Effective February 21, 2014, the Federal Motor Carrier Safety Administration (“FMCSA”) implemented a new “Final Rule” that enables the Agency to suspend or revoke the operating authority of motor carriers that show “patterns of safety violations.” The Final Rule is an Amendment to Section 4113 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act and MAP-21. (79 FR 3520, 49 CFR 385, 386).
Pursuant to the Final Rule, FMCSA will have authority to shut down carriers that show an egregious disregard for safety compliance. The FMCSA will also have the authority to close carriers operating multiple entities under common control and/or reincarnated carriers that have been created merely for the purpose of avoiding FMCSA safety regulations and oversight. The FMCSA acknowledges that loss of operating authority is a significant penalty. The FMCSA says however that the Final Rule is necessary and appropriate, to address motor carriers that engage in a pattern or practice of willfully violating safety regulations.
The impetus for the Final Rule was a multiple fatality accident in 2008, involving a motor coach carrier that was operating without authority. The carrier was also a reincarnation of another bus company, recently placed out of business, for safety violations. Following this accident, the FMCSA determined that it needed more investigative and enforcement tools to combat persistent violators and reincarnated companies, such as the one found to be involved in this deadly crash.
The FMCSA initially ramped up its oversight of pervasive safety violators, by creating a task force known as “Operation Quick Strike” – targeted specifically at motor coach carriers. This task force implemented intensive, new training techniques, for its federal investigators. The program utilized 50 specially trained investigators, conducting in depth reviews of roadside inspection data, and other information regarding patterns and practices of those motor coach companies targeted to be "most at risk." The result was an 8 month long program that led to the 52 bus companies and 340 vehicles being removed from service, according to the U.S. Department of Transportation. Many companies were ultimately shut down because they failed to adequately maintain their vehicles, because they did not have proper drug and alcohol programs and/or for persistent hours of service violations.
The success of this task force is now being used as a road map for more widespread measures targeting all motor carriers, pursuant to the Final Rule. The training techniques used by this task force are expected to be utilized on a wide spectrum, to improve the scope and effectiveness of FMCSA’s oversight with regard to shutting down motor carriers.
Importantly, the motor carriers targeted under this rule are entitled to Due Process. As such, the targeted party has the right to intervene in the revocation and/or suspension proceeding. The intervening party is entitled to present evidence in favor of its defense. If the defense position is not persuasive, a violation under the Final Rule will result in an Order from the FMCSA for suspension or revocation, or, may require safety compliance, with the treat of revocation. Once a final order is issued, the subject party may further seek to have an administrative review, as an additional means to challenge the decision.
It is anticipated that in the weeks and months to come we will see more motor carriers targeted for investigation, pursuant to the new Final Rule. As the new law is implemented, we will also work to defend those companies wrongfully targeted and/or erroneously the subject of investigation. Depending on the circumstances, there may indeed be factual and/or legal grounds to rebut the FMCSA’s efforts to close certain companies.
For further questions regarding this, or other transportation related concerns, please do not hesitate to contact the lawyers of Reminger’s Transportation Practice Group.
