FMCSA Seeks New Authority To Shut Down Unsafe Fleets
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By Timothy Cama of Transport Topics A new federal proposal would allow regulators to shut down
fleets that employ officers who have shown and “egregious disregard” for safety
regulations. The move is part of the Federal Motor Carrier Safety
Administration’s push against “reincarnated carriers”, or companies that are
formed to mask a fleet’s previous bad safety record, a previous shutdown, legal
problems or similar issues. Sometimes
the carriers’ officers simply go back into business at the same or similar
address, with a slightly changed fleet name. Under the proposed rule, published Nov.12, the agency would
be able to revoke a carrier’s operating authority if someone who has
controlling influence of the company’s operations “engages or has engaged, in a
pattern or practice of avoiding regulatory compliance or masking noncompliance
while acting on behalf of any motor carrier.” If the officers of such carriers try to create new
companies, under the new rule FMCSA would be able to shut down the companies
for employing the bad officers. “Today’s proposal would further strengthen (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
agency spokesman said in a statement. The rule would allow agency officials to investigate suspect
companies, using a number of general criteria to determine whether officers
with controlling influence have poor safety histories. “If a pattern of unsafe practices is found, FMCSA would
suspend or revoke, the company’s authority to operate,” the spokesman said. If would affect only a “small number” of motor carriers, the
proposal said. While FMCSA ought to crack down on officers with patterns of
violations, the new proposal raises a number of issues, including being vague
in how it defines officers, said Rob Abbott, vice president for safety policy
at American Trucking Associations. “That’s not really well defined,” Abbott told TRANSPORT TOPICS. “It’s somewhat vague
and could include a driver supervisor.” He said the rule would put an undue burden on trucking
companies to investigate their officers’ pasts and determine whether any of
them have poor safety histories, in addition to whether an FMCSA investigator
would characterize such people as officers under the rule. FMCSA warned in its proposal that a carrier’s ignorance of
an employee’s history would not make it immune from action. “Motor carriers are
responsible for evaluating the qualifications of people who act on their behalf
or plat to engage to act on their behalf,” the proposal stated. Abbott said he found that troubling. “It’s going to rely on
the applicant being fully forthcoming about who their past employers were.” FMCSA consulted on the proposal with the Motor Carrier
Safety Advisory Committee, a group of industry, labor, law enforcement and
other interests, before publishing its proposal. But in its June 2011 recommendations, MCSAC recommended
FMCSA create a database of troublesome officers to be made available to
carriers. The group asked the agency to allow carriers to screen potential
employees by using the database. Members also asked that FMCSA be specific in defining what
officers would be subject to the rule and how carriers could avoid trouble,
including using the database. As MCSAC recommended, FMCSA proposed a process by which
officers whom the agency labels as having a pattern of safety violations can
appeal such labels. ATA supports most of the proposal, so the group is likely to
ask that FMCSA address its specific concerns, Abbott said. He said ATA wants the agency to more clearly
define what constitutes being an officer, and set procedures that a carrier
could follow to prove that it acted “in good faith” in trying to weed out bad
officers, and avoid liability under the rule. “So if a motor carrier didn’t have knowledge, but took
reasonable and appropriate steps to obtain that knowledge, would the motor
carrier then not be considered culpable?”, Abbott asked. FMCSA is gathering comments from the public on its proposal
until Jan. 13.
