- At 20 crossings, FMCSA inspectors did not have dedicated telephone lines to access databases, such as those for validating a Commercial Driver's License.

- At 14 crossings, FMCSA inspectors had only 1 or 2 spaces to park vehicles placed out-of-service. Also, the out-of-service space was shared with the inspection space at the majority of these crossings.

        While the FMCSA is on the right track in terms of providing additional inspectors and facilities, the Agency has not yet finalized any plans that will ensure safety to the American public once the border is opened. Additional inspectors and inspection facilities must be in place prior to allowing Mexican trucks into the U.S. - not after.
        B.         Compatibility of Commercial Vehicle Size and Weight Laws
        For many years, the FHWA told Congress, the trucking industry, and the public that truck size and weights were governed by highway and bridge design and construction standards that were both empirically based and largely inflexible. Whenever the trucking industry inquired as to increases in truck weights, they were told that such increases would result in deterioration of pavement and bridges. They were quickly informed that there was a public investment in the infrastructure, and that increases in size and weight limits would cause the infrastructure to deteriorate far more rapidly and not achieve its full life expectancy. Similarly, the industry was told that truck lengths and widths were dictated by highway design elements such as off-ramps that could physically accommodate vehicles only up to a certain size.
        With the border opening, questions of infrastructure deterioration and inherent design limitations seem to have taken a backseat to trucking industry and shipper calls for increased productivity. The fact that the United States has expanded trading relationships with two of our trading partners does not alter the design standards of the nation's already-existing highways; nor does it alter the need to protect the public investment in the infrastructure. Perhaps more importantly, it does not provide an excuse to degrade safety on the nation's highways. For these reasons, FMCSA should resist any attempt to use the trading relationships as a means to alter existing federal maximum truck size and weight limits.
        It is the experience of the Association and its members that there is a vast difference between the United States and Mexico in the area of truck safety. Given this difference, OOIDA believes that the U.S. must be very diligent in its enforcement of weight laws for trucks from Mexico operating in the United States.
        Excessive weight could seriously exacerbate what is already a bad situation with equipment from Mexico. Mexican trucking equipment seems to run from one extreme to the other in regard to mechanical condition, with some trucks being new and well maintained and a great many trucks being very old and in poor operating condition. Because, as OOIDA understands, Mexico has no fixed weigh station facilities, without strict weight enforcement on the U.S. side at the border, the Association fears that there will be a significant degradation in highway safety and the infrastructure.
        Additionally, few U.S. border crossings are equipped with fixed weigh stations. Texas currently has no fixed weigh stations or permanent inspection sites at the border crossings. With no fixed weigh stations in Mexico and no fixed weigh stations at the border, Mexican truckers who know or learn their way around state scales could conceivably travel throughout the United States and back into Mexico without ever being weighed.
        Fixed weigh stations at border crossings must be established before Mexican trucks are allowed into the United States to assure that Mexican trucks meet federal weight restrictions. FMCSA did not consider the additional costs of these facilities in their budget proposal. Millions of dollars in additional funds will be required to erect these permanent weigh station facilities.
        Compatibility of truck size and weight laws must be achieved, but it must be achieved at those reasonable and practical limits already in place in the U.S. which have been implemented to protect our very valuable highway infrastructure investment.
        C.        Efficient and Reliable Drug Interdiction Capabilities
        Mexico has long been a major transshipment point for drugs into the United States. Current U.S. interdiction capabilities are at best inadequate even with the present limited flow of truck traffic only allowed into the border commercial zones. Increased access to Mexican trucks will open the floodgates to new volumes of drug traffic that will quickly wipe out any semblance of control.
        Resolution of this problem will require a very significant additional commitment of U.S. enforcement resources. Just as important, it will require an equal commitment on the part of Mexican enforcement authorities - a commitment that by all present indications does not exist.
        Many reports in the press over the last several years have described the boon that NAFTA and the limited opening of the border has been to the Mexican drug trade. Current border enforcement is woefully inadequate to stop the still larger invasion of illegal drugs that will be transported by the increased numbers of trucks to cross the border under the current proposal.
        D.         State and Federal Fuel Taxes and Highway User Fees
        If nothing else, Mexican motor carriers and owner-operators have learned to survive in the harsh environment of corruption, kickbacks and depressed economic conditions that have existed in Mexico for many years. Skirting the law and "playing the system" to eke out a living is nothing new to them. Learning to manipulate our system to their advantage won't be hard.
        One method to reduce their operating costs is to install additional fuel tanks to carry extra high sulfur fuel purchased at a much lower cost in Mexico. These vehicles could travel hundreds of miles each trip on U.S. highways without ever buying fuel in the U.S. Aside from the environmental concerns, these Mexican trucks could avoid paying any state and federal fuel taxes.
        The principal way that highways and bridges are financed in the U.S. is through taxes assessed on the trucking industry. Fees and taxes on highway use are primarily collected through registration fees and through taxes on fuel consumed under the International Registration Plan ("IRP") and the International Fuel Tax Agreement ("IFTA"), respectively. Since Mexico does not participate in either plan, the fees and taxes cannot be collected under the agreements. The states rely on honest, periodic reporting of miles traveled and gallons of fuel purchased by motor carriers to collect user fees and taxes under IRP, IFTA and various other state specific taxation programs.
        As stated previously, no system is yet in place to assure that Mexican trucks will be required to pay even the most easily enforced fuel taxes, those collected at the pump. The more complicated highway use taxes such as the Federal Highway Use Tax, federal excise taxes, Ad Valorem taxes and mileage taxes that are essential to maintaining U.S. highways appear to have not even been considered by the Agency. Failure to subject Mexican trucks to an equal share of the tax burden for the highways they will be using will place U.S. truckers at an enormous economic disadvantage, and as more and more U.S. truckers are displaced this will result in substantial highway funding short falls under this scenario. Soon, U.S. highways would be in the same state of disrepair as Mexican highways are today.
        An alternative way in which highway use taxes are collected is through trip permits issued by the individual states, which Mexican trucks can obtain. In order to ensure that Mexican trucks pay their fair share of highway use taxes, the regulations should specify that Mexican trucks must obtain state trip permits for every state in which they operate and that failure to do so will result in the revocation of the carrier's operating authority.
        E.     Economic Impact
                1.         The Disparity in Driver Compensation Between U.S. and Mexican Drivers
        Allowing Mexican truckers to operate in the U.S. and in Canada before compensation levels are brought more in line would likely result in a substantial competitive disadvantage and a prolonging of the current situation of inadequate compensation for U.S. and Canadian truckers. The imbalances are great enough that we are likely to see even lower rates than exist today, rates that already make it extremely difficult for small business truckers and drivers to earn an adequate living in exchange for the investment involved and the amount of work performed.
                2.     Cabotage Restrictions
        Generally, under U.S. law and the terms of NAFTA only U.S. carriers can pick up and deliver freight within the U.S. Currently, however under 19 CFR § 123.14(c)(1) the U.S. Customs Service provides an exception allowing foreign-based vehicles to transport domestic shipments when the shipment is incidental to the immediate prior or subsequent engagement of the vehicle in an international movement. The Immigration and Naturalization Service ("INS") regulations governing foreign drivers are more restrictive. However, there is currently no effective mechanism in place for Customs, the INS or any other agency to enforce these restrictions.
        Will the U.S. be able to limit Mexican truckers to hauling only international freight during their operations in the U.S.? OOIDA contends the answer is, "No" for the foreseeable future. In the present deregulated environment and under the current system of motor carrier enforcement the competence of the U.S. to enforce the cabotage restrictions is virtually non-existent.
        Mexican truckers willing to haul at substantially lower rates would become a very attractive option to U.S. shippers, brokers and freight forwarders. And, with no credible enforcement effort in place to deter them, Mexican motor carriers will surely seize the opportunity to arrange the pick up and delivery of point-to-point domestic loads all over the U.S. earning far more than they can in their own country. Networks of profiteering freight brokers will provide plenty of business by happily arranging such loads and pocketing a handsome markup for themselves while knowing full well these trucks will skirt many, if not all, of the rules for safety.
        Aside from the initial contact when a truck enters the United States at the border, U.S. Customs and INS personnel rarely, if ever, come in contact with a foreign-based motor carrier's vehicles and drivers. Most state motor carrier enforcement personnel, those who regularly encounter commercial vehicles and drivers in the interior, are trained only to enforce federal and state vehicle and driver safety regulations. Few consider the origin and destination of a load, and how the movement may relate to the motor carrier's country of domicile. Furthermore, state enforcement agencies appear unwilling at this point to take on the task of enforcing cabotage restrictions. Even if state CMV enforcement agencies received the necessary funding, and inspectors were properly trained and had the requisite authority, at current staffing levels there are simply not enough of them to catch more than a token number of violators.
        IV.         SPECIFIC COMMENTS OF THE ASSOCIATION
        By the Agency's own admission, even after extensive work with Mexican transportation officials, Mexico has not yet completed implementation of a comprehensive safety inspection program. Mexico joined CVSA and signed a Memorandum of Understanding with CVSA in 1991. Since then, border-state CVSA members have been providing ongoing training and education to the enforcement sectors and trucking industries in Mexico. In fact, a training effort funded by U.S. subsidies was initiated in 1997-98 involving CVSA, Mexico and the Federal Highway Administration's Office of Motor Carriers. During this time over 4,000 Federal Police and SCT personnel were trained on roadside inspection procedures, the issuance of CVSA decals, the out-of-service criteria for commercial vehicles and drivers, and many other commercial vehicle safety initiatives. One would assume that there has been ample time for Mexico to develop and implement a commercial vehicle and driver inspection program. To our knowledge, not a single roadside inspection has ever been conducted in Mexico.
        OOIDA believes the failures by Mexico to implement a substantial inspection program can be attributed to the historically rampant corruption within the Mexican government and its enforcement agencies. The one obvious delay is in the fact that since joining CVSA and up until the installment of the current administration, with each new Mexican administration a complete house-cleaning of government personnel and resources has occurred. To our knowledge, none of the over 4,000 inspectors trained by U.S. agencies and organizations are still employed in that same capacity today.
        Vast U.S. federal and state resources have already been spent in training Mexican enforcement personnel to inspect to the CVSA North American Standard - much of which has been wasted. History would advise that the same is very likely to occur again. Regardless of how sincere the current Mexican administration may be at addressing its inadequacies in the area of motor carrier safety, there is scant assurance that Mexico will ever establish safety regulations and inspection programs comparable to those in the United States and Canada.
        Regulatory Flexibility Act:
        While the proposed additions to the requirements under 49 CFR § 385 in and of themselves will have no impact on small U.S.-based motor carriers, opening the borders to Mexican-based motor carriers will. Opening the border will introduce a whole new source of cheap labor into the American transportation industry. The detrimental effects will have the greatest impact on small U.S. motor carrier and owner-operator businesses. This will ultimately or even immediately be at the expense of safety as we race to the bottom in competition with a third world economy.
        Aside from Mexican-domiciled carriers undercutting already low rates, many U.S. carriers are eager to seize the opportunity to exploit a large pool of low-wage drivers from Mexico. In fact, many have been exploiting foreign drivers, including Mexican drivers, for years. They will hire Mexican drivers both to haul freight from Mexico to the U.S. and freight within the U.S. Most of the long-haul truck drivers will be Mexican nationals legally, or illegally, working within the U.S. permanently. The drivers will get a small stipend to live on while in the U.S. and carriers will keep them here for months at a time, or even longer. Like the Bracero program, the legal migrant labor program of the 1960s, Mexican workers will eventually comprise the entire trucking work force.
        Experienced professional U.S. drivers currently struggling to survive under already depressed compensation levels will quickly see compensation forced even further downward with no alternative but to seek employment elsewhere. The result in just a few years will be a Spanish-speaking workforce of over-the-road truck drivers in the U.S. They will be underpaid, and like other illegal workers subject to abuse by employers and rogue enforcement officials. Without the recourse of law, they will work longer hours than the Americans they replaced putting themselves and everyone else on the highways at risk.
        Unfunded Mandates Reform Act of 1995:
        FMCSA's determination that this rulemaking, that the opening of the U.S. border to Mexican carriers, will not result in expenditures by state, local and tribal governments or the private sector in aggregate of $100 million or more in any one year, is clearly wrong because it fails to account for all costs associated with opening the border. If we are to avoid the devastating impact of allowing the influx of unsafe commercial vehicles from Mexico on our highways, those presently allowed to operate in this condition unfettered in their own country, the cost of increased enforcement throughout the United States will be enormous. Failure to invest these resources on the other hand will result in significant increases in injuries and fatalities from increased accident rates. The Department of Transportation can forget about cutting the CMV accident numbers in half. The new challenge will be to keep them from doubling.
        In addition, the $88 million called for in the 2002 budget to build inspection facilities and hire inspectors is grossly inadequate. As an example, the Texas Department of Public Safety estimates that to build the eight facilities needed to cover the border crossings in Texas can cost upwards of $100 million, not including the cost of purchasing the land and staffing the facilities. In reality, the U.S. must spend billions of dollars just to adequately inspect Mexican carriers at the border. The cost escalates rapidly when considering the additional resources that will be needed to conduct enhanced enforcement efforts in the U.S. interior.
        Form OP-2 and OP-1(MX):
        OOIDA applauds the Agency's efforts to strengthen the regulations governing the application process for Mexican motor carriers seeking U.S. operating authority. However, the Association is appalled that this, and a largely ineffectual safety monitoring system are the only processes the FMCSA proposes to implement to provide assurances of the safe operation of Mexican carriers and drivers on our nation's highways.
        The FMCSA proposes only to require that Mexican motor carriers certify on either the OP-2 or the OP-1(MX) form that they will comply with the statutory and regulatory requirements administered by the U.S. Department of Labor, Section 18 of the Occupational Safety and Health Act, the Surface Transportation Assistance Act, and the Fair Labor Standards Act.
        Under NAFTA, Mexican carriers are required to comply with all U.S. laws and all applicable state laws when they enter the country. It is a useful idea for FMCSA to outline for Mexican carriers the particular areas of the law that they will most likely encounter. The references to these statutes in both of the proposed applications, however, are stated in very general terms. For the benefit of the applicant, and the commenters to these rulemaking proceedings, OOIDA believes that these legal responsibilities must be more fully enumerated in the application instructions.
        The NPRMs do make reference to the intention of the FMCSA to conduct workshops and provide written material to help Mexican applicants "...to understand the various requirements and the proper way to complete the applications." There is no pending proposal, however, that they read any FMCSA handouts or attend any FMCSA workshops as a condition of operating in the United States.
        The proposed application process is the only mandatory requirement through which the Agency will have an opportunity to educate Mexican carriers about U.S. and state law before they begin to operate in the United States. OOIDA encourages the FMCSA to explain these laws more thoroughly in the required applications or application instructions.
        While Mexican motor carriers will face new responsibilities under U.S. and state law, our country will face new challenges in enforcing those laws. The FMCSA's proposed safety monitoring system is an acknowledgment by the Agency that these challenges cannot be met by its current enforcement efforts.
        OOIDA recognizes that these new enforcement challenges will include many areas of the law outside the FMCSA's jurisdiction, including those listed in the certification requirements. However, there is no apparent effort on the part of other agencies with responsibility to monitor Mexican trucking to prepare for the opening of the border.
        What are the U.S. Department of Transportation's plans to enforce Mexican carrier compliance with the Surface Transportation Assistance Act? Where are the plans from the Labor Department and the Occupational Safety and Health Administration to ensure Mexican carrier compliance with their laws? Where are the U.S. Customs Service and the Immigration and Naturalization Service proposals to ensure Mexican carrier compliance with NAFTA rules? What plans have been made to ensure Mexican carrier compliance with individual state laws? OOIDA believes this is one of the crucial faults of the Agency's proposal to open all of our highways to Mexican trucks. The proposed FMCSA rules alone are a woefully incomplete plan to allow Mexican trucking operations into our country.
        If the FMCSA truly hopes that Mexican carriers will comply with these laws, the Agency should at least do a better job of educating Mexican carriers on all of their legal responsibilities before they are allowed to operate in this country. Furthermore, all of the federal and state agencies with responsibilities for enforcing the laws, not just the FMCSA, should develop enforcement plans such as the Agency is attempting to develop with these rules.
        OOIDA recommends that a joint task force be established to include at a minimum members of the Federal Motor Carrier Safety Administration, the Immigration and Naturalization Service, the U.S. Customs Service and the Drug Enforcement Agency to ensure that these regulations comply with the various agencies' regulations. Because NAFTA directly affects the regulatory responsibilities of each agency, it only makes sense that each has some input developing an enforcement plan that will work for all involved.
        Subpart B - Safety Monitoring System for Mexican Carriers
                § 385.21 Safety Oversight Program.
        The call for intensive monitoring and safety reviews within 18 months after issuance of a Certificate of Registration is unrealistic and dangerously unwise. It is ludicrous to allow Mexican-based carriers to operate in the U.S. with the only assurance of their ability to do so safely being the carrier's "word" on an authority application.
        Who is going to perform the safety reviews and how will they be accomplished? The FMCSA already lacks the resources to conduct compliance reviews on the hundreds-of-thousands of U.S.-based carriers. Unless the Agency is willing and able to commit far more resources than has been proposed, there is no way to ensure the safe operation of Mexican carriers and drivers. Furthermore, what is a safety review? Since the Agency fails to provide a definition in its proposal and none exists currently in §385.3, the Association is left to assume that it is something less than a compliance review - further compounding our concerns.
        The proposal would allow safety reviews to be conducted at an alternative location in the U.S. OOIDA believes strongly that the only way for the safety investigator to get a true picture of the carrier's entire operation is to conduct a review at the carrier's place of business, and it must be a full-fledged compliance review.
        The Association believes that there are currently very little if any data existing in Mexico on the integrity and safety performance of Mexican motor carriers. Likely, the only available data on Mexican-domiciled carriers resides in the U.S., and only on those vehicles and drivers that have undergone an inspection or on carriers that have been caught operating illegally in the U.S. All available data on Mexican carriers must first be sought out and compiled, then heavily considered prior to granting U.S. operating authority. The Agency is not proposing to do so.
        OOIDA is adamant that the FMCSA must deny U.S. operating authority to any Mexican carrier with a known poor vehicle and/or driver OOS rate. Furthermore, any Mexican-domiciled carrier with a history of operating illegally in the U.S. must be denied authority. To propose to open the doors without an attempt to investigate a carrier's history and allowing otherwise known "at-risk" carriers and violators to operate in the U.S. for 18 months or longer is unconscionable. For those with no available data, the FMCSA is strongly urged to conduct a full, on-site compliance review of a Mexican motor carrier's records and operations before considering whether to grant them U.S. operating authority.
                § 385.23 Expedited action.
        How will enforcement personnel determine the validity of the driver's license? Mexico only recently developed a computerized system to track driver records, and currently the database is largely unpopulated. For even those few records that are available, the majority of border crossings have no dedicated lines for enforcement officials to access the information.
        How will U.S. officials know whether or not a Mexican truck has been placed out-of-service in Mexico? If a Mexican vehicle is put out-of-service in Mexico, U.S. officials will have no way to verify if the proper repairs have been made. Additionally, the U.S. cannot be assured that proper inspections, or even any inspections, are taking place in Mexico. As of this date, Mexico has no safety inspection program in place that even remotely compares with that of the U.S.
        Enforcement officials in the U.S. will have no way of knowing whether a Mexican driver has been involved in a hazardous materials incident within Mexico. Even if there were a system for reporting such incidents in Mexico, there are no guarantees that the information will ever be available to U.S. authorities.
        Similarly, the FMCSA will be unable to determine whether or not a Mexican driver has tested positive for alcohol or drug use. Mexico may claim to have a program in place comparable to the U.S. system, but how can U.S. officials be assured that Mexico enforces these regulations?
        U.S. truckers must have valid proof of insurance to operate a commercial vehicle within the United States. Again, the Agency has no adequate means of determining whether or not a Mexican carrier's insurance is valid in the U.S. Even if a Mexican driver is carrying insurance documents in the vehicle, it may be difficult at best for U.S. officials to determine whether the company even exists or that it is answerable to the U.S. citizens who become accident victims. The FMCSA must assure the public that insurance companies providing coverage to Mexican drivers and carriers are licensed to do business in the United States.
        Mexican motor carriers, as in the U.S., must be held accountable for the actions of their owner-operators and drivers while operating on U.S. highways. It has been the experience of the Association that U.S. drivers are regularly penalized for violations perpetrated by motor carriers, shippers and receivers. When a Mexican driver is caught in violation of a U.S. law or regulation that is clearly the responsibility of the motor carrier, the motor carrier's authority should be suspended or revoked.
        National Environmental Policy:
        The FMCSA claims, "…that this action does not require any environmental assessment. An environmental impact statement is, therefore, not required." The Association strongly disagrees. High sulfur Mexican fuel does not meet U.S. fuel standards, nor are Mexican truck engines required to meet the same emissions standards as those in the U.S. As previously mentioned, Mexican trucks are likely to "load up" on as much low cost, high sulfur Mexican fuel as they can carry for use on U.S. highways. The effects of Mexican trucks burning large amounts of high sulfur fuel in our country's environment must be thoroughly studied before promulgating a final rule.
        Additionally, OOIDA is extremely concerned about Mexican drivers entering this country hauling hazardous materials. There are no assurances that the U.S. training requirements for drivers hauling these materials will be properly conducted in Mexico, if at all. Unless Mexican drivers possess the knowledge required to safely and properly handle the transportation of hazardous products, a rash of disastrous incidents will likely be quick to occur. The potential for severe harm to the environment, and the public, is enormous.
V.         CONCLUSION
Allowing Mexican trucks into the United States at this time is not in the best interest of the American public or U.S drivers and small business truckers. Truck safety and highway conditions will suffer greatly. Mexican motor carrier and driver safety regulations are either inadequate or non-existent. Allowing the border to open without correcting these inadequacies will result in a substantial decline in truck safety.
        Border enforcement capabilities will need to be strengthened prior to allowing Mexican trucks into the U.S. To ensure that our highways are safe, the Agency must conduct on-site compliance reviews before granting United States operating authority to Mexican motor carriers. Unless adequate personnel are deployed at border zones and additional funding is committed to provide permanent border weight and inspection facilities, there will be no way to ensure that Mexican carriers comply with United States laws and regulations.
        It is OOIDA's belief that few Mexican carriers are educated regarding the numerous federal and state laws and various agency regulations they will encounter. While many of these regulations and laws are outside of the control of the FMCSA, implementation of the entry provisions of NAFTA will require a cooperative effort between members of the FMCSA, INS, DEA, U.S. Customs and state enforcement officials at a minimum.
        Allowing Mexican trucks into the U.S. should not compromise the safety of our highways. Until measures are put in place to ensure that Mexican trucks and drivers entering the U.S. are safe and in compliance with all United States transportation laws and regulations, OOIDA remains adamant that the United States-Mexico border remain closed.
        Thank you for the opportunity to comment on this matter so very important to commercial vehicle safety and the vitality of this nation's economy.

	Respectfully submitted,
PAUL D. CULLEN, SR. JOSEPH A. BLACK General Counsel The Cullen Law Firm 3101 30th St., N.W. - Suite 300 Washington, D.C. 20007	JAMES J. JOHNSTON President Owner-Operator Independent Drivers Association, Inc. 311 R.D. Mize Rd. Grain Valley, MO 64029

July 2, 2001