FMCSA Hones Its Rulebook

FMCSA Hones Its Rulebook

After spending much of President Obama’s first term on hours-of-service regulations and the Compliance, Safety, Accountability initiative, trucking regulators would like to spend more time in 2013 pursuing unsafe trucking operators.

There’s a lot of unfinished business on their books, including a final rule on a Unified Registration System for truckers and brokers that’s been pending since 1995. Several new safety rules and rule-makings are expected this year, including one creating a new safety fitness determination standard for motor carriers and a rule mandating the use of electronic onboard recorders in trucks by 2015.

But the Federal Motor Carrier Safety Administration has clearly signaled it wants to focus on enforcement and is clearing obstacles to a broader safety crackdown. “We will use every little bit of our authority to get bad actors off the road,” FMCSA Administrator Anne S. Ferro said during a conference call with reporters in June. It’s a message she’s repeated several times since, as the agency closed more than a dozen trucking companies in 2012.

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In November, the FMCSA shut down Illinois-based C&D Transportation for “willfully” violating an out-of-service order and “blatantly ignoring” truck and driver safety rules. The Elk Grove Village, Ill.-based carrier, which operated 15 trucks, exceeded CSA thresholds in unsafe driving, driver fitness and fatigued driving.

According to the agency, C&D violated hours-of-service regulations and overloaded its trucks. In seven instances, the carrier’s drivers were cited for not having a valid commercial driver’s license. In some cases, they couldn’t speak English, a federal requirement for truckers. The agency served C&D with three letters demanding action before ordering it off the road on Nov. 8. That didn’t deter the company, however. Three days later, one of its trucks was involved in a crash.

On Nov. 23, the FMCSA slapped the company with an out-of-service order that includes potential civil and criminal penalties if C&D continues to operate — including a year in prison for its owner and civil penalties of up to $25,000 a day.

Clearly, the FMCSA wants more teeth and the ability to impose harsher sanctions on unsafe operators. On Nov. 13, the agency proposed amendments to existing regulations that would make it easier for the FMCSA to get motor carriers that show “an egregious disregard” for safety rules off the road for good by suspending or revoking their operating authority registration.

The agency already has the power to withhold authority from an applicant, but its ability to revoke a company’s authority is limited. In particular, the changes would make it easier for the FMCSA to shut down “chameleon” carriers that alter their name and apply for new operating authority to avoid federal out-of-service orders.

“Motor carriers and individuals do this for a variety of reasons that include avoiding payment of civil penalties, circumventing denial of operating authority registration based on a determination that they are not willing or able to comply with the applicable statutes or regulations, or avoiding a negative compliance history,” the agency said in its notice. “Other motor carriers attempt to avoid compliance, or ask or otherwise conceal noncompliance, by creating or using an affiliated company under common operational control. They shift customers, vehicles, drivers, and other operational activities to one of the affiliated companies when FMCSA places one of the other commonly controlled companies out of service.”

Most important, perhaps, the proposed rule focuses on patterns of violations and practices not just by carriers but by individuals, namely managers. The rule would give the FMCSA the ability to target the officers who control unsafe companies.

The agency would be able to suspend or revoke the authority of any carrier controlled by such a person, who could be an owner, an executive or someone who exercises control over operations, including contractors and consultants.

In effect, if an executive who the FMCSA determines had engaged “in a pattern or practice of avoiding regulatory compliance or masking noncompliance” was to leave one carrier and take charge of another, that company could be shut down. A carrier would not necessarily avoid liability by claiming it was unaware of the executive’s prior record, the FMCSA said, stating that “motor carriers are responsible for evaluating the qualifications of people who act on their behalf.”

Motor carriers on the agency’s Motor Carrier Safety Advisory Committee recommended many facets of the proposal in 2011. Those carriers urged the FMCSA to define a “pattern” as being widespread and continuing over time, involving more than isolated violations and not requiring a specific number of violations.

The agency also said it would exercise discretion when identifying carriers whose officers have shown “egregious disregard for safety compliance.”

The proposed rule, along with a final rule released in May requiring the agency to revoke the registration of a company declared unfit based on its safety fitness determination rating, implement sections of the highway spending bill signed into law last summer and the 2005 surface transportation law. Members of Congress, as well as the Department of Transportation, were spurred by several high-profile fatal crashes caused by illegal passenger bus operators. The DOT closed 26 high-risk bus operators in May, declaring them imminent hazards to public safety.

If its proposal becomes a final rule, more companies and some company owners or officers may find it harder to keep on trucking without complying. 

Contact William B. Cassidy at wcassidy@joc.com and follow him at twitter.com/wbcassidy_joc.