FMSCa evaluation, from page 77 Smith v. N. Dewatering, Inc., 2004 U.S. Dist. tions, motor carriers must proactively seek loading and sealing the cargo, especially Lexis 2648, at *6 (D. Minn. Feb. 19, 2004). the ability to inspect, verify, and potentially when a motor carrier will haul a hazard- However, despite this, in many cases a even load the cargo that they will ship. ous material. Also, contracts often prohibit shipper is the entity that loads and secures a motor carrier’s employees and drivers the cargo, leaving the motor carrier to take Conclusion from breaking the cargo seal. However, the the majority of blame for any related negli- In conclusion, the CSA program involves CSA methodology still holds the motor cargence. Law enforcement may break a cargo comprehensive data gathering and measurrier accountable for load securement viola- seal to inspect it, and if an officer finds ing methodology to evaluate and rate each tions or anything else that the shipper did violations, a motor carrier’s BASIC score individual motor carrier based on its per- incorrectly. may increase due to the shipper’s failure. formance in many different fields of safety Federal regulations “place the burden of And in cases involving hazardous material compared with relevant peers. However, it load securement upon the carrier. See 49 releases, the potential for punitive damages will make more data available to the public C.F.R. §§390–393 (2002). <strong>The</strong>se regulations may be high. and to plaintiffs’ attorneys than in the past, require carriers to inspect whether cargo Dr. Gillette believes that in the future so motor carriers must proactively monitor is properly distributed and adequately many motor carriers may seek contractual their own safety status, immediately inves- secured both before driving a truck and requirements permitting their drivers to tigating violations and crashes and taking during transport. (See 49 C.F.R. §392.9(b); physically inspect cargo before agreeing to corrective action. Properly investigating Smart v. Am. Welding & Tank Co., 149 N.H. transport loads, or they many seek adden- and responding to safety concerns, will 536, 826 A.2d 570, 573–74 (N.H. 2003)). dums to contracts to protect themselves. permit motor carriers to combat attempts Thus, under federal law, responsibility for Since federal law holds motor carriers to use the tools and conclusion of the CSA improper loading generally rests with the responsible for load- securement shipper against them in litigation. carrier, even if the shipper loads the cargo.” negligence and other cargo- related viola- Mexico, from page 65 ipated in the 2007–2009 Demonstration Project are to be exempt from payment of the application fee. 2. All Mexican- domiciled motor carriers that wish to participate in international freight cross- border trucking services in the U.S. are to undergo a Pre- Authorization Safety Audit (PASA) performed by FMCSA, in accordance with Title 49 of the U.S. Code of Federal Regulations (CFR), Part 365, as may be amended. <strong>The</strong> PASA will include the following, in addition to any other requirements set out in the Federal Motor Carrier Safety Regulations (FMC- SRs): … Id. at Annex 1. Annex 1 continues in some depth, establishing driver national security and criminal background checks, exclusion criteria set forth by the U.S. Customs and Border Protection of the U.S. Department of Homeland Security, communication between the parties’ security agencies, record inspection and review regarding performance data and safety management programs, alcohol testing, compliance with hours- of- service rules, and other regulations that U.S. trucking companies must abide by. 84 ■ <strong>For</strong> <strong>The</strong> <strong>Defense</strong> ■ <strong>December</strong> <strong>2011</strong> On its face the <strong>2011</strong> MOU appears to regulate Mexican truck drivers and companies using safety and reporting obligations recognized by the U.S. Department of Transportation. See id. <strong>The</strong> Impact of the <strong>2011</strong> MOU on Safety and Small Trucking Businesses As the borders become easier for Mexican trucking companies to cross, so too will it become easier to overcome the hurdles that have hindered efficiently transporting and shipping Mexican products to the United States. Trucking analysts on all sides have expressed opinions on the effect that the <strong>2011</strong> MOU will have on small trucking companies. Not surprisingly, perhaps the loudest argument against cross- border trucking has foreseen danger to the American worker and small business owner, using the oft-raised specter of cheaper Mexican labor undercutting its American counterpart. <strong>The</strong>y argue that this will result in, among other things, American workers losing jobs to Mexican trucking, or lowering wages for American workers. <strong>The</strong> AFL-CIO, the largest federation of unions in the United States, for example, views it as unfair to U.S. workers and corporations unless the pilot program added provisions that would require signa- tory countries to adjust wages upwards and raise labor and environmental standards. Does that argument hold water? Supporters of NAFTA and cross- border trucking will say no, even though U.S. employment rose from 110.8 million people in 1993 to 137.6 million in 2007, which roughly covers the period during which NAFTA took effect and its originally scheduled full implementation, an increase of 24 percent. But the average unemployment rate was 5.1 percent from 1994–2007, compared to 7.1 percent from 1980–1993. Additionally, U.S. business sector real hourly compensation rose by 1.5 percent each year between 1993 and 2007, for a total of 23.6 percent over the full period. During 1979–1993, the annual rate of real hourly compensation rose by only .7 percent each year, or 11 percent over the full 14-year period. See NAFTA Facts, NAFTA— Myth vs. Fact, supra. Another common argument against Mexican cross- border trucking is that Mexican safety standards do not match those of domestic carriers, thereby making them unsafe, or at the very least, less safe than American trucks. Opponents argue that Mexican trucking companies have lower safety standards, employ “more dangerous” drivers, do not have proper insurance policies, and could become a source of increased congestion and accidents on
American roadways. A simple Internet search of “Mexican Trucking Safety” brings up countless websites decrying the opening of the border as the end of days. <strong>The</strong> evidence, however, may not bear this out. Mexico has 1,309 trucking companies that the United States exempted from the 1982 moratorium. Of the exempted companies, 859 actively crossed the U.S. border from 2003 to 2006, and United States subjected their drivers and trucks to inspections for violations that would put them out of service until corrected. <strong>The</strong> “out- of- service” rates for long-haul Mexican trucks Reprehensibility
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