FMCSA and Passenger Carriers

death star

For at least the past two years, the FMCSA has declared war on the motor coach industry, particularly the smaller operators. Dubbing their onslaught Operation Quick Strike (where do they get these names?), they have made it their mission to audit every passenger carrier in the country. They will then re-visit every carrier every 2-3 years.

FMCSA believes there is an epidemic of crashes occurring involving buses, and limousines, and have decided the best way to stop these crashes is to strictly enforce all the regulations on these carriers. I highly, highly doubt there is an epidemic of passenger carrier crashes, but it doesn’t matter what I think, it only matters what FMCSA thinks.

When FMCSA conducts a “Quick Strike”, or more correctly named, “Death Strike” audit, they intensely scrutinize every piece of paper, and every nut and bolt on the buses. Any discrepancy or defect is cited. The difference between a normal FMCSA audit, and a Death Strike audit is like the difference between shooting a bullet and throwing it. If enough citations are found, the carrier is rated as “Unsatisfactory”, or declared an “Imminent Hazard”.

An “Unsatisfactory” safety rating means a passenger carrier has 45 days to get the agency to upgrade its rating to “Conditional” so it can keep operating. It does this by showing it has fixed all the various violations for which is was cited. A carrier declared an “Imminent Hazard” is prohibited from operating immediately.

Here is the diabolical part. Historically, motor carriers receiving Unsatisfactory ratings were always given a fair opportunity to show they had fixed their violations, and allowed to keep operating. For the most part, non-passenger carriers are still afforded this opportunity. I do not think this still applies to passenger carriers.

I had one FMCSA official who reviews the corrective action from motor carriers tell me he does not believe any of the passenger carriers have been upgraded from Unsatisfactory. In other words, once an audit concludes, if a passenger carrier is issued an Unsatisfactory rating, they will be placed out of business in 45 days, regardless of what they do.

Once a passenger carrier has been placed Out of Service, either due to an Imminent Hazard Order, or an Unsatisfactory rating, the agency is not allowing them to resume operations. Ever. No matter what they do.

I have only been involved in one of these cases, and that was enough. A poor passenger carrier, with 2 buses, contacted me, because he had been placed OOS due to an Unsatisfactory rating. With my assistance, and with great effort, we were able to convince the FMCSA office in Baltimore to upgrade his rating to Conditional. Historically, this would have been the end of it, and he would have resumed operations. Not so, under this current regime.

A motor carrier must now reapply for operating authority. Said another way, a carrier must re-ask FMCSA in Washington, DC for permission to operate. In our case, since the FMCSA office in Baltimore had upgraded our safety rating to Conditional, I assumed this would be a formality. A Conditional safety rating means a motor carrier is safe enough to operate. By issuing the Conditional rating, the Baltimore FMCSA was stating there was no safety reason to keep us from operating, so I thought the authority would be immediately restored. How wrong I was! Historically, our operating authority would have been, and should have been restored immediately. Ours was never granted. We re-applied in April, 2013, and it was never granted by the Washington, DC FMCSA office.

In a number of off-the-record conversations with unnamed FMCSA officials, I have been told none of the passenger carriers placed Out of Service are being allowed to return to operation by the Washington, DC office. Ever. No matter what they do. No matter how hard they try. I am told this is coming from the very top, which I assume means Anne Ferro. For all I know, it means Barack Obama, but I doubt it.

Why haven’t I taken a flame-thrower to the FMCSA on behalf of my client? Well, for one thing, I only got paid for a fraction of the time and effort I put into the case, and I don’t work for free. Secondly, FMCSA allows no appeals or due process during the application for authority process. Said another way, when you ask them for permission to operate, they can hold your application forever, and there’s nothing you can do about it, short of taking them to Federal Court. Finally, there’s not much profit in being a freedom fighter. Nevertheless, I wish someone would take a flame-thrower to that place over this issue.

What they are doing is wrong. There are a number of stronger words which also apply, but let’s just leave it at wrong. If the agency’s intent is to deny anyone they deem as unsafe the ability to operate buses immediately and forever, with no second chances, then they should say that, plainly and clearly. Instead they go through this kubuki dance of pretending passenger carriers are allowed to fix their problems following an audit, and resume operation, just like they always have been, but in reality, they are not. No FMCSA person will come right out and officially tell you that, but quietly, off-the-record, they will.

Let’s not blame the rank and file FMCSA people on this issue. Almost to a man, they say this is out of their hands and is being directed from their bosses in Washington. Furthermore, none of them seem especially happy about it, possibly because they know it is unfair, and has nothing to do with safety. Possibly. Perhaps they just don’t like passenger carriers calling them on the phone and screaming at them.

Ultimately, what needs to happen is one of these passenger carriers needs to take the FMCSA to the United States Court of Appeals. Sadly, the carriers they are targeting don’t have the money to do that sort of thing. So, FMCSA rolls over these carriers, merrily tossing them onto the unemployment line, when in reality, the majority of these carriers pose little or no threat on the highway.

What does all this mean to you, the passenger carrier? It means at least until early 2017, every 2-3 years, your ability to earn a living will be in jeopardy, as FMCSA can yank your authority forever anytime they show up for an audit. If you are a larger carrier with a well-staffed safety department, this may not be worrisome to you. If you are a small operator, who is not completely familiar with the rules, this should be terrifying to you. Numerous carriers like you have been tossed out of the industry without pity or remorse. Furthermore, this should be terrifying to anyone who operates a truck. Who knows who FMCSA will attack next? Hazardous materials carriers? Non-EOBR carriers? Carriers of the wrong political persuasion?

I do not expect this to change any time soon, and in fact, may get worse in the very near future. It is simply part of our new reality which is happening all around us. We are not in Kansas anymore, Dorothy. If you want to stay in business as a motor carrier, you had better comply with the safety regulations as strictly as possible.

3 thoughts on “FMCSA and Passenger Carriers

  • February 23, 2014 at 5:54 pm

    the same thing happened to my company. i generated more paperwork than the first draft of war and peace, put it together with a table of contents and a description on each chapter describing in detail the correlation between every document, marked it by tabs and put them in binders. if i had dropped this report off at the pentagon they’d have been mildly impressed! not the fmcsa. finally i hired a lawyer and they DID finally reopen us…… 8 months later. which was about 4 months after the bank had already repoed the buses. i had already moved on to managing another company so i could keep feeding my family long before they granted us a “new” authority. and the initial reason we were given an unsatisfactory rating? some maintenance problems, i, myself, was never drug tested, and some of the times on some of the logs were off by more than 15 minutes.
    the real reason is because i was renting buses to the ticket offices in chinatown after the fmcsa shut down their bus companies. the fmcsa didn’t want them making money…period.
    ultimately my theory is that by shutting down all these companies and making them re-apply, it improves their numbers when the ntsb and congress want to know how many “bad” companies were shut down. the re-applied company was still “permanently” shut down. they re-apply is technically a new company (and a new chance for them to shut another one down)
    my company was never involved in an accident and my sms was higher than average, but below the threshold. the fmcsa audited me 3 times in 2012 before finally finding enough “evidence” during the last audit. yes, 3 times. 1 of those times, the second one, the just opened our office door and walked in with no notice and demanded bank records, tax records, and insurance and ez pass payment receipts. no logs, maintenance records, toll records, all financial stuff.
    i thought the lesson from my experience was stay the hell out of chinatown because that’s a war greyhound+aba+congress+fmcsa working together is going to win. but after reading your blog, i guess the laws greyhound+aba lobbied for and chuck shummer helped push through are affecting much more than just their intended target.

  • February 24, 2014 at 6:55 am

    Phillip: Congratulations, you are the first of these “Unsat” bus companies targets I have heard that has been given the green light to operate again. Although 8 months later… it’s pretty hard to sit inactive for 8 months, and then begin operations again. Basically it’s like starting over. There is no question the Chinese bus companies are FMCSA’s favorite target. They believe any type of Chinese bus entity is 1) illegal, and 2) controlled by some shadowy underworld figure, who controls all the Chinese bus outfits. I do not know if any of that is true. I imagine some are illegal, and some may even be controlled by the underworld, but I doubt they ALL are. You are correct about your “shutdown” theory. They do brag to Congress about how many carriers they’ve tossed on the scrapheap. Meanwhile, overall accidents are going up. They don’t have much to say about that.

  • February 24, 2014 at 8:38 am

    Like I said, they only reinstated me because I hired a lawyer. No amount of paperwork will do anything, even from an outside source like you, which should be enough (assuming the company actually sticks with the new plan).
    My lawyer took them to federal court. That’s why they granted the new authority. Federal court is seems like the only viable alternative to closing your doors. And even so, it’s irrelevant unless you have the money to pay the rent and bus payments for about 8 to 10 months while you wait. I did not. Now I work for someone else.
    I hope everyone reading this takes it seriously. Compliance must be your number one priority. If you wait for the audit or even a year before the audit, you may lose everything you and your worked and sacrafied for. And if you’ve already gotten an unsatisfactory rating, get a lawyer now, don’t waste time.

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