SUMMARY: FMCSA provides notice of the Agency's new policy concerning
enforcement of its household goods (HHG) motor carrier and broker
regulations. FMCSA may take enforcement action when a HHG motor carrier
or broker knowingly and willfully fails, in violation of a contract, to
deliver or unload at the destination a shipment of HHG for which
charges have been estimated and for which payment has been tendered. A
motor carrier or broker found holding a HHG shipment hostage may be
subject to suspension of registration for a period of not less than 12
months to not more than 36 months.
DATES: This decision is effective October 18, 2012.
FOR FURTHER INFORMATION CONTACT: Brodie Mack, Jr., Commercial
Enforcement and Investigations Division, Federal Motor Carrier Safety
Administration, 1200 New Jersey Avenue SE., Washington, DC 20590, (202)
366-8045; email
This e-mail address is being protected from spambots. You need JavaScript enabled to view it
.
SUPPLEMENTARY INFORMATION:
Background
The U.S. Department of Transportation (DOT) assumed responsibility
for regulating the HHG industry in 1996 from the Interstate Commerce
Commission (ICC). Congress terminated the ICC in the ICC Termination
Act of 1995 (Pub. L. 104-88, 109 Stat. 803). Consequently, DOT
inherited the responsibility of handling consumer complaints regarding
deceptive business practices and hostage shipments. In 2000, FMCSA was
delegated the responsibility for enforcement of HHG consumer protection
in the Motor Carrier Safety Improvement Act of 1999 (MCSIA), Public Law
106-159, 113 Stat. 1748. However, FMCSA lacked the authority to fully
address brokers and motor carriers engaged in the practice of holding
HHG shipments hostage in violation of a contract. Congress responded by
including the ``Household Goods Movers Oversight Enforcement and Reform
Act of 2005'' in the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU). In SAFETEA-
LU, Congress specifically addressed (codified at 49 U.S.C. 14915) the
problem of persons, including, but not limited to, brokers and motor
carriers, who hold HHG shipments hostage. The statute defines a hostage
shipment, establishes civil and criminal penalties, and permits the
suspension of the operating authority registration of a motor carrier
or broker from 12 to 36 months when it holds a shipment hostage.
Policy
Pursuant to 49 U.S.C. 14915, any person, including a motor carrier
or broker, that holds a HHG shipment hostage is subject to a $10,000
civil penalty for each violation. Each day the goods are held hostage
may constitute a separate violation. In addition with the publication
of this policy statement FMCSA may suspend a broker or motor carrier's
registration for a period of not less than 12 months or more than 36
months. The suspension of a carrier's or broker's registration extends
to and includes any carrier or broker having the same ownership or
operational control as the suspended carrier or broker.
FMCSA may suspend a carrier's or broker's registration upon a
determination by FMCSA that the carrier or broker knowingly and
willfully failed, in violation of a contract, to deliver or unload at
the destination of a shipment of HHG for which charges have been
estimated and for which payment has been tendered. Pursuant to 49
U.S.C. 13707(b)(3)(A), payment is tendered when a shipper pays: (1) 100
percent of the charges contained in a binding estimate provided by the
carrier; (2) not more than 110 percent of the charges contained in a
nonbinding estimate provided by the carrier; (3) or in the case of a
partial delivery of the shipment, the prorated percentage of the
charges.
FMCSA will take action to suspend a carrier's or broker's
registration for hostage load violations in accordance with the
procedures in 49 U.S.C. 13905. FMCSA may determine that a hostage load
violation has occurred based on the results of an investigation, an
Agency determination as stated in a final order, or admission by the
motor carrier or broker. FMCSA initiates a proceeding to suspend the
carrier's or broker's registration by issuing an order to the carrier
or broker to show good cause why the registration should not be
suspended in accordance with 49 U.S.C. 13905. The order provides notice
of the alleged violation, explains how to submit a written response
with supporting documentation, and informs the registered entity that
failure to respond and demonstrate good cause will result in suspension
of its registration.
The Agency Official who issued the order reviews the registered
entity's response. After reviewing the response, the Agency Official
issues a written decision and may take one of three actions. First, he
or she may enter an order suspending the entity's
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registration, if the registered entity failed to show good cause why
its registration should not be suspended. Second, the Agency Official
may enter an order directing the registered entity to come into
compliance, if the Agency Official determines that corrective action is
more appropriate than suspension. The compliance order informs the
carrier or broker that willful failure to comply may result in
suspension or revocation of registration. Third, the Agency Official
may determine that suspension is not appropriate and enter an order
terminating the proceeding. This mirrors the procedure the Agency
follows when taking action under 49 U.S.C. 13905 to suspend, amend or
revoke operating authority registration generally, for non-HHG motor
carriers as well as HHG carriers. See 77 FR 46147, 46149 (Aug. 2,
2012).
In determining whether to initiate a registration suspension for
hostage load violations FMCSA generally considers a motor carrier's
six-year compliance history. The six-year period is consistent with
FMCSA's penalty assessment policies regarding ``history of prior
offenses'' under 49 U.S.C. 521(b)(2)(D) and ``pattern of violations''
warranting assessment of maximum civil penalties under section 222 of
MCSIA, see 69 FR 77828 (Dec. 28, 2004) and 74 FR 14184 (Mar. 30, 2009),
and its determinations under 49 U.S.C. 13902 and 13905 on willingness
and ability to comply with applicable regulations. See 77 FR 46147,
46144-46149 (Aug. 2, 2012). Accordingly, FMCSA may suspend the
registration of a carrier or broker found holding a shipment hostage
for a first time for no less than 12 months pursuant to 49 U.S.C.
14915. If a carrier or broker commits a second hostage load violation
within 6 years of the first violation, FMCSA may suspend its
registration for 24 months. If a carrier or broker commits a third
violation within 6 years of the first violation, FMCSA may suspend its
registration for 36 months.
Issued on: September 18, 2012.
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