May 2010

Paying The Price For Going Rogue

by Nicole Schlosser, Associate Editor

Tragic accidents, from the recent Tierra Santa Inc. bus crash near Phoenix that killed six people, to the Soledad, Calif., tour bus overturn that killed five French tourists and injured dozens more on April 28, 2009, have gotten lots of attention over the past year, particularly those involving operators that weren't fit to be on the road.

In response, federal organizations are targeting not only unsafe driving behaviors, company negligence and oversight, but also rogue and reincarnated operators. 

Most recently, the fatal accident on March 5 involving Van Nuys, Calif.-based Tierra Santa prompted an emergency request by the U.S. Department of Transportation's (U.S. DOT) Federal Motor Carrier Safety Administration (FMCSA) of the U.S. District Court for the Central District of California to order the owner of Tierra Santa Inc. to immediately cease all interstate and international passenger service. The carrier ceased operation on March 5. A March 6 order made the shutdown enforceable by the Court.

The FMCSA's complaint states that the owner of the bus company, Cayetano Martinez of Los Angeles, had previously been shut down by the FMCSA, only to repeatedly attempt to "reincarnate himself as a new carrier" and unsuccessfully attempted to gain U.S. DOT operating authority under a new name.

"Martinez has shown a persistency and determination to continue operating under new entities and businesses," the complaint states.

The consent decree, which Martinez signed on March 6, also forbids Martinez, or any affiliated company, "from contracting with or arranging for additional transportation of passengers unless the contracted motor carrier possesses valid operating authority registration from FMCSA."

The consent decree does not absolve Martinez from possible future civil penalties by FMCSA for violations of federal motor carrier safety regulations.

According to the complaint, Martinez has also been a principal in at least three other motor carriers operating in interstate and foreign commerce.

The operator was determined by the FMCSA to be operating without a license since April 2009.

Duane DeBruyne, spokesperson, FMCSA, explains that in April 2009, Tierra Santa submitted an application to operate. The FMCSA sent an acknowledgement letter, requesting more information to be able to evaluate their application. The operator never responded.

"In December 2009, they received a second letter by certified mail informing them that their application had been denied," says DeBruyne. The letter stated, in boldfaced type, that Martinez was not authorized to transport passengers by intrastate bus across state lines. "They knew they were running illegally."

Despite FMCSA's denial of the application, Tierra Santa continued to conduct intrastate and foreign motor carrier transportation operations without federal operating authority. 

DeBruyne says that, in fact, Tierra Santa never possessed U.S. DOT operating authority. "If you have a bus or truck company and you never plan to leave the state, that's a state regulatory matter. When you want to cross state lines then, obviously, it becomes a federal matter. We don't have a license per se, but the concept carries and that's expressed as the 'operating authority.' This company has never ­possessed it."

Martinez's history of applying unsuccessfully for operating authority registration under the name of Cayetano Martinez d.b.a. Tierra Santa Tours goes back to May 10, 2006. The FMCSA conducted a compliance review of the company on Dec. 16, 2006, and issued an unsatisfactory safety rating. 

On Feb. 10, 2007, the FMCSA prohibited Cayetano Martinez d.b.a. Tierra Santa Tours from operating any commercial motor vehicle in intrastate commerce and ordered the company to cease transportation in interstate and foreign commerce.

Federal crackdown

While the FMCSA has had in place for some time a thorough vetting process for new entrants and startup companies that want to obtain U.S. DOT authority, DeBruyne says there is a new vetting program that searches more closely for similarities to previously unsuccessful carriers or other carriers that have applied in the past.

In addition, the application for operating authority seeks to verify that the applicant understands the scope of the responsibilities to comply with federal safety regulations and demonstrates their ability to actually comply with them, DeBruyne adds.

 For example, the application asks how the operator plans to implement a random drug and alcohol testing program, which is required by federal regulation. Operators are also required to ensure that their drivers have the correct CDL drivers license, endorsements and medical certification; comply with Hours of Service regulations; and plan for the licensing, insurance and safety equipment for vehicles.

In the past, a coach operator applied for operating authority and paid a $300 fee. The U.S. DOT granted authority and moved on. Very little effort was taken to make sure that the companies applying for authority didn't have a checkered past, says Peter Pantuso, president, American Bus ­Association (ABA.)   

Now, that's being scrutinized vigorously by the U.S. DOT. "They're taking a look under a microscope at people who are applying for operating authority: who they are, other partners involved, have they been affiliated with companies that were ­operating beyond the margins of safety? Those are things that weren't being done a few years back," says Pantuso. 

Last December, the National Transportation Safety Board (NTSB) released its findings on the January 2008 fatal crash of a motorcoach near Victoria, Texas, which was caused by the driver's loss of control of the vehicle after he fell asleep at the wheel. The NTSB made a total of 19 recommendations to the U.S. DOT, FMCSA, NHTSA, and several other organizations.

Recommendations aimed to protect occupants by initiating a rulemaking for installing seat belts on all motorcoaches; addressing driver fatigue by requiring electronic onboard recording devices on all coaches; ensuring safer driver performance by forbidding texting and the use of cell phones and other similar devices; and enhancing oversight of carriers attempting to evade sanctions and of other unsafe motorcoach companies.

"Hopefully the states will be doing the same thing," he adds.

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