General suggests that they are moving in many states
across the country and in many cases moving well beyond the 20-
mile limit in the border states. Ms. Claybrook, do you agree
with that?
Ms. Claybrook. I do, Mr. Chairman. The reason that I
support authorization legislation or legislation out of this
Committee in addition to legislation out of the Appropriations
Committee is because I think that this is going to take more
than a year to accomplish. That is, to have in place sufficient
facilities for inspection, sufficient inspectors to do the job,
and onsite audits of the companies that want to come across the
border. This takes a lot of time.
I think that the appropriations bill merged between the
House bill and the Senate Appropriations Committee bill is a
very effective first step, but I think that this Committee, as
Senator Breaux suggested, needs to act as well. When you look
at the likelihood of any truck today getting caught if it goes
beyond the 20-mile area, it is virtually nil, virtually nil.
Senator Dorgan. I support that. I, in fact, mentioned it to
Senator Breaux that I would support efforts of his and the
chairman of the full Committee. I think it is necessary for us
to proceed as an authorizing Committee.
Let me make one final comment, Mr. Emmett, to you. I hope
you will not do in the future what you did today on this issue
where you describe racial profiling. The fact is I support the
shutdown of Canadian wheat coming into this country until they
can begin to comply with NAFTA with respect to wheat shipments.
No one would suggest that is racial profiling on my part with
respect to Canada, and I don't believe a serious discussion
about truck safety dealing with the question of Mexico ought to
be related to that either and your testimony--I was profoundly
disappointed.
I think it ill-serves your cause to do that. That is not
the motivation of those of us involved in a serious discussion
about truck safety.
Mr. Emmett. Senator Dorgan, I appreciate your comment. I
would ask you to consider that this is more than government to
government. Consider if you were the owner of a Mexican
trucking company, and you voluntarily came to the United States
and said ``I will comply with anything you want me to comply
with. I am based in Monterey. I have a customer in Kansas City
and I will go back and forth.'' Yet, they hear for year after
year after year that the only reason they are not able to be
admitted is because they are Mexican. And, there have been
questionable things raised throughout this debate.
One of the other witnesses commented on the fact that
Mexican trucks have a different weight limit. So do Canadian
trucks. But she has not raised that issue with regard to the
Canadians. She only raises it with regard to the Mexicans. I
will be the first--having worked with you, Senator Dorgan, and
almost everybody on this panel, to say that was not in any way
aimed at the Senate.
In fact, our testimony today is totally supportive of the
direction the Senate is going, particularly Senator Breaux. We
think that, absolutely, the appropriate jurisdiction needs to
be exercised here, but the blanket comments that were coming
out not even by the members of the House, but by some of the
witnesses, and the things that went on were, and are,
unacceptable. Of course part of my feeling stems from the fact
that I am from Texas and I have had a long working relationship
with Mexicans.
I am hearing more and more from people who do business
there that that is the way it is being taken. And that is the
reason I raised it, and that is why I said it is akin to it,
without any personal comment. So, I do not know what you would
tell the owner of that Mexican trucking firm who is willing to
fully comply when the only reason he cannot come in is because
he is Mexican.
Senator Dorgan. I just ask you to be very careful when you
move into those areas on page 3 of your testimony, it is not a
discussion about some unnamed witnesses at some other venue. I
just--look, this is a very serious issue for this country. It
is very serious. And I want our roads, I want expanded trade
opportunities.
While I did not support NAFTA, I did not support it for
good reasons. The fact is NAFTA has taken a very small surplus
with the country of Mexico and turned it into a very, very
large deficit and it has been a colossal failure with respect
to Canada and Mexico. But I still believe that proper trade
agreements properly negotiated can be beneficial to expand
opportunities for all, but this issue of safety is a very
important and compelling issue, needs to be discussed
seriously, and we need to find a method by which we can
transition under this trade agreement to a circumstance where
we have international trucking firms with all of the safeguards
moving on America's highways.
But I do not want, whether in North Dakota or South
Carolina, some family looking into the rearview mirror with an
18 wheel 80,000 pound truck that came across the border because
it wasn't inspected. That is not racial profiling. Read the San
Francisco Chronicle and lots of other reports that I have read
about a guy that traveled 3 days in Mexico with a long haul
trucker and the guy slept 7 hours in 3 days, had no logbook.
Read it and ask, is that someone you want to drive next to on
an American interstate? I don't think so. Let us make sure when
we do this, we do it right. There isn't any way we will be
ready in January to do this.
The Chairman. Senator Boxer.
Senator Boxer. Let me just add to that. In my state, the
Latinos in my state, just as everyone else, want safe roads and
want to be able to take their kids to a soccer game and know
they are not going to be hit by a truck that doesn't pass
inspection. I want to say, Mr. Chairman, this hearing came not
a minute too soon, given what we are facing.
Before Senator Dorgan may leave, I just want to express to
him how much I support his approach if he chooses to go down
that path. I think we ought to--of melding the two approaches,
the Murray approach, along with the House approach because I
believe strongly that this January 1st date was, as Mr. Hoffa
implied, sort of plucked out as I will do this by January 1.
And it doesn't have any connection to reality.
I know Mr. Mineta very well. And I have not, how do I put
this, I don't feel comfortable with the amount of preparation
that he exhibited here for this challenge. Nor do I feel
comfortable, nor do I feel comfortable that the Inspector
General knows exactly what he is going to do. I think after
thinking about what came out of this hearing, Mr. Chairman, I
do believe both Mr. Mineta and the Inspector General will look
at this, will pay more attention to this, will try to get
ready, but January 1st is just not real.
And I just want to say to my friends on all sides of this
issue, and I think my colleagues will agree, one tragedy or two
tragedies on the road, that is what it will take to shut down
the border. We do not want that to happen. But I have been
around politics a long time. And I see what happens when there
is such a tragedy. So we want to avert it, and my friend,
Senator Breaux, is right. We need to take action in this
Committee and I will support him and my chairman in coming up
with a good bill to do that.
But it is well and good to say that everyone needs to have
insurance. Yes, of course, Mr. Acklie, and insurance is, I
agree with my colleague from Louisiana, a very good hedge. That
is why I always say on nuclear power, which is another issue,
when the insurance companies are ready to insure--nuclear power
plants, talk to me about it because it's a check on safety and
if a company does go in and insure a carrier, it makes me feel
a lot better.
But remember our problem is the inspections. In California,
where we are doing, we have put so much money and it has come
out of this hearing. We are only getting 2 percent of the
trucks, only 2 percent of the trucks. And out of that 2
percent, about how many, 26 percent are failing inspection. So
think about the other 98 percent we are not getting. So even if
we make tough laws on insurance, but they do not have it, it is
too late, once an accident occurs.
I want to put into the record the fact that I am very
concerned, Mr. Chairman, and I need you to help me look into
this, about the answer that was given to a question that I
asked about the penalties that would be waged on Mexican
drivers compared to American drivers if the law is broken.
Because I got an answer that says it is identical all the way.
I have the ruling here. And I have searched this rule. And Mr.
Chairman, it says a Mexican motor carrier committing any of the
following violations identified through roadside inspections or
by any other means may be subjected to an expedited safety
review or issued a deficiency letter identifying the
violations, including, and then it goes into driver violations.
I can't find anything in here that talks about the drivers.
Now, I am very concerned about the answer that I got, so I
would ask you, Mr. Chairman, if you would join with me in
writing a letter to the Transportation Secretary asking him to
please point out chapter and verse where is it written that
there is in fact a level playing field with United States
drivers because I do not see it. Would you do that?
The Chairman. I would definitely join with you on that. We
are going to leave this record open for questions by other
members of all the witnesses here.
Senator Boxer. Good. Because I want them to show me where
this equality is in this rule.
Ms. Claybrook. Senator Boxer, I can answer that question
very quickly. And that is that for the 18-month period or
whatever period it is going to be, the Mexican companies would
be given a deficiency letter. A similar violation by a United
States carrier would be, would involve a penalty. So in fact
the Mexican companies would have a lesser penalty, that is a
deficiency letter, than a United States carrier, who could be
penalized.
Senator Boxer. Good. I would like to see whether Mr. Mineta
agrees with that. I have a question for Mr. Hoffa, and that is
all I have is one question here.
Truck drivers employed by companies domiciled in Mexico
that enter and operate both within and outside the current
commercial zones are not subject to United States minimum wage
laws and we know that is the case. The DOT proposed rules would
require the Mexican carrier to certify that it will comply with
United States labor laws. The instructions, however, state that
registration will not be withheld if the applicant refuses to
certify such compliance. So they do not have to certify
compliance with our, with our labor laws.
Why do you think the United States provided this out for
these NAFTA carriers, and second, do you think the Labor
Department could enforce wage and hour standards on Mexican
drivers?
Mr. Hoffa. Starting with your last question, I have
discussed this with the Secretary of Labor and they have no
mechanism to do this. Driver comes across and drives a thousand
miles from the heart of Mexico to the border, comes across the
border, operates for 2 or 3 days back and forth. Who is going
to make sure that during that period of time, he is paid the
minimum wage? There is no mechanism to do that. It would be
incredibly complicated to pick up Social Security. I have--they
have not even thought about how they would even do that.
Senator Boxer. What do they get paid at this time in
Mexico?
Mr. Hoffa. I have no idea. Somebody said they were paid at
a rate--what was that rate, $7 a day. And could you imagine,
and you think one of these companies is going to say okay, we
are going to monitor the number of hours, we are going to give
them at least minimum wage. It is not going to happen.
I have raised this issue with Secretary Mineta and I have
raised it with the Secretary of Labor which would fall under
her jurisdiction. They have not even thought about it. They
said they are going to look into it. Thousands and thousands of
drivers coming across, how would they go about that? There is
no computer to pick up how long they are here. How long would
you monitor when they go back and who is going to compute it
and where do you send the bill? It is not going to happen. It
is impractical.
And no one is thinking about some of these issues. Like I
said, I thought that the presentation today was that they have
not thought through the thing. They are just trying very
quickly to throw something together. This is a big issue about,
they have to comply with these--with the American labor laws
and they are not going to. Just like those trucks that we found
up in North Dakota, you think those people were being paid the
minimum wage? They are not. Everybody knows that. We shouldn't
kid ourselves about it.
This is a major problem and until somebody comes up with a
mechanism where we are going to have some kind of a computer
base or give them an identification number and we are going to
monitor it with regard to when trucks come through, do they go
through, there is some kind of a pass, like a speed pass, they
monitor the truck, it has a number. Driver has a number. They
monitor the number of hours they were here and it goes back the
same way and there is a computer printout as to the hours he
spent in the United States, then it can be done. But it is a
tremendous program to set that up. That is what has to be done
to make sure we get compliance.
Right now the administration isn't even thinking about that
so we are going to have literally thousands of people operating
here being paid $7 a day for driving a truck who knows how many
hours.
Senator Boxer. This is a rule that says a lot of words, but
it is not backed up. It says we require a Mexican carrier to
certify it will comply with United States labor laws but as Mr.
Hoffa has stated and I think frankly he has been extremely
reasonable. I am not so sure I could be quite as contained.
I compliment you on this because I know you fight hard for
working people to have a decent life, and the fact of the
matter is it is a sham. Because they say we require the Mexican
carriers who are certified as complying with United States
labor laws--my friend whispers to me what about health
insurance and all the other things that we think are important?
The bottom line is how can it be done, No. 1, and if it can
be done, can it be done by January 1? No. So there is a
loophole in this deal that says well, you don't have to
certify. You have to do it, but we do not require that you
certify. So this is a sham deal. It is not right. And I hope--
and that is why I was so happy when you agreed to do this
hearing, Mr. Chairman. I want to applaud you and thank you.
This is on our plate today, tomorrow, next day. We have got to
confer and hopefully do something that will enable us to face
this challenge, to do the right thing for people on both sides
of the border. That is what I want to do, and I thank you very
much, the whole panel. I thank you, Mr. Chairman.
Senator Breaux. Mr. Chairman, a comment with regard to the
point that my colleague, Senator Dorgan made, and others have
made, including Senator Boxer, about not being able to have
this in place by January. That is probably correct. But as I
read the Murray amendment, almost every paragraph says that
they are not going to open the border until the DOT Inspector
certifies that there is a policy they ensure compliance, until
the Inspector General certifies that information infrastructure
is in place, until the DOT Inspector has certified there is
adequate capacity to do inspections, until the proof of license
is made available, until DOT has equipped all of the border
crossings with the weigh in motion systems, and until the DOT
Inspector certifies it as an accessible database.
So I think the premise of the Murray amendment is that this
really has to be done and until it is done and until it is
certified that it is done and in place, we will not open the
border. So they do not make this deadline by January. The
border is not automatically opened under the Murray amendment.
She says it cannot be opened until this is completed. If that
is done in January, fine. But if it is not until January of
next year, that is when the border would be opened.
The Chairman. It is worded that way, Senator, but we didn't
want to go in a confrontational arbitrary way with some thought
of the Sabo amendment, this ipso facto here in July we are
going to cut out any chance for another year and a half because
we know government. If they get another year and a half, then
it won't happen for another year and a half. And we did not
want a veto.
If we had it in that fashion, the President will say well
you just cutoff your funds and you are against the policy and
he may thereby veto. But the language and it is Shelby, too. It
is Murray-Shelby, bipartisan. I think we could override.
Senator Breaux. Under the Murray language, as I understand
it, the time could be even longer if this would happen, than
the House-passed language, which is a 1-year delay. If this
takes more than 1 year, then it will be more than 1 year, so I
think that is a good policy.
Ms. Claybrook. Could I make one comment on the labor issue?
For 15 years, safety groups have been trying to get an
electronic box in trucks so they could enforce the hours of
service rules and if you had an electronic box in the trucks,
both in the United States, as well as in trucks coming into
this country, you would be able to at least do a better job,
albeit maybe not a perfect job, of enforcing those minimum wage
requirements and you would also be able to enforce the hours of
service rules.
And we have not been able to get the United States
Department of Transportation through thick and thin to propose
this and to issue it. They finally did propose it about a year
and a half ago. The likelihood that they will ever issue a rule
is small. I would urge, in your consideration of this
legislation, that you consider requiring that because I don't
think it is ever going to happen any other way.
The Chairman. Very good. Let me thank you on behalf of the
Committee, each of the six. You all have made a very valuable
contribution, and the record will stay open subject to
questions and the Committee will be in recess subject to the
call of the chair.
[Whereupon, at 1:05 p.m., the Committee adjourned.]
Appendix
Prepared Statement of Thomas J. Donohue,
President and CEO, U.S. Chamber of Commerce
Mr. Chairman, thank you for allowing the U.S. Chamber of Commerce
and the American Chamber of Commerce of Mexico to submit this statement
to this panel today. I am Thomas J. Donohue, President and CEO of the
U.S. Chamber of Commerce. I appreciate this opportunity to comment on
behalf of the Chamber on the spectacular success of the U.S.-Mexico
trade partnership and the costs imposed by our nation's failure to
implement the cross-border trucking provisions of the North American
Free Trade Agreement (NAFTA).
Free trade has played a key role in our nation's economic growth
and development since it was founded, and the NAFTA played an important
role in the accelerated income gains our nation enjoyed in the 1990s.
Since the NAFTA came into force in 1994, trade between the United
States and Mexico has tripled from $81 billion in 1993 to $246 billion
in 2000. And the trucking industry is critical to this trade
partnership since trucks transport over 80 percent of the value of our
trade with Mexico.
However, beginning in 1995, the Clinton Administration refused to
abide by America's commitment under the NAFTA to open the U.S.-Mexico
border to cross-border trucking. The difficulties that stem from this
barrier to trade should not be underestimated. Current rules maintain a
cumbersome, environmentally damaging, and costly system that represents
a brake on further growth in trade. The time has come for our countries
to open our borders to a modern cargo transportation system that will
allow our economic partnership to reach the next level of success.
The Story So Far
The NAFTA gave U.S. and Mexican carriers the right to pick up and
deliver international freight into the neighboring country's border
states beginning in December 1995. This market access was scheduled to
expand to the entire territory of the United States and Mexico by
January 2000.
The NAFTA also included measures to permit U.S. and Mexican
carriers to invest across the Rio Grande. Starting in December 1995,
U.S. and Canadian investors were supposed to be allowed to invest in
Mexican trucking companies or terminals providing exclusively
international freight services up to a 49 percent ownership cap. The
NAFTA laid out a schedule to raise this cap to 51 percent in 2001 and
100 percent in 2004.
By the same token, Mexican carriers were to be allowed to invest
and fully own U.S. trucking companies for the purpose of transporting
international cargo within the United States beginning in 1995. This
provision was finally implemented on June 5, 2001, when President
George W. Bush issued a memorandum instructing the U.S. Department of
Transportation to begin accepting and processing applications by
Mexican nationals for the purpose of establishing U.S. trucking
companies.
In a long anticipated ruling, a NAFTA dispute settlement panel in
February 2001 determined that the United States had violated its
obligations on cross-border trucking, and analysts calculate that the
United States will be slapped with retaliatory duties totaling between
$1 billion and $2 billion for every year Washington refuses to allow
cross-border trucking. More recently, the U.S. House of Representatives
moved to bar funding for agencies charged by President Bush with
processing applications by Mexican carriers to operate outside U.S.
commercial zones; it also significantly reduced needed funding for
truck inspections and border facilities.
This dispute is flaring up at a difficult time. With over 700,000
manufacturing jobs lost in the past 12 months, the sanctions mentioned
above would hit the U.S. economy at a moment when it is already weak.
Mexico's recently launched free trade agreement with the European Union
means that Mexican importers have a wide range of choices when they
seek suppliers, and this dispute could drive many Mexican firms to look
for partners in countries other than the United States. After all,
Mexico has free trade agreements with 32 nations, and if retaliatory
duties drive up the price of U.S. goods, Mexican consumers have plenty
of options.
Cross-Border Trucking
Experts agree that the dispute over cross-border trucking threatens
our relationship with our second largest trading partner. However, it
is bizarre to hear apparently reasonable people try to defend the
trucking system that currently exists on the U.S.-Mexico border.
Cross-border trucking today was described in a recent coalition
letter signed by the U.S. Chamber of Commerce and nine other business
organizations as ``archaic and convoluted. . . . Currently, a shipment
traveling from the United States to Mexico, or vice versa, requires no
less than three drivers and three tractors to perform a single
international freight movement. Through interline partnerships, a U.S.
motor carrier handles freight on the U.S. side, and a Mexican carrier
handles the freight on the Mexican side, with a `middleman' or drayage
hauler in the middle. The drayage driver ferries loads back and forth
across the border to warehouses or freight yards for pickup or
subsequent final delivery within the designated border commercial
zone.''
The upshot is congestion, air pollution, and higher prices for both
consumers and business. The fraught logistics of the existing system
often compel trucks to return home with empty trailers or with no
trailer at all. Our border infrastructure is seriously overburdened,
and the entire system is quickly becoming a real brake on further
growth in trade.
These problems are particularly severe for U.S. companies that
operate ``just-in-time'' manufacturing facilities in Mexico. These
operations were established with a clear expectation that
transportation services would be able to deliver inputs from the United
States or elsewhere to facilities in Mexico according to schedule. Our
mutually beneficial trading relationship with Mexico will plainly
suffer--with costly effects for U.S. business--if we fail to ensure the
expeditious delivery of materials to these manufacturing facilities by
modernizing the cumbersome transportation system upon which our trade
with Mexico depends.
Safety: A Vital Issue
Safety is plainly one of the most important issues at play in this
dispute. It should come as no surprise that ensuring the safety of all
trucks on American roads was a top priority of the U.S. trade officials
who negotiated the NAFTA. The Congress approved the NAFTA because it
was broadly satisfied with the fruits of their labors.
And why shouldn't we be? Under the NAFTA, every truck entering the
United States is required to meet each and every U.S. safety
requirement. In fact, Mexican motor carriers applying for U.S. permits
will be required to provide far more detailed information regarding
their ability to meet U.S. safety requirements than their American or
Canadian counterparts. Any lingering concerns over the safety of these
carriers from Mexico and their trucks and drivers can surely be
addressed in the proposed rules for implementing the NAFTA.
While safety is an overriding concern, we can certainly address
this issue while keeping our international obligations and expanding
upon our mutually beneficial trading relationship with Mexico. Failure
to try would send a troubling message about the difference in our
treatment of Canada and Mexico, our two closest neighbors and largest
trading partners.
Finally, it is imperative that Congress make available the required
funds to ensure that safety enforcement inspections of trucks on the
U.S.-Mexico border are carried out with all due seriousness. The U.S.
Chamber strongly supports providing necessary funding to hire
additional safety inspectors to be stationed at the border and to build
and maintain adequate border inspection facilities.
Conclusion
Because the NAFTA has already eliminated most tariffs and other
barriers to trade with Mexico, improving our transportation
infrastructure is the best thing we can do to keep this partnership on
track. Implementing the NAFTA's trucking provisions offers the
opportunity to fix the cumbersome, environmentally damaging, and costly
transportation system upon which our trade with Mexico depends. With
added and improved resources, inspection capabilities at the U.S.-
Mexico border should ensure that trucks will be able to operate on both
sides of the U.S.-Mexico border with safety and efficiency.
In the final analysis, this issue revolves around whether the
United States will keep its word. We should be mindful that the United
States made a commitment under the NAFTA to work with Mexico to
modernize our cross-border transportation system. I urge the Congress
to implement the NAFTA's cross-border trucking provisions and show the
world that America keeps its commitments.
______
Prepared Statement of Susan G. Pikrallidas,
Vice President, Public Affairs, AAA
AAA submits the following statement for the record to convey our
views on the safety implications of opening the U.S. border to
commercial trucks from Mexico.
As the largest association in America dedicated to the safety of
the traveling public, AAA is acutely aware of the need to ensure the
safest possible operation of commercial motor vehicles. AAA members
consistently rate driving with large trucks as one of their greatest
fears. Opening the border and adding trucks from Mexico to the mix of
vehicles traveling the nation's roads will only intensify motorists'
concerns.
While NAFTA requires that the border be open to ensure the smooth
flow of traffic between both countries, the treaty also requires that
trucks from Mexico meet all U.S. safety standards. To achieve that
goal, the Administration and Congress must work together to ensure that
all safety measures are in place and the processes and systems to
monitor and enforce commercial traffic from Mexico are fully
functioning.
In formal comments filed in response to the Department of
Transportation's proposed rulemaking on NAFTA implementation, AAA
expressed concern that the safety oversight plan unveiled by FMCSA
falls short of providing motorists with necessary assurances to permit
the opening of the border as the agency proposes. Motorists cannot
accept a proposal that could allow carriers from Mexico to traverse
U.S. roadways for up to 18 months before undergoing a safety audit.
More intensive discussions and work must occur with representatives of
both governments, enforcement authorities, and industry officials
before the border is ready to be safely opened.
What do we know about the carriers, vehicles and drivers from
Mexico who will make application to cross the border?
The answer is: very little. Until recently there have been few
safety regulations placed on industry in Mexico, and the infrastructure
to capture data is in an infant stage. In addition, we do not know the
extent to which companies from Mexico will apply to cross the border or
the types of operations and vehicles that will make such crossings.
Vehicles and drivers currently traveling from Mexico to U.S. commercial
zones are not necessarily indicative of the type of operations that may
engage in long haul travel to the U.S. once the border is open.
Safety Audits Should Occur Before Trucks Cross The Border
AAA supports the Commercial Vehicle Safety Alliance's
recommendation that the safety inspection process should begin before
trucks cross the border, with carrier audits being done even earlier.
U.S. enforcement officials should be permitted to inspect truck company
base operations in Mexico, a practice that is already followed with
Canadian companies. These visits should include the evaluation of
company safety management practices, knowledge of and compliance with
U.S. regulations, vehicle inspections, and education of drivers,
dispatchers, mechanics and management.
Because U.S. enforcement authorities have had many years of
experience with Canada, the database and knowledge of the Canadian
trucking industry has developed over time. There is uniformity and
reciprocity between Canada and the U.S. on enforcement standards and
procedures. A similar relationship with Mexico is evolving, which is
the goal of NAFTA.
Under current CVSA practice, when a truck operating in the U.S.
undergoes and passes an inspection, a 3-month sticker is issued. Many
(but not all) truck inspectors honor this sticker during its 3-month
period of validity and do not re-inspect the vehicle. As a minimum,
trucks from Mexico that wish to enter the U.S. should be required to
display a valid CVSA inspection sticker. If a truck does not have one,
it should undergo the most rigorous CVSA (or equivalent) inspection
immediately upon crossing the border. If it fails inspection, it should
be either repaired on the spot and reinspected, or prevented from
crossing the border until defects have been repaired.
AAA is confident that Mexican authorities expect no less of their
companies and drivers than to adhere to practices already followed by
U.S. and Canadian companies. Many firms operating in Mexico maintain
high safety standards for their trucks and drivers. AAA's concern is
that the highest safety standards be applied to all trucks and drivers
operating in the U.S. regardless of where they are domiciled.
Licensing Issues
AAA is also concerned that drivers from Mexico may not be licensed
to U.S. standards, and in some cases testing procedures may fall
woefully short. The databases of both countries need to be synchronized
so that enforcement authorities for both countries can easily check
driver records. AAA has encouraged FMCSA to work closely with
representatives of the American Association of Motor Vehicle
Administrators (AAMVA) and CVSA to ensure that proper licensing
procedures are in place and enforceable.
Insurance Concerns Must Be Addressed
Issues of insurance must also be addressed and steps taken to
ensure that every vehicle in every fleet is adequately insured if it is
operated in the U.S. Drivers must be required to carry an insurance
document that is unique to their particular vehicle. Uninsured vehicles
and drivers pose a threat to the economic well being of other road
users and drive up the cost of insurance for everyone.
Weight Issues
AAA is very concerned about the safety and infrastructure impacts
of increasing the size and weight of trucks. Effective enforcement of
current weight limitations is essential, and AAA has vigorously opposed
efforts in Congress that would seek to increase the weight of trucks
beyond currently allowed levels. Opening the border to trucks from
Mexico may result in pressure to raise sizes and weights to Mexican
(and/or Canadian) limits. AAA believes trucks should be weighed at the
border before entering the U.S. to ensure that U.S. weight limits are
enforced.
Sufficient Resources Necessary To Monitor The Border
Much work remains to be done at major border crossings before we
can be confident that the U.S. is prepared to handle the increased flow
of commercial traffic across the border. The Department of
Transportation's Inspector General report found a direct correlation
between the conditions of trucks from Mexico entering the U.S. and the
level of enforcement resources at the border. There are 27 southern
border crossings, and AAA believes that every crossing point must have
the resources and facilities in place to fully monitor and enforce U.S.
safety regulations.
It should also be noted that issues resulting from opening the
border are not solely confined to those residents of border states.
More trucks from Mexico will place new responsibilities on enforcement
authorities across the country. That will require additional resources.
Conclusion
To conclude, AAA believes the border should be opened to commercial
vehicles from Mexico only when officials on both sides of the border
are confident that all safety measures are in place. It is clear we are
not ready today, and we are disappointed that these issues have not
already been addressed in the intervening years since the adoption of
NAFTA. It will take a concerted joint effort by officials from both
countries to make it possible, but the safety of the motoring public on
both sides of the border must be the primary concern.
______
Prepared Statement of Dr. James R. Giermanski, Professor and Director,
International Business Studies, Belmont Abbey College
Mexican Motor Carrier Access to the United States
The Mexican motor carrier safety issue from the very beginning was
suspect. For those of us who are involved in or study the trucking
industry, the decision to deny Mexican truckers access to the United
States was a deal between the White House and the Teamsters. As a
result of the release of the 82-page NAFTA dispute-panel unanimous
decision, we know the deal constituted a United States breach of its
obligations under NAFTA. Alleged safety issues were contrived and
false. Continued distortions of the Mexican threat by the Teamsters,
and by some in Congress, do a disservice to the public. Therefore, it
is time for some reasonable assessments of the reality of Mexican
access and its potential impact on the U. S. trucking industry and the
general public. My assessment will treat the magnitude of Mexican
access to the U.S. motor-carrier market, the labor issues connected to
it, the likelihood of successful market penetration by Mexican
carriers, the genuineness of the safety issue, the likely impact on
costs to U.S. shippers, and U.S. DOT's role in allowing an unnecessary
loophole in operating authority requirements.
The Magnitude of a Mexican Presence
According to the U.S. Bureau of Census figures, there are 733,900
Class 7 and 8 motor carriers operating in the United States. Class 7
and Class 8 include the heavy over-the-road motor carrier. That number
does not include another 63,000 that failed to return a report,
suggesting a total of 796,900 U.S. motor carriers. Of the carriers
reporting, 538,700 are truck load (TL) and 195,200 are less than truck
load (LTL). The number of requests for operating authority by Mexican
motor carriers as of July 20, 1999, totaled 184 applications. Based on
statements of CANACAR, the Mexican Trucking Association, denying an
interest on the part of Mexican carriers to operate in the United
States, and based on these numbers, we would see that the Mexicans
would account for .0002 percent of the trucking industry. If one were
to look only at the TL sector, the target market carved out by the
Mexicans in the North American Free Trade Agreement (NAFTA)
negotiations, Mexican applications for operating authority amount to
only .0003 percent of the U.S. truck-load carriers. Mexican presence in
the TL market will hardly be noticeable.
Finally, the assumption that if Mexican truckers are allowed in,
there will be more trucks than ever on U.S. highways is unsupportable.
Since Mexican truckers are permitted to carry only international cargo
(cargo with an origin or destination outside the territory of the
nation in which the cargo is carried), truck volumes will not increase
unless trade increases dramatically. There is also a limit on the
availability of equipment (tractors and trailers) no matter how much
trade might increase. Any carriage by Mexicans simply offsets what
would have been carried by U.S. truckers. Given the minuscule number of
Mexican operating authority applications (even assuming they were all
approved), and assuming that all these carriers would somehow carry
additional trade, the Mexican truckers would still not be noticed.
The actual impact of Mexican operations is likely to be small and
positive: small because of sheer numbers, and positive because their
presence could enhance service to domestic shippers. The potential
displacement of U.S. drivers ordinarily carrying international cargo by
Mexican entrants into the international cargo market would allow U.S.
drivers to carry domestic cargo often delayed because of the shortage
of U.S. truck drivers. In short, Mexican carriage of some international
cargo frees up more U.S. drivers to improve domestic carriage, a clear
benefit for the U.S. shipper and consignee.
The Labor Issue
Labor options under NAFTA severely limit the ability of Mexicans to
capitalize on low wages paid to Mexican drivers operating in the United
States. Only Chapter 12 (Cross-Border Services), and Chapter 16
(Temporary Entry for Business Persons) address and define the extent of
labor activity afforded to Mexican drivers operating in the United
States. There are only two options for Mexican motor carriers. The
Mexican carrier with operating authority in the United States may use a
Mexican driver living in Mexico on a temporary cross-border basis with
limited time allowed in the United States. The Immigration and
Nationalization Service (INS) allows these temporary workers up to one-
year maximum and 6-months minimum in the United States. While some will
claim that this is a threat to U.S. truck driver jobs, a closer
examination suggests otherwise. A Mexican driver who lives and begins
his work day in Mexico but subsequently enters the United States with
cargo is subject to unique tax issues in some ways brought about by the
time constraints contained in the INS regulations. Because of his
cross-border status, the Mexican driver legally maintains his residence
and principal place of employment in Mexico. Therefore, the Mexican
driver is not provided the special U.S. tax treatment given to Mexicans
who live in Mexico, or Canadians who live in Canada but enter to the
United States for their normal work day. What this means is that a
Mexican driver operating on a cross-border basis is obligated to pay
Federal income tax to the United States, not just on earnings generated
in the United States, but on all foreign earnings, including those
generated in Mexico.
Additionally, since under NAFTA and INS rules, the primary source
of remuneration must be in Mexico in pesos, the Mexican motor-carrier
firm must either augment the drivers' earnings or provide expense
allowances to pay for the increased costs of doing business in the
United States. These expenses include the costs of fuel, food, lodging,
and incidentals in the United States.
Restrictions on Mexican drivers such as primary source of
remuneration; international character of work; and prohibition against
entering the U.S. local labor market or shopping for international
cargo or carrying U.S. domestic goods severely limit opportunities and
increase costs to the Mexican trucking company. In short, the cross-
border Mexican carrier has few advantages except perhaps for operations
solely restricted to nearby U.S. border states where there is,
according to one scientific study, a TL market suited for Mexican motor
carriers.
Option two under Chapter 16 of NAFTA relates to professionals only.
The chapter and 8 CFR 214 of INS regulations are so specific that they
contain an all-inclusive list of what professional NAFTA covers. Truck
drivers are NOT included. Of course, a Mexican motor carrier who
establishes a firm in the United States could openly recruit Mexican
drivers who qualify for H-1B Non-Immigrant status and use them up to 3
years providing the Mexican-owned U.S. carrier could prove a driver
shortage. In this scenario, the Mexican driver is an employee of a U.S.
firm which is legally obligated to provide all the requirements that
are given to U.S. drivers. These drivers working for a Mexican carrier
established in the United States under NAFTA are still restricted to
carrying only international cargo. However, once admitted to the U.S.
as an H-1B, the Mexican driver could be recruited and hired away by a
U.S.-owned and controlled motor carrier and be used to carry domestic
cargo within the time period allowed under the H-1B Non-Immigrant
classification. Therefore, the Mexican carrier operating a firm in the
United States must pay a competitive wage.
The implementation of NAFTA with respect to Mexican truck drivers
operating in the United States seriously restricts driver use, protects
the U.S. local labor market, and suggests labor costs to the Mexican
firm operating in the United States that are equal to, or nearly equal
to those of the U.S. motor carrier. Thus, it appears at this time that
there may not be a significant labor advantage for Mexican motor
carriers operating in the United States under NAFTA.
Competitive Constraints
It is difficult to support the concept that Mexican motor carriers
which will operate in the United States will successfully compete with
U.S. carriers. First, Mexican carriers are limited to carrying
international cargo. Second, they have to establish a system which
provides cargo for their return trip, not an easy task. Third, given
the likelihood of equipment and cargo imbalances, Mexican carriers will
have to pool equipment in the United States at either terminals or lots
and hire the personnel (U.S. jobs) necessary to operate and maintain
their facilities in the United States. Fourth, they need sales offices,
an adequate customer base, and a sophisticated information system to
allow them a competitive advantage and interface with intermediaries,
Customs, and customers at a level greater than or equal to that of
their U.S. competitor. Fifth, Mexican carriers must meet all the
federal and state requirements that every U.S. carrier must meet.
Unlike their drayage counterparts on the border, Mexican long haulers
must pay U.S. highway use tax. Mexican carriers operating in the United
States must demonstrate financial responsibility, show proof of
insurance or bond, or be self-insured. The insurance issue is a quite
serious one for Mexican carriers. Their premiums to carry insurance
sufficient to meet federal minimal liability standards will be
exceptionally high because of the lack of actuary tables on Mexican
motor carriers. Additionally, there is likely to be built into those
high premiums, revenue to cover unfulfilled judgments should a Mexican
carrier lose litigation in the United States. If not, the U.S.
insurance industry by ``spreading the risk'' among all its customers
would have to increase the costs of insurance to their U.S. motor
carrier clients.
Mexican carriers must also meet all U.S. motor carrier safety
regulations and conform to all U.S. motor carrier obligations. Finally,
they must break into or penetrate the strong U.S. market sufficiently
to survive, let alone to realize a profit.
The Safety Issue
At this time, enough has been disclosed and written to dispel the
myth of inferior Mexican motor carrier safety. While there are many
sources of evidence which demonstrate that the Mexican long-haul motor
carrier is every bit as safe as U.S. and Canadian long haul carriers,
three factual reports should be enough to demonstrate that safety is
NOT an issue. The U.S. Department of Transportation (DOT) asked its
Inspector General (IG) to investigate truck safety at the southern
U.S.-Mexico border, presumably to support Clinton's decision not to
admit Mexican carriers into the United States. In the DOT IG's 1998
report, it was expressly stated by the Inspector General that views
differ on whether the data used to support the claim of unsafe Mexican
trucks are statistically representative of the universe of Mexican
trucks. The report did make it clear that given there were no Mexican
long haul carriers to inspect, the inspection was made of Mexican
drayage or transfer trucks used to ferry goods from one side of the
border to the other--the worst of motor carrier equipment. What
followed, however, was the use of these data to compare U.S. and
Canadian long haul trucking to Mexican drayage trucking. This was a
blatant distortion of fact. And if the reader read it carefully, he or
she would see that the Inspector General acknowledged the distorted and
dishonest comparison. Publicly reported results of examinations of both
Mexican and U.S. drayage trucks by federal and state officials over
many years demonstrated that, in fact, ``out of service'' rates for
Mexican and U.S. drayage were essentially the same.
One year later in November 1999, DOT's Inspector General released
another report, again presumably to support the Administration's
contention that unsafe Mexican trucks were operating illegally in the
United States through inventive lease agreements with U.S. carriers. In
this report, the IG cited numerous interceptions of Mexican-long haul
carriers found operating in the United States. What the IG did not
highlight from that report was Exhibit D. An analysis of Exhibit D
showed that of all the Mexican-long haul carriers inspected in the
United States, only about 15 percent were put ``out of service.'' For
the first time, the U.S. had empirical evidence on Mexican long-
haulers. However, what that evidence showed was that in comparison to
the ``out of service'' rates of U.S. carriers (26%) and Canadian
carriers (17%), the Mexican long-hauler was ALMOST TWICE as safe as the
U.S. long-hauler.
Finally, the most obvious evidence came by way of the NAFTA Dispute
Panel's ruling. The panel's determinations included the following
finding. Although the United States, through a loophole in the law, is
allowing the operation of 150 Mexican-domiciled, U.S.-owned carriers; 5
Mexican-domiciled, Mexican-owned carriers; and 1 Mexican-domiciled,
Mexican-owned (Mexican-Canada transit, only) carrier in or through the
United States, the United States could not provide the Dispute Panel
one piece of evidence of a specific safety problem with these Mexican
carriers.
Costs to the Shipper and/or Consignee
Since December 18, 1995, the United States has breached its
obligations under NAFTA. This breach has denied the opportunity for
revenue to qualified Mexican long haulers and has helped to perpetuate
an archaic and costly procedure along the southern border. That
procedure is known as drayage or transfer carriage. The practice of
drayage is not only expensive but also risky for carriers and shippers
alike. The average dollar cost of drayage ranges between $75 to $125
per crossing. There have been millions and millions of crossings since
December 1995. In 1999 in Laredo, Texas, alone, a total of 2,793,166
trucks crossed Laredo bridges over 12 months. If all these trucks were
lined up bumper-to-bumper, they would form a line 34,386 miles long and
would stretch from Laredo to the Canadian border 20.7 times. Assuming
60 percent were carrying cargo for which there was a drayage charge of
$100 dollars, that cost alone would amount to $167,589,960 of cost
which would be unnecessary if opening the border for trucks had led to
the opening of the border for cargo. It is difficult, if not
impossible, to calculate the loss of time and money caused by
maintaining an outdated transportation practice which is an essential
condition for an outdated Mexican Customs Broker practice.
Nonfeasance and the U.S. Department of Transportation
When the ICC Termination Act went into effect in January 1996,
USDOT was given clear guidance in publishing rules. These rules were to
insure that the distinction between common carrier and contract carrier
was eliminated (Sections 14101 and 14706). The effect of eliminating
this distinction would result in, among other changes, the removal of a
loophole which would allow Mexican motor carriers to file for operating
authority as contract carriers and therefore not be required to carry
cargo insurance (49 CFR 387.303 (c)).
In summary, the impact of Mexican trucking in the United States
will be insignificant and likely limited by choice to the U.S. border
states, providing a service to U.S. long-haulers. National treatment of
Mexican carriers will benefit not only the U.S. trucking industry in
the United States, it will benefit the U.S. trucking industry in
Mexico. Opening the border is merely the first step in reducing costs
for U.S. shippers, and providing faster service to them. The politics
tied to this issue is not only distorting the truth, it also is
jeopardizing the economy of the United States even further should
Mexico be forced to retaliate justly to defend its rights as an equal
party to the North American Free Trade Agreement.
______
Prepared Statement of Jacqueline S. Gillan, Vice President,
Advocates for Highway and Auto Safety
My name is Jacqueline Gillan and I am Vice President of Advocates
for Highway and Auto Safety (Advocates), a coalition of consumer,
health, safety, law enforcement and insurance companies and
organizations working together to advance highway and auto safety laws,
regulations, and policies.
While Advocates' individual board members hold different views on
NAFTA, we hold a common view on safety. I am pleased to offer testimony
today on several necessary and basic safeguards that must be in place
before opening our southern border to unrestricted access by commercial
carrier traffic on U.S. streets and roads. The proposed rules by the
Federal Motor Carrier Safety Administration (FMCSA), an agency of the
U.S. Department of Transportation (DOT), for the admittance of carriers
from Mexico are totally inadequate and further actions are required in
order to assure the safety of American motorists. My testimony will
focus on deficiencies in the proposed rules and recommendations for
further action. These recommendations do not conflict with meeting our
treaty obligations, but instead will improve motor carrier safety as
well as prevent unnecessary highway deaths and injuries.
Advocates has a long history of working with this Committee on a
broad range of highway safety issues and legislation to improve highway
safety, including motor carrier safety. Motor vehicles crashes are the
leading cause of death and injury for Americans between the ages of 5
and 27 and result annually in more than 41,000 deaths and 3.5 million
injuries.
In 1999, almost 5,300 people died in crashes involving large
trucks, according to the Insurance Institute for Highway Safety, and
more than 60,000 were injured (National Highway Traffic Safety
Administration, Traffic Safety Facts 1999.) When big trucks and small
passenger vehicles collide, 98 percent of the people who die are
occupants of the small vehicles. In fact, 23 percent--almost one in
four--of all passenger vehicle fatalities in 1999 that occurred in
multiple-vehicle crashes were the result of collisions involving big
trucks with small vehicles.
Large trucks, year after year, are dramatically over-represented in
crash figures and disproportionately contribute to highway deaths,
injuries, and property damage losses. A special study just completed
for the FMCSA only a few months ago finally quantified the enormous
losses we suffer as a nation each year because of truck crashes. The
agency concluded that large truck crashes cost the U.S. over $24
billion every year from loss of life, use of medical and emergency
services, property damage, and reduced productivity.
In recognition of the enormous personal and financial toll of
deaths and injuries related to truck crashes, the Senate Commerce,
Science and Transporation Committee advanced legislation in the 106th
Congress to address the severity of the large truck crash problem. The
Motor Carrier Safety Improvement Act of 1999 (the 1999 Act), created a
new agency within the U.S. Department of Transportation, FMCSA, and
gave the agency a clear mission and specific mandates intended to stem
the tide of human losses attributed to truck crashes.
The FMCSA was created by Congress with the express mission:
Lto reduce the number and severity of large-truck involved
crashes through more commercial motor vehicle and operation
inspections and motor carrier compliance reviews, stronger
enforcement measures against violators, expedited completion of
rulemaking proceedings, scientifically sound research, and
effective driver's license testing, recordkeeping and
sanctions.
Motor carrier Safety Improvement Act of 1999, Section 4.
Furthermore, both the previous and the current Secretary of
Transportation have endorsed a goal to reduce truck crash fatalities by
as much as 50 percent by the end of 2009.
Unfortunately, little progress has been made towards meeting this
goal or fulfilling important mandates contained in the 1999 Act. Since
1996, deaths from big truck crashes have been holding at above 5,000
per year. Also, many of the congressionally-mandated responsibilities
given to the agency have been met with insufficient actions while
statutory deadlines have been delayed or completely ignored by FMCSA.
The lack of preparedness by the FMCSA for opening the NAFTA borders is,
in many cases, related to the agency's apparent indifference to several
of these statutory mandates.
Adequately preparing for opening the southern border is especially
important in light of the numerous studies by the Inspector General of
the U.S. DOT, the General Accounting Office (GAO), and public interest
groups, as well as media stories that have documented serious, life-
threatening and pervasive deficiencies at the border crossings. These
include insufficient federal and state enforcement personnel to staff
the borders; too few inspections and too many trucks put out of
service; no permanent inspection facilities at any border crossing
outside of California; unreliable and unavailable data on the safety of
motor carrier companies and drivers; and the absence of a basic system
of motor carrier safety oversight in Mexico.
The Decision of the NAFTA Arbitral Panel Permits the United States to
Apply Different Standards to Uphold Safety
While the NAFTA arbitration panel found the United States in
violation of its treaty obligations, it also found that the United
States may have different admission procedures for Mexican carriers to
ensure that these carriers comply with U.S. regulations. The NAFTA
arbitration panel indicated it was acceptable for the United States to
individually assess each application submitted by a carrier from Mexico
to operate in the interior United States and refuse to issue operating
authority if a particular carrier will not be in compliance with U.S.
safety regulations. Paragraphs 300 and 301 of the ruling clearly allow
the U.S. to apply, if found necessary, different, more stringent safety
standards to ensure that the U.S. interest in upholding the safety and
welfare of its citizens is fulfilled in awarding operating authority to
Mexican motor carriers. Moreover, the ruling explicitly states that the
U.S. does not have to provide favorable operating authority
consideration to all or even any specific number of applications from
Mexico. Mexican motor carriers which fail to meet reasonable, case-by-
case examination of their safety condition may be barred from operating
in the U.S. This panel ruling is a baseline legal interpretation of the
rights and responsibilities of the U.S. in controlling cross-border
motor carrier safety.
It is clear why the NAFTA arbitration panel reached this decision
to openly interpret NAFTA to allow the U.S. to uphold the safety of its
citizens by applying more strenuous safety requirements to Mexican
motor carriers applying for U.S. operating authority. The panel had
been provided with information gathered by the U.S. government showing
the continuing poor record of Mexican motor carriers operating in our
country and the almost total lack of a safety oversight system put in
place by the Mexican federal government to generate reliable
information about the safety records of Mexican truck and bus
companies. In back-to-back filings with the NAFTA Secretariat on June 8
and 9, 2000, our government documented the lack of a government-
administered safety regime in Mexico. It emphasized that roadside
inspections of trucks coming into the U.S. from Mexico were completely
unequal to the task of identifying which carriers were dangerous. In
fact, our country's statements for the record stressed that even a
company using new trucks in U.S. operations, which are more likely to
pass roadside inspections, nevertheless did not ensure that it would
operate safely once it had free operating privileges. Instead, the U.S.
government stated that only on-site inspections of the company's
operations at their places of business, with direct evaluation of their
crash experience and other carrier operating information, could provide
the basis for judging the safety of any Mexican trucking firm. Most
importantly, the U.S. asserted in its June 9, 2000, filing that:
LNo review of a Mexican motor carrier based solely on an
unverifiable application for operating authority can give the
United States a sufficient level of confidence regarding the
safety of that carrier's vehicles, no matter how detailed an
application is required. Secretariat File No. USA-MEX-98-2008-
01, June 9, 2000 (emphasis supplied).
FMCSA Is Following a Course of Action That Degrades Safety and Ignores
Procedures Permitted by the NAFTA Arbitral Panel
Only a year after the U.S. made this statement in its filing, the
FMCSA, charged with protecting the safety of the American people
through policies and regulations designed to enhance motor carrier
safety to the highest degree, as directed by Congress in Section 101 of
the Motor Carrier Safety Improvement Act of 1999, ignored our own
government's position on the unacceptability of paper applications for
ensuring public safety and for making awards of operating authority.
The FMCSA has proposed a dangerously flawed plan for granting new
operating authority exclusively for motor carriers from Mexico. The
plan asks only for uncorroborated responses from applicant companies
that they understand and will comply with the entire range of driver,
vehicle, insurance, hazardous material, and other legal and safety
requirements for freight and passenger transportation in the U.S. The
agency intends to accept applications that are checked ``yes'' in the
appropriate places as the sole basis for awards of operating authority
to Mexican truck and bus companies. In fact, there are more than five
pages of questions in the Safety Certifications section of the
application for both interstate and border zone motor carriers
regarding an applicant's knowledge of, and intention to follow U.S.
regulations. However, there is only an option to answer ``yes'' on the
application. Regarding questions concerning safety practices, driver
qualifications, hours of service, drug and alcohol testing, vehicle
condition and hazardous materials training and operation procedures,
there is no option to even respond ``no.''
Safety Compliance Reviews of Carriers from Mexico Will Be Conducted
after FMCSA Grants Operating Authority
No initial safety compliance review will be conducted to determine
whether these trucking and bus firms from Mexico actually understand
and can comply with U.S. safety requirements before they operate on our
streets and roads. During 18 months or more of U.S. operations, the
FMCSA proposes to conduct safety compliance reviews. However, these
safety audits will often not be conducted at the motor carrier's place
of business and the agency will still rely almost entirely on a review
of the records which the FMCSA will ask Mexican companies to bring to
locations within the U.S. Advocates strongly opposes this approach and
supports a meaningful audit system that relies on an on-site evaluation
and inspection of the carrier at its place of business.
FMCSA officials have stated that the purpose of the 18-month
interval is to allow the agency to compile inspection and truck crash
information on carriers during its operation in the United States.
Using the American motoring public as a safety experiment with
inexperienced foreign carriers would never be tolerated in any other
mode of surface and air transportation or in any medical testing
protocol. Yet, the FMCSA plans to go forward with this dangerous
proposal.
This is not a system of safety assurance. This proposed approach to
the safety management of thousands of Mexican trucks and buses is
instead an award of an 18-month safe harbor for potentially dangerous
vehicles and drivers. Permitting many thousands of new entrants into
the U.S. is not a zero-sum safety proposition. These trucks and buses
will increase their annual travel in the U.S. by more than an order of
magnitude over the current annual mileage accrued by trucks and buses
operating only in our southern border zone. This means that the
exposure of the American people to crashes with trucks and buses from
Mexico will dramatically increase.
Comparisons Between Mexico and Canada Regarding Commercial Carrier
Safety Oversight Are Misleading
Critics have argued that differential treatment has been accorded
Canada for cross-border commercial transportation while disfavoring
Mexican freight and passenger motor carrier services in U.S. interstate
commerce. Mexico, to date, has operated under the terms of restricted
motor carrier access rights because there is no functioning safety
regime in Mexico implemented and enforced by the government.
Canadian motor carrier safety standards are very similar to those
in the U.S. unlike Mexico. For example, Canada and the U.S. recognize
the same set of commercial vehicle safety inspection criteria which are
applied on each side of the northern border. Moreover, safety
compliance reviews using essentially the same standards for vehicle and
driver safety are conducted by the other country in the host country at
the place of business of the Canadian or U.S. domiciled carrier. Last,
both countries have automated, reciprocal access to each other's
databases of motor carrier registrations, roadside inspections results,
safety ratings of motor carriers, driver license files, and violations/
convictions records.
Currently, there are no databases comprising these areas of safety
oversight in Mexico which could be used by U.S. safety auditors and
inspectors to review the safety compliance records of motor carriers
from Mexico. The effectiveness of the Canadian system of motor carrier
oversight and regulation is demonstrated in the lower out-of-service
rate for their trucks compared to the out-of-service rate for U.S.
trucks.
Advocates' Recommendations
FMCSA must conduct an on-site safety review of carriers from Mexico
seeking interstate operating authority in the United States.
Prior to granting operating authority to any Mexican carrier, the
FMCSA must conduct an on-site safety compliance review. A safety
compliance review should be conducted at the carrier's place of
business with independent federal verification of driver license
validity, equipment safety, inspection and repair facilities, safety
management controls, and interviews with on-site company officials, in
addition to other elements of a comprehensive safety compliance effort.
A careful case-by-case review of motor carrier companies from Mexico as
provided by the February 2001 NAFTA arbitration panel will help to
ensure that only the safest companies and drivers will be permitted to
share the road with American motorists.
Advocates is not alone in calling for these up-front safety audits
of Mexican motor carrier safety capabilities. Major national groups and
even trucking organizations have called for initial, case-by-case
safety compliance reviews of new entrant applicants or have opposed
reliance on nothing more than a simple, unverifiable paper application
for gaining operating authority. In addition to Advocates, these
include the American Association of Motor Vehicle Administrators, the
Commercial Vehicle Safety Alliance (CVSA), the Transportation Lawyers
Association, the Transportation Consumer Protection Council, the
International Brotherhood of Teamsters, the California Highway Patrol
(CHP), the American Bus Association, the Amalgamated Transit Union, the
Owner-Operator Independent Drivers Association, the AFL-CIO, AAA,
Citizens for Reliable and Safe Highways, the Arizona Department of
Public Safety, Public Citizen, and the American Insurance Association.
All of these organizations agree with our own U.S. government's
position taken in June 2000 that an unverified paper application cannot
ensure the safety of the American people on their highways and streets.
And hundreds of ordinary rank-and-file citizens have written to the
U.S. Department of Transportation decrying the proposal of the FMCSA to
allow cross-border trucking and passenger transportation operations
without substantive safety compliance reviews. Without these initial
safety compliance reviews conducted on-site in Mexico at a company's
place of business, we are needlessly endangering the lives of both U.S.
citizens on their own roads as well the lives of the drivers who will
operate Mexican trucks and buses.
Strengthen Border Inspection Facilities.
Most states, including the border states, are completely unprepared
to address the increased traffic that will result from opening the
border. Texas, which has the most border crossings and the highest
traffic volume of carriers from Mexico, does not have permanent
inspection facilities at any crossing point. The Texas Legislature
recently passed a resolution asking Congress to recognize the
tremendous impact of opening the border to unrestricted travel by
Mexican carriers and requested funding to pay for the additional
infrastructure costs at the border and on its roads.
Of the current 27 recognized border crossing points, only two (2)
have full inspection (Level One Inspection) facilities, both in
California. All 27 border crossing points should have the facilities
available for performing Level One inspections on a substantial
percentage of Mexican-domiciled carriers seeking entry into the U.S.
for either commercial zone or nationwide operation. Only a full
inspection which intensively evaluates truck equipment and driver
safety rather than only Level Two (simple ``walk-around'' or
``eyeball'' inspections) or only Level Three (only driver
qualifications evaluations) can both detect serious safety deficiencies
and create a deterrent effect for other Mexican-domiciled carriers who
attempt to evade U.S. safety, insurance, licensing, and operating
authority requirements. No Mexico-domiciled motor carriers should be
granted access to the U.S. when the border is fully open unless all
U.S. border crossings have Level One inspection facilities in place.
Require Weight Scales at All U.S. Border Crossings to Confirm that Each
Mexico-Domiciled Truck or Bus Conforms to Federal Weight Limits
Pursuant to 23 U.S.C. Sec. 127.
Mexico-domiciled trucks and buses are permitted to operate in
Mexico at both axle and gross weights which are far higher, and with
axle spacings which are more lenient, than permitted in the U.S. under
federal law and regulation governing commercial vehicle travel on the
Interstate system. Since ample research, including research sponsored
by the Federal Highway Administration, has shown that heavier,
overweight trucks have more crashes and crashes of greater severity,
increased weight certification at the border of Mexico-domiciled trucks
and buses can prevent crashes once motor carriers from Mexico operate
throughout the U.S. It would be preferable if money appropriated and
spent for installing weigh scales at all border crossing points would
be Weigh-In-Motion (WIM) systems so that Mexico-domiciled truck and bus
weight verification would be automatic and performed for each vehicle
entering the U.S.
Direct the U.S. DOT Secretary to Implement Section 210(b) of the Motor
Carrier Safety Improvement Act of 1999 by Issuing a Final
Regulation After Notice-and-Comment Rulemaking that Establishes
a Proficiency Test of All New Foreign and Domestic Motor
Carriers Applying for U.S. Operating Authority.
Currently, Section 210(b) directs the Secretary to conduct
rulemaking to establish minimum requirements for new entrant applicant
motor carriers, but it only suggests that the Secretary may consider
adopting a proficiency test for new carriers to test their knowledge of
U.S. federal safety standards. A safety proficiency test for all new
foreign and domestic motor carriers applying for U.S. operating
authority could supplant the Federal Motor Carrier Safety
Administration's proposed reliance on uncorroborated certifying
statements by new entrants that they are knowledgeable about and will
conform to U.S. motor carrier safety law and regulation. Successful
passage of a safety knowledge proficiency examination coupled with a
preliminary safety audit could be the cornerstones
of a federal program of safety evaluation to ensure that new motor
carriers have safe equipment, use legally licensed drivers, implement
acceptable blood and alcohol testing programs, provide adequate safety
oversight and regulatory compliance mechanisms, and employ only
managers and drivers who are knowledgeable about U.S. motor carrier
safety standards.
Direct the U.S. DOT Secretary to Implement Section 211 of the Motor
Carrier Safety Improvement Act of 1999 by Providing for the
Training and Certification of Sufficient Private Contractors
for Conducting Safety Audits On the Mexico-U.S. Border.
Even the addition of another 80 inspectors to southern border
inspection points may not be sufficient to augment the number of border
crossing safety inspections and of motor carrier safety audits
performed at the business locations of Mexico-domiciled carriers in
order to ensure detection of dangerous trucks and buses. A sufficient
number of inspections and timely safety audits is necessary to create a
substantial deterrent effect for carriers who are tempted to evade U.S.
safety and other motor carrier laws and regulations. Amplifying the
number of federal and state inspectors with private, third-party
contractors will strengthen the overall U.S. motor carrier inspection
and safety auditing program at the southern U.S. border. Currently,
Section 211 directs the Secretary to complete rulemaking to improve
training and provide for certification of safety auditors. The section
also provides that some of these auditors can be private contractors.
Adequate controls can be placed on the supplementary use of private
contractors to avoid possible problems of fraud and abuse, such as
allowing only federal inspectors to award an actual safety rating.
Before the southern borders are opened, the Administration needs to
certify that safety is not compromised. These recommendations cover the
very basic safeguards that every American on our roads and highways
deserves, and indeed, demands.
That concludes my testimony. I would be pleased to answer any
questions for the Committee.
______
Prepared Statement of Jim Johnston, President,
Owner-Operator Independent Drivers Association, Inc.
Summary
On behalf of 66,000 independent small business truckers who are
members of the Owner-Operator Independent Drivers Association
(``OOIDA'' or ``Association''), I am pleased to submit this testimony
regarding the operation of Mexican commercial vehicles within the
United States.
OOIDA would like to first emphasize that the proposal at issue
under the North American Free Trade Agreement (``NAFTA'') is not simply
the opening of the border to Mexican trucks. At issue is the opening of
all interstate highways and local roads throughout the United States to
Mexican trucks. Only from this perspective do you begin to understand
the great impact that Mexican trucks will have on our country. OOIDA
believes that no matter how strong our border enforcement is, the
majority of problems our country will face with Mexican trucks will
occur within the interior of the states.
It is well known that Mexican carriers and truckers are not
required to meet, and frequently fail to meet, U.S. motor carrier
safety standards. In response to these safety concerns, the Federal
Motor Carrier Safety Administration has proposed that Mexican carriers
undergo a ``safety review'' in the first 18 months of their operation
in the United States. Some in Congress have suggested that this review
must occur before a Mexican carrier begins its U.S. operation. Although
useful and important, this exercise in paperwork would have little
practical effect on the safety of Mexican trucks operating in the
United States.
The Senate Transportation Appropriations Subcommittee has
recommended a much more stringent pre-qualification of Mexican carriers
and drivers, a stronger enforcement presence at the border, better
tools for enforcement personnel, and consequences for Mexican carrier
violation of U.S. laws. These are very positive and necessary actions,
but we recommend that more needs to be done.
There are NAFTA trade rules that implicate Customs and Immigration
issues which are just as important as the safety issues. Specific
restrictions in the NAFTA agreement proscribe the activities and
movements of Mexican trucks and drivers in the United States.
Enforcement of these provisions will require the efforts of the Customs
Service and the Immigration and Naturalization Service in coordination
with state enforcement officials. No such effort has been proposed or
contemplated.
Another overlooked issue is the revenue from fuel taxes, heavy
truck excise taxes, and highway user fees that the states and the
federal government will lose. These are important revenue sources that
go to build and maintain our highways and bridges. When Mexican trucks
come into the United States fueled up with cheap Mexican diesel, they
avoid paying those taxes and replace American trucker who used to pay
those taxes. There is no plan in place to address this consequence of
NAFTA.
If these issues are not addressed, OOIDA members believe that we
will see thousands of unsafe Mexican trucks operating virtually
uninhibited on our highways. These trucks will not only endanger the
safety of our highways but also create an issue of fairness to U.S.
truckers who pay their fair share of taxes and comply with higher
safety standards.
The following is a more detailed discussion of these issues.
U.S. Enforcement Efforts at the Border are Inadequate.
The DOT Office of the Inspector General recently published a report
that detailed the inadequacy of our border enforcement efforts. [See
Interim Report on Status of Implementing the North American Free Trade
Agreement's Cross-Border Trucking Provisions. Report Number: MH-2001-
059, May 8, 2001]. It reported that during the fiscal year 1997,
commercial trucks made 3.5 million crossings into the United States at
the southern border. Federal and state inspectors performed inspections
on less than 0.5 percent of those trucks. Furthermore, 44 percent of
the trucks inspected were removed from service because of serious
safety violations. These statistics demonstrate both our weak
enforcement presence on the border and the poor physical condition of
Mexican trucks.
Currently, the only permanent inspection facilities at the U.S.-
Mexico border are the state run facilities in California. Of the other
25 border crossings, the Inspector General's report observed that few
have a dedicated telephone line to access transportation databases.
Furthermore, a majority of border facilities lacked the physical space
in which to inspect or place out of service more than two vehicles at a
time.
The DOT has proposed hiring 40 new inspectors and 40 new safety
investigators. This would bring the number up to 140 total, the level
that the Inspector General recommended were needed for Mexican truck
traffic in 1998. More substantial inspection facilities and many more
inspection personnel need to be in place before our highways are opened
to more Mexican trucks.
U.S. Enforcement Efforts Within the United States is Nonexistent
The individual states are on the front line of truck safety
enforcement. Once a Mexican truck crosses the border, each state, not
the federal government, will have the responsibility of inspecting
Mexican trucks and verifying their compliance with U.S. regulations. In
this role, it is the state enforcement personnel who must know whether
a Mexican truck and driver is operating safely and within the bounds
authorized by NAFTA.
OOIDA is aware of no effort by any state, except perhaps
California, to adequately take on the enforcement of the laws and
regulations raised by Mexican trucks. California's effort is limited to
the inspection of the vehicle. OOIDA is aware of no effort by any
federal government agency to educate the states on these issues or to
give them the authority to enforce these laws and regulations. Such
efforts must be a part of any thorough plan to allow more Mexican
trucks onto our highways.
Mexican Trucks Rarely Comply With U.S. Safety Law
There is no true equivalent of the U.S. Commercial Driver License
(``CDL'') system in place in Mexico.
While both U.S. and Mexican government officials claim Mexico's
commercial driver licensing requirements are equivalent to the U.S.
rules, statistics from border checks indicate that significant problems
exist. Lack of a valid license is the top reason for placing Mexican
drivers out-of-service (``OOS'') according to the Office of the U.S.
Trade Representative. A recent spot check by the Texas Department of
Public Safety found 9 of 12 drivers lacked valid licenses. Even if the
license is valid and legally obtained, little or no data exists in
Mexico that can accurately confirm that information. Nor can U.S.
inspectors identify the details of a driver's violation history or
accident record. They may not even be able to tell whether the license
presented belongs to the driver carrying it.
There is no viable truck safety inspection program in Mexico.
There are few if any trained Mexican commercial motor vehicle
inspectors that measure up to the U.S. standards. While the Mexican
government insists it enforces very strict commercial vehicle and
driver standards, Mexican truckers report that the main condition to
compliance is the financial persuasion of enforcement officials.
Although Mexico joined the Commercial Vehicle Safety Alliance
(``CVSA'') and has agreed to adopt CVSA training, inspection and
enforcement practices, the CVSA has failed, despite repeated attempts,
to obtain inspection data from the Mexican government. There is no
proof that Mexico is inspecting any vehicles or drivers. Unless Mexico
quickly makes significant strides to ensure the safety of Mexican motor
carrier equipment and drivers, the entire burden of safety compliance
will fall squarely on U.S. enforcement efforts.
There is no drug and alcohol testing program comparable to that of the
U.S. program in Mexico
U.S. drivers are extensively tested for use of controlled
substances and alcohol. Although Mexico claims to have a program in
place, the Association believes they have no means or will to enforce
the rules. In fact, it is reported that Mexican drivers frequently use
drugs in order to drive longer hours. Amazingly, sometimes the use of
these drugs is encouraged by their trucking employer.
It would be inherently inequitable to allow Mexican drivers to
operate in the U.S. without being subject to the same stringent
standards required of U.S. drivers. To permit a certain class of
drivers to be largely and effectively ``exempt'' from these regulations
would be a manifest injustice and place U.S. truck drivers at a
distinct economic disadvantage and all drivers at a safety risk.
Mexico has no driver hours-of-service regulation.
There is no way to begin to verify how many hours a Mexican driver
has operated in any given day or week. It has been reported that
Mexican drivers commonly operate 16 to 20 hours a day or more.
Regardless of whether Mexican drivers adhere to the U.S. standard while
operating in the U.S., there is no way of knowing how long the driver
had been driving prior to entering our country.
Mexico Has No Viable Vehicle Size and Weight Enforcement
Mexico has no effective weight enforcement for its vehicles. There
are no fixed weigh station facilities in Mexico, and none on the U.S.
side at the border. OOIDA fears that an influx of overweight Mexican
trucks will cause a significant degradation in U.S. highway safety and
the infrastructure.
Mexican truckers who know or learn their way around state scales
could conceivably travel throughout the United States and back into
Mexico without ever being weighed. Fixed weigh stations at border
crossings must be established in the United States to assure that
Mexican trucks meet federal weight restrictions. FMCSA did not consider
the additional costs of these facilities in their budget proposal.
Millions of dollars in additional funds will be required to erect these
weigh station facilities.
Mexican Trucks Avoid State and Federal Fuel Taxes and Highway User Fees
Mexican carriers have in the past installed additional fuel tanks
to carry extra high sulfur fuel purchased at a much lower cost in
Mexico. These vehicles can travel hundreds and even thousands of miles
during each trip on U.S. highways without ever buying fuel in the U.S.
In doing so, these Mexican trucks avoid paying any state and federal
fuel taxes. Furthermore, they take the place of U.S. trucks and drivers
that currently do pay those taxes and every other tax levied on us as
citizens, including state and federal income and payroll taxes.
The principal way that highways and bridges are financed in the
U.S. is through taxes assessed on the trucking industry. Fees and taxes
on highway use are primarily collected through registration fees and
through taxes on fuel consumed under the International Registration
Plan (``IRP'') and the International Fuel Tax Agreement (``IFTA''),
respectively. Since Mexico does not participate in either plan, the
fees and taxes cannot be collected under the agreements, and U.S. truck
owners bear the entire cost of highway repair and new highway
construction.
Mexican Trucks Already Violate NAFTA Rules
Once a Mexican truck passes through the border, the United States
has no plan to ensure that they only perform the limited operations
allowed by NAFTA. Under NAFTA, a Mexican truck can only deliver a
cross-border shipment to a destination in the United States, pick up
another shipment for return to Mexico, or drive through the United
States on the way to Canada. We have no system in place to ensure they
adhere to these restrictions.
When a Mexican truck driver begins to violate NAFTA by hauling
between two points within the United States, he or she has begun to
perform domestic work within the U.S. and must have proper
documentation (such as a green card) to do so. When a Mexican truck
begins to haul between two points within the United States,
``technically'' that truck has been imported into the U.S. and all
applicable duties and tariffs must be paid on it.
The INS and Customs Service are unprepared to supervise Mexican
truck compliance with these rules. As the Inspector General of the
Department of Transportation has reported, Mexican trucks, ostensibly
allowed into the country for shipments to the commercial border zones,
are already flaunting this NAFTA rule by operating throughout the
United States.
Aside from the initial contact when a truck enters the United
States at the border, U.S. Customs and INS personnel rarely, if ever,
come in contact with a foreign-based motor carrier's vehicles and
drivers. Most state motor carrier enforcement personnel, those who
regularly encounter commercial vehicles in the interior of the country,
are trained only to enforce federal and state vehicle and driver safety
regulations. Few consider the origin and destination of a load, and how
the movement may relate to the motor carrier's country of domicile.
Furthermore, state enforcement agencies appear unwilling at this point
to take on the task of enforcing cabotage restrictions. Even if state
CMV enforcement agencies received the necessary funding, and inspectors
were properly trained and had the requisite authority, there is simply
not enough staff to catch more than a token number of violators.
There Will Be No Reciprocal Benefit From Mexico To the United States
Under NAFTA each country has promised the others to give equal
access to its markets. Practically speaking, however, Mexico is not
prepared to give American trucking companies the same kind of safe and
secure highways as their trucks will find in the United States. The
reputation of the crime rate in Mexico and of Mexican law enforcement
inspires few U.S. truckers to risk their own safety and security by
trucking south of the border. We have attached an article that
describes the routine danger of truck shipments being hijacked in
Mexico.
In terms of trucking, the benefits of opening the border all flow
toward Mexico. Mexican truckers gain access to new markets and
customers on the safest and most open highway system in the world. In
return, the U.S. truckers are invited to travel more dangerous highways
while the U.S. government gets the burden of performing safety
enforcement for both countries.
Conclusion
Allowing Mexican trucks into the United States at this time is not
in the best interest of the American public or U.S. drivers and small
business truckers. Truck safety and highway conditions will suffer
greatly. Mexican motor carrier and driver safety regulations are either
inadequate or non-existent. Allowing the border to open without
correcting these inadequacies will result in a substantial decline in
truck safety.
Border enforcement capabilities will need to be strengthened prior
to allowing Mexican trucks into the U.S. Unless adequate personnel are
deployed at border zones and additional funding is committed to provide
permanent border weight and inspection facilities, there will be no way
to ensure that Mexican carriers comply with United States laws and
regulations. The U.S. Senate Appropriations Committee has recommended
some strong, realistic rules to address these safety issues.
It is OOIDA's belief that few Mexican carriers are educated in the
numerous federal and state laws they will encounter. While many of
these regulations and laws are within the control of the FMCSA,
implementation of the entry provisions of NAFTA will require a
cooperative effort among members of the FMCSA, INS, U.S. Customs
Service and state enforcement officials. Coordination between the
federal and state governments will also be necessary to recover the
fuel taxes and user fees not paid by Mexican trucks.
Allowing Mexican trucks into the U.S. should not compromise the
safety of our highways. Until measures are put in place to ensure that
Mexican trucks and drivers entering the U.S. are in compliance with
NAFTA trade rules and all United States transportation laws and
regulations, OOIDA remains adamant that the United States-Mexico border
remain closed. Thank you for the opportunity to present these comments.
______
Prepared Statement of James La Sala, International President,
Amalgamated Transit Union, AFL-CIO
Mr. Chairman and Members of the Committee:
On behalf of the Amalgamated Transit Union (ATU), which represents
over 175,000 members maintaining and operating bus, light rail, ferry,
intercity bus, school bus and paratransit vehicles in the United States
and Canada, including over 5,000 Greyhound employees operating from 88
cities throughout the United States, I am pleased to submit this
testimony on whether Mexican-domiciled motor carriers should be allowed
to operate throughout the United States. In addition, I thank you for
holding a hearing on this crucial safety and fairness issue.
Initially, I take this opportunity to affirm our longstanding
commitment to the safety and security of U.S. bus passengers and
operators, as well as the rest of the traveling public. As such, we
welcome the opportunity to work with this Committee, Congress and the
Administration, toward a safe, effective and fair implementation of the
cross-border passenger motor carrier provisions of the North American
Free Trade Agreement (NAFTA). At this time, however, the ATU is firmly
opposed to the proposed opening of the U.S.-Mexico border to cross-
border passenger motor carrier operations.
As you know, the Senate Appropriations Committee reported out the
FY 2002 Transportation Appropriations bill (S. 1178) last week,
including in the bill several provisions drafted by Senator Patty
Murray, Chair of the Transportation Appropriations Subcommittee, to
address the issue of motor carrier safety with respect to Mexican
cross-border truck and bus operations. These provisions are similar to
those included in House Resolution 152. In addition to these pending
bills, the House Transportation Appropriations bill (H.R. 2299) that
passed the House of Representatives a few weeks ago includes language
barring the U.S. from granting operating authority to any Mexican motor
carriers. The ATU supports all of these bills which address many of the
ATU's safety concerns. However, the ATU does have several concerns,
specific to the intercity bus industry, that may require separate
legislative action. These concerns are discussed below.
Specifically, it is the position of the ATU that:
(1) LMexican buses should not be authorized to operate in the
U.S. absent reciprocal treatment of U.S. buses by Mexico;
(2) LMexican buses must be certified as safe before the first
day they are authorized to operate in the U.S.;
(3) LThe U.S. border crossing must be adequately equipped and
staffed and inspectors must be fully trained before operating
authority can be granted to any Mexican bus operation; and
(4) LU.S. subsidiaries of Mexican companies must be subject to
the same standards and reviews as their Mexican parent company.
Mexican Buses Should Not be Authorized to Operate in the U.S. Absent
Reciprocal Treatment of U.S. Buses by Mexico
As you know, on February 6, 2001, a NAFTA dispute resolution panel
ruled that the U.S. violated its NAFTA obligations by not implementing
the NAFTA cross-border trucking provisions. As a result, the
Administration has moved forward with a plan, as evidenced by the
implementation rules recently proposed by the Federal Motor Carrier
Safety Administration (FMCSA), to fully open the border to both Mexican
trucks and buses by January 2002.
It is important to note that the NAFTA panel decision concerned
only the implementation of NAFTA's cross-border trucking provisions and
no similar ruling has been issued with respect to the cross-border
passenger motor carrier provisions. As such, there is no need to
hastily open the border to Mexican buses without first ensuring not
only their safe and legal operation, but also a level playing field for
U.S. competition.
In fact, granting operating authority to Mexican-owned buses at
this time is premature under the terms of NAFTA, which provides that,
upon opening the border, Mexico is obligated to provide the ``same
treatment'' to U.S. bus firms as the U.S. provides to Mexican firms.
However, the Mexican and U.S. governments have taken different
positions on several important operational issues that would result in
vastly different treatment of the foreign bus operations in each
country, involving access to bus terminals and the ability to provide
service to multiple points within each country.
Specifically, the Mexican government has taken the position that it
would only authorize U.S. bus companies to provide cross-border service
to one point in Mexico. In contrast, the position of the U.S.
government, made evident by the FMCSA's proposed implementation rules,
is to authorize Mexican operators to provide cross-border service to
multiple points in the U.S. Additionally, while the U.S. has not
proposed to place any restrictions on the ability of Mexican companies
to own or operate bus terminals in the U.S., Mexico's position has been
to strictly prohibit foreign ownership or operation of Mexican bus
terminals.
The different treatment accorded foreign bus companies by the two
countries would result in unfair competition and would be a violation
of the ``same treatment'' requirement imposed by NAFTA. As such, the
U.S. should not open the border to Mexican buses until Mexico has
agreed to provide reciprocal authority to U.S. owned or controlled
passenger motor carriers operating in Mexico.
H.R. 2299 addresses this issue by simply prohibiting the opening of
the border. Likewise, H. Res. 152 addresses the issue by requiring that
a reciprocity agreement be reached by Mexico and the United States
before operating authority can be granted to Mexican bus operations. S.
1178, however, does not address this important issue of reciprocity.
Mexican Buses Must be Certified as Safe Before the First Day They
Operate in the U.S.
The Administration is proposing to authorize Mexican passenger
motor carriers to operate in the U.S. for up to 18 months before
receiving a safety review. Further, under the FMCSA's proposed rules,
those carriers who do not receive a review within the 18 month time
frame, will be allowed to operate in the U.S. for an indefinite period
until a safety review is conducted. At the same time, the FMCSA
recognizes that ``Mexican carriers have, for the most part, little or
no experience operating under regulations comparable to the [Federal
Motor Carrier Safety Regulations (FMCSRs)]'' (66 FR 22372).
The results of an audit conducted by the Department of
Transportation's (DOT) Inspector General (IG), released in May of this
year, back up the FMCSA's observation. Specifically, the report stated
that the percentage of Mexican trucks found to have safety deficiencies
is 50 percent higher than that of U.S. trucks. (Report No. MH-2000-059,
May 8, 2001). Like Mexican trucks, Mexican buses fail to comply with
U.S. safety requirements for critical safety items such as brakes, fuel
systems, windows and emergency exits. Currently, there is only one
Mexican-manufactured bus model that is known to meet the Federal Motor
Vehicle Safety Standards (FMVSS) and the FMCSRs.
Mexican buses must be safe on the first day they are authorized to
operate in the U.S. Given the evidence from the IG audit and the
observation of the FMCSA that these carriers do not and are not
prepared to conform their operations to U.S. standards, we cannot allow
these buses to operate on our roads and highways for 18 months, or
possibly longer, without first determining that they meet our drug and
alcohol testing, driver, equipment, hours of service, fatigue and other
safety standards. Failure to do so will seriously threaten the safety
of U.S. bus passengers and others traveling our nation's roads. All
three bills, H.R. 2299, H. Res. 152 and S. 1178, adequately address
these safety concerns.
The U.S. Border Crossing Must be Adequately Equipped and Staffed and
Inspectors Must be Fully Trained Before Operating Authority Can
be Granted to Any Mexican Bus Operation
As the above-referenced IG study has shown, the U.S. is ill-
prepared to handle the inspection and enforcement needs that will
result from the increase in Mexican motor carrier traffic entering the
U.S. when the border is fully opened. According to the IG, there are
only two permanent inspection facilities on the U.S.-Mexico border,
both of which are state facilities in California. Of the 25 remaining
border crossings, 20 do not have dedicated telephone phone lines to
access safety databases, such as those for validating a commercial
driver's license. Further, almost all of these inspection facilities
lack adequate space to inspect vehicles and/or place dangerous vehicles
out of service. In addition, there are not currently enough inspectors
to adequately staff border operations.
Despite these obvious deficiencies at our border, the
Administration has not proposed a safety enforcement and compliance
program that will ensure the safe operation of Mexican carriers
authorized to provide cross-border services into the U.S. Such a
program must be in place and must be adequately funded before operating
authority is granted to any Mexican bus or truck operation.
In addition to being able to stop unsafe vehicles from crossing the
border, the U.S. must be prepared to ensure that the drivers of
Mexican-owned passenger motor carriers are legally allowed to operate
the authorized service. While the Administration has proposed to allow
Mexican drivers possessing a valid Licencia Federal de Conductor (LFC)
to operate cross-border bus service into the U.S., it is well
established law that passenger motor carriers must use U.S. citizens or
resident aliens to provide domestic point-to-point passenger service in
the U.S., even if that service is part of an international operation.
The U.S. must takes steps to ensure that Mexican carriers are not only
aware of this restriction, but that they are also in compliance with
this important immigration law. To accomplish this, FMCSA must work
with the Immigration and Naturalization Service (INS) to develop
mechanisms that effectively enforce this law, which protects the safety
of U.S. travelers and U.S. worker jobs. Such an enforcement system must
be in place, and publicized, before any operating authority, domestic
or cross-border, is granted to Mexican-owned carriers.
Again, H.R. 2299 addresses this issue by completely prohibiting the
granting of operating authority to Mexican buses and trucks and both H.
Res. 152 and S. 1178 would ensure that the U.S. border crossing is
adequately equipped and staffed and that inspectors are fully trained
before operating authority is granted to any Mexican bus or truck
operation.
U.S. Subsidiaries of Mexican Companies Must be Subject to the Same
Standards and Reviews as Their Mexican Parent Company
In its proposed rule makings, FMCSA has specifically exempted from
the special application procedures and oversight, U.S. subsidiaries of
Mexican companies that provide domestic point-to-point service in the
U.S. These are the carriers that will have the most impact on U.S.
travelers since they will be providing both domestic and cross-border
service to those passengers. As such, their operations should, at a
very minimum, be subject to the same level of scrutiny and review, with
respect to safety concerns, as their parent company and other cross-
border carriers.
In fact, equal application of these rules to Mexican-owned
subsidiaries in the U.S. is necessitated by the recent Memorandum from
President Bush to the Secretary of Transportation lifting the
moratorium on Mexican owned and controlled companies providing domestic
bus service in the U.S. In his letter, President Bush stated that all
such entities ``will be subject to the same Federal and State
regulations and procedures that apply to all other U.S. carriers.''
Unless these Mexican-owned subsidiaries are subject to the same
application and review procedures proposed for other Mexican carriers,
there will be no way to ensure that these Mexican bus companies,
carrying U.S. passengers, are conforming their operations to U.S.
standards.
Further, this exemption would result in a loophole through which
Mexican passenger motor carriers could bypass entirely safety fitness
evaluations by setting up a U.S. subsidiary that can combine its U.S.
domestic bus authority with its Mexican parent's domestic and cross-
border Mexican authority to provide an integrated domestic and cross-
border service. Again, given the observations of the FMCSA that Mexican
operators are unfamiliar with U.S. safety regulations, and therefore
must be subject to special safety scrutiny, we cannot allow these
Mexican-owned U.S. subsidiaries to operate without the thorough safety
evaluation that the FMCSA says is needed. None of the pending bills,
H.R. 2299, H. Res. 152 or S. 1178 address this issue.
Conclusion
In closing, I again emphasize the unyielding commitment of the ATU
to the safety and well-being of the traveling public. It is for that
reason, as well as those discussed above, that the ATU is opposed to
the proposed opening of the U.S.-Mexico border to Mexican-owned bus
operations until such time as our government can ensure to the American
people that buses traveling into the U.S. from Mexico, as well as
Mexican-owned buses operating throughout the U.S., comply with all
safety, health and labor requirements as mandated under U.S. laws and
regulations, and until the U.S. and Mexico have come to an agreement
with respect to ensuring that the two countries provide the ``same
treatment'' to foreign bus companies operating in each country.
Again, we express our thanks to the Committee for the opportunity
to testify on this matter and we look forward to working closely with
this Committee, Congress and the Administration to ensure a safe and
fair implementation of the NAFTA cross-border passenger motor carrier
provisions.
______
Prepared Statement of Edward Wytkind, Executive Director,
Transportation Trades Department, AFL-CIO
My name is Edward Wytkind. I am the Executive Director of the
Transportation Trades Department, AFL-CIO (TTD). On behalf of the TTD
and our 33 affiliated unions,\1\ I want to thank you Chairman Hollings
for holding this hearing and for giving transportation labor an
opportunity to share our views on the current proposals to allow
Mexican commercial trucks and buses to operate in the U.S.
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\1\ A complete list of TTD affiliates is attached.
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TTD affiliates represent hundreds of thousands of truck and bus
drivers employed in all areas of our nation's transportation system. As
such, our collective interest in this issue and in promoting
transportation safety is substantial. Let me state up front our
continuing opposition to opening up the U.S.-Mexico border to
unencumbered cross-border traffic. We remain concerned that the U.S.
government cannot ensure that Mexico-domiciled motor carriers will
comply with all safety and health requirements as mandated under U.S.
laws and regulations. We urge that the border remain closed until
Mexico fully brings its safety regime to an acceptable standard and the
U.S. substantially improves its border inspection capabilities and
infrastructure.
With that said, I think it is important that we review how we got
to this point under the North American Free Trade Agreement (NAFTA)
process. NAFTA went into effect in 1994 with provisions allowing
Mexico-domiciled motor carriers increasing access to U.S. highways.
These NAFTA provisions required the U.S. to open access to all U.S.-
Mexico border states in December 1995 and to permit Mexico-domiciled
motor carriers to travel throughout the entire United States as of
January 1,200. Until these provisions are implemented Mexico-domiciled
carriers may operate in a border commercial zone ranging from 3 to 20
miles into the U.S. to drop off loads destined for U.S. interior
states.
In 1995, due to a number of unresolved safety concerns, President
Clinton maintained limited access to the border commercial zones and
did not allow any greater access to the rest of the U.S. In 1998,
Mexico challenged the President's decision before a NAFTA tribunal,
demanding that the U.S. abide by its NAFTA commitments and open its
highways. On February 6, 2001, the final NAFTA panel report ruled that
the safety of Mexico-domiciled trucks was a legitimate concern and
provided that the U.S. could, consistent with NAFTA, promulgate
stricter requirements for registration of Mexico-domiciled carriers
than are used for the registration of U.S. carriers. It also held that
the U.S. was required to start processing foreign motor carrier
applications on a case-by-case basis. Although this particular case
only concerned the trucking provisions of NAFTA, it is expected that
the DOT will conclude bilateral bus passenger carrier negotiations at
the same time as the trucking negotiations.
The United States is under no legal obligation to implement the
findings of the NAFTA panel. Under U.S. law, to the extent NAFTA
conflicts with any U.S. law dealing with health, environment and worker
safety, U.S. laws prevails.\2\ Even under the terms of NAFTA, the U.S.
is entitled to disregard the panel's recommendation. Under NAFTA
dispute settlement provisions, if the U.S. does not agree to open the
border to Mexican motor carriers, it can offer to compensate Mexico
with new trade benefits and cash payments. However, if Mexico refuses
to negotiate terms of compensation, NAFTA permits Mexico to take
compensation in the form of levying reciprocal trade sanctions against
the U.S. Despite the fact that the U.S. is not required to open the
southern border to unsafe motor carrier traffic, the Bush
Administration seems poised to open the border by the end of the year.
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\2\ 19 U.S.C. Sec. 3312(a).
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This apparent decision by the Bush Administration goes against the
enormous body of evidence that far too many safety hazards remain
unresolved and that the U.S. is ill-prepared to handle the massive
influx of foreign traffic that would result from the opening of the
border. In the late 1990s, studies by the Department of
Transportation's Inspector General (``IG'') and the General Accounting
Office (``GAO'') established that Mexican transportation companies were
ill-prepared to comply with all U.S. laws and regulations. These same
studies have also exposed the fact that our government is not prepared
to carry out its enforcement and inspection responsibilities at the
border and on American highways. These facts were recently reconfirmed
by a new IG report that found that while some improvements have been
made since the IG last investigated the safety of Mexico-domiciled
motor carriers in 1998, Mexico-domiciled motor carriers are still not
as safe as U.S. carriers, and U.S. border inspection facilities are
still inadequate to investigate the safety of Mexico-domiciled motor
carriers as they cross the border.
Mr. Chairman, these are troubling facts in light of Mexico's
commitment to harmonize its safety standards to the level of the United
States and Canada. In 1994, the three NAFTA countries established a
Land Transportation Standards Subcommittee (``LTSS'') to address the
different rules and standards between the NAFTA countries. At the time,
transportation labor was concerned that the LTSS had the potential of
lowering U.S. highway and other transportation safety standards. Our
goal has been the adoption of a common set of standards that raises
each trading partner's existing transportation safety standards to the
highest common denominator found in any of three countries. In doing
so, strong safety standards guarantee the fair trade necessary to
protect and promote the well-being of citizens in each of the signatory
countries.
However, to date this committee has not completed its work and
certainly has not accomplished a leveling-up of the Mexican highway
standards. Mexico has no hours-of-service restrictions, roadside
inspections are now voluntary, driver's licensing requirements are
brand-new and permit commercial drivers under age 21, has no accurate
database to track safety violations of its carriers and drivers, and
has new and untested logbook requirements. Without needed improvements
in Mexican standards and the necessary resources to enforce these
upgraded standards, any opening of our southern border is grossly
premature, and is doomed to sacrifice safety and labor standards.
Against the backdrop of all these developments, an overwhelming
majority of the U.S. House of Representatives and a majority of the
U.S. Senate has continued to endorse comprehensive safety standards
before opening the U.S.- Mexico border to commercial motor vehicles. In
1999, 258 members of the House of Representatives, led by Reps. James
Oberstar (D-MN) and Jack Quinn (R-NY), joined together to urge
President Clinton to maintain the cross-border restrictions until both
countries agree on comprehensive safety standards, establish and
successfully test effective enforcement programs, and staff border
facilities with full-time inspectors. In the same year, 48 U.S.
Senators, led by Senators Ron Wyden (D-OR) and Ben Nighthorse Campbell
(R-CO), sent the same clear message to the President.
More recently, the Congress has again gone on record supporting
comprehensive safety standards before allowing Mexico-domiciled motor
carriers to the enter the United States. On June 26, 2001, the House of
Representatives, by an overwhelmingly vote of 285 to143, adopted an
amendment to the Department of Transportation Appropriations bill (H.R.
2299) prohibiting any funds from being used to process applications by
Mexico-domiciled motor carriers for conditional or permanent authority
to operate beyond the commercial border zone. During debate on the
House floor, the amendment's primary sponsor, Rep. Martin Sabo (D-MN),
made clear that it was unacceptable to permit 18 months to elapse
between the time that a Mexico-domiciled carrier is granted U.S.
operating authority and the completion of a thorough Federal Motor
Carrier Safety Administration (FMCSA) safety review of the applicants.
He further asserted that the proposed FMCSA paper review is not
sufficient, and that FMCSA officials should be able to conduct a more
thorough review, including audits of Mexico-domiciled carriers' home
offices, prior to granting even conditional operating authority. TTD
strongly agrees with Representative Sabo's measure, and we believe that
the debate on this amendment clearly demonstrated again that a
substantial majority in the House of Representatives remains committed
to the highest safety standards at our border.
On the Senate side, the Senate Appropriations Committee reported
out the FY 2002 Transportation Appropriations bill (S. 1178) last week,
including in the bill several provisions drafted by Senator Patty
Murray, Chair of the Transportation Appropriations Subcommittee, and
ranking member Senator Richard Shelby, to address the issue of motor
carrier safety with respect to Mexican cross-border truck and bus
operations. TTD supports the Murray-Shelby measures which address most
of our safety concerns.
At this point, I would like to address some of our safety concerns
with the cross border policy of this Administration. It is this
Committee's responsibility to address safety on our nations roads and
highways. Anything that might have a negative impact on safety ought to
be addressed in an immediate and responsive way by the Congress and the
Department of Transportation. The admittance of Mexico-domiciled motor
carriers will change the landscape of our highways and we need to be
prepared to integrate them into our system safely and without
sacrificing the safety of the traveling public.
In May of this year, the FMCSA published three notices of proposed
rulemaking and requests for comments concerning procedures for the
registration and safety monitoring of Mexico-domiciled carriers. Two of
the rulemakings propose new forms for Mexico-domiciled motor carriers
applying for operating authority in the commercial border zones and
nationwide. The third rulemaking addresses the establishment of a
safety oversight program. Without going into all the specifics of these
rulemakings, suffice it to say these rulemaking are inconsistent with
our long held views that Mexico-domiciled motor carriers should have to
meet the same comprehensive safety standards that U.S. carriers must
meet and should demonstrate compliance before being granted operating
authority.
Two years ago this committee held hearings on motor carrier safety
and how to improve it. Those hearings led this committee to create the
FMCSA to protect the safety of U.S. highways. At the time, TTD
affiliates strongly supported strengthening the legislative and
regulatory framework supporting the Department of Transportation's
(DOT) safety programs which, prior to the FMCSA's creation, drew
criticism from the Congress regarding its effectiveness. Today, the
newly created FMCSA is still under pressure to increase resources to
support a proper level of safety oversight and inspection and bring
greater focus to issues such as the safety hazards posed by Mexico-
domiciled motor carriers entering our southern borders.
Under statutory requirements,\3\ the agency is required to register
only those motor carriers that can demonstrate that they are fit,
willing, and able to comply with U.S. safety and financial
responsibility requirements. Furthermore, the FMCSA is required to
consider all available evidence and make a determination that the
carrier is fit prior to issuing registration to operate in the United
States. With these standards in mind, we believe the FMCSA does not
have an adequate implementation plan in place to ensure that all
Mexico-domiciled carriers meet these legal requirements.
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\3\ 49 U.S.C. Sec. 13902
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Moreover, the proposed safety monitoring rulemaking is supposed to
enhance safety oversight but provides no indication as to how this is
going to be accomplished and with what resources. Needless to say,
without specific procedures outlined or any credible plan for a
substantial increase of enforcement personnel along the border, these
proposed new rules will fail to raise the bar on safety. It is also not
clear when these rules would be implemented and whether they could be
accomplished in the short time frame established by the Bush
Administration for liberalizing cross-border truck and bus operations
between the U.S. and Mexico.
We also believe that the safety inspection process should occur
even before motor carriers cross the border, with carrier audits being
done even earlier. U.S. enforcement officials should be permitted to
inspect truck and bus companies base operations in Mexico. These visits
should include the evaluation of company safety management practices,
knowledge of and compliance with U.S. regulations, vehicle inspections,
and education of drivers, dispatchers, mechanics and management. These
procedures would not be without precedent. The Federal Aviation
Administration (FAA) safety authorities routinely inspect foreign
airlines in the United States and abroad, to ensure these carriers are
complying with safety regulations.
Another deficient area in the proposed rules is the failure to deal
effectively with bus issues. As detailed in the testimony of
Amalgamated Transit Union (ATU) President Jim LaSala, the proposed
rules fail to establish any plan or meaningful mechanism for monitoring
the unique safety issues that exist for Mexico-domiciled passenger
motor carrier operations. Mexican buses and passenger vans have safety
problems similar to those of Mexican trucks. Very few are inspected and
those that are have a much higher out-of-service rate compared to U.S.
vehicles. Because buses and vans carry people, the Department of
Transportation has always held these passenger motor carriers to the
highest safety standards. We believe the same must be true for Mexican-
owned bus and van operations. There are a variety of unique and
important passenger carrier issues that must be addressed including the
threat to U.S. passengers from Mexican-owned or controlled passenger
motor carrier companies operating buses domestically in the U.S.,
developing a clear system that ensures that all Mexican-manufactured
buses entering the U.S. comply with relevant safety standards, and the
increasing use of unsafe camioneta vans on our highways.
These real unresolved safety concerns in the Administration's plans
to the open the border are only compounded by an inadequate inspection
force at the border that is completely unprepared for the influx of
newly admitted carriers. Currently, less than one percent of the 4.5
million motor carriers that enter the U.S. at our southern borders are
inspected. Additionally, the number of federal inspectors at the border
is less than half of the number that was estimated to be necessary in
1998, and that number did not include the investigators that will be
necessary for the agency to conduct its 18-month safety reviews. Also,
only 2 of 27 border crossings have permanent inspection facilities,
both of which are state facilities in California which is nationally
recognized as already having a good inspection program. We believe that
this situation along the border is inexcusable and gives a very clear
indication that in no way will our government be prepared to open the
border by the first of next year. Our position is that we must increase
inspection resources to ensure every motor carrier entering the United
States is inspected.
Conclusion
Based on all the evidence that exists, it is clear that the U.S. is
not prepared to step up to the myriad inspection and enforcement duties
associated with permitting uninspected Mexican commercial traffic on
our highways. The current bilateral process being employed by the U.S.
and Mexico for the purpose of harmonizing standards and regulations is
failing to produce satisfactory solutions to the many serious
unresolved safety hazards along the border. Additionally, our
government cannot ensure that Mexico-domiciled carriers will comply
with all safety and health regulations, nor has it developed a safety
enforcement implementation plan for safely opening the border. For
these reasons, we believe it would be irresponsible for our government
to expose U.S. highway users, including truck and bus drivers, to the
safety threats posed by giving Mexico-domiciled carriers uninhibited
access onto U.S. highways. We urge you to insist that the
Administration reconsider its proposal to open the U.S.-Mexico border
and work with TTD and our affiliated unions including the International
Brotherhood of Teamsters and Amalgamated Transit Union to keep our
border closed to unsafe motor carrier operations.
Thank you again for giving us an opportunity to share our views on
this important matter.
______
Attachment 1
TTD AFFILIATES
The following labor organizations are members of and represented by
the TTD:
Air Line Pilots Association
Amalgamated Transit Union
American Federation of State, County and Municipal Employees
American Federation of Teachers
Association of Flight Attendants
American Train Dispatchers Department
Brotherhood of Locomotive Engineers
Brotherhood of Maintenance of Way Employes
Brotherhood of Railroad Signalmen
Communications Workers of America
Hotel Employees and Restaurant Employees Union
International Association of Fire Fighters
International Association of Machinists and Aerospace Workers
International Brotherhood of Boilermakers, Blacksmiths, Forgers and
Helpers
International Brotherhood of Electrical Workers
International Brotherhood of Teamsters
International Longshoremen's Association
International Longshoremen's and Warehousemen's Union
International Organization of Masters, Mates and Pilots, ILA
International Union of Operating Engineers
Marine Engineers Beneficial Association
National Air Traffic Controllers Association
National Association of Letter Carriers
National Federation of Public and Private Employees
Office and Professional Employees International Union
Professional Airways Systems Specialists
Retail, Wholesale and Department Store Union
Service Employees International Union
Sheet Metal Workers International Association
Transportation
Communications International Union
Transport Workers Union of America
United Mine Workers of America
United Steelworkers of America