Home » 2011 Issues » November 30, 2011 » TRN-48-11-00010-E Suspension and Revocation of Operating Authority Held by Motor Carriers of Passengers
TRN-48-11-00010-E Suspension and Revocation of Operating Authority Held by Motor Carriers of Passengers
11/30/11 N.Y. St. Reg. TRN-48-11-00010-E
NEW YORK STATE REGISTER
VOLUME XXXIII, ISSUE 48
November 30, 2011
RULE MAKING ACTIVITIES
DEPARTMENT OF TRANSPORTATION
EMERGENCY RULE MAKING
I.D No. TRN-48-11-00010-E
Filing No. 1248
Filing Date. Nov. 15, 2011
Effective Date. Nov. 15, 2011
Suspension and Revocation of Operating Authority Held by Motor Carriers of Passengers
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Addition of section 720.32 to Title 17 NYCRR.
Statutory authority:
Transportation Law, section 156(2)
Finding of necessity for emergency rule:
Preservation of public safety.
Specific reasons underlying the finding of necessity:
This emergency rule is being promulgated on November 15, 2011 to provide standards for the suspension or revocation of operating authority of motor carriers of passengers by motor vehicles (carriers). This rule will become effective on the same date.
Bus companies may operate within the state of New York only upon operating authority in permits and certificates issued by the United States Department of Transportation or issued by the Commissioner of Transportation pursuant to Article 7 of the Transportation Law. Passenger carriers must comply with safety regulations found at 17 NYCRR Part 720. A recent series of tragic accidents that resulted in deaths and personal injuries involving carriers has revealed that it is possible for a carrier to have multiple safety violations, or even have federal operating authority suspended or revoked, and yet continue to operate under authority issued by the Commissioner of Transportation within the state of New York.
The emergency rule provides that the state operating authority may be suspended in the event that a carrier has had a suspension or revocation of concurrent federal operating authority or because of safety violations that would suggest that the continued operation of such carrier poses a threat to public safety. In addition to requiring continued federal operating authority (where applicable), the new rule provides the basis for the suspension or revocation of state operating authority and prescribes procedures whereby such suspension and/or revocation of state operating authority and prescribes procedures whereby such suspension and/or revocation will be effected.
Subject:
Suspension and revocation of operating authority held by motor carriers of passengers.
Purpose:
The protection of public safety by suspending operating authority of unsafe motor carriers.
Text of emergency rule:
720.32 Suspension and revocation of operating authority.
(a) Notwithstanding any regulation of the department to the contrary, pursuant to section 156, subdivision 2 of the Transportation Law, the Commissioner may immediately suspend or revoke the authority for operation authorized by certificate or permit for any of the following safety violations:
(1) Out of service violations which are determined by the Commissioner to be conditions or activities which constitute a danger to the safety of the people and which are found to have occurred for such carrier in the preceding six-month period. The incidence of out of service violations triggering a suspension or revocation of authority shall be as follows:
(i) For a carrier with at least one, but no more than five buses at any time in the preceding six month period: three violations.
(ii) For a carrier with at least six, but no more than twenty buses at any time in the preceding six month period: four violations.
(iii) For a carrier with more than twenty-one buses at any time in the preceding six month period: five violations;
(iv) For a carrier with at least ten department semi-annual inspections performed between April 1, 2010 and March 31, 2011 that resulted in an out-of service rate greater that 25%.
(2) Driving a bus while intoxicated in violation of the vehicle and traffic law;
(3) Driving a bus while using or in possession of drugs in violation of the vehicle and traffic law;
(4) Driving a bus after such driver has been placed out of service in violation of the transportation law, vehicle and traffic law or regulations adopted thereunder;
(5) Driving a bus that has been placed out of service in violation of the transportation law, vehicle and traffic law or regulations adopted thereunder; or
(6) Driving a bus without a required license in violation of the vehicle and traffic law.
(b) Notwithstanding any regulation of the department to the contrary, the Commissioner may immediately suspend or revoke the authority of any carrier operating pursuant to a certificate or permit issued by the Commissioner pursuant to Article 6 or Article 7 of the Transportation Law if such carrier operates concurrently under any authority issued by the United States Department of Transportation, Federal Motor Carrier Safety Administration, and such federal operating authority has been suspended or revoked.
(c) The suspension of operating authority as provided in sub-sections (a) or (b) shall be effective five business days after the date of issuance. Pending the effective date of such suspension, any carrier subject to this section may be heard to present proof as to why such suspension should not occur or should not have occurred. The Commissioner shall make a determination based upon a hearing of the proof whether such suspension shall become effective or continue and a hearing regarding permanent revocation shall be scheduled. In addition to or in lieu of any suspension or revocation, the Commissioner may, after a hearing, impose a civil penalty upon such carrier in accordance with the provisions of Article 6 of the Transportation Law.
(d) Whenever because of danger to public safety or the welfare of the people it appears prejudicial to the interests of the people of the state, the commissioner may serve the respondent with a notice or order requiring certain action or the cessation of certain activities immediately or within a specified period, and the commissioner shall provide an opportunity to be heard within a period specified in such notice or order.
(e) Service may be made personally or by certified mail, return receipt requested, and a hearing shall be conducted pursuant to the provisions of section 503.2 of this title, except for the notice provisions, provided however, that notice may be made pursuant to sub-section (d) or this sub-section.
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt this emergency rule as a permanent rule and will publish a notice of proposed rule making in the State Register at some future date. The emergency rule will expire February 12, 2012.
Text of rule and any required statements and analyses may be obtained from:
David E. Winans, Associate Counsel, New York State Department of Transportation, Div. of Legal Affairs, 50 Wolf Rd., Albany, NY 12232, (518) 457-5793, email: dwinans@dot.ny.gov
Regulatory Impact Statement
1. Statutory authority:
Transportation Law section 138(2), Transportation Law Section 140, Transportation Law Section 145(1).
The commissioner of transportation is empowered to prescribe rules and regulations concerning the issuance of certificates and permits to motor carriers.
2. Legislative objectives:
To promote public safety by assuring that motor carriers engaging in intrastate transportation as common carriers of passengers by motor vehicle comply with the laws and regulations relating to vehicle and driver safety as required by transportation Law Section 140 as a condition of continued use of the permit or certificate required by Transportation Law Section 152.
3. Needs and benefits:
The emergency rule provides a mechanism for the suspension and revocation of intrastate operating authority for motor carriers of passengers with poor safety records. Bus companies may operate within the state of New York only upon operating authority issued by the United States Department of Transportation (for interstate transportation) or issued by the commissioner of transportation (for intrastate transportation). Operating authority from the commissioner of transportation is conditioned upon compliance with safety laws and regulations, including the regulations of the Federal Motor Carrier Safety Administration that are incorporated into the commissioner's safety regulations by 17 NYCRR Section 720(a).
A series of recent accidents involving bus companies has exposed the potential for a bus company to have multiple safety violations, or even have federal operating authority suspended or revoked, and yet continue to operate under authority issued by the commissioner of transportation within the state of New York. The commissioner has concluded that the continued operation of any such bus company that fails to meet the applicable laws and regulations relating to vehicle safety and/or driver credentialing and/or hours-of-service requirements poses a threat to public safety.
The commissioner has determined that the continued access to state operating authority is contrary to the interests of public safety (1) where a motor carrier has a high incidence of being taken out-of-service as the result of roadside inspections, (2) where a motor carrier has a high rate of out-of-service violations found during the course of semi-annual vehicle inspections, (3) where a roadside inspection or other investigation reveals certain egregious violations of law, or (4) where a motor carrier's federal operating authority has been suspended or revoked.
The purpose of the emergency rule is to provide criterion and a framework for the suspension of state operating authority in the event that a bus company fails to meet objective requirements relating to safety. In the addition to requiring continued federal operating authority (where applicable), the rule articulates the basis for action and provides a framework for the suspension and revocation of operating authority.
4. Costs:
Regulated parties have an obligation under the existing laws and regulations to conform to safety requirements. The new rule imposes no additional safety requirements. There are no added costs associated with compliance. Noncompliance with laws and regulations related to safety presently carry costs in the form of civil penalties that may be imposed. The new rule expands the number of situations where civil penalties may be imposed under Transportation Law Section 145.
5. Local government mandates:
The rule imposes no government mandates.
6. Paperwork:
The rule includes no reporting requirements.
7. Duplication:
There are no rules that relate to the suspension or revocation of intrastate operating authority.
8. Alternatives:
Transportation Law Section 145 provides that the commissioner of transportation may suspend or revoke any permit or certificate after a hearing. However, there is no law or regulation prescribing the reasons that such action may be taken in the form of any objective criterion. It has been concluded that the adoption of a rule setting forth objective criterion that warrants suspension and revocation affords motor carriers with appropriate warning that action will be taken and affords equal application of criterion and due process to motor carriers.
9. Federal standards:
There are no federal standards relating to state operating authority.
10. Compliance schedule:
Compliance with existing laws and regulations has been and remains a requirement for all motor carriers. Compliance with the applicable laws and regulations obviates the necessity of any action under the new rule.
Regulatory Flexibility Analysis
1. Effect of rule:
The rule applies exclusively to motor carriers of passengers by motor vehicles that possess a permit or certificate from the commissioner of transportation pursuant to articles 6 or 7 of the Transportation Law. There are approximately 2,600 such motor carriers that posses such operating authority. These motor carriers are primarily limousine and charter bus operators engaged in at least some intrastate transportation of passengers for hire.
2. Compliance requirements:
The requirements applicable to motor carriers are set forth in existing laws and regulations. The new rule imposes no additional record-keeping or reporting requirements. The new rule provides only the criterion warranting the sanction of suspension or revocation of operating authority for a motor carrier's non-compliance with rules and a framework for the application of such sanctions.
3. Professional services:
Motor carriers are already required to comply with safety requirements. The new rule will mean action against non-compliant motor carriers. Motor carriers that trigger action under the new rule may seek professional services in an effort to retain operating authority.
4. Compliance costs:
No additional compliance costs are anticipated.
5. Economic and technological feasibility:
No additional requirements are imposed by the new rule. The rule simply sets forth the objective criterion of action to suspend or revoke operating authority and provides the framework by which action will be taken that affords motor carriers with due process.
6. Minimizing adverse impact:
The new rule is designed to help small business by establishing the objective criteria that will trigger action by the commissioner. The actions that would be taken by the commissioner under the new rule are based upon existing laws and regulations.
7. Small business and local government participation:
The laws and rules that are applicable to motor carriers are not changed by the rule. Non-compliance with the laws and regulations will trigger action to suspend or revoke operating authority. Small businesses seeking to avoid action to suspend or revoke their operating authority must comply with the existing laws and regulations.
8. For rules that either establish or modify a violation or penalties associated with a violation:
There is the potential for the imposition of penalties on small business, but not localities. The agency has considered affording an opportunity to cure provision, but because the basis for action under the emergency rule is a threat to public safety, and because the importance of protecting public safety can only be reinforced by real consequences, the imposition of penalties, including suspension or revocation, is deemed to be the most appropriate action.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas:
The rule applies across the state.
2. Reporting, recordkeeping and other compliance requirements; and professional services:
The rule includes no reporting requirements. Motor carriers are already required to comply with safety requirements. The new rule will mean action against non-compliant motor carriers. Motor carriers that trigger action under the new rule may seek professional services in an effort to retain operating authority.
3. Costs:
There are no new regulatory requirements that would entail additional costs for compliance.
4. Minimizing adverse impact:
The rule has no impact upon motor carriers that comply with existing laws and regulations.
5. Rural area participation:
The laws and rules that are applicable to motor carriers are not changed by the rule. Non-compliance with the laws and regulations will trigger action to suspend or revoke operating authority. Small businesses seeking to avoid action to suspend or revoke their operating authority must comply with the existing laws and regulations.
Job Impact Statement
1. Nature of impact:
The rule will have no impact on jobs or employment opportunities in relation to motor carriers who comply with existing laws and regulations relating to motor carrier safety. It is possible that non-compliant motor carriers who are in violation of safety laws and regulations may experience a suspension or revocation of state operating authority as a result of their failure under the new rule and that this could result in a loss of employment opportunities for persons employed by or seeking employment with non-compliant motor carriers. It is equally possible that, being compelled to comply with the existing laws and regulations, motor carriers may be compelled to create new job opportunities for mechanics, drivers and compliance specialists.
2. Categories and numbers affected:
Motor carriers with state operating authority employ bus operators, clerical staff, and various maintenance employees including cleaners and mechanics. The number of employees required by a motor carrier is that number that is necessary to comply with the existing laws and regulations.
3. Regions of adverse impact:
No adverse impact on jobs in any region is anticipated. The impact on employment stems, not from the new rule, but from the existing laws and regulations.
4. Minimizing adverse impact:
The purpose of the rule is to compel compliance with existing laws and regulations that are designed to preserve public safety. The absence of such a mechanism for removing operating authority from unsafe motor carrier jeopardizes public safety. Compliant motor carriers will experience no impact on jobs or employment.
