Paul Cullen Jr.
the cullen law firm, pllc
In January of 2003, a federal appeals court ruled that the Federal Motor Carrier Safety Administration must conduct environmental impact studies as a part of establishing rules to allow Mexican trucks into the country.
This was seen as a setback for the Bush administration, which wants to open the border to more Mexican trucks. Now the administration has asked the Supreme Court to overturn the appeals court decision. On Dec. 15, 2003, the Supreme Court granted this request, and will decide in March or April, according to press reports, whether the environmental studies must be performed.
The battle over whether or not to allow Mexican trucks to travel our highways has been fought on many fronts. The agreement to open the border to truck traffic was originally made as a part of the North American Free Trade Agreement.
President Clinton ignored that part of the agreement and kept the border closed. After Clinton left office, a NAFTA dispute resolution panel decided that the United States was in violation of NAFTA by keeping the border closed.
However, President Bush said he would open the border. The panel decision, his friendship with Mexican President Vicente Fox and his desire to increase trade with Mexico were all factors.
Because President Bush has primary responsibility for making foreign policy for the United States, there is little chance NAFTA opening the border to truck traffic between Mexico and the United States will be withdrawn or repealed.
Therefore, opponents of this policy have challenged it by forcing FMCSA to comply with all of the conditions of NAFTA.
For example, the United States is allowed under NAFTA to ensure that Mexican trucks and drivers comply with the laws of the United States. Congress, out of concern that Mexican trucks do not meet federal motor carrier safety standards, put conditions on both FMCSA and Mexican carriers that must be met before the border is opened. These conditions include the creation of beefed-up border inspection facilities and the requirement that Mexican carriers undergo FMCSA compliance reviews before running trucks in the United States.
Additionally, under federal law, an environmental impact study must be made for each new major rule the federal government proposes. FMCSA has proposed three rules to govern how Mexican trucks will be allowed into the country.
The case before the Supreme Court now is whether or not these proposed rules warrant the environmental studies required by law. The Bush administration argues that the environmental laws do not apply to these rulemakings, and that the appeals court order improperly interfered with the president’s responsibility to set foreign policy.
The opponents argue this rulemaking is just the kind of federal action contemplated by the environmental rules. They think opening the border to Mexican trucks that do not meet our emissions standards and burn diesel that does not meet our new low-sulfur standards will have a significant impact on the environment.
The parties to the case and interested “friends of the court” had until the end of January to file their briefs with the court. It is predicted the court will hear oral argument by mid- to late spring. A decision could come any time after the oral argument, but will more likely be published several months later.
Will the issue already be settled?
Meanwhile, FMCSA is already performing environmental studies in compliance with the lower court order. It has not asked the court to suspend this order while the Supreme Court considers the case.
Supporters of the environmental impact studies think the studies will be completed within the several month time frame the Supreme Court ordinarily decides a case. This action could make the Supreme Court action “moot,” or of no consequence.
But this possibility did not deter the court from taking the case. In fact, its action may indicate a willingness on behalf of some members of the court to resolve this issue before the studies could be completed. But in the secret workings of the Supreme Court, we can only wait to find out.
Hours of Service: Some states will enforce the old rules
As the new hours-of-service rules went into effect Jan. 4, 2004, there was still some confusion as to whether every state would be prepared to enforce them. Would drivers find some states enforcing the new rules while others enforce the old? Such a circumstance would make it extremely difficult, if not impossible, for interstate truckers to run legally across the country.
This could happen, however, because it takes some states longer than others to adopt new regulations. As Jan. 4 approached, as many as half of the states did not appear to be prepared to adopt and enforce the new HOS rules.
But by the new year, only three states were in question: California, Nebraska and Alaska.
According to FMCSA, California would adopt the new rules within the first six to nine months of 2004. In the meantime, California would only enforce violations of the new rules if they were also violations of the old rules.
Nebraska will probably not adopt the new rules until April 2004. In the meantime, it will check logbooks for compliance with the new rule, but issue citations under an existing regulation that generally prohibits driving while fatigued or ill.
Alaska will not adopt the new rules until June 2004. Until then, its enforcement personnel will refer hours-of-service violations to the federal DOT for enforcement. Federal inspectors started enforcing the rule Jan. 4.
Enforcement a matter for states to decide
Acknowledging that they have a big effort in front of them to educate the trucking industry about the new rules, FMCSA has announced that for the first two months, it asked states to issue warnings, rather than citations, for all but the most egregious HOS violations.
State enforcement personnel are also encouraged to educate drivers about the new rules during every enforcement stop they make.
FMCSA does not indicate in its literature what efforts, if any, are being made to educate shippers and receivers about the new rule. It is disappointing that FMCSA does not acknowledge, with the same education effort, the importance of shippers and receivers in creating the atmosphere that permits or denies truckers the ability to make a living in compliance with the federal rules.
This issue came up in a meeting between OOIDA officials and FMCSA Administrator Annette Sandberg at the time of OOIDA’s 30th anniversary celebration. Sandberg was encouraged to take seriously the influence of shippers on trucking schedules, and to review the “Chain of Responsibility” rules adopted in Australia that give that country’s DOT regulatory authority over all parties to a transportation movement, including shippers and receivers.
Meanwhile, shippers have been declaring the sky would fall after Jan. 4, and they will face much higher transportation costs because drivers will be allowed to work fewer hours.
Predictably, the shippers are not focused on improving waiting times at their own docks. Better scheduling and shortening the long waiting hours truckers now face would more than make up for the reduced amount of time drivers will have to work each day under the new rules.
FMCSA claims the new hours-of-service rules “will save 75 lives, prevent 1,326 fatigue-related injuries, and prevent 6,900 property damage-only crashes annually, resulting in a cost savings to the American economy of $628 million a year.” It should be instructive in a year or two to see what effect the new rules really have on these statistics.