GUIDE TO CROSS-BORDER TRUCKING AND THE SAFETY STANDARDS THAT REGULATE DOMESTIC AND FOREIGN COMMERCIAL MOTOR VEHICLES AND DRIVERS TABLE OF CONTENTS

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1 GUIDE TO CROSS-BORDER TRUCKING AND THE SAFETY STANDARDS THAT REGULATE DOMESTIC AND FOREIGN COMMERCIAL MOTOR VEHICLES AND DRIVERS Meredith A. Webster, Saint Louis University School of Law, J.D. cum laude Meredith is from Blue Springs, Missouri. She graduated from Washington University in St. Louis in 2007 with a B.A. in Spanish, summa cum laude. Meredith deepened her interest in trucking law while clerking for a plaintiffs firm. She enjoys the ever-evolving nature of trucking regulations and the opportunities for policy advocacy. This file was last updated in April TABLE OF CONTENTS Introduction o Statement of Purpose o Explanation of Cross-Border Trucking Secondary Sources o Law Reviews, News Articles, and Government Reports: NAFTA o Law Reviews and News Articles: Safety o Current Awareness Bureau of National Affairs (BNA) Articles Industry Publications Websites Primary Sources o Case Law o Legislation o Administrative Regulations NAFTA Regulations Safety Regulations o Federal Register Trucking Law and Practice General Knowledge Sources o Books and Treatises o Legal Encyclopedias Conclusion

2 A. Statement of Purpose INTRODUCTION From the moment NAFTA took effect, cross-border trucking between the United States and Mexico has been a source of conflict between pro-trade advocates, on the one hand, and safety advocates and labor unions, on the other. With the exception of a brief two-year period during the Bush Administration, safety and labor organizations have successfully lobbied Congress to keep the border closed to Mexican long-haul trucks. Canadian long-haul trucks, in contrast, have enjoyed practically uninterrupted border access. The unfavorable treatment of Mexican trucks, moreover, continues despite a NAFTA panel ruling holding that a moratorium violates the treaty. This pathfinder has two purposes: (1) to explore the issues associated with cross-border trucking, including concerns with it and trade consequences of disallowing it and (2) to serve as a litigation guide for a transportation lawyer. Because safety has been so critical to this controversy, this pathfinder will discuss key safety regulations that govern all carriers and how to use those regulations to bring an action against a carrier that has injured or killed someone on American highways. This pathfinder will begin with secondary sources that provide background into NAFTA and safety-related issues. It will further point out websites that identify the key players that affect the trucking industry. These websites serve as an excellent research tool for finding relevant domestic law and keeping current. The pathfinder will continue with primary sources, including case law, congressional legislation, and administrative regulations. The pathfinder will conclude with assorted general knowledge and litigation sources that will help build a personal injury case. This last section further includes databases that may provide relevant information in the future, but were ineffective at this time. B. Explanation of Cross-Border Trucking Cross-border trucking refers to two things: (1) long-haul trucks that originate in Canada or Mexico but carry freight throughout the United States and (2) drayage trucks that operate strictly in border zones near Mexico. Long-haul trucks refer to the semi-trucks one commonly sees on the highway. Drayage trucks, which are typically older, take freight from a long-haul truck in Mexico, drive it across the border, and transfer the freight to an American long-haul truck for domestic delivery. With two exceptions 1, the United States has prohibited Mexican long-haul trucks. It is this moratorium, which sharply contrasts with the treatment of Canadian trucks, that has pitted NAFTA obligations against safety and labor advocates. SECONDARY SOURCES Law Reviews, News Articles, and Government Reports: NAFTA 1 Strangely, Mexican long-haul trucks may travel throughout the U.S. if their ultimate destination is Canada. The U.S. also exempted five Mexican trucking companies that were operating in the U.S. before the moratorium. 2

3 When researching law reviews and journals, consider starting with Index to Legal Periodicals, which is available through LexisNexis, Westlaw, and WilsonWeb. An effective search query in WilsonWeb is cross border AND trucking OR motor carrier. This will also return links to Trucking Industry/Mexico and Trucking Industry/Canada. For LexisNexis or Westlaw, modify the query to cross /2 border & trucking OR motor carrier. Mexico is yet another term to include. Alternatively, for safety articles, use motor carrier & Federal Motor Carrier Safety Administration OR FMCSA. The LexisNexis database is Law Reviews, CLE, Legal Journals & Periodicals, while the Westlaw database is TP-ALL. Also consider searching solely in the Transportation Law Journal, which addresses current issues in transportation law. One problem with many law review articles on cross-border trucking is their age. One struggles to find analysis of the demonstration project or more recent legislation and regulations. Yet another problem is that many are student-written. Therefore, use law reviews to gain background knowledge about past key legislation affecting cross-border trucking and the political players who oppose opening the border to Mexican trucks. The same search used for law reviews may be used to find news articles in the News, Most Recent Two Years database in LexisNexis and the ALLNEWS database in Westlaw. Consider searching the Wall Street Journal individually. A. Burgess, Casey, Comment, The Cross-Border NAFTA Truck Debate, 8 Law & Bus. Rev. Am. 279 (2002). This article states that the drayage trucks, not the Mexican longhaul trucks, are the actual safety threat on the road and make the cross-border program inefficient and environmentally detrimental. It also discusses differences between American and Mexican trucking regulations. B. Butzin, Brent E., Note, The Effects of Transportation Regulation on the Transborder Metropolitan Areas of the U.S.-Mexico Border Region: NAFTA and the Mexican Truck Plan Where Do We Go from Here?, 34 Transp. L. J. 391 (2007). Like many other articles, Butzin discusses the history of American opposition to cross-border trucking. However, he provides more detail about why the use of drayage trucks is so problematic to safety, congestion, and the environment. He additionally notes that opposition to cross-border trucking stems from Mexico as well, where there is fear of being unable to compete with American trucking companies. C. Cassidy, William B., Revival at the Border; Cross-Border Trucking May Recover Faster than Domestic Businesses in U.S., Canada, Journal of Commerce, Mar. 1, 2010, at WP. Cross-border trucking with Canada has been the only source of growth for several carriers and shippers. However, although technology has improved border - crossing times, antiquated physical infrastructure and increasing American security measures remain barriers to efficient transportation. D. Fields, Gary, Trade Dispute Divides Workers, Wall St. J., Apr. 6, 2010, online.wsj.com/ (search cross-border trucking ). The 2009 ban on Mexican truckers, which led Mexico to institute two billion dollars in tariffs on American goods, has cost American workers their jobs. The poor economy and retaliatory tariffs have forced American businesses to make cuts. Mexico is now considering tariffs on even more 3

4 American imports. E. MacDonald, Chad, NAFTA Cross-Border Trucking: Mexico Retaliates After Congress Stops Mexican Trucks at the Border, 42 Vand. J. Transnat l L (2009). The article provides the background of the presidential and congressional actions that led to the cross-border demonstration project s termination and Mexico s imposition of tariffs on U.S. products. It also discusses the safety concerns with Mexican trucks that have fueled non-compliance with NAFTA. F. Office of Inspector Gen., U.S. Dep t of Transp., Issues Pertaining to the Proposed NAFTA Cross-Border Trucking Demonstration Project (2007). This report outlines remaining concerns about the cross-border demonstration project before it began. The OIG specifically looked for whether the FMCSA had sufficient monitoring and enforcement mechanisms to verify that each project participant complied with safety regulations. (One can find this report via WorldCat and request it through ILLiad). G. Office of Inspector Gen., U.S. Dep t of Transp., Interim Report on NAFTA Cross- Border Trucking Demonstration Project (2008), available at (follow Issues & Actions ; then follow Mexican Truck Pilot Program ; then follow Documents ). At the six-month point, the OIG noted that participation in the demonstration project was lower than expected and FMCSA still had not implemented a system guaranteeing inspectors checked every truck crossing the border. H. Townsend, Elizabeth, NAFTA, Mexican Trucks, and the Border: Making Sense of Years of International Arbitration, Domestic Debates, and the Recent U.S. Supreme Court Decision, 31 Transp. L. J. 131 (2004). This is a comprehensive analysis of NAFTA, the panel decision requiring case-by-case admission of Mexican trucks, the Public Citizen v. Department of Transportation decision, and all the interests whose efforts have kept the border closed. The article further points out that even if the U.S. opened its border to Mexican trucks, the reverse has never happened and would continue to cause trade issues. Law Reviews and News Articles: Safety A. American Trucking Associations, ATA Encourages Responses to New Survey Related Hours of Service, Mar. 4, 2010, article.aspx?id=668/{8e1c7279-ed27-4c03-b189-ceeee26bbb12} (last visited Mar. 26, 2010). The FMCSA is reviewing and reconsidering the hours of service rules in operation since January 2004, and must submit a proposed rule to the Office of Management and Budget by mid-july Two key areas are the eleven-hour driving limit and the thirty-four-hour restart provision. B. Andy Ashby & Richard Bilbao, Congress to Debate Whether or Not to Increase Maximum Truck Weight Limits, Orlando Bus. J., Mar. 26, 2010, available at (follow OOIDA in the News ). The article identifies two bills before Congress, and discusses their economical, environmental, and logistical implications. Representatives are pushing the bill to raise load capacity in order to make American trucks more competitive with Canadian and Mexican trucks, which already haul heavier loads. C. ATA Urges Improvement to Border Infrastructure and Procedures, Health Bus. Wk. 155 (Nov. 6, 2009). The ATA raises issues with C-TPAT in that a single security incident results in revocation of carriers status, although a party in the supply chain other 4

5 than the carrier may have placed contraband in the freight. There are also too few FAST lanes so that C-TPAT carriers can go to the front of the line at the borders. D. Spain, Catherine, Note, The Long and Lonely Road: The Saga of the Recent Amendments to the Hours of Service Regulations, 35 Transp. L. J. 47 (2008). This article is not relevant to cross-border trucking specifically; however, it highlights major litigation about the administrative regulations governing motor carriers and cases that should be used to defend against challenges that electronic on-board recorders invade truckers privacy. Current Awareness For the immediate future at least, safety advocates have rendered cross-border trucking between Mexico and the United States dead in the water. Consequently, much of the recent (and relevant) trucking news deals either with the effects of the tariffs Mexico has imposed or with pending safety proposals. To keep current on new developments, looseleafs on international trade or transportation, such as BNA s International Trade Daily and Transportation Watch, are very helpful. Cross-border trucking involves both trade and transportation. Set up a BNA alert, which will provide information on the latest happenings in these fields. Websites, moreover, inform about what actions are taking place behind the scenes and shaping trucking policy. Websites are an excellent tool to learn about proposed regulations currently open for comment. Websites, such as the FMCSA, are also less cumbersome and more easily navigable than law reviews to find legislation and regulations vital to understanding cross-border trucking. Strongly consider them as an early step in the research process. A. Bureau of National Affairs (BNA) Articles 1. Brevetti, Rossella, Lawmakers Want Cross-Border Trucking Provisions Axed from NAFTA, Int l Trade Daily, Apr. 15, Seventy-nine lawmakers wrote Obama administration officials and urged a renegotiation of NAFTA to remove cross-border trucking provisions. 2. Brevetti, Rossella, Rep. Price Questions Proposed Cuts in Administration Budget for Cargo Security, 22 Int l Trade Rep. 457, Apr. 1, President Obama s proposed budget for CBP will cut funds for the C-TPAT program by nearly twenty percent. 3. Brevetti, Rossella, Surface Transportation Trade Among NAFTA Partners Experiences Big Decline, Transp. Watch, Mar. 23, Surface trade between Canada, Mexico, and the U.S. suffered in 2009, declining by as much as thirty percent. These were the largest declines in the history of NAFTA. 4. Cattan, Nacha, U.S., Mexico Transportation Secretaries Set Up Cross-Border Trucking Working Group, Int l Trade Daily, Apr. 14, The American and Mexican transportation secretaries announced that they were establishing a working group to study the next stages of a cross-border trucking program, but they provided no timeline as to when a new program might start. 5

6 5. Snider, Adam, DOT Issues Formal Rulemaking Notice on Texting Ban for Truck, Bus Drivers, Transp. Watch, Apr. 2, The proposed safety ban on texting would subject commercial drivers to civil penalties and even license revocation for multiple violations. B. Industry Publications 1. Transport Topics: This trade magazine is available online for $ annually. It is the most widely read industry publication, and discusses major happenings in all areas of the trucking industry, especially actions by the FMCSA. 2. Land Line Magazine: This magazine is published by OOIDA and designed to keep professional truckers informed about industry issues. An annual subscription costs $ C. Websites 1. Federal Motor Carrier Safety Administration (http://fmcsa.dot.gov): The FMCSA operates primarily to prevent commercial motor vehicle-related fatalities and injuries through strict safety regulations and vehicle standards and targeting high-risk carriers and drivers. This website is a go-to source for updates on government actions, including administrative regulations on domestic and crossborder trucking. It also provides handbooks and sample forms. Relevant links within this website include the following: (CFR regulations on cross-border trucking) (Handbook for foreign motor carriers entering the United States) (Applications and forms for carriers who want to operate in the United States) 2. U.S. Customs and Border Patrol (http://www.cbp.gov/xp/cgov/trade/cargo_ security/): Commonly known as CBP, this agency s key role in trade centers on protecting against acts of terrorism and ensuring that only legitimate goods on which all duties and fees have been paid enter the country. The above link to Cargo Security displays other links to on point topics such as Carriers and C- TPAT. Through the Carriers link, one can find, for example, the border-crossing schedule, requirements for commercial drivers crossing the borders, and information on filing an electronic manifest. C-TPAT is a voluntary program designed to protect against terrorism through improving the safety of the international supply chain. Membership in the program allows priority processing and reduced inspections at the borders. 3. American Trucking Associations (http://www.truckline.com/pages/ Home.aspx): ATA is the national trade association of the trucking industry. Under Advocacy & Issues is a link to Cross Border, which includes recent news and reports as well as the association s stance on cross-border issues. 4. International Brotherhood of Teamsters (www.teamster.org): This labor union has been instrumental in keeping the border closed. In fact, its 1995 letter to President Clinton catalyzed the changed political stance towards cross-border trucking, which had previously been positive. Much of its rhetoric focuses on the 6

7 Case Law safety of Mexican trucks. 5. Owner Operator Independent Drivers Association (www.ooida.com): OOIDA represents the interests of professional truckers who own their own trucks. The link to Issues & Actions displays OOIDA s advocacy interests, including the Mexican Truck Pilot Program. 6. Truck Safety Coalition (www.trucksafety.org): The Truck Safety Coalition is a partnership between Citizens for Reliable and Safe Highways (CRASH) and Parents Against Tired Truckers (PATT), which work to reduce deaths and injuries caused by truck-related crashes. The website provides information on legislation and legal action on many of the crucial issues in the trucking industry. 7. Public Citizen (www.citizen.org): Public Citizen is a lobby group that litigates against FMCSA rules and proposed rules in order to ensure highway safety. Click on Initiatives and then Health, Safety and the Environment. This will lead to a list of cases Public Citizen has initiated. 8. Transport Canada (www.tc.gc.ca): This agency is responsible for establishing transportation policies and programs in Canada. Its primary goal is a safe and secure transportation system. Refer to the link below for the most recent study assessing the impact of U.S. import compliance programs on Canadian motor carriers operating in the U.S. 9. Canacar (www.canacar.com.mx): Canacar, the largest Mexican trucking industry trade group, is the Mexican equivalent of the Teamsters. It has actively lobbied to keep the border closed to U.S. trucks that desire to do business in Mexico and supports voiding the cross-border trucking provision in NAFTA. (This website is only available in Spanish). PRIMARY SOURCES American courts have not yet directly addressed the cross-border trucking issue. The cases below treat the legitimacy of procedural attempts to block cross-border trucking, challenges to safety regulations, or civil actions under federal motor carrier statutes. The NAFTA panel ruling is also included, although secondary sources sufficiently summarize its primary holdings. When searching for case law, choose a database in LexisNexis or Westlaw containing federal cases and consider using combinations of the following terms: Federal Motor Carrier Safety Administration, FMCSA, motor carrier, cross w/2 border or crossborder, trucking, NAFTA, and demonstration w/3 project or program. A. Dep t of Transp. v. Pub. Citizen, 541 U.S. 752 (2004). Public Citizen challenged FMCSA s Environmental Assessment, which did not consider the effect that lifting the moratorium on Mexican trucks would have on trade volume and traffic. The Court held 7

8 that FMCSA did not have to consider the environmental consequences because only the President, not FMCSA, had authority to lift the moratorium. Because the President was the causal link, FMCSA violated no statutory duties. B. Pub. Citizen v. Fed. Motor Carrier Safety Admin., 374 F.3d 1209 (D.C. App. 2004). The D.C. Circuit vacated the new hours of service rule the FMCSA had promulgated in It found the FMCSA s rule-making process arbitrary and capricious. The FMCSA is mandated by statute to consider a rule s impact on driver health. Here, it considered only the effect of driver health on vehicle safety, a separate consideration, and, therefore, ignored the statutory limit on its authority. C. Owner-Operator Indep. Drivers Assoc. v. Fed. Motor Carrier Safety Admin., 494 F.3d 188 (D.C. Cir. 2007). Following the decision in Public Citizen, the FMCSA promulgated an hours of service rule in 2005 that was practically identical to the vacated 2003 rule. This time, the court only vacated two parts of the rule: the increase in daily driving time from ten to eleven hours and the requirement of a thirty-four-hour off-duty period before restarting on-duty limits. The court held that the FMCSA violated the Administrative Procedure Act by not providing the required notice and opportunity to comment on the methodology used to justify these two parts of the rule. The failure to allow comment was prejudicial because the methodology was dispositive in determining the hours of service limits. D. Sierra Club v. Dep t of Transp., 563 F.3d 897 (9th Cir. 2009). The Ninth Circuit dismissed Petitioners challenge to the demonstration project as moot because Congress passed the Omnibus Appropriations Act in the interim, which prohibited using funds in any way for the project. E. Stewart v. Mitchell Transp., 241 F. Supp. 2d 1216 (D. Kan. 2002). Section 14702(a)(2) of the Motor Carrier Act does not create a private right of action for damages for personal injuries. But see Marrier v. New Penn Motor Express, Inc., 140 F. Supp. 2d 326 (D. Vt. 2001) (holding that the statute does create a private right of action for personal injury). F. Panel Report, In the Matter of Cross-Border Trucking Services, USA-MEX (Feb. 6, 2001), available at truckingservices.pdf. Legislation Sections of the United States Code pertaining to motor carriers are located in Title 49 on Transportation. One may locate the printed version of the Code at a local law library or access it online for free through or The most relevant legislative acts for this pathfinder are listed below. Some deal specifically with safety standards, but these bind foreign motor carriers as well. The easiest method of locating on point legislation is through law reviews or websites. But to then find the specific sections of each act within the Code, use the USCS Popular Names Table in LexisNexis or the USCA Popular Name Index in Westlaw. Choose the letter that begins an act s name in the table of contents of either of the databases and scroll to the act. 8

9 Furthermore, the legislative history of congressional bills may be accessed through for free. Click Try the Advanced Search, and, on the new screen, select the appropriate Congress and then enter the bill number in the search box. LexisNexis Congressional and Westlaw will provide the same information, but both require a subscription. For Westlaw, use the billtrk-old database for any bills that are not before the current Congress. A. Motor Carrier Act. This 1935 Act empowered the Federal Highway Administration to regulate qualifications and maximum hours of service of motor carriers and their employees as well as motor carrier safety operations and equipment. Provisions still in effect are codified at 49 U.S.C , 522, 523, 525, 526, and B. Bus Regulatory Reform Act of Canadian and Mexican-domiciled motor carriers could apply to the Interstate Commerce Commission (the predecessor of the FMCSA) to operate in the United States before Congress passed this Act, which imposed a moratorium on issuing new grants of operating authority, because American carriers were not receiving equivalent access to Canadian and Mexican markets. The moratorium only endured against Mexico, which continued to deny American carriers entry. This Act currently has no effective sections. C. Motor Carrier Safety Act of This Act provided authority to regulate drivers, motor carriers, and vehicle equipment by requiring that the Secretary of Transportation prescribe safety standards. (The Secretary delegated this duty to the FMCSA). Provisions still in effect are codified at 49 U.S.C , , 31146, and D. ICC Termination Act of In this Act, Congress authorized the President to modify or remove the moratorium on Mexican-domiciled motor carriers, and, therefore, fulfill NAFTA obligations. However, Congress further stated that American motor carriers should have reciprocal access. The relevant provision was codified at 49 U.S.C (c). E. Motor Carrier Safety Improvement Act of This Act created the FMCSA and codified the agency s mission at 49 U.S.C F. Omnibus Appropriations Act. This 2009 Act prohibited the use of any appropriated funds for the cross-border demonstration project. (This Act is not yet codified in the Code, but may be found in 136 of 111 P.L. 8). G. The Safe Highways and Infrastructure Preservation Act, H.R. 1618, 111th Cong. 7 (2009). This Act would freeze vehicle weight limits at the 1982 limit of 80,000 pounds, but would expand the restriction to cover the entire national highway system. The bill has been in the House Subcommittee on Highways and Transit since March H. The Safe and Efficient Transportation Act of 2009, H.R. 1799, 111th Cong. 2-3 (2009). This Act would allow states to raise vehicle weight limits to 97,000 pounds if a sixth axle is added to the vehicle. It would also disburse funds to improve bridges that cannot withstand vehicles increased weight. The bill has been in the Committee on Transportation and Infrastructure and the Committee on Ways and Means since March I. H.R. 6630, 110th Cong. 1 (2008). This bill ended the one-year cross-border demonstration project and limited all Mexican motor carriers to the municipalities and 9

10 commercial zones along the U.S.-Mexico border. The bill passed the House in September It was referred to the Senate Committee on Commerce, Science, and Transportation the same month. J. H.R. 3074, 110th Cong. 194 (2007). Part of a larger appropriations act, this section of the bill prohibited the use of funds to establish a cross-border demonstration program that would allow Mexican motor carriers beyond the border zones. 2 It passed the House and Senate in Administrative Regulations Title 49 of the Code of Federal Regulations contains federal transportation policy. Regulations governing motor carriers are predominantly located in Parts The most relevant provisions for cross-border trucking and the safety issues commonly associated with commercial trucking are listed below. One can access the CFR for free through This is the electronic version, which, although the most up-to-date, is unofficial. From the home page, select Title 49 from the drop-down menu and click go. Blue links to the regulations will appear in the table of contents for Title 49. The CFR is also available through LexisNexis and Westlaw. A. NAFTA Regulations C.F.R. Parts 368 and 387: Revision of regulations and application form for Mexico-domiciled motor carriers to operate in U.S. municipalities and commercial zones on the U.S.-Mexico border C.F.R. Part 365: Application by certain Mexico-domiciled motor carriers to operate beyond U.S. municipalities and commercial zones on the U.S.-Mexico border C.F.R. Part 385: Safety monitoring system and compliance initiative for Mexico-domiciled motor carriers operating in the U.S C.F.R. Parts 350 and 385: Certification of safety auditors, investigators, and inspectors C.F.R. Part 393: Parts and accessories necessary for safe operation C.F.R. Part 396: Inspection, repairs, and maintenance B. Safety Regulations C.F.R. Part 383: Commercial driver s license standards, requirements, and penalties C.F.R. Part 391: Qualifications of drivers and longer combination vehicle instructors (including regulations requiring passing a road test and a medical exam and proof that an employer annually reviews a driver s driving record to determine if a driver is safe to drive) C.F.R. Part 392: Driving of commercial motor vehicles (including 2 The Bush Administration creatively interpreted the prohibition to mean no new demonstration projects, not the demonstration project already operating. 10

11 regulations on driver fatigue, substance abuse, obedience of traffic laws, and maintenance of equipment) C.F.R. Part 395: Hours of service C.F.R. Part 382: Controlled substances and alcohol use and testing C.F.R. Part 658: Length, width, and weight limitations and route designations C.F.R. Part 387: Minimum levels of financial responsibility for motor carriers Federal Register The Federal Register is the official daily publication of federal agency and organization rules, proposed rules, and notices. It also includes executive orders and other presidential documents. One may access the Federal Register for free at For the most recent information on FMCSA rule-making, choose Advanced Search; check the boxes next to Final Rules and Regulations, Proposed Rules, and Notices; and type any of the following terms in the search box: motor carrier, cross-border trucking, or Federal Motor Carrier Safety Administration. After identifying any on point information, locate the page number and click on Retrieve an FR page on the left-hand side of the webpage. Type the page number in the search box. This will retrieve the notice or rule as it was printed in the Federal Register. There are currently no notices, proposed rules, or final rules related to cross-border trucking. However, the FMCSA has promulgated or is currently promulgating safety regulations that will affect sections of the CFR discussed in the previous section. A. Public Listening Session Notice, 75 Fed. Reg (Mar. 2, 2010). The FMCSA held a listening session on March 26th so that interested parties could comment on potential hours-of-service regulations. The FMCSA will release a notice of proposed rule-making this summer, when it attempts for the third time to promulgate new hours of service regulations. B. Limiting the Use of Wireless Communication Devices, 75 Fed. Reg. 16,391 (proposed Apr. 1, 2010) (to be codified at 49 C.F.R. pt. 383, 384, 390, 391, and 392). This rule would ban commercial drivers from texting while operating in interstate commerce. Violation of the rule would result in civil penalties or license revocation. C. Electronic On-Board Recorders for Hours-of-Service Compliance, 75 Fed. Reg. 17,208 (Apr. 5, 2010) (to be codified at 49 C.F.R. pt. 350, 385, 395, and 396). This rule upgrades the standards for electronic on-board recorders (EOBRs) installed in commercial motor vehicles manufactured after June Any motor carrier that shows serious non-compliance with hours of service regulations will be required to install the upgraded EOBRs on all its vehicles. (Currently, most truckers record their hours in logbooks, which are easily manipulated. EOBRs electronically monitor hours of service, and, therefore, cannot be altered by drivers). 11

12 TRUCKING LAW AND PRACTICE GENERAL KNOWLEDGE SOURCES These sources are for the ambitious researcher interested more in the safety aspects of trucking. Many will be helpful to a litigator attempting to bring or defend a personal injury action involving a long-haul truck. Two additional resources Am Jur Proof of Facts and CCH Insurance Law Reports: Personal and Commercial Liability seemed to be promising resources. Although they did not contain helpful information at this time, consider running a search in each in the future. Books and Treatises A. Alice Adams, Trucking Rules and Regulations (Thomson Delmar Learning 2005). Adams designed this book to explain the complicated system of federal, state, and local regulations to professional drivers. One caveat: the chapter on hours of service rules is based on the 2003 rule that the D.C. Court of Appeals threw out in Public Citizen. This book may be located and requested through Mobius. B. David N. Nissenberg, The Law of Commercial Trucking: Damages to Person and Property (2009). This is a comprehensive practice guide for understanding the various issues involved in interstate trucking. It discusses recent case law and federal regulations, and is designed for litigators. It is available through LexisNexis. The subscription fee is $ C. Kenneth S. Hixon, et al., Truck Accident Litigation from Start to Finish (National Business Institute 2008). This is yet another practice guide that explains federal regulations in detail and teaches the litigator how to proceed throughout a personal injury/wrongful death trial. It can be located in WorldCat and requested through ILLiad. D. Peter Buck Feller & Matthew T. McGrath, U.S. Customs and International Trade Guide 7.04, (Matthew Bender, Rev. Ed. 2009). Much of this treatise does not relate to cross-border trucking. However, certain sections clarify the extent to which foreign carriers must comply with U.S. safety standards, which has been a source of confusion in the media, as well as the procedures with which carriers must comply before being allowed to cross the border. E. Truck Accident Litigation (Laura Ruhl Genson & Anita M. Kerezman eds. 2006). This is an American Bar Association practice guide aimed at litigators that already have experience in trucking law. It is intended to take a lawyer step-by-step through a commercial motor carrier case from initial intake through the trial. It may be located through the SLU Law Library via call number KF 2265.A75 T778. Legal Encyclopedias A. 7A Am. Jur. 2d Automobiles and Highway Traffic (West 2010). Like Carriers below, this volume is better used for information about domestic regulations than requirements imposed on foreign carriers. Look to Sections and B. 13 Am. Jur. 2d Carriers (West 2010). This volume of American Jurisprudence is not relevant to cross-border trucking and has limited applicability for litigation purposes. However, Sections explain federal preemption in interstate commerce and what actions may be brought under federal legislation. C Bender s Forms of Discovery: Autos-Collisions Nos. 14: These are comprehensive lists of interrogatories by a plaintiff, who was involved in a collision with 12

13 a tractor-trailer owner and/or operator. D. 3B-34 Bender s Forms of Discovery Interrogatories No. 34:4. These interrogatories, specific to carriers, ask more detailed questions that reference the CFR regulations that govern carriers. E. 17 COA 2d 105 (West 2009). This provides information and checklists for bringing a cause of action against a trucker or truck driver for injuries caused by driver fatigue. F. 23 COA 2d 265 (West 2009). This provides information and checklists for bringing a cause of action for negligent entrustment of a motor vehicle. A claim of negligent entrustment is often brought in personal injury actions against trucking companies for allowing drivers who are non-compliant with federal regulations on the road. G. 25 COA 2d 99 (West 2009). This provides information and checklists for bringing a cause of action for injury or death resulting from negligent hiring. H. 32A Fed. Proc., L. Ed. 76. Federal Procedure, Lawyer s Edition includes coverage of procedure before administrative agencies. It is the FEDPROC database in Westlaw. Chapter 76 on Transportation discusses the FMCSA beginning with Section 76:487. Pay particular attention to Sections 76: on foreign motor carriers. CONCLUSION Cross-border trucking has been a constant tug-of-war: the United States versus Mexico, Congress versus the President, and safety versus free trade advocates. Perhaps the only real winner is Canada, whose similar safety standards have largely shielded it from restricted border access. Whether the U.S. will initiate a second demonstration project or even permit unlimited access for Mexican long-haul trucks remains unclear. The decision likely hinges on how long this poor economy continues and how vocal businesses selling products subject to tariffs become. What is clear is that this debate will continue with no side completely satisfied. 13

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