Last year was marked by significant rule changes for people involved in cross-border activity. While certain matters relating to terrorism and national security dominated the headlines, there are also some changes this year that relate specifically to the motor carrier industry. On Jan. 1, new rules for obtaining operating authority for new motor carriers became effective. The U.S. Department of Transportation (DOT) through its Federal Motor Carrier Safety Administration (FMCSA) has established stricter minimum requirements to improve safety performance of new U.S. and Canadian motor carriers. The new rules are applicable to both private carriers and for-hire carriers.

There are two important features to the new rules. The first is a requirement that the carrier certify that it has systems in place to ensure compliance with the Federal Motor Carrier Safety Regulations. In the past, carriers were subject to safety rules, and were presumed to know the rules. In the new system the carrier will have to complete a form certifying that it understands the regulations and has systems in place to comply with safety regulations regarding: driver qualifications; hours of service; drug and alcohol testing; vehicle condition; accident monitoring program; production of records; hazardous materials and cargo tanks (if applicable).

Moreover, the carrier is required to certify that it maintains current copies of all U.S. DOT Motor Carrier Safety Regulations, Federal Motor Vehicle Standards, and Hazardous Materials Regulations (if applicable), and that it has ensured that all company personnel are aware of the current requirements.

Besides the expectation of better safety regulation awareness and compliance, there is also a legal consequence to the new requirement. Having certified that the carrier is aware of and complies with the regulations, the carrier’s failure to comply could lead to more serious consequences and serve as evidence that the carrier was not truthful on the original certification form.

The second new feature for new applicants is an on-site safety audit that will take place within the first 18 months after new entrant registration. It is anticipated that safety audits will take place within the first three to six months after receiving the DOT number and ‘new entrant’ designation. Following successful compliance with the safety audit, the ‘new entrant’ designation will be removed, and the carrier will be considered to have a full, permanent operating authority.

These new rules are not related to the security concerns that have led to changes in the immigration regulations. It appears that the changes are part of the slow process of allowing Mexican carriers into the U.S. At around the same time as these new rules were proposed last year, similar rules were proposed for Mexican carriers. The North American Free Trade Agreement (NAFTA) does not allow substantially different treatment between Mexican and Canadian carriers, and it appears that measures originally designed to deal with Mexican carriers have carried over into regulations for any new applicant from Mexico, Canada, or the U.S. On an unrelated issue, we have received confirmation that at last, U.S. Immigration waivers will be issued for a five-year duration, rather than one year. We believe the system is now operating more smoothly, and Canadian waiver applicants should receive their five-year waivers by press time.

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