Federal Register, Volume 77 Issue 149 (Thursday, August 2, 2012)[Federal Register Volume 77, Number 149 (Thursday, August 2, 2012)]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-18935]
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
FMCSA Policy on Granting, Withholding, Suspending, Amending or Revoking Operating Authority Registration
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of policy.
SUMMARY: FMCSA provides notice of the Agency's policy concerning review
of applications for operating authority registration, and suspension,
amendment or revocation of existing operating authority registration.
Motor carriers, brokers and freight forwarders must demonstrate a
willingness and ability to comply with applicable statutes and
regulations in order to obtain and maintain operating authority
registration. This notice outlines FMCSA's policy for evaluating motor
carriers', brokers' and freight forwarders' willingness and ability to
comply with these requirements.
DATES: This policy statement is effective August 2, 2012.
FOR FURTHER INFORMATION CONTACT: Sabrina E. Redd, Federal Motor Carrier
Safety Administration, 1200 New Jersey Avenue SE., Washington, DC
20590, 202-366-6240, Sabrina.Redd@dot.gov.
The Motor Carrier Act of 1935 (Pub. L. 74-255, 49 Stat. 543)
authorized the Interstate Commerce Commission (ICC) to issue operating
authority registration to motor carriers, brokers, and freight
forwarders subject to its jurisdiction and to suspend or revoke such
registration for willful failure to comply with applicable statutes and
regulations. The ICC Termination Act of 1995 (Pub. L. 104-88, 109 Stat.
803) (ICCTA) abolished the ICC and transferred this authority to the
Secretary of Transportation (Secretary). See 49 U.S.C. 13902
(establishing standards for issuing operating authority) and 49 U.S.C.
13905 (establishing standards and procedures for suspending and
revoking operating authority). Additionally, ICCTA section 204 contains
a savings clause which states that "all orders * * * that have been
issued * * * by the Interstate Commerce Commission * * * in the
performance of any function that is transferred by this Act * * * shall
continue in effect according to their terms until modified, terminated,
superseded, set aside, or revoked." The
policy outlined in this notice stems in part from ICC decisions and
orders that remain in effect, and it clarifies current FMCSA practice.
Under 49 CFR 1.73, the Secretary has delegated to the FMCSA
Administrator the authority to, among other things, develop and
implement rules to carry out Federal transportation policy; exercise
administrative procedure powers necessary to implement and enforce
applicable transportation laws and regulations; register motor
carriers, brokers and freight forwarders to provide interstate
transportation and establish standards required to obtain and maintain
registration; and establish minimum safety standards governing the
operation and equipment of motor carriers operating in interstate
A motor carrier, broker and freight forwarder may provide
transportation or service subject to FMCSA jurisdiction only if it is
registered by FMCSA. 49 U.S.C. 13901. FMCSA grants registration in
accordance with the requirements and procedures in 49 U.S.C. 13902.
Motor carriers, brokers and freight forwarders must demonstrate that
they are willing and able to comply with the applicable statutory and
regulatory requirements. Specifically, they must demonstrate
willingness and ability to comply with applicable regulations imposed
by FMCSA; the duties of employers and employees established by FMCSA
pursuant to 49 U.S.C. 31135; the safety fitness requirements
established by FMCSA pursuant to 49 U.S.C. 31144; the accessibility
requirements established by FMCSA for transportation provided by an
over-the-road bus; and minimum financial responsibilities established
by FMCSA pursuant to 49 U.S.C. 13906 and 31138.
FMCSA withholds registration if it determines that the carrier,
broker or freight forwarder does not meet, or is unable to meet, any of
these requirements. 49 U.S.C. 13902(a)(4). Additionally, if
registration is granted, and subsequent conduct by the registrant
demonstrates an unwillingness or inability to remain compliant, FMCSA
may suspend, amend or revoke the registration. 49 U.S.C. 13905(d).
This notice describes the policy and procedure FMCSA uses to
determine whether a motor carrier, broker or freight forwarder is
willing and able to comply with applicable requirements, and it
identifies circumstances that can result in withholding, revocation,
suspension or amendment of registration.
FMCSA withholds operating authority registration from any applicant
that cannot demonstrate it is willing or able to comply with applicable
statutory and regulatory requirements. Once granted, FMCSA exercises
its authority to revoke, amend or suspend operating authority
registration in cases where a motor carrier, broker or freight
forwarder engaged in conduct demonstrating willful disregard for
applicable requirements. Inadvertent, isolated, or sporadic violations
of applicable requirements generally will not result in revocation,
suspension or amendment.
In determining whether to withhold, suspend, amend or revoke
operating authority registration, FMCSA evaluates, among other things,
the following factors to determine whether a motor carrier, freight
forwarder or broker is willing and able to comply with applicable
statutory and regulatory requirements:
(1) The nature and extent of existing or past violations;
(2) the degree to which existing or past violations will affect, or
have affected, the safety of operations, taking into account any
crashes, deaths, or injuries associated with the violations;
(3) whether existing or past regulatory or statutory violations are
the result a willful failure to comply with applicable requirements;
(4) the existence and nature of pending and closed enforcement
(5) whether adequate safety management controls exist to ensure
acceptable compliance with applicable requirements; and
(6) the existence of corrective action, if any.
FMCSA evaluates all available information concerning a motor
carrier's, broker's, freight forwarder's or applicant's current status
and past conduct to determine whether the person is willing and able to
comply with statutory and regulatory requirements. One factor is not
necessarily more significant than another, and the person's conduct and
history are not considered in isolation. Certain conduct, however, will
likely be sufficiently egregious to warrant withholding, suspension,
amendment or revocation.
FMCSA will not grant operating authority registration to an
applicant that fails to demonstrate willingness and ability to comply
with applicable statutory and regulatory requirements. Applicants that
intentionally furnish false or misleading information during the
application and vetting process will not be granted operating authority
registration. FMCSA views this conduct as demonstrating an inability or
unwillingness to comply.
Applicants that fail to disclose all required information during
the application and vetting process will not be granted operating
authority registration until the required information is supplied.
FMCSA withholds operating authority registration by rejecting
applications that are incomplete, because FMCSA cannot determine that
an applicant is willing or able to comply until the applicant has
supplied all required information.
FMCSA does not grant operating authority registration to motor
carriers that create a new identity or affiliate relationship to avoid
a previous suspension or revocation of registration, a statutory or
regulatory requirement, an FMCSA order or a history of past violations.
FMCSA withholds operating authority registration by rejecting these
individual's applications. The practice of "reincarnating" to avoid
regulatory requirements and evade enforcement impairs FMCSA's ability
to carry out its safety mission and creates an unacceptable safety risk
for the motoring public. Moreover, this conduct demonstrates an
inability and unwillingness to comply with applicable statutory and
Persons who have had their operating authority registration
suspended or revoked, or who have operated without operating authority
registration, within the six years prior to their application
reasonably incur additional scrutiny and an increased burden to
establish their willingness and ability to comply with applicable
statutes and regulations. This scrutiny and burden also apply to
persons who submit an application for operating authority registration
and begin interstate operations before their application is approved.
Persons who have been the subject of more than one final Unfit safety
fitness determination or imminent hazard out-of-service order within
the preceding six years, or who have operated during this period
following issuance of a final Unfit safety fitness determination and an
order to cease operations, face particularly close scrutiny. These
individuals have already demonstrated a propensity to disregard
applicable requirements and Agency orders. Accordingly, FMCSA will not
grant operating authority registration under such circumstances absent
evidence demonstrating that the regulated entity has corrected
preexisting violations and clearly [[Page 46149]] exhibited a willingness and ability to comply with regulatory
requirements in the future.
FMCSA uses a six-year compliance history to make determinations
under 49 U.S.C. 13902 and 13905. Accordingly, FMCSA evaluates a
person's willingness and ability to comply with applicable statutory
and regulatory requirements based on, among other things, their
compliance record, if any, and the factors identified above for the
six-year period before the date of their application or the date of any
conduct prompting review of their registration status. The six-year
period is consistent with FMCSA's penalty assessment policies regarding
"history of prior offenses" under 49 U.S.C. 521(b)(2)(D) and a
"pattern of violations" warranting assessment of maximum civil
penalties under section 222 of the Motor Carrier Safety Improvement Act
(Pub. L. 106-159, 49 U.S.C. 521 note). See 69 FR 77828 (Dec. 28, 2004)
and 74 FR 14184 (Mar. 30, 2009).
FMCSA considers all available information to analyze the factors
identified above. Information bearing on the nature and extent of past
violations is often contained in FMCSA records, State law enforcement
records, State regulatory agency records, or State or Federal judicial
records. Relevant information may also exist in a regulated entity's
records. Information concerning the extent of a person's cooperation
with FMCSA is also relevant to evaluate whether their conduct
represents willful disregard of applicable requirements. FMCSA
therefore considers a person's willingness to cooperate with FMCSA and
State enforcement personnel during the application review process,
compliance reviews, investigations, inspections, or audits, including
timeliness in responding to requests for information or other
Relevant information might also be available in complaints that
private individuals file with FMCSA. While FMCSA lacks authority to
resolve disputes between individuals and regulated entities, these
complaints may be relevant in assessing whether a pattern of regulatory
noncompliance exists. The totality of such information may show an
unwillingness or inability to comply with statutory or regulatory
FMCSA will also consider a person's attempts to correct past
violations. Relevant evidence might include, among other things,
documentation of vehicle repairs or modifications, including
installation of collision avoidance, automatic on-board recorders,
speed limiters, stability control or other safety equipment, training
and education programs instituted by the entity, changed policies,
responses to FMCSA communications showing corrective action and other
similar corrective action plans. The timeliness of corrective action is
also relevant. FMCSA will not, however, accept a regulated entity's
mere assertion that it intends to be compliant in the future as
evidence of efforts to rectify past violations. In order to demonstrate
an adequate effort to correct past violations, the available
information must show that the regulated entity took corrective action
to address the problem and comply with applicable statutes and
Finally, FMCSA will also consider the existence of any mitigating
circumstances surrounding the regulated entity's conduct. Mitigating
circumstances are facts that, while not exonerating, tend to explain
why the violation occurred and that may tend to lessen a person's
culpability for the violation. A mitigating fact would not necessarily
relieve a person of the civil penalty liability, but it may be relevant
in determining whether the conduct should preclude operating authority
registration, given the other factors and circumstances described
above. Proof of mitigating circumstances is evaluated in light of all
the available information concerning a carrier's history.
FMCSA informs applicants of the Agency's decision to reject its
application and withhold operating authority registration in writing.
The rejection notice informs the applicant of the factual and legal
basis for the rejection. Any person whose application is rejected may
appeal the rejection to FMCSA. Under 49 CFR 365.111, the appeal must be
filed with FMCSA within 10 days of the date of the letter of rejection.
Information on where to submit an appeal is provided in the notice.
FMCSA suspends, amends or revokes operating authority registration
in accordance with the procedures in 49 U.S.C. 13905. FMCSA initiates
the proceeding by issuing an order to the motor carrier, broker or
freight forwarder directing the registered entity to correct compliance
deficiencies and show good cause, within 30 days of service of the
order, why its registration should not be suspended, amended or
revoked. The order provides the registered entity with notice of the
alleged violation, explains how to respond to the order, and informs
the registered entity that failure to respond and demonstrate
corrective action or other good cause will result in suspension,
amendment or revocation.
The Agency Official who issued the order reviews the registered
entity's response. In reviewing the response, the Agency Official
considers, among other things, the registered entity's proof of
corrective action and supporting documentation, and the factors
outlined above to evaluate whether the registration should be
suspended, amended or revoked. After reviewing the response, the Agency
Official issues a written decision and takes one of three actions.
First, he or she may enter an order suspending, amending or revoking
the entity's registration if the registered entity failed to take
appropriate corrective action or show good cause why its registration
should not be suspended, amended or revoked. Second, the Agency
Official may enter an additional order directing the registered entity
to come into compliance if the Agency Official determines the evidence
of corrective action is deficient, but can be cured. Third, the Agency
Official may determine that suspension, amendment or revocation are not
appropriate and enter an order terminating the proceeding.
Issued on: July 17, 2012.
Anne S. Ferro,
[FR Doc. 2012-18935 Filed 8-1-12; 8:45 am]
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