FMCSA Enacts Rule Changes, Including Higher Carrier Fines

This story appears in the Oct. 7 print edition of Transport Topics.

The Federal Motor Carrier Safety Administration has enacted a multipart rule that increases the maximum fines that can be assessed against regulations violators and allows the agency to place a fleet out of service if its trucks are operated without Department of Transportation registration.

The rule also explicitly places Canadian and Mexican carriers and drivers on more even regulatory terms with their U.S. counterparts.

FMCSA updated its regulations Oct. 1 with the new 17-part final rule to comply with MAP-21, the two-year highway bill that took effect last year.

“They are codifying statutory requirements . . . that’s why they did 17 rules at once,” said Sean Garney, manager for safety policy at American Trucking Associations. Garney was the co-author of an ATA policy summary on the new rule.

Two other parts of the rule obligate the agency to give safety reviews to all new motor carriers within 12 months of receiving operating authority — accelerated from the previous requirement of 18 months — and to tighten the prohibition against a carrier allowing a driver to operate a truck on a suspended or revoked commercial driver license.

Rob Abbott, an ATA vice president and the policy summary’s other author, said FMCSA has the responsibility to contact the new carrier and schedule the safety review. If the agency does not do so, he said, it is not the carrier’s fault.

Published in the Federal Register, the rule was called a “nondiscretionary ministerial action” by FMCSA, meaning it can take effect without the usual notice of proposed rulemaking and public comment.

MAP-21 — or the Moving Ahead for Progress in the 21st Century surface transportation act — required the update as part of its funding schedule for highways. The act runs through Sept. 30, 2014.

Six of the 17 rule segments increased penalty schedules for violations.

For instance, violating requirements for reporting, recordkeeping and registration rises to $1,000 from $500. If the violation involves hazardous wastes, the maximum fine rises to $40,000 from $20,000.

Other penalties that are now higher include those for failure to respond to a subpoena, violating out-of-service orders, evasion of regulations and violating regulations on hazardous materials transportation.

The penalty for a nonfatal hazmat transport violation jumps to a maximum of $75,000 from $50,000. If a fatality, severe injury or substantial property destruction is involved, the maximum fine hits $175,000, up from $100,000.

Another segment of the rule removed from consideration the motor carrier’s ability to pay as a factor the agency must consider.

There were also changes in enforcement practices.

FMCSA used to place individual vehicles out of service if they were found to be operating without registering for a DOT number. Under the new rule, FMCSA can “place a motor carrier out of service for operating vehicles without or beyond the scope of registration,” the rule said.

Registration in this context refers to establishing a DOT number and operating within registration, and is not the same as vehicle registration with a state motor vehicle administration.

“Under the new law, if a company truck or bus is found operating when the company does not have proper authority from FMCSA — which is already illegal — the whole company can be placed out of service and would be subject to higher penalties if they continue to break the law,” said FMCSA spokeswoman Marissa Padilla.

Abbott said he considered it “unlikely” that FMCSA would shut down a large fleet for a single truck registration violation.

“There is the assumption the agency would use its authority responsibly,” Abbott said, adding, “although if they are granted the authority, you have to wonder if they’ll use it.”

Looking at fleet management of drivers, carriers are prohibited from allowing drivers to operate a vehicle if they know, or reasonably should know, that a driver’s CDL has been revoked or suspended. Under the old rule, FMCSA had to demonstrate that carrier management knew a driver had a revoked or suspended license.

“That was a high obstacle for FMCSA to overcome,” Abbott said of the requirement to prove knowledge of such violation. Now the threshold will be based on what a reasonable person should know.

Garney described the two segments dealing with Canadian and Mexican carriers and drivers as “technical fixes.” They now make plain, rather than implicit, the process for disqualifying a foreign driver for rule violations or revoking operating authority for a foreign carrier for failure to pay civil penalties.

Staff Reporter Eric Miller contributed to this story.