July 7, 2004
Testimony of Tom “Smitty” Smith
on Concerns Related to Opening the Border to Mexico-Domiciled Long-haul Trucking Operations
Brief History: NAFTA Trucks
- NAFTA, which took effect in 1994, included a provision stating the U.S. would allow Mexican trucks access to border-state roads in 1995, and access to the full U.S. by January 2000.
- The Clinton Administration, citing serious safety concerns, continued to permit operations only in a 25-mile “border zone.”
- In February 2001, a North American Free Trade Agreement (NAFTA) tribunal ruled that the U.S. was in violation of the terms of NAFTA because it had categorically excluded the trucks. The tribunal also held that that U.S. could institute special and specific safety measures for Mexico-based carriers.
- As President Bush began his term, the Federal Motor Carrier Safety Administration (FMCSA) drafted a set of rules to admit Mexico-domiciled trucks.
- The rules allowed carriers to begin long-haul operations based on an Internet application and a $300 filing fee, with little or no specific safety oversight of applicants or operators.
- Border inspection stations remained under-staffed and under-funded, without modern equipment or data tools.
- Yet Mexico did not implement any truck safety regulations at all until 2000, and still lacks rules for hours of service drivers may be on the road.
- The U.S. Congress became very concerned with these safety differences and FMCSA’s inadequate rules, and enacted an appropriation provision requiring that FMCSA issue much better rules for truck safety covering border operations.
- The measure, called “Section 350,” required on-site (in Mexico) inspections for applicant carrier companies, a more stringent border inspection regime, verification of hours-of-service compliance for Mexico-domiciled drivers, insurance verification and other safety measures.
- It also required FMCSA to issue long-overdue rules upgrading the safety and licensure requirements for U.S. drivers.
- Studies required to accompany FMCSA’s new rules did not consider the environmental impact of long-haul operations.
- Instead, the agency’s environmental review focused only on the environmental effects of the border inspections (i.e., exhaust emitted during an inspection).
- The agency also neglected to analyze the regional effects of the increased truck emissions on border trade corridors.
- Yet Mexico-domiciled carriers emit substantially more pollutants than U.S. trucks, and this gap will grow far wider in 2007 when new pollution rules take effect in the U.S.
- And according to a 2003 study commissioned by the Commission for Environmental Cooperation, pollution is making children on the U.S.-Mexico border sick. It found that more than 36,000 children suffering from breathing problems were rushed to hospitals in the border city of Ciudad Juarez between 1997 and 2001. The study found a significant link between particulate matter and child deaths in Ciudad Juarez.
- Environmental and consumer groups challenged the scope of the FMCSA study, arguing that the Clean Air Act and the National Environmental Policy Act required a better analysis of the consequences.
- The Ninth Circuit Court of Appeals agreed, but the U.S. Supreme Court sided with the federal government on narrow procedural grounds, holding that the study done by FMCSA was adequate under the circumstances.
Supreme Court Decision Leaves Texas High and Dry
The practical result of the Supreme Court’s decision is that states and border communities will need to study the likely pollution impact of the trucks and come up with the off-sets to enable them to maintain their air quality, as required by the Clean Air Act and NEPA.
NAFTA Trucks: Where are we now?
- FMCSA may still publish its study– begun before the Supreme Court ruling but after the Ninth Circuit ruling. It will not be a full-blown Environmental Impact Statement or conformity analysis, and thus will be far less helpful to states.
- The federal DOT Inspector General’s Office will release an audit in the next month. Sen. Murray, who co-authored Section 350, in a letter has asked the Administration to await the results of this audit prior to opening the border, and has raised several substantial concerns about safety.
- 68% percent of all NAFTA related truck traffic comes through Texas.
- 33% percent of all NAFTA related truck traffic comes through Laredo.
- Trade has increased 2.5 times since NAFTA was signed in 1994.
- 700 Mexican trucking companies have applied to operate in the U.S.
- The volume of trucks in Texas is expected to increase by nearly 400% from 1999 to 2020.
Impact on Texas: Pollution
- A large amount of the nation’s overall truck freight– 68% of NAFTA traffics moves through Texas.
- In the San Antonio-Monterrey Trade Corridor, a major location for both drayage and future long-haul operations, truck freight contributes 84% of NOx and over 90% of carbon and particulate matter emissions.
- NAFTA trade in this corridor accounts for 12.4% of PM-10 and 8.5% of NOx overall
- In California, emissions testing found 12% of Mexican trucks failed the state’s emissions test, while 8% of American trucks failed.
Impact on Texas: HazMat Hazards
- Shockingly, Almost One-Third of Mexican Motor Carriers Failed HazMat Inspections When Inspected by Texas State Authorities in 2002-03
- American Motor Carriers Also Performed Poorly in HazMat Inspections, a Quarter Being Placed Out-of-Service
- HazMat Hazards:
- Mexican, as well as American, Motor Carriers Perform Significantly Worse in Thorough Level 1 HazMat Inspections Compared to Simple Walk-Around Level 2 Inspections
Insufficient HazMat Security Rules and Inspections:
- Given post-9/11 security concerns, current hazmat inspection requirements may not ensure safety and security as they should. A cross-governmental working group established by NAFTA has been working in this area for years, yet little information has been made available on resources for training, labeling rules and other serious concerns.
- There is no current information on how well Mexican motor carriers are conforming or would be able to conform to U.S. hazardous materials (hazmat) packaging, labeling, notification, or transportation requirements administered by the FMCSA and the Research and Special Programs Administration (RSPA).
Inadequate Border Inspection Staffing & Facilities
- FMCSA’s May 2002 border staffing standards report indicated that the agency was just starting implementation of its staffing plan, and stressed the need for more funding.
- The report also did not clearly address how the anticipated staff of 141 federal inspectors and 89 state inspectors at the border would coordinate their duties.
- Texas plans to establish 5 temporary border inspection facilities.
- Both border inspection staffing and federal-state inspection coordination must be adequate to ensure safety at the border.
Serious Differences in Driver Licensing Rules
- Sec. 350 prohibits long-haul operations by Mexican hazmat carriers until the U.S. comes to an agreement with Mexico ensuring that Mexican and U.S. drivers meet the same requirements.
- In the 1990s, the U.S. and Mexico signed a Memorandum of Understanding declaring the equivalence of those two country’s commercial drivers licenses (CDLs).
- Recent changes which increase U.S. CDL requirements (such as penalties for passenger vehicle convictions involving speeding or drunk driving) make differences between the two CDLs even greater than before.
Inadequate Drug and Alcohol Testing Labs
- Mexico-domiciled drivers must comply with U.S. requirements for driver alcohol and drug testing.
- Yet no facility for doing the drug testing in Mexico has been certified, according to previous public reports.
No Real Hours of Service or Logbook Rules
- Many drivers will enter the U.S. without any indication of the amount of time spent driving prior to crossing the border on-duty, driving, and off-duty.
- Mexico has no hours of service (HOS) requirements for commercial truck drivers. Instead, a “catchall” law limiting all labor within Mexico to eight maximum hours is claimed to apply.
- Enforcement of this limit for commercial drivers, or any workers, is unknown. Some drivers may have transported freight for days from the interior of Mexico, and enter the U.S. already fatigued.
- Moreover, drivers and carriers both will need extensive training on the rules for U.S. Hours of Service compliance, which are complicated and require well-maintained records.
Mexico-Based Vehicles May Not Comply with Basic U.S.Safety Standards
- In 1992, Mexico established commercial vehicle standards. However, the average age of a federally registered truck is 16 years.
- Many vehicles may currently be operating in the U.S. border zone that violate one or more of the safety standards, which in the U.S. apply to each vehicle based on the date of manufacture.
- Newer standards such as those requiring anti-lock brakes and automatic slack adjusters are not common on Mexican trucks, and Mexico-based carriers are not being asked to show safety certification paperwork at the border.
Inaccurate and Incomplete Mexican Driver and Carrier Safety Databases
- Sec. 350 requires information infrastructure to be accurate, accessible, and integrated with data systems used by the U.S.
- Databases for Mexican carrier and driver violations, including checks on commercial driver licenses and insurance, motor carrier operating authority, and inspection or enforcement data on commercial vehicles do not contain enough meaningful or accurate information on driver and carrier performance history and status.
- The U.S. data is kept by states and no centralized database exist.
- The most common violation found in inspections of border zone-only carriers from 1998 to 2000 was insurance violations– 7.5% of all carriers inspected lacked insurance.
- No verification of “Proof of Insurance”
- U.S. officials are required to verify operators’ proof of insurance. But there is no way for border inspectors to verify whether a driver’s paperwork matches the DOT file, if the coverage is adequate or has lapsed. Individuals and states or localities harmed by a crash or hazmat incident could pursue legal action directly against a U.S. carrier. But for crashes with Mexico-domiciled carriers, injured parties could only seek compensation in Mexican courts, where U.S. litigants have little success.
- Compensation from an uninsured Mexico-domiciled driver or company would be difficult to pursue successfully.
- Section 350(6) requires that state inspectors be empowered to enforce all applicable federal safety laws.
- Texas should clarify its laws to assure that state officials can place Mexican commercial motor vehicles out-of-service for various safety and environmental offenses, including unauthorized carriers which travel illegally beyond the border zone.
- Environmental hazards related to opening the border for long-haul trucking remain un-addressed.
- Emissions could affect our ability to meet clean air guidelines.
- The Texas Legislature should:
- Require truck emission inspections at the border.
- Require low sulfur fuel to be sold along the NAFTA highway and work with Mexico to increase use of low sulfur fuel.
- Develop driver education programs to reduce idling at borders and in freight yards.
Conclusion: Many Concerns Remain
- Serious safety and environmental hazards related to opening the border for long-haul trucking remain unaddressed.
- Texas legislators should pressure FMCSA and Congress to act to address the additional pollution and safety risks.
- Truck traffic along already-congested and polluted trade corridors is likely to substantially increase, which will disproportionately impact Latin American and other communities along these corridors.
- Texas legislators should also consider a fee structure to alleviate the extra costs for the inspections of these trucks.