FMCSA Seeks New Authority to Shut Down Unsafe Fleets

This story appears in the Nov. 19 print edition of Transport Topics.

A new federal proposal would allow regulators to shut down fleets that employ officers who have shown an “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.

It 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 plan 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 (6-27, p. 25). 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.