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FMCSA changes regs on 10-day OOS extensions to match policy

Rescue personnel work on a bus that overturned Tuesday, May 31, 2011, in Bowling Green, Va. The commercial tour bus operated by Sky Express went off Interstate 95 in Virginia and flipped on its roof before dawn, killing four people and injuring many more, state police said. (Associated Press: STEVE HELBER)

The Trucker Staff

10/22/2012

WASHINGTON — The Federal Motor Carrier Safety Administration is amending its regulations to remove the provision that the agency will consider a 10-day extension of the 45-day period after which passenger and hazardous materials carriers must cease operation after receiving a proposed unsatisfactory safety rating.

The FMCSA made the revision public in a Federal Register notice to be published Tuesday.

The agency previously discontinued this practice as a matter of policy and is now amending the regulation to be consistent with the policy and the statutory language concerning this matter.

Although the FMCSA will continue to review requests for upgrades of proposed unsatisfactory safety rating for such carriers, the agency will no longer grant extensions to the 45-day period.

While the notice did not say per se, the policy change came in response to comments by Transportation Secretary Ray LaHood on June 1, 2011, after the country’s chief transportation czar learned that a motor coach company involved in a fatal accident the day before had been granted a 10-day extension to reverse a proposed unsatisfactory safety rating.

“There is no excuse for delay when a bus operator should be put out of service for safety’s sake,” LaHood said in statement issued by his office. “On my watch, there will never be another extension granted to a carrier we believe is unsafe. I’m extremely disappointed that this carrier was allowed to continue operating unsafely when it should have been placed out of service for the benefit of its passengers and other motorists.”

The rating was to have been effective May 28, 2011, but the FMCSA later extended the effective date by 10 days in order to conduct a second compliance review, a decision apparently based on May 11, 2011, correspondence from Sky Express officials requesting to upgrade the proposed rating to satisfactory based on corrective action the carrier had taken.

On May 31, a Sky Express bus crashed in Virginia, killing four people and injuring numerous others. Within hours after the accident, the FMCSA withdrew the extension and ordered Sky Express to cease operation.

The agency’s regulations in 49 CFR 385.17 outline the procedures that FMCSA an affected motor carriers must follow to upgrade a safety rating based on corrective action.

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A motor carrier transporting passengers or hazardous materials in quantities requiring placarding may request an upgrade of a proposed or final conditional or unsatisfactory safety rating at any time based on corrective action it has taken. If the agency proposes an unsatisfactory safety rating, the 45-day period in which the motor carrier must make improvements begins on the day written notice of the proposed rating is given by FMCSA.

If the corrective action is determined to be insufficient, the proposed unsatisfactory rating becomes effective and the motor carrier must cease transportation of passengers or hazardous materials in quantities requiring placarding immediately, which would be the 46th day from the date of written notice of the proposed unsatisfactory rating. FMCSA makes its determination expeditiously because a final unsatisfactory safety rating will preclude any further operation of CMVs by the motor carrier. If the motor carrier has submitted evidence that corrective action has been taken and the FMCSA is unable to make its determination within the 45-day review period, the current provisions of 49 CFR 385.17(f) indicates the agency may extend the 45-day review period by up to 10 additional days.

The Federal Register notice officially changes the regulation to coincide with the policy now in place that ended the 10-day extension.

The Trucker staff can be reached for comment at editor@thetrucker.com.

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JB Hunt