Regulators scale enforcement efficiencies

Employers have been advised of the prospects for ambitious, federal regulatory measures in this administration’s sunset year. A Federal Motor Carrier Safety Administration-proposed rulemaking and Occupational Safety and Health Review Commission decision support the projection. Both spell demonstrable government efficiency with no pretense of actual taxpayer savings.


The FMCSA-proposed Safety Fitness Determination (SFD) rule would subject carriers to a single determination of “unfit,” requiring they either improve or cease operations. SFD would succeed the three-tier “satisfactory–conditional–unsatisfactory” rating system in place since 1982, and permit the agency to sharply increase the number of carriers whose safety fitness it could assess: up to 75,000 a month versus 15,000 annually under the present system. The proposed methodology would determine when a carrier is not fit to operate commercial motor vehicles in or affecting interstate commerce based on a) performance in relation to a fixed failure threshold established for five of the agency’s Behavior Analysis and Safety Improvement Categories; b) investigation results; or, c) a combination of on-road safety data and investigation information.

While SFD expands the universe of motor carriers subject to tighter FMCSA scrutiny, the Occupational Safety & Health Review Commission decision positions an agency to bring enterprise-wide workplace safety guideline enforcement on the strength of limited inspections and citations. An administrative law judge has determined the Commission may have authority under the Occupational Safety and Health Act (OSH Act) to order abatement measures beyond specific violations for which Warren, Mich.-based supply chain solutions and trucking services provider Central Transport, LLC was cited.

OSHA proposed $330,000 in fines stemming from alleged violation of 14 workplace safety and health standards at a Billerica, Mass., terminal—one of nearly 200 Central Transport locations across the U.S. and Canada. Andover (Mass.) Area Office inspectors observed forklifts with “a variety of defects, including non-functioning horn and/or lights, a damaged tire, and a battery that leaked corrosive acid,” according to a Commission document. “Employees operated the forklifts as much as four hours per day and were exposed to struck-by and tip over hazards.”

Litigation commenced through the Labor Department in December 2014 as Central Transport filed a notice of contest with the Commission. An agency complaint alleged that the company failed to comply with the OSHA powered industrial truck safety standard at locations other than the Massachusetts terminal, and requested a Commission order compelling Central Transport to comply with the standard at all of its locations. A Central Transport motion asked the Commission to strike the Labor Department’s claim for enterprise-wide abatement, arguing that the OSH Act does not permit such expansive measures. OSHA Administrative Law Judge Carol Baumerich denied the motion, holding that the Act’s provision authorizing the remedy of “other appropriate relief” provides the basis for allowing the agency’s claim for enterprise-wide abatement—at all locations where like violations exist—to proceed to trial.

“This is the first decision by an OSHA Administrative Law Judge expressly finding that the U.S. Occupational Safety and Health Review Commission may have the authority under the OSH Act to order abatement measures beyond the specific violations identified in the citations,” said Regional Solicitor of Labor, New England Michael Felsen. “The department is now authorized to demonstrate, by presenting its evidence at trial, that enterprise-wide abatement is merited on the facts of this case.”

Testing OSH Act scope and FMCSA’s proposed SFD go hand in hand with an administration hoping to obscure a weak track record on economic and employment growth. With the clock ticking on Barack Obama’s term, why not test federal agencies’ economies of scale to muscle employers and tout claims of safer workplaces and roadways, among many other lofty, unrealized goals?