[Congressional Record Volume 147, Number 104 (Tuesday, July 24, 2001)]
[Senate]
[Pages S8105-S8108]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              DEPARTMENT OF TRANSPORTATION APPROPRIATIONS


                       McCain-Gramm Alternatives

  Mr. McCAIN. Mr. President, we just concluded a meeting with several 
Members who were involved in this matter, including the distinguished 
minority whip, Senator Reid. I thank Senator Shelby, who was 
responsible for this meeting. I think it was helpful. Representatives 
of the administration were there. I think at least we were able to 
establish lines of communication and dialog on this important issue.
  Before I discuss the proposed McCain-Gramm substitute that we may be 
proposing, depending on the status of negotiations, I wish to emphasize 
the importance of this issue. Here we are on an appropriations bill--an 
appropriations bill--a piece of legislation that profoundly affects, in 
my view and perhaps far more important the view of the administration, 
profoundly affects a solemn trade agreement entered into between three 
nations: United States, Mexico, and Canada. Here we are debating a 
provision on an appropriations bill that is supposed to pay for the 
transportation needs of this country.
  I say again to my colleagues, this is the wrong way to do business. 
So, therefore, because of the deep concerns that I, Senator Gramm, 
Senator Bond, Senator Domenici, and many others have, we have to do 
what we can to see that this appropriations bill does not have language 
in it which, as I say, in my view and that of the administration and 
objective observers, is in violation of the North American Free Trade 
Agreement. That is why we here have been tied up now for a couple of 
days and will continue to be so, unless we can come to some agreement 
that will satisfy the concerns we have that we would be violating the 
trade agreement.
  I remind my colleagues again, a panel already has declared the United 
States is in violation of NAFTA because of our failure to allow carrier 
crossings.
  We could be subject to sanctions to the tune of billions of dollars 
imposed by the Mexican Government. I hasten to add the Mexican 
Government has not threatened us, but we could be liable for that.
  I hope our negotiations can continue. I hope that the advice of the 
senior advisers to the President recommending a veto of the bill in its 
present form will not happen. There are much needed transportation 
projects in this appropriations bill, and, in my own view, some that 
are not needed. But I will not go into that at this particular time.
  The fact is that we need to negotiate. The areas of disagreement are 
not that great, but they are significant.
  There are 22 provisions in this legislation which cumulatively would 
ensure that it would be impossible to implement the carrier truck 
crossings for 2 or maybe as much as 3 years. I hope we can get this 
worked out. As I say, our differences are not that great.
  Unlike the House provisions, this legislation provides significant 
funding to enable the Department of Transportation to hire and train 
more safety inspectors and to build more inspection facilities at the 
southern border. I strongly commend the committee for this action.
  However, as I previously explained, I have concerns over a number of 
requirements included in the bill that if enacted without 
modifications, could effectively prevent the opening of the border 
indefinitely. My concerns are shared by other colleagues and the 
administration.
  The administration estimates the Senate provisions under section 343 
would result in a further delay in opening the border for another 2 
years or more. This would be a direct violation of NAFTA. It 
effectively provides a blanket prohibition from allowing any Mexican 
motor carrier from operating beyond the commercial zones. This view is 
shared by a number of us, as well as the President's senior advisors, 
who have clearly indicated they will recommend the President veto this 
if it includes either the House-passed or pending Senate language.
  I recognize that at first glance, many of the requirements in section 
343 appear reasonable. However, I am informed by DOT officials that it 
simply cannot fulfill all 22 requirements imposed by section 343 in the 
near term. To quote from the Statement of Administration Policy, 
transmitted to the Senate last Thursday.

       The Senate Committee has adopted provisions that could 
     cause the United States to violate our commitments under 
     NAFTA. Unless changes are made to the Senate bill, the 
     President's senior advisors will recommend that the President 
     veto the bill.

  There may be debate back and forth as to whether these provisions in 
section 343 of the bill are in compliance with NAFTA. The fact is that 
the senior advisers to the President of the United States have 
determined that it places us out of compliance. Therefore, that 
discussion becomes somewhat academic, if the President is going to veto 
the bill.
  I would like to discuss the provisions of concern, and explain how 
our amendment proposes to address those concerns while seeking to 
retain the underlying intent of the provisions, at

[[Page S8106]]

least in the context of safety. It is very important to point out that 
like the committee's approach, our amendment goes much further than the 
DOT had planned to go based on its May 2001, Federal Register notice of 
proposed rulemaking on how it would address cross border safety. But 
our approach would not prevent the border opening indefinitely.
  First, section 343 requires the Federal Motor Carrier Safety 
Administration to conduct a full safety compliance review before 
granting conditional operating authority and again before granting 
permanent authority and to assign a safety rating to the carrier. The 
reviews must be conducted onsite in Mexico.
  The problem with that requirement is that a compliance review 
assesses carrier performance while operating in the United States. It 
is conducted when a carrier's performance indicates a problem--that it 
is at risk. As a technical matter, a full fledged compliance review of 
a Mexican carrier would be meaningless since that carrier won't have 
been operating in this country and won't have the type of performance 
data that is audited during a compliance review. If DOT is forced to 
conduct what would largely be a meaningless compliance review, every 
carrier will receive a satisfactory rating because there will be no 
records or data from which to find violations of the Federal Motor 
Carrier Safety Regulations.
  Further, DOT estimates it would cost $40 million if it is required to 
perform a compliance review of every carrier seeking operating 
authority and another $10 million to perform such a review onsite. 
Therefore, the Senate bill would need an additional $50 million if DOT 
is to carry out this largely meaningless mandate.
  A workable alternative, however, would be to require a safety review, 
as included in our amendment. It is far more prescriptive than the type 
of review mentioned in the May 2001, notice of proposed rulemaking 
regarding implementation of NAFTA's cross border provisions. It would 
provide for a review of available performance data and safety 
management programs, including drug and alcohol testing; drivers' 
qualifications; drivers' house-of-service records; vehicle inspection 
records, proof of insurance, and other information necessary to 
determine the carrier's preparedness to comply with Federal motor 
carrier safety rules and regulations. If warranted by safety 
considerations or the availability of safety performance data, the 
review should be conducted onsite.
  I believe a safety review would go a long way in addressing the 
safety considerations and would likely provide the verification of data 
the managers of the bill are seeking. Frankly, it requires substantial 
analysis that is not imposed upon United States or Canadian carriers, 
who only need to complete an application available online and transmit 
it to DOT along with $300. I am very hopeful the Mexican Government 
will be willing to accept the type of approach described in our 
amendment, even though it would treat Mexican carriers substantially 
different than United States or Canadian carriers.
  Second, the administration has raised concerns with the proposed 
requirement that each and every time a truck crosses the border, it 
must electronically verify the driver's commercial driver's license, 
CDL. The DOT has expressed considerable concern that such a requirement 
would significantly impede the flow of traffic and commerce at the 
border. Backups can already exceed more than 4 hours at some crossings 
in Texas. DOT has estimated such backups would increase immensely. The 
idling vehicles would obviously have an enormous impact on the 
environment. DOT also estimates the cost of electronic verification at 
all 27 crossings at $14.6 million.
  It is important to note, we do not verify every license of every 
Canadian driver that crosses the northern border. I believe it would be 
discriminatory to check every single Mexican driver's license when we 
do not check other operators in this country. I believe it sends a 
signal we do not want to send and strongly caution all of my colleagues 
on this proposal.

  As an alternative, our amendment would require that each truck that 
will be operating beyond the commercial zones to be inspected prior to 
operating in this country and that during such an inspection, the 
inspector would verify the driver's CDL. Each vehicle must display a 
valid Commercial Vehicle Safety Alliance, CVSA, decal obtained as a 
result of a level I or level V North American Standard Inspection. It 
is important to note that vehicles must be reinspected every 90 days to 
be valid.
  Let me point out the Senator from Washington has offered an amendment 
to also require vehicle inspections. I suspect she developed the 
amendment after hearing last week that our amendment would include this 
important safety feature.
  In further regard to verifying a driver's CDL, our amendment calls 
for DOT to institute a policy for random electronic or other 
verification of the license of drivers crossing at the border. This 
would be far less discriminatory, and would not have as great an impact 
on crossing delays.
  Let me also point out that the record of Mexican drivers is better 
than that of either Canadian or United States drivers. Based on the 
available data provided by DOT, the out of service rate for Mexican 
drivers is 6 percent; it is 8 percent for United States drivers; and 
9.5 percent for Canadian drivers. If the managers of this bill are 
concerned about drivers, perhaps they need to first focus on where the 
greatest safety problem appears to exist.
  Third, section 343 would require all border crossings be equipped 
with both weigh-in-motion, WIM, systems and fixed scales and that every 
commercial truck crossing the southern border must be weighed. This 
requirement raises significant cost, space, and time considerations. 
DOT contends it would result in extensive construction and could 
postpone the border opening until 2003.
  Weight enforcement has historically been a state enforcement 
responsibility, which is one of the reasons weigh stations are located 
throughout every state.
  In the border States, for example, each State already has numerous 
weigh stations. California has 62 fixed scales and 10 weigh-in-motion 
systems. Arizona has 20 fixed scales and 5 weigh-in-motion systems. New 
Mexico has 12 fixed scales and 2 weigh-in-motion systems. Texas has 47 
fixed scales and 2 weigh-in-motion systems.
  The estimates cost of standard weigh-in-motion installation for a 4-
lane configuration is $715,000. And while such systems help determine 
whether a truck should be weighed, a citation cannot be issued off the 
reading of weigh-in-motion equipment. FHWA further estimates the cost 
of installing fixed scales approximately $2 to $3 million each.

  I note such a requirement is not imposed on trucks entering the 
United States from Canada. Moreover, this mandate simply is not the 
best use of limited resources. One crossing only had 198 trucks cross 
last year. I question the logic of requiring both a fixed-scale and 
weight-in-motion system at such a location. At a minimum, shouldn't we 
first be concerned about those locations with the greatest volume of 
traffic?
  Our amendment would require each crossing to have a means of weighing 
a carrier and for DOT to initiate a study to determine which crossings 
should also be equipped with weight-in-motion systems that would enable 
State inspectors to verify the weight of each vehicle. It would not 
shift weight enforcement responsibilities from the States to the 
Federal Government, nor would it mandate that all 17 crossings have 
equipment that may not be needed.
  Fourth, section 343 restricts a carrier's insurance provider to be 
based in the United States. While I am not opposed to requiring proof 
of valid insurance and for the insurance provider to be licensed in the 
United States, limiting providers to only those based in the United 
States would prevent a number of large providers from providing 
insurance, including Lloyds of London which covers many Canadian 
carriers. I am informed this could also raise issues with regard to 
NAFTA and WTO obligations. Therefore, our amendment would strike the 
proposed requirement for an insurance provider to be based in the 
United States.
  Fifth, section 343 would prevent compliance with our NAFTA 
obligations until the Federal Motor Carrier Safety

[[Page S8107]]

Administration completes six rulemakings or policy implementations 
required under the Motor Carrier Safety Improvement Act of 1999. 
Clearly, an agency should be held accountable to fulfill the 
obligations imposed on it. The Federal Motor Carrier Safety 
Administration is no exception.
  Perhaps if the previous administration had ever nominated an 
Administrator to provide leadership over this agency, the rulemakings 
would have been carried out in a more timely manner. After all, the 
driving force behind its creation was the overwhelming evidence that 
motor carrier safety was in dire need of leadership. Yet President 
Bush's nomination of Joe Clapp to be Administrator of the Federal Motor 
Carrier Safety Administration last week marks the first time we will 
have had the opportunity to consider and confirm an administrator for 
this critical post.
  Perhaps if the Senate would confirm the pending nominee to head the 
Department of Transportation's General Counsel's Office, the Department 
would be better equipped to complete these and other pending 
rulemakings. It is ironic to me that the proponents of section 343 are 
critizincig the current administration for the lack of action by the 
former, while at the same time holding up the current confirmation 
process.
  Our amendment proposes to require DOT to issue several policies that 
we believe can readily be issued before the end of the year, including 
a policy requiring motor carrier safety inspectors to be on duty during 
all operating hours at all southern border crossings used by commercial 
vehicles; a policy to establish standards to help determine the 
appropriate number of Federal and State motor carrier inspectors for 
the southern border; and a policy to prohibit foreign motor carriers 
from operating in the United States that are found to have operated 
here illegally.
  Our amendment further instructs the Department to complete the 
remaining three rulemakings listed in section 343. If the Department is 
unable to do so, which may be the case since there are holds on the 
pending nominee responsible for the rulemakings, it is to transmit to 
the Congress, within 30 days after the date of enactment of this act, a 
notice in writing that it will not be able to complete any of the 
rulemakings prior to the opening of the border that explains why it 
will not be able to complete the rulemaking, and the precise date it 
expects to complete the rulemaking. I am concerned that as much as DOT 
may want to finish these rulemakings, given the lack of a general 
counsel and other staffing considerations as a result of the 
transition, they simply might not be able to do so. Our ability to 
fulfill our NAFTA obligations should not be delayed by congressional 
``holds.''
  Sixth, section 343 requires the DOT inspector general to certify in 
writing that eight conditions have been met prior to permitting the 
President to open the border. Unfortunately, a number of the directives 
are, in my judgment, inappropriate requirements for an inspector 
general. I do not believe it would be appropriate for the IG to be 
required to certify certain actions of the Mexican Government. Nor do I 
think it would be appreciated if someone from the Mexican Government 
were making pronouncements about our practices, all contingent upon 
compliance with our NAFTA obligations.
  Moreover, both the DOT Secretary and the DOT Inspector General 
believe these provisions call for inappropriate operational management 
by the inspector general. These proposed functions go beyond the scope 
of authorized activities in the Inspector General Act. Implementation 
of the NAFTA cross-border trucking provisions should not be conditioned 
on actions by the Inspector General.
  We have the greatest respect for the work of the Office of the 
Inspector General. Therefore, our amendment would instead direct the 
inspector general to report on the number of Federal motor carrier 
safety inspectors hired, trained as safety specialists, and prepared to 
be on duty during hours of operation at the southern border by January 
1, 2002; and to provide periodic reports on several other border-
related issues. These would include reporting on, No. 1, the adequacy 
of the number of Federal and State inspectors at the United States-
Mexican border; No. 2, the Federal Motor Carrier Safety 
Administration's enforcement of hours-of-service rules; No. 3, whether 
United States and Mexican enforcement databases are sufficiently 
integrated and accessible to ensure that licenses, vehicle 
registrations, and insurance information can be verified at border 
crossing or by mobile enforcement units; and No. 4, the level of 
capacity at each southern border crossing used by commercial vehicles 
to conduct a sufficient number of vehicle safety inspections and to 
accommodate vehicles placed out-of-service as a result of the 
inspections.

  We believe these reports would be very useful to the Secretary and 
the Congress as we all work to ensure that adequate safety enforcement 
efforts by the States and Federal Government are being carried out as 
we fulfill our NAFTA commitments.
  Finally, section 343 would define the term ``Mexican Motor carrier'' 
as a ``Mexico-domiciled motor carrier operating beyond the United 
States municipalities and commercial zones on the United States-Mexico 
border.'' Based on this definition, nearly the entire section would 
only be applicable to carriers that had been operating illegally in 
this country and a few that have authority. I am confident this is not 
the Appropriation Committee's intent and note there was an effort to 
strike the definition with a technical amendment on Friday.
  However, striking that definition might then impose many of the 
requirements on those carriers that will only be operating in the 
commercial zones, as well as on United States and Canadian vehicles. 
The focus of this provision was to have been aimed at the long-haul 
carriers. The definition must be modified to clarify the intent. The 
provision should only apply to those motor carriers domiciled in Mexico 
that seek authority to operate beyond municipalities and commercial 
zones on the United States-Mexico border and only to those vehicles 
that will be operating beyond the municipalities and commercial zones.
  We must allow Department of Transportation sufficient flexibility to 
effectively administer its motor carrier safety enforcement 
responsibilities. The language in section 343 does not meet that 
standard. I urge my colleagues to support modifications to section 343. 
Without changes, we can look forward to a veto of this bill. I would 
not suggest the managers take the risk that we would not have the votes 
to sustain the President's first veto.
  Mr. President, I again thank Senator Reid, Senator Shelby, and others 
for beginning a dialog on this very important issue. During the meeting 
a suggestion was made that all of the provisions be dropped from the 
appropriations bill--which I think would be entirely appropriate 
because they are legislating on an appropriations bill--and the Senate 
and House go to conference with the onerous and unacceptable House 
provision in it. That is perfectly acceptable to me because there is 
nothing I can do as a Member of this body to affect what the other body 
does.
  But as long as we have these provisions, the 22 provisions which 
cumulatively, in the view of the senior advisers to the President, make 
NAFTA unable to be implemented for at least 2 or 3 years, then we shall 
have to continue the parliamentary process.
  So I think there are a number of options available, including 
dropping the entire language, which is what a senior Member has 
proposed, which I agree with, and let it go to conference with the 
other body, or accept specific amendments. Another amendment the 
Senator from Texas, Mr. Gramm, has is to make sure Mexico is treated, 
in whatever implementation of NAFTA is accomplished, on an equal basis 
with the United States and Canada. I think that would be a very 
important amendment because we can't send a signal that we are somehow 
discriminating against one of the signatories of the North American 
Free Trade Agreement.

  So I hope we can get this worked out. I hope my colleagues will 
understand, in our desire to complete this legislation, the importance 
of this issue to all Americans, but particularly those of us from 
border States, because we are the ones who have been most impacted by 
the North American Free Trade Agreement. We will be the most impacted 
on the border with implementation of that

[[Page S8108]]

agreement, so we look with concern to the legislation before this body.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. GRAHAM. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRAHAM. Mr. President, I understand we are in morning business.
  The PRESIDING OFFICER. That is correct.
  Mr. GRAHAM. I ask for 15 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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