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FMCSA to publish final rule on safety violation patterns Wednesday

The FMCSA said it estimates the rule would have been applied six times in the year preceding publication of the rule, which would have created total societal costs of $192,000.

The Trucker News Services

1/21/2014

WASHINGTON — The Federal Motor Carrier Safety Administration on Wednesday will publish the final rule on Patterns of Safety Violations that will give the agency the ability to shut down a bus or truck company if the company, or a company officer, has a history of purposely violating federal regulations.

The FMCSA said it intended to apply the rule in egregious cases in which it finds that a motor carrier has committed a pattern of unsafe practices, even if that particular investigation alone does not result in a downgrade of the carrier’s safety fitness rating.

“The proposal would further strengthen the FMCSA’s ability to take unsafe trucks and buses off the road if the agency finds that a carrier purposefully employs officers with a history of blatant disregard for safety,” an FMCSA spokesperson said when the Notice of Proposed Rulemaking was issued in late 2012.

“Under the proposal, if FMCSA suspects that an officer of a truck or bus company has demonstrated a pattern of avoiding regulatory compliance or ignoring civil penalties for safety violations the agency would investigate the carrier’s management structure and its operations to determine if it is deliberately concealing safety violations or a negative safety history. If a pattern of unsafe practices is found, FMCSA would suspend or revoke the company’s authority to operate.”

The final rule allows the FMCSA to take appropriate action if a motor carrier or person acting on its behalf engages in inappropriate conduct when he, she or it, either individually or on behalf of another motor carrier, fails to or conceals failure t (1) comply with statutory or regulatory safety requirements; (2) comply with FMCSA, state or local orders intended to redress violations of federal regulatory safety requirements; (3) pay civil penalties for violations of regulatory safety requirements; or (4) respond to enforcement actions arising out of violations of regulatory safety requirements.

According to the final rule, failure to respond to an enforcement action includes, but is not limited to, failure to respond to a notice of claim, participate in binding arbitration, respond to a demand for records, or respond to FMCSA correspondence if required.

Violation of any one or more of the four actions is grounds for agency action, the final rule said.

The final rule also sets for steps for motor carriers to request and administrative review of an order of suspension or revocation of operating authority, but those reviews would be limit to challenging errors of fact and/or law.

It also sets for the procedure for a motor carrier as well as intervening persons to file petitions for rescinding the agency order once corrective action has been taken and the agency is satisfied those corrective actions are appropriate.

Use of the rule against a typical carrier would require the state-level relicensing and re-registering of an average of 10 commercial motor vehicles.

The FMCSA said it estimates the rule would have been applied six times in the year preceding publication of the rule, which would have created total societal costs of $192,000.

The new rule complements a rule adopted by the agency in 2012 to apply out-of-service orders to reincarnated or chameleon carriers and to consolidate their enforcement histories. The new rule goes one step further by authorizing a complete revocation of the motor carrier’s authority to operate.

The FMCSA said in the NPRM that it had determined that each year a small number of motor carriers have attempted to avoid regulatory compliance or mask or otherwise conceal noncompliance by submitting new applications for registration, often under a different name, to continue operations after being placed out-of-service.

In developing the new rule, the agency cited an Aug. 8, 2008, fatal bus crash in Sherman, Texas, that the FMCSA said highlighted the danger posed by motor carriers and other persons who avoid regulatory compliance or mask or otherwise conceal noncompliance. Seventeen motor coach passengers died, and the driver and 38 other passengers received minor-to-serious injuries. The investigations conducted by FMCSA and the National Transportation Safety Board revealed that the motor carrier was operating without authority and a reincarnation of another bus company that had been previously placed OOS for safety violations and that both companies were under the control of the same person.

Based on these findings, the FMCSA instituted a vetting process for for-hire passenger and household goods carriers that involves a comprehensive review of registration applications to determine whether the applicants are reincarnations or affiliates of other motor carriers with negative compliance histories or are otherwise not willing and able to comply with the applicable regulations.

 “Although the vetting process was a significant improvement to the previous registration review and regulatory compliance process, it is not a complete solution to the problem of regulatory avoidance because it does not impose sanctions, and, therefore, deter, the motor carriers or individuals who engage in or condone egregious disregard for safety compliance,” the FMCSA said.

The Trucker staff can be reached to comment on this article at editor@thetrucker.com.

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