For federal regulators, the latest directive appears to be the old proverb, “Fool me once, shame on you; fool me twice, shame on me.”
Only a few weeks after shutting down Maryland trucker Gunthers Transport, safety regulators moved again on Nov. 22 to slap an out-of-service order on Clock Transport of Harmans, Md., when it became clear the trucking outfit was closely linked to Gunthers.
But the regulators have been fooled before. The case of Gunthers and Clock Transport demonstrates just how difficult it can be for the Federal Motor Carrier Safety Administration to identify and act against “reincarnated” carriers, and why the FMCSA wants more authority from Congress to police such operators.
The FMCSA wants Congress to establish a national standard for “successor liability” to help prevent unsafe carriers from simply reopening under new names. The agency says it also will dedicate more resources in 2012 to catching what are also sometimes called “chameleon” carriers, applying a tougher set of vetting standards for new companies to all motor carriers and streamlining its unified registration system to make it easier to track and trace companies.
It’s a battle that’s been running for years in which regulators are hampered by the sheer size of the trucking industry — more than 500,000 registered carriers and most of them operate at most a handful of trucks — and the difficulty identifying individuals who try to register for multiple authorities or new authority. But for shippers and freight brokers, the battle is growing more pressing as questions of vicarious liability, or the liability the owners of actual freight loads may face in the case of accidents that trigger lawsuits.
But federal law requires in-depth on-site inspections before the FMCSA can close an unsafe carrier. The FMCSA wants the authority to act more quickly to pull a trucking or bus operator off the road as it racks up violations.
Gunthers was ordered out of service as an “imminent hazard” on Nov. 8 after what regulators said was an exhaustive review of its safety record and an on-site investigation in October revealed numerous driver hours-of-service violations and serious vehicle defects. The company had seven accidents this year, resulting in four injuries and one death. Time ran out two weeks later on Clock Transport, run from the same Harmans location as Gunthers Transport and owned by the son of Gunthers’ owner, after one of its trucks was cited during an inspection.
Gunthers had a fatigued driving BASIC score of 99.6 percent and a vehicle maintenance BASIC of 100 percent in the FMCSA’s safety measurement system (Check records online at http://ai.fmcsa.dot.gov/SMS/). And, no, those CSA marks don’t mean an “A-plus” grade. The threshold for fatigued driving is a score of 65 percent, and vehicle maintenance, 80 percent. Exceeding those BASIC (for Behavior and Safety Improvement Categories) thresholds automatically triggers an intervention from the FMCSA, from a warning letter to an out-of-service order.
The company was close to crossing thresholds in unsafe driving (only 1.8 percentage points away) and driver fitness (8.1 points below threshold). Only 10.2 percent of the trucking operators the American Transportation Research Institute recently polled have two deficient BASIC scores, and only 2.3 percent have four.
Gunthers had 146 fatigued driving and 980 vehicle maintenance violations within the last year, according to the FMCSA’s data. Its trucks were placed out of service in 58 percent of 190 inspections and drivers in 16 percent of 241 inspections.
The FMCSA had its eye on Gunthers for a long time. The agency conducted compliance reviews in 2008 before holding a comprehensive on-site investigation of the company on Jan. 13, 2011, followed by a focused on-site investigation on Oct. 11.
Investigators confirmed the company didn’t have drivers conduct pre-trip vehicle safety inspections and either required or permitted its drivers to violate hours-of-service rules and falsify logbooks. They also reported numerous violations related to vehicle safety that the FMCSA said constituted an immediate public threat.
Clock, which started operations only weeks before authorities closed Gunthers, had practically no record with the FMCSA. It was placed out of service after its first inspection when regulators realized it was linked closely to Gunthers.
The out-of-service order that closed Gunthers specifically states the company “cannot avoid this Operations Out of Service Order by continuing operations under the name of another person or company. Any sale, lease or other transfer of equipment and/or direct assignment of contracts or other agreements for service by Gunthers Transport requires the written approval” of an FMCSA official.
There’s a reason for that language. Gunthers Transport was established by Mark D. Gunther after a predecessor company, Gunthers Leasing, went bankrupt in the 1990s following a fatal accident in 1994 on the Beltway around Washington. Gunther served 30 months in federal prison for perjury and fraud after an investigation uncovered thousands of falsified driver logbooks.
According to the Baltimore Sun, Brian Buber, a construction worker permanently disabled in the 1994 accident, is still owed $13 million awarded by a jury.