Safety Monitoring System and Compliance Initiative for Mexico-Domiciled Motor Carriers Operating in the United States

Safety Monitoring System and Compliance Initiative for Mexico-Domiciled Motor Carriers Operating in the United States

Posted on May 30, 2007 in News & Views by PMC Comments Off

In 2002 when this issue was put before the public for comment, the atmosphere in the United States was much different. Even though 9/11 had occurred less than a year before, people were not playing the “Terror Card” as they are today. The respondents concern was on safety of the Mexican Carrier. There did not appear to be worry about jobs being lost to the Mexicans nor an increased flow of drugs or illegal aliens into the country. People stuck to the issues, quite a departure from today. And in return, the FMCSA listened and cited the law, the rules that would govern the entrance of the Mexican trucks into the United States in a truthful and forthright manner.

Let’s examine the various players in the game in 2002 and compare their positions yesterday and today.

But first a breakdown of the respondents.

Summary of Parties Submitting Comments

(1) Ten United States Senators: Senators Max Baucus, Evan Bayh,

Jeff Bingaman, Thomas A. Daschle, Richard J. Durbin, Tom Harkin, Edward

M. Kennedy, John F. Kerry, John Kyl, and Ron Wyden, submitted one

unified set of comments to the President, who forwarded their comments

to the docket.

[The Senators believe believe that the Mexican government does not have

a domestic truck safety system equivalent to that provided under U.S.

law. They state that Mexico does not have hours-of-service laws and has

only recently proposed the use of logbooks to record driving history.

Therefore, they believe that cross-border truckers could easily enter

U.S. highways fatigued. They note the DOT Inspector General has stated

repeatedly that ``fatigue is a major factor in commercial vehicle

crashes.''

The Senators believe that a `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 Senators urged the President to not grant operating

certificates until the administration completes onsite compliance

reviews and ensures the safety of the American traveler.]

(2) More than 180 private citizens. One hundred sixteen of these

citizens submitted an “Urgent Action Alert” form letter compiled and

distributed by Citizens for Reliable and Safe Highways (CRASH) or

alluded to recommendations in the form letter.

[These phrases are as follows:

(1) Allowing Mexican carriers to operate for up to 18 months

before a safety audit is done by U.S. officials is totally

unacceptable. Safety audits must be done before Mexican carriers are

allowed to enter the U.S.

(2) Application forms and processes are important and necessary

but as a member of CRASH and a concerned highway safety advocate,

the U.S./Mexico border should remain closed to increased NAFTA

cross-border trucking until meaningful safety standards and

significantly increased compliance oversight are in place on both

sides of the border.

(3) Not one human life should be sacrificed on the alter [sic]

of NAFTA cross-border trucking.]

(3) Four Mexican associations: the Asociacion Nacional De

Transporte Privado (a national private motor carrier association),

Camara Nacional Del Autotransporte De Carga A.C. (CANACAR) (a national

trucking association), Asociacion De Agentes Aduanales De Nuevo Laredo

(a customs broker association), and Central de Servicos de Carga de

Nuevo Laredo (CenSeCar) (a local trucking association of Nuevo Laredo).

[Camara Nacional Del Autotransporte De Carga A.C. (CANACAR) (a

Mexican Trucking Association representing the Mexican trucking

industry) opposes the proposal. It believes the proposed entrance

requirements are too difficult. It states that ``consciously or

unconsciously, all three of FMCSA's proposals unfortunately are

permeated with anti-Mexican sentiments * * * disguised in the form of

concern for highway safety * * * based on false assumptions.'' CANACAR

believes Mexican trucks are safer than those operated by the U.S.

trucking industry. To support this position, CANACAR stated that the

out-of-service rate for U.S. and Mexican drayage companies are not very

different.

Asociacion De Agentes Aduanales De Nuevo Laredo and Central de

Servicos de Carga de Nuevo Laredo (CenSeCar) had similar comments. Each

believes imposing inspections on short-haul carriers at the border

would impact the efficient flow of traffic as well as be an unfair

practice compared with the northern border. The two borders are

different, they assert, and a single cookie cutter approach should not

be applied. They are also concerned that all government agencies on the

border are grossly understaffed. They believe that imposing unfunded mandates

and new procedures without regard to staffing is categorically wrong

and shortsighted.]

(4) Four labor organizations: the American Federation of Labor and

Congress of Industrial Organizations (AFL-CIO), the Amalgamated Transit

Union (ATU), the International Brotherhood of Teamsters (Teamsters),and the AFL-CIO’s Transportation Trades Department representing 33 unions (TTD). The TTD submitted separate comments from the AFL-CIO, its parent organization.

[The AFL-CIO, ATU, TTD, and the Teamsters argued that opening the

border is premature because of deficiencies in Mexico's internal safety

standards for motor vehicles, and that a stronger implementation plan

approved by the DOT Office of Inspector General is needed. The ATU

fully supports and agrees with comments submitted by the AFL-CIO. It

also concurs in Greyhound's comments, with one minor exception: ATU

opposes the proposal to allow up to 18 months before a safety audit is

conducted on a Mexico-domiciled carrier. The common viewpoints of ATU

and Greyhound are outlined as follows:

(1) Mexican buses should not be authorized to operate in the United

States absent reciprocal treatment of U.S. buses by Mexico.

(2) Mexican buses must be certified as safe before the first day

they are authorized to operate in the United States.

(3) FMCSA must develop and implement an effective enforcement plan

before opening the border.

(4) U.S. subsidiaries of Mexican companies must be subject to the

same standards and reviews as their Mexican parent companies.

(5) Application and oversight rules must be applied to small

passenger carrying vehicle operations (9 to 15 passengers), as well as

cross-border bus operations.

(6) Application forms must require detailed explanations of

compliance measures to ensure a full understanding of the applicable

laws.]

(5) Four motor carrier associations: the American Bus Association

(ABA), American Trucking Associations, Inc., (ATA), the California

Trucking Associations (CTA), and the Owner-Operator Independent Drivers

Association (OOIDA).

[American Bus Association (ABA)

The American Bus Association believes there is too little

inspection of buses at the border and that FMCSA should do more border

inspections. It believes FMCSA should enforce compliance with the

Federal Motor Vehicle Safety Standards (FMVSS) maintained and enforced

by the National Highway Traffic Safety Administration.

The ABA believes a final rule imposing the Federal Motor Carrier

Safety Regulations (FMCSR) on 9-to 15-passenger vans is necessary,

alleging that the poor safety record of these small passenger carrying

vehicle operations must be a part of FMCSA's enforcement plan.

The ATA recommended that FMCSA provide specific guidelines for

establishing safety monitoring systems, including defining a ``poorly

performing driver''. The ATA recommends that FMCSA investigate the

possibility that Mexico may consider the proposed safety review program

an ``extraterritorial application of United States law.'' In light of

that possibility, the ATA recommends that FMCSA work jointly with the

Secretaria de Comunicacianos y Transportes (SCT) to establish a joint

safety review program for Mexico-domiciled motor carriers.

Owner Operator Independent Drivers Association (OOIDA)

OOIDA believes there is a lack of Mexican infrastructure,

resources, and the will to promulgate and enforce compatible safety

regulations in Mexico. It contends there is no true equivalent to the

49 CFR Part 383 commercial drivers licensing regulations in Mexico.

OOIDA cites the DOT OIG report that there is a link between Mexican

truck condition and the level of inspection resources. OOIDA believes

FMCSA must have a minimum of 80 new safety inspectors to do border

crossing inspections and 40 safety investigators to conduct compliance

reviews before granting authority. OOIDA believes the FMCSA goal of

more inspectors is correct, but the plans do not include enough

personnel.

OOIDA believes FMCSA's proposal to review Mexico-domiciled carriers

within 18 months after granting them authority is unrealistic and

dangerous. It recommends that FMCSA conduct onsite reviews in Mexico

and verify whether a Mexico-domiciled motor carrier has been placed

out-of-service in Mexico, has had hazardous material incidents in

Mexico, has a drug and alcohol testing program, and maintains valid

proof of financial responsibility.

California Trucking Association (CTA)

CTA supports the rules as ``well-thought [out]

applications and

safety entry standards for Mexico-domiciled motor carriers,” but sees

a need for more resources to accomplish FMCSA goals. CTA believes the

safety monitoring period should be shorter than 18 months and the

program should include State and local law enforcement agencies in the

review teams. It recommends involving FMCSA field offices in safety

reviews because it believes the field offices know their local

carriers. It also recommends promulgating review standards before the

initial review period. CTA predicates its support of the three NAFTA

rulemakings upon four conditions, including establishing “a level

playing field for all motor carriers through the application of the

same laws and regulations.”]

(6) Three Texas transportation associations: the San Antonio Free

Trade Alliance, Association of Laredo Freight Forwarding Agents, and

Laredo Transportation Association.

(7) Four safety advocacy groups: CRASH, Public Citizen, the

American Automobile Association (AAA), and Advocates for Highway and

Auto Safety (AHAS).

(8) Four environmental groups that submitted one unified response:

Friends of the Earth, the Sierra Club, the Natural Resources Defense

Council and the Center for International Environmental Law.

(9) Three law enforcement agencies: the California Attorney

General, the California Highway Patrol, and the Arizona Department of

Public Safety.

(10) Two associations representing State enforcement and licensing

agencies: the Commercial Vehicle Safety Alliance (CVSA) and the

American Association of Motor Vehicle Administrators (AAMVA).

(11) Three motor carriers: United Parcel Service (UPS), Greyhound

Lines and Transportes Quintanilla S.A. de C.V.

(12) The Transportation Lawyers of America, Air Courier Conference

of America, Transportation Consumer Protection Council, the Laredo

Chamber of Commerce, the National Association of Independent Insurers

(NAII), and the American Insurance Association (AIA) each submitted one

comment.

And so it goes. The one thing uniting all the groups in the 2002 response was the need for safety inspections and concern over hours of service.

OOIDA, one of the most vocal critics in 2007 mentioned nothing about the impending loss of jobs because then it was a non issue and in my opinion it remains a non issue today.

The Brotherhood of Teamsters in 2002 had the same concerns as the rest despite having sent an “investigative reporter” to Mexico in 1999 to dig up the dirt and portray all Mexican drivers as sleep deprived, drug addicted killers with no concern for public safety. I also notice that this article in question was not used during the 2002 comment period but is used in 2007 by most if not all of the opponents of the Pilot Program or Demonstration Project.

The FMCSA Responds in 2002

The most common recommendation made in the comments was that

Mexico-domiciled carriers undergo a safety review by FMCSA before being

allowed to operate in the United States. This concern was addressed in

Sec. 350(a)(1) of the DOT Appropriations Act. The FMCSA’s companion

rule amending the part 365 application procedures will require that

Mexico-domiciled long-haul carriers receive a safety audit before

receiving provisional operating authority. This pre-authorization

safety audit will include verification of performance data, safety

management programs (including hours-of-service compliance, vehicle

inspection and maintenance and drug and alcohol testing programs) and

financial responsibility.

The audit will also entail vehicle inspections, verification of driver qualifications and an interview with carrier officials to review safety management controls and evaluate written safety oversight policies and practices.

FMCSA will provide all Mexico-domiciled carriers educational

and technical assistance when they apply for provisional operating

authority or a provisional Certificate of Registration. The education

and technical assistance package will consist of material designed to

assist the Mexico-domiciled applicant in complying with the FMCSRs and Hazardous Materials Regulations (HMRs) and establishing good safety management practices.

It will include information on driver qualifications; controlled substances and alcohol use testing; commercial drivers licenses; minimum levels of financial

responsibility; accident reports; requirements applicable to the driving of motor vehicles; vehicle inspection, repair and maintenance; hours of service and records of duty status of drivers; and requirements applicable to the transportation of hazardous materials. These materials will help long-haul carriers prepare for the pre-authorization safety audit.

The FMCSA is not extending the pre-authorization audit requirement to

carriers seeking to operate solely within the border zones under

Certificates of Registration. Border zone operations have been

permitted for nearly 20 years without a pre-authorization audit

requirement. The most serious safety concerns, as evidenced by the

provisions of Sec. 350 of the Act and reflected in the comments to the

NPRM, involve Mexico-domiciled carriers who will be operating vehicles

beyond the border zones in long-haul service. The FMCSA believes that the

informational and certification requirements added to the revised OP-2

form in their companion rule and the post-operational audit required by

this rule will be sufficient to protect public safety in the border

zones.

It might be noted that the haz-mat requirements or not at issue since the Pilot Program does not permit Mexican domiciled carriers to haul hazardous materials during the Demonstration Project.

Section 350(a)(2) of the Act requires FMCSA to conduct a full

compliance review of Mexico-domiciled long-haul carriers within 18

months after issuance of provisional operating authority. This review

will be consistent with our existing safety fitness evaluation

procedures set forth in subpart A of part 385 and will result in the

assignment of a safety rating. As required by section 350(a)(2), the

compliance review must result in a “Satisfactory” safety rating

before the carrier is granted permanent operating authority to operate

beyond the border zones. The FMCSA has incorporated these requirements into

this interim final rule. In accordance with section 350(a)(2), at least

50 percent of these compliance reviews will be conducted onsite, {meaning in Mexico} including any compliance review conducted on a Mexico-domiciled carrier

with four or more commercial vehicles that did not undergo an on-site

safety audit before receiving provisional authority.

As a provision of the Pilot Program, all Mexican domiciled trucks will receive an on-site review before being allowed into the United States beyond the exclusion zone.

This rule also addresses the section 350(a)(5) requirement that any

Mexico-domiciled vehicle operated in the United States beyond the

border zones receive a Level 1 inspection if it does not display a

valid CVSA inspection decal, unless the carrier has held permanent

authority for at least three consecutive years. In order to reduce the

burden on State and Federal inspection officials, at least during the

18-month provisional operating period covered by this rule, the FMCSA will

require all commercial vehicles operated by Mexico-domiciled long-haul

carriers to display a valid CVSA inspection decal when entering the

United States.

Vehicle Size and Weight Issues

In response to the Senators’ concern about oversize and overweight

vehicles, section 350(a)(7)(A) of the DOT Appropriations Act requires

FMCSA to:

(1) Equip all United States-Mexico commercial border crossings with

scales suitable for enforcement action; This has been done in Texas and California.

(2) Equip five of the ten highest volume commercial vehicle traffic

crossings with weigh-in-motion systems before reviewing or processing

applications by Mexico-domiciled carriers to operate beyond the border

zones; again, this is in place.

(3) Equip the remaining five of the ten highest volume crossings

with weigh-in-motion systems within 12 months; and

(

(4) Require inspectors to verify the weight of each Mexico-

domiciled carrier’s commercial vehicle entering the United States at

each weigh-in-motion equipped high volume border crossing.

The FMCSA will comply with these requirements and work with the

Federal Highway Administration and States to assure the effective use

of the weigh-in-motion equipment as part of an effective enforcement

program. Enforcement of size and weight requirements is a State

function, under the oversight of the Federal Highway Administration.

Driver Hours-of-Service

In response to the Senators’ comments regarding Mexican hours-of-

service laws (also discussed by Public Citizen), the FMCSA has noted that the use

of the record of duty status, commonly known as a logbook, is the tool

the FMCSA uses for enforcing compliance with U.S. hours-of-service

requirements.

Upon entering the United States, each driver must either:

(a) Have in his/her possession a record of duty status current on the

day of the examination showing the total hours worked for the prior

seven consecutive days, including time spent outside the United States;

or, (b) demonstrate that he/she is operating as a “100 air-mile (161

air-kilometer) radius driver” under Sec. 395.1(e). So in other words, Mexican trucks will not be getting a free pass.

In addition, section 350(a)(9) of the DOT Appropriations Act

requires Mexico-domiciled carriers to only enter the United States at

commercial border crossings: (1) Where and when a certified motor

carrier safety inspector is on duty; and (2) where adequate capacity

exists to conduct a sufficient number of meaningful vehicle safety

inspections and to accommodate vehicles placed out-of-service as a

result of these meaningful safety inspections. The examination of

drivers resulting from the section 350(a)(9) vehicle inspection

requirements would allow inspection of each Mexico-domiciled carrier’s

drivers upon entry and would allow certified motor carrier safety

inspectors to review the driver’s logbooks and discover whether hours-

of-service violations have occurred. As it is today, especially in Texas, when the commercial lanes at the border are open, so are the DPS operated scales. In addition to the static scales and inspection facilities, the DPS operates roaming License and Weight officers around the clock.

Similarity of Regulatory Treatment

In response to the comments of the Mexican trade associations,

FMCSA believes the regulatory requirements imposed in this rule are

within the standards set out in the NAFTA Arbitral Panel Report, a copy

of which is in the docket. The Panel noted that:

(1) The United States is not required to treat applications from

Mexico-domiciled 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; and

(2) Given the different enforcement mechanisms in place in the

United States and Mexico, it may not be unreasonable for the United

States to address legitimate safety concerns. Similarly, the Panel

found it might be reasonable for the United States to implement

different procedures with respect to service providers from another

NAFTA country if necessary to ensure compliance with its own local

standards by these service providers. What this means is if it appears to be necessary, the FMCSA can impose stricter requirements to fit the situation

Although CANACAR believes Mexican trucks are safer based on out-of-service rates for U.S. and Mexican drayage companies, the fact remains that Mexico’s motor carrier safety regulatory system lacks several of the components that are central to the U.S. system. As the Panel found, the United States is responsible

for the safe operation of motor carriers within U.S. territory,

regardless of the carriers’ country of origin, and FMCSA believes it

must ensure each carrier is safe to protect U.S. highway users. This

rule, in conjunction with the other rules pertaining to Mexican motor

carriers published elsewhere in the Federal Register, will provide

FMCSA with the necessary level of assurance, in a manner consistent

with the Panel’s findings, that Mexican motor carriers seeking U.S.

operating authority are capable of complying with the U.S. safety

regulatory regime.

ABA, AHAS, and other commenters cite language from the NAFTA

Arbitral Panel’s Final Report to support their comments favoring more

stringent safety measures with regard to Mexico-domiciled carriers. The

Panel stated, among other things, that to the extent that Mexican

licensing and inspection requirements may differ from U.S.

requirements, the United States might be justified in using methods to

ensure Mexico-domiciled carrier compliance with the U.S. regulatory

regime that differ from those used for U.S. and Canadian carriers,

provided that those methods are used in good faith to address

legitimate safety concerns and fully conform with all relevant NAFTA

provisions. FMCSA believes that the more stringent measures in the

rules as published, fulfill its statutory obligation to ensure the

safe operation of motor carriers in the United States in a manner that

is consistent with the Panel’s construction of NAFTA.

Reciprocal Treatment

ABA urged the FMCSA not to publish final rules permitting Mexico-domiciled

carriers to operate beyond the border zones until the government of

Mexico guarantees that U.S. carriers operating in Mexico will receive

the same regulatory treatment afforded to Mexican carriers operating in

that country. These regulations are intended to establish procedures to

ensure that Mexico-domiciled carriers operate safely while traveling in

the United States, not to police compliance with the terms of NAFTA.

The NAFTA contains specific procedures designed to resolve disputes

over whether the parties are fulfilling their obligations under the

agreement.

Mexican-Owned, U.S.-Domiciled Motor Carriers

In response to comments by ABA, ATU, and Greyhound urging the FMCSA to

subject Mexican-owned, U.S.-domiciled passenger carriers to the same

procedures applicable to Mexican-owned, Mexico-domiciled passenger

carriers, we should note that President Bush, in June 2001, issued a

Memorandum that, among other things, allows a Mexican citizen to

establish a U.S.-based passenger carrier to provide point-to-point

transportation within the United States under the same procedures

applicable to U.S.-owned, U.S.-domiciled passenger carriers.

Mexican nationals may establish a passenger carrier operation in the United

States by either purchasing an existing motor carrier or establishing a

new motor carrier. Such carriers, as Greyhound itself points out, must

use U.S. citizens or resident aliens to provide passenger service in

the United States. The drivers they employ must possess a Commercial

Drivers License issued in the United States. In addition, these

carriers are subject to the same safety requirements, inspection

procedures, enforcement mechanisms, and fines and out-of-service orders

that apply to any other U.S. carrier. Thus, there is no basis to treat

these carriers any differently from U.S.-owned, U.S.-domiciled carriers

based solely on the owner’s nationality. All U.S.-domiciled carriers,

regardless of the owner’s nationality, will be subject to an interim

final rule establishing application procedures and safety monitoring

requirements for new entrant carriers, which the FMCSA expects to publish in

the near future.

So there you have it folks. A matter of public record and in 2002, all the concerns that seem to be prevalent today were addressed. It would appear the law, as written, contains the mechanisms to ensure a successful program.

Can anyone tell me what has changed in the 5 years since this was released? The economy seems to have grown. There is still a driver shortage. And if there is a driver shortage, that tells me that there is freight out there needing to be hauled.

Make no mistake people. The issue of Mexican trucks and illegal immigration have nothing to do with one or the other, but they seem to be tied together in the minds of the extremists.

And as for the professionalism of the Mexican driver as opposed to their American counterpart? In the past month in the United States, there have been 12 accidents involving 18 wheelers resulting in injury or significant property damage to elicit national and regional coverage. How many in Mexico? 1, that’s right, 1. Think about it and let’s get our own house clean before we dump on others.