Ask X3What does 49 CFR 386.73 (Operations out of service and record consolidation proceedings (reincarnated carriers)) require?
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As Ask X3, your fleet-compliance assistant, here is what 49 CFR 386.73 requires and authorizes regarding operations out of service and record consolidation proceedings:
Under 49 CFR 386.73, the FMCSA may issue an out-of-service order to prohibit a motor carrier (or related entity like a broker, freight forwarder, or intermodal equipment provider) from conducting operations, or issue an order consolidating its records with a previous or affiliated incarnation, if it determines the entity is operating under a new identity or as an affiliate to:
1. Avoid complying with an FMCSA order;
2. Avoid complying with a statutory or regulatory requirement;
3. Avoid paying a civil penalty;
4. Avoid responding to an enforcement action; or
5. Avoid being linked with a negative compliance history.
Practical details for a motor-carrier owner:
* Standards: FMCSA determines a carrier is "reincarnated" if there is substantial continuity between entities making one a mere continuation of the other, or an "affiliate" if business operations share common ownership and/or control. Factors include the purpose of creation, safety history, asset transfers, common management, addresses, equipment, insurance, drivers, and scope of operations.
* Effective Date: An order becomes a Final Agency Order and takes effect on the 21st day after it is served, unless you file a timely request for administrative review. Failing to comply with the order subjects you to penalties for each instance of noncompliance.
* Challenging the Order: You may petition for administrative review in writing within 15 days of service. This review is strictly limited to contesting factual or procedural errors—it cannot be used to show corrective action. You must serve the petition to the Agency Decisionmaker and a copy to the issuing FMCSA official. Timely filing stays the effective date of the order (unless the Agency Decisionmaker orders otherwise for good cause), but failing to request review on time waives your right to contest the order and admits the facts alleged.