A series of announcements and proposals by the Bush administration have all but prepared the way for the opening of the U.S. border to Mexican trucks by the end of 2001. Under the North American Free Trade Agreement, the United States was to have fully opened the border in 1995 to Mexican trucks. However, the Clinton administration refused to comply with NAFTA and kept the border closed to Mexican trucks wanting to travel beyond the free trade areas in the border states.
Now the border is poised to open under a new administration that wants to comply with the NAFTA rules. Under NAFTA, Mexican trucks will be allowed to bring an international shipment from Mexico to a point in the United States or from the United States back to Mexico. For this privilege, Mexican trucks and drivers will be required to comply with all U.S. safety rules. Many in the United States, including OOIDA, are concerned, however, that no matter what rules Mexican trucks must obey, there will be no practical way of enforcing them.
The Bush administration has made three recent announcements to attempt a reply to the concerns that unsafe Mexican trucks are going to flood uninhibited into the country once the border is opened. President George W. Bush has proposed more money in the budget to hire border inspectors, the FMCSA recently released a report that downplays the number of Mexican trucks that cross the border, and finally the FMCSA has proposed the procedures under which Mexican truckers will be allowed into the country.
More federal money for enforcement
In the Bush administration’s proposed 2002 budget, $19 million is dedicated to increase “oversight and enforcement activities including stationing 80 additional federal enforcement personnel at the U.S./Mexican border.” An additional $56 million will be dedicated to improving state and federal border inspection facilities.
The proposed number of new inspectors, however, is less than the number previously recommended by the Department of Transportation’s (DOT) Inspector General (IG). In a 1998 report, the IG recommended that the optimal federal border presence, for the number of trucks entering the border states at that time (1998), would have been 126 additional inspectors. This year’s budget proposal falls short of that number by 46.
The budget is also silent on the need for additional inspectors throughout the country now that Mexican truckers will be able to travel beyond the border states.
The feds downplay Mexican truck numbers
In an effort to downplay the impact that opening the border to Mexican trucks will have on our country, the FMCSA recently released a study showing that the number of trucks already coming into the country is less than had previously been reported. For the last several years, the number of trucks coming into the United States from Mexico was estimated to be around 4.5 million per year. This new report distinguishes the number of border crossings from the number of distinct trucks crossing the border.
The study found that 80,000 distinct trucks made the 4.5 million border crossings in 1999. Of those 80,000 trucks, 63,000 were of Mexican origin. The FMCSA then pointed out that 97,000 trucks had been inspected at the border during 1999. The conclusion we are encouraged to draw is that far more inspections were done than there were trucks crossing the border, and therefore our inspectors will not be overwhelmed by many new trucks coming into the country.
Predictions are scarce, however, of how many additional trucks may cross into the United States once they are allowed to travel to any state. Some NAFTA critics assumed that when this new privilege is given to Mexican truckers, thousands more will be attracted to the business and begin coming into the United States.
Others believe that there will not be a large increase of Mexican trucks crossing the border. They believe the trucks that now must drop off their load in the border states will instead just deliver that load to its final destination wherever that is in the United States. If this is true, there will be substantially the same number of trucks crossing the border.
In either scenario, it is certain that non-border states will see an increase in Mexican truck traffic. Whether or not those states are prepared to enforce our truck safety laws against Mexican trucks is one of the most overlooked issues.
FMCSA proposes three rules to allow Mexican trucks into the U.S.
FMCSA has published three different proposals with which it plans to monitor Mexican truck compliance with U.S. safety rules. Under these rules, Mexican motor carriers must register themselves with the FMCSA and demonstrate a promise and intent to obey U.S. motor carrier law.
The first proposal requires the registration of Mexican carriers that only intend to operate between Mexico and the free trade areas in the border states. The second proposal requires the registration of Mexican carriers that want to operate between Mexico and any place in the United States. The final proposal outlines the FMCSA’s plan to ensure that Mexican carriers are obeying U.S. safety rules.
No matter where a Mexican truck and driver goes into the United States, under NAFTA they are required to meet our safety standards. FMCSA states that these standards include all U.S. “...carrier requirements, vehicle requirements, including but not limited to, the ability of the driver to read and speak the English language sufficiently to converse with the general public, understand highway traffic signs and signals in the English language, respond to official inquiries and make entries on reports and records.”
Although there are two distinct registration proposals for two different operating authorities, the forms and their requirements are almost identical.
The first proposal is entitled “Requirement for Mexican-domiciled motor carriers of property that want to operate only in U.S. municipalities and commercial zones adjacent to Mexico in Texas, New Mexico, Arizona, or California.” These Mexican carriers must complete a revised Form OP-2.
The second proposal is entitled “Application by Certain Mexican Motor Carriers to Operate Beyond the U.S. Municipalities and Commercial Zones on the U.S.-Mexican Border.” These motor carriers must complete a revised Form OP-1(MX). Both applications require the following:
- The submission of Form BOC-3 Designation of Agents - Motor Carriers, Brokers, and Freight Forwarders;
- The submission of FORM MCS-150 Motor Carrier Identification Report with the first registration and then every two years thereafter (to ensure that the Mexican carriers get a U.S. DOT number and are placed into the safety system before operation);
- The requirement to resubmit these forms within 45 days of any change in the information on them. Failing to make the requirement updates puts the carrier at risk for suspension or revocation of their registration;
- Proof of the Mexican carrier’s valid registration with the Mexican Federal Government in databases available to the FMCSA; and
- Proof of valid insurance kept in each truck. Trip insurance would only be allowed to Mexican motor carriers operating in the border areas.
For some requirements, the FMCSA asks the Mexican motor carrier to “certify” on its application forms that it has a system in place to ensure compliance with U.S. safety laws, that it is properly registered with the Mexican government, that none of its affiliates have been disqualified from operating in the United States or Mexico. They must also certify that it will comply with IRS regulations regarding the U.S. Heavy Vehicle Use Tax, abide by U.S. Labor Department rules, and that it has the ability to “provide the proposed service and to comply with all pertinent statutory and regulatory requirements.”
Proposal number three is entitled “Safety Monitoring System and Compliance Initiative for Mexican Motor Carriers Operating in the United States.” This proposal describes the FMCSA’s plan to ensure that Mexican motor carriers obey U.S. safety laws.
The registration of a Mexican carrier will be conditioned on the carrier successfully completing a “safety oversight program” that includes a safety review within 18 months of the application. The proposal states that the procedures of what will be a “safety review” have not yet been developed. The safety review will either be conducted at the motor carrier’s business premises or the carrier will be required to bring designated documents to “an alternate facility” such as a border inspection station. If the carrier fails to show “adequate safety management controls” then its registration would be immediately suspended.
FMCSA also warns of enforcement action if a Mexican carrier is discovered doing the following things:
- Using drivers without a valid Mexican or U.S. commercial drivers license;
- Operating vehicles that have been placed out of service for violating the CVSA’s 0ut-of-service criteria;
- Being involved in several kinds of hazardous material incidents;
- Using a driver who failed or refused to take the required drug or alcohol tests;
- Operating a vehicle without insurance; and
- Having an out-of-service rate of more than 50 percent based on three inspections within a 90 day period.
The FMCSA mentions that detection of these violations will require states to expand the scope of their roadside inspections and to collect additional safety data. There is little acknowledgment in the proposed rule of the additional responsibilities states will be forced to assume or the additional personnel and funding that states will need to perform these responsibilities.
The FMCSA warns that violations of these rules would trigger either a deficiency letter or an expedited safety review. The carrier’s authority would be suspended if it fails to respond sufficiently to the letter or undergo the safety review. The FMCSA also states that this safety oversight program is meant “to supplement, not replace, the regular safety fitness procedures applicable to all motor carriers within their jurisdiction.”
Implementation of NAFTA is moving forward despite the protest of several dozen Congressmen and membership organizations including OOIDA. The political pressures on the Bush administration are different than those on the Clinton administration. What has been proposed in the budget and in these proposed rules is, perhaps, the best attempt that the administration can make to address the concerns of NAFTA critics, without compromising its promises to open the border. The Bush administration believes that the trade benefits of NAFTA will outweigh any negative effects of allowing Mexican drivers on our highways.
If you feel differently, you may submit comments about these proposals to the Department of Transportation. Comments are due by July 2, 2001, and may be mailed, faxed, hand delivered or electronically submitted to the DOT’s Docket Management Facility:
Docket Management Facility
400 Seventh Street, S.W.
Washington, DC 20590
FAX (202) 493-2251
Refer to the docket numbers of these proposals: 98-3297, 98-3298 and 98-3299. Copies of them may be found at www.ooida.com.