[IMAGE]Motorcoach.jpg[/IMAGE]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.
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.
California gets tough
In the state of California, operators that get shut down under one name and resurrect under another name need the one-strike law to open their eyes, says Dan Eisentrager, VP Western Region, Coach America, and a California Bus Association (CBA) committee member.
Last year, the CBA worked on two new bills that stemmed from the Colusa, Calif. accident in October 2008 that killed 10 passengers and injured at least 30 others. The motorcoach driver did not have the proper licensing to carry passengers, and the vehicle had an invalid license plate, according to the California Highway Patrol (CHP). The bills, AB 636 and AB 951, work in conjunction as the "one-strike law." The legislation took approximately one year to pass, and became effective Jan. 1, 2010. It is the strictest law of its kind to be passed in the U.S.
California Assembly Member Dave Jones (D-Sacramento) contacted the CBA, who sent letters of support to get the bills into regulation and approved. It passed the senate 26-6 and the state assembly 65-0, says Chris Riddington, president, CBA.
The "one-strike law" permanently revokes the authority of a charter bus company to operate if found without the required state Public Utilities Commission (PUC) permit, or knowingly employs a driver who doesn't have the required California driver's license and certifications. It also permanently strips a person's ability to drive any bus if found without the proper licensing and certifications; and prohibits the state PUC from issuing a new permit or certificate to operate if the officer, director or owner of the coach company has run a company that had the authority to operate permanently removed.
In addition, fines have increased substantially. The CBA worked alongside Assembly Member Ted Leiu's (D- Torrance) office on the law's new fees. There is now a $7,500 maximum fine for violating the law, as well as a maximum $10,000 fine after conviction of operating without a license, says Eisentrager.
Operators that try to reincarnate when they apply for new permits through the California PUC will now be largely unsuccessful, since the same names listed from the previous company will be tracked. Because motor carriers are required to apply with the PUC to be able to operate in the state of California, their computerized system stores all operator data, including previous charges. Some states don't have that mechanism, Eisentrager points out, and they depend solely on U.S. DOT records.
For California operators concerned about how the new law will impact them, ensuring their company is operating legally should be enough to avoid problems, Riddington says. "There's nothing in the law that changes the ramifications of licensing, it's just making sure your company is licensed and that you operate under the letter of the law." He advises coach carriers to make sure that all their drivers are licensed, and that anybody that has direct control of drivers, such as a trainer, dispatcher or operations manager, reads this law and understands it. Drivers need to be responsible for their own licensing and any special certifications, he adds. "Ninety-nine percent of drivers do it. The law is going after operators that tend to get in trouble, but six months later pop up again, and put the general public at risk."
The new law puts more teeth into the CHP's ability to impound a vehicle in question, which used to be an action that was considered to be more in the realm of the PUC. "Previously, the CHP would shut the bus down, but the company would bring another driver out, and away it goes," Eisentrager says. As of 2010, the officer can impound the bus; charge a fine to the operator to have it returned and investigate the incident; and charge a hefty fine if the carrier cannot prove that the oversight was unintentional.
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