For years, I have been told the reluctance of the U.S. Federal Motor Carrier Safety Administration (FMCSA) to open the southern border to Mexican carriers has revolved around the issue of safety. Now, as the U.S. readies itself for Mexican carriers doing business in international commerce with its NAFTA trading partners, the FMCSA and the Department of Transportation (DOT) have announced new measures that will have some effects on Canadian carriers as well.

The DOT has announced the intention to quadruple the number of safety auditors, safety investigators and safety inspectors, for new measures that are slated to take effect in 2003. One measure involves operating equipment. All U.S.-manufactured equipment must meet Federal Motor Vehicle Safety Standards (FMVSS). Canadian-manufactured equipment complies with the Canadian Motor Vehicle Safety Standards (CMVSS), which are comparable to U.S. safety requirements in almost all respects. However, Mexico does not have a series of motor vehicle safety standards similar to the FMVSS and CMVSS.

Accordingly, Mexican carriers operating Mexican-manufactured equipment will be required to carry a certification of compliance with the FMVSS. In order to provide equal treatment to Canadian carriers, the DOT will require Canadian vehicles to bear a certificate of compliance with the FMVSS, as well.

Because of the similarity of the Canadian and U.S. safety regulations, it is anticipated that Canadian carriers will be able to obtain certification in most cases easily. Enforcement would be accomplished through roadside inspections, and carriers currently operating in the U.S. would be allowed 24 months to bring their vehicles into compliance. However, any new equipment introduced into service in the U.S. will be required to display the necessary certification label at the time of entry.

More significant are the new rules regarding carriers seeking operating authority in the U.S. for the first time. Although the new rules are designed to deal with Mexican carriers doing business in the U.S. for the first time, the rule will affect all “new entrants” into the U.S., including new applications for operating authority by U.S. and Canadian carriers. The new system establishes an 18-month provisional period during which the carrier will undergo safety monitoring and an on-premises safety audit. In order to receive permanent DOT registration, the carrier must successfully complete the safety monitoring and audit.

The safety audit is not limited to vehicle safety inspections. The regulations require carriers operating in the U.S. to have a drug and alcohol testing program, a system of compliance with U.S. federal hours-of-service requirements, adequate data and safety management systems, and valid insurance with a U.S. registered insurance company.

If the results of the safety audit are unsatisfactory, the DOT will provide the carrier written notice that its authority will be revoked and operations placed out of service unless corrective action is taken within 60 days (45 days for hazardous materials carriers and passenger bus operations). The time period can be extended, if cause is shown, and there are administrative review procedures for unfavorable decisions.

The new regulations focus on new entrants to the U.S. motor carrier landscape, but don’t be surprised if the safety audit system will eventually turn to U.S. and Canadian carriers currently operating in the U.S.

A “new entrant” is not necessarily a new carrier with inexperienced drivers.

If the proposed audit system discovers problems that are likely to exist within established carriers, I would expect the DOT to consider a system where every carrier is subject to some sort of more formal periodic review.

– Daniel Joyce can be reached at Hirsch and Joyce, Attorneys at Law, at 716-564-2727.