FMCSA final rule proposal targets "patterns" of safety violations

By Greg Grisolano, Land Line staff writer | Tuesday, January 21, 2014

Bad actors beware. The Federal Motor Carrier Safety Administration has issued a new final rule that will empower the agency to go after existing companies and drivers that have a “pattern” of safety violations.

The final rule enables FMCSA to “suspend or revoke the operating authority registration of motor carriers that show egregious disregard for safety compliance, permit persons who have shown egregious disregard for safety compliance to exercise controlling influence over their operations or operate multiple entities under common control to conceal noncompliance with safety regulations,” according to the proposal released Friday.

The rule goes into effect 30 days after it is first published. It is scheduled to be published on Jan. 21.

OOIDA executive vice president Todd Spencer said the Association “generally supported” the rule.

“If you’re in the carrier business, safety should be everyone’s responsibility,” Spencer said. “Everyone – from top to bottom.”

Suspension or revocation of authority is costly. FMCSA estimates the average cost to relicense and re-register a 10-truck company is $32,000.

The regulation would apply to all motor carriers, even owner-operators who are leased to and running under another company’s authority – if they are in direct control of their own safety compliance.

“An owner-operator can be subject to this rulemaking either as a motor carrier or as an officer, depending on the capacity in which he or she is acting,” the proposal stated. “An owner-operator who engages in a pattern or practice of safety violations while working under another motor carrier’s registration risks having his or her own individual registration suspended or revoked. However, an owner-operator who neither acts as a motor carrier nor an officer would not be subject to this rule.”

Data from compliance reviews, safety audits, roadside inspections and other investigations would be considered in determining whether an actor or company poses a safety risk.

How does the agency define “pattern”? Well, in some cases, a single incident “could be sufficient to establish a pattern or practice” and will be determined on a case-specific basis.

The initial rulemaking stems from an Aug. 8, 2008, fatality bus crash in Sherman, Texas. Seventeen passengers were killed, and the bus driver and 38 other passengers received minor to serious injuries. The FMCSA investigation found the motor carrier was a reincarnated carrier that had recently been placed out of service for safety violations while operating without authority, and both companies were under the control of the same individual.

OOIDA and 23 others weighed in on the rulemaking last November. Those organizations include American Trucking Associations, FedEx, the Teamsters, the New York Department of Motor Vehicles, United Motorcoach Association, the AFL-CIO and Werner Enterprises. Seven individuals also submitted comments.

The rule would also put the onus on motor carriers to hire quality people in positions of control over safety operations and does not put limitations on the phrase “any person” who has a controlling influence, despite objections from large carriers.

In response to comments from Werner and the ATA, which expressed concern over the potential liability against a company or carrier’s operating authority in the event they might “innocently hire” a person with a history of egregious safety violations.

FMCSA’s response makes no bones about it – “Motor carriers are responsible for the people they hire to on their behalf,” and “(p)lacing limits on liability would discourage motor carriers from engaging in due diligence.”

“The Agency finds it difficult to believe that any responsible motor carrier would engage someone to exert controlling influence over its operations without engaging in a level of due diligence sufficient to understand the person’s qualifications and prior work experience in the industry,” the FMCSA said in its response.

The New York Department of Motor Vehicles and five individuals expressed general support for the rule while one individual expressed general opposition. OOIDA expressed its support for portions of the proposal but also asked for further clarification on several points, as well as asked for the inclusion of whistleblower protection provisions.

FMCSA did not incorporate OOIDA’s suggestion into the regulation, but did comment that individuals seeking such protection can do so through either the U.S. Department of Labor or through federal court. The agency also noted that complaints that whistleblowers levy could be enough to trigger enforcement under the new final rule.

With regard to reincarnated carriers, the rulemaking specifies that legitimate sales of motor carrier assets would not qualify as a reincarnated carrier.

Copyright © OOIDA

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