The FMCSA Imminent Hazard Law: This Dog Has Teeth

 
 

For over 40 years I have watched the FMCSA and its programs blossom into an entity that has focused its regulations and attention to saving lives of the motoring public and the professional drivers that share the road daily.

The early days were filled with the opinions of many that the regulations and programs would have a negative effect on productivity and revenue, yet the FMCSA continued its unwavering course because they fully understood that the programs being designed were to save lives and reduce injuries. They also understood that the acceptance and success of these programs would not happen overnight and worked alongside the transportation industry throughout the process to make the transitions as smooth as possible.

In the early days these rules and regulations were not accepted with open arms but became the subject of many breakroom and Truckstop conversations. Many drivers did not feel the need for further rules and regulations and argued that a reduction of these rules was in order. Unfortunately, safety statistics did not support their opinions.

Once the programs were in place, a portion of the driving population rose to top rather quickly. This did not consist of professional drivers that adhered to the rules and regulations, but just the opposite. This group of dangerous drivers and companies were the consistent violators that had little to no regard for the rules and regulations or the safety of other drivers or the motoring public. 

Before the inception of the CSA Program, dangerous drivers and the companies that supported them were able continue business as usual except in a few cases. The FMCSA saw the need to institute a program to address these extreme cases and brought it to life Under 49 CFR 386.72- the “Imminent Hazard Program.”

Nondiscretionary Changes

On October 1, 2013, the Federal Motor Carrier Safety Administration (FMCSA) issued a Final Rule adopting 17 changes mandated by Moving Ahead for Progress in the 21st Century act (MAP-21), the highway reauthorization bill passed by Congress in 2012. Because they were required by statute, these changes were considered “nondiscretionary,” and were therefore made effective immediately, bypassing the standard notice-and-comment rulemaking process. 

Following is a summary of the most relevant changes, which have been broadly categorized as those that directly affect enforcement practices and those that alter penalty schedules.

Changes to Enforcement Practices

  • Safety fitness of new operators: New entrant motor carriers must now undergo a safety review within 12 months of being issued a U.S. DOT number. Previously, a safety review needed to be completed within 18 months of initiating operations.
  • Fleetwide out-of-service order for operating without required registration: Previously, if a commercial motor vehicle was found to have been operating without or beyond the scope of registration, only that particular vehicle would have been placed out-of-service. Now, FMCSA may place the motor carrier’s entire fleet out of service if the carrier operates a single vehicle without or beyond the scope of its registration.
  • Authority to disqualify foreign commercial drivers: This change explicitly provides FMCSA’s delegated authority to disqualify foreign commercial drivers under existing driver disqualification criteria.
  • Revocation of foreign motor carrier operating authority for failure to pay civil penalties: This adjustment clarifies the authority of FMCSA to shut down foreign motor carriers for failing to pay civil penalties.
  • Employer responsibilities: Previously, employers were prohibited from allowing an employee to drive if the employer knew that the employee had a suspended or revoked Commercial Driver’s License (CDL). The new language prohibits employers from allowing an employee to drive when the employer knows or should reasonably know that the driver’s CDL is suspended or revoked.
  • Emergency disqualification for imminent hazard: The definition of “imminent hazard” has been updated to include the condition of any vehicle, employee, or commercial motor vehicle, not just those related to hazardous materials. Previously, “imminent hazard” only applied to “a condition relating to hazardous materials.” 
  • Waivers, exemptions, and pilot programs: FMCSA is no longer required to publish notices of waivers, exemptions and pilot programs in the Federal Register. Alternatively, they’ll post these announcements on their website and state officials will be required to inform roadside enforcement personnel of any granted waivers, exemptions or pilot programs, presumably via the drivers’ license records.
  • Financial security of brokers and freight forwarders: Previously, FMCSA had discretion when establishing minimum financial security requirements for brokers and had set the minimum bond amount at $10,000. The minimum is financial security bond is now raised to $75,000 and has also been made applicable to freight forwarders.

Changes to Penalty Schedules

  • Penalty for operating without registration: The penalty for violating reporting, recordkeeping and registration requirements has been increased from $500 to $1,000. The penalty for transporting hazardous wastes without the appropriate registration was previously capped at $20,000. Now, penalties may range from a minimum of $20,000 to a maximum of $40,000.
  • Penalty for failure to respond to a subpoena: The fine for failing to obey a subpoena has been increased from between $100 and $5,000, to between $1,000 and $10,000.
  • Penalty for violating out of service orders: This rule increases the penalty to motor carriers found violating an out-of-service order from up to $16,000 per day, to not more than $25,000 per day.
  • Penalties for evasion of regulations: The new rule removes the requirement that an offender be found to have knowingly and willfully violated the regulations. Also, it increases the fines from between $200 and $500 for the first offense and $2,000 for each subsequent offense, to between $2,000 and $5,000 for the first offense and between $2,000 and $7,000 for each subsequent offense.
  • Assessment of penalties: This change removed from consideration the motor carrier’s “ability to pay” as one of the factors that must be considered by FMCSA when assessing penalties.
  • Civil penalties for violations of regulations related to transportation of hazardous materials: These penalties have been increased from a range of $250 -$50,000 to not more than $75,000. The penalties for instances that result in “death, serious illness, or severe injury to any person or substantial destruction of property” have been increased from up to $100,000 to not more than $175,000.

The FMCSA has diligently worked to make our drivers and the motoring public safer by addressing this dangerous group of companies and drivers. Individual cases and case information is supplied in the news section of the FMCSA website at www.fmcsa.dot.gov.

As you can see, “This Dog Has Teeth”

Harry Kimball, CDS, CDT
Owner/Chief Safety Officer
River Valley Fleet Safety Consulting
harry@rivervalleyfsc.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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