FMCSA Circulates Final Patterns of Safety Violations Rule

2014 US Trucking News – FMCSA Circulates Final Patterns of Safety Violations Rule

This month, the Federal Motor Carrier Safety Administration (FMCSA) has finalized the Patterns of Safety Violations Rule, which will enable the agency to close down truck and bus companies if the company, or the owners of the company, have a history of knowingly violating federal regulations.

The rule states that the FMCSA amends its regulations, in order to enable the Agency to suspend or revoke the operating authority registration for-hire 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 influence over their operations or operate multiple entities under common control, in order to conceal noncompliance with safety regulations.

The FMCSA published a Pattern of Safety Violations Rule which implements the agency’s authority to shut down a bus or truck company, if the company, or a company’s officer, has had a history of purposely violating federal safety regulations.

This rule has become one of the new enforcement tools that the agency has developed in recent years, to target high-risk carriers that endanger travelers by avoiding or covering up their negative history of safety compliance. The FMCSA has 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 new rule complements a rule that was adopted by the agency in 2012, to apply out of service orders to reincarnated or chameleon carriers, and to consolidate their enforcement histories. This rule has also gone one step further by authorizing a complete revocation of the motor carrier’s authority to operate.

The FMCSA has amended its regulations to enable the agency to suspend or revoke the operating authority registration of for-hire motor carriers that show disregard for safety compliance permit, people who have shown disregard for safety compliance to exercise controlling influence over their operations, or operate multiple entities under common control to conceal noncompliance with safety regulations.

These amendments implement section 4113 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act – A Legacy for Users, as amended by Section 32112 of Moving Ahead for Progress in the 21st Century Act (MAP-21), and are designed to enhance the safety of commercial motor vehicle operations on America’s highways.

The agency also says that the rule is one of the latest enforcement tools that can help identify and target high-risk carriers that endanger travelers by avoiding or covering up their negative history of safety compliance.

The FMCSA says that the agency will apply the rule in these cases in which carriers have a proven pattern of unsafe practices.

In 2013, the FMCSA has adopted a rule to help put reincarnated carriers out of service. This rule is a companion rule. They have stated that today’s rule goes one step further by authorizing a complete revocation of the motor carrier’s authority to operate.

The FMCSA states that Congress directed the FMCSA to implement this rule, due to the the danger that unsafe carriers pose to the motoring public.

According to the FMCSA, this rule is 2-pronged. The agency will first determine whether a carrier has failed to comply with regulations or if the carrier has attempted to conceal noncompliance. If so, the FMCSA will evaluate the carrier’s history, in order to determine whether or not the carrier has a pattern of unsafe behaviors.

If the FMCSA finds that the carrier has a history of noncompliance, then the agency has the authority to revoke or suspend the carriers operating authority, and impose civil or criminal penalties.

The rule states that motor carriers that engage in such conduct may face suspension or revocation of their operating authority registration. The FMCSA also acknowledges the loss of operating authority registration as a significant penalty. This rule is necessary and appropriate, however, to address motor carriers that engage in a pattern or practice of willfully violating safety regulations, or forming new entities or affiliate relationships to avoid compliances or mask or otherwise conceal noncompliance.

The FMCSA states that each year, a number of small carriers attempt to avoid compliance or attempt to conceal the company’s noncompliance by submitting a new application for registration. And oftentimes, the carrier applies for operation authority under a different name after the company or vehicles have been ordered OOS.

The FMCSA has also stated that motor carriers and individuals do this for a whole variety of reasons, which 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. They shift customers, vehicles, drivers, and other operational activities to one of their affiliated companies when FMCSA places one of the other commonly controlled companies out of service.

In this published rule, the FMCSA has cited a 2008 bus crash in Sherman, Texas, in which 17 passengers were killed and 38 others received minor to serious injuries.

FMCSA investigators found that the passenger carrier was operating without authority, and the company was a reincarnation of another bus company that had previously placed OOS because of safety violations.

Because of the crash, as well as other similar incidents, the FMCSA has instituted a vetting process for carriers to renew registration applications, and filter out potential reincarnated carriers.

The FMCSA states that the Sherman crash is but one example that demonstrates how the practice of avoiding compliance, or masking or otherwise concealing noncompliance to circumvent Agency enforcement action or to avoid a negative safety compliance history creates an unacceptable risk of harm to the public, resulting in the continued operation of at-risk carriers and impending the FMCSA’s ability to execute its safety mission. This rule will help address these problems by providing a significant enforcement tool that allows the Agency to suspend or revoke the operating authority registration of motor carriers that show disregard for safety compliance, permit persons who have shown disregard for safety compliance, to exercise controlling influence over their operations.

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