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S. HRG. 110–1133 

OVERSIGHT OF THE 

U.S. DEPARTMENT OF TRANSPORTATION’S 

CROSS-BORDER TRUCK PILOT PROGRAM 

HEARING 

BEFORE THE

COMMITTEE ON COMMERCE, 

SCIENCE, AND TRANSPORTATION 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

MARCH 11, 2008 

Printed for the use of the Committee on Commerce, Science, and Transportation 

( 

(II) 

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

DANIEL K. INOUYE, Hawaii, Chairman 

JOHN D. ROCKEFELLER IV, West Virginia 

JOHN F. KERRY, Massachusetts 

BYRON L. DORGAN, North Dakota 

BARBARA BOXER, California 

BILL NELSON, Florida 

MARIA CANTWELL, Washington 

FRANK R. LAUTENBERG, New Jersey 

MARK PRYOR, Arkansas 

THOMAS R. CARPER, Delaware 

CLAIRE MCCASKILL, Missouri 

AMY KLOBUCHAR, Minnesota 

TED STEVENS, Alaska, Vice Chairman 

JOHN MCCAIN, Arizona 

KAY BAILEY HUTCHISON, Texas 

OLYMPIA J. SNOWE, Maine 

GORDON H. SMITH, Oregon 

JOHN ENSIGN, Nevada 

JOHN E. SUNUNU, New Hampshire 

JIM DEMINT, South Carolina 

DAVID VITTER, Louisiana 

JOHN THUNE, South Dakota 

ROGER F. WICKER, Mississippi 

MARGARET L. CUMMISKY, Democratic Staff Director and Chief Counsel 

LILA HARPER HELMS, Democratic Deputy Staff Director and Policy Director 

CHRISTINE D. KURTH, Republican Staff Director and General Counsel 

PAUL NAGLE, Republican Chief Counsel 

(III) 

C O N T E N T S 

Page 

Hearing held on March 11, 2008 ............................................................................ 1 

Statement of Senator Dorgan ................................................................................. 1 

Statement of Senator Pryor .................................................................................... 40 

WITNESSES

Cullen, Sr., Paul D., Managing Partner, The Cullen Law Firm, PLLC; and 

General Counsel, Owner Operator Independent Drivers Association, Inc. ..... 89 

Prepared statement .......................................................................................... 90 

Gillan, Jacqueline S., Vice President, Advocates for Highway and Auto Safety; 

accompanied by Henry Jasny and Sheryl Jennings McGurk ........................... 51 

Prepared statement .......................................................................................... 53 

Prepared statement of Sheryl Jennings McGurk .......................................... 97 

Peters, Hon. Mary E., Secretary, U.S. Department of Transportation; accompanied by Hon. David James Gribbin IV, General Counsel, U.S. Department of Transportation ........................................................................................ 8 

Prepared statement .......................................................................................... 10 

Scovel III, Hon. Calvin L., Inspector General, U.S. Department of Transportation ..................................................................................................................... 22 

Prepared statement .......................................................................................... 24 

APPENDIX

Hoffa, James P., General President, International Brotherhood of Teamsters, 

prepared statement .............................................................................................. 101 

Response to written questions submitted by Hon. Byron L. Dorgan to: 

Paul D. Cullen, Sr. ........................................................................................... 116 

Hon. Mary E. Peters ......................................................................................... 105 

Hon. Calvin L. Scovel III ................................................................................. 105 

Response to written questions submitted by Hon. Mark Pryor to Hon. Mary 

E. Peters ............................................................................................................... 107 

U.S. Chamber of Commerce, prepared statement ................................................. 99 

(1) 

OVERSIGHT OF THE 

U.S. DEPARTMENT OF TRANSPORTATION’S 

CROSS-BORDER TRUCK PILOT PROGRAM 

TUESDAY, MARCH 11, 2008 

U.S. SENATE, 

COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:34 p.m. in room 

SR–253, Russell Senate Office Building, Hon. Byron L. Dorgan, 

presiding. 

OPENING STATEMENT OF HON. BYRON L. DORGAN, 

U.S. SENATOR FROM NORTH DAKOTA 

Senator DORGAN. We will call the hearing to order on the U.S. 

Department of Transportation’s Cross-Border Pilot Program, dealing with cross-border Mexican trucking. 

Today’s hearing will examine the decision by the Department of 

Transportation to continue with its Mexican trucking pilot program, despite what I—and a number of others in the Congress— 

feel is clear language from the U.S. Congress, prohibiting the use 

of appropriated funds for that purpose. 

In my judgment, the intent of Congress is quite clear, the Department of Transportation is prohibited from using appropriated 

funds in this fiscal year to operate this pilot program. 

Secretary Peters, you have testified previously on this subject, 

and have commented publicly by your agency that the Department 

of Transportation attorneys, your lawyers, are saying that there is 

some loophole in the language that would allow the Department to 

proceed with the pilot program. 

Let me describe the sequence of events that brought us to this 

point. At 7:30 p.m. on September 6, 2007, the Department’s Inspector General released a report finding problems with Mexico’s record 

keeping, relating to accident reports, vehicle inspections or drivers’ 

violations. 

In fact, what the Inspector General who is here today said, is 

that there is no central repository of vehicle inspection records, 

driver’s records, or accident reports. To the extent that we have 

any of those reports, they are voluntarily provided. Outside of that, 

they don’t exist. 

One hour after 7:30 p.m. on September 6, when the Inspector 

General released his report, before the ink on that report had 

dried, the Department of Transportation at 8:30 p.m. on September 

2 

6, announced it would begin to allow Mexican trucks to do long 

hauls into the United States as part of the pilot program. 

On September 11, 2007, that’s 5 days later—the U.S. Senate 

voted 74 to 24, for an amendment that I offered in the U.S. Senate 

to the Transportation Appropriations bill, prohibiting the Department of Transportation from proceeding with the pilot program. 

The House of Representatives had previously passed such an 

amendment. 

Everyone involved, I believe, perfectly well understood what we 

were voting on. We were voting to cut off funding for the pilot program that had just begun. I said so on the floor of the Senate, 

many other Senators on both sides of the issue said so. The final 

vote was 74 to 24 in favor of cutting off funding for the pilot program. 

A 74–24 vote is not considered a close vote in the U.S. Senate. 

It is an overwhelming expression of the Senate that this pilot program should not be funded. 

I have a couple of charts I want to show. Senator McCain was 

on the floor of the Senate at that time, in fact, he opposed my 

amendment. John and I are good friends, and John used to chair 

this Committee. But friendship doesn’t always result in the same 

voting, and John disagreed with me and he voted against me—he 

was on the losing end of the 74–24 vote. 

But here’s what John McCain said, on the floor of the Senate, 

‘‘unfortunately, the Senate has voted 74–24 to prevent the pilot 

from going forward.’’ He knew what the vote was, he understood 

what he was voting on. 

Senator DORGAN. And I simply use Senator McCain’s statement 

on the floor to say that this was not ambiguous, in any way. The 


311MCCAIN1.eps
3 

Senate language was eventually incorporated into the omnibus appropriations bill, and when the Conference Report was issued, the 

conferees noted that the Senate and the House had approved similar provisions. 

Again, there was no question that the Congress was prohibiting 

the Administration from proceeding with its pilot program. 

But on January 4, 2008, the Administration announced it intended to proceed with the program anyway. The Administration 

took the position that the omnibus language prohibited on the creation of some future pilot program, and not the current program. 

Well, I have a letter from the Legislative Council that drafted 

this particular provision, and that letter says, ‘‘The amendment 

was ‘intended to preclude the carrying out of any demonstration 

program, including the pilot program put into effect, September 

2007.’ ’’ That is from the Senate legislative council staff that drafted the amendment. That was the intent of the amendment, that’s 

the way it was drafted. 

I have two letters from distinguished professors at law schools, 

both of these scholars are Harvard-trained lawyers, both senior positions in the U.S. Justice Department in their previous lives, both 

experts in Administrative Law, and both say that the omnibus Appropriations bill flatly prohibits the Department of Transportation 

from proceeding with the pilot program. 

Yet, the Administration has paid no heed to any of this. They 

have found attorneys to justify almost everything, they have found 

attorneys to say that torture is legal, and now they find attorneys 

to say that the Cross-Border Mexican Trucking Program that Congress has explicitly prohibited funding for, is legal, as well. 

Let me just mention, I want to go through a couple of charts, if 

I might. 

First of all, as we go through them, I want to point out that, for 

me, if we had equivalent standards between American trucking 

and Mexican trucking, I wouldn’t be here, at this hearing. I 

wouldn’t raise questions about a cross-border trucking pilot, or otherwise. I’d say, if we have equivalent standards, with respect to 

driver’s records, vehicle records, accident reports and so on, if we 

felt the trucking situation in Mexico was equivalent to ours, you’d 

find no objection from me. But that is not the case. 

Now, I believe that the Administration has said because there is 

a requirement in NAFTA, we have to proceed, notwithstanding 

other issues. The other issue, for me, is when the Inspector General 

tells me what I generally already knew, and that is, there is no 

central repository in Mexico of the type of information we generally 

have in this country, with respect to driver’s records, accidents reports, and vehicle inspections. 

The absence of such criteria, in my judgment, should render us 

unwilling to proceed with cross-border long-haul trucking, until 

such circumstances exist. 

The Administration, I believe, has always intended to decide to 

do what it wanted to do, notwithstanding what the Congress told 

it to do. 

This quote is from December 19, 2007, and it’s a news article in 

the Congress Daily, ‘‘Mexico might limit imports of pork and rice 

in retaliation for,’’ et cetera, et cetera, and in this article it says, 

4 

‘‘The Bush Administration might find a way to continue the pilot 

program, regardless of whether Congress cuts its funding.’’ A 

spokesman for the Federal Motor Carrier Safety Administration 

said, ‘‘It will review its options.’’ 

Senator DORGAN. I think before there was an announcement in 

January, the Administration was trying to make a decision, ‘‘We’re 

going to do what we want to do, it doesn’t matter so much what 

the Congress thinks.’’ 

This is from a September 11 article—‘‘the day the Senate voted, 

74–24 vote, the Senate approved a proposal by Senator Byron Dorgan prohibiting the Transportation Department from spending 

money on the North American Free Trade Agreement pilot program giving Mexican trucks greater access to U.S. highways.’’ Obviously, that reporter knew what we had passed, or at least 

thought that reporter knew that was what we had passed. 


311CONG1.eps
5 

And then it says, ‘‘John Hill, head of the Federal Motor Carrier 

Safety Administration decried the vote, saying that it is a sad victory for the politics of fear and protectionism.’’ My guessing is, that 

Mr. Hill decried the vote because he thought we were shutting off 

the pilot program. 

Senator DORGAN. This has been before a circuit court, a 3-judge 

court. One of the judges, during the hearing said the following: 

Judge Dorothy Nelson, February 12, 2008, said, ‘‘The Congressional 

intent is unambiguous. The intention was to halt the pilot program.’’ That, from the bench of a Federal court, and we’ll see what 

the 3-judge court decides, but at least one of the judges, during the 

hearing, seemed to feel that the intent of Congress was unambiguous. 


311USA1.eps
6 

And finally, I’ve quoted the DOT Inspector General report, it 

says, ‘‘While the DOT officials inspecting Mexican truck companies 

took steps to verify the onsite data, we noted that certain information was not available to them, specifically, information pertaining 

to vehicle inspections, accident reports, and driver violations maintained by Mexican authorities was not available to the DOT authorities, unless such information was included in company 

records. 


311CONG2.eps 311CONG3.eps
7 

Senator DORGAN. The DOT official stated that, either such information was not available from Mexican authorities, or the databases containing such information were still under development. 

I would say that I don’t want to make a Federal case out of this, 

but I guess that’s why we’re here. The fact is, the U.S. Congress 

passes Appropriations bills, we fund the Department of Transportation, we fully expect the Department of Transportation to comply 

with our funding requirements. In this case, we have a long-haul 

Mexican trucking pilot program, now underway, despite the fact 

the U.S. Congress has cut the funding for that program, and explicitly indicated it can not continue. 

Secretary Peters, the last time you were here, I said that I supported your nomination, was happy to do so, and now I regret it. 

And I regret it because I think you have both been given bad advice, and willingly taken bad advice. I think that there is an arrogance here, with respect to Federal agencies—it’s not just yours, 

there are other examples that I could use today, but you’re here, 

and we’re talking about this agency and this issue. 

There would not be a hearing if the Department of Transportation had complied with Congressional intent. Congress has explicitly said you may not proceed with the pilot program. 

The Congress didn’t say that because it wants to punish your 

pilot program, or because it wants to punish you, or because it 

doesn’t believe in NAFTA, or because it doesn’t believe in good relationships with our southern neighbors, the Congress took this action because we know—and now all of us know—that there are not 

equivalencies with respect to safety circumstances in Mexican longhaul trucking, and American trucking. 

You can certify one truck, you can certify one company—you can 

certify 10 or 100, if you like—and inspect every nut and bolt and 

every gasket, but the fact is, that still does not justify a decision 

that suggests that there is some sort of equivalency with respect 

to safety standards between Mexican trucking and American trucking. That does not exist. And because it doesn’t exist, the U.S. Senate—by a 74–24 vote—said you can not continue with the pilot program. And yet, you continue to do that. 

I appreciate the fact that you’ve come to this hearing, I intend 

to ask a series of questions, as you might expect. 

We are going to hear from you, Secretary Peters, you are accompanied by your counsel, D.J. Gribbin, from the Department. Mr. 

Calvin Scovel, the Inspector General for the Department of Transportation is here. 

Mr. Scovel, let me say about you, I think our Inspectors General 

do a terrific job, I sometimes agree with what they come out with, 

sometimes disagree with them. But, I generally understand that 

they put a lot of work into these issues, and I particularly benefit 

from them, and I appreciate your being here. 

Jackie Gillan in the second panel, who’s Vice President of Advocates for Highway and Auto Safety, and Mr. Paul Cullen, General 

Counsel of Owner-Operator Independent Drivers Association will 

also testify. 

Secretary Peters, I appreciate your coming today, and I will recognize you for a statement. 

8 

STATEMENT OF HON. MARY E. PETERS, SECRETARY, U.S. 

DEPARTMENT OF TRANSPORTATION; ACCOMPANIED BY 

HON. DAVID JAMES GRIBBIN IV, GENERAL COUNSEL, U.S. 

DEPARTMENT OF TRANSPORTATION 

Secretary PETERS. Chairman Dorgan, thank you so much for the 

opportunity to appear before you today to discuss the Department’s 

Cross-Border Trucking Demonstration Program. It is entirely fitting that we are having this conversation at a time when some had 

begun to question the equity and the benefits of our existing trade 

relationships. 

This demonstration program should serve as an example of how 

trade can be used to create new opportunity, new revenue, and new 

success for U.S. workers, and for U.S. companies. That is because 

the project was designed to right a decades-old wrong that has prevented American drivers and trucking businesses from earning a 

single cent off of the hundreds of billions of dollars worth of goods 

that are shipped by truck across the U.S.-Mexico border every year. 

Mexican trucking companies currently have the ability—separate 

and apart from the demonstration project—to operate within our 

borders. Since 1982, trucks from Mexico have been allowed to operate within the U.S., in the commercial zones that include cities 

such as Brownsville, El Paso, Nogales and San Diego. 

An additional 800 trucking companies from Mexico continue to 

have the right that was granted to them by the Interstate Commerce Commission and DOT, to operate anywhere in the United 

States. 

In comparison, U.S. trucks have never had the authority from 

the Mexican federal government to operate south of the border. 

This means that, before the start of this demonstration program, 

not one single American driver has profited from a cross-border 

trade that is valued at over $260 billion every year. 

This means that not one single U.S. trucking company has 

reaped the rewards of a vast and fast-growing surface trade with 

one of our biggest and closest trading partners. And this means 

that the United States—the world’s most aggressive proponent of 

breaking down trade barriers as the best way to improve domestic 

and international prosperity—has been locked out of one of the few 

markets where our truckers actually have a real opportunity to 

compete and to succeed. 

It was this imbalance that Presidents Bush, H.W. Bush, and Bill 

Clinton sought to end, when they negotiated NAFTA’s trucking 

provisions. It was this inequity that Congress so boldly voted to 

end when it passed NAFTA, and it was this one-sided market that 

this Administration pledged to end with the establishment, last 

September, of our Cross-Border Trucking Demonstration Project. 

So, when an employee of El Paso-based Stage Coach Cartage and 

Distribution became the first-ever U.S. driver to haul goods into 

Mexico last September, he did more than turn a profit—he made 

history. And he signaled the start of a new era, in which our drivers, our trucks, and our businesses can actually share in the profits 

that exist in the cross-border trade. 

That driver may have been the first, but he was hardly the last. 

Indeed, U.S. truckers are now taking advantage of this project at 

a rate of more than 2–1, compared to truckers from Mexico. As of 

9 

March 3, U.S. drivers have made more than 680 trips into Mexico. 

Meanwhile, drivers from Mexico have made fewer than 325 trips 

beyond the commercial zones as part of this project. 

We are achieving this remarkable advantage in our trade, while 

maintaining absolute safety of our highways. Our onsite audits in 

Mexico, our rigorous standards for admissions into this program, 

and our commitment to inspecting every truck, every time, have 

delivered a safety performance record that is without compare. 

To date, the out-of-service rate for trucks in this program, for example, is less than half that of the U.S. trucking fleet, and we have 

not experienced a single safety incident. 

In short, this project supports fair trade. This project levels the 

playing field for U.S. workers. This project allows American businesses to benefit from our trade relationships, and this project—I 

respectfully submit, sir—maintains the safety of our highways, 

which is my highest priority. 

Yet, there are those who reason that the cross-border trucking 

will hurt the domestic shipping industry. How we return to the 

days when U.S. trucks were prohibited from moving a single dollar’s-worth of goods across the U.S.-Mexico border would serve 

American companies better, is beyond comprehension. 

There are also those who argue that this project is somehow unsafe. Yet, the safety record of the participating trucks is actually 

better than the record of the U.S. trucking fleet. And our self-imposed requirement that trucks be equipped with GPS monitoring 

devices, allows us to monitor the location, and the duration, of 

every participating vehicle’s trip. 

Others have suggested that this project might compromise our 

homeland security. Given the fact that thousands of Mexican 

trucks safely enter our country every day outside of this project, it 

is ensured that this implication must be that U.S. trucks now using 

our border crossings, will engage in unsavory activities. Needless 

to say, I do not agree. 

And some have suggested that we are not following the ‘‘law of 

the land.’’ They argue, because last December, Congress told us not 

to establish a Cross-Border Trucking Demonstration Project that 

we should have dismantled an existing program that is working 

significantly in favor of United States truckers. 

I know that Congress understands that ‘‘to establish’’ means ‘‘to 

set up or create something new.’’ That is why, when it sought to 

end an existing Departmental program designed to require local 

communities to pay a small portion of the cost of Essential Air 

Service, it used the phrase ‘‘to establish or implement.’’ And that 

is why, when Congress sought to end an existing rule that allowed 

Chinese poultry products into the U.S., it also used the phrase ‘‘to 

establish or implement.’’ 

When Congress chose, instead, to use narrower language last December, and rejected the use of the words ‘‘to implement,’’ we heeded its wish—we will not establish a new demonstration program. 

Yes, we also know that this body would never knowingly shut the 

door on U.S. workers’ access to business opportunities and profits, 

including an Ohio trucking company that just last week, received 

authority to operate south of the border. 

10 

So, as we engage in today’s conversation, I ask that you consider 

the following questions. Do you think the best way to help our 

workers is to deny them access to new markets? Do you think that 

our truckers should sit idle, while other companies profit from our 

thriving cross-border trade? Do you think our trade relationship 

with Mexico should be balanced against us? Or, do you feel that 

U.S. drivers should have an opportunity to succeed in other markets? Do you think this country should fulfill its international obligations—especially when there are many potential benefits to our 

economy? 

I know where I stand on these issues, and while I certainly appreciate and respect that some of you may not agree, I proudly support safer roads, more opportunity for our workers, more earnings 

for our businesses, and more success for our economy, and I am 

pleased to report that many others do, as well. 

Chairman Dorgan, thank you so much for the opportunity to testify before you today, I would be happy to answer any questions 

that you may have. Thank you. 

[The prepared statement of Secretary Peters follows:] 

PREPARED STATEMENT OF HON. MARY E. PETERS, SECRETARY, 

U.S. DEPARTMENT OF TRANSPORTATION

Introduction 

Chairman Lautenberg and Members of the Committee, thank you for inviting me 

today to discuss the Department of Transportation’s (DOT’s) demonstration project 

to implement the long-delayed trucking provisions of the North American Free 

Trade Agreement (NAFTA). I am pleased to describe to you what the Department 

has done to implement Section 350 of the Fiscal Year 2002 Department of Transportation and Related Agencies Appropriations Act (P.L. 107–87; 115 Stat. 833, 864– 

868); Section 6901 of the U.S. Troop Readiness, Veteran’s Care, Katrina Recovery 

and Iraq Accountability Appropriations Act of 2007 (P.L. 110–28; 121 Stat. 112, 

183–185); and the additional steps we have taken to ensure that we safeguard the 

security of our transportation network even as we strengthen trade with a close 

neighbor and important partner. 

Fifteen years ago, the United States pledged to allow the free flow of commerce 

across the North American continent. Three U.S. Presidents and Congress have considered and ultimately supported NAFTA’s trucking provisions and the Supreme 

Court has rejected unanimously a challenge to the Department’s implementation of 

those provisions, allowing us to make that pledge a reality. Unfortunately, the delay 

in fully implementing NAFTA’s long-haul trucking provisions has impeded the efficient movement of goods to the markets on both sides of the southern border to the 

detriment of the Nation’s economy. This demonstration project started a process to 

remove this impediment, creating new opportunities, new hope, and new jobs north 

and south of the border. 

Background 

In 1992, President George H.W. Bush signed NAFTA. It was then enacted by Congress and signed into law by President William J. Clinton in 1993, and it became 

effective on January 1, 1994. Now, 14 years after we began implementing the agreement, its economic benefits are clear. U.S. merchandise exports to NAFTA partners 

have grown more rapidly than our exports to the rest of the world. Real Gross National Product Growth for NAFTA partners for the period 1993 to 2006 has been 

50 percent for the United States, 54 percent for Canada, and 46 percent for Mexico. 

Americans are reaping the benefits of this success. Each day, nearly $2.5 billion 

in trade flows among the United States, Mexico, and Canada, offering consumers 

greater choices and strengthening trade and investment ties with two democratic 

nations and longtime allies. U.S. employment has increased substantially as well, 

rising from 112.2 million jobs in December 1993 to 137.2 million in December 2006, 

an increase of 25 million jobs, or 22 percent. The jobs these exports support are particularly valuable to American workers, as they pay between 13 and 18 percent 

more than the U.S. national average. All of this helps to explain why, between 1993 

11 

and 2006, the Nation’s real Gross Domestic Product has nearly doubled. This record 

demonstrates that we must move forward to fully implement NAFTA. 

One of the agreement’s last remaining provisions to be implemented fully is the 

cross-border trucking provision. Originally planned to commence in December 1995 

with transportation between Mexico and the four Border States (Arizona, California, 

New Mexico, and Texas), it was to have been implemented fully by January 1, 2000. 

In December 1995, Transportation Secretary Pen ̃ a announced an indefinite delay in 

opening the border to long-haul Mexican commercial trucks to address legitimate 

concerns about the safety of Mexican trucks that would be traveling on our highways. 

Twelve years later these concerns have been addressed. With safety and security 

programs now in place, the time has come to move forward on a long-standing commitment with Mexico and Canada by proceeding with the trucking provisions of 

NAFTA. 

Demonstration Project 

Over the last thirteen years, there has been an ongoing conversation about safety, 

security, environmental, and economic issues involved with allowing trucks from 

Mexico to operate in the U.S. beyond the border zones. This conversation has occurred between DOT and Mexico’s Secretariat of Communications and Transport; it 

has occurred between the Presidents of our nations; it has occurred in the U.S. 

House and U.S. Senate chambers; it has occurred in the media; and it has occurred 

in front of a NAFTA dispute settlement panel, a U.S. Court of Appeals, and even 

the U.S. Supreme Court. These conversations made clear that there were a number 

of important and difficult issues that had to be addressed—and have been addressed—before moving forward with a graduated border opening. 

For that reason, the Administration has implemented a one-year demonstration 

project to authorize up to 100 Mexican trucking companies to perform long-haul operations within the U.S. These companies are limited to transporting international 

freight and are not authorized to make domestic deliveries between U.S. cities. Likewise, under this program, Mexico will grant authority to an equivalent number of 

U.S. companies to make deliveries between the U.S. and Mexico. This marks the 

first time that American trucks have been allowed to make deliveries in Mexico in 

accordance with NAFTA. 

Three entities are providing oversight for the demonstration project. The first, a 

binational group with representatives from both the U.S. and Mexico, provides continuous monitoring of the project and identifies and resolves any implementation 

issues as they arise. The second, an independent evaluation panel appointed by the 

Secretary and composed of experts knowledgeable of the issue, has been tasked with 

measuring and evaluating the demonstration project. Finally, we welcome the ongoing involvement of the Department’s Inspector General and any ideas he may have 

to improve the program’s effectiveness. We believe that this combination of close 

tracking and oversight provides both the means for addressing implementation 

issues in a timely fashion and also an independent means for an objective evaluation of the project. 

By granting authority to a limited number of Mexican carriers and monitoring 

them closely throughout the duration of the project, we are able to monitor and 

evaluate the adequacy of the safety systems we have developed to address the concerns raised since 1995. 

There are no exceptions to safety regulations for trucks or drivers from Mexico. 

They must meet all U.S. safety requirements when they cross the border now, and 

before they will be allowed to drive beyond the border zones. All drivers must have 

a valid commercial driver’s license, proof of medical fitness, and documentation of 

compliance with hours-of-services rules. They must be able to understand and respond in English to questions and directions from U.S. inspectors. They also must 

undergo drug and alcohol testing. In addition, all trucks must be insured by a U.S. 

licensed insurance company and meet U.S. safety standards. 

Let me put the magnitude of this demonstration project in context. Today, more 

than 700,000 interstate and approximately 400,000 intrastate companies are registered to operate in the U.S., with over 8 million large trucks registered here. 

Meanwhile, the 63 Mexican trucking companies that have passed the pre-authority 

safety audit at this time plan to operate only 304 trucks in the U.S. and employ 

257 drivers. As it currently stands, 18 Mexican trucking companies have secured the 

U.S.-based insurance required by the program and are currently operating as part 

of the demonstration project. These companies are operating 62 vehicles. However, 

only 7 percent of their deliveries in the U.S. have gone beyond the border commercial zones. 

12 

It also is important to note that the demonstration project will not involve hazardous materials transportation, bus transportation of passengers, or operation of 

longer combination vehicles by Mexican carriers. 

Safety 

Safety is at the heart of all we do at DOT and it has been foremost in our 

thoughts as we prepared to change the way trucks from Mexico operate in the U.S. 

Development of our safety programs has been guided by, but not limited to, the 22 

requirements that Congress included in Section 350 of the 2002 Act. The Inspector 

General’s September 6, 2007, report states that the Federal Motor Carrier Safety 

Administration (FMCSA) has addressed each of these requirements. I have attached 

a table of these requirements to the written testimony and the actions FMCSA has 

taken to satisfy them. 

Just over a year ago, I traveled to Monterrey, Mexico, to visit a Mexican trucking 

company. There, I witnessed FMCSA personnel conducting a pre-authorization safety audit on the motor carrier as required by Section 350. Under the law, at least 

50 percent of such audits must take place at the carrier’s place of business in Mexico. For this demonstration project, FMCSA has committed to and is conducting 100 

percent of pre-authority safety audits in Mexico. These audits ensure that Mexican 

carriers wishing to operate in the U.S. beyond the border zones have systems in 

place to comply with all DOT regulations, including driver qualification, drug and 

alcohol testing, hours-of-service, vehicle maintenance, and insurance. 

During the pre-authority safety audit, FMCSA inspectors also conduct vehicle inspections of the trucks a company wishes to use in the U.S. The Inspector General’s 

September 6, 2007, report indicated the FMCSA was only inspecting ‘‘available’’ vehicles. FMCSA has changed this policy and is now inspecting all vehicles the carrier 

states it will operate in the U.S. when it conducts the pre-authority safety audit. 

The inspection is a comprehensive 37-step process that involves checking the vehicle from front to back and top to bottom. At the conclusion of this inspection, if no 

defects are discovered, the vehicle is issued a 90-day Commercial Vehicle Safety Alliance (CVSA) safety decal. All trucks operating in the test program are required 

to display a current decal at all times while operating in the U.S., which means they 

will be inspected at least once every 90 days. 

This safety audit is merely the beginning of FMCSA’s oversight. All Mexican 

trucks operating beyond the border zones have a unique identifier, an ‘‘X’’ at the 

end of the DOT number marked on the vehicle. This is easily visible to FMCSA and 

State inspectors. When these trucks reach the border, they are subjected to additional vehicle inspections and license checks. Under Section 350, FMCSA is required 

to check the validity of licenses for at least 50 percent of the drivers entering the 

country. However, FMCSA is working to check 100 percent of drivers and vehicles, 

each time they enter the country to: (1) verify the vehicles have the proper safety 

decals; (2) verify the driver has a valid license; and (3) ensure the driver can speak 

English. 

FMCSA uses a satellite-based Global Positioning System (GPS) to track and monitor the vehicles in the demonstration project. The system locates the vehicle every 

30 minutes and records those locations for future reference. FMCSA is using this 

information to monitor when the Mexican vehicles are in the U.S. and measure how 

many miles they travel. In addition, FMCSA can use reports from the system to 

identify possible hours-of-service violations, verify driver records of duty status, and 

identify possible cabotage violations. FMCSA will follow up possible violations with 

targeted investigations or complete compliance reviews as needed. 

Since 1995, Congress has appropriated and FMCSA has spent more than $500 

million to improve border inspection stations and hire more than 600 new State and 

Federal inspectors to enforce truck safety on the border. We have deployed 125 

FMCSA inspectors and an additional 149 auditors and investigators along the 

southern border at all truck crossings. Our State partners in Arizona, California, 

New Mexico, and Texas have deployed an additional 349 inspectors. These safety 

professionals oversee the safety of Mexican trucks providing transportation in the 

existing border commercial zones and have made noteworthy progress in establishing the safety foundation for this demonstration project. These inspectors conducted more than 210,000 driver and vehicle inspections of Mexico-domiciled carriers in the commercial zone during Fiscal Year 2006 and performed more than 

240,000 automated, real-time, checks of Mexican drivers’ licenses. Their efforts are 

paying off. Ten years ago, the out-of-service rate for Mexican trucks was 59 percent. 

Since the increased enforcement that resulted from hiring additional FMCSA and 

State staff, the rate has dropped to 21 percent last year, which is comparable to 

the out-of-service rate we typically observe when we select U.S. trucks for inspection. 

13 

I want to highlight that while these inspectors have been effective and are helping 

the Department satisfy its Congressional requirements, we are looking toward more 

comprehensive and effective screening methods for the future. FMCSA is working 

with the Department of Homeland Security’s (DHS) Customs and Border Protection 

(CBP) to have motor carrier safety integrated into the International Trade Data 

System, or ITDS, which is part of the Automated Commercial Environment development effort. When this initiative becomes fully operational later this year, every 

Mexican trucking company will have its authority and insurance checked and every 

Mexican truck driver will have his or her license verified each time the driver 

crosses the border, whether the vehicle is operating within the commercial zone or 

involved in long-haul transportation. Since these computer checks occur prior to a 

truck’s arrival at the southern border, if a problem is discovered, notice will be sent 

back to the company or broker entering the information so issues can be addressed 

before the truck even reaches border points of entry. If the truck arrives at the border, the CBP Officer will receive notice that there is an issue with the truck and 

direct it for further inspection by FMCSA or State inspectors. 

While in the U.S., the performance of these Mexican carriers will be closely monitored. We have established, through rulemaking, a list of seven safety problems related to driver licensing, operating unsafe vehicles, drug and alcohol testing, and insurance, which would lead to action by FMCSA up to and including revocation of 

a carrier’s provisional authority if not addressed promptly. 

FMCSA has worked with State and local law enforcement officials so they can assist in ensuring Mexican trucks operate safely and within the limits of their authority. In 2002, FMCSA established regulations prohibiting all carriers from operating 

beyond the scope of their authority and requiring that vehicles operated by non-compliant carriers be placed out of service. Since that time, every State has adopted and 

begun enforcing these provisions. The CVSA has incorporated this violation into its 

Out-of-Service criteria, meaning that a Mexican truck discovered operating beyond 

the scope of its authority will not be allowed to continue. We have incorporated 

these new regulations into training given to all commercial vehicle inspectors. 

FMCSA and the International Association of Chiefs of Police have developed a 

commercial motor vehicle awareness training program. We have trained more than 

200 law enforcement officers to instruct other law enforcement officials on how to 

identify a Mexican motor carrier, how to verify the validity of a Mexican driver’s 

commercial license, how to determine whether the carrier is operating within its authority, and where to call if they need additional assistance with truck-specific 

issues. Through this program, we have developed and implemented a training program that provides State and local law enforcement officers in the U.S. detailed information on cabotage regulations and enforcement procedures. 

In addition to the Federal safety requirements, the Mexican trucks operated in 

this demonstration project will be required to adhere to the same State requirements as U.S. trucks, including size and weight requirements and paying the applicable fuel taxes and registration fees. In preparation for this project, FMCSA has 

worked with the four Border States to develop the capability for these States to register Mexican trucks in the International Registration Plan and International Fuel 

Tax Agreement. 

Despite the steps I have outlined above, some argue that the demonstration 

project is still unsafe. The current safety record of the participating trucks in the 

demonstration program is better than that of the U.S. trucking fleet. Our requirement that trucks be equipped with GPS monitoring devices—a provision that goes 

beyond what Congress has directed—allows us to monitor constantly and pinpoint 

the location and duration of every participating vehicle’s trip. 

While we have come a long way since the days when Mexico-domiciled trucks’ outof-service rate was 59 percent, some still maintain that, because Mexico does not 

have a regulatory scheme identical to that of the U.S., Mexican trucks will not operate safely in this country. Yet, this assertion is not made with respect to what takes 

place on our northern border. Canada, for instance, does not require that its commercial drivers be drug tested randomly. However, when these drivers operate in 

the U.S., they must participate in a random drug testing program. No one is suggesting that because Canada does not test drivers randomly we should prohibit Canadian trucking companies from operating in the U.S. However, that is what opponents of the demonstration program would have us do with Mexican drivers. 

Some have suggested that we are not following the law of the land. They argue 

that because Congress told us last December not to establish a cross-border motor 

carrier demonstration program that we should have dismantled a previously-established program that is working significantly in favor of U.S. truckers. U.S. trucks 

have made more than twice as many trips into Mexico as Mexican carriers have 

made into the interior of the U.S. under this demonstration program. 

14 

The Administration has looked very closely at the 2008 DOT Appropriations Act, 

particularly section 136. By prohibiting the use of funds ‘‘to establish’’ a cross-border 

motor carrier demonstration program, section 136 does not prohibit spending to continue to implement the ongoing cross-border demonstration project, which was established in September 2007—well before enactment of the current Appropriations 

Act. Consistent with the Appropriations Act prohibition, FMCSA will not establish 

any new cross-border demonstration programs involving Mexican motor carriers. In 

addition, we will continue to ensure that previously enacted legislative mandates 

are followed, including sections 350 and 6901, as required by section 135 of the Consolidated Appropriations Act, 2008. 

The appropriations bill passed by the House of Representatives last July (H.R. 

3074, 110 Cong. § 410 (2007)) would have barred spending ‘‘to establish or implement’’ a cross-border demonstration project. However, the enacted version of the bill 

is drafted more narrowly and prohibits only use of funds ‘‘to establish’’ such a 

project. 

Security and Environment 

While safety is the highest priority, the issues involved in this demonstration 

project are not limited to safety. For this reason, the Department has coordinated 

closely with other Executive Branch agencies, particularly with the Department of 

Homeland Security (DHS) on border security matters and with the Environmental 

Protection Agency (EPA) to address environmental issues. While these agencies can 

address better the details of their programs, let me share with you an overview of 

what is being done to address these areas. 

The majority of vehicles Mexican trucking companies will use for long-haul operations have been manufactured to meet both U.S. and Mexican emission standards. 

In fact, most commercial motor vehicles now entering the U.S. from Mexico were 

manufactured in the U.S. or Canada, meaning that they were manufactured to U.S. 

emissions standards. As breakdowns are costly for both carriers and shippers, we 

expect that the fleet of trucks used for long-haul cross-border transportation will be 

newer and cleaner. We anticipate that Mexican companies will maintain or expand 

their use of equipment that is manufactured to meet U.S. standards. Additionally, 

Mexico also has upgraded its domestic vehicle emission requirements in the last 3 

years and now has regulations similar to those currently in effect in the U.S. EPA 

is working with the Mexican government to encourage full adoption of new U.S. 

truck and fuel standards. 

On a yearly basis, CBP processes about 4.5 million trucks through the U.S.-Mexico Border. It is estimated that the maximum of 100 carriers permitted to participate in this demonstration project will account for approximately 1,000 trucks, a 

very small percentage of the CBP workload. As I indicated earlier, currently, there 

are 18 Mexican carriers operating 62 trucks. Clearly, implementing this demonstration project will not change our border security or immigration security posture. 

Current Processing 

All commercial truck cross-border traffic must stop at a designated border crossing. As required by statute and regulation, each truck is processed at the border, 

using automated systems to assist in determining whether the cargo, truck, and 

driver are admissible and whether any of the elements pose a security, immigration, 

agriculture, or smuggling risk. 

If the CBP Officer determines that further inspection is necessary, the driver, 

truck, and cargo are referred for a secondary inspection. In a secondary inspection, 

CBP officers have many inspection tools at their disposal, including access to commercial, criminal and law enforcement databases, forensic document equipment, agricultural experts, and large-scale scanning systems. 

If the CBP Officer performing primary or secondary inspections determines that 

the driver, truck, and cargo are admissible and do not pose a risk, then the driver 

is allowed to proceed into the United States. The Mexican carrier is then able to 

deliver the cargo to a location within the commercial border zone, which can range 

up to 25 miles from the border (or 75 miles from the border within Arizona). The 

cargo remains within the commercial zone until it can be picked up by a U.S. driver 

and truck. 

Current CBP inspections are in addition to and separate from motor carrier inspections. The current CBP inspections and the current motor carrier inspections 

will continue under the demonstration project. 

Demonstration Project 

Under the demonstration project, processing of Mexican nationals and commercial 

trucks is in accordance with CBP guidelines. All cross-border commercial truck traffic is required to stop at a designated border crossing. Mexican drivers are required 

15 

to present an entry document, and if traveling outside the 25-mile commercial zone 

(or 75-mile limit within the State of Arizona), the drivers are issued a Form 1–94 

pursuant to regulations, and follow CBP inspection procedures that include US 

VISIT (United States Visitor and Immigrant Status Indicator Technology) biometric 

vetting, and other security requirements. 

CBP processing of drivers, cargo, and conveyances for security screening and 

trade enforcement remains consistent for truck carriers participating in this demonstration project. Participants continue to provide advanced cargo information as 

required under the Trade Act of 2002. Participants remain subject to immigration 

entry requirements for the driver and crew and to the import requirements of other 

government agencies in order to gain entry into U.S. commerce. 

After the CBP check, all participating demonstration project carriers from Mexico 

proceed to FMCSA’s inspection checkpoint—where every truck and every driver are 

checked every time they cross the border. 

DOT and DHS continue to partner in this effort to ensure safety and security requirements are completely addressed and satisfied prior to a carrier being allowed 

to proceed to an interior location in the United States. 

Conclusion 

Trucks from Mexico have always been allowed to cross the U.S. border. Until 

1982, they could travel anywhere in the United States. For the last 25 years they 

have been restricted to specific border areas in Arizona, California, New Mexico, and 

Texas. Every day, thousands of trucks from Mexico enter the United States. Every 

day, drivers from Mexico operate safely on roads in major U.S. cities like San Diego, 

El Paso, Laredo, and Brownsville. And every day, Federal and State inspectors ensure trucks are safe to travel on our roads. 

We have developed this limited program to demonstrate the effectiveness of the 

systems we have deployed to satisfy Section 350 of the 2002 Appropriations Act and 

Section 6901 of the 2007 U.S. Troop Readiness Appropriations Act and to ensure 

the safety of the U.S. traveling public. 

Thank you for the opportunity to appear before you today. I look forward to working with this Committee and the transportation community to ensure a safe transportation system for the citizens of the United States and to strengthen our trade 

with Mexico. 

16 

APPENDIX 1 


311PETER1.eps
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311PETER2.eps 311PETER3.eps
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311PETER4.eps 311PETER5.eps
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311PETER6.eps 311PETER7.eps
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311PETER8.eps 311PETER9.eps
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311PETER10.eps 311PETER11.eps
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Senator DORGAN. Secretary Peters, I of course will have questions, but let me call first on the Inspector General Scovel. 

We appreciate your being here, you may proceed. 

STATEMENT OF HON. CALVIN L. SCOVEL III, INSPECTOR 

GENERAL, U.S. DEPARTMENT OF TRANSPORTATION 

Mr. SCOVEL. Chairman Dorgan, I appreciate the opportunity to 

testify today on our ongoing work regarding the Department’s demonstration project for Mexican trucks. 

Over the past decade, we have issued over a dozen reports and 

testimonies on this issue, and we are pleased to provide our interim observations, as the Committee reviews the demonstration 

project’s operation, to date. 

Our last report, issued in September, described how FMCSA had 

prepared for the demonstration project. We verified that FMCSA 

was conducting onsite reviews at applicants’ places of business in 

Mexico and that safety mechanisms—such as truck inspections at 

border crossings—remained in place. 

We also raised key issues that the Department needed to address 

before initiating the project, such as ensuring adequate plans to 

carry out the Department’s commitment to check every demonstration project truck, every time it crossed the border into the United 

States, ensuring readiness on the part of State officials, to enforce 

demonstration project rules, and addressing slight differences between the policies, rules and regulations implemented by FMCSA, 

and the specific language of Congressional requirements. 

Before initiating the project, the Department was required, by 

law, to address the concerns we raised. After we issued our report, 


311PETER12.eps
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the Department provided a response to Congress, detailing actions 

to be taken on each item, and then immediately initiated the demonstration project. 

Yesterday, we issued the report from which this testimony is 

drawn. Today I will discuss three interim observations, based on 

the demonstration project’s first 6 months of operation. 

First, while FMCSA has implemented plans to help ensure every 

participating truck is checked, every time it crosses the border, it 

has yet to implement a key quality control to ensure that all checks 

are being done, even though it committed to do so in its September 

6, 2007 report to Congress. 

FMCSA provided us with records to show that nearly 3,700 

checks of safety inspection decals, driver’s licenses and English language proficiency were made since the demonstration project began 

in September. 

However, the agency has not implemented a quality control 

measure, a cross-check with Customs and Border Protection information that is important for ensuring the reliability and completeness of this information. Without this quality control procedure, we 

do not know whether all of the key safety checks have been done, 

or how much confidence can be placed in the information used to 

evaluate the demonstration project. 

Second, fewer carriers and vehicles have participated in the 

project than expected, and over 90 percent of the 3,700 trips recorded by FMCSA for the participants are inside the commercial 

zones, that is, within a few miles of the border. As a result, we do 

not have enough information to draw meaningful conclusions about 

safety performance. 

As of March 6, 2008, only 19 Mexican carriers have participated 

in the project, instead of the 100 anticipated. While FMCSA advises that more are likely to participate, after 6 months of the 

project, the number of carriers and the number of vehicles are far 

less than needed for statistically reliable projections about safety. 

We will not be able to tell, for example, whether any significant 

difference exists between the crash records and safety performance 

of U.S. and Mexican trucks. 

Third, as the demonstration project proceeds, we continue to review FMCSA’s actions to monitor and enforce safety rules and 

project requirements. For example, FMCSA has provided support 

and data to an independent evaluation panel, charged with measuring any adverse safety impacts from the project. The panel 

shares our concern about not having enough data to draw meaningful conclusions at the project’s end. 

FMCSA also has issued guidance and provided training for State 

enforcement officials. In September, we reported that officials in 5 

States did not consider themselves ready to enforce demonstration 

project rules. Officials in those same 5 States now report being 

ready, citing training and guidance provided by FMCSA. 

Our work, to date, has also verified that participants’ insurance 

information, maintained in FMCSA’s records, is valid; that FMCSA 

has systems for monitoring Mexican carriers and driver convictions; and that FMCSA has placed global positioning devices on 

some U.S. and Mexican trucks that are participating in the project. 

24 

1OIG Report Number MH–2008–040, ‘‘Interim Report on NAFTA Cross-Border Trucking 

Demonstration Project,’’ March 10, 2008. OIG reports and testimonies can be found on our 

website: www.oig.dot.gov. 2Section 6901 of the U.S. Troop Readiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007 (Public Law 110–28). 3OIG Report Number MH–2007–065, ‘‘Issues Pertaining to the Proposed NAFTA Cross-Border 

Trucking Demonstration Project,’’ September 6, 2007. 

We will continue to review these areas as the demonstration 

project progresses. 

This completes my statement, I would be happy to answer any 

questions you might have. 

[The prepared statement of Mr. Scovel follows:] 

PREPARED STATEMENT OF HON. CALVIN L. SCOVEL III, INSPECTOR GENERAL, 

U.S. DEPARTMENT OF TRANSPORTATION

Chairman Inouye, Vice Chairman Stevens, and Members of the Committee: 

Thank you for the opportunity to testify today on our ongoing work regarding the 

Department of Transportation’s (DOT) demonstration project for Mexican trucks. 

Over the past decade, we have issued over a dozen reports and testimonies on this 

highly charged topic. Our interim report on the demonstration project, from which 

this testimony is drawn, was issued on March 10, 2008.1 We are to provide our final 

report 60 days after the conclusion of the project. 

As you know, in February 2007, the Secretary of Transportation announced her 

intention to start a 1-year demonstration project to allow up to 100 Mexico-domiciled carriers to operate throughout the United States. Shortly afterward, in May 

2007, Congress, set requirements 2 to be met before the project could actually start. 

One key requirement mandated that the Department, prior to initiating the project, 

take action to address any issues raised in an initial report required by our office, 

and report to Congress detailing such actions. 

Our initial report on September 6, 2007,3 described how the Federal Motor Carrier Safety Administration (FMCSA) had implemented significant initiatives in 

preparation for the demonstration project. Through direct observations and analyses, our work verified that FMCSA was conducting promised on-site reviews at applicants’ places of business in Mexico. Additionally, we reported that safety mechanisms, such as truck inspections at border crossings, remained in place. Further, our 

interviews with key state enforcement personnel showed FMCSA’s general readiness 

to enforce safety rules during the demonstration project, although officials in five 

states said they were not yet ready. 

Our initial report emphasized three issues that the Department needed to address 

to Congress before initiating the project. These were: 

• Ensuring that adequate plans were in place to carry out the Department’s commitment to check every participating truck every time it crossed the border into 

the United States (including a quality control plan to ensure the system is effective). 

• Ensuring that state enforcement officials understood how to implement guidance on the demonstration project and that training initiatives filtered down to 

roadside inspectors. 

• Addressing our determination that FMCSA had implemented policies, rules, 

and regulations that differed slightly from the language in 3 of 34 specific Congressional requirements. For this third area, the most significant variation was 

limiting inspections during on-site safety reviews to those trucks that were 

available at the site at the time of the inspection, rather than all vehicles 

planned for use in the United States. We did not identify any safety impacts 

arising from this difference as long as the commitment to check every participating truck every time it crossed the border was fulfilled. 

To address our issues, the Department included, in its response to Congress, Commercial Truck Border Crossing Implementation Plans for 25 U.S.-Mexico Border 

Crossings. The plans were designed to ensure that every participating truck is 

checked every time it crosses the border into the United States. The response also 

provided FMCSA’s outreach plan designed to ensure that state enforcement personnel have the information needed to oversee the safety of trucks participating in 

the demonstration project. Finally, FMCSA agreed to address the three areas that 

25 

4 Consolidated Appropriations Act, 2008, Public Law 110–161, Division K, Title I, Section 136, 

(2007). 5 Enclosure 4 of the Department’s September 6, 2007, letter report to Congress. 

differed slightly from the Congressional requirements, including instituting a policy 

of reviewing all vehicles planned for use in the United States. 

As required by the May legislation, our ongoing audit is verifying the degree to 

which these actions are being carried out. We are specifically charged with examining mechanisms established to determine whether the demonstration project is adversely affecting motor carrier safety, reviewing Federal and state monitoring and 

enforcement activities, and assessing the degree to which the demonstration project 

consists of a representative and adequate sample of Mexico-domiciled carriers likely 

to engage in long-haul operations. 

While our mandate is to address those specific issues required by Congress, we 

are mindful of the legal questions currently before the 9th Circuit Court of Appeals. 

Among those is the question of the legal effect of the language contained in the FY 

2008 Appropriations Act 4—‘‘None of the funds made available under this Act may 

be used to establish a cross-border motor carrier demonstration program. . . .’’ In 

my view, after reading the Senate floor debate from early September, it is clear that 

the sponsors of the amendment to the Senate Fiscal Year 2008 Transportation and 

Housing Appropriations bill in September 2007 wanted to halt the project by denying funding. The parties to the court action in the 9th Circuit have briefed and orally argued the interpretation of the language in the underlying Consolidated Appropriations Act itself. Given that this matter is joined before the 9th Circuit and is 

outside my mandate, I will respectfully defer to that body’s judgment. 

Given our legislative requirements to review and monitor the demonstration 

project, our ongoing audit will continue. Accordingly, as the year-long demonstration 

project reaches its 6-month point, today we make the following three interim observations. 

First, FMCSA has implemented plans to ensure every truck is checked every time 

it crosses the border, but it has not implemented a key quality control to ensure that 

checks are being done, despite a commitment to do so. As stated in our September 

2007 report, these checks are important because they review the driver’s license to 

ensure that the vehicle is driven by a licensed driver and verify that the truck has 

an inspection decal issued by the Commercial Vehicle Safety Alliance (CVSA). We 

verified that FMCSA had developed 25 site-specific border-crossing plans in conjunction with U.S. Customs and Border Protection (CBP) personnel to carry out these 

checks at the border, and FMCSA’s records showed about 3,700 checks were done 

since the demonstration project began in September. However, FMCSA has not implemented a quality control measure that is important for ensuring the reliability 

and completeness of this information, even though FMCSA committed to do so in 

its September 6, 2007, letter report to Congress.5

In the report, FMCSA stated that it would acquire crossing data from CBP and 

perform a monthly analysis of a random sample of the data to document the extent 

to which FMCSA was meeting its goal of checking every truck every time it crossed 

the border. Further, if issues were identified, it would develop strategies to address 

them. At this time, FMCSA has not implemented this process. According to a 

FMCSA official, FMCSA is still gathering information for this control. Until FMCSA 

implements a quality control check using CBP, or another valid source of data, to 

establish a baseline for the number of crossings, FMCSA will not have assurance 

that all checks are being conducted as required. Further, to the degree that others 

use this information to develop conclusions about the demonstration project, errors 

and omissions in crossing data would adversely affect the analysis. We will give this 

issue greater scrutiny as our audit continues. 

Second, the limited data available at this time means we cannot draw any meaningful conclusions about the safety performance of the demonstration project participants. Far fewer carriers and vehicles have participated in the project than expected, and over 90 percent of recorded trips by participants are inside the commercial zones. As of March 6, 2008, 19 Mexican carriers had been granted authority for 

the project instead of the 100 anticipated, and 1 of those has recently withdrawn. 

The number of vehicles that had been involved as of February 25, 2008, is also significantly lower than anticipated, about 13 percent of the number estimated before 

the project began. Also, as of that same date, only 247 trips beyond the commercial 

zone were recorded on FMCSA’s records, and almost 90 percent of those trips were 

reportedly going to one state—California. 

Our analysis of the small group of participating carriers shows that they are representative of certain characteristics of prior Mexican applicants, such as the number of vehicles. Although no crashes involving a participant had been recorded on 

26 

6The panel includes former U.S. Representative, Jim Kolbe; former Department of Transportation (DOT) Deputy Secretary, Mortimer Downey; and former DOT Inspector General, Kenneth 

Mead. 7 Enclosure 4 of the Department’s September 6, 2007, letter report to Congress. 

FMCSA’s records from the project’s initiation through March 1, 2008, the limited 

number of participants and limited safety-related data will prevent FMCSA from 

drawing any meaningful conclusions at this time. 

Third, FMCSA has taken actions to establish and enhance mechanisms for assessing adverse safety impacts from the project and for monitoring and enforcing safety 

rules for project participants. These actions include establishing and providing information to an independent panel 6 charged with determining whether the safety performance of participating Mexican carriers differs from the safety performance of 

U.S. carriers. However, the independent panel has also expressed concerns that the 

low number of participants will affect its ability to draw meaningful conclusions 

from the data about the safety performance of the demonstration project participants. 

FMCSA’s actions have also included providing guidance and training to state officials. In five states where officials had previously told us they were not ready to 

enforce the rules of the demonstration project, officials advised that they were now 

ready, citing the additional training and guidance received from FMCSA. FMCSA 

is also recording insurance information from participant carriers, contracting for a 

GPS tracking system for participating vehicles, taking steps to improve data on 

Mexican driver convictions in the United States, and monitoring Mexican carrier 

records. We will continue to monitor and review these areas as the audit continues. 

The balance of my statement discusses these issues in further detail. 

FMCSA Has Not Implemented a Key Quality Control for Ensuring That 

Checks of Drivers and Vehicles Crossing the Border Occur as Planned, 

Despite a Commitment To Do So 

FMCSA’s policy requires that CVSA decals, driver’s licenses, and proficiency in 

the English language be checked for project participants at each border crossing regardless of whether the truck is staying within the commercial zone or traveling beyond. This has been referred to as ‘‘checking every truck every time.’’ We verified 

that FMCSA had developed 25 site-specific border crossing plans in conjunction with 

CBP personnel to carry out these checks at the border, and FMCSA’s records as of 

February 25, 2008, showed that 3,680 checks were conducted. However, a key quality control for ensuring the reliability and completeness of this information has not 

been implemented even though FMCSA had committed to do so in its September 

6, 2007, letter report to Congress.7

FMCSA reported to Congress that it would acquire crossing data from CBP and 

perform a monthly analysis of a random 10 percent sample of the data to reconcile 

CBP data against FMCSA’s records. A monthly report of the results would provide 

details on each border crossing and identify any issues related to checking every vehicle every time as well as including strategies to address those issues. The overall 

purpose of the quality control plan was to document the extent to which FMCSA 

was meeting its goal of checking every truck every time it crossed the border. However, according to a FMCSA official, FMCSA is still gathering information for this 

control. Until FMCSA implements a quality control check using CBP, or another 

valid source of data, to establish a baseline for the number of crossings, FMCSA will 

not have assurance that all checks are being conducted as required. 

In addition to ensuring that all vehicles and drivers are checked, it is also important that accurate information be recorded during the checks to facilitate the evaluation of the project. We examined FMCSA’s records for about 2,000 truck crossings 

for participants that occurred through January 5, 2008. To date, we have identified 

44 FMCSA crossing records that had unclear or incomplete responses, such as stating ‘‘not applicable’’ for recording a primary CVSA decal number or leaving blank 

the space for English proficiency testing. To the degree that the Independent Evaluation Panel uses this information for its work, errors and omissions in crossing 

data would adversely affect the panel’s analysis. We will obtain updated data and 

conduct additional analyses as the project continues. 

The Limited Data Available at This Time Means We Cannot Draw Any 

Meaningful Conclusions About the Safety Performance of the 

Demonstration Project Participants 

Immediately after issuing its report to Congress on September 6, 2007, the Department initiated the demonstration project by granting provisional authority to 

the first Mexico-domiciled carrier. However, far fewer carriers than anticipated are 

27 

8The carrier that withdrew, Trinity Industries de Mexico S de R L de CV, had identified 16 

vehicles for use in the project, the largest number of all demonstration project participants at 

the time it withdrew. 9 According to FMCSA data, 19 carriers had received provisional authority as of March 6, 

2008. We limited our analyses to the 16 Mexican carriers that had received authority as of February 25, 2008, including the carrier that withdrew from the project on February 1, 2008. We 

did not include in our analysis data related to the three carriers admitted to the project after 

February 25, 2008. 10 As of March 6, 2008. 

participating in the demonstration project. As of March 6 of this year, 19 Mexican 

carriers have been granted provisional authority, one of which withdrew 8 on February 1, 2008. By contrast, in April 2007, the Department had anticipated granting 

provisional authority to 25 carriers each month, until the number reached 100. 

According to FMCSA records, an additional 28 carriers have qualified for the program, but they have not filed the required proof of insurance. Even if those carriers 

were to file the required insurance proof and were granted provisional authority, the 

total number of Mexican carriers would reach only 47—just under half of the 100 

carriers originally envisioned. 

FMCSA records also show that fewer vehicles than originally estimated are involved in the project and only a small number of trips are going beyond the commercial zones. In August 2007, FMCSA estimated that, based on the number of vehicles 

approved at that time, 540 vehicles would be participating in the project if 100 

Mexican carriers eventually received provisional authority. By contrast, as of February 25, 2008, only 70 vehicles were identified by the 16 Mexican carriers 9 who 

had participated up to that point, including the carrier that dropped out. FMCSA’s 

records, as of February 25, 2008, showed 3,680 crossings into the United States by 

project participants, with 247 or 6.7 percent listing destinations beyond the commercial zones. About 90 percent of the recorded trips beyond the commercial zones were 

going to a single state—California. 

The table below compares the projected and actual carrier and vehicle participation. 

Source: OIG Analysis of FMCSA data. Data are for carriers granted provisional authority as 

of February 25, 2008. 

Although we have not independently verified the information, according to 

FMCSA officials and press reports, factors such as the additional costs of insurance, 

the uncertainty of the project, and the burdens associated with increased reviews 

at the border may have played a role in the limited participation of Mexican carriers. 

The current number of participants is not adequate to make statistically reliable 

projections or estimates of some important characteristics, including safety characteristics such as the number of crashes that could be expected involving long-haul 

Mexican carriers. The carriers currently 10 participating in the project represent 

about 2 percent of the 723 original applications for the long-haul authority that 

FMCSA provided us. Nonetheless, our analysis of the first 16 carriers that participated in the demonstration project shows that for certain other characteristics, such 

as number of vehicles reported, the demonstration project participants appear to be 


311SCOV1.eps
28 

11OIG Report Number MH–2007–062, ‘‘Follow-up Audit on the Implementation of the North 

American Free Trade Agreement’s Cross-Border Trucking Provisions,’’ August 6, 2007. 

representative of a larger group of Mexican carriers that have applied for long-haul 

authority in the United States over the past 10 years. 

For example, the figure below compares the number of vehicles operated by demonstration project participants and the universe of the 723 long-haul applicants. 

This figure is based on answers supplied by the 723 applicants in their application 

packages to FMCSA and on the answers the demonstration project participants supplied on their individual applications. 

Source: OIG Analysis of FMCSA data. 

We Will Continue To Review and Monitor FMCSA Actions To Establish and 

Enhance Mechanisms for Assessing Adverse Safety Impacts From the 

Project and for Monitoring and Enforcing Safety Rules for Project Participants 

To its credit, FMCSA has taken actions to help ensure that participants comply 

with safety regulations and project requirements. Based on our interim observations 

as the year-long demonstration project reaches its 6-month point, we plan future 

work in the following areas. 

Guidance for and Training of State Enforcement Officials. FMCSA has provided 

guidance and training for state enforcement officials. We obtained information showing that 421 state officials received further training on issues related to foreign 

motor carriers before and after the project was initiated. To assess the impact of 

these efforts, we followed up on the results of our September 6, 2007, report where 

we noted that officials in five states were of the opinion that they were not ready 

to enforce the requirements of the demonstration project. For this review, we re-contacted officials in those five states, and all now indicate that they are ready to enforce demonstration project requirements for Mexican carriers. Those officials cited 

completion of adequate training and receipt of FMCSA guidance as the primary reasons for their current readiness to enforce demonstration project requirements. We 

will continue to monitor FMCSA’s training efforts as the project continues. 

Insurance Requirements. FMCSA has recorded insurance information from project 

participants in an established database. Our independent examination of FMCSA’s 

Licensing and Insurance System and our direct contact with the insurance companies showed that all Mexican carriers who were issued provisional authority as of 

February 4, 2008, had the required $750,000 in bodily injury and property damage 

liability insurance We will continue to verify that insurance is maintained by the 

participants as the demonstration project continues. 

Mexican Conviction Database. FMCSA has established a Mexican Conviction 

Database to track traffic convictions of Mexican drivers occurring in the United 

States. FMCSA has provided us with data indicating that problems we identified 

in August 2007,11 with the Mexican Conviction Database (formerly known as the 

52nd State System) have been corrected by the states. We also verified that a report 

to help identify inconsistencies in the database was issued in January 2008. We will 

conduct further testing at the states as the audit continues. 


311SCOV2.eps
29 

Global Positioning System (GPS). FMCSA has contracted with a company to place 

global positioning devices on all U.S. and Mexican trucks participating in the 

project; and FMCSA demonstrated to us how the system can identify the position 

of a particular truck. Data provided by FMCSA showed that as of February 21, 

2008, 82 GPS units had been installed (38 on Mexican trucks and 44 on U.S. trucks) 

and plans were being finalized to install an additional 19 units (on 14 Mexican 

trucks and 5 U.S. trucks). As the demonstration project continues we plan to monitor the installation and use of GPS technology, particularly as it relates to cabotage 

and hours-of-service violations. 

Mexican Carrier Monitoring System. Our previous audit work confirmed the establishment of a system for monitoring compliance of Mexican carriers operating in the 

United States. We obtained reports from this system for demonstration project participants, and we will continue to review these as the audit continues. 

In closing, let me assure you that we will continue to closely monitor and review 

this demonstration project and to scrutinize other critical issues regarding the crossborder trucking provisions of the North American Free Trade Agreement (NAFTA), 

as required by Congress. The exhibit to our testimony provides a summary of our 

September 6, 2007, report on issues pertaining to the demonstration project and a 

list of our other prior reports and testimonies. 

Mr. Chairman, this concludes my statement. I would be happy to answer any 

questions that you or other members of the Committee may have at this time. 

Exhibit. Prior OIG Reports and Testimonies on Cross-border Trucking 

Issues 

Summary of our Latest Report 

OIG Report No. MH–2007–065, ‘‘Issues Pertaining to the Proposed NAFTA CrossBorder Trucking Demonstration Project,’’ September 6, 2007. 

We identified three issues pertaining to the proposed demonstration project. 

First, FMCSA had not developed and implemented complete, coordinated plans for 

checking trucks and drivers participating in the demonstration project as they cross 

the border. Without having site-specific border crossing plans in place and fully coordinated with CBP and the state, the Department’s commitment to check every 

demonstration project truck every time it crosses the border into the United States 

is at risk. We also stated that these plans should include quality control measures 

to ensure that FMCSA’s system for checking each demonstration project truck is effective. These checks are important because they review the driver’s license to ensure that the vehicle is driven by a licensed driver and verify that the truck has 

a current inspection decal issued by the CVSA. This decal shows that the vehicle 

received a safety inspection in the previous 3 months. 

Second, we reported that a considerable number (26 of 50) of state officials, responsible for coordinating motor carrier safety programs, expressed one or more concerns about the demonstration project, and officials in 5 states indicated they were 

not ready to enforce demonstration project requirements. Despite issuing guidance 

and brochures on assessing English language proficiency; detailing cabotage rules, 

regulations, and procedures; and initiating a train-the-trainer program, state concerns indicated that FMCSA should develop a feedback mechanism to ensure that 

critical information reaches the roadside inspectors who enforce Federal safety 

rules. 

Third, we found that FMCSA implemented 3 of 34 provisions in Section 350(a) 

of the FY 2002 Appropriations Act using language that differed slightly from what 

Congress had specified. The differences related to which trucks should be inspected 

during pre-authorization safety audits, which drivers should undergo electronic license checks at border crossings, and the inclusion of newer safety rules applicable 

to Mexican motor carriers. 

Other Prior Reports and Testimonies 

OIG Report No. MH–2007–062, ‘‘Follow-up Audit on the Implementation of the 

North American Free Trade Agreement’s Cross-Border Trucking Provisions,’’ August 

6, 2007. 

OIG Testimony, CC–2007–029, ‘‘Status of Safety Requirements for Cross-Border 

Trucking With Mexico Under NAFTA,’’ March 13, 2007. 

OIG Testimony, CC–2007–026, ‘‘Status of Safety Requirements for Cross-Border 

Trucking With Mexico Under NAFTA,’’ March 8, 2007. 

OIG Report No. MH–2005–032, ‘‘Follow-up Audit of the Implementation of the 

North American Free Trade Agreement’s (NAFTA) Cross-Border Trucking Provisions,’’ January 3, 2005. 

OIG Report No. MH–2003–041, ‘‘Follow-up Audit on the Implementation of Commercial Vehicle Safety Requirements at the U.S.-Mexico Border,’’ May 16, 2003. 

30 

OIG Testimony, CC–2002–179, ‘‘Implementation of Commercial Motor Carrier 

Safety Requirements at the U.S.-Mexico Border,’’ June 27, 2002. 

OIG Report No. MH–2002–094, ‘‘Implementation of Commercial Vehicle Safety 

Requirements at the U.S.-Mexico Border,’’ June 25, 2002. 

OIG Report No. MH–2001–096, ‘‘Motor Carrier Safety at the U.S.-Mexico Border,’’ 

September 21, 2001. 

OIG Testimony, CC–2001–244, ‘‘Motor Carrier Safety at the U.S.-Mexico Border,’’ 

July 18, 2001. 

OIG Report No. MH–2001–059, ‘‘Interim Report on Status of Implementing the 

North American Free Trade Agreement’s Cross-Border Trucking Provisions,’’ May 8, 

2001. 

OIG Report No. TR–2000–013, ‘‘Mexico-Domiciled Motor Carriers,’’ November 4, 

1999. 

OIG Report No. TR–1999–034, ‘‘Motor Carrier Safety Program for Commercial 

Trucks at U.S. Borders,’’ December 28, 1998. 

OIG reports, testimonies, and correspondence can be accessed on the OIG website 

at www.oig.dot.gov. 

Senator DORGAN. Mr. Scovel, thank you very much for your testimony. 

Secretary Peters, you continue to talk about NAFTA, and this is 

not a hearing about NAFTA, but I don’t want to observe in this 

issue opportunities possible because of NAFTA, that prior to 

NAFTA’s enactment, we had a $1.5 billion trade surplus in Mexico. 

In the past year, we had a $74 billion deficit. It went from a $1.5 

billion surplus, to a $74 billion deficit. So, when we talk about opportunities, I want to talk about the opportunities to begin providing some balance, and restore some opportunities for this country. 

But, having said that, you—I believe—are telling me that your 

attorneys have advised you that you have a right, given the way 

you read the statute passed by the U.S. Congress—to interpret it 

as prohibiting some future pilot project, but nonetheless a provision 

that is unrelated to the current pilot project, is that your testimony? 

Secretary PETERS. Chairman Dorgan, it is. 

I do have with me, D.J. Gribbin, who is General Counsel of the 

agency, and certainly can respond to that question. 

But, sir, the Administration looked very closely at the 2008 DOT 

Appropriation Act. By prohibiting the use of funds to establish a 

cross-border motor carrier demonstration program, we do interpret 

that the Appropriations Act does not prohibit spending funding to 

continue to implement the ongoing demonstration project, which 

was established in September 2007. 

Senator DORGAN. Mr. Gribbin, have you advised the Secretary 

that this language allows the current pilot project to continue? 

Mr. GRIBBIN. Yes, Senator. When the language passed, the Secretary asked for a legal opinion on the effect the language would 

have on the Department’s cross-border program. Understanding 

the context in which this language was passed, we took our traditional, sort of, statutory interpretation approach, and looked at the 

plain meaning of the text, applied the ‘‘every word given effect’’ 

principle, statutory construction, and the need to read the statute 

as a whole. 

And as the Secretary mentioned in her statement, in the Act that 

was passed, several times Congress uses ‘‘establish or implement.’’ 

The statutory principle of ‘‘every word giving effect’’ requires us to 

31 

have a look at why Congress would say, under one section ‘‘establish,’’ versus in a different section say ‘‘establish or implement.’’ 

But, to be honest, actually before we even got to that, we applied 

the plain meaning rule, and the plain meaning of ‘‘establish’’ is ‘‘to 

begin,’’ ‘‘to start,’’ ‘‘to do something new.’’ 

Now the petitioners in the 9th Circuit have argued that the ‘‘establish’’ has a slightly broader meaning, ‘‘to introduce and cause to 

grow and multiply.’’ But even to introduce, you have to start with 

an introduction, which is a beginning, and so, I think it’s clear just 

under the plain meaning rule, that establish, in this context, 

means to start a new program. 

Senator DORGAN. Mr. Gribbin, why did the FMCSA have such an 

apoplectic seizure when Congress passed this? Your agency said, 

‘‘This is awful. This is awful,’’ because they interpreted it to cut off 

your program, until you got a chance to see if you could figure out 

how to interpret these words yourself—did you talk to FMCSA 

about why they felt this amendment was going to be destructive 

and awful? 

Mr. GRIBBIN. I have not. I assume at that point in time we 

hadn’t had time to fully analyze the impact of the language itself. 

Senator DORGAN. Do you analyze Congressional intent, at all? 

Mr. GRIBBIN. Well, the way statutory construction works is, you 

start with the plain meaning, does it make sense on its face? In 

this case, clearly establish means begin, so in effect we could stop 

there. 

Now, I know that in the letters that you received from Professors 

Segal and Smith, they said there’s a problem with reading this, ‘‘establish’’ as just a beginning, because there are no other beginnings 

to come. I’m not sure that they’re familiar with section 6901 subsection D—in which Congress passed just last May, which talks 

about the establishment of cross-border trucking programs for 

coaches, motor coaches, and hazardous materials. 

One of the reasons we were comfortable in finding ‘‘establish’’ 

meaning ‘‘beginning,’’ is because actually Congress had already 

talked about future demonstrations that might occur. 

Senator DORGAN. But—I’m sorry, you know better than that. You 

know why Senator McCain said what he said. He was very upset 

after the vote. He understood what the intent of this was. You 

just—ignore that? And you ignore what the Legislative Counsel 

who drafted it determined these words to mean? You ignore that 

whole body of evidence? I don’t understand that, I mean—— 

Mr. GRIBBIN. Well—I’m sorry, sir, I didn’t mean to interrupt you. 

Senator DORGAN. The consequences are not yours, apparently. As 

you know, we’ve sent a letter asking to see whether you are violating the Antideficiency Act. We now have a 3-judge panel that 

will rule on this. What if the 3-judge panel rules, as the one judge 

suggests, that this is unambiguous on its face—you’re wrong. And 

what if the letter comes back saying, ‘‘You’ve violated the 

Antideficiency Act,’’ have you just hung the Secretary up here by 

some banister someplace, because the attorney says, ‘‘We’ll I’ve 

found a creative way to read a word in a different way,’’ but of 

course everybody disagrees with you. What are the consequences 

for you? 

32 

Secretary PETERS. Let me take that—Senator, if I may, let me 

speak first to those two questions, and then I—I’m not an attorney, 

I don’t even play an attorney on TV, so I will not try to attempt 

to answer anything that I’m not qualified to do so, and our General 

Counsel is here. 

Sir, if the 9th Circuit Court of Appeals rules against us, we 

would want to explore, first, our options for appeal, but we would 

certainly obey an order of the court. 

As to the alleged violation of the Antideficiency Act, we certainly 

do not believe that our continuing the cross-border trucking demonstration is a violation of that Act. 

We look forward to cooperating with GAO as they investigate 

this incident, this circumstance, and should GAO determine that 

our actions do constitute a violation, I would want to consult, 

again, with our attorneys as to the specific basis for that determination, prior to making any decisions. 

Mr. GRIBBIN. But, Senator, I don’t think we’re anywhere close to 

even getting there at this point in time. Again, we have applied 

rules of statutory interpretation the Supreme Court has applied 

since the early 1800s. I mean, I have been involved in a fair number of close calls, on what does this word mean, and to be honest 

with you, I don’t think this is even a close call. 

Establish, as a dictionary definition, clearly means to begin. 

Then you look at the statutory construct it is in. If we were to read 

establish as meaning ‘‘establish or implement,’’ in section 136, in 

effect, section 135 would have no impact whatsoever. Section 135 

lays out a whole series of restrictions on the cross-border program. 

If Section 136 eliminated section 135, why would you have section 

135? 

Senator DORGAN. I’m obviously not a Constitutional lawyer, either, I don’t intend to debate you with respect to the law. Let me 

read the letter from the Legislative Counsel, they drafted this at 

the instruction of myself and Senator Specter. It was passed with 

two cosponsors in the House, two cosponsors in the Senate, passed 

74–24 in the U.S. Senate. 

Here’s what the Legislative Counsel that drafted the provision 

said. ‘‘The phrase ‘and implement’ was not included because it was 

felt the phrase ‘establish’ was to be construed in its broadest context, and such a broad construction would include implementation. 

In fact, the legislative history in the Senate indicates it was intended to preclude the carrying out of any demonstration program, 

including the pilot program put into effect in September 2007.’’ 

Now, I go back to my point. This is not a hearing in which we’re 

having a couple of lawyers debate a word. I think there’s an arrogance here that is all-too-common in this Administration. The arrogance of saying, ‘‘We’ve found a way to deal with this.’’ 

They found a way to deal with torture, in fact. Just write a 

memo, and say ‘‘Torture’s fine.’’ Write a memo and say ‘‘Cross-border trucking is fine,’’ despite the fact that Congress said you can’t 

use money for that purpose. There will be consequences for this. 

There will be consequences. 

So, let me ask a couple of other questions if I might. 

Mr. Scovel, we have had the Secretary tell us that a substantial 

amount of work has been done to make sure that we have equivaVerDate Nov 24 2008 08:06 Jun 22, 2012 Jkt 074617 PO 00000 Frm 00036 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\74617.TXT SCOM1 PsN: JACKIE
33 

lent standards, and we have safety that has been ensured. ‘‘Every 

truck, every time,’’ I think was your statement. Mr. Scovel, can you 

confirm that every truck, every time has been inspected, as the 

Secretary has suggested. 

Mr. SCOVEL. Senator Dorgan, we don’t know that every truck has 

been checked every time. 

Just to recap, very briefly, the development of that. When the 

Secretary announced her intention in February 2007 to initiate the 

demonstration project or pilot program, the Department set as a 

goal to check every truck, every time. In fact, it was a commitment 

at that time. 

In May 2007, the Congress passed the Iraq supplemental, instructing my office to review the Department’s preparations for the 

pilot program, to issue a report to which the Department would 

then respond. We thought it was fair, and our work over the summer to examine the Department’s plans to make good on its commitment to check every truck, every time. 

One pitfall that we noted in our September 6 report was the absence of site-specific plans. That is, for each of the 25 main commercial vehicle crossings between the United States and Mexico— 

specific plans coordinated between FMCSA officials, and Customs 

and Border Protection Service officials, so that those FMCSA officials would have a reasonable chance of identifying demonstration 

project trucks coming up from Mexico, singling them out for inspection. 

We also identified the need for a quality control measure, on top 

of that, so that there would be some assurance that those trucks 

checked by FMCSA officials were all of the trucks: every truck, 

every time. 

FMCSA, in response to our report in September, issued site-specific plans, and incorporated them into their response to Congress. 

The Department identified as a quality control measure, a plan to 

draw from Customs and Border Protection, a data set of demonstration project trucks that had come through a particular border 

crossing point, and then to cross-check that—a sample of 10 percent of CBP data, would be cross-checked against FMCSA data. 

And, we reviewed that methodology, we thought it was reasonable at the time. Recently, when we were completing our interim 

report, we checked again with FMCSA. Again, we thought it would 

be fair to ask how they were doing on the quality control, and we 

learned that it was not in place. 

Therefore, what we have, sir, is a situation where the Department has made the commitment to check every truck, every time, 

but we just don’t know if that’s been accomplished yet. 

We have records, as of February 25, indicating that there have 

been 3,680 crossings by project participant trucks. We’ve reviewed 

many of FMCSA’s records documenting those, but again, we don’t 

know whether that’s the entire set of Mexican trucks that have 

crossed the border under the demonstration project since September. 

Senator DORGAN. Mr. Scovel, because this issue is about the 

equivalency of standards—or lack of equivalency—let me ask you 

with safety here as a backdrop. And the reason I ask the question 

is if you were coming up to a four-way stop sign tomorrow at some 

34 

place in this country, and an 18-wheeler that is on a long-haul mission from Mexico, you would want to know that that truck, that 

driver, that company, is operating in a manner that is as safe as 

a domestic carrier—driver’s records, vehicle inspection, accident reports—so that we know, we certify that vehicle, that driver, that 

your safety at that intersection, and the safety of your family is 

equivalent with respect to the meaning of a U.S. truck. 

Can you describe the extent to which the Department of Transportation is ensuring that drivers have basic English proficiency 

when they come into this country? 

Mr. SCOVEL. When FMCSA officials are checking trucks that are 

coming through each of the commercial border-crossing points, they 

are required to check with the driver, ask a series of basic questions, and determine English language proficiency at that time. 

Senator DORGAN. Isn’t it the case that the proficiency test, initially, didn’t include any test of whether drivers understood highway signs? 

Mr. SCOVEL. That’s my understanding, sir. It’s my understanding 

also that at this time, the test does include a method to test Mexican drivers’ familiarity with highway signs in this country. 

Senator DORGAN. I understand that’s the case. They now are asking them to at least understand highway signs, but didn’t initially. 

Isn’t it true that when they show drivers pictures of highway 

signs, that marking the driver as English-proficient is what they 

do, even if the driver’s answer is in Spanish? 

Mr. SCOVEL. I’m not familiar with that particular scenario, sir. 

Senator DORGAN. Is there anyone on your staff that’s familiar 

with that? 

Let me tell you what I understand. 

Mr. SCOVEL. Sure. 

Senator DORGAN. My understanding is, if a Mexican driver is 

shown a picture of a stop sign, and the driver responds that the 

sign means ‘‘alto,’’ the Spanish word for ‘‘stop,’’ DOT considers that 

driver to be English proficient. 

Mr. SCOVEL. If I may have a moment, sir. 

Senator DORGAN. Sure. 

Mr. SCOVEL. To partially address your question, this is a question involving the completeness and accuracy of FMCSA’s records 

during the border check. In early January, we pulled 2,000 bordercrossing records from FMCSA and reviewed them to see whether 

they appeared to us to be accurate and complete. That’s a fairly 

large sample. We identified 44 among them, however, that were incomplete in some regard. Some of the answers involved—some of 

the incompleteness—involved English language proficiency, as well 

as notations as to driver’s license number checks, and CVSA decals. 

That’s—44 out of 2,000 is not a large number, but it does indicate 

some minor problem, at least, with the preparation of FMCSA’s 

records concerning data crossings—border crossings, excuse me. 

Senator DORGAN. Mr. Scovel, while you’re checking on that, I 

would like to know the answer to that. If we have now required 

that drivers of long-haul Mexican trucks identify highway signs, 

but respond to them in a foreign language, it raises the question 

of English proficiency, which is part of the safety issues and safety 

considerations that I and others are concerned about. 

35 

So, if you would check on that, my understanding is that a driver 

responding to a stop sign by identifying it as ‘‘alto’’ is described as 

English-proficient by the Department of Transportation. 

Mr. SCOVEL. I do have an answer to your question, I was just 

handed a document by a member of my staff, it’s a memorandum 

prepared by the Federal Motor Carrier Safety Administration dated 

February 1, 2008. 

In the section describing English-language proficiency tests, 

there’s a notation that, an instruction to the inspector to ask the 

driver to explain the meaning of any four selected highway signs, 

with a parenthetical note that the driver’s explanation may be in 

any language, provided the inspector is able to understand the 

driver’s explanation. 

Senator DORGAN. So, if the inspector understands Spanish, and 

the driver doesn’t speak English, the driver is determined to be 

English proficient? 

Mr. SCOVEL. The section that I quoted, sir, would be one component of the English-language proficiency check. 

Senator DORGAN. And my question would be, what was happening January 31, if this was a February 1 document? Do you 

have any notion of that? 

Mr. SCOVEL. I do not. 

Senator DORGAN. And I’ll tell you why I’m asking you these questions. The reason I’m asking these questions is, I think safety is 

at the root of this issue. As I said when I started this hearing, if 

there were no safety questions, if there was equivalency with respect to the condition of vehicles, the records of drivers, and so on, 

and the basic safety conditions of understanding the language, understanding the highway signs, there wouldn’t be a hearing. I 

wouldn’t be contesting this, I wouldn’t be upset. I mean, we 

wouldn’t have had the amendment in the first place. But, I’m just 

trying to understand what’s going on. 

Madam Secretary, you took 1 hour on a Thursday night to issue 

your rule initiating this cross-border trucking program after the Inspector General issued the report. I think the report was issued at 

7:30 p.m., and at 8:30 p.m., you announced the cross-border trucking project. 

Now, I’m going to ask you a question about that, but first I want 

to ask the Inspector General—in that submission that evening— 

and I don’t have the date right here—but on that evening when 

you submitted the Inspector General’s report, September 6, 7:30 

p.m., last year, you released a report. In the report, you said the 

following. You said, ‘‘While the DOT officials inspecting Mexican 

truck companies took steps to verify onsite data, we noted certain 

information was not available to them. Specifically, information 

pertaining to vehicle inspections, accident reports, and driver violations maintained by Mexican authorities was not available to the 

Department of Transportation officials, unless such information 

was included in the companies’ records.’’ 

Do you stand by that statement? 

Mr. SCOVEL. We do, sir. In fact, if I may elaborate, very briefly— 

accident reports, inspections records, driver violations are not readily available to FMCSA inspectors when they are onsite, in Mexico, 

conducting a pre-authority safety audit. They are required by secVerDate Nov 24 2008 08:06 Jun 22, 2012 Jkt 074617 PO 00000 Frm 00039 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\74617.TXT SCOM1 PsN: JACKIE
36 

tion 350 of the 2002 Appropriations Act, to review available information. And that’s what they do when they’re onsite in Mexico and 

are reviewing company records. 

The one major database, Mexican national database, that 

FMCSA officials have access to is called LIFIS, and that’s the 

Mexicans’ database that records operator authority for their commercial truck drivers. And it will indicate whether there is a valid 

commercial drivers license issued to a particular individual, whether that individual is required to remain within Mexico, or whether 

he’s authorized by the Mexican government to engage in cross-border operations. 

Senator DORGAN. But the only information the Department of 

Transportation would have about the companies themselves or the 

employees of those companies—for the most part—would be if that 

information was voluntarily disclosed by the companies, is that correct? 

Mr. SCOVEL. That’s correct, apart from what is available through 

the LIFIS system. Yes, sir. 

Senator DORGAN. That is nothing comparable to what we have in 

this country? 

Mr. SCOVEL. No, it’s not. 

Senator DORGAN. My understanding is that one of the largest 

Mexican carriers who was to originally be involved in the program 

was dropped by the Department of Transportation when it was 

found that the company had a record of over 100 safety violations 

per truck. And the Department of Transportation then acted as if, 

well, it was never intended to be part of the program, but—even 

under those circumstances, the only information we have, because 

there’s no central repository of information in Mexico on these key 

issues—accident reports, vehicle inspections, driver’s records—is information you obtain voluntarily. And my guess is that we don’t 

have massive numbers of inspectors determining whether the voluntarily provided information is even accurate. 

But let me get back this question of 8:30 p.m. on September 6, 

2007, Secretary Peters—the Inspector General at 7:30 that 

evening, said that the Mexican government does not have a central 

repository of records. It seems to me, of things that would be key 

to know—how are these drivers doing, what’s the condition of the 

truck, how many accidents have happened with this driver on a 

truck—without that information, 1 hour later, in the evening you 

rushed forward and started the pilot project. It was, as if you were 

waiting at the starting gate, didn’t matter much what the Inspector 

General had to say. So, what was the rush? And it seems to me 

that whole attitude now confirms itself with your counsel saying, 

‘‘Yes, we’re doing this. We don’t care. We’ll parse words, we’ll go 

to court and debate, we don’t care very much—we’re going to be 

creative,’’ and arrogant, in my judgment. 

Secretary PETERS. Senator, let me give you a couple of answers. 

First of all, the U.S. has commitments to fulfill under an international obligation, to the NAFTA trade agreement. So, we do feel 

that we need to move forward with this program if we have the authority to do so. 

The Inspector General’s report that you referred to—as is customary—a draft copy of that report had been shared with us, prior 

37 

to writing the final report, so we did know what questions the Inspector General were going to have. And the three issues, in fact, 

the three requirements that he addressed, in that report. 

First, ensuring that adequate plans are in place to carry out the 

Department’s commitment to check every truck, every time. Sir, as 

you’re aware, the law required only a 50 percent check. But, because I felt that this demonstration program was important enough 

to do so, I personally said that we would inspect every truck, every 

time, as it crosses the border—we will check that it has a safety 

decal, we will check that they have a valid driver’s license—which 

is verifiable in the Mexican commercial driver’s license database— 

and that they have English proficiency. 

So, English proficiency is not a matter of holding up a shaped 

sign and asking the driver if they can discern—whether in Spanish 

or English—what that sign means. But, the inspector has a conversation with the driver—where are you going? What load are you 

carrying, what’s your name? Where did you originate, how long 

have you been driving? Those kind of questions are asked of the 

drivers as they approach the border before they’re allowed to cross. 

Senator DORGAN. Madam Secretary, I apologize for interrupting, 

but did you just hear the Inspector General, just a moment ago? 

Secretary PETERS. Yes, sir, I did. 

Senator DORGAN. He asks the driver three or four questions and 

the driver answers in Spanish correctly, that’s English proficient? 

Secretary PETERS. Sir—— 

Senator DORGAN. Did you just hear that? 

Secretary PETERS.—sir, I did hear that. If the driver answers in 

English or Spanish when they are showing them the shape of a 

sign, they can answer, and that is what the memo addresses. 

Senator DORGAN. Would you consider someone who answers in 

Spanish, unable to answer in English, as English proficient? Is that 

what you believe? 

Secretary PETERS. What I’m telling you, sir, is that there are 

other tests for determining English proficiency, and this is a conversation that the inspector has with the drivers, and asks a series 

of questions, as I indicated. Where did you originate? How long 

have you been driving? What load are you carrying? What is your 

destination? Those kind of question are asked of the drivers to determine their English proficiency. 

Senator DORGAN. Madam Secretary, we just heard—and I have 

learned, as well—that a driver answering the questions accurately 

with respect to highway signs, answering in Spanish, if they answer correctly, are determining to be fluent in English? 

Secretary PETERS. Sir, with all—— 

Senator DORGAN. Proficient in English. 

Secretary PETERS.—yes, sir, with all due respect, that memo addresses the recognition of signs, it does not address, overall, the 

issue of English proficiency. 

The second issue that the Inspector General referred to in his 

September 6 report was ensuring that State enforcement officials 

understand how to implement the recent guidance on the demonstration project and that training initiatives have filtered down 

to roadside inspectors. As the Inspector General indicated, that has 

been verified. 

38 

And third, addressing our determination that Federal Motor Carrier Safety Administration has implemented the policies, the rules, 

and the regulations that differ slightly from the language in 3 of 

the 34 specific Congressional requirements. Those were the three 

issues that the Inspector General addressed in his September report. 

Sir. The quality control check with Customs and Border Protection, this language issue—these are exactly the type of things that 

a demonstration program is designed to identify, and the Inspector 

General’s report has been very instructive, in terms of, for example, 

identifying the best method, or methods, for quality control. We’re 

using a layered approach for quality control, and when we learned, 

sir, that when the CBP data was not exactly able to be synched 

with ours—for example, a CBP identifier for a truck could be various trucks that are owned by a specific trucking company. So, 

there isn’t the ability to relay a data point in their record, directly 

to a data point in ours. 

In spite of that fact, preliminary numbers are very favorable, 

with FMCSA verifying border checks for 95 percent of the crossings 

noted for CBP which, these unique carriers can be identified. The 

remaining 5 percent of the records are still being investigated. 

We also, sir, have started a process to put a GPS device on every 

truck—I’m sorry—on trucks that are participating in the demonstration program, and continue with CBP to access the data that 

they have, in a format that will provide the type of quality control 

to verify inspections of every truck, every time. 

We are also working with CBP to have motor carrier safety integrated into the international trade data system, which is part of 

the Automated Commercial Environment Development Effort, so 

these efforts are continuing. 

And finally, sir, we do have—Mexico does have—a central repository, as the Inspector General indicated, the Licensia Federale 

Informacione System—LIFIS—for all commercial drivers, license 

checks can be conducted between that system, and CDLS/ILS system that we have in the United States. 

Sir, what the law requires us to do is to recognize each other’s 

CDL, as long as there are reasonable assurances that we have a 

program that we consider safe. 

Canadian drivers, for example, are not subjected to random drug 

and alcohol tests, and yet we allow Canadian drivers, and we allow 

the Canadian CDL program to be used as part of this NAFTA 

Treaty provision. 

Senator DORGAN. Madam Secretary, there is nothing in NAFTA 

that requires us to allow Mexican long-haul trucking into this 

country until it is safe. There is nothing under the trade agreement 

that requires that. 

And I started by telling you—we started this trade agreement 

with Mexico with a $1.5 billion surplus, we now have a $74 billion 

deficit, and you’re worried about what Mexico’s going to do. The 

fact is, there is nothing that requires us to fail to stand up for our 

own interests and our own safety standards on American highways, 

so—— 

Secretary PETERS. Sir, if I might? 

Senator DORGAN. Yes. 

39 

Secretary PETERS. Sir, I did neglect to make one other data point 

that staff has passed to me. Seventeen of the 19 Mexican carrier 

that are in the Mexican demonstration program were already operating within the commercial zone, and therefore we already had 

records for the inspections, and the crashes for those carriers and 

for those trucks. 

Senator DORGAN. Madam Secretary, let me try once again— 

you’ve indicated you inspect every truck, every time. The Inspector 

General says there’s no way to verify that, for any of us, at this 

point, because records have not been kept. You indicate that there 

is not a circumstance where someone being asked questions at the 

border in a Mexican truck, answering in Spanish, is not certified 

as English proficient, or proficient in the language. 

I want to try to get at that, because as the Inspector General indicated, there was a notation with respect to that provision. Would 

you read the notation again, Mr. Inspector General? 

Mr. SCOVEL. This is an instruction to the inspector onsite, sir. It 

reads, ‘‘The inspector will ask the driver to explain the meaning of 

four selected highway signs. (Note: The driver’s explanation may be 

in any language, provided the inspector is able to understand the 

driver’s explanation).’’ So, I believe my earlier testimony was that 

this was one factor among others that the inspector could consider 

in determining whether a Mexican driver had English language 

proficiency. By no means did I mean to say that it was the only 

factor. 

Senator DORGAN. That’s a fair point. 

But, Madam Secretary, could you tell us why that notation exists? Why would there be a separate notation that says, ‘‘If we 

show highway signs to a Mexican driver, if they can answer what 

those highway signs are in Spanish, they’ll be determined to be 

English proficient.’’ 

Secretary PETERS. Sir, the shapes of signs, road signs, a stop 

sign, yield sign, for example—these signs are international in 

shape, and generally in color, as well. I’ve driven extensively in 

Mexico, and I understand that an octagon, red, shaped sign, means 

‘‘stop’’ or ‘‘alto’’ in Mexico. 

What we were determining with this specific issue, and I would 

certainly have to ask the FMCSA Administrator to expand on that, 

beyond my personal language of it—but I have been to a border inspection station, I have watched this test be administered, and the 

shape of these signs is international, so if the driver recognizes 

that sign and that shape, that driver knows what to do. 

But as the Inspector General just indicated, sir, that is not the 

limits of the English proficiency examination that is given to these 

drivers. 

Senator DORGAN. Madam Secretary, I understood what you 

would come today to tell us, that you intend to do what you intend 

to do, you have lawyers that tell you what you can and what you 

can’t do. I think you’re making a very big mistake. And I used to 

run an agency, and I had lawyers. And, you know, the fact is, you 

can get a lawyer to tell you almost anything with respect to your 

counsel, I mean, I understand that he probably loves to debate 

these words. 

40 

We’ve got people in the legislative counsel, I’m sure there are 

going to be people in the circuit court that will love to debate these 

things, but I think—this is not rocket science. You understand exactly what the Congress was intending last year, you understand 

exactly what they did, so did Senator McCain, so did your agency 

in DOT when they were so upset with it, and yet you believe you 

found a loophole. 

It’s happening in so many agencies in this Administration, and 

frankly I’m just sick and tired of it, and so are so many others. You 

have a responsibility, and you will meet it one way or the other, 

because failure to meet your responsibility under the law will bear 

consequences. 

My colleague from Arkansas is here, and I have taken a lot of 

time. 

Senator Pryor, why don’t you proceed? 

STATEMENT OF HON. MARK PRYOR, 

U.S. SENATOR FROM ARKANSAS 

Senator PRYOR. Thank you, Mr. Chairman. I appreciate your attention to this. 

Let me ask, if I may, Secretary Peters, first—just for a point of 

clarification, I’m sorry, I was a few minutes late getting over 

here—but you have a chart in front of the table there, that says, 

‘‘All 22 Congressional safety mandates have been met.’’ I understand that chart to mean, past-tense. In other words, you’re saying, 

literally, all of the mandates that we’ve laid out in one of the appropriation bills has been met. Is that right? 

Secretary PETERS. Senator Pryor, yes, that is correct. These requirements were laid out, I believe, in the 2002 Appropriation bill 

and there have been Inspector General reports verifying that all of 

those requirements have been met. In fact, Senator, exceeded, because instead of only investigating 50 percent, or checking 50 percent, we are checking 100 percent. 

Senator PRYOR. And that is the 2002 Appropriations bill? 

Secretary PETERS. That’s correct, sir. 

Senator PRYOR. And, I believe mostly what Senator Dorgan has 

been asking about is more recent legislation, mostly the bill that 

was signed in October 2006. 

There was an amendment to that port security law that had to 

do with trucking security, in fact, some people might call that the 

Pryor amendment, and I wanted to ask about this. 

It’s Section 703, focused on improving domestic trucking safety 

by developing new regulations to determine legal status verification 

for all licensed U.S. commercial drivers, develop commercial driver’s license anti-fraud programs, and assist Federal, State and local 

law enforcement officials on how to identify non-compliance. 

What steps has the U.S. Department of Transportation taken to 

develop a program to meet these mandates? 

Secretary PETERS. Sir, we have developed those requirements, if 

you’ll give me just a moment, I’m going to talk to Administrator 

Hill to make sure that I answer you correctly. 

Sir, I apologize for the delay. What Mr. Hill has shared with me 

is, we’re incorporating these provisions in our CDL rule now. That 

41 

rule is being finalized, and we hope to issue that rule later this 

year. 

Senator PRYOR. When you say ‘‘later this year,’’ I believe the 

mandate, the law says, you’re supposed to have it done by April of 

this year. Will you have it done by April of this year? 

Secretary PETERS. Excuse me, sir. 

Sir, I’m told that the rule is finalized in terms of DOT, it’s at 

OMB right now awaiting approval, and sir, I give you my word 

that I will do everything possible to have that implemented by 

April of this year. 

Senator PRYOR. OK, maybe I’m reading between the lines, and 

I shouldn’t be, but I think what I’m hearing is it probably won’t 

be done by April of this year. 

Secretary PETERS. That’s not what I’m saying, sir. I will do everything I can to make sure that that rule is implemented on time. 

Senator PRYOR. OK, let me ask about Mexican truck drivers and 

Mexican carriers—they’re required to register with the International Registration Planner, IRP, and pay a portion of registration fees to the States as our U.S. carriers pay. 

Arkansas has an ad valorem tax, I’m not sure many States have 

an ad valorem tax, but U.S. truckers are required to pay that tax, 

as they are in many other States that have ad valorem. Will the 

Mexican trucking companies be treated the same as U.S. trucking 

companies, and do we have an assurance in our State that somehow these Mexican trucking companies will pay the same taxes 

that the U.S. companies pay? 

Secretary PETERS. Senator, the drivers and the trucks that are 

involved in the pilot demonstration, or demonstration program 

have to meet every applicable State law when it comes to the taxes, 

as you mentioned, under IRP. I will get back to you very specifically about Arkansas, to make sure that we are addressing the ad 

valorem issue, but I do know that a requirement is that they meet 

all applicable State laws. 

Senator PRYOR. One of the concerns I have as you follow up on 

that is, it’s my understanding that right now, my State does not 

have the names of all Mexican carriers, their mileage through our 

State and their addresses, and if there is a non-payment issue, I 

don’t think our State knows who’s on the road and who’s not. So, 

I would really appreciate it if you could get back with me and tell 

me how you all track that, and how you keep the States informed. 

Secretary PETERS. We certainly will, sir. And one of those things 

that we have implemented now is a GPS locator device on the 

truck, so that will be able to help us track those trucks, and know, 

sir, for example when they go through Arkansas, how many miles, 

what time, et cetera. 

Senator PRYOR. Now that you mention that, has that part of the 

plan been implemented? Do all of these Mexican trucks have the 

GPS device that U.S. DOT can monitor? 

Secretary PETERS. I want to verify—I believe that we have most 

of them, I don’t know if all, let me double-check that. 

Sir, approximately 2 weeks after they join the program they are 

fitted with the device. 

42 

Senator PRYOR. OK, so that means every Mexican truck, except 

for the ones that have just entered in the last couple of weeks 

should have that device? 

Secretary PETERS. And I don’t believe they’re allowed to cross, 

but I’m not sure. 

Are they allowed to cross prior? 

OK, they could cross the border prior to that, either in the commercial zone or beyond. 

Senator PRYOR. Explain that again? 

Secretary PETERS. They—in the first 2 weeks, after they are entered in the program and perhaps don’t yet have the GPS locator 

device on the truck, they could be able to cross the border, and 

enter either the commercial zone or beyond the commercial zone. 

We will determine if that has happened, and again, get back to you 

on the record with that. 

Senator PRYOR. OK, I know that various people, various groups 

have asked U.S. DOT for documents and information under the 

Federal Freedom of Information Act. As I understand it, the Department of Transportation takes the position that a Federal court 

decision is required before you all release those documents. Is that 

the Department of Transportation’s position? 

Secretary PETERS. Sir, I’m going to refer to our attorney on that 

particular issue, I do not know that. 

Mr. GRIBBIN. We are continuing to gather and review documents 

in preparation to release them. Apparently there are over 80,000 

documents that are touched on by that request. 

Senator PRYOR. Well, do you take the position that you need 

some sort of Federal court decision to release those documents? 

Mr. GRIBBIN. No, it’s a FOIA request, so we don’t need a court 

decision. 

Senator PRYOR. Right. 

Mr. GRIBBIN. But what happens, is a FOIA request came in for 

80,000 documents—— 

Senator PRYOR. And how long ago did that come in? 

Mr. GRIBBIN.—that came in, in October 2006. 

Senator PRYOR. October 2006, this is March 2008. And 80,000 

documents is a lot of documents, I understand that, believe me. 

But it’s not that many documents. What’s the hold-up on releasing 

those documents to the public? 

Mr. GRIBBIN. Again, it just—FOIA requests are very exhaustive, 

they’re very labor-intensive, there are a lot of documents involved. 

FOIA requests—we release documents, but they’re subject to certain exemptions. So, we need to, actually need to go through the 

documents to make sure that all of the information we’re releasing, 

for example, does not violate someone’s privacy. 

Senator PRYOR. But, here again, a year and a half has passed. 

And again, I understand 80,000 is a lot of documents, but a year 

and a half has passed, you’re the lawyer for the agency, you have 

a legal team, you have people there that can do that, why is that 

taking so long? 

Mr. GRIBBIN. Let me, with your permission, let me go back and 

find out exactly the status of this request, and report back to you. 

Senator PRYOR. That would be good. And—not to compare apples 

to oranges, but in Arkansas the Freedom of Information Act, the 

43 

State Act allows the State 3 days to provide documents. Three 

days. In my experience in government, is the longer you give someone to produce documents, the longer they’ll take. And I know that 

the Federal FOIA does not have a time requirement, but you 

should provide these in a reasonable time. And 80,000 documents— 

we’re not talking about millions and millions of documents, here. 

Some FOIA requests do have millions and millions of documents. 

This one has 80,000 documents, according to your testimony, and 

you’ve had over a year and a half to process this. I just don’t understand why it’s taking you, at the Department of Transportation, so 

long—it sounds to me like you’re purposely not releasing the documents. That’s what it sounds, to me, like. You care to comment on 

that? 

Mr. GRIBBIN. I wouldn’t read that intent into it. Senator, apparently, originally there were 300,000 documents, now we’ve figured 

out that 80,000 are responsive. 

But, I will—I note your frustration, and I will get back to you. 

Senator PRYOR. Let me ask this—when did you hone it down to 

80,000? 

Mr. GRIBBIN. Over the course of the last quarter. 

Senator PRYOR. OK, well, here again, I know if you’ve honed it 

down to 80,000, it seems to me you’ve had ample time, and you’ve 

basically admitted that you’ve reviewed the 80,000 documents. My 

strong recommendation is that you release those as quickly as possible, unless there’s a provision under the Federal FOIA that says 

you shouldn’t release those. But, as you and I both know, because 

we’re both lawyers, you can redact information, et cetera, et cetera, 

so I would strongly suggest that you release that, and also I’d appreciate you getting back with the Committee on the status of that 

FOIA request. 

Let me ask one last question, if I may, Secretary Peters, and 

Senator Dorgan, I’m sorry I’m impeding on your time, but as I understand the Department of Transportation’s position—you are 

going ahead with this pilot project, even though there is a specific 

law, specific statutory provision that tells you not to—and we can 

fight about that and discuss that—I believe that when Congress 

says you shouldn’t do this, you shouldn’t do it. I’ve heard your testimony today, and I know your position on that today. But, here’s 

my question, specifically. Do you believe that you have the legal 

authority right now to expand the pilot project beyond what you’re 

doing today? 

Secretary PETERS. Senator, I’m going to answer that briefly, and 

then ask our attorney to be very specific about that. 

But, sir, we are in the first year of a demonstration program 

now. I will not make a decision until, toward the end of that year, 

when we have a chance to look at all of the data, to talk to the 

Inspector General, to look at the CBP data, talk to the independent 

evaluation panel, and determine whether we go forward with an 

additional year of the program, or not. 

Again, let me make sure that the lawyer here gets me to get it 

right. 

Mr. GRIBBIN. Thank you, Madam Secretary. 

The—I’m sort of, to pull back just a second—the Department has 

reached the legal conclusion that based upon meaning of the terms 

44 

and the statutory context and other rules of statutory interpretation, that ‘‘establish’’ does not mean ‘‘begin,’’ ‘‘establish’’ means— 

‘‘establish’’ means ‘‘begin,’’ it doesn’t mean ‘‘and implement.’’ And so 

we have, the Secretary has the legal authority to continue forward, 

that that language did not stop her. 

And in fact, I don’t think as you want—as a legislative branch, 

I don’t think you want the Executive Branch looking past the clear 

language of a statute into what we deem to be Congressional intent. I mean, that’s a very slippery slope, and pretty dangerous. 

But, I would say right now, the Secretary’s authority vis-a`-vis 

the cross-border trucking program is constrained by Section 530, by 

Section 6901. So, she does not have the ability, currently, to expand the program. 

Senator PRYOR. OK. Expand it beyond what exists today? 

Mr. GRIBBIN. Exactly. Plus, she’s constrained by the newly enacted Section 136, which does not allow her to establish a demonstration program. So, any expansion that would include buses, 

any expansion that would include hazardous materials, would 

clearly be establishing a new program. Section 136, as recently enacted, would prohibit that. 

Senator PRYOR. That’s all I have, Mr. Chairman. 

Senator DORGAN. Mr. Gribbin, I understand you’ve given the Secretary advice, here. But it is true—we don’t want you to look beyond the written law, and it’s also true that we don’t want you to 

ignore the law. And we don’t want you to be creative enough, and 

arrogant enough, to decide the law doesn’t apply to you, and that’s 

what’s happening here, I believe. 

Let me ask both Secretary Peters, and also you, Mr. Gribbin, 

have you visited with the White House about your decision to ignore the statute passed by the Congress? 

Mr. GRIBBIN. Senator, with all due respect, I don’t think we’re 

being either creative, or arrogant. What we’re trying to do—similarly when we have appropriation—we have a series—during my 

time as Chief Counsel of the Federal Highway Administration, and 

as General Counsel, there are a series of times where Congress 

passes something with the intent of affecting a certain action, but 

the language they use doesn’t get it there. And it’s most—actually, 

most common in Appropriations bills, where there will be an Appropriation rider that will fund a specific project, a word will be left 

out, and we understand Congressional intent, we understand exactly what the sponsors meant to do, we know all of that. But without the appropriate legal language, we as a Department can’t effectuate that change. 

Senator DORGAN. Well, with due respect, Mr. Gribbin, I don’t 

know your background, but with due respect, the people that write 

these legislative pieces for us are called the Legislative Counsel. 

They actually have a fair amount of experience, that’s what they 

do for a living. And I have a letter from the Legislative Counsel 

telling us exactly what they intended with this language, and why. 

And it ought not be ambiguous to you. It ought not give you room 

to decide that the Secretary should ignore the law. 

So, with due respect to your legal background, I would just tell 

you, the people who do this for a living wrote it, they knew exactly 

what was intended with it, and they would expect an attorney 

45 

working for the Secretary of Transportation to interpret it in a 

proper way, and that has not been done, in my judgment. 

I ask the question once again, Secretary Peters, and Mr. Gribbin, 

have you discussed this with the White House? 

Mr. GRIBBIN. Before I get there, I would note that the Legislative 

Counsel in her letter to you, in discussing what she was trying to 

effectuate, used the phrase ‘‘establish or implement.’’ Had that 

phrase—same phrase—actually been reflected in the statute, it 

would not have been any discussion whatsoever about the effect of 

that. 

In addition, she also, earlier, she mentions the phrase, I said, she 

used ‘‘establish,’’ instead of adding ‘‘and implement,’’ in effect, it 

should be ‘‘or implement.’’ 

So, this is a post-enactment, and courts, to be honest, have been 

highly dismissive of any post-enactment communications reflecting 

upon the intent of Congress. 

Again, our job is to look at, what did the House pass? What did 

the Senate pass? What did the Conference Committee decide in 

conference, ‘‘or implement,’’ what came out? Based on the legislative history, if we were to get to the legislative history, it’s pretty 

clear that the language that was enacted, that was signed by the 

President, does not block the current demonstration program. 

But, I’m sorry, I failed to answer your—— 

Senator DORGAN. No, no, the time is yours, Mr. Gribbin—that is 

a long and tortured trail to get to that ending point, but it’s wrong. 

And, you know, you have the right to advise the Secretary. 

I ask my question again, Madam Secretary and Mr. Gribbin, 

have you discussed these issues with the White House? 

Mr. GRIBBIN. As part of, especially something that has the visibility of an issue like this, we routinely consult with the Justice 

Department and White House Counsel, and did so on this matter. 

Senator DORGAN. And so, Madam Secretary, who did you discuss 

this with at the White House? 

Secretary PETERS. Sir, I’m going to let Mr. Gribbin talk about the 

discussions with legal counsel at both the White House, and of 

course, the Department of Justice as well, because he conducted 

those discussions. 

Senator DORGAN. And you’ve had no discussions with the folks 

at the White House on this subject? 

Secretary PETERS. Sir, I am answering that part of the question 

right now, sir. The question that I asked after this Fiscal Year 

2008 Consolidated Appropriations Act was passed, is whether or 

not it required that we shut down the demonstration program. And 

as Mr. Gribbin has indicated, Senator, that was not the interpretation. 

I discussed with the White House, I specifically discussed with 

the Office of Legislative Affairs—I’m sorry, yes, Legislative Affairs—the U.S. commitment to fulfill our international obligations 

under the NAFTA trade agreement, and based on the interpretation of the law not requiring that we shut the program down, I 

made a decision not to shut the program down. 

Senator DORGAN. Let me, if I might, without causing you discomfort, Mr. Scovel, in your release of March 11, that’s yesterday, you 

indicate, ‘‘While our mandate is to address those specific issues reVerDate Nov 24 2008 08:06 Jun 22, 2012 Jkt 074617 PO 00000 Frm 00049 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\74617.TXT SCOM1 PsN: JACKIE
46 

quired by Congress, we’re mindful of the legal questions currently 

before the 9th Circuit Court of Appeals. Among those is the question of the legal effect of the language contained in the 2008 Appropriations Act, ‘None of the funds made available under this Act 

may be used to establish a cross-border motor carrier demonstration program.’ In my view, after reading the Senate floor debate 

from early September, it’s clear the sponsors of this amendment— 

sponsors of the amendment to the Senate Fiscal Year 2008 Transportation and Housing Appropriations bill, wanted to halt the 

project by denying funding. The parties to the court action have 

briefed orally and argued the interpretation. Given that the matter 

is joined before the 9th Circuit, I’ll respectfully defer to the body’s 

judgment.’’ 

I, again, find it almost unbelievable that we’re here listening to 

this. It’s clear to me, it’s clear exactly what the drafters meant, and 

they do that for a living, with all due respect to the Counsel at the 

Transportation Department. It’s clear what the Congress meant, 

and Madam Secretary, the separation of powers in this government 

of ours requires each to be respectful of the other. I don’t believe 

the current Transportation Department approach is respectful of 

the U.S. Congress, in this respect. 

And, as I indicated, you will do what you will do, but I will tell 

you that there are consequences for that. And, you know, there will 

be other occasions where the Congress will address your issues, 

and in other ways, and I asked you to come to this hearing, because I wanted to try to understand exactly what it was you were 

trying to do here. 

I think you are on very thin ice in describing a program that, 

number one, was not ready. You’re suggesting, somehow, that Mr. 

Scovel’s report gave you the green light. Mr. Scovel said some good 

things, and some things that were troubling in the Inspector General report that came out, 7:30 that evening. Mr. Scovel, I don’t 

think you were giving them any light—you weren’t necessarily giving them a green light, were you? 

Mr. SCOVEL. It wasn’t ours to give a light, sir. We wanted to 

point out facts for the consideration of policymakers on both sides 

of the debate. 

Senator DORGAN. Well, that’s important to understand, because 

the Department of Transportation has represented your report as 

giving them a green light. 

Do you have any further questions of this panel, Senator Pryor? 

Senator PRYOR. I do, Mr. Chairman. If I may, just ask a couple, 

I’ll try to be very brief. 

Madam Secretary, there’s a company, a Mexican carrier called 

Trinity Industries de Mexico—they were participating in the pilot 

program, they were pulled out of the program last month, but they 

had over 1,000 safety violations, and 75 out-of-service orders during the 12 months from September 2006 to September 2007. 

I’m a little puzzled when I learned about this, because I’ve heard 

you say here today, and on other occasions, that safety is your primary consideration. So, how do you explain how a company like 

this could be in the program in the first place? Did DOT not do a 

background inspection on this company? Did DOT miss, did DOT 

ignore? Was DOT not prepared to let this company through? Tell 

47 

the Committee, if you can, how this company was allowed to participate? 

Secretary PETERS.—was advised that they were withdrawing because of the high level of scrutiny that their vehicles were subject 

to as a result of participation in the demonstration program. 

This motor carrier has been operating in the Mexican economy 

for over 30 years, they have established business practice within 

the commercial zone. They ultimately did not feel that they would 

operate outside of the commercial zone, and so that was the reason 

for withdrawing this company. 

This company did pass the pre-authority safety audit, sir, it did. 

But, as part of that requirement, and another step in the layered 

enforcement of this issue, was the inspection at the border each 

and every time they crossed the border, regardless of whether they 

were going into the commercial zone, or intended to go beyond. 

They did not go beyond the commercial zone during their participation in the project, though. 

Trinity crossed the border a little over 1,100 times, never leaving 

the commercial zone, and at their request, their operating authority was withdrawn. 

Senator PRYOR. Well, if I might just ask on that point, is it the 

case that this company has a record of over 100 safety violations 

per truck, and you’re saying, ‘‘Well, maybe so, but they’re only operating within 25 miles of the border.’’ 

Are you aware that they’ve had over 100 violations per truck? 

Secretary PETERS. Senator, I am not at all excusing their behavior, and let me verify that fact, because I don’t want to speak to 

that without ensuring that I know that’s accurate. 

Senator PRYOR. But—go ahead. 

Secretary PETERS. Senator I apologize for the delay. What’s been 

explained to me is that many of the times that Trinity crossed, 

they were bringing in new trailers, trailers that had not been inspected prior, and they were finding violations with those trailers. 

We don’t have verification with us now, but we’ll get back to you 

in the record as to, if that was accurate in terms of hundreds of 

violations, per vehicle or per trailer. 

Senator DORGAN. If this is a company that has 100 violations per 

vehicle, one would worry about the 25 miles inside our border that 

they are operating, and let alone, the long-haul trucking. So, if I 

were you, I would look aggressively, I mean, we wouldn’t want that 

within 25 miles of the border, would we? 

Senator Pryor? 

Senator PRYOR. And also, Madam Secretary, just to make sure 

I understand your testimony a moment ago, you said this company 

voluntarily withdrew from the program, not DOT making this company withdraw, is that right? 

Secretary PETERS. Senator, that is accurate, however they did 

know that we were concerned with their vehicles, and they did 

withdraw prior to the time that we did not—we said that they were 

not eligible to work in the program. 

Senator PRYOR. So, how did they get in the program in the first 

place? 

Secretary PETERS. Sir, they passed the required pre-authority 

safety audit, at which time—— 

48 

Senator PRYOR. Whoa, whoa, whoa—how do you pass one of 

those if you have as many violations as this company has? How do 

you pass that? 

Secretary PETERS.—Senator, I think what I tried to explain earlier, and perhaps not well enough, is that the vehicles that were 

inspected at the time they passed the pre-authority safety audit, 

were not the vehicles that they were subsequently—or the trailers, 

rather—that they were subsequently bringing across the border. 

So, when they were approved at the pre-authority safety audit, 

that would have meant the records on the drivers, the equipment— 

both the trucks and the trailers—at the site, that intended to be 

used in the program were inspected at that time. 

Subsequently, they brought different trailers across the border, 

and we did find violations with those trailers. 

Senator PRYOR. But isn’t it a red flag when you see the chronic 

history of violations with this company? Isn’t it a red flag that they 

should not be in this program? 

Secretary PETERS. Senator, it certainly is with this company, 

however, I would stress the fact that of the 19 carriers, this was 

an anomaly. We have not had that record with the other carriers. 

Senator PRYOR. OK. Well, nonetheless, Mr. Chairman, one of 

those things that concerns me about that is it’s this company that 

had this chronic history of violations—they get through the DOT 

process, and then they voluntarily get out of the program—it’s not 

the DOT that makes them get out, it’s that the company has voluntarily asked to be let out of the program. 

One last question, if I can, Mr. Chairman—and I appreciate your 

patience—but, I want to be very clear, I want to make sure I understand the Department of Transportation’s position on this, and 

that is—does the U.S. Department of Transportation accept a Mexican CDL as equivalent to a U.S. CDL? 

Secretary PETERS. Senator, we do, with some exceptions. For example, we do require that anyone who drives in the United States 

on a commercial driver’s license, including Mexicans, pass, for example, a drug and alcohol test, that it is administered by a U.S.- 

certified laboratory. That is a requirement that we have, they have 

to abide by that requirement. You mentioned earlier, some other 

requirements about paying fuel taxes and things like that—every 

Mexican truck, every Mexican driver who drives into the United 

States has to comply with our laws, here in the United States. 

Senator PRYOR. Well, I hear what you’re saying, but my understanding of the Mexican CDL system, as compared to the U.S. CDL 

system, is that Mexico has some vague requirements, Mexico has 

some requirements that would probably not meet U.S. standards. 

And I think we are on very dangerous ground if we just carte 

blanche accept a Mexican CDL as an equivalent to the U.S. CDL, 

because it’s not. It’s not the same. The U.S. has stricter, tougher 

standards for our drivers than Mexico does. And I think we’re on 

very dangerous ice when it comes to safety on our highways if we 

just give carte blanche to these Mexican truck companies to allow 

their drivers with Mexican CDLs to come into this country. 

Secretary PETERS. Senator, the program does require us to recognize each other’s CDLs. The Mexican CDL is somewhat different, 

but not substantively different than the American CDL. 

49 

And as I pointed out earlier, for example, Canadian drivers who 

participate and drive into the U.S. on a regular basis, are not required in Canada, to submit to random drug and alcohol tests. 

When they drive in the United States, they are subjected to that 

requirement, and that is the same thing that happens with Mexican drivers who come into the United States, have to meet our requirements, as well. 

Senator DORGAN. Secretary Peters, there’s nothing that requires 

us in any trade agreement to sign up to, or submit to something 

that we believe diminishes safety on American roads. I mean, you 

keep suggesting somehow, that we are required under NAFTA to 

do this now. That is not the case. I want to let you go, because we 

have another panel, but I do want to make this point—you said 

that the company that had 100 safety violations per truck—which 

is kind of sketchy information that we have, voluntarily withdrew. 

I mean, most of us from the outside observe that as an embarrassment to the Department of Transportation, and they quietly had 

them withdraw. 

But, if they are still operating within 25 miles of the border, first 

of all, the question Senator Pryor asked is right on point—why 

would they have been voluntarily withdrawing, why would you not 

have kicked them out of the program immediately when discovering that information? And why are they still operating within 25 

miles of the border? 

Mr. Scovel, I wonder if you would—at the written request of Senator Pryor and myself—look at this narrow issue, with a company 

that apparently voluntarily withdrew, what kind of safety violations existed? What were the circumstances of the withdrawal? 

Would the Inspector General, if we put this in writing, and make 

a request of this committee, would you look at that narrow issue, 

so that we could understand it, a bit? 

Mr. SCOVEL. Of course, sir. And I will add that, as part of our 

continuing study of the demonstration project, with a final report 

that’s due within 60 days of the conclusion of the project, we are 

reviewing the safety records of the participants, and we will include this one, as well, sir. 

Senator DORGAN. All right. 

Secretary PETERS. Senator, if I may correct, sir. I did misread the 

statement that was handed to me about Trinity, and it said that 

their operating authority was withdrawn. Was taken away. So, it 

would infer to me that it was not voluntary, and so I misread that 

statement, and I do apologize. 

Senator DORGAN. Well, we will get the full story of Trinity from 

the Inspector General’s office. 

Secretary PETERS. And, again, sir, to demonstrate the anomaly 

that this trucking company presents, the out-of-service rate for 

trucking companies that are participating in a demonstration program is 10 percent—well under, substantially under—the U.S. rate 

of service, or out-of-service trucks, or the rates for trucks that are 

participating out of Canada, as well. Ten percent, as opposed to 

about 25 percent. 

Senator DORGAN. Well, let me at least talk about Trinity—100 

violations per vehicle, and they’re still operating in the first 25 

50 

miles without any obstruction by the Department of Transportation? 

Secretary PETERS. Sir, I don’t believe, when those trucks are 

taken out-of-service, or when those trailers are taken out-of-service, 

they are not allowed to come into the United States at all. 

Senator DORGAN. Well, that would be the case if you inspected 

every truck, every time, which I believe is not the case. Certainly 

not the case with the whole universe of trucks in the 25-mile zone. 

But let me try to understand, as I let you go—you’ve coordinated 

with the White House on this, you’ve talked to the counsel at the 

White House with respect to your policy, you—through your attorney—have taken a policy that says we have read what the Congress has passed, we’ve decided we don’t agree with it, we don’t 

agree with the way it’s worded, we believe we have room to slither 

through the side here, someplace, and do what we want to do, and 

you believe that you have legal authority to ignore what Congress, 

I believe, clearly has intended. 

As I said before, I think there will be consequences for that, my 

hope is that you would consult, once again, with the White House, 

and both decide that there are too many examples of this to add 

one more. And I hope, Madam Secretary, that you will think better. 

I believe I’ve treated you respectfully, but I certainly don’t respect the decision that you and the Department of Transportation 

have made. 

I appreciate your coming to the Committee and explaining it. It 

angers me even more having had this discussion, because I believe 

that government works when people of good faith are doing what 

they believe to be right, and I believe that is not the case with the 

Department of Transportation. You may have the last word. 

Secretary PETERS. Senator, I certainly give you that belief, and 

I would ask that you give us the belief that we are doing what we 

think is right, as well. There is no intent to disrespect you, or this 

Congress, sir. 

Senator DORGAN. There are too many examples in this Administration, starting at the White House, down through the Department of Justice, and to the agencies with respect to torture and a 

dozen other issues, when this Administration has decided what the 

Congress has done matters little to them. And this appears to be 

one of them, regrettably. 

Madam Secretary, I appreciate your appearing before the Committee. I will, with consent, send you additional inquiries, and we 

will wait for the Inspector General, as well, to give us some additional information. 

Mr. Inspector General, again, thank you for your work, the Inspectors General, play a very significant role in our government, I 

appreciate the work you’ve given us. 

Mr. Gribbin, thank you for accompanying the Secretary here, and 

we will excuse all of you. Thank you very much. 

We have one additional panel, and I would like to call Jackie 

Gillan, Vice President of the Advocates for Highway and Auto Safety to come forward, and Mr. Paul Cullen, General Counsel, Owner 

Operator Independent Drivers Association to come forward. 

And I would ask those who wish to visit prior to this panel leaving to go outside the room and visit outside the room. 

51 

Let me thank Jackie Gillan for coming today. Jackie is Vice 

President of Advocates for Highway & Auto Safety, she will speak 

as a safety advocate, and she’ll talk about the testimony she’s just 

heard today, and the review that she has made of the Department 

of Transportation. 

Let me ask, if we can, to have the room be settled. 

And, is Mr. Cullen present? Mr. Cullen, will be back in just a 

moment. 

Ms. Gillan, why don’t you proceed at this point, and we will then 

hear from Mr. Cullen. 

Ms. Gillan? 

STATEMENT OF JACQUELINE S. GILLAN, VICE PRESIDENT, 

ADVOCATES FOR HIGHWAY AND AUTO SAFETY; 

ACCOMPANIED BY HENRY JASNY AND 

SHERYL JENNINGS MCGURK 

Ms. GILLAN. Thank you, Senator Dorgan. 

Good afternoon, my name is Jackie Gillan, and I am Vice President of Advocates for Highway and Auto Safety. I am accompanied 

today by Henry Jasny, our General Counsel, as well as Sheryl Jennings McGurk, who lost her parents and nephew in a crash involving an unsafe truck from Mexico. 

Senator DORGAN. Thank you, proceed. 

Ms. GILLAN. Today, I am here to talk about the cross-border 

truck pilot program. Although DOT portrays the program as a 

modest, even benign, initiative, on the contrary, it is an unsafe and 

illegal program that puts the motoring public at risk. 

My written statement contains many details about why Advocates opposes the pilot program, but my oral testimony now will 

focus on three specific topics: One, DOT’s unreliable screening process to keep unsafe carriers out of the pilot program; two, DOT’s violation of Federal law and its own legal precedent in continuing to 

conduct the pilot program; and, three, why this pilot program 

amounts to junk science, because of the low number of participants, 

and the lack of data being collected, a concern shared by the DOT 

Inspector General in the report released yesterday. 

Let me make it clear at the outset that Advocates’ only interest 

in the issue of cross-border trucking is to ensure that trucks entering the United States from Mexico are equipped, driven and maintained at a high level of safety. 

Each year, about 5,000 people are killed in truck crashes, and 

over 105,000 more are injured. Opening the border to unsafe trucks 

and drivers at the present time will only contribute to this unacceptable mortality and morbidity toll. 

During the past 15 years, DOT’s history of cross-border trucking 

with Mexico has been characterized by risky decisions, poor safety 

judgments, and keeping the public in the dark. Public safety was 

salvaged, only with the bipartisan intervention of Congress. 

In 2007, Congress passed legislation directing DOT to publish 

the safety audits of all participants in the pilot program for public 

review before the program started. But only some safety audits 

were published beforehand, others were not divulged until after the 

pilot program was underway. 

52 

And as an example, the safety audit of Trinity Industries of Mexico, the company with the largest number of trucks in the program, 

was not revealed until October 2007. 

I won’t go into the details we’ve already discussed the fact that 

this motor carrier company had an extraordinarily high number of 

safety violations the previous year, and yet they were placed in the 

pilot program, risking the safety of all Americans on our highways. 

DOT finally considered the program and the problem so bad that 

it permitted them to withdraw voluntarily. 

We are very happy that you raised the same questions that safety groups have been thinking about ever since we found out about 

this problem with this company—how did they ever get into the 

pilot program? And, how do we know the real safety records of 

other companies participating in the pilot program, that DOT 

assures us are very safe? 

And finally, as you stated, why is DOT allowing this company to 

continue operating in the United States in the commercial border 

zones? 

It is exactly this pattern of safety lapses and bad decisions by the 

DOT that Congress anticipated when legislation was adopted with 

strong bipartisan support to cut off funding for the pilot program. 

The language of Section 136 of the Consolidated Appropriations Act 

of 2007, and the Senate debate that took place, clearly demonstrate 

that the word ‘‘establish’’ in the provision applies to the conduct of 

the pilot program itself, not just the act of setting up that program. 

Even under DOT’s mistaken view that the statute only prohibits 

the use of funds to establish the pilot program, DOT can still carry 

out the intent of Congress by applying the doctrine of equitable interpretation. My formal testimony discusses this legal doctrine in 

much more detail, but essentially, equitable interpretation holds 

that where the specific words used in a law would thwart the intent of Congress, agencies are permitted—indeed compelled—to implement the Congressional intent of the law. 

The National Highway Traffic Safety Administration, NHTSA, 

another agency within DOT, invoked the doctrine of equitable interpretation just last month, in order to ensure that the wording 

of a statute does not frustrate Congressional intent to promote tire 

registration, and NHTSA cited a 1983 precedent within DOT for 

using the legal principle. By applying this legal doctrine, DOT can, 

indeed, implement the intent of Congress in Section 136. 

Finally, the cross-border truck pilot program is junk science, and 

a waste of taxpayer dollars, because it will collect insufficient data 

to make valid safety decisions. The pilot program is already halfway over and only about 6 percent of the trucks originally planned 

for by DOT are even in the program. 

The IG report states on page 8, ‘‘We are concerned that the low 

number of participants will affect the panel’s ability to draw any 

meaningful conclusions from the data about the safety performance 

of the demonstration project participants.’’ This tells us that there 

will not be enough data on which to base any objective safety findings. 

Let me conclude by saying that the pilot program should be 

stopped immediately. It threatens public safety, it wastes taxpayer 

dollars, it will not yield valid findings, and in all likelihood, it will 

53 

1Fatality Facts, Insurance Institute for Highway Safety (2005). 

be misused and mischaracterized by DOT to support a decision 

later this year to fully open the border to Mexican motor carriers 

to travel throughout the United States. 

The American public will pay with their lives. Congress should 

not let this happen. Thank you very much. 

[The prepared statement of Ms. Gillan follows:] 

PREPARED STATEMENT OF JACQUELINE S. GILLAN, VICE PRESIDENT, 

ADVOCATES FOR HIGHWAY AND AUTO SAFETY

Introduction 

Good afternoon, Mr. Chairman and Members of the Senate Committee on Commerce, Science, and Transportation. My name is Jacqueline Gillan, and I am the 

Vice President of Advocates for Highway and Auto Safety (Advocates) and am accompanied by Henry Jasny, General Counsel. Advocates is an alliance of consumer, 

health and safety organizations, and insurance companies and associations, working 

together make our roads and highways safer. Founded in 1989, Advocates encourages the adoption of Federal and state laws, policies and programs that save lives 

and reduce injuries. Our organization has worked closely with this Committee and 

has been integrally involved in many issues related to large truck safety, including 

the introduction of long-haul freight shipments that originate in Mexico but will be 

destined for all points in the United States. In particular, we appreciate the bi-partisan leadership of members of this Committee on a wide range of motor carrier 

safety initiatives including hours of service requirements, stronger enforcement of 

motor carrier rules and other issues affecting the health and safety everyday of commercial drivers and families on our roads and highways. 

Today, I am here to testify about the incomplete, haphazard and unsafe policy 

that the U.S. Department of Transportation (DOT), through the Federal Motor Carrier Safety Administration (FMCSA), has taken toward the opening of the southern 

border to long-haul freight shipments by Mexican carriers throughout the United 

States. Because of Advocates’ focus on highway and truck safety, we have been involved in the issue of the safety of trucks crossing into the U.S. for 15 years. Let 

me make clear from the outset that Advocates’ focus and only interest in the issue 

of cross-border trucking is to ensure that commercial vehicles entering the U.S. from 

Mexico are equipped, driven and maintained at a high level of safety so that they 

do not contribute to an increased number of, and an already unacceptable level of 

truck-involved crashes and fatalities that occur each year in the U.S. 

DOT portrays the Cross-Border Truck Pilot Program as a modest, even benign initiative that provides temporary operating authority to a limited number of motor 

carriers domiciled in Mexico and the United States to enable cross-border commercial freight operations. The agency also wants the American public to ‘‘trust’’ them 

that safety will not diminish in any way and that all safety rules and laws will be 

obeyed. The DOT Pilot Program is, in actuality, an inappropriate, unsafe and illegal 

program that opens yet another front in a safety battle to protect the motoring public from unnecessary risk and undue fatalities and injuries that already occur each 

year in truck-involved crashes. 

Advocates is all too familiar with the grim statistics. About 5,000 people are killed 

annually on our highways in truck-involved crashes and over 105,000 more are injured. Even after the establishment of a modal administration—the FMCSA—within 

DOT that is dedicated entirely to improving truck safety there has been little, if 

any, improvement in this annual toll. Although large trucks represent only three (3) 

percent of all registered motor vehicles, they are involved in about 13 percent of fatalities on an annual basis. When a large truck has a fatal crash involvement with 

a passenger vehicle, 98 percent of the people who die are in the small vehicle.1

Nearly 10 years ago, in 1999, just before the FMCSA was established as a separate safety administration, the then-Secretary of Transportation set a goal of reducing the number of annual truck-involved fatalities by 50 percent. As we close in on 

the 10-year period for fulfillment of that goal, Mr. Chairman, DOT and FMCSA are 

nowhere near accomplishing that safety mission. Moreover, in the intervening years, 

DOT and FMCSA have failed to achieve any of the short or long-term safety goals 

they have set for themselves. Thus, when it comes to relying on these agencies for 

results or adherence to their commitments, we are cautious because they have a 

poor track record. 

54 

2 North American Free Trade Agreement (NAFTA) (Dec. 1992) took effect in 1994. 

3 Commercial Driver’s License Reciprocity With Mexico, 57 FR 31454 (July 16, 1992). 

4Making Appropriations for the Department of Transportation and related agencies for the 

fiscal year ending September 30, 2002, and for other purposes, Pub. L. 107–87 (Dec. 18, 2001). 5Sec. 350(c)(1). 

6 Implementation of Commercial Vehicle Safety Requirements at the U.S.-Mexico Border, Federal Motor Carrier Safety Administration, DOT Office of Inspector General, Rpt. No. MH–2002– 

DOT Has Not Done Its Safety Job At the Border 

It comes as no surprise to those of us that have been involved in truck safety 

issues for nearly twenty years that DOT and FMCSA have not made safety their 

highest priority. From its inception, FMCSA has not promoted the highest degree 

of safety in motor carrier and truck regulations. At almost every turn safety groups 

have had to oppose FMCSA because it either did not issue safety regulations, or 

when the agency did act its regulations were weak and ineffective. DOT and 

FMCSA have also not been forthright or forthcoming with the American public on 

issues and information regarding cross-border safety. 

For example, as early as 1992, even before the North American Free Trade Agreement (NAFTA) 2 was signed, DOT agreed with Mexican transportation authorities 

that the U.S. commercial drivers’ license (CDL) and the Mexican Licencia Federal 

de Conductor (LFC) were equivalent. Although, in fact, there were and remain many 

points of difference between the two licenses and the accompanying requirements, 

DOT issued its agreement with Mexican authorities as a Memorandum of Understanding (MOU), 3 forged in private and not made public until after the U.S. and 

Mexican governments had already concluded the agreement in secret. The U.S. public was not afforded any prior notice or any opportunity to provide comment and 

suggestions before the announcement of the MOU. In fact, neither DOT nor the 

Mexican transportation authorities has provided copies of the legal requirements of 

the LFC, in either Spanish or English, for public review. 

There has been a series of such problems regarding DOT’s efforts to open the border: 

• In the late 1990s DOT asserted that the border could be opened even though 

no infrastructure improvements had been made, border inspection staffing was 

inadequate in many places, and other problems prevented safety inspections; 

• DOT ignored the fact that state laws did not allow for the issuance of out-ofservice orders (OOS) to foreign motor carriers for violations of their operating 

authority; 

• DOT has failed repeatedly to provide the public with copies and translations of 

relevant Mexican motor carrier and motor vehicle laws and regulations; 

• In 2002, FMCSA proposed an illegal two-year moratorium of the Federal law 

that requires motor vehicles, including commercial trucks and buses, that enter 

the U.S. to meet all Federal motor vehicle safety standards. Additionally, the 

agency still does not enforce this legal requirement for trucks crossing into the 

commercial zones along the U.S. border. 

DOT’s plans and activities to open the southern U.S. border to commercial vehicles from Mexico, has consistently lacked any adequate preparations for the potential increase in commercial vehicle traffic entering the U.S. and continuing beyond 

the existing border commercial zones. In 2001, even as DOT was poised to fully open 

the border, there were few border ports of entry that even had facilities capable of 

conducting full safety inspections on large trucks. Many border inspection facilities 

did not have weigh-in-motion (WIM) scales to enforce U.S. weight limits and those 

that existed were often not in working condition. Vehicle inspection staff was limited so truck safety inspections often could not be conducted at certain times of day 

and night at some crossing points, and there were no computerized databases for 

checking either truck credentials or drivers’ licenses. The border inspection infrastructure was so ill-prepared to inspect the flow of commercial vehicles that Congress was forced to step in and enact benchmarks to ensure that DOT met its obligations to protect both public safety and security. As a result, Congress passed Section 350 of the 2002 DOT Appropriations Act 4 that imposed specific requirements 

for DOT to meet as a precondition to allowing Mexico-domiciled commercial vehicles 

to travel beyond the border zones. 

A series of reports by the DOT Office of Inspector General (IG) were required over 

the years since to ensure that DOT complied with Section 350.5 Each report documented the shortcomings of DOT’s efforts and the reasons why it had not met the 

preconditions established for the opening of the border.6 While some progress has 

55 

094 (June 25, 2002) was the first in a series of reports documenting the actions of DOT and 

FMCSA compliance. 7 Although passenger and hazardous materials transportation are explicitly excluded from the 

existing pilot program, 72 FR 46286, it is inevitable that this non-scientific, demonstration program for general freight will serve as a basis for conducting future similar initiatives to broaden 

cross-border access to commercial vehicles carrying passengers and hazardous materials shipments. 8Transcript of the Hearing of the Senate Commerce, Science, and Transportation Committee 

on the Nomination of Mary Peters, to be Secretary of the Department of Transportation, Sept. 

20, 2006. 9 Id. 

10Freedom of Information Act (FOIA) request letter dated October 17, 2006, from Gerald A. 

Donaldson, Senior Research Director, Advocates for Highway and Auto Safety, to FOIA Office, 

FMCSA. 11Letter dated December 30, 2006, from Tiffanie C. Coleman. FOIA Officer, FMCSA, to Gerald A. Donaldson, Advocates for Highway and Auto Safety. 12 72 FR 23883, 23884 (May 1, 2007). 13FOIA requires agencies to provide a substantive response to requestors within 20 business 

days of receiving a request for agency records. 5 U.S.C. § 552(a)(6)(A)(i). 14 Advocates for Highway and Auto Safety v. FMCSA, C.A. No. 07–00467 (D.D.C.). 15Sec. 350(a)(10)(A)–(E). 

been made in reaching those benchmarks, not all of the requirements of Section 350 

have been fulfilled. Bus inspection facilities at major ports of entry are still not completed (§§ 350(a)(9) and (c)(1)(F)) and there is still no government-to-government 

agreement regarding the transportation of hazardous materials (§ 350(b)).7

DOT Has Not Provided Public Information On the Truck Pilot Program 

From the very beginning of the Cross-Border Truck Pilot Program, DOT has followed the same pattern of misleading Congress and failing to inform the public. 

Even when the pilot program was still under development, DOT refused to acknowledge that it existed. In fact, at her confirmation hearing, Secretary Peters told this 

Committee that DOT had no immediate plans to operate a pilot program. In response to a question from Senator Pryor, regarding FMCSA consideration of a pilot 

program, the Secretary stated: ‘‘Sir, I have also heard that, Senator, and I have 

asked the question, and there are no immediate plans to do so.’’ 8 Senator Pryor 

went on to say that ‘‘[I]f there are plans, I’d be curious about what statutory authority there is to do that. Do you know what statute might give the agency authority?’’ 

The Secretary responded: ‘‘Sir. I do not. And I understand your concern about the 

issue and, if confirmed, would look forward to getting to the bottom of the so-called 

rumors in addressing the issue.’’ 9

Secretary Peters was confirmed on September 30, 2006. On October 17, 2006, my 

organization, Advocates, filed a Freedom of Information Act (FOIA) request with 

FMCSA seeking records related to the development of the Pilot Program.10 The 

agency advised us to wait and then, on December 30, 2006, further advised Advocates that although there were ‘‘hundreds, if not thousands, of potentially responsive 

documents,’’ this would further delay the agency’s response, and that while the request was not being denied, FMCSA would not release any Pilot Program records 

at that time.11 The DOT Pilot Program was officially announced on February 23, 

2007,12 less than 5 months after the Secretary was confirmed and 4 months after 

Advocates had requested records pertaining to the program. Since DOT had provided no public information or disclosure about the pilot program, and had not given 

Advocates any indication that it would provide the relevant documents under 

FOIA, 13 Advocates was forced to file suit in Federal district court where the case 

is now pending.14

DOT’s approach of denying information to the public and providing as little accurate information as possible has pervaded the entire effort regarding its attempts 

to open the border. As a result, Congress has twice required in legislation that DOT 

and FMCSA publish for public notice and comment basic regulations and policy information pertaining to truck safety and the application of domestic motor carrier 

safety rules to trucks crossing the U.S.-Mexico border. Section 350 of the 2002 Appropriations Act required DOT to publish five (5) separate sets of regulations and 

policies that DOT had not previously issued or made public.15

More recently, because DOT and FMCSA would not provide the public with information about the Pilot Program, Congress included in legislation enacted in 2007 

a series of five (5) more publication requirements specifically linked to the Pilot Program. DOT was required to afford public notice and opportunity for public comment 

on: 

• the results of DOT’s pre-authorization safety audits (PASAs) conducted on 

Mexican motor carriers; 

56 

16Section 6901(b)(2)(B), U.S. Troop Readiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act of 2007 (Iraq Accountability Act), Pub. L. 110–28 (May 30, 

2007). 17Section 350(c). 18Section 6901(b)(2)(B)(i). 19 Id. 6901(b). 20See discussion under One-Year Limit for the Demonstration Project, 72 FR 46270–71. 21 72 FR 31877 (June 8, 2007). 22 News Release, FMCSA 05–07, U.S. DOT Office of Public Affairs (Sept. 6, 2007) available 

at: http://www.fmcsa.dot.gov/about/news/news-releases/2007/090707.htm. 23 72 FR 58929 (Oct. 17, 2007). 24 Id. At 58933. Although Table 2, Column I only lists 16 trucks for Trinity Industries as ‘‘Vehicles Identified Who Motor Carrier Intends to Operate in the United States,’’ two pages later, 

Table 4, Column Q lists 25 trucks as ‘‘Number U.S. Vehicles Inspected Which Carrier Intends 

to Operate in the U.S.’’ for Trinity Industries. 

• specific measures to protect the health and safety of the public; 

• DOT measures to ensure compliance with requirements that drivers have 

English language proficiency and restrictions on illegal shipment of domestic 

freight from point-to-point within the U.S. (cabotage); 

• the standards DOT intends to use to evaluate the program and; 

• a list of Mexican motor carrier safety laws and regulations that DOT considers 

equivalent to U.S. laws and regulations and which DOT will accept as comparable for enforcement purposes under the Pilot Program.16

While DOT has met some of these requirements, the problem is that DOT has 

not provided this information of its own accord, but has had to be ordered to cooperate and inform both Congress and the public through legislative direction. This, 

however, is not even the worst part of DOT’s dysfunctional approach to opening the 

border. Unfortunately, DOT has chosen to openly flout Federal law in order to carry 

out the cross-border Pilot Program in defiance of Congress. 

The Pilot Program Is Being Carried Out In Violation of Law 

DOT has been both implacable and persistent in defying the legal requirements 

for allowing cross-border long-haul trucking. Despite the fact that Section 350 of the 

2002 Appropriations Act prohibited ‘‘vehicles owned or leased by a Mexican motor 

carrier [. . .] to operate beyond the United States municipalities and commercial 

zones under conditional or permanent operating authority granted by the [FMCSA] 

until—’’ all the listed requirements are completed,17 DOT has forged ahead even 

though all those conditions have not been entirely met. 

Moreover, DOT has stubbornly pursued the Pilot Program policy in defiance of the 

compelling requirements included in the Iraq Accountability Act enacted into law 

in May, 2007. As mentioned, the Act required DOT to publish comprehensive data 

on the Mexican motor carrier safety audits or PASAs, that DOT conducted both before and after the law was enacted.18 However, that law clearly states that the Secretary of Transportation shall publish that information ‘‘[p]rior to the initiation of 

the pilot program. . . .’’ 19 The fact is that DOT did not publish all of the PASA information about all the participating Mexican motor carriers prior to the start of 

the Pilot Program in September, 2007. DOT has only published information about 

some of the motor carriers and did not provide all such information before the Pilot 

Program began. Since DOT announced that it would add 25 participating motor carriers to the Pilot Program each month for the first four (4) months, it was fully anticipated that the agency would have completed the PASAs and published them for 

all 100 participating motor carriers prior to the start of the program.20 Instead, 

DOT only published superficial pass/fail information on PASAs 21 that had been conducted prior to commencing the Pilot Program on September 6, 2007.22 Although 

DOT subsequently updated the PASA list,23 that information was not published 

until after the Pilot Program had already gotten underway. Equally important, DOT 

provided only the most superficial results of its safety audit but did not provide any 

information regarding the safety violations that were found. 

The delay in providing information is not trivial and I want to explain why it is 

quite important to safety. The motor carrier, Trinity Industries de Mexico (DOT No. 

610385) (Trinity Industries), was not included in the PASA information published 

by DOT before the Pilot Program started in September, 2007. The fact that Trinity 

Industries de Mexico had passed the safety audit was not made public until October 

2007, by which time this motor carrier had already been given authority to operate 

14 drivers and 16 trucks throughout the U.S.24 Only after DOT had already granted 

operating authority to Trinity Industries and published the superficial information 

57 

25 Id. At 58934. (‘‘*—This motor carrier is an additional successful applicant which has passed 

the Pre-Authority Safety Audit after the June 8, 2007, Federal Register Notice.’’). 26Declaration of Catherine O’Mara, Exhibit 1, filed in Owner-Operator Independent Drivers 

Association, Inc. v. United States Department of Transportation, et al., Dec. 3, 2007, No. 07– 

73987 (9th Cir.); see also companion Declaration of Rick Craig filed in same case for specific 

violations of truck safety requirements. 27The only public notice of Trinity Industries’ withdrawal from the Pilot Program is a note 

to FMCSA’s list of participating motor carriers available at: http://www.fmcsa.dot.gov/crossborder/cross-border-carriers.htm. 28 Consolidated Appropriations Act, 2008, Title I, Division K, § 136, Pub. L. 110–161 (Dec. 26, 

2007). 

showing that the company had passed all the Pilot Program safety requirements,25

did an independent investigation of the company reveal the disturbing truth. In the 

year prior to obtaining authority to participate in the Pilot Program, Trinity Industries had a disgraceful record when operating in the commercial zones in the U.S. 

The investigation conducted by the Owner-Operator Independent Drivers Association (OOIDA) found that 10 trucks owned by Trinity Industries had accumulated 

604 inspection violations and a total of 1,123 violations in all, including 74 out-ofservice (OOS) orders for vehicles and one OOS for a driver.26 Because DOT violated 

the law, the public did not have the opportunity to investigate this motor carrier 

before the Pilot Program began. Not only did Trinity Industries have operating authority to transport freight throughout the U.S. for a period of several months, but 

even after the company withdrew from the Pilot Program it has still been allowed 

to operate in the commercial border zones despite its record of over 1,100 violations. 

The poor safety record for Trinity Industries arguably placed the American people 

at increased risk of death and injury from potential crashes involving their trucks 

and motor carrier operations. Even DOT considered the problem so bad that it permitted Trinity Industries to withdraw from the Pilot Program as of February 1, 

2008. However, DOT made no public announcement of Trinity Industries safety 

problems or of the company’s withdrawal from the Pilot Program. And, as usual, no 

public announcement or press release from DOT, only a footnote on an FMCSA 

website, documents this sordid case.27

The real issue that Congress needs to investigate immediately, given Trinity Industries poor safety record, is how and why did DOT ‘‘pass’’ Trinity Industries as 

a safe motor carrier, grant operating authority and allow it to participate in the 

Pilot Program? The public also needs to know if there are other such companies that 

DOT has accepted as ‘‘safe’’ even though their operating record contains serious and 

dangerous safety violations and overall does not reflect a high standard for safety. 

Because DOT did not provide that information to the public before the Pilot Program began, the extent of the threat to the safety of the American people remains 

unknown. 

DOT Determined to Conduct Pilot Program Despite Intent of Congress 

This review shows that the decision of the Secretary of Transportation to defy 

Congress and ignore the funding ban contained in the current year’s appropriations 

law 28 is just the latest link in a long chain of events in which DOT, at nearly every 

juncture, has sought to open the U.S. southern border to long-haul trucks before the 

border was ready or the trucks and drivers were proven safe. 

Section 136 of the Consolidated Appropriations Act clearly prohibits DOT from 

using Fiscal Year 2008 funds to continue the Pilot Program. By restricting funds 

‘‘to establish’’ the Pilot Program, the language includes a prohibition on the use of 

those funds to carry out the program as well, since carrying out the program is contingent upon the establishment of the program. If DOT could not use the funds to 

establish the program, then it also cannot use the funds to continue the program 

since that subsequent act flows directly from the action that is specifically prohibited. This makes perfect sense from a policy perspective because agencies should not 

be encouraged to outmaneuver Congressional legislation simply by taking action before a law can be enacted. As a matter of policy, Federal agencies should not be able 

to circumvent the will of Congress through pre-emptive unilateral action. 

Beyond the policy question, DOT is parsing the statutory language in order to distill a highly technical and narrow reading of the word ‘‘establish.’’ By artificially disconnecting the act of establishing the Pilot Program from the implementation of the 

program, DOT hopes to cloak its continuation of the pilot program as a legal act. 

But DOT’s narrow, legalistic interpretation of Section 136 cannot stand in the face 

of the legislative history of the provision and DOT’s own precedents. 

First, DOT cannot read the word ‘‘establish’’ in such a narrow manner because 

the clear legislative history of the discussions in both the Senate, where Section 136 

originated, and in the House, which passed similar language, make it abundantly 

58 

29Sen. Byron Dorgan, 153 Cong. Rec. S11299 (Sept. 10, 2007). 30See also, e.g., 153 Cong. Rec. S11307 (Sept. 10, 2007) (Sen. Specter: ‘‘it seems to me this 

program ought not to go forward, and the amendment which Senator Dorgan has advanced is 

very sound.’’). 31 153 Cong. Rec. S11308–309 (Sept. 10, 2007) (emphases added); see also id. at S11389 (Sen. 

Dorgan: ‘‘So I offer on behalf of myself and Senator Specter an amendment . . . that says let’s 

stop this pilot program. It should not have been initiated last Thursday.) (emphasis added); and, 

id. at S11391 (Sen. Dorgan: ‘‘It is why Senator Specter, I, and others have offered an amendment 

to stop this pilot project.’’) (emphasis added). 32 153 Cong. Rec. 11315 (Sept. 10, 2007) (Sen. Lott: ‘‘But we should defeat the Dorgan amendment. We should allow the pilot program to go forward . . .’’); id. at S11468 (Sept. 12, 2007) 

(Sen. McCain: ‘‘Unfortunately, the Senate has voted 74 to 24 to prevent the pilot program from 

going forward.’’) (emphasis added). 33See 153 Cong. Rec. S11389 (Sen. Dorgan: ‘‘[the Pilot Program] should not have been initiated last Thursday.’’). 34Tire Registration and Recordkeeping, notice of proposed rulemaking, 73 FR 4157, 4159 (Jan. 

24, 2008). (Copy of notice attached). 

clear that the provision was intended to cut off funds not just for the startup of the 

program or for the formal announcement of its commencement, but to ‘‘prohibit the 

use of funds to continue this pilot project.’’ 29 Such statements were made repeatedly 

in the U.S. Senate and make clear that Congress knew and intended that the language, i.e., the term ‘‘establish,’’ when enacted would result in a complete cessation 

of pilot program activities.30 Senator Dorgan, the sponsor of this language, stated 

‘‘the U.S. House of Representatives has already passed by voice vote a provision that 

says ‘no money in this appropriation bill shall or can be used to continue this pilot 

project.’ . . . I propose we do exactly the same thing. This amendment is identical 

to that which the House has passed.’’ 31 Senators who opposed the language also 

clearly understood it would prevent DOT from continuing to fund the Pilot Program.32

Moreover, the Senate language that was enacted as Section 136 was originally 

adopted after the House had already passed its version of the funding prohibition. 

Although the House used the term ‘‘establish or implement’’ in its bill to cut off 

funding for the Pilot Program, the Senate sponsors made it amply clear in the legislative discussion that the Senate language was intended to have the identical effect 

as the House language. Thus, even if the wording was not identical, the intent of 

the two houses of Congress was the same. 

Second, it should be pointed out that the Senate acted after DOT had already ‘‘established’’ the Pilot Program by granting operating authority to the first Mexican 

motor carrier on September 6, 2007. The Senate had actual knowledge that the Pilot 

Program had already been ‘‘established’’ at the time the Senate debate took place. 

Senator Dorgan specifically referred to initiation of the Pilot Program that had 

taken place several days before.33 DOT’s view that the word ‘‘establish’’ refers only 

to an act that had already transpired renders Section 136 meaningless. However, 

since Acts of Congress are to be interpreted to have meaning and be given a reasonable construction, adopting DOT’s position is untenable, especially where another 

interpretation exists that would make Section 136 meaningful. The legislative history provides a clear and reasonable interpretation that gives meaning to the provision, that is, that Congress intended to prohibit funding for the continuation of the 

Pilot Program, not just its commencement. 

Finally, even if DOT’s strained interpretation of Section 136 was plausible, DOT 

should invoke the legal doctrine of equitable interpretation of statutory language in 

order to implement the intent of Congress. According to the well-known doctrine of 

equitable interpretation, ‘‘a statutory requirement need not be literally applied in 

instances in which the underlying Congressional intent is otherwise satisfied.’’ 34

This principle ensures that the language of a statute will not be used to thwart Congressional intent. 

Under equitable interpretation, where the specific words used in the law thwart 

or interfere with the intent of Congress, agencies are permitted, indeed compelled, 

to ignore the statutory language in order to carry out Congressional intent. In this 

situation, since DOT’s interpretation of the word ‘‘establish’’ in Section 136 would 

stand in the way of the express intent of Congress to prohibit continued funding 

for the cross-border Pilot Program, invoking equitable interpretation allows DOT to 

look past the words and implement the intent. 

Since ‘‘One DOT’’ is the motto of the department, it is clear that what is an acceptable legal practice for one administration in DOT should also be appropriate for 

the other branches of DOT. We need not look far for precedent in applying the doctrine of equitable interpretation. Within DOT one of its own modal administrations, 

the National Highway Traffic Safety Administration (NHTSA), has applied the docVerDate Nov 24 2008 08:06 Jun 22, 2012 Jkt 074617 PO 00000 Frm 00062 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\74617.TXT SCOM1 PsN: JACKIE
59 

35Letter from Diane K. Steed to the Hon. Timothy E. Wirth, dated February, 1983, available 

at: http://isearch.nhtsa.gov/gm/83/1983-1.12.html. (Copy of letter attached). 36 Information available at: http://www.fmcsa.dot.gov/cross-border/cross-border-carriers.htm. 37 72 FR 46263, 46271 (Aug. 17, 2997). 38 72 FR 31877, 31888 (June 8, 2007). 39 Iraq Accountability Act, § 6901(a)(2). 40 72 FR 46271. 

trine of equitable interpretation in very similar circumstances explicitly to fulfill 

Congressional intent. 

Just over 1 month ago, the NHTSA invoked the doctrine of equitable interpretation in order to ensure that the wording of a statute does not frustrate Congressional intent to promote tire registration. The agency was acting on a long-standing 

precedent because in 1983 the NHTSA Administrator stated that ‘‘[u]nder the principles of equitable interpretation, the language of the amendments need not be applied in instances where it is clearly contrary to the underlying Congressional intent.’’ 35 The same legal approach can be taken to Section 136 and the Pilot Program. 

DOT and FMCSA interpret the language of Section 136 to apply only to actions 

that ‘‘establish’’ the Pilot Program. Yet, the legislative debate shows that the wording of the Senate amendment was intended to ‘‘stop’’ the Pilot Program. The legislative history and universal understanding of the action was to prevent the Pilot Program from proceeding, not only to prevent it from being established (an event that 

had already taken place). As the NHTSA precedent points out, DOT agencies can 

look past the specific wording of a law if they are concerned that it stands in the 

way of carrying out the intent of Congress. Since NHTSA has twice invoked the doctrine of equitable interpretation, there appears no reason for DOT not to invoke that 

doctrine in the current circumstances. DOT should apply the doctrine of equitable 

interpretation and implement the clearly stated intent of Congress in Section 136. 

The Pilot Program Is Junk Science 

Finally, it has become evident that the cross-border truck Pilot Program announced with such fanfare just over a year ago, and ‘‘established’’ just six (6) 

months ago, is a failure. Although up to 100 companies and as many as 1,000 trucks 

were supposed to participate, there are currently only 16 Mexican motor carriers 

and a total of only 55 trucks that are authorized to participate.36 DOT has claimed 

that ‘‘100 out of 989 carriers, or about 10 percent . . . will generate enough data 

for a meaningful safety analysis.’’ 37 But the current participation is a far cry from 

the numbers that DOT originally estimated, and the 55 trucks are less than a third 

of the 155 trucks that DOT had identified as intended for use in the U.S. during 

its initial round of safety audits.38

When first announced, it was evident that DOT did not intend that the Pilot Program would be a serious scientific test of the safety of Mexican long-haul trucks in 

the U.S., and thus, the program did not have to meet the requirements for scientifically conducted pilot programs. That is one reason why Congress stepped in to require DOT to comply with the existing Federal statute governing commercial motor 

vehicle pilot programs, 49 U.S.C. § 31315(c).39 The purpose of the pilot program statute is to ensure that when new methods and alternative regulations are being tested that a basic level of scientific methodology is used in the collection of data to 

ensure that the pilot programs yield scientifically valid results. 

Although Advocates opposes cross-border long-haul trucking at this time because 

not all safety measures have been addressed, if DOT is going to operate the Pilot 

Program it should follow scientific methods and have a plan that includes collecting 

sufficiently objective and credible data. In fact, the Pilot Program law requires DOT 

to do exactly that. As it exists today, however, the Pilot Program has absolutely no 

chance of meeting this minimal scientific goal and legal requirement. 

The data that DOT needs to collect consists of border and roadside inspection results, including inspection violations and out-of-service (OOS) orders for serious 

safety violations, records of other non-inspection stops and violations, as well as 

crash, injury and fatality data. Scientifically valid determinations about safety can 

only be made if a sufficient amount of data is collected during the test period. As 

FMCSA stated, ‘‘[i]n addition to the number of participants, the volume of the data 

depends on the frequency with which the participating carriers operate in the 

United States.’’ 40 Since Federal border inspections are based on the number of 

crossings, fewer trucks mean less data. Also, state roadside inspections are based 

not just on the number of trips but the length and route of the trips and how many 

roadside inspection facilities a truck encounters, again, fewer trucks mean fewer inspections and insufficient data. 

60 

41 49 U.S.C. § 31315(c)(2)(C). 42 72 FR 46271. 43 As discussed, Trinity Industries, the company that had the most trucks eligible for participation, see infra note 24, withdrew from the Pilot Program as of Feb. 1, 2008. 

Finally, truck crash, injury and fatality data is analyzed based on exposure measures of total distance of travel. For cars, the exposure measure used by DOT is 100 

million vehicle miles of travel and for trucks the exposure measure is 100 million 

truck vehicle miles of travel (100 MTVMT). Thus, in order for the Pilot Program to 

collect a sufficient amount of objective data, trucks in the Pilot Program must travel 

millions upon millions upon millions of miles in the U.S. While this may have been 

possible with 100 carriers and 1,000 trucks, since only 16 motor carriers and 55 

trucks are participating, and now that half the allotted one-year Pilot Program time 

has already expired, there is no possibility that the Pilot Program has the ‘‘reasonable number of participants necessary to yield statistically valid findings.’’ 41

DOT originally claimed that the Pilot Program would consist of up to 100 motor 

carriers, about 10 percent of the motor carriers that had applied for U.S. operating 

authority,42 but less than 2 percent of Mexican carriers that applied for operating 

authority are currently participating in the program. More important, only a fraction of the 1,000 trucks that DOT expected would participate in the Pilot Program 

actually entered, and the largest single participating truck fleet dropped out when 

Trinity Industries withdrew from the Pilot Program.43 As a result, only 5.5 percent 

of the 1,000 trucks DOT originally planned for are involved in the Pilot Program. 

This small number of participating vehicles cannot provide the exposure needed to 

produce credible data or that will result in valid findings. 

In summary, Mr. Chairman, the Pilot Program should be stopped and stopped 

now, not only because DOT is legally obligated to do so, but also because the Pilot 

Program cannot provide statistically valid findings regarding the safety of the participating motor carriers. The Pilot Program is an extreme example of junk science 

that threatens safety and wastes American tax dollars on a faulty and dangerous 

experiment using the motoring public as guinea pigs. Safety groups are concerned 

that in September, DOT will once again jeopardize highway safety by using this 

‘‘junk science’’ to justify a bad decision that leads to opening borders for all Mexican 

motor carriers wishing to travel anywhere throughout the United States. 

That concludes my testimony and I will gladly answer any questions you and 

members of the Committee may have. 

ATTACHMENT 1 

Mexican Border and DOT Pilot Program Chronology 

Mar. 11, 2008 Senate Commerce, Science, and Transportation Committee holds hearing on DOT 

Cross-Border Pilot Program. 

Mar. 5, 2008 After six (6) months, half way through the one-year Pilot Program, only 16 Mexican 

trucking companies with a total of 55 trucks are participating in the Pilot Program. 

The small number of participating trucks is only 5.5 percent of the 1,000 trucks that 

DOT expected might participate in the Pilot Program. DOT said that it needed 

about 100 companies, or 10 percent of the 989 Mexican trucking companies that applied for U.S. operating authority, to participate in order to collect enough data to 

evaluate the safety of the program. The 16 companies represent less than 2 percent 

of the applicant companies and less than one-fifth of the participation that DOT said 

was needed to collect sufficient data. 

Feb. 12, 2008 Oral argument is held in U.S. 9th Circuit Court of Appeals on cases brought by Public 

Citizen, Teamsters, Sierra Club and OOIDA challenging DOT Pilot Program as illegal. 

Feb. 1, 2008 Trinity Industries de Mexico, the Mexican company with largest number of trucks in 

the Pilot Program withdraws from the program following revelation that company 

amassed of over 1,100 violations in previous year for trucks operating in the commercial zones along the U.S. border. Despite withdrawal from the long-haul Pilot 

Program, DOT continues to allow Trinity to operate in the commercial zones. 

Dec. 26, 2007: DOT is prohibited from funding cross-border Pilot Program by Section 136 of Title I, 

Division K, of the Consolidated Appropriations Act, 2008, Pub. L. 110–161 (Dec. 26, 

2007). DOT asserts that the language in Section 136 does not bar the continuation 

of the Pilot Program. 

Sept. 10, 2007: U.S. Senate adopts an amendment on a vote of 75 to 23 offered by Senators Dorgan 

(D–ND) and Specter (R–PA) to the FY 2008 DOT Appropriations bill to block funding for cross-border long-haul trucking pilot program and to continue to limit operations by Mexico-domiciled motor carriers to commercial zones inside the U.S. 

Amendment is nearly identical to provision passed by House on July 24, 2007. 

61 

Mexican Border and DOT Pilot Program Chronology—Continued 

Sept. 7, 2007: The Owner-Operator Independent Drivers Association (OOIDA) files lawsuit in U.S. 

Court of Appeals (D.C. Circuit) challenging legality of DOT Pilot Program and emergency motion to stay DOT action. Motion is denied and case is transferred to 9th 

Circuit and joined with case filed by Public Citizen, Teamsters and Sierra Club. 

Sept. 6, 2007: Department of Transportation (DOT) Office of Inspector General (OIG) files report required by Section 6901 of the U.S. Troop Readiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007, detailing DOT compliance 

with actions required under Section 350 of the FY 2002 DOT Appropriations Act. 

OIG report details specific areas in which DOT has not completed required safety 

actions. 

DOT files letter with Congress responding to DOT OIG report and provides additional 

information purporting to address shortcomings in border preparation that OIG report identified as not meeting Congressional requirements in Section 350 of the FY 

2002 DOT Appropriations Act. 

DOT holds press conference to announce start of cross-border pilot program and announce grant of preliminary operating authority to first Mexico-domiciled long-haul 

motor carrier. 

Aug. 29, 2007: Public Citizen, Int’l Brotherhood of Teamsters, Sierra Club and others file lawsuit in 

U.S. Court of Appeals (9th Circuit) challenging legality of DOT pilot program and 

file emergency motion to stay DOT action. The court denies the motion for a stay on 

August 31, 2007. 

Aug. 17, 2007: Federal Motor Carrier Safety Administration (FMCSA) publishes response to public 

comments and states that after final OIG report is submitted as required by Section 

6901 of the U.S. Troop Readiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007, and DOT takes action to respond to OIG report, DOT will commence granting preliminary operating authority to Mexico-domiciled motor carriers to travel beyond commercial zones on U.S.-Mexico border. 

Aug. 6, 2007: DOT OIG issues latest follow-up audit report required under Section 350 of the FY 

2002 DOT Appropriations Act. Report still finds that several outstanding issues remain incomplete, including the sufficiency and quality of information in Mexican 

and U.S. license databases, the availability of bus inspection facilities, compliance of 

Mexican commercial vehicles with U.S. safety standards and compliance with U.S. 

drug and alcohol testing requirements. Prior OIG audit reports were issued on Dec. 

28, 1998, Nov. 4, 1999; May 8, 2001; Sept. 21, 2001; June 25, 2002; May 16, 2003; 

and Jan. 3, 2005. 

July 24, 2007: House votes to amend FY 2008 DOT Appropriations bill (H.R. 3074) to block funding 

for cross-border long-haul trucking pilot program and to continue to limit operations 

by Mexico-domiciled motor carriers to commercial zones inside the U.S. 

June 8, 2007: FMCSA publishes notice responding to Section 6901 of the U.S. Troop Readiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007, 

but agency fails to provide specific information that meets either letter or spirit of 

the law. FMCSA provides only 20 days for public comment. 

May 25, 2007: Congress requires DOT to comply with existing laws regarding the safety of cross-border trucking and pilot programs, and directs DOT to provide further information on 

the pilot program under Section 6901 of the U.S. Troop Readiness, Veterans’ Care, 

Katrina Recovery, and Iraq Accountability Appropriations Act, 2007, Pub. L. 110–28 

(May 25, 2007). 

May 16, 2007: House passes Safe American Roads Act of 2007, H.R. 1773, by 411–3 vote, indicating 

strong bipartisan support for measures to ensure that opening of the U.S. border to 

long-haul, Mexico-domiciled interstate operators does not diminish safety on U.S. 

highways and roads. 

May 1, 2007: FMCSA publishes initial notice on pilot program providing no new information and 

which does not mention either the safety requirements included in Section 350 of 

the FY 2002 DOT Appropriations Act (2001), or the procedures required for the conduct of pilot programs enacted in the Transportation Equity Act for the 21st Century (TEA–21) (1998). The public is given 30 days to comment. 

Mar. 13, 2007: House Subcommittee on Highways and Transit, Transportation and Infrastructure 

Committee, holds hearing on DOT pilot program. 

Mar. 8, 2007: Senate Subcommittee on Transportation and Housing and Urban Development & Related Agencies, Committee on Appropriations, holds hearing on DOT pilot program. 

Reveals document dated September 2006, indicating agreement between U.S. and 

Mexican authorities on how to proceed and that full opening of U.S. border will follow pilot program. 

Feb. 13, 2007: DOT Secretary Peters announces that U.S. and Mexico have agreed to on- site inspections of Mexico-domiciled motor carriers to conduct pre-authorization safety audits 

and, therefore, cross border pilot program with 100 participating Mexico-domiciled 

motor carriers can commence within 60 days. Document on DOT website states that 

planning for pilot program began in June 2004. 

Oct. 17, 2006: Advocates for Highway and Auto Safety files request for pilot program records with 

FMCSA under the Freedom of Information Act (FOIA). 

Sept. 26, 2006: At Senate confirmation hearing, Secretary of Transportation-designate Mary Peters 

testifies that no plans to conduct a pilot program to permit Mexican-domiciled 

trucks to operate throughout the U.S. exist and that she will notify Congress if such 

a plan is developed by DOT. 

62 

Mexican Border and DOT Pilot Program Chronology—Continued 

Jan. 3, 2005: DOT OIG issues follow-up audit report that indicates several problems remain to be 

resolved under Section 350. This is latest OIG audit report on serious safety deficiencies of U.S. Federal and state oversight of the safety of Mexico-domiciled trucks 

and buses entering the U.S. 

2003–2006: U.S. and Mexican authorities negotiate over Section 350 requirement that pre-authorization safety audits of Mexican-domiciled motor carriers take place on-site in Mexico. 

Nov. 22, 2002: DOT Secretary certifies that section 350(a) requirements have been met. 

Dec. 21, 2001: The Government Accounting Office (GAO) issues latest report finding that the U.S. is 

not prepared to meet the safety oversight needs of growing commercial traffic from 

Mexico. 

Dec. 18, 2001: Enactment of FY 2002 DOT Appropriations Act includes Section 350 imposing requirements on DOT regarding the Safety of Cross-Border Trucking. DOT OIG required to 

issue reports to verify progress of DOT in meeting requirements. 

Feb. 6, 2001: North American Free Trade Agreement (NAFTA) Arbitral Panel issues ruling requiring U.S. to open border but permits the U.S. to adopt safety requirements for Mexico-domiciled motor carriers that are different from those for U.S.-domiciled motor 

carriers. DOT states that it will open border to Mexico-domiciled commercial vehicles by January 2002. 

Mar. 3, 2000: GAO issues a report finding that there is insufficient coordination of resources between Federal and state motor carrier safety personnel to address increased commercial traffic from Mexico entering the U.S. 

Nov. 9, 1999: DOT OIG issues follow-up audit report finding that there are numerous, illegal operations of Mexico-domiciled motor carriers operating outside the restricted boundaries of the southern commercial zones in 20 states; many Mexican trucks and buses 

have no insurance, drivers have no valid licenses, U.S. Federal databases are incomplete and inaccurate on Mexican truck and bus registrations; and many Mexican vehicles have serious safety violations. 

Dec. 28, 1998: DOT OIG issues first oversight audit report. 

Aug. 8, 1997: GAO issues another NAFTA-related report on safety deficiencies of U.S. border inspection efforts of Mexico-domiciled commercial buses and vans entering the U.S. to operate in the southern commercial zones. 

April 9, 1997: GAO issues another oversight report on NAFTA-related issues of Mexico-domiciled 

motor carrier safety. GAO documents U.S. Federal funds provided to Mexico from 

1991–1995 to strengthen the use of Mexican motor carrier inspection resources in 

Mexico and the essential failure of the effort by 1996. 

Feb. 29, 1996: U.S. GAO releases reports reviewing concerns about safety of Mexico-domiciled motor 

carriers in the U.S. including the lack of motor carrier safety oversight in Mexico 

and the lack of any Mexican commercial driver hours of service limits. 

Dec. 18, 1995: President Clinton postpones implementation of NAFTA cross-border trucking provision 

based on safety and environmental concerns. 

Nov. 1993: Congress approves NAFTA. 

Dec. 1992: Representatives of U.S., Canada and Mexico finalize NAFTA to include allowing Mexico-domiciled motor carriers to conduct interstate operations throughout U.S. by Dec. 

18, 1995. 

July 16, 1992: U.S. DOT declares equivalence of U.S. Commercial Driver License (CDL) with Mexican Licencia Federal de Conductor (LFC) in Memorandum of Understanding published without prior notice or opportunity for public comment. 57 FR 31454 (July 16, 

1992). Actual provisions of the LFC are not made public. 

1982: President Reagan lifts moratorium for Canadian trucking. 47 FR 54053 (1982). 

Sept. 20, 1982: Congress bans interstate transportation by trucks and buses domiciled in Mexico and 

Canada. Legislation provides the President with the authority to modify the moratorium. Bus Regulatory Reform Act of 1982, Pub. L. 97–261 (Sept. 20, 1982). 

ATTACHMENT 2 

Federal Register/Vol. 73, No. 16/Thursday, January 24, 2008/Proposed Rules 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety Administration 

49 CFR Part 574 

[Docket No. NHTSA–2008–0014] 

RIN 2127–AK11 

Tire Registration and Recordkeeping 

Agency: National Highway Traffic Safety Administration (NHTSA), Department of 

Transportation (DOT). 

Action: Notice of proposed rulemaking (NPRM). 

Summary: Our regulation for tire identification and recordkeeping requires manufacturer owned tire distributors and dealers to register the names and addresses of 

the people to whom they sell or lease new tires, and specifies the use of standardVerDate Nov 24 2008 08:06 Jun 22, 2012 Jkt 074617 PO 00000 Frm 00066 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\74617.TXT SCOM1 PsN: JACKIE
63 

ized paper forms for this purpose. It also requires independent distributors and 

dealers to provide purchasers with standardized registration forms they can complete and mail to the manufacturer or its designee. 

We propose to amend the regulation by codifying existing interpretations regarding opportunities under the regulation for electronic registration of tire sales and 

leases and by creating new opportunities. The names and addresses of purchasers 

and lessees are used by a tire manufacturer to contact those people in the event 

that the manufacturer must conduct a campaign to recall and remedy tires that either fail to comply with an applicable Federal motor vehicle safety standard or have 

a safety-related defect. 

Dates: Comments must be received on or before March 24, 2008. 

Addresses: You may submit comments to the docket number identified in the 

heading of this document by any of the following methods: 

• Federal eRulemaking Portal: go to http://www.regulations.gov. Follow the online instructions for submitting comments. 

• Mail: DOT Docket Management Facility, M–30, U.S. Department of Transportation, West Building, Ground Floor, Rm. W12–140, 1200 New Jersey Avenue, 

SE., Washington, DC 20590. 

• Hand Delivery or Courier: West Building Ground Floor, Room W12–140, 1200 

New Jersey Avenue, SE., between 9 a.m. and 5 p.m. Eastern time, Monday 

through Friday, except Federal holidays. 

• Fax: (202) 493–2551. 

Regardless of how you submit your comments, you should mention the docket 

number of this document. 

You may call the Docket Management Facility at 202–366–9826. 

Privacy Act: Please see the Privacy Act heading under Rulemaking Analyses and 

Notices. 

Instructions: For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Participation heading of the 

Supplementary Information section of this document. Note that all comments received will be posted without change to: http://www.regulations.gov, including any 

personal information provided. 

For Further Information Contact: For non-legal issues, Mr. Jeff Woods, Vehicle 

Dynamics Division, Office of Vehicle Safety Standards (Telephone: 202–366–6206) 

(Fax: 202–366–7002). Mr. Woods’ mailing address is National Highway Traffic Safety Administration, NVS–122, 1200 New Jersey Avenue, SE., Washington, DC 20590. 

For legal issues, Ms. Dorothy Nakama, Office of the Chief Counsel (Telephone: 

202–366–2992) (Fax: 202–366–3820). Ms. Nakama’s mailing address is National 

Highway Traffic Safety Administration, NCC–112, 1200 New Jersey Avenue, SE., 

Washington, DC 20590. 

Supplementary Information: 

Table of Contents 

I. Background 

A. Tire Registration Requirements 

B. Rate of Tire Registration 

C. Increasing the Effectiveness and Reducing the Cost of Tire Registration 

Through Electronic Registration 

1. 1984 Interpretation to Representative Wirth 

2. 2003 Interpretation to RMA 

3. 2005–2007 Issues Regarding Clearance of the Tire Registration Requirements Under the Paperwork Reduction Act 

II. Need for Rulemaking 

III. Today’s Notice of Proposed Rulemaking 

A. Tires Sold by Independent Tire Dealers—Alternative Means of Tire Registration 

B. Tires Sold by Dealers Controlled by Tire Manufacturers—Electronic Tire 

Registration 

IV. Rulemaking Analyses and Notices 

A. Executive Order 12866 and DOT Regulatory Policies and Procedures 

B. Regulatory Flexibility Act 

C. National Environmental Policy Act 

D. Executive Order 13132 (Federalism) 

64 

1Pub. L. 91–265. 

2 H.R. Rep. No. 576, 97th Cong. 2d Sess. 8–9 (1982). 

3 July 18, 2003 letter from Jacqueline Glassman to Ann Wilson of RMA. Letter is available 

at: http://isearch.nhtsa.gov/files/onlinetireregistration.html. 

E. Civil Justice Reform 

F. Paperwork Reduction Act 

G. National Technology Transfer and Advancement Act 

H. Unfunded Mandates Reform Act 

I. Plain Language 

J. Regulation Identifier Number (RIN) 

K. Privacy Act 

V. Public Participation 

I. Background 

A. Tire Registration Requirements 

As originally enacted, the National Traffic and Motor Vehicle Safety Act of 1966 

(now codified at Title 49 U.S.C. Chapter 301 Motor Vehicle Safety) did not include 

a requirement for tire registration. However, in May 1970, Congress amended the 

law to mandate that every tire manufacturer shall maintain records of the names 

and addresses of the first purchaser of tires produced by that manufacturer.1

NHTSA was given the authority to establish procedures to be followed by manufacturers in establishing and maintaining such records, including procedures to be followed by distributors and dealers to assist manufacturers in securing the names 

and addresses of first purchasers. 

Pursuant to this authority, in a final rule published in the Federal Register (35 

FR 17257) on November 10, 1970, NHTSA established the initial tire identification 

and recordkeeping requirements of 49 CFR part 574. The rule required all tire dealers to record the name and address of the purchaser to whom they sold the tire, 

along with the dealer’s name and address, and forward that information to the tire 

manufacturer. 

However, under the Motor Vehicle Safety and Cost Savings Authorization Act of 

1982 (Pub. L. 97–331), Congress amended the Safety Act to mandate that the obligations of independent distributors and dealers be limited to giving ‘‘a registration 

form (containing the tire identification number) to the first purchaser.’’ The tire purchaser could then mail the form to the tire manufacturer. Congress also mandated 

that NHTSA should prescribe a standardized registration form and that tire manufacturers had to ensure that they gave sufficient copies of these forms to their dealers. 

Congress adopted these amendments after the House Committee on Energy and 

Commerce found in its report on the 1982 amendments that tire dealers whose business was owned or controlled by a tire manufacturer (these dealers accounted for 

just under 1⁄3 of tire sales) registered between 80 and 90 percent of the tires they 

sold.2 However, independent tire dealers, which accounted for more than 2⁄3 of tire 

sales, registered only 20 percent of the tires they sold. 

The changes mandated by the 1982 amendments were established in an interim 

final rule published on May 19, 1983 (48 CFR 22572). The regulation required tire 

manufacturers to provide both independent and non-independent distributors and 

dealers with standardized tire registration forms. The regulation specified the exact 

content of the forms given to independent distributors and dealers. No other information may appear on the forms.3 When an independent distributor or dealer sells 

or leases a tire to a consumer, the distributor or dealer must fill in the tire identification number and its name and address on a registration form and give the form 

to the consumer. The consumer may then fill in his or her name and address, add 

a stamp and mail the form to the manufacturer or its designee. In a follow-up final 

rule published on February 8, 1984 (49 FR 4755), the agency made slight revisions 

to the tire registration form to improve its clarity and also reduced the size of the 

form so that it could be mailed using post card postage. 

As part of the agency’s implementation of the Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act (Pub. L. 106–414) that was 

enacted on November 1, 2000, the agency increased the tire registration record retention requirements for tire manufacturers from 3 years to 5 years. The record retention period was extended in a final rule published in the Federal Register (67 

FR 45822) on July 10, 2002. 

65 

4See Motor Vehicle Safety and Cost Authorization Act of 1982, Pub. L. 97–331. 

5For a discussion of NHTSA’s Evaluation Reports on Voluntary Tire Registration, see 53 FR 

44632–33, November 4, 1988. 6 Advance notice of proposed rulemaking; 51 FR 45916; December 23, 1986. 

7Termination of rulemaking; 53 FR 44621, November 4, 1988. 

8Docket NHTSA–2006–26554–3. 

B. Rate of Tire Registration 

In the Motor Vehicle Safety and Cost Savings Authorization Act of 1982, Congress 

directed NHTSA to conduct an evaluation after 2 years of voluntary registration to 

determine the extent to which the voluntary registration procedures for independent 

dealers were successful in increasing the registration of tires.4 NHTSA was also 

charged with determining the extent to which independent dealers have encouraged 

purchasers to register their tires and the extent to which independent dealers have 

complied with the new procedures. Finally, NHTSA was charged with deciding 

whether to impose any additional requirements to ‘‘significantly increase’’ registration of tires sold by independent dealers. 

Per that Congressional directive, NHTSA reported on its evaluation of voluntary 

tire registration by independent dealers in 1985 and 1987.5 We found that: 

1. Registration rates for independent dealers declined by half, from 18.1 percent 

under previous law to 9.3 percent under voluntary registration. 

2. Registration rates for company stores had remained steady at 86 percent during this same period. 

3. Tire manufacturers had provided plenty of registration forms. 

4. There were no records of any tire registrations for more than 70 percent of 

the independent dealers. 

From this, NHTSA reached the conclusion that many independent dealers did not 

routinely give registration forms to tire purchasers. NHTSA stated that we did not 

think it would be the best use of our enforcement resources to bring compliance actions against independent tire dealers. Instead, NHTSA proposed in 1986 6 four potential steps to improve tire registration by independent dealers: 

1. Require prepaid postage on the registration form; and/or 

2. Undertake a public education campaign and a brief explanation of the tire 

registration process in tire information pamphlets; and/or 

3. A central clearinghouse for all registration forms distributed to consumers by 

independent dealers; or 

4. Rescind the tire registration requirements and allow tire manufacturers to 

devise their own contractual ways of ensuring they meet the statutory obligation for tire manufacturers to ‘‘establish and maintain records of the names and 

addresses of first purchasers.’’ 

After reviewing the pubic comments, NHTSA published a termination of rulemaking notice in November 1988 7 announcing that none of the four suggestions had 

been demonstrated to likely significantly increase the level of tire registration by 

independent dealers under voluntary registration. NHTSA also noted that the agency would continue to rely on media and public announcements to alert the public 

of tire recalls, so public safety would not be jeopardized by the low registration rate 

for tires sold by independent dealers. 

Although the agency has not conducted a subsequent evaluation, it believes that 

the registration rate for tires sold or leased by independent distributors and dealers 

remains largely unchanged. In a submission sent to the agency earlier this year, the 

Rubber Manufacturers Association (RMA) indicated that the return rate for the 

mail-in registration cards is no more than 10 percent.8

C. Increasing the Effectiveness and Reducing the Cost of Tire Registration Through 

Electronic Registration 

1. 1984 Interpretation to Representative Wirth 

In 1984, Representatives Wirth and Rinaldo wrote a letter to the agency expressing several concerns. First, they noted that the agency had stated in a recent rulemaking that the Vehicle Safety Act did not permit independent dealers to return 

the mail-in registration cards directly to the manufacturer without first providing 

the form to the purchaser with the required information filled in by the dealer. Second, they expressed support for computerized tire registration and argued that the 

1982 amendments to the Vehicle Safety Act should be interpreted as permitting 

independent dealers to give the purchaser a mail-in registration form on which they 

66 

9February 1983 letter from Diane K. Steed to the Honorable Timothy E. Wirth. Letter is 

available at: http://isearch.nhtsa.gov/gm/83/1983–1.12.html. 10 July 18, 2003 letter to Ann Wilson of RMA. 11Letter to John K. Stipancich, January 3, 2003; letter to Mark A. Rosenbaum, Esq., April 

12, 2001. 12See 5 CFR 1320.3(a)(3). 

had not filled in any of the required information if they attached to the form a copy 

of the computerized invoice bearing that information. 

In its response, the agency stated while a literal interpretation of the 1982 

amendments would not permit independent dealers to do that, under an equitable 

interpretation, they would be.9 Under the principles of equitable interpretation, a 

statutory requirement need not be literally applied in instances in which the underlying Congressional intent is otherwise satisfied. The agency stated: 

Based on the principles of equitable interpretation, we believe that an independent tire dealer or distributor who 

(1) Registers tires by computer; 

(2) Attaches a computer-printed invoice containing all of the information necessary for registration to a blank standardized registration form; and 

(3) Furnishes the two documents to the customer when the tires are purchased; 

fully satisfies the tire registration amendments. 

2. 2003 Interpretation to RMA 

On July 18, 2003,10 the agency responded to a letter from RMA asking whether 

Part 574 permits tire manufacturers to offer electronic registration in addition to 

the required mail-in form. RMA stated that it wanted to provide independent tire 

distributors and dealers with a supplemental form that notifies consumers that they 

may also register their tires by electronic means, e.g., by directing the consumer to 

a website or a toll-free telephone registration line. In support of its request, RMA 

noted that the agency had recently concluded that child restraint manufacturers 

could provide consumers with a supplemental form encouraging electronic registration.11 RMA said that no more than 10 percent of tire registration cards were being 

returned to the manufacturers and that the information was often incomplete or the 

writing illegible. RMA expressed the belief that offering tire registration via the 

Internet, by telephone or other electronic means would improve the registration rate 

and aid manufacturers in fulfilling their notification obligations. 

In its response, the agency said it agreed that the rationales in its letters relating 

to child restraint registration were also applicable to tire registration. The agency 

concluded that Part 574 permits the provision of information about electronic registration as a supplement to the required mail-in form for independent distributors 

and dealers. 

Likewise, as to non-independent distributors and dealers, the agency said that 

electronic registration could be offered to them. The agency cautioned, however: 

This interpretation does not relieve non-independent distributors and dealers 

from the requirements of section 574.8(b) that they themselves record the purchaser’s name and address, the tire identification number(s) of the tire(s) sold, 

and a suitable identification of themselves as the selling dealer on a tire registration form and return the completed forms to the tire manufacturers or their 

designees. While we would interpret Part 574 to permit non-independent distributors and dealers to accomplish these tasks by electronic means, they may 

not transfer this responsibility to consumers. 

3. 2005–2007 Issues Regarding Clearance of the Tire Registration Requirements 

Under the Paperwork Reduction Act 

The information collected by tire dealers from tire purchasers and retained by tire 

manufacturers is considered to be a ‘‘collection of information’’ 12 as defined by the 

Office of Management and Budget (OMB). The significance of this definition is that 

approval of the ‘‘collection of information’’ is subject to OMB review. OMB has promulgated 5 CFR Part 1320 ‘‘Controlling Paperwork Burdens on the Public.’’ OMB 

states that the purpose of Part 1320 is to implement the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35) (PRA) concerning collections of 

information. The procedures established in Part 1320 are designed to ‘‘reduce, minimize and control burdens and maximize the practical utility and public benefit of 

the information created, collected, disclosed, maintained, used, shared and disseminated by or for the Federal Government.’’ 

Before a Federal agency can collect certain information from the public (which includes the Federal Government’s directing that the information be collected from 

67 

13Docket No. NHTSA–06–26554. 

new tire purchasers by tire dealers to give to tire manufacturers, also called thirdparty information), it must receive approval from OMB. If OMB approves a collection of information, it assigns an OMB control number and an expiration date. OMB 

will not ‘‘approve any collection of information for a period longer than 3 years.’’ 

(See 5 CFR section 1320.12(e)(1).) The OMB control number assigned to the Part 

574 collection of information is 2127–0050. The current status of OMB’s approval 

is available online at http://www.reginfo.gov/public/do/PRASearch. 

Because the Part 574 collection of information requirements are longstanding, we 

have, for many years, asked for and been granted, OMB approval to collect the information. As part of the periodic process to request OMB to renew approval of an 

existing collection of information, on December 28, 2005, we published in the Federal Register (70 FR 76909) an announcement that NHTSA planned to ask OMB for 

a renewal of approval to collect the Part 574 information, and sought public comment on the proposed renewal. 

We received two comments in response. The first was from the National Automobile Dealers Association (NADA). NADA represents 20,000 franchised automobile 

and truck dealers that act as independent tire dealers when they sell tires to consumers under differing situations. The second comment was from Tire Recall Registry, Inc. (TRR). It raised several issues, most of which were related to its advocating electronic registration of tires. TRR cited the July 18, 2003 NHTSA interpretation letter to RMA in which NHTSA stated that information about and opportunities for electronic registration could be used to supplement the paper form specified 

by Part 574. TRR stated its belief that requiring paper forms resulted in an unnecessary burden under the OMB regulations at 1320.3(b)(1), given that electronic 

means could be used instead, thus reducing the collection of information burden. 

On August 31, 2006, OMB renewed the collection of information for Part 574 for 

a period of 6 months, instead of 3 years due to its concerns about the burdens associated with tire registration. OMB posed several questions for the agency to answer 

regarding DOT’s compliance with PRA requirements, the effectiveness rates of the 

tire registration requirements, possible means to reduce the paperwork burden and 

encourage tire dealers and purchasers to register tires by permitting electronic registration, and a discussion of alternatives that might be permitted for electronic registration, including the use of electronic registration in lieu of the paper mail-in 

form. The questions were to be answered as part of NHTSA’s next request to renew 

the Part 574 collection of information. On December 8, 2006, NHTSA published a 

Federal Register document (71 FR 71238) 13 seeking comments on the OMB questions and proposing to renew the Part 574 collection of information. 

In response to the December 2006 document, five organizations submitted comments. In addition to comments from RMA and NADA, comments were submitted 

by Computerized Information and Management Services, Inc. (CIMS), National Tire 

Registry Recall.com (NTRR), and the Tire Industry Association (TIA). Except for 

CIMS, all commenters supported efforts to expand the methods of registering new 

tire purchaser information to include website registration by the purchaser and electronic registration performed by independent tire dealers. 

RMA stated that the continued registration of new tire purchasers is a critically 

important safety issue so that purchasers can be notified in the event of a product 

recall or other safety problem. It urged NHTSA to either interpret or revise Part 

574 to allow an electronic alternative to the current paper card system. RMA said 

that it has data showing that less than 10 percent of tire registration cards [from 

independent tire dealers] are currently being returned to the tire manufacturer and 

many of these cards are inaccurate, incomplete, or illegible. RMA asked NHTSA to 

interpret or amend the current regulations in the following areas: 

1. Modify Part 574 to permit tire distributor or dealer either (a) to provide consumer with the paper registration form bearing instructions about the opportunity to register the tires at the tire manufacturer’s website or (b), on a voluntary basis, to register the tires electronically at point of sale (without having 

to provide any type of registration form to the consumer). 

2. The current regulation only requires [independent] distributors to provide the 

form to first purchasers with the tire identification number and the dealer’s 

name and address. Any revisions to the regulations to permit electronic or 

point-of-sale registration should not create any new or additional obligations for 

tire dealers or distributors by requiring them to register the tires. 

3. The tire manufacturer’s obligations should remain the same. They should 

only be required to continue to provide the paper forms to tire dealers and disVerDate Nov 24 2008 08:06 Jun 22, 2012 Jkt 074617 PO 00000 Frm 00071 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\74617.TXT SCOM1 PsN: JACKIE
68 

14Docket No. NHTSA–06–26554. 

tributors and, upon receipt of the forms, retain the purchaser information for 

5 years. 

4. Through a NHTSA interpretation letter, a supplemental form regarding electronic tire registration is permitted. However, the agency should amend its regulations to permit information about such registration to be placed directly on 

the existing paper registration form. 

NADA generally supported the RMA comments regarding permitting website registration of tires, and referred to the agency’s provisions for electronic registration 

of child safety seats in 49 CFR 571.213 as being instructive in this regard. In addition to allowing registration by website or fax, NADA stated that tire dealers should 

also be permitted to register the tires for the purchaser, upon obtaining permission 

or a release from the purchaser to do so. 

NADA noted that it has stated in the past that franchised automobile and truck 

dealers act as independent tire dealers as well. Commenting on past NHTSA announcements of intent to renew the Part 574 collection of information, NADA questioned in those prior renewals, and also in the current one, NHTSA estimates of 

12,000 new tire dealers and distributors, when NADA stated that there are 20,000 

franchised automobile and truck dealers. 

CIMS stated that it provides tire registration services to over 80 percent of tire 

manufacturers/brand owners in the replacement tire market and to over 12,000 tire 

dealers and distributors. CIMS is opposed to making changes to the existing tire 

registration regulations. CIMS stated that the current tire registration regulations 

are working, and that independent tire dealers using the CIMS All Brand Form can 

comply with the tire registration regulation for one penny or less per tire. It stated 

that allowing electronic registration of tires will only cause more confusion, will remove the tire purchasers’ rights and ability to ensure that their tires are registered, 

and will increase the liability of independent tire dealers if the tire registration information is not completely transmitted to the tire manufacturer or if they jeopardize the privacy of tire purchaser information. 

CIMS indicated that tire registrations by year are as follows: 

1997—37,000,000 

2000—41,000,000 (Prior to Ford/Firestone recall) 

2003—54,000,000 (Corresponds with NHTSA estimates, Docket No. 06–26554) 

2006—59,000,000 

CIMS stated that there will be added costs associated with electronic tire registration including developmental costs, software upgrades and employee training. CIMS 

did not provide any specific cost estimates. 

NTRR stated its belief that changes are needed and that electronic registration 

would enhance public safety, and would be consistent with Paperwork Reduction Act 

priorities. NTRR stated that allowing electronic registration as an alternative, not 

merely as a supplement, would improve registration rates over the current methods. 

NTRR stated that the July 18, 2003 interpretation letter from NHTSA to RMA 

leaves unanswered the extent to which electronic registration and other alternatives 

to paper forms can be used in compliance with 49 CFR part 574. NTRR also stated 

that the tire registration form specified in Part 574 does not display the required 

OMB control number, and suggested that NHTSA does not adequately address privacy and confidentiality concerns under the PRA. 

TIA stated that it has worked closely with the RMA in reviewing the need to revise the current tire registration regulations in 49 CFR part 574, and that it agrees 

with the four principles identified by RMA for revisions to the regulations. TIA stated that any revisions to the regulations should not create any new or additional obligations for tire dealers and thus should not require the tire dealers to register the 

tires. TIA stated that many TIA member tire dealers endorse electronic registration 

and are making electronic registration of new tires possible. TIA recommended that 

NHTSA adopt the changes recommended by RMA as quickly as possible. 

In an additional Federal Register document on March 21, 2007 (72 FR 1334) 14 in 

which we asked that if the public had additional comments, to provide the comments directly to OMB by April 20, 2007, we provided a summary of the comments 

in response to the December 2006 document. In this March 2007 document, NHTSA 

specifically stated that we are: 

* * * considering revisions to update 49 CFR part 574 to provide, to the extent 

consistent with the agency’s authority, allowances for electronic and other posVerDate Nov 24 2008 08:06 Jun 22, 2012 Jkt 074617 PO 00000 Frm 00072 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\74617.TXT SCOM1 PsN: JACKIE
69 

sible means of registering new tires at the point of sale. First, the agency will 

consider the inclusion of website registration information to be placed on the 

tire registration form in 574.7. Second, the agency plans to update the registration form to include the OMB control number. Third, the agency will fully 

evaluate what appropriate regulations are permissible to allow independent tire 

dealers to electronically register the tires on a voluntary basis for the consumer, 

within the requirements specified in Title 49, U.S.C. Chapter 301, Section 

30117—providing information to, and maintaining records on, purchaser. 

Therefore, the agency will undertake rulemaking in 2007 to address these 

issues and provide the public with the opportunity to comment on the proposed 

changes. (See 72 FR at page 13345) 

As stated in the March 2007 notice, the agency is now proceeding with rulemaking 

to consider allowing registration via the Internet or other electronic means for new 

tire purchasers. 

II. Need for Rulemaking 

NHTSA is proposing to amend the Part 574 tire registration procedures to facilitate Internet and other electronic registration of tires, including voluntary registration of tires by independent tire dealers. We believe this rulemaking is needed to 

ensure that the regulation permits, to the extent consistent with the agency’s authority, the use of new technologies in registering tires. In addition to potentially 

reducing costs, the procedures could also result in improved tire registration rates. 

A higher new tire registration rate would help in the identification of first purchasers of defective or nonconforming tires, so that the purchasers may take appropriate action in the interest of motor vehicle safety. As described below, NHTSA’s 

most recent data on tire registration rates were included in a termination of rulemaking notice published in the Federal Register on November 4, 1988 (53 FR 

44632). 

As discussed earlier, NHTSA found in a 1985 study that under the mandatory tire 

registration program for independent tire dealers, the registration rate was 18.1 

percent. In 1987, NHTSA found that, under the voluntary independent tire dealer 

registration program, the tire registration rate among independent tire dealers had 

decreased to 9.5 percent. If the number of tires registered using computers is subtracted from 9.5 percent, the return rate for paper tire registration forms was only 

8 percent. In 1987, the tire registration rate for tires sold by company-controlled 

dealers was found to be greater than 86 percent. 

We have not performed additional surveys on tire registration rates since 1987. 

However, February 6, 2007 comments from RMA stated that ‘‘no more than 10 percent of tire registration cards are currently returned to manufacturers and a significant number of these cards are inaccurate, incomplete or illegible.’’ Thus, regarding 

the response rate to paper forms for new tires sold through independent dealers, 

the agency believes that tire registration rates have not changed substantially for 

the past 20 years. 

For these reasons, the agency does not agree with those that believe the current 

paper-form based tire registration program is effective. Even if electronic registration does not result in significantly more purchaser responses (for new tire sales 

through independent dealers), NHTSA believes the overall effectiveness rate of tire 

registration would improve, because voluntary electronic registration would eliminate illegibility or other ambiguity caused by hand-written information. For purchasers who do not like to fill in information by hand, electronic registration could 

also reduce the overall burden of registration. 

III. Today’s Notice of Proposed Rulemaking 

After carefully reviewing the public comments to NHTSA’s December 2006 publication of the announcement of its request to OMB to extend approval of the Part 

574 tire registration collection of information, we have concluded that Part 574 

should be amended to facilitate Internet and other electronic registration of tires, 

including voluntary registration of tires by independent tire dealers. Our proposal 

follows an approach similar to the ones suggested by RMA and NADA. 

Specifically, under our proposal: 

• Independent tire dealers could, in lieu of providing a paper registration form 

to the consumer, voluntarily register a tire by Internet or other electronic 

means, so long as such means were authorized by the tire manufacturer. These 

dealers would also have the option of providing to the consumer the mailable 

standardized paper registration form that includes the tire identification number (TIN) and the dealer’s name and address (this is the current requirement 

set forth in Part 574), or using the same standardized paper registration form, 

70 

15 H.R. Rep. No. 97–576, p. 8. 16February 1983 letter from Diane K. Steed to the Honorable Timothy E. Wirth. Letter is 

available at: http://isearch.nhtsa.gov/gm/83/1983–1.12.html. 

but voluntarily completing the form and registering the tire by sending the form 

to the tire manufacturer or its designee. 

• The standardized paper registration form would be permitted to identify a 

website authorized by the tire manufacturer at which the consumer could register the tires instead of mailing in the form. 

• We are proposing to remove the figures showing the standardized paper registration form from the CFR. Some requirements that were expressed by referring to the forms in the regulatory text would be added to the regulatory text, 

but the regulation would no longer specify as many details concerning the format of the forms. 

• We are also proposing regulatory text that would make it clear that dealers 

owned or controlled by tire manufacturers may register tires by electronic 

means, consistent with a past interpretation. The figure showing the form used 

for these tires would also be removed. 

Our proposal would not impose new obligations on tire dealers or tire manufacturers. Instead, it would accommodate and facilitate Internet and other electronic registration of tires, including voluntary registration of tires by independent dealers. 

We note that we are proposing a provision that would clarify that tire manufacturers must meet requirements concerning retention of information for registration information submitted to them by electronic or other means they authorize, in addition to that submitted to them on the standardized paper forms. 

The details of our proposal are discussed below. 

A. Tires Sold by Independent Tire Dealers—Alternative Means of Tire Registration 

As noted in our March 2007 document, we are considering revisions to update 49 

CFR part 574 to allow, to the extent consistent with the agency’s authority, for use 

of electronic and other possible means of registering new tires at the point of sale. 

The statutory requirements relevant to independent tire dealers are found at 49 

U.S.C. 30117(b)(2)(B), which reads as follows: 

The Secretary shall require each distributor and dealer whose business is not 

owned or controlled by a manufacturer of tires to give a registration form (containing the tire identification number) to the first purchaser of a tire. The Secretary shall prescribe the form, which shall be standardized for all tires and designed to allow the purchaser to complete and return it directly to the manufacturer of the tire. The manufacturer shall give sufficient copies of forms to distributors and dealers. 

Not surprisingly, given the pre-Internet date of enactment of the statute, the statutory provision appears to contemplate a mail-in paper form (‘‘the manufacturer 

shall give sufficient copies of forms to distributors and dealers’’). Also, the legislative 

history (House report) 15 refers to forms that are suitable for mailing and addressed 

to the manufacturer or its designee. 

One relevant issue is the effect of voluntary tire registration by independent tire 

dealers on their obligations under section 30117(b)(2)(B). While the statute provides 

for a program in which purchasers of tires from independent tire dealers may register their tires by returning a form to the tire manufacturer, NHTSA’s letter to 

Congressman Timothy Wirth 16 addressed the situation in which independent tire 

dealers may wish to register tires voluntarily for consumers. Invoking the principles 

of equitable interpretation, the agency concluded that voluntary registration would 

partially relieve independent dealers of their statutory obligations. Under those 

principles, a statutory requirement need not be literally applied in instances in 

which the underlying Congressional intent is otherwise satisfied. More specifically, 

the agency stated: 

Based on the principles of equitable interpretation, we believe that an independent tire dealer or distributor who (1) registers tires by computer; (2) attaches a computer-printed invoice containing all of the information necessary 

for registration to a blank standardized registration form; and (3) furnishes the 

two documents to the customer when the tires are purchased; fully satisfies the 

tire registration amendments. * * * 

While, as discussed below, we now believe that this interpretation goes to some 

extent beyond what is necessary to satisfy Congressional intent, we believe the basic 

principle is correct. In particular, if an independent tire dealer voluntarily registers 

71 

tires for the consumer, it serves no purpose to require the full procedures necessary 

to enable consumers to also register those tires. 

Several other issues are whether the statute can be interpreted to permit the use 

of electronic forms in lieu of paper forms and, assuming that the answer to that 

issue is ‘‘yes,’’ the meaning of the statutory command to ‘‘* * * give a registration 

form (containing the tire identification number) to the first purchaser * * *’’ in the 

context of electronic forms. As to the term ‘‘form,’’ it could be interpreted broadly 

enough to include electronic as well as paper forms, notwithstanding the statutory 

language and legislative history mentioned above that suggests the forms are to be 

paper ones. 

As to the term ‘‘give,’’ it could readily be interpreted in the context of the statute 

to mean physically provide either ‘‘take away’’ means of registration (i.e., mailable 

form) or means of ‘‘on-the-spot’’ registration (i.e., an in-store computer terminal accessible to purchaser). It is not apparent how the term could be further interpreted 

to mean simply inform the purchaser about the opportunity to use means not physically present in the dealer’s store (e.g., use of a computer terminal located at the 

purchaser’s home or elsewhere.) It is even less apparent how such further interpretation could be given the term ‘‘give’’ given the additional requirement that the form 

given the purchaser ‘‘* * * contain the tire identification number * * *’’ 

A possible scenario that could be viewed as meeting all of the statutory requirements would be one in which the purchaser was provided access to a computer at 

the dealership where the screen showed the form with the tire identification numbers already filled in, and the purchaser could register the tires with the manufacturer by entering his or her name and address and clicking on a button to register 

the tires. We do not know whether manufacturers and dealerships would be interested in an option along these lines, but note that we are requesting comments 

below on this type of approach. We also note that a number of approaches for electronic registration by purchasers would appear not to meet these statutory requirements, but could be viewed as supplemental means of transmitting tire registration 

to manufacturers. 

In light of the above discussion and in considering alternative means for registration of tires sold by independent dealers, we believe: (1) The regulation must include 

a basic procedure consistent with the statutory requirement that enables purchasers 

of tires from independent tire dealers to register their tires by returning a form with 

the TIN already filled in to the tire manufacturer; (2) the regulation may provide 

options under which an independent tire dealer may voluntarily register tires for 

consumers, in which case the dealer need not meet the full procedures necessary 

to enable consumers to register those tires; and (3) the regulation may accommodate 

means that tire manufacturers may provide for tire registration (e.g., Internet registration) that consumers may use instead of mailing in the form. 

Voluntary registration by independent dealers. 

As indicated above, after reviewing our 1984 interpretation to Congressman 

Wirth, we now believe that it went to some extent beyond what was necessary to 

satisfy Congressional intent. In particular, the agency believes that electronic registration of the tires by independent dealers would satisfy the statutory requirements, without the need to provide an additional blank form to the purchaser. The 

purpose of the statutory requirement is to enable the purchaser to register the tire 

purchase with the manufacturer. As such, if the dealer registers the tires electronically for the purchaser and provides a blank form to the purchaser, confusion could 

result, since the purchaser might think there was a need to submit the paper form 

to the manufacturer. 

Regarding the statement in the interpretation that the purchaser be given a computer-printed invoice with the information on the tire registration paper form, the 

agency now believes that statement also exceeds what is necessary. The tire registration information is kept by the tire manufacturer (or its designee). There is no 

need for the dealer or purchaser to retain that information, and NHTSA has no 

record retention requirement for either tire dealers or tire purchasers. Instead of duplicating the required information on the invoice given to the purchaser, the agency 

believes that a written statement on the invoice regarding the registration of the 

tires by the dealer would be sufficient to inform the consumer that the tires have 

been registered. 

We are therefore proposing that independent tire dealers have the option of voluntarily electronically registering tires with the tire manufacturer. We note, however, 

that whether this option can be used depends on the tire manufacturer’s providing 

a means to receive this information electronically, or designating an agent to do so 

for it. The agency is not aware of what specific means might be used to provide electronic registration, such as specific software that identifies tire sales and then automatically uses the Internet to transmit the information to the tire manufacturer or 

72 

17 70 FR 53569, 53572–73, September 9, 2005. 

its designee. However, the agency believes that many company-controlled tire dealers have autonomous systems in place to register the tires as part of the sale transaction. Such systems do not require additional or separate actions by sales personnel to register the tires. The agency welcomes additional details on the methods 

that are currently in place and also other methods that might be used, including 

how independent tire dealers may be able to register tires electronically. 

Our proposal also includes an option in which independent tire dealers could use 

the standardized paper registration form, but voluntarily complete the form and register the tires by sending the form to the tire manufacturer or its designee. 

One issue that arises with independent dealers being permitted to register tires 

voluntarily for consumers is whether they could charge a separate registration fee. 

We have tentatively concluded that this should not be permitted, as it could discourage registration and cause confusion. We request comments on this issue. 

Another issue that arises with electronic registration of tires is the security of the 

information being transmitted. The proposed regulatory text would require that 

electronic registration be by secure means, e.g., use of https on the web. We request 

comments on the need for such a provision, and whether it should be more specific. 

We note that in September 2005 we decided not to include an ‘‘encryption’’ requirement for electronic registration of child safety seats.17 We may or may not adopt 

a requirement concerning secure means for electronic registration of tires, but would 

like to have the benefit of public comments before reaching a decision. 

Regarding CIMS’ comment that additional burden would shift to the tire dealer 

if it decided to use electronic registration, NHTSA notes that registration by independent tire dealers would be voluntary. Nothing in this rulemaking would require 

independent tire dealers to register tires for the purchaser. 

NADA’s comments regarding an optional electronic registration program stated 

that the tire dealer should obtain permission or a release from the purchaser before 

being permitted to register the tires on behalf of the purchaser. The agency believes 

that this would create an additional collection of information or other burden that 

would not be necessary if, instead, a registration statement is provided to the purchaser indicating that the tire dealer is performing tire registration for the purchaser. We also observe that such releases are not required for tire dealers controlled by tire manufacturers, which are required to register tires for consumers. 

For the new electronic registration requirements, NHTSA also proposes to permit 

the tire manufacturer to designate a third party to collect or store the tire registration information. Such third party designation is currently allowed for the paper 

registration forms under 574.7, and NHTSA is not aware of any reason not to extend third party designation to electronic tire registrations methods. Since we do not 

have any detailed information on how designees would collect and retain tire registration information, the agency welcomes additional details that would assist the 

agency in establishing requirements. 

Alternative means of registration by tire purchasers. 

Consistent with our interpretation letter to RMA, we are including in the proposed regulatory text a provision stating that tire manufacturers may voluntarily 

provide means for tire registration via the Internet, by telephone or other electronic 

means. RMA and NADA commented that the tire registration paper form should be allowed to include instructions for purchasers about registering tires directly on the 

tire manufacturer’s website. NADA stated that the electronic registration provisions 

for child safety seats in FMVSS No. 213 are instructive about the value of permitting this. TIA stated that it agreed with the four principles for new tire registration 

requirements described by RMA (one of which is to allow website registration). 

NTRR’s comments did not specifically address putting website information on the 

paper form. 

The agency tentatively agrees that including, at the tire manufacturer’s option, 

a website address for purchasers to register tires could facilitate registration for tire 

purchasers, and also improve the quality of information received by the tire manufacturer. As RMA stated, many of the paper registration forms that are received by 

tire manufacturers are inaccurately filled out, incomplete, or illegible. By allowing 

purchasers to type in the information directly on the tire manufacturer’s website, 

the issue of illegibility should be eliminated. 

NHTSA checked several tire manufacturers’ websites, for both widely-known tire 

brands and lesser-known tire brands, and found in all but one case that the tire 

manufacturers already have website-based tire registration capability. Inclusion of 

website registration information would be performed at the option of the tire manufacturer. We are proposing simple text to keep information on the form to a minVerDate Nov 24 2008 08:06 Jun 22, 2012 Jkt 074617 PO 00000 Frm 00076 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\74617.TXT SCOM1 PsN: JACKIE
73 

imum: ‘‘Instead of mailing this form, you can register online at [insert tire manufacturer’s website address]’’. This proposed language deviates slightly from the FMVSS 

No. 213 text that includes references to registering online on both sides of the form, 

although the text on the mailing label side of that form is on a part of the form 

that is removed prior to mailing. However, the tire registration form is not of that 

design, and much of the form space is needed for recording the tire identification 

numbers. We welcome comments on the proposed text and location of the optional 

website registration information. 

We request comments on whether information about other possible means of supplemental registration should be permitted to be placed on the tire registration 

paper form. We note, as indicated above, that the available space on the form is limited. 

Other possible options for tire registration. 

We request comments on whether the regulation should specify additional options 

for registering tires sold by independent tire dealers that would be consistent with 

our statutory authority. We intend for the scope of this proposal to be broad and, 

depending on the comments, may adopt additional options in the final rule. 

We note that, as indicated above, it is our goal to accommodate and facilitate 

Internet and other electronic registration of tires, including voluntary registration 

of tires by independent dealers. We also note that since additional options would 

also be voluntary, there is no reason to specify ones that would be unlikely to be 

used by independent tire dealers, tire manufacturers, and/or consumers. 

We seek comment on whether there should be some type of option in which independent tire dealers might be able to use electronic forms in lieu of paper forms to 

enable consumers to register their tires. Such an approach might, for example, involve independent tire dealers setting up computer terminals at their dealerships 

in which tire purchasers would see a form on the computer screen with the TIN and 

possibly other information already filled in, which tire purchasers could use to register their tires. We note that if such an approach involved the consumer’s being 

given the electronic form with the TIN filled in, the approach could, consistent with 

the requirements of 49 U.S.C. 30117(b)(2)(B), be an option that independent tire 

dealers could use in lieu of paper forms. We also note that if such an option were 

permitted in lieu of paper forms instead of as a supplement, the electronic form 

would need to be standardized. 

We specifically request that any commenters recommending additional options for 

tire registration, beyond those in the proposed regulatory text, provide specific recommended regulatory text for those additional options. 

Registration forms. 

As discussed above, for tires sold by independent tire dealers, NHTSA is required 

by statute to prescribe a standardized tire registration form for all tires. Specifically, 

49 U.S.C. 30117(b)(2)(B) provides ‘‘(t)he Secretary shall prescribe the form, which 

shall be standardized for all tires * * *’’ 

The statute provides that tire manufacturers must give sufficient copies of the 

registration forms to distributors and dealers. Also, Part 574.8 permits distributors 

and dealers to use registration forms obtained from other sources. 

Pursuant to the requirement to prescribe a standardized tire registration form, 

NHTSA has adopted requirements through rulemaking and placed them in Part 

574. The details of some of the requirements, including size and data elements, are 

set in the regulatory text. The details of certain other requirements are not set out 

in the regulatory text. Instead, the regulatory text requires that forms conform in 

content and format to the forms depicted in the figures included in Part 574. See 

574.7(a)(2). 

To promote flexibility, we are proposing to remove the figures showing the forms 

in Part 574. To ensure that the forms remain standardized, we are proposing to add 

some requirements to the regulatory text that are currently expressed by referring 

to the figures, but with fewer details concerning format. We are also proposing to 

update the size standards to reflect the current U.S. Postal Service’s ‘‘Domestic Mail 

Manual’’ (Updated 12–6–07) at Section 6.3 ‘‘Cards Claimed at Card Rates’’ that 

specifies physical standards that postcards must meet in order to be eligible for 

mailing at card rates. 

Under our proposal, on the address side of the form, the following would continue 

to be required to be provided: The name and address of the manufacturer or its designee, and, in the upper right hand corner, the statement: ‘‘Affix a postcard stamp.’’ 

The other side of the form would continue to include the tire manufacturer’s name 

(unless it already appears on the address side), and the statement: ‘‘IMPORTANT, 

In case of a recall, we can reach you only if we have your name and address.’’ There 

would also continue to be a statement indicating that sending in the card will add 

74 

18Docket NHTSA–2005–22324. 

a person to the manufacturer’s recall list. However, the regulation would no longer 

specify that the statement indicate that a person ‘‘must’’ send in the card to be on 

the recall list, since manufacturers may provide alternative means of registering 

tires. 

Under our proposal, if a tire manufacturer provides a website where its tires can 

be registered, it may (but is not required to) include the following sentences: ‘‘Instead of mailing this form, you can register online at [insert tire manufacturer’s registration website address]’’. 

The form would also include the admonition: ‘‘Do it today.’’ 

The form would also continue to include space for recording the tire identification 

numbers for six tires. There would also continue to be shading to distinguish between areas of the form to be filled in by sellers and customers. 

As indicated above, under our proposal, the regulation would no longer specify as 

many details concerning the format of the form. 

We request comments on the removal of these figures and on what requirements 

expressed by reference to the figures should be added to the regulatory text. 

Registration rates. 

We request comments on the current registration rates of tires sold by independent tire dealers. Commenters are asked to provide information concerning the 

total number of such tires that are sold and the number of those tires that are currently being registered by each alternative means, e.g., the number of tires registered by returning the paper form, the number registered using the tire manufacturer’s website, etc. The agency requests that commenters provide the specific basis 

for any numbers or rates that are provided. We also request comments on how and 

why these registration rates may change if the agency adopts this proposed rule. 

Other issues. 

We request comments on other issues related to our proposal. As indicated above, 

we intend the scope of this proposal to be broad. 

We specifically invite comments related to NHTSA’s provisions for electronic registration of child safety seats in S5.8.2 of FMVSS No. 213. See final rule published 

in the Federal Register (70 FR 53569) on September 9, 2005.18 The agency considered a number of issues related to electronic registration and electronic registration 

forms in that rulemaking. To what extent should the requirements we adopt related 

to electronic registration of tires be similar/different from the ones we adopted for 

child safety seats, and why? 

B. Tires Sold by Dealers Controlled by Tire Manufacturers—Electronic Tire Registration 

The tire registration form in Figure 4 of Part 574 is the form that is to be filled 

out by company-controlled tire dealers and returned to the manufacturer upon the 

sale of new tires. We note that we have no data on the continued use of this form, 

or what percentage of company-controlled dealers continue to use this form versus 

submit the registration information to the tire manufacturer using electronic means. 

As noted above, the agency has previously provided an interpretation letter to the 

RMA (July 18, 2003 agency letter) stating that while company-controlled dealers are 

permitted to register tires electronically: 

This interpretation does not relieve non-independent distributors and dealers 

from the requirements of section 574.8(b) that they themselves record the purchaser’s name and address, the tire identification number(s) of the tire(s) sold, 

and a suitable identification of themselves as the selling dealer on a tire registration form and return the completed forms to the tire manufacturers or their 

designees. While we would interpret Part 574 to permit non-independent distributors and dealers to accomplish these tasks by electronic means, they may 

not transfer this responsibility to consumers. 

In this NPRM, NHTSA is proposing to include a provision expressly reflecting this 

existing option in the Part 574 requirements. Specifically, NHTSA proposes that 

electronic means be permitted as an alternative to the paper registration forms 

specified in S574.7(b). As earlier stated, we have little information on how these systems are configured, so we are proposing simple language and we welcome comments on alternative language. 

As to Part 574’s requirements for these forms, requirements concerning data elements are set forth in the regulatory text, and the regulatory text also specifies that 

the forms must be similar in format and size to that in Figure 4. We note that the 

statutory requirement that NHTSA prescribe a standardized tire registration form 

does not apply to ones for tires sold by dealers controlled by tire manufacturers. 

75 

To promote flexibility, we are proposing to remove Figure 4 showing the registration forms to be used. We are proposing to add several requirements currently expressed by reference to the figure, and otherwise leave all other details to the tire 

manufacturer. Under our proposal, the form would continue to be required to include: 

• A statement indicating where the form should be returned, including the name 

and mailing address of the manufacturer or its designee. 

• The tire manufacturers’ logo or other identification, if the manufacturer is not 

identified as part of the statement indicating where the form should be returned. 

• The statement: ‘‘IMPORTANT; FEDERAL LAW REQUIRES TIRE IDENTIFICATION NUMBERS MUST BE REGISTERED.’’ 

We request comments on the removal of this figure and on what requirements expressed by reference to the figure should be added to the regulatory text. 

VI. Rulemaking Analyses and Notices 

A. Executive Order 12866 and DOT Regulatory Policies and Procedures 

NHTSA has considered the impact of this rulemaking action under Executive 

Order 12866 and the Department of Transportation’s regulatory policies and procedures. The Office of Management and Budget reviewed this rulemaking document 

under E.O. 12866, ‘‘Regulatory Planning and Review.’’ This rulemaking action has 

been determined to be significant under the DOT Policies and Procedures because 

of public interest. 

In this document, NHTSA is proposing to amend Part 574 by permitting collection 

of the names and addresses of first purchasers of new tires by Internet and other 

computerized means. Nothing in the proposed rule, if made final, would require any 

tire dealer to use these new procedures. All collection of the names and addresses 

of first purchasers of new tires may continue to be collected as at present. However, 

we believe that permitting electronic means of tire registration will increase the rate 

of registrations, which will in turn increase the effectiveness of future tire recalls 

and thus improve motor vehicle safety. 

There would be some cost impacts, in terms of time and/or money, associated with 

increased registrations of tires by electronic means. Since the options we are proposing are voluntary, we do not know to what extent they will be utilized by independent tire dealers and tire manufacturers. However, we are providing analysis to 

show the potential cost impacts. 

Increased registrations by consumers using the Internet. 

Under the proposed rule, tire manufacturers can provide, on a voluntary basis, 

Internet registration information on the tire registration form that is given to purchasers by independent tire dealers. Consumers could then register their tires online instead of filling out the paper form and mailing it to the tire manufacturer 

or its designee. The cost of printing this information on the form is negligible, and 

therefore there would be no cost increase to tire manufacturers that are responsible 

for printing the forms and providing them to independent tire dealers. However, the 

tire manufacturers offering the option of Internet-based tire registration on their 

websites would incur some cost to include a registration site. The agency has found 

that most tire manufacturers already have tire registration sites included on their 

websites. This method of registration would save consumers the cost of a postcard 

postage stamp, and it would save costs for tire manufacturers because they (or their 

designee) would not have to transcribe the information on the paper forms into a 

tire registration database. 

In the table which follows, we are providing estimates of the monetized costs associated with various rates of increased tire registration using the Internet. Under 

this scenario, paper forms would continue to be provided to purchasers, but the additional registrations would occur via the Internet rather than by the forms being 

mailed in. Therefore, although tire registrations would increase, mailing and other 

paperwork costs would remain the same. We are assuming, for purposes of these 

estimates, that the costs associated with the current level of tire registration would 

not change. The additional costs associated with this scenario would be the time 

consumers spent registering tires via the Internet that they otherwise would not 

register. We also assume that because the tire registration information is collected 

using purely electronic means, there would be no additional labor burden for the tire 

manufacturer for recordkeeping associated with these additional registrations. To 

76 

19The median hourly rate among all occupations, May 2006, according to the Bureau of Labor 

Statistics; see http://www.bls.gov/oes/current/oeslnat.htm#b00-0000. 

monetize the costs of consumers filling out paper forms or using the Internet, a 

labor rate of $14.61 per hour is used.19

Consumer Cost Projections Associated with Increased Tire Registrations with Consumers 

Registering Tires Using the Internet 

Current tire 

registrations 

Future tire registrations using Internet-based 

registration by consumers 

10 percent 

increase 

15 percent 

increase 

20 percent 

increase 

Consumer Hour Burden Estimates: 

Number of Consumers 10,000,000 11,000,000 11,500,000 12,000,000 

Total Tire Registrations 54,000,000 59,400,000 62,100,000 64,800,000 

Tire Registration Hours 225,000 247,500 258,750 270,000 

Monetized Costs (Consumer time 

valued @ $14.61/Hour $3,287,250 $3,615,975 $3,780,338 $3,944,700 

Voluntary registration by independent tire dealers. 

Under the proposed rule, independent tire dealers could voluntarily register tires 

for consumers, if this was authorized by the tire manufacturer. Dealers that did this 

would incur additional costs to upgrade their computer systems, with both initial 

startup costs and then costs for periodic maintenance of the systems. We assume 

that many independent tire dealers, especially the larger ones, already collect tire 

purchaser information as part of the sales process. For these manufacturers, we believe it may be possible to upgrade the sales system to include automatic electronic 

registration on behalf of the purchaser. We do not know the details of how this process may work, which would be up to the tire manufacturer and the independent tire 

dealers. The process might also include companies designated by the tire manufacturers to provide services in this area. We also do not know what actual startup 

and annual costs might be to independent tire dealers. However, once these systems 

are installed, tire registration rates would be 100 percent for tires sold through 

these dealers. This compares with overall current registration rates of 10 percent 

for tires sold through independent dealers. 

The costs associated with voluntary tire registration by independent tire dealers 

would be offset, or partially offset, by the fact that these dealers would no longer 

need to provide paper forms to consumers, or fill out these forms with tire identification numbers. 

The agency has estimated that there are a total of 59,000 tire dealers in the U.S., 

including 13,000 that are company-controlled dealers. The remaining 46,000 tire 

dealers include 20,000 car and truck dealers and 26,000 independent tire dealers. 

There are two unknowns for estimating the cost impacts on independent tire dealers—how many independent dealers would voluntarily upgrade computer systems to 

register tires, and what the cost of these computer systems would be in terms of 

initial cost and annual maintenance. Each year, a number of independent dealers 

will install or upgrade computer systems, and they continue to maintain their systems in subsequent years. We will assume that an initial installation cost of providing an upgraded system is $750 and that annual maintenance thereafter is $200. 

We do not know whether each tire manufacturer would work directly with each 

independent tire dealer, or whether third party designees would provide an interface 

service for all tire manufacturers and independent tire dealers. We note that third 

party designees could provide efficiencies of having a single contact company that 

could be the interface for an independent tire dealer and multiple tire manufacturers. 

We are providing cost estimates assuming that 30 percent of independent tire 

dealers would participate in such a voluntary program, with 10 percent beginning 

the first year (4,600 dealers), an additional 10 percent beginning the second year, 

and the third 10 percent beginning the third year. These costs can be summarized 

as follows: 

77 

Year 

Startup costs 

for computer 

systems 

Annual 

maintenance 

costs 

Total cost 

2009 $3.45 M 0 $3.45 M 

2010 3.45 M $0.92 M 4.37 M 

2011 3.45 M 1.84 M 5.29 M 

2012 and Beyond 0 2.76 M 2.76 M 

Since the proposed rule, if made final, would establish collection of information 

procedures that would be used entirely at the discretion of the tire dealer, and the 

estimated paperwork burdens of tire dealers electing to use these procedures are not 

expected to exceed $100 million annually, the agency does not consider this rulemaking to be ‘‘economically significant,’’ as defined by E.O. 12866. Thus, it has not 

prepared a full regulatory evaluation. 

B. Regulatory Flexibility Act 

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601, et seq., as amended by 

the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or 

final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). The Small Business Administration’s regulations at 13 CFR part 121 define a small business, in 

part, as a business entity ‘‘which operates primarily within the United States.’’ (13 

CFR § 121.105(a)). No regulatory flexibility analysis is required if the head of an 

agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the Regulatory Flexibility 

Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. 

NHTSA has considered the effects of this rulemaking action under the Regulatory 

Flexibility Act. As explained above, NHTSA is proposing to amend Part 574 by permitting collection of the names and addresses of first purchasers of new tires by 

Internet and other computerized means. Electronic collection would be permitted in 

place of paper forms. This regulatory flexibility analysis does not apply to manufacturer-owned tire dealers, because they are not considered small businesses under 

SBA’s affiliation rule at 5 CFR section 121.103(a)(1) which states in part: ‘‘Concerns 

and entities are affiliates of each other when one controls or has the power to control the other * * *’’ The tire manufacturer either ‘‘controls or has the power to control’’ dealerships that it owns. 

Under SBA’s size standard regulations (at 5 CFR Part 121), ‘‘tire dealers’’ are 

classified under North American Industry Classification System (NAICS) Code 

441320 with a size standard of average yearly sales of $6 million. ‘‘New car dealers’’ 

are classified under NAICS Code 441110 with a size standard of average yearly 

sales of $24.5 million. ‘‘Used car dealers’’ are classified under NAICS Code 441120 

with a size standard of average yearly sales of $19.5 million. 

In its February 27, 2006 comments to NHTSA, NADA stated that of its ‘‘20,000 

franchised automobile and truck dealers who sell new and used motor vehicles,’’ a 

‘‘significant number are small businesses as defined by the SBA.’’ NADA did not 

specify the number that would be considered ‘‘small businesses.’’ In the Federal Register of March 21, 2007 (54 FR 133440), we estimated the number of independent 

tire dealers to be 26,000. Assuming all NADA members are small businesses, the 

total number of independent tire dealers that are small businesses would be 46,000. 

I hereby certify that if made final, this proposed rule would not have a significant 

economic impact on a substantial number of small entities. The factual basis for the 

certification is that if made final, this proposed rule would not substantively change 

existing 49 CFR Part 574 requirements for small businesses that are independent 

tire dealers. The electronic collection of information procedures would be voluntary 

for independent tire dealers. The statement on the paper form giving website information about online registration of new tires (and the paper form itself) would be 

provided by the tire manufacturer. If it chooses not to adopt electronic tire registration procedures, the responsibilities of the independent dealer would remain the 

same, to pass out the paper forms to first purchasers of new tires. 

C. National Environmental Policy Act 

NHTSA has analyzed this rulemaking action for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this acVerDate Nov 24 2008 08:06 Jun 22, 2012 Jkt 074617 PO 00000 Frm 00081 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\74617.TXT SCOM1 PsN: JACKIE
78 

tion would not have any significant impact on the quality of the human environment. 

D. Executive Order 13132 (Federalism) 

NHTSA has examined today’s proposal pursuant to Executive Order 13132 (64 FR 

43255, August 10, 1999) and concluded that no additional consultation with States, 

local governments or their representatives is mandated beyond the rulemaking process. The agency has concluded that the proposal does not have federalism implications because, if made final, the rule would not have ‘‘substantial direct effects on 

the States, on the relationship between the national government and the States, or 

on the distribution of power and responsibilities among the various levels of government.’’ 

If the proposed rule is made final, a State requirement would be preempted if it 

conflicted with the rule. 

E. Civil Justice Reform 

With respect to the review of the promulgation of a new regulation, section 3(b) 

of Executive Order 12988, ‘‘Civil Justice Reform’’ (61 FR 4729, February 7, 1996) 

requires that Executive agencies make every reasonable effort to ensure that the 

regulation: (1) Clearly specifies the preemptive effect; (2) clearly specifies the effect 

on existing Federal law or regulation; (3) provides a clear legal standard for affected 

conduct, while promoting simplification and burden reduction; (4) clearly specifies 

the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses 

other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. This document is consistent with that requirement. 

Pursuant to this Order, NHTSA notes as follows. The preemptive effect of this 

proposed rule is discussed above. NHTSA notes further that there is no requirement 

that individuals submit a petition for reconsideration or pursue other administrative 

proceeding before they may file suit in court. 

F. Paperwork Reduction Act 

Under the Paperwork Reduction Act of 1995, a person is not required to respond 

to a collection of information by a Federal agency unless the collection displays a 

valid Office of Management and Budget (OMB) control number. The proposed 

changes to the tire registration and recordkeeping rule, if made final, would be ‘‘collections of information,’’ as that term is defined by OMB at 5 CFR 1320. Before an 

agency submits a proposed collection of information to OMB for approval, it must 

publish a document in the Federal Register providing a 60-day comment period and 

otherwise consult with members of the public and affected agencies concerning each 

proposed collection of information. The OMB has promulgated regulations describing 

what must be included in such a document. Under OMB’s regulations (at 5 CFR 

1320.8(d)), an agency must ask for public comment on the following: 

(i) Whether the proposed collection of information is necessary for the proper 

performance of the functions of the agency, including whether the information 

will have practical utility; 

(ii) The accuracy of the agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions 

used; 

(iii) How to enhance the quality, utility, and clarity of the information to be collected; and 

(iv) How to minimize the burden of the collection of information on those who 

are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information 

technology, e.g., permitting electronic submission of responses. 

In compliance with the requirements of 5 CFR part 1320, NHTSA requests comment on the collection of information that would be revised if this NPRM were 

made final. 

Title: 49 CFR part 574, Tire Identification and Recordkeeping. 

OMB Control Number: 2127–0050. 

Requested Expiration Date of Approval: Three years from date of last approval. 

Type of Request: Extension of a currently approved collection, with changes. 

Summary of the Collection of Information: 49 U.S.C. 30117(b) requires each tire 

manufacturer to collect and maintain records of the first purchasers of new tires. 

To carry out this mandate, 49 CFR part 574 requires tire dealers and distributors 

owned or controlled by a tire manufacturer to record the names and addresses of 

retail purchasers of new tires and the identification number(s) of the tires sold. A 

79 

specific form is provided to tire dealers and distributors by tire manufacturers for 

recording this information. The completed forms are returned to the tire manufacturers where they are retained for not less than 5 years. Part 574 requires independent tire dealers and distributors to provide a registration form to consumers 

with the tire identification number already recorded and information identifying the 

dealer/distributor. The consumer can then record his/her name and address and return the form to the tire manufacturer. These forms are also provided to tire dealers 

and distributors by tire manufacturers. Additionally, motor vehicle manufacturers 

are required to record the names and addresses of the first purchasers (for purposes 

other than resale), together with the identification numbers of the tires on the new 

vehicles, and retain this information for not less than 5 years. 

Description of the Need for the Information and the Proposed Use of the Information: The information is used by a tire manufacturer after it or the agency determines that some of its tires either fail to comply with an applicable safety standard 

or contain a safety related defect. With the information, the tire manufacturer can 

notify the first purchaser of the tires and provide them with any necessary information or instructions or remedy. 

Without this information, efforts to identify the first purchaser of tires that have 

been determined to be defective or nonconforming pursuant to Sections 30118 and 

30119 of Title 49 U.S.C. would be impeded. Further, the ability of the purchasers 

to take appropriate action in the interest of motor vehicle safety may be compromised. 

Description of the Likely Respondents (Including Estimated Number and Proposed 

Frequency of Response to the Collection of Information): 

March 21, 2007 Federal Register Notice—In the 30-day notice announcing 

NHTSA’s request for an extension to collect the tire registration and recordkeeping 

information had been forwarded to OMB, we estimated that the collection of information affects 10 million respondents annually. This group consists of approximately 20 tire manufacturers, 59,000 new tire dealers and distributors, and 10 million consumers who choose to register their tire purchases with tire manufacturers. 

A response is required by motor vehicle manufacturers upon each sale of a new vehicle and by non-independent tire dealers with each sale of a new tire. A consumer 

may elect to respond when purchasing a new tire from an independent dealer. 

Today’s Estimate Resulting From the Proposed Collection of Information Including 

Electronic Reporting—If made final, today’s NPRM would affect the tire registration 

and recordkeeping collection of information as follows: The publication ‘‘Modern Tire 

Dealer’’ reports that the tire industry’s annual unit sales of new tires in the United 

States for the past 3 years were as follows: 2004—319 million; 2005—326 million; 

2006—313 million. Thus, over the past 3 years, the average sales of tires per year 

in the U.S. were roughly 320 million. 

Estimate of the Total Annual Reporting and Recordkeeping Burden Resulting from 

the Collection of Information: 

March 21, 2007 Federal Register Notice—In the March 21, 2007 notice, we provided the following estimated burden: 

New tire dealers and distributors ........................................................................... 59,000. 

Consumers ................................................................................................................ 10,000,000. 

Total tire registrations (manually) ......................................................................... 54,000,000. 

Total tire registration hours (manually) ................................................................ 225,000 hours. 

Recordkeeping hours (manually) ............................................................................. 25,000 hours. 

Total annual tire registration and recordkeeping hours ....................................... 250,000 hours. 

We note that with today’s proposed rule, tire registration by purchasers would be 

facilitated by accommodating electronic means. We believe that if electronic registration were accommodated, the response rate for purchasers may increase. Moreover, some independent tire dealers may voluntarily register tires for consumers, 

thereby resulting in a higher registration rate. 

Given that the various options we are proposing would be voluntary, we do not 

know to what extent they would be utilized by independent tire dealers, tire manufacturers and consumers. Therefore, based on the information that is available, 

these are our estimates of burden. 

The same information (name and address of the purchaser) would be collected regardless of the format, paper form, or typing in information on a company website. 

Because some people type faster and some people write faster, NHTSA believes that 

the amount of time it will take to provide information about the name and address 

of the purchaser would be very roughly the same, regardless of the format. To the 

extent more consumers registered their tires, actual burdens realized could thus increase concomitantly with the higher registration rates. On the other hand, it may 

80 

be possible for tire manufacturers and independent tire dealers to develop electronic 

systems, tied in with the systems used for monitoring inventory and recording sales 

information, that could automatically register the tires with the tire manufacturer 

at little additional cost. 

NHTSA believes that virtually all recordkeeping by tire manufacturers is already 

done electronically. NHTSA estimates that it takes roughly 25,000 hours to transfer 

handwritten data to an electronic format for storage. Because, with website-based 

information, there would be no change in format (i.e., going from electronic reporting to electronic storage), NHTSA believes there would be virtually no burden hours 

imposed in transferring information provided on a tire manufacturer’s website to a 

recordkeeping site. For these reasons, NHTSA believes the recordkeeping burden 

hours would remain at 25,000 hours. 

NHTSA solicits comments on the proposed changes in the collection of information 

associated with part 574 and on NHTSA’s analysis of how the changes will affect 

the number of burden hours affecting the public. Comments must refer to the docket 

and notice numbers cited at the beginning of this NPRM and be submitted to: Docket Operations, M–30, U.S. Department of Transportation, West Building, Ground 

Floor, Rm. W12–140, 1200 New Jersey Avenue, SE., Washington, DC 20590. 

G. National Technology Transfer and Advancement Act 

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 

(NTTAA), Public Law 104–113, section 12(d) (15 U.S.C. 272) directs NHTSA to use 

voluntary consensus standards in its regulatory activities unless doing so would be 

inconsistent with applicable law or otherwise impractical. Voluntary consensus 

standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary 

consensus standards bodies, such as the Society of Automotive Engineers (SAE). The 

NTTAA directs the agency to provide Congress, through the OMB, explanations 

when we decide not to use available and applicable voluntary consensus standards. 

After carefully reviewing the available information, NHTSA has determined that 

there are no voluntary consensus standards relevant to this rulemaking, as the information to be collected and sent to tire manufacturers is needed only in the event 

of a tire recall. Accordingly, this proposed rule is in compliance with Section 12(d) 

of NTTAA. 

H. Unfunded Mandates Reform Act 

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to prepare a written assessment of the costs, benefits, and other effects 

of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private 

sector, of more than $100 million in any 1 year (adjusted for inflation with base year 

of 1995). Before promulgating a rule for which a written statement is needed, section 205 of the UMRA generally requires NHTSA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The 

provisions of section 205 do not apply when they are inconsistent with applicable 

law. Moreover, section 205 allows NHTSA to adopt an alternative other than the 

least costly, most cost effective or least burdensome alternative if the agency publishes with the final rule an explanation why that alternative was not adopted. 

This proposed rule would not result in the expenditure by State, local, or tribal 

governments, in the aggregate, or by the private sector of more than $100 million 

annually. Accordingly, the agency has not prepared an Unfunded Mandates assessment. 

I. Plain Language 

Executive Order 12866 requires each agency to write all rules in plain language. 

Application of the principles of plain language includes consideration of the following questions: 

—Have we organized the material to suit the public’s needs? 

—Are the requirements in the rule clearly stated? 

—Does the rule contain technical language or jargon that is not clear? 

—Would a different format (grouping and order of sections, use of headings, 

paragraphing) make the rule easier to understand? 

—Would more (but shorter) sections be better? 

—Could we improve clarity by adding tables, lists, or diagrams? 

—What else could we do to make this rulemaking easier to understand? 

81 

20See 49 CFR § 553.21. 21Optical character recognition (OCR) is the process of converting an image of text, such as 

a scanned paper document or electronic fax file, into computer-editable text. 

If you have any responses to these questions, please include them in your comments on this NPRM. 

J. Regulation Identifier Number (RIN) 

The Department of Transportation assigns a regulation identifier number (RIN) 

to each regulatory action listed in the Unified Agenda of Federal Regulations. The 

Regulatory Information Service Center publishes the Unified Agenda in April and 

October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda. 

K. Privacy Act 

Anyone is able to search the electronic form of all comments received into any of 

our dockets by the name of the individual submitting the comment (or signing the 

comment, if submitted on behalf of an association, business, labor union, etc.). You 

may review DOT’s complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477 at 19478) or you may visit http:// 

docketsinfo.dot.gov/. 

V. Public Participation 

How Do I Prepare and Submit Comments? 

Your comments must be written and in English. To ensure that your comments 

are correctly filed in the Docket, please include the docket number of this document 

in your comments. Your comments must not be more than 15 pages long.20 We established this limit to encourage you to write your primary comments in a concise 

fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments. 

Please submit your comments by any of the following methods: 

• Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments. 

• Mail: Docket Management Facility, M–30, U.S. Department of Transportation, 

West Building, Ground Floor, Rm. W12–140, 1200 New Jersey Avenue, SE., 

Washington, DC 20590. 

• Hand Delivery or Courier: West Building Ground Floor, Room W12–140, 1200 

New Jersey Avenue, SE., between 9 a.m. and 5 p.m. Eastern Time, Monday 

through Friday, except Federal holidays. 

• Fax: (202) 493–2251. 

If you are submitting comments electronically as a PDF (Adobe) file, we ask that 

the documents submitted be scanned using Optical Character Recognition (OCR) 

process, thus allowing the agency to search and copy certain portions of your submissions.21

Please note that pursuant to the Data Quality Act, in order for substantive data 

to be relied upon and used by the agency, it must meet the information quality 

standards set forth in the OMB and DOT Data Quality Act guidelines. Accordingly, 

we encourage you to consult the guidelines in preparing your comments. OMB’s 

guidelines may be accessed at http://www.whitehouse.gov/omb/fedreg/reproducible.html. DOT’s guidelines may be accessed at http://dmses.dot.gov/submit/ 

DataQualityGuidelines.pdf. 

How Can I Be Sure That My Comments Were Received? 

If you submit your comments by mail and wish Docket Management to notify you 

upon its receipt of your comments, enclose a self-addressed, stamped postcard in the 

envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail. 

How Do I Submit Confidential Business Information? 

If you wish to submit any information under a claim of confidentiality, you should 

submit three copies of your complete submission, including the information you 

claim to be confidential business information, to the Chief Counsel, NHTSA, at the 

address given above under FOR FURTHER INFORMATION CONTACT. When you 

send a comment containing information claimed to be confidential business informaVerDate Nov 24 2008 08:06 Jun 22, 2012 Jkt 074617 PO 00000 Frm 00085 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\74617.TXT SCOM1 PsN: JACKIE
82 

22See 49 CFR 512. 

tion, you should include a cover letter setting forth the information specified in our 

confidential business information regulation.22

In addition, you should submit a copy, from which you have deleted the claimed 

confidential business information, to the Docket by one of the methods set forth 

above. 

Will the Agency Consider Late Comments? 

We will consider all comments received before the close of business on the comment closing date indicated above under DATES. To the extent possible, we will 

also consider comments received after that date. Therefore, if interested persons believe that any new information the agency places in the docket affects their comments, they may submit comments after the closing date concerning how the agency 

should consider that information for the final rule. 

If a comment is received too late for us to consider in developing a final rule (assuming that one is issued), we will consider that comment as an informal suggestion 

for future rulemaking action. 

How Can I Read the Comments Submitted By Other People? 

You may read the materials placed in the docket for this document (e.g., the comments submitted in response to this document by other interested persons) at any 

time by going to http://www.regulations.gov. Follow the online instructions for accessing the dockets. You may also read the materials at the Docket Management 

Facility by going to the street address given above under ADDRESSES. The Docket 

Management Facility is open between 9 a.m. and 5 p.m. Eastern Time, Monday 

through Friday, except Federal holidays. 

List of Subjects in 49 CFR Part 574 

Labeling, Motor vehicle safety, Reporting and recordkeeping requirements, and 

Tires. 

In consideration of the foregoing, NHTSA proposes to amend 49 CFR part 574 as 

follows: 

PART 574—TIRE IDENTIFICATION AND RECORDKEEPING 

1. The authority for part 574 continues to read as follows: 

Authority: 49 U.S.C. 322, 30111, 30115, 30117 and 30166; delegation of authority 

at 49 CFR 1.50. 

2. Section 574.7 is amended by revising paragraphs (a)(2) and (a)(3) and adding 

new paragraphs (e) and (f) to read as follows: 

§ 574.7 Information requirements—tire manufacturers, new tire brand name owners. 

(a)(1) * * * 

(2) Each tire registration form provided to independent distributors and dealers 

pursuant to paragraph (a)(1) of this section shall contain space for recording the information specified in paragraphs (a)(4)(i) through (a)(4)(iii) of this section. Each 

form shall: 

(i) Have the following physical characteristics: 

(A) Be rectangular; 

(B) Be not less than 31⁄2 inches high, 5 inches long, and 0.007 inches thick; 

(C) Be not more than 41⁄4 inches high, or more than 6 inches long, or greater than 

0.016 inch thick. 

(ii) On the address side of the form, be addressed with the name and address of 

the manufacturer or its designee, and include, in the upper right hand corner, the 

statement ‘‘Affix a postcard stamp.’’ 

(iii) On the other side of the form: 

(A) Include the tire manufacturer’s name, unless it appears on the address side 

of the form; 

(B) Include a statement explaining the purpose of the form and how a consumer 

may register tires. The statement shall: 

(1) Include the heading ‘‘IMPORTANT’’. 

(2) Include the sentence: ‘‘In case of a recall, we can reach you only if we have 

your name and address.’’ 

(3) Indicate that sending in the card will add a person to the manufacturer’s recall 

list. 

(4) If a tire manufacturer provides a website where its tires can be registered, it 

may (but is not required to) include the following sentence: ‘‘Instead of mailing this 

83 

form, you can register online at [insert tire manufacturer’s registration website address].’’ 

(5) Include the sentence: ‘‘Do it today.’’ 

(C) Include space for recording tire identification numbers for six tires. 

(D) Use shading to distinguish between areas of the form to be filled in by sellers 

and customers. 

(1) Include the statement: ‘‘Shaded areas must be filled in by seller.’’ 

(2) The areas of the form for recording tire identification numbers and information 

about the seller of the tires must be shaded. 

(3) The area of the form for recording the customer name and address must not 

be shaded. 

(D) Include, in the top right corner, the phrase ‘‘OMB Control No. 2127–0050’’. 

(3) Each tire registration form provided to distributors and dealers that are not 

independent distributors or dealers pursuant to paragraph (a)(1) of this section 

must contain space for recording the information specified in paragraphs (a)(4)(i) 

through (a)(4)(iii) of this section. Each form must include: 

(A) A statement indicating where the form should be returned, including the 

name and mailing address of the manufacturer or its designee. 

(B) The tire manufacturers’ logo or other identification, if the manufacturer is not 

identified as part of the statement indicating where the form should be returned. 

(C) The statement: ‘‘IMPORTANT: FEDERAL LAW REQUIRES TIRE IDENTIFICATION NUMBERS MUST BE REGISTERED’’. 

(D) In the top right corner, the phrase ‘‘OMB Control No. 2127–0050’’. 

* * * * * 

(e) Tire manufacturers may voluntarily provide means for tire registration via the 

Internet, by telephone or other electronic means. 

(f) Each tire manufacturer shall meet the requirements of paragraphs (b), (c) and 

(d) of this section with respect to tire registration information submitted to it or its 

designee by any means authorized by the manufacturer in addition to the use of 

registration forms. 

3. Section 574.8 is revised to read as follows: 

§ 574.8 Information requirements—tire distributors and dealers. 

(a) Independent distributors and dealers. 

(1) Each independent distributor and each independent dealer selling or leasing 

new tires to tire purchasers or lessors (hereinafter referred to in this section as ‘‘tire 

purchasers’’) shall comply with paragraph (a)(1)(i), (a)(1)(ii) or (a)(1)(iii) of this section: 

(i) At the time of sale or lease of the tire, provide each tire purchaser with a paper 

tire registration form on which the distributor or dealer has recorded the following 

information: 

(A) The entire tire identification number of the tire(s) sold or leased to the tire 

purchaser, and 

(B) The distributor’s or dealer’s name and street address. In lieu of the street address, and if one is available, the distributor or dealer’s e-mail address or website 

may be recorded. Other means of identifying the distributor or dealer known to the 

manufacturer may also be used. 

(ii) Record the following information on a paper tire registration form and return 

it to the tire manufacturer, or its designee, on behalf of the tire purchaser, at no 

charge to the tire purchaser and within 30 days of the date of sale or lease: 

(A) The purchaser’s name and address, 

(B) The entire tire identification number of the tire(s) sold or leased to the tire 

purchaser, and 

(C) The distributor’s or dealer’s name and street address. In lieu of the street address, and if one is available, the distributor or dealer’s e-mail address or website 

may be recorded. Other means of identifying the distributor or dealer known to the 

manufacturer may also be used. 

(iii) If authorized by the tire manufacturer, electronically transmit the following 

information on the tire registration form to the tire manufacturer, or its designee, 

using secure means (e.g., https on the web), at no charge to the tire purchaser and 

within 30 days of the date of sale or lease: 

(A) The purchaser’s name and address, 

(B) The entire tire identification number of the tire(s) sold or leased to the tire 

purchaser, and 

(C) The distributor’s or dealer’s name and street address. In lieu of the street address, and if one is available, the distributor or dealer’s e-mail address or website 

may be recorded. Other means of identifying the distributor or dealer known to the 

manufacturer may also be used. 

84 

(2) Each independent distributor or dealer that complies with paragraph (a)(1)(i) 

or (ii) of this section shall use either the tire registration forms provided by the tire 

manufacturers pursuant to § 574.7(a) or registration forms obtained from another 

source. Paper forms obtained from other sources must comply with the requirements 

specified in § 574.7(a) for forms provided by tire manufacturers to independent distributors and dealers. 

(3) Multiple tire sales or leases by the same tire purchaser may be recorded on 

a single paper registration form or in a single website transaction. 

(4) Each independent distributor or dealer that is complying with paragraph 

(a)(1)(iii) with respect to a sale or lease shall include a statement to that effect on 

the invoice for that sale or lease and provide the invoice to the tire purchaser. 

(b) Other distributors and dealers. 

(1) Each distributor and each dealer, other than an independent distributor or 

dealer, selling new tires to tire purchasers: 

(i) shall submit, using paper registration forms or, if authorized by the tire manufacturer, secure electronic means, the information specified in § 574.7(a)(4) to the 

manufacturer of the tires sold, or to the manufacturer’s designee. 

(ii) shall submit the information specified in § 574.7(a)(4) to the tire manufacturer 

or the manufacturer’s designee, not less often than every 30 days. A distributor or 

dealer selling fewer than 40 tires of all makes, types and sizes during a 30 day period may wait until a total of 40 new tires is sold. In no event may more than 6 

months elapse before the § 574.7(a)(4) information is forwarded to the respective tire 

manufacturers or their designees. 

(c) Each distributor and each dealer selling new tires to other tire distributors or 

dealers shall supply to the distributor or dealer a means to record the information 

specified in § 574.7(a)(4), unless such means has been provided to that distributor 

or dealer by another person or by a manufacturer. 

(d) Each distributor and each dealer shall immediately stop selling any group of 

tires when so directed by a notification issued pursuant to 49 U.S.C. Section 30118. 

Notification of defects and noncompliance. 

4. In Part 574, Figures 3a, 3b and 4 are removed. 

Issued on: January 16, 2008. 

Stephen R. Kratzke, 

Associate Administrator for Rulemaking. 

[FR Doc. E8–1099 Filed 1–23–08; 8:45 am] 

ATTACHMENT 3 

Date: 02/00/83 

From: Author Unavailable: Diane K. Steed; NHTSA 

To: The Honorable Timothy E. Wirth, House of Representatives 

Title: FMVSS Interpretation 

Text: 

Dear Mr. Wirth: 

This responds to your letter, consigned by Mr. Matthew Rinaldo, commenting on 

this agency’s February 3, 1984 final rule on the voluntary tire registration procedures for independent tire dealers. You asked me to respond to several points in 

your letter. 

You noted that the final rule includes a discussion which concluded that section 

158 of the National Traffic and Motor Vehicle Safety Act (the Safety Act), as amended by the Motor Vehicle Safety and Cost Savings Authorization Act of 1982 (the Authorization Act), requires each independent dealer to furnish a registration form to 

the tire purchaser. That discussion further stated that the section does not allow 

those dealers to return forms directly to the tire manufacturer without first furnishing the form to the purchaser with the necessary information filled in by the 

dealer. You indicated your hope that this position could be modified. 

You stated further that you became aware of computerized tire registration systems after the enactment of the Authorization Act, and that these systems will yield 

100 percent registration. You stated also that the legislative history of the Authorization Act makes clear that Congress wanted to increase the rate of registration 

for replacement tires sold through independent dealers. You suggested that it would 

be in accordance with Congressional intent in enacting the Authorization Act for an 

independent dealer to furnish the first purchaser with a registration form on which 

it had not filled in any of the required information but to which it had attached a 

copy of the computerized invoice bearing that and other information. 

85 

A literal interpretation of the statutory language chosen by Congress would cause 

us to reaffirm the position we took in the February 1984 final rule. Under that interpretation, the suggested practice of using a computerized invoice in place of filling in the required information on a registration form would violate the voluntary 

registration requirements in several respects. 

However, reconsideration of this issue has led us to conclude that this is an appropriate case for applying the principles of equitable interpretation. Under the principles of equitable interpretation, the language of the amendments need not be applied in instances where it is clearly contrary to the underlying Congressional intent. I agree that the Authorization Act’s legislative history shows that one aspect 

of the Congressional intent underlying the tire registration amendments was to increase the registration rated for tires sold by independent dealers and distributors. 

Another aspect of that intent was to reduce the burdens which the registration process placed on those dealers and distributors. A literal interpretation of the amendments would either discourage independent dealers and distributors from using 

computer registration, a highly effective method of registration, or burden them 

with procedural steps which are made unnecessary by computer registration. In either event, the result appears to run counter to one of the aspects of Congressional 

intent mentioned above. 

Based on the principles of equitable interpretation, we believe that an independent dealer or distributor who: (1) registers tires by computer; (2) attaches a 

computer-printed invoice containing all of the information necessary for registration 

to a blank standardized registration from; and (3) furnishes the two documents to 

the customer when the tires are purchased; fully satisfies the tire registration 

amendments. We must emphasize, however, that the omission by a dealer of any 

of these three actions would make the dealer subject to all aspects of the voluntary 

tire registration requirements set forth in the amendments. (A full discussion of the 

literal and equitable interpretations of the tire registration amendments is contained in the enclosed analysis.) 

Your letter noted that in my previous letter to you on tire registration, I indicated 

that if there were any tire recalls during the period when there were not tire registration requirements applicable to independent dealers, I would consider what 

steps should be taken to inform the consumers whose tires were unregistered. You 

stated that some 101,000 tires were recalled during fiscal 1983, and you asked the 

agency to take three steps. First, you asked that we determine whether any of the 

recalled tires were sold during the period when there were no registration requirements applicable to tires sold by independent dealers. Second, you urged that we 

initiate procedures to ensure that purchasers of unregistered tires are informed that 

their tires have been recalled. Third, you urged that we develop a program to enable 

those who purchased tires from independent dealers during the period when there 

were no registration requirements applicable to such tires to register those tires 

with the manufacturers. 

I have instructed agency staff to carefully consider each of these requests. I will 

report the results of these considerations to you as soon as they are available. 

Finally, there is a possible misunderstanding which I would like to clarify in your 

letter. You stated in the second full paragraph on page 2 of the letter that there 

were no tire registration requirements applicable to tires sold by independent dealers between October 15, 1982 ‘‘and the date of effectiveness of this final rule.’’ The 

final rule became effective on March 26, 1984. However, there was an interim final 

rule in effect on June 20, 1983, until March 26, 1984, and that interim final rule 

established voluntary registration procedures applicable to independent dealers. 

Independent dealers and tire manufacturers which did not comply with the requirements of the interim final rule were subject to civil penalties of up to $1,000 per 

violation, as specified in section 109 of the Safety Act. I want to be sure that it is 

clear that the period during which there were no registration requirements applicable to independent dealers lasted from October 15, 1982, until June 20, 1983, and 

not beyond that date. 

As with your previous correspondence on this topic, I have placed copies of your 

letter and this response in the appropriate rulemaking docket. Please let me know 

if you have any other concerns or comments on the issue of voluntary tire registration, so that this agency can work with you to ensure proper implementation of the 

changes mandated by the Authorization Act. 

Sincerely, 

HON. DIANE K. STEED, 

Administrator. 

86 

Computerized Registration and the Voluntary Tire Registration Requirements 

This analysis considers the effects of the changed language in section 158 of the 

National Traffic and Motor Vehicle Safety Act (the Safety Act), as amended by the 

Motor Vehicle Safety and Cost Savings Authorization Act of 1982 (the Authorization 

Act), on independent dealers and distributors wishing to use a computerized system 

for recording tire purchases and for registering those purchases with the tire manufacturer. 

Section 158(b)(2)(B) of the Safety Act specifies that the National Highway Traffic 

Safety Administration—— 

shall require each (independent dealer) to furnish the first purchaser with a tire 

registration form (containing the tire identification number of the tire) which the 

purchaser may complete and return directly to the manufacturer of the tire. (Emphasis added.) 

This statutory language seemingly forecloses the possibility of a dealer’s using a 

computerized registration system in place of the dealer’s performing each of the actions specified by the voluntary tire registration requirements. 

In a computerized registration system, the dealer must enter the date of sale, 

number of tires sold and their tire identification numbers, the customer’s name and 

address, and the dealer’s name and address into a computer. If each item of this 

information is not entered, the dealer will not receive credit from the sale from the 

manufacturer. A further result is that the dealer will not have to accurate inventory 

records, which are a by-product of this system, for his or her own purposes. When 

this information has been entered into the computer, an invoice is printed which 

contains that information. Experience with computerized registration has shown 

registration rated at or very near 100 percent registration of the tires sold by the 

dealers using the computerized registration systems. 

I agree that the Authorization Act’s legislative history shows that one aspect of 

the Congressional intent underlying the tire registration amendments was to increase the registration rated for tires sold by independent dealers. Another aspect 

of that intent was to reduce the burdens which the registration process placed on 

independent dealers and distributors. However, the letter of the Authorization Act 

does not provide this agency with broad discretion to determine how best to achieve 

those goals. The provisions enacted by Congress were quite explicit in specifying the 

action to be required of each independent dealer and distributor. The only aspects 

of the voluntary registration left to this agency’s discretion were the contents and 

format of the registration forms to be used. Even that discretion is circumscribed 

by the requirement in section 158(b)(2)(B) of the Safety Act that the contents and 

format of the forms ‘‘shall be standardized for all tires.’’ In explaining how the voluntary registration procedures would work, the House of Representatives Committee on Energy and Commerce said that independent dealers and distributors— 

are required to furnish the first purchaser of a tire with a standardized registration 

form, containing the tire identification number of the tire, which would be recorded 

on the form by the dealer or distributor at or before the time of purchase. The form 

should be presented to the purchaser in a manner suitable for mailing and addressed to the tire manufacturer or his designee. H.R. Rep. No. 97–576, 97th Cong., 

2d Sess. at 8 (1982). (Emphasis added) 

Although a literal interpretation of the statutory language chosen by Congress 

would cause us to reaffirm the position we took in the February 1984 final rule, reconsideration of this issue has led us to conclude that this is an appropriate case 

for applying the principles of equitable interpretation. The tire registration amendments are remedial legislation for which the rule of construction is—— 

(C)ases within the reason, though not within the letter, of a statute shall be embraced by its provisions; and cases not within the reason, though within the letter, 

shall no be taken to be within the statute. (Sutherland, Statutory Construction, 

54.04) We believe that, in the circumstances described in the letter sent by Messrs. 

Wirth and Rinaldo, the tire registration amendments can an should be given a restrictive interpretation. In this way, the equity or intent underlying those amendments can be best effectuated. Sutherland states that—— 

When the natural or literal meaning of statutory language embraces applications 

which would not serve the policy or purpose for which the statute was enacted or 

help to remedy the mischief at which it was aimed, the courts may construe it restrictively in order not to give it an effect beyond its equity or spirit. (54.06) 

It is necessary, therefore, to interpret literally the meaning of the language adopted by Congress and then to determine the effect on the amendment’s policy or purpose of applying that interpretation to all independent dealers or distributors. 

Viewed literally, that language would be violated in three respects by an independent dealer’s attaching a computer printout (containing the required registration 

information) to a blank registration form. First, the registration materials given to 

87 

the first purchaser would not be registered with a standardized form and others 

would be registered with what would be in effect be a two part form consisting of 

a blank standardized form and an invoice. Second, a registration form with a computerized invoice attached would not be presented to the purchaser ‘‘. . . in a manner suitable for mailing . . .,’’ as specified in the House Committee Report. We have 

interpreted that quoted language as meaning that the purchaser would have to do 

nothing more than attach a stamp in order to mail the form to the manufacturer. 

In the example described in the Wirth/Rinaldo letter, the purchaser would have to 

provide his or her own envelope in order to send the form and invoice to the tire 

manufacturer. Thus, the registration materials would not be presented ‘‘. . . in a 

manner suitable for mailing’’ . . . Third, the language in the House Committee Report requires dealers to fill in the tire identification number on the registration form 

before furnishing the form to the tire purchaser. 

However, under the principles of equitable interpretation, the language of the 

amendments need not be applied in instances where it is clearly contrary to the underlying Congressional intent. A literal interpretation would either discourage independent dealers and distributors from using computer registration, a highly effective 

method of registration, or burden them with procedural steps which are made unnecessary by computer registration. In either event, the result appears to run 

counter to one of the aspects of Congressional intent mentioned near the beginning 

of this analysis. 

The reason for requiring standardized registration forms was to ensure that all 

forms used by independent dealers and distributors to register tires would be the 

same in content and format, regardless of the brand or type of tires. All independent 

dealers and distributors, even those with computerized registration, can fill out and 

use the standardized forms. Alternatively, those with computerized registration can 

print an invoice bearing the information otherwise required to be filled in on the 

form by dealer or purchaser and attach that invoice to the form to be given the purchaser. 

The purpose for requiring that the registration forms be presented in a mailable 

form was to facilitate the registration of tires that might otherwise never be registered. In the case of tires sold by a dealer or distributor using computerized registration, the tires are already registered with the tire manufacturer before the form 

is presented to the purchaser. Thus, there is no need with respect to those tires for 

the forms to be suitable for mailing. Further, there is no indication in the amendments or their history that Congress intended that registration forms be mailed in 

for tires which have already been registered. The mailing of those forms would be 

redundant. Accordingly, presenting the forms in a mailable form would be unnecessary to achieving the purposes of the tire registration amendments and could be inconsistent with those purposes. 

We believe that the principles of equitable interpretation can be used also to relieve the dealers and distributors using computerized registration from being required to provide purchasers with a registration form on which they have filled in 

the necessary information. However, this relief can be provided only in instances in 

which these dealers and distributors can be provided only if in instances in which 

these dealers and distributors provide the purchasers with evidence that the tires 

have already been registered. Provision of that evidence is necessary because compliance with the requirement to fill in the information becomes redundant and even 

inconsistent with the tire registration amendments only if the tires have in fact 

been registered. The evidence which the independent dealer furnishes to show that 

the tires have already been registered is the computer-printed invoice bearing all 

of the information otherwise required to be written or stamped on the registration 

form by either the dealer or the purchase. Absent that evidence, the independent 

dealer would be required to comply with all statutory requirements for voluntary 

registration, even if the dealer were using a computerized registration system. 

Accordingly, we conclude that an independent dealer or distributor who attaches 

a computerized invoice containing all of the information necessary for registration 

to a blank standardized registration form and furnishes the two documents to the 

customer when the tires are purchased fully satisfies the requirements of the voluntary tire registration process. 

88 

Hon. DIANE K. STEED, Administrator, 

National Highway Traffic Safety Administration, 

Department of Transportation, 

Washington, DC. 

Dear Ms. Steed: 

We are writing to comment on the final rule on tire identification and recordkeeping (Docket No. 70–12; Notice 25) issued by the National Highway Traffic Safety Administration on February 3, 1984. We expressed similar concerns in a letter 

to Secretary Elizabeth H. Dole of June 7, 1983, commenting on the interim final 

rule on this matter. 

We noted that the final rule includes a discussion of whether the Motor Vehicle 

Safety and Cost Savings Authorization Act of 1982 (P.L. 97–331) permits an independent tire dealer to return the tire registration form to the tire manufacturer instead of furnishing it to the purchaser. The rule indicated that the language of the 

statue prevents the agency from adopting such a procedure. We hope that this position can be modified. 

Since the enactment of this statute, we have been made aware of a computerized 

system utilized by one of the tire manufacturers through which dealers notify the 

manufacturer of tire sales. The information furnished through this system includes 

the purchaser’s name and address and the tire identification number. Clearly, the 

automatic furnishing of this information by the dealer to the manufacturer via computer results in 100 percent tire registration. The question posed by NHTSS in the 

final rule is apparently whether such a system is compatible with the statute. 

The legislative history surrounding the tire registration provisions of P.L. 97–331 

clearly states that it was Congress’s purpose in adopting the ‘‘voluntary tire registration’’ system to increase tire registration to the maximum extent possible. Thus, 

it would be both ironic and extremely unfortunate if the implementation of this law 

led to decreased usage of a computer system that would ensure 100 percent tire registration. 

Therefore, we suggest that additional consideration be given to ways in which 

agency procedures for compliance with the statute can take into account such a computerized system. For example, would a tire dealer who furnished to his customer 

a registration form to which was attached a copy of the computerized invoice, including the tire identification number, meet the statutory obligation ‘‘to furnish the 

first purchaser of a tire with a registration for (containing the tire identification 

number of the tire)?’’ Such a result would obviously be in accordance with Congressional intent in enacting Section 4 of the Motor Vehicle Safety and Cost Savings 

Authorization Act of 1982. Additionally, in the same letter to Secretary Dole, we 

urged that NHTSA establish procedures to inform purchasers of tires during the period in which there were no registration requirements—between October 15, 1982 

and the date of effectiveness of the final rule—that they will not receive notification 

by mail in the event of a recall. On July 15, 1983, you responded that ‘‘if there are 

any tire recalls involving tires sold during (that time, you) will consider what steps 

should be taken to inform the consumers whose tires are unregistered.’’ 

We are now aware that during Fiscal Year 1983 some 101,000 tires were recalled. 

We, therefore, again request that NHTSA promptly review the matter to determine 

whether any of the tires recalled were sold during the period in which no registration requirements were in effect. We urge that you initiate procedures to ensure 

that the purchasers of those tires are informed that a recall has occurred. Additionally, we urge that the agency develop a program to enable those who purchased 

tires during that period to register them with manufacturers. 

We urge that NHTSA give further consideration to these issues, in the interest 

of increasing tire registration. Please feel free to discuss this with us or with our 

staff (Patti Shwayder, Policy Analyst. 225–9304; Cecile Srodes, Associate Minority 

Counsel, 226–3400). 

Sincerely yours, 

MATTHEW J. RINALDO, 

Ranking Minority Member. 

Subcommittee on Telecommunications, Consumer Protection and Finance 

TIMOTHY E. WIRTH, 

Chairman. 

Subcommittee on Telecommunications, Consumer Protection and Finance 

Senator DORGAN. Ms. Gillan, thank you very much. We appreciate your being here. 

89 

And finally, we will hear from Mr. Paul Cullen, General Counsel, 

Owner Operator Independent Drivers Association. 

Mr. Cullen, you may proceed. 

STATEMENT OF PAUL D. CULLEN, SR., MANAGING PARTNER, 

THE CULLEN LAW FIRM, PLLC; GENERAL COUNSEL, OWNEROPERATOR INDEPENDENT DRIVERS ASSOCIATION, INC. 

Mr. CULLEN. Thank you, Mr. Chairman. It is my honor today to 

appear on behalf of 161,000 owner-operator drivers and small business truckers who operate throughout the United States. 

I ask that my full testimony be included in the record of the 

hearing today. 

I’d like to begin by addressing issues that you took up with Mr. 

Gribbin, with respect to the interpretation of the 2008 Appropriations bill, particularly the word ‘‘establish.’’ 

Mr. Gribbin relies on a well-known principle of statutory interpretation that you’re to rely on the plain language of the words 

used by Congress. There is, however, an exception to that principle, 

and that principle can be abandoned if the plain meaning leads to 

an absurd result. 

Now, I suppose, if you were on Mars or Venus, for the last 6 

months or a year, and you didn’t have access to the Washington 

Post or the Congressional Quarterly or Landline Magazine or 

Transport Topics, you might not know what the word ‘‘establish’’ 

was intended to mean. 

Putting that aside, everyone knows that the interpretation urged 

by DOT is absurd and is a justification for abandoning the plain 

language principle, and a justification for resorting to the aids to 

construction that you, Mr. Chairman, presented to us in your opening remarks today. You should proceed diligently further, because 

it appears on the face of things that the agency is simply ignoring 

the will of Congress, and ought not to be allowed to do so. 

Turning to the other major issues, we’re dealing with complex 

legal and policy issues, and there appears to be a dense cloud of 

smoke generated by the Department of Transportation regarding 

their responsibilities under NAFTA and their authority to deal 

with trans-border trade and trucking services. 

In order to address this and to dissipate this cloud of smoke, let’s 

go back to basic principles. What is the responsibility of the United 

States under NAFTA? 

One turns to the text of NAFTA, Article 1202(1). The only thing 

that the United States agreed to under NAFTA was to accord to 

Mexican motor carriers the same treatment that we accord to our 

own motor carriers. That principle is known as national treatment. 

Mexican motor carriers are entitled to be treated just like an 

American motor carrier, no better, no worse. The only way we can 

violate that principle is to deny them operating authority, arbitrarily. But if we hold their feet to the fire, and require them to 

follow the same standards as an American motor carrier, we honor 

our obligation of national treatment under NAFTA. 

What is the authority of the Secretary and the FMCSA to implement our obligations under NAFTA? That authority is set forth in 

Title 49 of the U.S. Code, Section 13902(a)(1) and (4). That authority is to entertain applications for operating authority and grant 

90 

1Owner-Operator Independent Drivers Ass’n, Inc. v. U.S. Department of Transportation, et al., 

No. 07–73987 (9th Cir. filed Oct. 15, 2007). Another challenge based on separate grounds is also 

pending before the Ninth Circuit. Sierra Club, et al., v. U.S. Department of Transportation, et 

al., No. 07–73415, (9th Cir. filed April 23, 2007). Both cases were consolidated for oral argument 

which was held on February 12, 2008. As of this date, no decision has been reached. 

them if the applicant is willing and able to comply with all U.S. 

laws. And to deny those applications if the applicant is unwilling 

or unable to comply will all U.S. laws. 

How does the pilot program square against our NAFTA obligations and the authorities of the Secretary under 13902? The Secretary has agreed under the pilot program to permit Mexican 

motor carriers to comply with 3 areas of Mexican law in lieu of 

compliance with the corresponding areas of United States law. 

Those areas include commercial driver’s licenses, drug testing and 

medical qualifications. 

Under 13902, the Supreme Court, in Public Citizen v. DOT, said 

unequivocally that the Secretary has only ministerial authority, 

and has no authority to alter the terms and conditions under which 

Mexican motor carriers may enter the country. Simply stated, the 

Secretary has no legal authority to implement the pilot program as 

she has done, by waiving compliance with American statutes and 

regulations, and substituting compliance with Mexican statutes 

and regulations in their place. 

Thank you. 

[The prepared statement of Mr. Cullen follows:] 

PREPARED STATEMENT OF PAUL D. CULLEN, SR., MANAGING PARTNER, THE CULLEN

LAW FIRM, PLLC; AND GENERAL COUNSEL, OWNER-OPERATOR INDEPENDENT

DRIVERS ASSOCIATION, INC. 

Introduction 

My name is Paul D. Cullen, Sr. I am Managing Partner of The Cullen Law Firm, 

PLLC of Washington, D.C. This testimony is submitted in my capacity as General 

Counsel to the Owner-Operator Independent Drivers Association, Inc. (OOIDA) of 

Grain Valley, Missouri. OOIDA is a trade association representing the interests of 

independent drivers, owner-operators and small-business truckers throughout the 

United States. OOIDA currently has in excesses of 161,000 members. OOIDA is a 

petitioner in a proceeding now pending before the United States Court of Appeals 

for the Ninth Circuit in which it challenges the legal authority of the Secretary and 

the FMCSA to issue Federal operating authority to Mexico-domiciled motor carriers 

under its Cross-Border Pilot Program.1 Specifically, OOIDA challenges the legal authority of the Secretary and FMCSA to accept compliance with Mexican regulations 

covering commercial drivers licenses, drug testing and medical standards in lieu of 

compliance with corresponding U.S. statutes and regulations. 

OOIDA applauds the actions taken by Congress to withhold funding for FMCSA’s 

Cross-Border Pilot Program under Section 136 of the Consolidated Appropriations 

Act, 2008 (Pub. L. 110–161). The Bush Administration’s continuation of the Program 

despite the clear directions of Congress to the contrary is both shocking and deplorable. However, the Administration’s obvious contempt for the rule of law in this 

matter goes well beyond its brazen disregard for the provisions of Section 136. It 

extends as well to the disregard of legal precedent. In prior litigation challenging 

the authority of the Secretary of Transportation and the Federal Motor Carrier 

Safety Administration (FMCSA) to allow Mexican trucks into the United States 

without complying with the National Environmental Policy Act, the Solicitor General of the United States specifically renounced the existence of the authority that 

the Secretary and FMCSA have asserted in promulgating the current Mexican truck 

program. Yet, the FMCSA has arrogated unto itself authority to alter the terms and 

conditions for entry by Mexico-domiciled motor carriers into the U.S.—the very authority that the Solicitor General told the Supreme Court that the agency did not 

have. FMCSA is authorized to issue operating authority to Mexico-domiciled motor 

carriers only if they are willing and able to obey all of our laws and regulations. 

91 

2 North American Free Trade Agreement, U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M. 289 (1993). 

3 H.R. 3450, 103d Cong. (1st. Sess. 1993) (Vote No. 395, passed 61–38–1). 

4 In the Matter of Cross Border Trucking Services, See File No USA–MEX–98–2008–01 at 74– 

75, ¶ 253 (NAFTA Arbitration Panel Feb. 6, 2001). 5 Id. See also id. at 25–26, ¶ 125. 6 Id. See also id. at 25–26, ¶ 125. 7 Id. at 68, ¶ 256. 

Restricting operating authority to those who satisfy these conditions is completely 

compatible with our Nation’s obligations under NAFTA. 

In this testimony, I will show that: 

1. FMCSA’s Cross-Border Pilot Program is neither authorized nor required by 

any obligation of the United States under the North American Free Trade 

Agreement (NAFTA); 

2. FMCSA has no authority to issue operating authority to motor carriers unless they are ‘‘willing and able’’ to obey all applicable U.S. laws and regulations; 

and 

3. FMCSA has no authority to alter the statutory terms and conditions under 

which Mexico-domiciled motor carriers may provide trucking services within the 

continental United States. 

The North American Free Trade Agreement 

On December 17, 1992, the leaders of the United States of America, Canada, and 

the United Mexican States signed the North American Free Trade Agreement 

(‘‘NAFTA’’), a treaty regulating trade in goods and services between and among the 

parties to that treaty.2 On November 20, 1993, the U.S. Senate officially ratified 

NAFTA.3 Transborder trucking services are governed by NAFTA Article 1202(1) 

which provides that ‘‘[e]ach Party shall accord to service providers of another Party 

treatment no less favorable than it accords, in like circumstances, to its own service 

providers.’’ The obligation described in Article 1202(1) is known as ‘‘National Treatment.’’ Simply stated, the United States has agreed to treat Mexico-domiciled motor 

carriers exactly the same as it treats U.S.-domiciled motor carriers, no better, no 

worse. The United States has undertaken no obligation to provide ‘‘special treatment’’ or ‘‘different treatment’’ to other trucks which would include providing exemptions or waivers from the application of U.S. trucking laws. The only thing the 

U.S. is obligated to do is provide ‘‘National Treatment.’’ 

NAFTA’s ‘‘National Treatment’’ provision applies to trucking services in which a 

tractor and trailer provide service from a point in Mexico to a point in the United 

States as well as transit of Mexican trucks from Mexico through the United States 

to Canada. Those who provide such services are called service providers. Service 

providers of the United States are U.S.-domiciled trucking firms.4 The treatment 

given to U.S. domestic trucking service providers under U.S. laws and regulations 

establishes a frame of reference for determining whether the United States is providing National Treatment to service providers from Mexico or Canada.5

Implementation of this commitment is really rather simple. The only thing that 

FMCSA must do to fulfill the National Treatment obligation under NAFTA is to 

process applications for Mexico-domiciled motor carrier’s operating authority by the 

same terms and conditions as it processes similar applications by U.S.-domiciled applicants. 

On February 6, 2001, an International Arbitral Panel (IAP) issued its final decision from a challenge by the Government of Mexico alleging that a blanket refusal 

by the United States to process applications by Mexico-domiciled motor carriers violated its NAFTA obligation to afford National Treatment to such carriers. The IAP 

decision sets forth the contentions of the parties, the legal and factual basis for 

those contentions and the conclusions of the IAP itself. Of particular interest is this 

passage from the Government of Mexico’s brief as quoted in the IAP’s final decision: 

Rather, the governments contemplated that motor carriers would have to comply fully with the standards of the country in which they were providing service. 

In other words, there was a clear expectation that a Mexican motor carrier applying for operating authority in the United States would have to demonstrate 

that it could comply with all requirements imposed on U.S. motor carriers.6

A unanimous five member panel found that the ‘‘U.S. blanket refusal to review 

requests for operating authority . . . is inconsistent with . . . U.S. treatment of 

U.S. domestic service providers.’’ 7 Because of this inconsistency, the IAP concluded 

92 

8 Id. at 74, ¶ 278. See also id. at 81, ¶ 259. 9 Id. at 82 ¶ 301. 10 72 Fed. Reg. 23883 (Col. 1) (May 1, 2007). This statement was repeated in FMCSA’s Federal 

Register Announcement of June 8, 2007 (72 Fed. Reg. 31877 (Col. 1)) and of August 17, 2007 

(72 Fed. Reg. 46263 (Col. 3)). 11Demonstration Project on NAFTA Trucking Provisions, 72 Fed. Reg. 46263, 46266 (Col. 1) 

(August 17, 2007) (FMCSA Docket No. 2007–280552396). 12 A motor carrier must also be willing and able to comply with regulations referred to in Section 13902(a)(1)(A), the scope of which was left open to further interpretation by FMCSA in 

Peter Pan Bus Lines v. FMCSA, 471 F.3d 1350, 135455 (D.C. Cir. 2006). 13 U.S. Department of Transportation v. Public Citizen, 541 U.S. 752, 766 (2004). 14 Id. at 770. 15 Id. at 767. 

that ‘‘the U.S. refusal to consider applications is not consistent with the obligation 

to provide national treatment.’’ 8

Following its findings, the IAP took pains to point out that nothing in its decision 

should be interpreted as in any way inhibiting the ability of a Party to implement 

its own legitimate safety objections: 

It is important to note what the Panel is not determining. It is not making a 

determination that the Parties to NAFTA may not set the level of protection 

that they consider appropriate in pursuit of legitimate regulatory objectives. It 

is not disagreeing that the safety of trucking services is a legitimate regulatory 

objective. Nor is the panel imposing a limitation on the application of safety 

standards properly established and applied pursuant to applicable obligations 

of the Parties under NAFTA. 

The IAP also held that a Party may be permitted to implement additional procedures with respect to service providers domiciled within the territory of another 

Party, provided that such procedures were imposed in good faith with respect to a 

legitimate safety concern and that such requirements did not conflict with other provisions of NAFTA.9

Two conclusions follow from the IAP’s analysis. First, the United States would 

bring its policies in complete harmony with its NAFTA obligations by simply making operating authority available to Mexico-domiciled motor carriers under precisely 

the same terms and conditions as it applies to U.S.-domiciled motor carriers. Second, attempts to harmonize U.S. and Mexican truck regulatory regimes, while advancing potentially beneficial safety goals, has nothing to do with complying with 

the obligation of the United States to provide national treatment. 

The Cross-Border Pilot Program 

On May 1, 2007, FMCSA announced the initiation of a demonstration project as 

‘‘part of FMCSA’s implementation of . . . [NAFTA’s] cross-border trucking provisions.’’ 10 FMCSA has called its demonstration project ‘‘a critical step in the process 

of moving forward with the Nation’s obligations under NAFTA.’’ 11 FMCSA’s characterization of its demonstration project is simply incorrect. Establishing special treatment for Mexico-domiciled motor carriers is neither required nor authorized by 

NAFTA. Moreover, as we now demonstrate, NAFTA’s requirement to afford National Treatment is also the only approach that is compatible with FMCSA’s statutory and regulatory authority under U.S. law. 

FMCSA Exceeds Its Statutory Authority When Registering Mexico-Domiciled Motor Carriers Under the Cross-Border Pilot Program 

Under 49 U.S.C. § 13902(a)(1), FMCSA is authorized to issue motor carrier operating authority only if it finds that the applicant is willing and able to comply with 

any (i) safety regulations promulgated by FMCSA, (ii) safety fitness requirements 

established by FMCSA under Section 31144, (iii) minimum financial responsibility 

requirements established under Sections 13906 and 31138, and (iv) the duties of employers and employees under Section 31135.12 Section 13902(a)(4) mandates that 

the Secretary ‘‘shall withhold registration’’ if she determines that a registrant ‘‘does 

not meet, or is not able to meet’’ any of the aforementioned requirements. These 

statutory requirements for issuing motor carrier operating authority are in complete 

harmony with NAFTA’s National Treatment requirement. 

In Department of Transportation v. Public Citizen,13 the Supreme Court addressed 

FMCSA’s responsibilities under Section 13902(a)(1) holding that the Agency had ‘‘no 

discretion’’ under this provision 14 to prevent entry of Mexican trucks operated by 

motor carriers that satisfied the conditions in this section.15 By necessary implication, FMCSA would also have no discretion under Section 13902(a)(4), but to deny 

operating authority to a motor carrier who ‘‘does not meet, or is unable to meet the 

93 

16Demonstration Project on NAFTA Trucking Provisions, 72 Fed. Reg. 31,877, 31,884 (June 

8, 2007) (FMCSA Docket No. 2007–28055–1547). 17 541 U.S. at 766–767. 18Public Citizen v. U.S. Department of Transportation, 316 F.3d 1002 (9th Cir. 2003). 19 42 U.S.C. § 4332(2)(C). 20Public Citizen, 316 F.3d 1002 at 1032. 21Public Citizen, 541 U.S. at 766, 770, 772. 22 Id. at 770. 

requirements in Section 13902(a)(1).’’ This would be true whether the motor carrier 

was domiciled in Canada, Mexico, or the United States. 

FMCSA’s demonstration project completely ignored the statutory mandate imposed under Sections 13902(a)(1) & (4). Rather than addressing the question of 

whether Mexico-domiciled motor carriers are willing and able to comply with U.S. 

safety regulations as it is required to do under its governing authority, FMCSA is 

acting outside the scope of its authority by implementing a policy of issuing operating authority on the basis of compliance with Mexican laws and regulations governing commercial drivers licenses, physical qualifications of drivers and drug testing.16 Under Public Citizen, FMCSA has no authority to depart from the mandate 

of Section 13902(a) requiring that all motor carriers demonstrate that they are willing and able to comply with U.S. laws and regulations.17 FMCSA’s decision to issue 

operating authority based upon compliance with Mexico’s laws and regulations is, 

very simply, not in accordance with law and exceeds the statutory limits on the 

agency’s authority to grant operating authority. 

In Public Citizen, petitioners (Sierra Club, Public Citizen and International Brotherhood of Teamsters) argued that FMCSA should not authorize the entry of Mexican 

trucks into the United States unless it prepared an environmental impact statement 

as required by the National Environmental Policy Act 18 (NEPA). NEPA requires 

various Federal departments and agencies to file environmental impact statements 

in connection with major Federal action.19 The U.S. Court of Appeals for the Ninth 

Circuit agreed with the petitioners and held that FMCSA violated NEPA by not filing an environmental impact statement in connection with its proposed approval for 

the operation of Mexican trucks within the continental United States.20 The U.S. 

Supreme Court reversed, holding that FMCSA had only ministerial authority to approve or disapprove applications for operating authority under 49 U.S.C. § 13902(a) 

and that the narrow range of discretion available to it in approving applications for 

operating authority could not be the cause of any adverse impact on the environment.21 Under the Supreme Court’s reasoning, the only one capable of undertaking 

major Federal action was the President who had the authority to lift the embargo 

on Mexican trucks.22 Since the President is exempt from the filing requirements 

under NEPA, Public Citizen presented the Court with no cognizable claim. The Supreme Court’s holding in Public Citizen is the controlling word on this subject. Because FMCSA’s responsibilities under Section 13902(a) have been found to be ministerial, providing it with no discretion to alter the terms or circumstances under 

which Mexican motor carriers may provide services within this country, it simply 

has no authority to accept compliance with Mexican regulations in lieu of compliance with its own regulations. 

FMCSA welcomed the Supreme Court’s ruling that it had only ministerial, nondiscretionary functions with respect to the approval of operating authority for Mexican motor carriers. That ruling allowed it to defeat the petitioners in Public Citizen 

and sidestep responsibilities under NEPA. That court’s holding, however, is incompatible with the authority it now asserts in implementing its Cross-Border Pilot Program. By accepting compliance with Mexican laws and regulations covering commercial drivers licenses, drug testing and standards of medical qualifications in lieu of 

compliance with its own regulations, FMCSA has completely rewritten the conditions for entry into the U.S. market for trucking services. 

The following statements by Solicitor General Olson in briefs to the Supreme 

Court in Public Citizen set forth the official position of the United States with respect to the authority of the Secretary and FMCSA in this area. The authority 

claimed by the Secretary and FMCSA in Public Citizen is significantly more narrow 

than the breadth of authority claimed in connection with FMCSA’s ongoing CrossBorder Pilot Program: 

1. ‘‘FMCSA’s relevant authority involves granting or refusing operating authority to particular Mexican motor carriers, based solely on whether they are ‘willing and able to comply’ with United States safety and financial-responsibility 

standards. 49 U.S.C. § 13902(a)(1).’’ Brief for Petitioners on Writ of Certiorari 

at 22. 

94 

2. ‘‘FMCSA’s role in this context is the essentially ministerial one. . . . 

FMCSA’s authorizing statute does not make it responsible . . . for opening or 

closing the border.’’ Reply Brief for the Petitioners on Petition for a Writ of Certiorari at 10. 

3. ‘‘Consistent with the legislative limitations on its powers, FMCSA has not 

claimed any power to determine whether or under what conditions Mexican carriers should be allowed to operate in the United States.’’ Reply Brief for the Petitioners on Writ of Certiorari at 3. 

4. ‘‘While Congress left FMCSA with a narrow range of discretion in fashioning 

the final registration procedures, Congress did not empower FMCSA to change 

the fundamental condition for entry.’’ Reply Brief for the Petitioners on Writ of 

Certiorari at 5. 

FMCSA’s Cross-Border Pilot Program alters the fundamental conditions for entry 

of Mexico-domiciled motor carriers. It is contrary to its narrow authority to act 

under Section 13902(a) and is neither authorized nor required by NAFTA. The legal 

gamesmanship exhibited by the agency—claiming only narrow ministerial authority 

in Public Citizen and broad authority to rewrite the conditions for issuing operating 

authority in the Cross-Border Pilot Program—is regrettable, and shows once again 

a rather incomplete appreciation for the rule of law. 

Conclusion 

OOIDA commends this Committee for its diligence in pursuing this matter. It is 

important to note that the legal defects identified here with respect to the CrossBorder Pilot Program would also apply to any permanent program implemented by 

the Secretary and FMCSA if such programs included accepting compliance with 

Mexican laws and regulations in place of compliance with U.S. laws and regulations. 

OOIDA looks forward to working with the Committee in the months ahead to help 

restore respect for the rule of law in this matter. 

Senator DORGAN. Mr. Cullen, thank you very much. I think both 

of you have presented important and interesting information. 

I said at the start of this hearing, that for me, this is a safety 

issue. If there were no safety issues, and if we had an equivalency 

of standards between the U.S. and Mexico, I wouldn’t hold a hearing, I wouldn’t offer an amendment, I’d say, ‘‘That’s fine, homogenize trucking rules between our three countries—the U.S., Canada, Mexico, that’s fine with me,’’ if you had equivalency. But there 

isn’t anyone who is thinking clearly that will make the case that 

there is equivalency between our country and Mexico with respect 

to standards—driver’s records, vehicle inspections, and so on. 

Ms. Gillan, you have covered some of that in your written statement, and your oral statement, as well, but you heard the Secretary today—she continues to make the case that they are inspecting every truck, every time, do you understand the loophole in that 

every truck, every time? I think the Inspector General sitting beside her said, ‘‘She can’t make that claim, she doesn’t know.’’ 

Ms. GILLAN. Absolutely, Senator. In fact, the safety community 

looks at these slogans as giving us a false sense of security and 

feeling that everything’s safe. And ‘‘every truck, every time’’ is really just that they’re checking on the license, and the English proficiency—which you already discussed today, really isn’t English 

proficiency—I think that DOT Secretary Peters is trying to give everybody a sense that these trucks are undergoing some complete 

Level I inspection when, in fact, they’re not. 

And I also think that when she talked about the pilot program, 

there was going to be 1,000 trucks, and these were going to be the 

safest of the safe trucking companies, and then we find out that 

Trinity actually, through the research that was done by OOIDA, 

had an abysmal safety record. And the problem is, that as we go 

95 

forward, this is the program that they’re going to use, we’re convinced, to justify opening the border, and we cannot let that happen. 

Senator DORGAN. Mr. Cullen, some would say, ‘‘Well, Mr. Cullen 

is here representing the Owner-Operator Independent Drivers.’’ I 

know a lot of them, I mean, I see a lot of them, and they’re running 

a small business, and you know, they have a small trucking company, they’re out there working for a living, trying to make a go 

of it. They’d say, ‘‘Well, you come here, and you’re just—you don’t 

want any competition, that’s why you want to keep Mexican drivers 

and vehicles out.’’ Respond to that. 

Mr. CULLEN. Our concerns are primarily safety-driven. But there 

is a relationship between competition and safety. If a Mexican driver comes into this country, and is willing to drive for 32 cents a 

mile, or 25 cents a mile, that drives down the compensation available to American drivers. A poorly compensated driver tends to be 

an unsafe driver, or is driven toward circumstances that lead to 

lack of safety. He doesn’t maintain his truck as diligently as he 

can, doesn’t replace the tires as often as he should and is forced 

to work long hours, because he earns so little per hour. 

So that the notion that there’s a big difference between safety 

and economics really should be examined closely by this Committee 

and others. There is a direct-line relationship between profitability 

and adequate compensation and safety. 

Senator DORGAN. I did not raise the question of cost and wages, 

and fair competition—that is another issue that I think is of concern. But, I think safety is such a paramount issue here, that 

there’s no need to have a lengthy discussion about the issue of driving down costs and prices and wages here in the United States. 

But, I do think that there is a relationship, as you suggest, Mr. 

Cullen, to that issue and safety, so—— 

Mr. CULLEN. Speaking directly to safety, the issue that I raise 

in my testimony is, against what standard do we measure safety 

and under 13902(a), safety is measured by the willingness and ability of drivers to obey U.S. laws, and we have the toughest and best 

safety laws in the world, certainly in North America. 

And you can not substitute compliance with Mexican safety 

standards, at their state of development and their state of development of these regulations, and compare it fairly to America’s. We 

are so far ahead of them in safety standards, and the safety standards applicable in this country should not be the lowest common 

denominator—Federal law requires safety standards of the United 

States to apply to anyone who wants to drive in our market, including Mexican trucks. 

Senator DORGAN. In most of the trade agreements that we have, 

including NAFTA and including this issue of cross-border trucking, 

we have seen diminished standards. You’re quite correct, that in 

our country we have generally lifted standards, and lifted wages, 

and done the things that have created a stronger economy, expanded the middle class, and so on. 

In doing that, with respect to regulations and standards, we’ve 

been very stringent and pretty particular about what we do, and 

then we engage with other countries, and we discover that the way 

you engage is to diminish standards in our country. And I think 

96 

that is a disservice to what we have built here. But, that is for, perhaps, another discussion. 

I don’t want to mention that we indicated to the Secretary of 

Transportation that she was welcome to invite one of the American 

trucking companies, she continued to refer today to American 

trucking companies who would have opportunities in Mexico and 

we encouraged her to invite one of those companies to testify here, 

and they either could not find one, or did not invite one. But we 

did encourage them to do that. 

Mr. CULLEN. I’m sure if we polled 161,000 members of OOIDA, 

I’d be hard-pressed, and OOIDA would be hard-pressed, to find 

anyone who’s trying to knock on the door and risk their bodily safety, the safety of their equipment and livelihoods, by driving deeply 

into Mexico. We would do Mexico a great service by pulling them 

up to our standards, by encouraging them, if they do come to this 

country, to follow U.S. standards, and that would be a great benefit 

to them. But I don’t think anyone—at least the drivers that we’re 

familiar with, has the stomach to try and go down to Mexico and 

navigate through safety standards that probably are decades out of 

date to what we do here. 

Senator DORGAN. I want to adjourn in just a moment, because 

I have another duty I hope that attend to. 

But Sheryl Jennings McGurk is here, Sheryl Jennings McGurk, 

where are you? All right. 

Why don’t you take a seat at the table, Sheryl Jennings McGurk 

had prepared a statement that I had put in the record here in the 

U.S. Senate during this debate, and when she came up to me before the hearing, I indicated if we had a couple of minutes at the 

end of the hearing, and you wished to make a very brief statement, 

I’d be happy to recognize you. 

As I understand it, your parents and your nephew were killed in 

an automobile accident, and that accident occurred with respect to 

cross-border trucking. 

I will recognize you, if you can summarize for me in just three 

or 4 minutes, I would appreciate that. But, I appreciate the fact 

that you have great passion about this issue, and are very concerned about it. 

And why don’t you go ahead and make your statement? 

Ms. JENNINGS MCGURK. Thank you, sir. 

As you mentioned, my name is Sheryl McGurk, and our family 

paid the ultimate price for allowing unsafe Mexican trucks into the 

United States. And my mom, my dad and my nephew were killed 

by a Mexican truck that was actually operating outside of the commercial zone when its drive shaft fell off the truck, severed its 

brakes, and the truck was moving backward down the freeway. 

My mom and dad were on their way for a vacation to see my oldest brother, and they never had a chance, never saw the truck. And 

to lose three members of your family, is indescribable. And the hole 

it leaves in your life can never be filled. And my family will do all 

we can to prevent this from happening to another family. 

And I sat here today listening to all of the talk about the legislation, and it just breaks my heart, because the right thing to do is 

to inspect trucks, so that this doesn’t happen to another family. 

97 

You know, I urge Congress to shut down this unsafe and illegal 

program, because I don’t want other families to have to go through 

this. And you have my full story, I don’t want to take up any more 

time. It’s just too hard for me to talk about it right now. [The prepared statement of Ms. McGurk follows:] 

PREPARED STATEMENT OF SHERYL JENNINGS MCGURK IN SUPPORT OF DORGAN- SPECTER AMENDMENT, SEPTEMBER 11, 2007 

On behalf of all members of my family, including my parents and nephew lost in 

2005 in a horrendous and unnecessary crash with a large truck that should never 

have been where it was, I strongly support the Dorgan/Specter amendment that will 

prevent any spending to carry out the Mexican truck pilot program begun by the 

Federal Government last week. We hope that telling the story of what happened to 

my family will help prevent others from going through what we have and what we 

will continue to go through for the rest of our lives. 

My husband Sean and I were married on June 6, 2004. This was an extraordinarily special day for us because it was also my parent’s 45th wedding anniversary. They were married following my father’s graduation from the first class of the 

United States Air Force Academy in 1959. I had a very close relationship with my 

mom and dad, they were not just my parents but they were also my best friends! 

They asked us to share this date with them forever and of course we accepted, hoping to be blessed with a long and happy marriage. It was a special day shared by 

our family. 

My mom, Marie Jennings, was a beautiful, stylish, lady and her bouncy and adventurous personality was the perfect compliment to my dads more serious and 

quiet demeanor. My mom served our country first as the wife of an Air Force officer, 

and next as a mom, raising myself and my two older brothers, David and Bob; swim 

team, soccer, boy scouts, girl scouts, you name it, we kept her quite busy! We moved 

across the country and around the world. As we grew up, she decided to use her 

talents by working for the Federal Government as a civil servant and she did so, 

for 25 years. 

My dad was an officer and gentleman! He retired as a colonel after 27.5 years. 

He served first as a fighter pilot in Vietnam where he was awarded the Distinguished Flying Cross. He later became a test pilot and an instructor pilot. During 

his career he flew almost all the planes the AF had at the time. He loved to fly 

and had recently been recertified so he could fly with his friend to attend an air 

show in Oshkosh, WI. During his career, he still made time to be my dad as a soccer 

coach, a ski buddy, and a private tutor. Later on he decided to continue to serve 

his country by teaching high risk youth at Hollywood High School in Los Angeles, 

young adults at the University of Phoenix and he also volunteered teaching for free 

at private schools. 

My nephew, David Michael Jennings, was a great kid! He was my brother David’s 

only son and the first grandchild. He was born in Beavercreek, Ohio. He was active 

in high school. He played football, the French horn in the marching band, ran track, 

and was active in the Spanish and math clubs. David was an Eagle Scout, quite 

an honor for any young man. He was active in his community and his church. He 

volunteered as team captain for Relay for Life and the Special Olympics. Upon graduating high school, he left home to live with my parents and attend junior college. 

He was completing his sophomore year at Mira Costa College where he was a Student Ambassador and active in student government. He sponsored a 5K run for 

charity and beach clean-ups in Carlsbad, CA. He was transferring to UCSD in the 

fall. 

On February 15, 2005, just 8 months after we were married, my mom and dad 

started out on exciting journey to visit my oldest brother, Bob, his wife Sandy, and 

their youngest grandson, Jack. David volunteered to take my parents to the airport. 

Unfortunately, their journey was cut short only 30 miles from their home in Carlsbad, CA. 

It was around 5 a.m. A truck from Mexico was headed north on I–5 when the 

driver thought he was having mechanical issues. He pulled his truck off the freeway 

to check it out. At that time he decided he would not be able to get his truck from 

where he now was to Los Angeles where he needed to deliver his goods. He decided 

to take his truck back onto the freeway and headed south. It was a bad decision. 

His truck proceeded to break down in the middle of the freeway. My parents and 

nephew never had a chance. 

This accident was 100 percent avoidable. The truck had numerous safety issues 

and should not have been operating in the United States. For this, our lives are forVerDate Nov 24 2008 08:06 Jun 22, 2012 Jkt 074617 PO 00000 Frm 00101 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\74617.TXT SCOM1 PsN: JACKIE
98 

ever changed and we lost three of the most incredible people. This loss has left a 

hole in our lives that cannot be filled. To lose your mom, your dad, and your nephew; all at once; is indescribable. Your world changes in an instant. 

Please help ensure this doesn’t happen again. Vote for the Dorgan/Specter amendment. Safe roads are everyone’s responsibility. 

Senator DORGAN. Well, I appreciate your being here, and as I indicated, I put your statement in the Senate record when we had 

this discussion and this debate. I understand these passions, my 

mother was killed driving down a city street at 30 miles per hour 

after visiting a friend in the hospital, and she was hit by a drunk 

driver, fleeing at 80 to 100 miles per hour on a city street, and I 

have been passionate about these issues for a long, long, long time. 

And I understand the carnage on America’s highways, I understand about losing a parent, and I understand the passion that you 

have about that, because I have been through some of that. 

This issue, to me, is about protecting what we have in this country—a set of standards that we can be reasonably proud of—insisting that we try to maintain safety standards that give the American people some security and some sense of safety when driving 

on the roads in this country, and you know, I’m very interested in 

allowing open borders, to the extent we can, but I’m not very interested in any case, of diminishing standards. 

If other countries meet our standards, God bless them, good for 

them. But, if we are going to succumb to those who say, you know, 

it’s a global economy, let’s get with it, let’s understand that not everybody meets our standards, we still have to participate—that 

means the diminishment of American standards, including safety 

standards. I’m not willing to do that on American roads, and there 

isn’t any way in my judgment that the Secretary of Transportation, 

or the White House, with whom I believed they consulted, and I 

now understand they did—I don’t think that there’s any way that 

they can honestly tell the American people that allowing long-haul 

Mexican trucking can be done without diminishing safety standards in this country for the rest of the American drivers on American roads. 

And I, you know, the fact is, we’re going to continue this discussion and debate, as I indicated to the Secretary. There will be consequences for a Federal agency that ignores the law. 

So, let me thank all three of you for being here, I wish I had 

more time to ask questions of you—we took a long time in the first 

panel today, but your contribution to this hearing is very, very important to us, and this issue will continue. 

One final point—my hope is that the Administration will decide 

that it can’t ignore the law in 8 or 10 areas, maybe they should 

pick one where the law is pretty obvious—that would be this one— 

and decide to obey the law. But, in any event, we will be coming 

very quickly up to Appropriations again, and I’m an appropriator, 

and I will have an opportunity to dig some spurs into this issue, 

it’s a reference to my upbringing in North Dakota, but as I indicated, this issue is not over, by any means. Our Secretary and her 

legal counsel will not have the last word on this issue, the U.S. 

Congress will have the last word. 

This hearing is adjourned. 

[Whereupon, at 4:26 p.m., the hearing was adjourned.] 

(99) 

A P P E N D I X 

PREPARED STATEMENT OF THE U.S. CHAMBER OF COMMERCE

The U.S. Chamber of Commerce is pleased to present this written testimony on 

the remarkable success of the U.S.-Mexico trade partnership and the costs imposed 

by the long delay in implementation of the cross-border trucking provisions of the 

North American Free Trade Agreement (NAFTA). The Chamber strongly supports 

the Department of Transportation’s Cross-Border Truck Pilot Program. This pilot 

program, administered by the Federal Motor Carrier Safety Administration 

(FMCSA), provides temporary operating authority to a limited number of motor carriers domiciled in Mexico and the United States for cross-border commercial operation. 

In the Chamber’s view, implementing the cross-border trucking provisions of 

NAFTA is long overdue. The pilot program is an important step to enhance North 

America’s competitiveness, reduce congestion and pollution at the border, and promote economic growth. Questions about safety have been fully answered, and every 

truck entering the U.S. must meet every U.S. safety requirement. 

Free and fair trade has played a key role in our Nation’s economic growth and 

development since it was founded, and NAFTA played an important role in the accelerated economic growth our Nation has enjoyed since it entered into force in 

1994. Trade between the United States and Mexico has more than quadrupled in 

real terms, rising from $81 billion in 1993 to $347 billion in 2006. The trucking industry is critical to this trade partnership since trucks transport over 80 percent 

of the value of our trade with Mexico. 

However, beginning in 1995, the United States has failed to abide by its commitment under NAFTA to open the U.S.-Mexico border to cross-border trucking. The 

difficulties that stem from this barrier to trade should not be underestimated. Current rules maintain a cumbersome, environmentally damaging, and costly system 

that represents a brake on further growth in mutually beneficial commerce. The 

time has come for our countries to open our borders to a modern cargo transportation system that will allow our economic partnership to reach the next level of 

success. 

The Story So Far 

NAFTA gave U.S. and Mexican carriers the right to pick up and deliver international freight into the neighboring country’s border states beginning in December 

1995. This market access was scheduled to expand to the entire territory of the 

United States and Mexico by January 2000. The United States failed to comply with 

its commitments on both of these occasions. 

NAFTA also included measures to permit U.S. and Mexican carriers to invest 

across the Rio Grande. Starting in December 1995, U.S. and Canadian investors 

were supposed to be allowed to invest in Mexican trucking companies or terminals 

providing exclusively international freight services up to a 49 percent ownership 

cap. NAFTA laid out a schedule to raise this cap to 51 percent in 2001 and 100 percent in 2004. 

By the same token, Mexican carriers were to be allowed to invest and fully own 

U.S. trucking companies for the purpose of transporting international cargo within 

the United States beginning in 1995. The United States finally moved toward implementation of these provisions on June 5, 2001, when President George W. Bush 

issued a memorandum instructing the U.S. Department of Transportation to begin 

accepting and processing applications by Mexican nationals for the purpose of establishing U.S. trucking companies. 

A NAFTA dispute settlement panel in February 2001 determined that the United 

States had violated its obligations on cross-border trucking. At the time, analysts 

calculated that the United States could be slapped with retaliatory duties totaling 

between $1 billion and $2 billion for every year Washington refuses to allow crossborder trucking. Mexico refrained from retaliation out of respect for the U.S. administration’s efforts to comply with its obligations. 

100 

In 2004, the Attorneys General for California, Arizona, Oklahoma, Massachusetts, 

Illinois, New Mexico, Oregon, Washington and Wisconsin filed briefs with the Supreme Court, opposing the administration’s effort to open U.S. roads to Mexican 

trucks and asserting that air-quality reviews must precede any such move under the 

Clean Air Act. Noting that Mexican trucks would be subject to all U.S. environmental and safety regulations in any event, the administration argued that extensive delays and higher costs could result if such additional reviews were required. 

The Supreme Court agreed with the administration. 

Cross-Border Trucking 

In the Chamber’s view, the dispute over cross-border trucking has threatened our 

relationship with Mexico, our second-largest export market. Cross-border trucking 

today was described in a coalition letter signed by the U.S. Chamber of Commerce 

and other business organizations as ‘‘archaic and convoluted. . . . Currently, a shipment traveling from the United States to Mexico, or vice versa, requires no less 

than three drivers and three tractors to perform a single international freight movement. Through interline partnerships, a U.S. motor carrier handles freight on the 

U.S. side, and a Mexican carrier handles the freight on the Mexican side, with a 

‘middleman’ or drayage hauler in the middle. The drayage driver ferries loads back 

and forth across the border to warehouses or freight yards for pickup or subsequent 

final delivery within the designated border commercial zone.’’ 

The upshot is congestion, air pollution, and higher prices for both consumers and 

business. The fraught logistics of the existing system often compel trucks to return 

home with empty trailers or with no trailer at all. Our border infrastructure is seriously overburdened, and the entire system is quickly becoming a real brake on further growth in trade. 

These problems are particularly severe for U.S. companies that operate ‘‘just-intime’’ manufacturing facilities in Mexico. These operations were established with a 

clear expectation that transportation services would be able to deliver inputs from 

the United States or elsewhere to facilities in Mexico according to schedule. Our mutually beneficial trading relationship with Mexico will plainly suffer—with costly effects for U.S. workers, farmers, consumers, and companies—if we fail to ensure the 

expeditious delivery of materials to these manufacturing facilities by modernizing 

the cumbersome transportation system upon which our trade with Mexico depends. 

Safety: A Vital Issue 

Safety is plainly one of the most important issues at play in this dispute. Ensuring the safety of all trucks on American roads was a top priority of the U.S. trade 

officials who negotiated NAFTA. The Congress approved NAFTA because it was 

broadly satisfied with the fruits of their labors. 

And why shouldn’t we be? Under NAFTA, every truck entering the United States 

is required to meet each and every U.S. safety requirement. In fact, Mexican motor 

carriers applying for U.S. permits will be required to provide far more detailed information regarding their ability to meet U.S. safety requirements than their American 

or Canadian counterparts. Any lingering concerns over the safety of these carriers 

from Mexico and their trucks and drivers can surely be addressed in the proposed 

rules for implementing NAFTA. 

While safety is an overriding concern, the United States can certainly address this 

issue while keeping its international obligations and expanding upon the mutually 

beneficial trading relationship with Mexico. Failure to try would send a troubling 

message about the difference in our treatment of Canada and Mexico, our two closest neighbors and largest export markets. 

Finally, it is imperative that Congress make available the required funds to ensure that safety enforcement inspections of trucks on the U.S.-Mexico border are 

carried out with all due seriousness. The U.S. Chamber strongly supports providing 

necessary funding to hire additional safety inspectors to be stationed at the border 

and to build and maintain adequate border inspection facilities. 

Conclusion 

Because NAFTA has already eliminated most tariffs and other barriers to trade 

with Mexico, improving our transportation infrastructure is one of the best things 

we can do to keep this partnership on track. Implementing NAFTA’s trucking provisions offers the opportunity to fix the cumbersome, environmentally damaging, and 

costly transportation system upon which our trade with Mexico depends. Growing 

inspection capabilities at the U.S.-Mexico border will ensure that trucks will be able 

to operate on both sides of the U.S.-Mexico border with safety and efficiency. 

In the final analysis, this issue revolves around whether the United States will 

keep its word. We should be mindful that the United States made a commitment 

under NAFTA to work with Mexico to modernize our cross-border transportation 

101 

system. The U.S. Chamber urges the Congress to work with the administration to 

assist in implementing NAFTA’s cross-border trucking provisions and show the 

world that America keeps its commitments. 

PREPARED STATEMENT OF JAMES P. HOFFA, GENERAL PRESIDENT, INTERNATIONAL BROTHERHOOD OF TEAMSTERS

My name is Jim Hoffa, General President of the International Brotherhood of 

Teamsters. I represent 1.4 million Teamsters and their families. They drive America’s highways every day. 

More than 600,000 of our members earn their living behind the steering wheel 

of a delivery truck, semi-tractor trailer, school bus, police car, taxicab or other vehicle. They have a right to a safe workplace. Their families have a right to safe roads. 

In Mexico, twice as many people die in highway accidents per vehicle miles traveled as in the United States. In Mexico, trucks and Mexican drivers don’t have to 

meet the same safety standards as they do here. In Mexico, enforcement is notoriously lax. 

For those reasons, I have long thought that allowing Mexican trucks on our roads 

would place American drivers in danger. 

Congress is also concerned about the risk of letting hazardous Mexican trucks 

drive our highways. That is why laws were passed requiring the Federal Motor Carrier Safety Administration (FMCSA) to meet specific safety standards before starting a cross-border trucking pilot program. 

Under U.S. law (Section 350 of the 2002 Transportation Appropriations Act), 

FMCSA could not let a Mexican truck travel beyond the border zone if it did not 

satisfy the statutory safety requirements. 

The 2002 law, otherwise known as the Murray-Shelby amendment, was reinforced 

in 2007 by Section 6901 of Public Law 110–28. That law set additional standards. 

It also required the Inspector General to verify that FMCSA met those standards 

before opening the border. 

A promise by FMCSA to meet those standards was not sufficient to satisfy the 

legal requirement for allowing Mexican trucks onto our highways. 

Unfortunately, the Bush Administration couldn’t wait to open the border to Mexican trucks. It couldn’t wait to make sure safety standards were met, and it couldn’t 

wait to obey the law. 

On Aug. 6, 2007, and on Sept. 6, 2007, the Transportation Department’s Office 

of Inspector General issued reports establishing that the Bush administration had 

not met the statutory requirements for starting the pilot program. 

On Aug. 6, the Inspector General reported that certain standards hadn’t been 

met: 

• Databases on Mexican drivers’ records in both Mexico and in the U.S. were incomplete. 

• FMCSA didn’t have the capacity to inspect every truck at high-volume crossings. 

• FMCSA could not verify that drug and alcohol testing in Mexico met U.S. Department of Transportation (USDOT) regulations. 

On Sept. 6, the Inspector General issued a report describing additional legal 

standards for the pilot program that hadn’t been met: 

• FMCSA can’t check trucks and drivers from Mexico at every border crossing. 

• State police didn’t know how to test English language proficiency among drivers. 

• FMCSA said it would only inspect trucks that were available at the time inspectors were onsite. 

It is of no small consequence that the Inspector General reported on Sept. 6 that 

FMCSA has not developed sufficient plans for checking every truck every time. 

In other words, no one was watching the trucks that crossed the border to check 

if they were allowed beyond the border zone. 

When the Inspector General’s staff visited three border crossings—one at Otay 

Mesa, Calif., and two in El Paso, Texas—they found no state or Federal officials 

posted in places where they could identify trucks in the pilot program. The Inspector 

General’s staff found no evidence that Federal officials could be posted in position 

to monitor trucks once the program started. 

One month earlier, the Inspector General reported that traffic was too heavy at 

the Laredo crossing for FMCSA to monitor all trucks. Once an FMCSA inspector 

102 

picked a truck out of the hundreds in line for inspection, no other FMCSA officials 

remained to watch the vehicles pouring over the border. 

If every truck in the pilot program isn’t checked, then every truck driver isn’t 

questioned for his ability to speak English. The Inspector General in September reported that state officials responsible for truck safety were very concerned about the 

English-speaking skills of Mexican drivers. 

English language proficiency is a serious safety issue. A good example was provided by the National Transportation Safety Board, which investigated a 2005 highway tragedy that was compounded by a bus driver’s inability to speak English. A 

bus evacuating Texas nursing home patients from Hurricane Rita caught fire, and 

emergency response was delayed because the driver couldn’t communicate with first 

responders. Twenty-three people died. 

Unfortunately, FMCSA has a cavalier attitude about the need for truck drivers 

to speak English. The Inspector General cited a USDOT memo that says a driver 

who can identify the meaning of four highway signs—in any language—is deemed 

to be proficient in English if the inspector understands what he is saying. In other 

words, if a driver says in Spanish that a stop sign means stop, he is considered proficient in English if the inspector understands him. 

FMCSA has also paid little attention to the problem of drug and alcohol testing 

for Mexican truck drivers. Mexico is an underdeveloped country that lacks an infrastructure for testing drug and alcohol use. Well documented is the epidemic of illegal stimulant abuse among Mexico’s drivers, who are forced to work long hours for 

low pay. 

The Inspector General reported that drug and alcohol testing in Mexico needs further attention. That is probably an understatement. 

Congress ordered FMCSA to verify that Mexican motor carriers can comply with 

USDOT drug testing regulations before starting the pilot program. 

Monitoring drug collection facilities is a necessary prerequisite for verifying Mexican carriers’ ability to operate a drug and alcohol testing program consistent with 

USDOT’s regulations (Part 40 of Title 46 CFR). In other words, FMCSA could not 

legally open the border to Mexican trucks until drug collection facilities in Mexico 

were monitored. But this is not even something that FMCSA has promised to do. 

USDOT does not monitor collection facilities in Mexico, according to the Inspector 

General’s most recent (March 10, 2008) report. Without monitoring of Mexican drug 

collection facilities, chain of custody could easily be compromised, testing may not 

be scientifically valid, collection facilities may not meet USDOT requirements and 

their collectors may not be trained. 

Nor is FMCSA educating Mexican employers about their responsibilities and U.S. 

standards for drug testing. The agency has a website that lists all the rules with 

which Mexican motor carriers must be familiar, but the site has no mention of the 

106 pages of USDOT drug and alcohol regulations. Those regulations govern employers’ responsibilities, such as standing down employees, making unannounced 

follow-up tests or respecting an employees’ procedural and privacy rights. 

I can only conclude that FMCSA ignores the problem of adequate drug and alcohol testing because it is too hard to solve. 

Another enormous problem that FMCSA can’t solve is the inadequacy of Mexico’s 

database of commercial drivers licenses. U.S. law requires state and Federal inspectors to ‘‘verify electronically the status and validity of the license of each driver of 

a Mexican motor carrier commercial vehicle crossing the border’’ for at least half of 

such vehicles. 

The Inspector General reported on Aug. 6, 2007, that state and Federal officials 

had checked the status of Mexican commercial drivers licenses over 19,000 times. 

In 18 percent of the queries, the result was ‘‘driver not found.’’ If the driver is not 

found, the status and validity of his license cannot be verified. Since FMCSA has 

produced no evidence that the Mexican commercial drivers license database can 

verify the status of every driver, the database must still be incomplete and inaccurate. 

Clearly there are gaping holes in the pilot program’s safety net. If a state trooper 

pulls over a Mexican driver, chances are one in six that a record of his license can’t 

be found. FMCSA failed to make sure the driver can speak English or that he’s free 

of drugs and alcohol or that the truck was checked at the border. 

There is one law that should have been fairly easy for FMCSA to follow—to inspect half of the Mexican carriers’ trucks on-site before letting them onto U.S. highways. 

There are only 55 trucks in the pilot program now. But FMCSA could not even 

inspect half of those trucks on-site. FMCSA only inspected the trucks that happened 

to be onsite during its pre-authority safety audit. 

I am astonished that FMCSA couldn’t make sure even a handful of Mexican 

trucks are safe. Not because I think FMCSA is interested in safety, but because I 

103 

think FMCSA needs to avoid the criticism that it’s letting dangerous trucks on our 

highways. There are many, many opponents of this program who would seize on any 

evidence that FMCSA can’t even monitor a small sample of Mexican trucks when 

it’s trying to prove that it can. After all, the pilot program is wildly unpopular with 

the public and with Congress. It is under intense scrutiny by the Inspector General. 

It is under review in Federal court. 

Given all that, I would think FMCSA would take some pains to make sure that 

the small number of trucks it admitted into the pilot program is safe. 

FMCSA could not even do that. 

Somehow FMCSA managed to allow Trinity Industries de Mexico—a company 

with an abysmal safety record—onto our highways. 

Opponents of the pilot program obtained Trinity’s horrible safety record from 

FMCSA’s own database, which is easy to find on the Internet. Opponents submitted 

that safety record to the 9th Circuit Court of Appeals as part of the lawsuit against 

the pilot program. Only after the public declaration was made did Trinity withdraw 

from the program on Feb. 1. 

The decision to allow Trinity’s dangerous trucks onto our highways strongly suggests that FMCSA is completely incapable of enforcing safety standards for even a 

few motor carriers. 

FMCSA Administrator John Hill told reporters on March 11 that Trinity’s safety 

violations were minor. That is not true. 

With 10 trucks that operate in the border zone, Trinity amassed 75 out-of-service 

orders and should have received another 476 in the year before the pilot program, 

according to Commercial Vehicle Safety Alliance standards. 

Under Federal law, trucks are placed out-of-service when an ‘‘imminent hazard’’ 

is present. The law defines ‘‘imminent hazard’’ as ‘‘any condition of vehicle, employee, or commercial motor vehicle operations which substantially increases the 

likelihood of serious injury or death if not discontinued immediately.’’ 

All of those failures to meet safety standards were documented by the Inspector 

General. Because the Inspector General did not verify that safety standards were 

met, it was therefore illegal to open the border to Mexican trucks under the pilot 

program. 

Nevertheless, Transportation Secretary Mary Peters defied the law. She gave the 

green light to the program just hours after the Inspector General’s Sept. 6 report 

was issued. 

My union has challenged the legality of the pilot program before the 9th Circuit 

Court of Appeals in San Francisco. Public Citizen, Sierra Club and the Owner-Operator Independent Drivers Association joined us in the case. Oral arguments were 

heard in the case on Feb. 12. We are awaiting a decision from the court. 

Our case was strengthened in December, when a law was passed cutting off funding for the cross-border trucking demonstration project. 

A few days after the pilot program started, a truck accident in Mexico killed more 

than 30 people. The Senate, concerned about safety, passed an amendment on Sept. 

12 that cut off funding for the pilot program. The vote was overwhelming: 75–23. 

No one questioned that the intent of the amendment was to stop the pilot program. Sen. John McCain, R–AZ, ardently supports cross-border trucking. He said 

the amendment would stop the program. 

FMCSA’s Hill acknowledged the program’s defeat. When the amendment passed, 

Hill said it was a ‘‘sad victory for the forces of fear and protectionism.’’ 

That should have been the end. The U.S. Supreme Court ruled in 1984 that ‘‘If 

the intent of Congress is clear, that is the end of the matter.’’ 

But then the Bush Administration decided to create its own reality by ignoring 

the clear intent of Congress. 

The amendment said: ‘‘None of the funds made available under this Act may be 

used to establish a cross-border motor carrier demonstration program to allow Mexico-domiciled motor carriers to operate beyond the commercial zones along the international border between the United States and Mexico.’’ 

That amendment became law on Dec. 26, when President Bush signed the Consolidated Appropriations Act of 2008. 

Shortly afterward, Secretary Peters announced through a spokesperson that she 

would ignore the law and keep the border open. 

Her rationale was a novel interpretation of the law. She said Congress only meant 

to cut off funds for a program that had already been established. 

Secretary Peters has been told by the Senate’s legal counsel and by a half dozen 

Members of Congress that she is in violation of the law. 

If Secretary Peters were right about the amendment—and she is not—the pilot 

program would be in violation of the laws listed above. It would also be in violation 

104 

of several other laws that were not identified by the Inspector General before the 

program started. 

The law (49 U.S.C. 31315(c)) says that FMCSA pilot programs can’t go forward 

unless certain criteria are met. Those include: 

• ‘‘A specific data collection and safety analysis plan that identifies a method for 

comparison.’’ There is none. 

• ‘‘A reasonable number of participants necessary to yield statistically valid findings.’’ After 6 months, the Inspector General reported there are only 16 Mexican 

trucking companies with 55 trucks participating. The Inspector General on 

March 10 reported that ‘‘no reliable statistical projections regarding safety attributes can be made at this point.’’ 

• ‘‘An oversight plan to ensure that participants comply with the terms and conditions of participation.’’ The Inspector General, again on March 10, reported that 

FMCSA had no such plan. The agency failed to implement a key quality control 

measure—a monthly analysis of a random 10 percent sample of Customs and 

Border Protection data to document that drivers and vehicles are being checked 

every time they cross the border. The Inspector General reported ‘‘FMCSA does 

not have assurance that it has checked every Mexican truck and driver that is 

participating in the project when they cross the border into the United States.’’ 

• ‘‘The safety measures in the project are designed to achieve a level of safety 

that is equivalent to, or greater than, the level of safety that would otherwise 

be achieved.’’ 

It is well established that the safety measures for Mexican trucks and drivers 

are lower than the level of safety that U.S. trucks and drivers must achieve. 

FMCSA has even acknowledged that there are differences between U.S. and 

Mexican safety laws, including commercial drivers’ license requirements, medical requirements, hours-of-service requirements and drug-testing procedures. 

(72 Federal Register notice 46263, Aug. 17, 2007). 

Mexican drivers don’t lose their commercial drivers licenses if they’re convicted 

for crimes in their own vehicles, as are U.S. drivers. 

Mexican drivers do not have mandatory safety training, as do U.S. drivers. 

Mexican drivers are not required to comply with U.S. hours-of-service laws 

while operating in Mexico, so a Mexican driver could drive 10 hours in Mexico 

and then another 11 hours in the U.S. 

Mexican drivers do not have to meet U.S. standards for pre-employment drug 

testing as do U.S. drivers. 

The Transportation Department under Secretary Peters’ leadership has repeatedly broken the law in its pursuit of the cross-border pilot program. 

It has also shown a pattern of secrecy and deception. 

No announcement was made about the department’s intention to open the border 

on Sept. 6, 2007 until after the Teamsters found out and made it public. The 

FMCSA then stonewalled journalists for several days until it finally admitted its intentions. 

Requests for information about how USDOT developed plans for the pilot program 

have been denied. Information about the participating companies has not been made 

public, nor have copies of equivalent Mexican motor carrier and motor vehicle laws. 

What is perhaps more disturbing than the DOT’s secrecy is its dishonesty. Secretary Peters has told Congress ‘‘There are no exceptions to safety regulations for 

trucks or drivers from Mexico.’’ But that is demonstrably not true. 

She has claimed, ‘‘Every truck and every driver are checked every time they cross 

the border.’’ But as the Inspector General pointed out, the Secretary has no way of 

knowing that. 

She has claimed, ‘‘The current safety record of the participating trucks in the 

demonstration program is better than that of the U.S. trucking fleet.’’ But there are 

not enough participants in the program to determine whether that is true. 

She has claimed that safety is at the heart of all that is done at USDOT, and 

that it is foremost in their minds as the cross-border trucking program is developed. 

But that is clearly false. 

She has claimed that opening the borders to Mexico will benefit the U.S. consumer by lowering the cost of goods. But that is sheer casuistry. 

Part of the cost of trucking goods goes to safety. Consumers pay more because 

trucking companies have to pay for truck inspections; drivers’ physical exams, safety 

training, drug tests, living wages; anti-lock brakes, adequate lighting, safe tires. 

What Secretary Peters is proposing is lowering the cost of goods by lowering safety standards—by opening our borders to Mexican trucks and Mexican drivers that 

105 

don’t meet our safety standards. If she succeeds, and I hope and pray she does not, 

the result will be a lowering of safety standards for all U.S. trucks, all U.S. drivers 

and all U.S. motorists. 

Of all the specious claims that Secretary Peters has made, the one I find most 

galling is her statement that opening the border to dangerous trucks from Mexico 

is ‘‘working significantly in favor of U.S. truckers.’’ 

I represent hundreds of thousands of U.S. truckers. The Teamsters’ allies represent hundreds of thousands more. I assure you not one of them thinks this program works in favor of them. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. BYRON L. DORGAN TO

HON. CALVIN L. SCOVEL III 

Question 1. Please investigate the circumstances surrounding the withdrawal of 

Trinity Industries of Mexico from the cross-border program. Specifically, please report on the following: 

a. Why was Trinity preapproved for participation in the cross-border pilot program when the company had a prior record of over 100 safety violations per 

truck, per year, for vehicles involved in traffic within the buffer zone? 

b. When did the Department of Transportation first become aware of Trinity’s 

record of safety violations? 

c. Did the Department of Transportation request that Trinity withdraw from 

the pilot program? 

i. If not, why not? 

ii. If so, did DOT also revoke Trinity’s operating authority within the buffer 

zone? 

d. How does the withdrawal of one of the largest carriers in the pilot program, 

after being cited for numerous safety violations, affect the sampling validity of 

the pilot program? 

i. Does DOT plan to factor Trinity’s record of safety violations into the results of the pilot program? 

ii. If not, is it not true that the withdrawal of a large carrier with a record 

of safety violations would inflate the perceived safety record of the remaining pilot program participants? 

Question 2. Please review the information complied by the Owner-Operator Independent Drivers Association regarding the safety records of Mexican carriers approved for the pilot program, and determine whether there were carriers other than 

Trinity with a poor safety record that were nonetheless approved. 

Answer. In response to the concern raised at the hearing over the safety of Mexico-domiciled carrier, Trinity Industries, Inc., we have revised our current audit 

work to include a more detailed review of that specific carrier. As Inspector General 

Scovel stated at the March 11, 2008 hearing we will address the questions posed 

by the Committee in our upcoming final report on demonstration project that is due 

60 days after the project completion, as required under Section 6901 of the U.S. 

Troop Readiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act of 2007. 

Specifically, we will review and comment on: (1) Trinity’s safety history, (2) Trinity’s withdrawal from the demonstration program, and (3) the impact of Trinity’s 

withdrawal on the demonstration project. We will accomplish this work by reviewing safety performance data, such as inspection records, crash data, and safety ratings, as well as soliciting interviews from the appropriate sources to better understand the carrier’s withdrawal from the program. We will consult with our statistician to understand what impact the carrier’s withdrawal might have had on data 

sufficiency and the ability to yield statistically valid results. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. BYRON L. DORGAN TO

HON. MARY E. PETERS

Question 1. Please explain in detail the FMCSA’s standards and procedures for 

determining whether Mexican drivers involved in the cross-border pilot program are 

proficient in English. As part of your explanation, provide answers to the following: 

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a. Provide copies of any and all written guidelines or instructions given to 

FMCSA inspectors regarding English proficiency tests for Mexican drivers in 

the cross-border pilot program. 

b. Provide a monthly tally of the numbers of drivers tested for English proficiency since the pilot program began, and the pass/fail ratio for each month. 

c. Explain in detail why FMCSA provided guidance to its inspectors that in the 

test involving recognition of road signs, it would be acceptable for drivers to respond in a language other than English. 

d. Identify any other aspect of the English proficiency test wherein it is acceptable for drivers to respond in a language other than English. 

Answer. 49 CFR 391.11(b)(2) provides a person shall not drive a commercial motor 

vehicle in the United States unless that person can read and speak the English language sufficiently to converse with the general public, to understand highway traffic 

signs and signals in the English language, to respond to official inquiries, and to 

make entries on reports and records. 

On July 20, 2007, FMCSA issued a policy memorandum providing guidance to 

FMCSA and state and local level enforcement personnel conducting North American 

Standard Driver/Vehicle Inspections to determine whether drivers are able to communicate sufficiently to understand and respond to official inquiries and directions 

in English. 

The policy guidance required a determination of a driver’s ability to communicate 

in English sufficiently to understand and respond to official inquiries and directions 

made by the commercial motor vehicle (CMV) inspector on the basis of a driver 

interview conducted by the inspector during the driver/vehicle inspection. The interview must be conducted in English. 

On February 1, 2008, FMCSA issued a supplement to the English language proficiency policy incorporating an assessment of the driver’s ability to understand common United States highway traffic signs. Under this policy, an enforcement officer 

will conduct an assessment by randomly selecting four signs from a list of signs and 

asking the driver to explain the meaning of three of the four signs. The driver is 

allowed to explain the meaning in any language provided the enforcement officer 

can understand the language. This assessment, and indeed the remainder of the inspection, may be conducted in a language other than English because: (1) the driver’s English proficiency has already been sufficiently demonstrated; and (2) it allows 

the remainder of the inspection to be conducted in the most efficient manner possible. 

In summary, the English language proficiency policy contains two distinct assessments; the ability to speak English, and the ability to understand highway traffic 

signs. The assessment of the driver’s ability to speak English is conducted first. If 

the driver participating in the border demonstration project is unable to demonstrate an ability to speak English, the driver is placed out-of-service and not allowed to operate in the U.S. In this case, no assessment of the driver’s ability to 

understand common highway traffic signs is conducted. The assessment of the driver’s ability to understand common highway traffic signs is only conducted if the 

driver has successfully demonstrated an ability to speak English. 

Attachments: 

1. Policy memorandum dated July 20, 2007. 

2. Policy attachment dated February 1, 2008. 

3. Table showing monthly totals of drivers tested for English language proficiency and the number of violations (fail) of 49 CFR 391.11(b)(2). 

Question 2. You testified at an oversight hearing of the Commerce Committee on 

February 28. In answer to a question about the cross-border program, you stated 

that ‘‘we are not implementing a program. We are not establishing a program. We 

are continuing a program that was established prior.’’ 

a. Does that mean that DOT is claiming that the cross-border pilot program was 

both ‘‘established’’ and ‘‘implemented’’ prior to the passage of the Omnibus Appropriations Act? 

b. If so, does that mean that it was DOT’s intention all along to continue with 

the pilot program even if the omnibus language had contained the words ‘‘establish’’ and ‘‘implement’’? 

Answer. The Department does not claim that it both ‘‘established’’ and fully ‘‘implemented’’ the cross-border demonstration program prior to the enactment of the 

2008 Omnibus Appropriations Act. The cross-border demonstration program was established in September 2007—well before enactment of the current Appropriations 

Act on December 26, 2007. The Department’s implementation of the cross-border 

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demonstration program is ongoing and our implementation actions and activities 

are not prohibited by the appropriations provision that precludes the use of funds 

‘‘to establish’’ a cross-border demonstration program. Consistent with the Appropriations Act prohibition in section 136, the Department’s Federal Motor Carrier Safety 

Administration (FMCSA) has not established any new cross-border demonstration 

programs with Mexico and, in compliance with section 136, will not do so. 

In answer to the particular question whether it was the Department’s intention 

to continue with the demonstration project even if the appropriations language had 

contained the words ‘‘establish’’ and ‘‘implement,’’ as did section 410 of H.R. 3074, 

as passed by the House of Representatives on July 24, 2007, the Department would 

have abided by the plain meaning of the legislative language and would not have 

continued to implement the previously established cross-border demonstration 

project. It is our position that we are fully complying with sections 135 and 136 of 

the 2008 Omnibus Appropriations Act. 

Question 3. You have indicated that the Department of Transportation may extend the current cross-border pilot program into FY 2009. If Congress were to once 

again move to cut off funds for the ongoing pilot program, is there any statutory 

language that the Department of Transportation would be willing to honor? 

a. If so, please suggest specific language that the Department would feel bound 

to respect. 

b. If not, please explain whether you believe that the U.S. Congress does not 

have the Constitutional authority to cut off funds for a specific program of the 

Department of Transportation. 

Answer. The Department certainly recognizes the Constitutional power of the 

Congress to appropriate funds and prescribe the conditions governing the use of 

Federal funds. As I acknowledge in my response to the previous question, the future 

enactment of an appropriations provision barring the Department’s use of appropriated funds to ‘‘establish or implement’’ or ‘‘implement’’ the cross-border demonstration project would preclude the Agency from obligating funds for the project. 

We also note that Congressional appropriations language frequently bars agencies 

from expending funds for particular programs and activities. For example, a provision in the same title of the 2008 Omnibus Appropriations Act in which the section 

limiting the use of funds ‘‘to establish’’ a cross-border demonstration project appears 

prohibits the use of funds to either ‘‘establish or implement a program under which 

Essential Air Service communities are required to assume subsidy costs commonly 

referred to as the EAS local participation program.’’ (section 103, division K, title 

I, Pub. L. 110–61). Clearly, when Congress seeks to prohibit the use of funds to either establish or implement a program or project, it has enacted appropriate legislative language to accomplish this result. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. MARK PRYOR TO

HON. MARY E. PETERS

Question 1. What steps has Department of Transportation taken to develop programs to meet the requirements of Section 703 of the Port Security Act (Public Law 

109–347) signed into law in October 2006? Will the Department meet these safety 

requirements by the end of April? 

Answer. Section 703, Trucking Security, of the Security and Accountability For 

Every Port Act of 2006 (SAFE Port Act), requires the Federal Motor Carrier Safety 

Administration (FMCSA) to implement requirements from two U.S. Department of 

Transportation, Office of Inspector General (OIG) reports: 

1. June 4, 2004 Memorandum: Need to Establish a Legal Presence Requirement 

for Obtaining a Commercial Driver’s License (Control No. 2004–054). 

• The report recommended that FMCSA establish a ‘‘legal presence’’ requirement 

for obtaining a CDL. 

• The report provides that all CDL applicants should demonstrate either citizenship or lawful permanent residence in the U.S. before a State may issue a CDL. 

2. February 7, 2006 Memorandum: Report on Federal Motor Carrier Safety Administration Oversight of Commercial Driver’s License Program (Report Number 

MH–2006–037). 

• The report contains three broad recommendations to detect and prevent fraudulent testing and licensing activity in the CDL program: 

a. Direct the States to report on the final disposition of all suspect drivers 

identified by the States. These disposition reports should emphasize, but 

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not necessarily be limited to, instances where there is specific or direct evidence that the driver participated in a fraudulent activity to obtain the 

CDL. 

b. Determine that State CDL programs are out of compliance, under Federal regulations, if the State fails to impose adequate internal controls to 

prevent fraud or fails to take or propose necessary corrective action. 

c. Impose sanctions, under Federal regulations, against those States that fail to 

establish adequate fraud control measures for their CDL programs. 

The FMCSA is addressing the OIG and Port Security Act requirements in an ongoing Notice of Proposed Rulemaking (NPRM) titled, ‘‘The Commercial Driver’s License Testing and Commercial Learner’s Permit Standards.’’ The NPRM was published on April 9, 2008. 

Question 2. Are Mexican carriers required to register with the IRP and pay apportioned registration fees to the states as our U.S. carriers pay? 

Answer. Mexican carriers are required to comply with all U.S. vehicle registration 

requirements. They have the option to purchase State trip permits or pay full registration fees in each U.S. and Canadian jurisdiction just as U.S. and Canada-domiciled motor carriers do. If they operate in more than one State, they will be able 

to pay the registration fees through the International Registration Plan (IRP) in one 

of the four southern Border States. These States are acting as ‘‘host’’ States for all 

Mexico-domiciled motor carriers for IRP purposes and are prepared to register them 

as they receive operating authority. If they operate in only one State, they will be 

required to register their vehicles with and pay the vehicle registration fee to the 

State in which they operate. 

FMCSA has provided funding to the four southern Border States to assist them 

in preparing to register Mexico-domiciled motor carriers. 

FMCSA routinely provides information on Mexico-domiciled motor carriers participating in the demonstration project to the four southern Border States and to IRP, 

Inc. 

Fees collected by the host States will be distributed, in accordance with IRP bylaws, to all other IRP member States, including Arkansas, in which the motor carrier operates. 

Question 3. How should Arkansas or other states for that matter, collect taxes 

that are unique to their state? Will the USDOT provide to the states the names of 

all Mexican carriers, their mileage through each state, their addresses, and will 

non-payment of a state tax constitute a reason to expel a Mexican carrier from U.S. 

markets? 

Answer. States collect taxes from Mexico-domiciled motor carriers in the same 

manner as are taxes collected from U.S. or Canadian motor carriers operating in 

the State. Arkansas imposes an ad valorem tax on motor carriers with authority to 

operate in the State. Enforcement is done at the roadside. If a motor carrier does 

not pay the tax, any of its vehicles stopped for routine inspection and weighing are 

not allowed to continue until the tax is paid. 

The U.S. Department of Transportation routinely provides information on the 

Mexico-domiciled motor carriers participating in the border demonstration project to 

Arkansas and other States through IRP, Inc. Additionally, the information is published in the Federal Register and available on the Internet at http:// 

www.fmcsa.dot.gov/cross-border/cross-border-carriers.htm. IRP, Inc. will provide 

States information regarding carriers registered to travel in each State in accordance with the IRP, Inc by-laws. 

Question 4. In October 2006, a national safety organization filed a Freedom of Information Act (FOIA) request for all records relevant to DOT preparing a pilot program or demonstration project to allow long-haul Mexican truck operations. The 

DOT granted the request. Yet, the DOT has made no records available for inspection after an entire year and a half. Where is DOT in providing the documents requested? 

Answer. In October 2006, the Advocates for Highway and Auto Safety (AHAS) requested pursuant to the Freedom of Information Act (FOIA) the following: 

• All records regarding any and all FMCSA activities to formulate, develop, evaluate, implement, or otherwise consider any effort, plan, initiative, pilot program 

or other program intended to evaluate any Mexican-domiciled motor carriers 

that would be permitted by FMCSA to operate beyond the current U.S. municipalities and commercial zones on the U.S.-Mexico border. 

• All records that discuss, evaluate, consider or refer to how such an effort, plan, 

initiative, pilot program or other program for evaluating any Mexico-domiciled 

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1These motor carriers are commonly known as ‘‘long-haul’’ carriers. 

motor carriers operating beyond the current U.S. municipalities and commercial 

zones on the U.S.-Mexico border complies with the funding restriction of Section 

350(a) of the Fiscal Year 2002 U.S. Department of Transportation and Related 

Agencies Appropriations Act, Pub. L. 107–87 (Dec. 18, 2001). 

• All records that consider, discuss, evaluate, or refer to the specific policy considerations, decisions, and actions by the FMCSA and the U.S. Department of 

Transportation for how any such pilot program or other program, plan, or initiative for evaluating some Mexico-domiciled motor carriers operating beyond the 

current U.S. municipalities and commercial zones on the U.S.-Mexico border 

complies with each specific requirement set forth in sections 350(a) and (b) of 

the Fiscal Year 2002 U.S. Department of Transportation and Related Agencies 

Appropriations Act cited above. 

In responding to this complex FOIA request, FMCSA coordinated with over 20 offices and divisions, including offices located in the field, that produced over 300,000 

pages as potentially responsive for consideration and processing by the FOIA office. 

This FOIA response set a new precedent for FMCSA since the average FOIA response generally consists of a few dozen to a few hundred documents. 

Due to the small size of the FOIA Office and the large number of documents involved with this request, the FMCSA FOIA Office procured a contractor to develop 

a system to assist FMCSA in organizing the materials in order to methodically review each document. As a result of the system developed, currently, FMCSA has determined that of the initially identified 300,000 pages, over 80,000 pages appear to 

be responsive to the AHAS FOIA request. FMCSA continues to process these pages 

and plans to begin releasing responsive records as quickly as possible. 

Since October 2006, in addition to the AHAS FOIA request, FMCSA has received 

21 FOIA requests for information or pages that relate to Mexico-domiciled motor 

carriers operating beyond U.S. commercial zones. FMCSA has answered, released 

pages or provided information for 20 of the 21 requests; however, none of these requests have involved a significant number of pages, as with the AHAS request. 

ATTACHMENT 1 

Memorandum 

U.S. Department Of Transportation 

Federal Motor Carrier Safety Administration 

July 12, 2007 

MC–ECE–0026–06 

Subject: Action: Requirements for Inspection of Mexico-domiciled Carriers Operating 

under the Cross-Border Demonstration Project 

From: William Quade 

Acting Associate Administrator for Enforcement and Program Delivery 

To: Assistant Administrator and Chief Safety Officer 

Associate Administrator for Field Operations 

MC–E Office Directors/Division Chiefs 

Office of Chief Counsel, Enforcement and Litigation 

Field Administrators/Service Center Directors 

Division Administrators/State Director 

National Enforcement Team 

National Training Center 

Reply to Attn. of: MC–ECE 

Purpose 

This memorandum provides guidance to the Federal Motor Carrier Safety Administration (FMCSA) and State enforcement personnel to: (1) Ensure that every commercial motor vehicle (CMV) operated by Mexico-domiciled motor carriers granted 

provisional operating authority for transportation beyond United States municipalities and commercial zones on the United States-Mexico border 1 is inspected upon 

each entry into the United States; and (2) Enforce the regulatory requirement that 

every Mexico-domiciled long-haul CMV display a current Commercial Vehicle Safety 

Alliance (CVSA) inspection decal while operating in the United States. 

Background 

Section 350(a)(5) of the Fiscal Year 2002 U.S. Department of Transportation 

(DOT) Appropriations Act directs FMCSA to require all long-haul Mexico-domiciled 

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2See Mexican Licencia Federal Enforcement Policy dated October 24, 2001 and Mexican 

Licencia Federal de Conductor Enforcement Policy Clarification dated November 25, 2006. 

CMVs to display a current CVSA inspection decal when operating in the United 

States until the motor carrier operating the CMV has held permanent operating authority from FMCSA for at least 3 consecutive years. 

On March 19, 2002, FMCSA published two interim final rules necessary for implementation of the North American Free Trade Agreement: 49 CFR Part 365—Application by Certain Mexico-Domiciled Motor Carriers to Operate Beyond United 

States Municipalities and Commercial Zones on the United States-Mexico Border; 

and 49 CFR Part 385—Safety Monitoring System and Compliance Initiative for 

Mexico-Domiciled Motor Carriers Operating in the United States. Both rules impose 

inspection and CVSA decal requirements on Mexico-domiciled, long-haul motor carriers. 

Under 49 CFR section 385.103(a), each Mexico-domiciled, long-haul motor carrier 

operating in the United States will be subject to an oversight program to monitor 

its compliance with applicable Federal Motor Carrier Safety Regulations (FMCSRs), 

Federal Motor Vehicle Safety Standards, and Hazardous Materials Regulations. It 

requires that each Mexico-domiciled carrier granted provisional operating authority 

under part 365 have on every CMV it operates in the United States a current decal 

attesting to a satisfactory inspection by a certified inspector. 

Section 350(a)(5) of the FY 2002 Appropriations Act requires all Mexico-domiciled 

commercial vehicles seeking authority to operate beyond the border commercial 

zones to pass a CVSA Level I inspection and be issued a decal to that effect, and 

49 CFR 385.103(c) requires such vehicles to display a currently-valid CVSA decal 

while operating in the United States. Taken together, these provisions implicitly authorize FMCSA and its State partners to place a Mexico-domiciled vehicle out-ofservice (OOS) for failure to display the required CVSA decal. Any other conclusion 

would prevent Federal and State inspectors from ensuring that Mexico-domiciled vehicles remain continuously in compliance with all applicable safety standards. A 

number of inspection and OOS scenarios are described below. 

Operating Authority 

There are two types of Mexico-domiciled motor carrier authority. 

• For operations within the United States municipalities and commercial zones, 

a Mexico-domiciled motor carrier may obtain a Certificate of Registration. 

• For operations beyond the United States municipalities and commercial zones, 

a Mexico-domiciled motor carrier may obtain Operating Authority. 

A Mexico-domiciled motor carrier may not hold both types of authority concurrently. Therefore, when a Mexico-domiciled motor carrier is issued operating authority to operate beyond the United States municipalities and commercial zones, each 

CMV operated in the United States must display a current CVSA inspection decal 

(including those that continue to operate exclusively in the commercial zones). 

USDOT Number Identification 

When FMCSA grants operating authority to a Mexico-domiciled motor carrier, it 

is assigned a distinctive USDOT number. This USDOT number includes a suffix to 

identify the type of authority the motor carrier has been issued. 

• X—Motor carriers authorized to operate beyond the United States municipalities and commercial zones will be assigned a USDOT number that ends with 

the letter X. 

• Z—Motor carriers authorized to operate within the United States municipalities 

and commercial zones will be assigned a USDOT number that ends with the 

letter Z. 

These motor carriers are subject to the marking requirements in 49 CFR section 

390.21, and should be cited accordingly if the suffix is not included in the vehicle 

markings. Enforcement actions for violations of section 390.21 are recommended. 

Commercial Driver’s License Requirement 

Every Mexico-domiciled CMV (as defined in 49 CFR section 383.5) driver who is 

subject to commercial driver’s license requirements in 49 CFR Part 383 will undergo 

a license verification check upon entry into the United States, in accordance with 

procedures outlined within the Licencia Federal enforcement policy.2

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3 Customs and Border Protection and FMCSA have committed to coordination of screening and 

inspection of Mexico-domiciled CMV and drivers entering the United States as part of the Demonstration Project. 4The CVSA Executive Committee has approved this out-of-service requirement for inclusion 

in the North American Standard Administrative Out-of-Service Criteria. 5 Critical Vehicle Inspection Items are defined within the North American Standard Truck Inspection Procedures. 

English Language Proficiency Requirement 

Every Mexico-domiciled CMV (as defined in 49 CFR section 390.5) driver will undergo an assessment to determine whether the driver meets the requirements of 49 

CFR section 391.11(b)(2). Guidance for performing the English language proficiency 

assessment will be outlined in the forthcoming policy memorandum titled: Action: 

Placing Drivers Out of Service for Violating 49 CFR Section 391.11(b)(2)—English 

Language Proficiency (MC–ECE–0005–07). 

Policy 

1. Inspection Upon Entering the United States 

The FMCSA Division Administrators (DAs) are responsible for ensuring every 

Mexico-domiciled CMV entering the United States required to display a USDOT 

number ending in ‘‘X’’ is subject to a CVSA Inspection Decal Compliance Check. 

During this compliance check, the inspector must verify that the power unit and 

trailer (if applicable) display a current CVSA inspection decal. In addition, the inspector will ensure the driver possesses a valid Licencia Federal de Conductor and 

meets the requirements of section 391.11(b)(2). 

This effort will require coordination between the DAs, State agencies and Customs and Border Protection 3 performing operations at the same ports of entry. Any 

of these agencies may perform the screening of a vehicle to identify CMVs required 

to display a USDOT number ending in ‘‘X.’’ However, the DAs are ultimately responsible for ensuring every vehicle required to display a USDOT number ending 

in ‘‘X’’ entering the United States is subject to a CVSA Inspection Decal Compliance 

Check, and its driver is subject to a driver license verification check and an English 

language proficiency assessment. Those vehicles not displaying a current CVSA inspection decal must be inspected and a CVSA inspection decal issued to those that 

pass before they are allowed to proceed. 

The inspector (Federal or State) must obtain and record the information on the 

CVSA Inspection Decal Compliance Check record (see attachment), which will be 

used for reporting purposes. Each week, the inspector must submit the compliance 

check records via e-mail as a Microsoft Word or scanned document, to the DA of 

their State, or his/her designee. The DAs, or their designees, will transfer the information from the compliance check records into the Excel spreadsheet template provided. The Excel spreadsheet must be sent weekly via e-mail to the North American 

Borders Division Chief, or his or her designee. 

Discovery of an ‘‘X’’ motor vehicle without a CVSA inspection decal at the Southern 

Border or in the United States beyond the Southern Border Ports of Entry. 

The following guidance and procedures will ensure that all Mexico-domiciled, 

long-haul CMVs are inspected and display a current CVSA inspection decal. If a 

CMV does not display a current CVSA inspection decal the inspector should follow 

the inspection and enforcement guidance below: 

Scenario 1 

• Inspection of a CMV Not Displaying a Current CVSA Inspection Decal at a 

Southern Border Port of Entry. 

» Conduct a Level I inspection and refer to the enforcement guidance below. 

Scenario 2 

• Inspection of a CMV Not Displaying a Current CVSA Inspection Decal operating in the United States beyond the Southern Border Ports of Entry. 

» Conduct a Level I inspection and place the vehicle out-of-service (OOS) for 

failing to display a current CVSA inspection decal as required.4

» If one or more critical vehicle inspection items 5 are discovered, record the violation of failing to display a current CVSA decal as required. also record the 

critical vehicle inspection item(s) and any other vehicle defect discovered. 

Affix an OOS sticker on the appropriate vehicle(s), inform the driver of the 

OOS defect(s). 

112 

» If no critical vehicle inspection items are discovered, record the OOS violation 

of failing to display a current CVSA inspection decal as required on the 

ASPEN inspection report using the violation citation and description below. 

Remove the OOS sticker, issue a CVSA inspection decal and annotate in the 

ASPEN software the verification of the OOS violation repair. 

» Refer to the enforcement guidance below. 

• Violation Cites for Not Displaying a Current CVSA Inspection Decal 

» 49 CFR section 390.3(e)(1)/385.103(c)—Failing to comply with all applicable 

regulations contained in 49 CFR Parts 350–399/Failing to display a current 

CVSA decal as required. 

2. Enforcement guidance for vehicles not displaying a current CVSA Inspection Decal 

» Record the violation of failing to display a current CVSA decal as required 

and any other vehicle defect(s) discovered. Affix an OOS sticker on the appropriate vehicle(s). 

» If the inspector who performed the initial inspection is available for re-inspection of the vehicle(s), verify that the defect(s) have been repaired, annotate 

in the ASPEN software the verification of the repairs and issue a CVSA inspection decal. The vehicle(s) may now be allowed to proceed out of the inspection area. 

» If the same inspector is not available, the subsequent inspector must complete 

a Level I inspection, note that the previous OOS item(s) was corrected, annotate in the ASPEN software verification of the repair and issued a CVSA inspection decal. The vehicle(s) may now be allowed to proceed out of the inspection area. 

Note: The Secretariat of Communications and Transportation Mexico and the U.S. 

Department of Transportation committed to the prompt correction of readily repairable OOS defects on otherwise properly functioning and compliant vehicles. Therefore, it is the obligation of the DAs to ensure timely re-inspection of Mexico-domiciled CMVs placed OOS, whether the re-inspection is performed by a State or Federal inspector. 

• Enforcement Actions for Not Displaying a Current CVSA Inspection Decal 

» Enforcement actions should be initiated when a CMV is discovered to be operating in the United States beyond the Southern Border Ports of Entry with 

the following exception: 

• Trailers picked up within the United States and transported to Mexico. 

State enforcement personnel should pursue appropriate State enforcement action 

for the OOS violation. If the jurisdiction does not have the authority then initiate 

Federal enforcement action by obtaining the proper documents and forward them 

to the FMCSA Division office for processing. 

Implementation Date 

This memorandum is effective immediately. 

If you have any questions or need additional information, please contact the Enforcement and Compliance Division at (202) 366–9699. 

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ATTACHMENT


311PETE2.eps
114 

ATTACHMENT 2 

Memorandum 

U.S. Department of Transportation 

Federal Motor Carrier Safety Administration 

February 1, 2008 

Subject: Action: 49 CFR Section 391.11(b)(2) English Language Proficiency 

Reply to Attn. of: MC–ESB 

From: William A. Quade 

Associate Administrator for Enforcement and Program Delivery 

To: Assistant Administrator and Chief Safety Officer 

Associate Administrator for Field Operations 

MC–E Office Directors/Division Chiefs 

Office of Chief Counsel, Enforcement and Litigation 

Field Administrators/Service Center Directors 

Division Administrators/State Director 

National Enforcement Team 

National Training Center 

Purpose 

This policy memorandum supplements the previously issued policy concerning enforcement of Section 391.11(b)(2) regarding English language proficiency. This policy 

incorporates an assessment of a driver’s ability to understand common United 

States (U.S.) highway traffic signs. 

Background 

On July 20, 2007, the Acting Associate Administrator for Enforcement and Program Delivery issued a policy memorandum titled, ‘‘Placing Drivers Out of Service 

for Violating 49 CFR Section 391.11(b)(2) English Language Proficiency,’’ Policy 

Number MC–ECE–0005–007. The policy provided guidance and an assessment tool 

to confirm a driver’s ability to communicate in English sufficiently to understand 

and respond to official inquiries and directions. It did not confirm a driver’s understanding of U.S. highway signs. 

Policy 

A driver’s ability to understand U.S. highway traffic signs will be confirmed following the driver interview. 

Determining a Driver’s Ability to Understand Highway Traffic Signs 

Inspectors should take the following steps to assess the driver’s ability to understand U.S. highway traffic signs: 

1. Explain to the driver that he or she must be able to understand the meaning 

of U.S. highway signs. 

2. The inspector will randomly select four signs from the attached list of signs. 

3. The inspector will ask the driver to explain the meaning of the four selected 

highway signs. (Note: The driver’s explanation may be in any language, provided the inspector is able to understand the driver’s explanation.) 

4. Failure to satisfactorily explain the meaning of at least three of the four signs 

will result in a violation of section 391.11(b)(2). 

When an inspector determines a driver is not able to understand U.S. highway 

traffic signs: 

The inspector will be required to cite the violation of 391.11(b)(2), and manually 

amend the violation description as follows: 

• Select the base violation 391.11(b)(2); 

• Amend the violation description to read: ‘‘Driver must be able to understand 

highway traffic signs and signals in English language’’; and 

• DO NOT activate the Out-of-Service designation. 

The ASPEN inspection software will be modified in March 2008 and updated with 

the following citation: 391.11(b)(2)S—Driver must be able to understand highway 

traffic signs and signals in the English language. Until this violation is programmed 

in ASPEN, inspectors should follow the guidance above. 

Applicability 

This policy applies to all interstate drivers operating in the U.S. 

115 

Effective Date 

All Federal inspectors will begin implementing this policy immediately for all 

commercial vehicle drivers entering the U.S. from Mexico. Additionally, the policy 

will be implemented for all other commercial vehicle drivers operating in the U.S. 

when the inspector determines the driver’s ability to understand U.S. highway traffic signs may be limited. 

State inspectors should also be encouraged to implement this policy. However, the 

decision to implement by State inspectors will be at the discretion of the State agency. 

The Federal Motor Carrier Safety Administration is working with the Commercial 

Vehicle Safety Alliance to develop a comprehensive policy on 49 CFR 391.11(b)(2). 

Once developed, the policy will provide uniform enforcement by Federal and State 

inspectors. 

If you have any questions or comments regarding this document, please contact 

the Enforcement and Compliance Division at 202–366–9699. 

ATTACHMENT


311PETE3.eps
116 

ATTACHMENT 3 

Comparison Report, Total and Commercial Zone Inspections, Violations 

Number of inspections conducted in the border commercial zone by month from 

September 2007 to present. 

Total inspections 

Total 

inspections in 

commercial zone 

Month Year 

292,165 33,957 Sep. 2007 

300,614 35,762 Oct. 2007 

262,365 34,942 Nov. 2007 

237,867 31,472 Dec. 2007 

279,611 35,634 Jan. 2008 

260,748 35,851 Feb. 2008 

197,026 23,367 Mar. 2008 

1,830,396 230,985 

Number of violations noted on the above inspection reports for 391.11(b)(2) by 

month. Distinguish between all inspections total and commercial zone. 

Total violations 

Total 

violations in 

commercial zone 

Month Year 

4,187 3,587 Sep. 2007 

5,325 4,693 Oct. 2007 

4,855 4,352 Nov. 2007 

4,130 3,712 Dec. 2007 

5,205 4,755 Jan. 2008 

6,188 5,791 Feb. 2008 

4,413 4,134 Mar. 2008 

34,303 31,024 

Number of Out-of-Service (OOS) violations noted on above inspection reports for 

391.11(b)(2) by month. Distinguish between all inspections total and commercial zone 

inspections total. 

Total OOS Violations 

Total OOS 

violations in 

commercial zone 

Month Year 

452 188 Sep. 2007 

526 217 Oct. 2007 

431 178 Nov. 2007 

330 145 Dec. 2007 

331 130 Jan. 2008 

409 187 Feb. 2008 

237 84 Mar. 2008 

2,716 1,129 

RESPONSE TO WRITTEN QUESTION SUBMITTED BY HON. BYRON L. DORGAN TO

PAUL D. CULLEN, SR. 

Question. Please submit for the record the results of the research conducted by 

compiled by the Owner-Operator Independent Drivers Association on Mexican carriers that were approved for the pilot program despite a poor safety record. 

Answer. [Mr. Cullen’s response is a series of three documents which are retained 

in Committee files.] 

Æ