TRN-32-11-00009-E Suspension and Revocation of Carrier Operating Authority

8/10/11 N.Y. St. Reg. TRN-32-11-00009-E

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 32

August 10, 2011

RULE MAKING ACTIVITIES

DEPARTMENT OF TRANSPORTATION

EMERGENCY RULE MAKING

 

I.D No. TRN-32-11-00009-E

Filing No. 692

Filing Date. Jul. 25, 2011

Effective Date. Jul. 25, 2011

Suspension and Revocation of Carrier Operating Authority

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 138(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 July 25, 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 will be effected.

Subject:

Suspension and revocation of carrier operating authority.

Purpose:

Enhance public safety.

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, the Commissioner may immediately suspend or revoke the authority for operation authorized by certificate or permit for any of the following serious 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 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 of Transportation 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 cattier 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 an emergency adoption, to be valid for 90 days or less. This rule expires October 22, 2011.

Text of rule and any required statements and analyses may be obtained from:

David E. Winans, Associate Counsel, Dept of Transportation, Albany, NY, [phone]

Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement

A Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement are not submitted, but will be published in theRegister within 30 days of the rule's effective date.