USA Law and Practice Contributed by: John D. O’Neill, Jr., David B. Horner, Andrej Micovic and Ryan Pedraza, Hunton Andrews Kurth LLP
3. Licensing and Market Entry 3.1 Operating Authorisations
Additional requirements apply to carriers transporting hazardous materials. Rail operators are subject to extensive FRA safety reg - ulations covering equipment, personnel, operations, training and maintenance. Railroads must maintain safety management programmes and demonstrate the operational capability necessary to conduct rail services safely and efficiently. For concession and P3 projects, procurement authori - ties often impose significantly broader qualifica - tion requirements. Best practices require bidders to demonstrate experience delivering comparable infra - structure projects, financial capacity, access to fund - ing, technical expertise and operational capability. Major transportation procurements frequently involve detailed pre-qualification processes designed to eval - uate the bidder’s ability to finance, construct, operate and maintain the asset over the life of the concession. 3.3 Cabotage and Cross-Border Operations Cabotage restrictions apply in the US transportation sector and limit the ability of foreign operators to con - duct domestic transportation services. In the trucking sector, foreign carriers are permitted to transport freight into and out of the United States pursuant to applicable international agreements but are restricted from transporting freight solely between points within the United States. As a result, domes - tic freight movements must be performed by carriers holding the appropriate US operating authority. Cross-border trucking operations involving Canada and Mexico are governed by a combination of federal law, international agreements and regulatory require - ments administered by US agencies. Operators must satisfy safety, customs, immigration and transporta - tion requirements applicable to cross-border com - merce. Rail transportation operates under a different frame - work. Freight railroads routinely participate in inter - national transportation movements involving Canada and Mexico through interconnected rail networks. Cross-border rail operations are subject to customs requirements, security regulations and applicable STB
The licences, permits and authorisations required to provide freight transportation services in the United States vary depending on the mode of transportation and the nature of the operations. For trucking operations engaged in interstate com - merce, operators must obtain operating authority from the FMCSA, register with USDOT and comply with applicable vehicle registration, insurance and safety requirements. Additional registrations may be required for the transportation of hazardous materials, oversized loads or specialised cargo. Intrastate opera - tions may also be subject to state-specific licensing requirements. For rail transportation, freight rail carriers oper - ate pursuant to authority issued or regulated by the STB. Construction of new rail lines, acquisition of rail assets and certain operational changes may require STB approval. Rail operators must also comply with FRA safety regulations and applicable environmental requirements. Where freight transportation services are provided pursuant to a concession or P3 arrangement, the con - cessionaire typically requires contractual authorisation from the relevant public authority in addition to any applicable regulatory approvals. In the road sector, this often takes the form of a long-term concession agreement entered into under state P3 legislation. 3.2 Qualification Requirements Applicants seeking authority to operate freight trans - portation services must demonstrate compliance with applicable financial, technical and safety require - ments. In the trucking sector, FMCSA regulations require car - riers to maintain minimum levels of financial responsi - bility, satisfy insurance requirements and demonstrate compliance with safety regulations. Operators are also expected to maintain appropriate management con - trols, driver qualification programmes, vehicle main - tenance systems and safety monitoring procedures.
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