Motor carriers likely will face maximum penalties more often under a new enforcement policy that took effect Wednesday, April 1.
In a March 30 Federal Register notice, the FMCSA announced a supplemental policy that will change how it now will implement Section 222 of the Motor Carrier Safety Improvement Act of 1999. Section 222 requires FMCSA to assess maximum statutory penalties if a person or company is found to have committed a pattern of violations of critical or acute regulations, or previously committed the same or a related violation of critical or acute regulations.
Until now, FMCSA has defined "pattern of violations" and "previously committed the same or related violation" as three cases closed with findings of violation occurring within the last six years. The "three strikes" also could be two cases that have closed followed by a third case in which violations were discovered during a compliance review or similar audit.
In recent years, both the Government Accountability Office and the U.S. Department of Transportation's Office of Inspector General have faulted FMCSA's approach toward implementing the 1999 legislation. For example, GAO recommended a "two strikes" policy and a meaning of "pattern of violations" that is distinct from repeated violations of the same regulation. OIG recommended that FMCSA count all acute and critical violations discovered during a compliance review.
Based on these recommendations, FMCSA re-examined its policy. FMCSA now will define "pattern of violations" as occurring when the agency discovers two or more critical and/or acute violations in each of three or more different regulatory parts. A "pattern of violations" will not require a previous enforcement and can be found even during a first-time investigation.
Maximum fines may be implemented based on previous contact with FMCSA, a state motor carrier safety enforcement agency or other FMCSA-designated representative. Such contact includes a wide range of events, including new entrant safety audit, pre-authorization safety audits, expedited action letters, compliance reviews, notices of violation, notices of claim, warning letters "or other significant documented contact reasonably likely to have alerted the motor carrier to FMCSA's regulatory and enforcement jurisdiction." The previous contact may have occurred prior to April 1, 2009, FMCSA said. However, a roadside inspection alone is not considered "a previous contact."
FMCSA also is adopting a "two strikes" policy that is similar to the existing "three strikes" policy. FMCSA will apply maximum penalties in cases where an acute violation is discovered during an investigation within six years of a previously closed case that contained a finding of violation of a critical or acute regulation in the same part of the federal motor carrier or hazardous materials regulations. FMCSA will apply the same standards under the "two strikes" policy as it did under the "three strikes" policy.
The supplemental policy also expands the category of investigations during which violations subject to maximum penalties may be discovered. Investigations now will include rated and unrated compliance reviews, terminal reviews, shipper reviews, focused reviews, on- and off-site assessment investigations, and on- and off-site investigations arising under the agency's Comprehensive Safety Analysis (CSA) 2010 program or successor programs. The CSA 2010 program, currently under evaluation, would rely on more frequent intervention by FMCSA and its agents than under the current approach, which focuses on on-site compliance reviews.
The new policy might prove more generous to carriers in one respect: settlements. Under a policy that had been in effect since late 2004, FMCSA had barred any settlement of maximum penalties, although payment plans were allowed. Now, the agency says it will allow FMCSA Service Centers to evaluate Section 222 maximum penalties on a case-by-case basis.
FMCSA will use the new "two strikes" policy only for investigations and cases initiated on or after April 1, 2009. Investigations and cases initiated prior to that date will continue to be considered for maximum penalty assessment under the "three strikes" policy.
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