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Safety Groups Respond to the Administration's Analysis of Section 343 of S. 1178
(Murray/Shelby Provisions) on Implementation of NAFTA Trucking Provisions

Safety Groups Respond to Administration Assertions

II. Specific Observations (from Bush Administration document)

Appendix A: On-Site Safety Evaluation: Interstate Operating Authority Applicants from Mexico

The Administration Asserts: Summary - While the Senate provision represents an improvement on the House language, and aims to advance highway safety and ensure compliance with our international obligations, in its current form many of its provisions raise serious concerns.

Safety Groups Respond: This passage fails to acknowledge what Secretary Mineta and Inspector General Mead noted in hearings on July 18 regarding the clear inadequacies of the Federal Motor Carrier Safety Administration s (FMCSA) proposed rules. In drafting the rules, the Administration had a chance to craft credible, comprehensive safety measures. Given FMCSA s inadequate response to its responsibilities, Congress is justified in presenting a reasonable, substantive alternative.

In the July 18th hearing before the Senate Committee on Commerce, Science, and Transportation, Secretary Mineta first said that the Administration opposed the Murray/Shelby provision contained in the Senate Transportation Appropriations Bill, then explained that he had mis-spoken and that the Administration instead opposed, and would veto, a bill containing the Sabo Amendment passed by the House of Representatives. The Secretary then said that no veto would occur as a result of the Murray/Shelby provision. Yet on Friday, July 20th/ the Administration again threatened a veto of the Senate version of the bill.

 The Administration Asserts: Flexibility - Some provisions as currently drafted are overly rigid and burdensome. Many of these issues, however, can be addressed through minor modifications that allow DOT sufficient flexibility to effectively administer its safety responsibilities.

Safety Groups Respond: In fact, the "minor modifications" proposed by the administration would continue its glacial pace towards ensuring commercial motor vehicle safety at the border. The FMCSA will continue to rely preponderantly upon paper applications, purported strengthening of border inspections of some carriers, and no guaranteed preliminary safety audit at each carrier s place of business. Taken together, the agency s promised alterations of the plan offered in rulemaking would not ensure preliminary safety fitness verification of applicant carriers prior to the arrival of their commercial vehicles at the southern border.

 The Administration Asserts: Cumulative Effect - The Senate provision bars DOT from granting applications of Mexican firms to operate outside the border zone unless and until DOT meets each one of twenty-two (22) separate requirements. Standing alone, certain requirements may be acceptable, but taken in the aggregate, they could result in a violation of our commitments.

Safety Groups Respond: The NAFTA arbitral panel ruled that the U.S. has the right to enforce its safety regulations, and that it may impose requirements on Mexican carriers that are not "like" those on U.S. or Canadian carriers to ensure that these regulations are met. The panel also ruled that the U.S. may evaluate Mexican carriers on a "case-by-case" basis. The Administration fails to explain why the Murray/Shelby provisions are not within the letter and spirit of the ruling, although Senator Dorgan asked the Administration at the hearing on Wednesday, July 18, for a legal memorandum on precisely this topic.

Furthermore, the Administration s approach fails to address or ameliorate the effects of the flaw in NAFTA that has contributed to the present, untenable situation. While the NAFTA agreement required the U.S. to open its border to Mexican trucking, it also required Mexico to implement safety regulations on its trucking industry ensuring the safety fitness of all carriers operating in all of the NAFTA countries. Because these two provisions were not linked in the agreement, we are faced with a ruling to open the border even though Mexico has not yet fulfilled its obligations to bring its safety regulations to a level commensurate with that of the U.S. and Canada.

 The Administration Asserts: Delay - Some of the requirements, as noted, are reasonable in and of themselves. When combined with the amendment s preamble that no Mexican applications may be processed until each requirement is 100% satisfied, however, the result would be undue delay (2 or more years) in the implementation of the NAFTA trucking provisions.

Safety Groups Respond: The Department of Transportation Inspector General has issued reports from December 1998 to May 2001 describing the lack of resources and seriously inadequate state of enforcement at the border. The General Accounting Office has also issued numerous reports documenting border conditions. These problems therefore should not come as a surprise to the administration. Secretary Mineta emphasized in his testimony before both houses of Congress the importance of improving inspection resources at the border and promised that, if resources were inadequate by the first of the new year, he would take as much time as necessary to ensure the level of staffing and the quality of the facilities needed to inspect Mexico-domiciled carriers. Now, the administration appears to view January 1, 2002 as a hard-and-fast deadline.

 The Administration Asserts: Significant Added Cost - To implement all requirements fully would cost at least $77.3 million over and above the additional funds requested in the President s budget. For example, requirements to install Weigh-In-Motion systems, fixed scales, electronic scanning machines, and hand-held tracking systems, as well as requirements to employ additional inspectors and to conduct inspections within Mexico, would be extremely costly. In addition, the provision requires the same standards and equipment at all border crossings regardless of traffic volume.

Safety Groups Respond: Ironically, the improvements in technology and equipment that are requested in the Murray/Shelby provision would speed up the time that it takes to process and inspect trucks at the border. The Department of Transportation (DOT) is thus complaining that we cannot process or inspect all trucks because it will take too much time at the border, while objecting to funding the technology that will make this processing faster and more efficient. The Murray/Shelby provisions requiring state-of-the-art technology at border crossings will facilitate traffic flow and enhance safety. Many of these technologies are already in use in California.

Why shouldn t federal and state inspectors have state-of-the-art technology available to stop non-compliant trucks and drivers?

Many border crossing points currently experiencing relatively low crossing traffic volumes are projected to receive burgeoning numbers and rates of cross-border traffic in both directions over the next few years. NAFTA implementation requires concerted funding by both the states and the federal government. If unsafe, overweight trucks are allowed to cross the border and travel throughout the U.S., the costs of crashes, traffic and infrastructure will also increase.

As the Inspector General has shown, strong enforcement at the border has a direct correlation with the safety levels of the trucks that cross. Therefore, all crossings must have the equipment and

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