Although the Federal Motor Carrier Safety Administration (FMCSA) has not traditionally used historical data to penalize motor carriers either by adverse safety ratings or civil penalties, changes in how the agency uses such information now pose significant problems for motor carriers.
The FMCSA does not assign safety ratings without a compliance review, but it has long used a motor carrier’s so-called performance history data as a measure of a company’s safety status. This data consists of the results of roadside inspections, moving violation history, violations discovered during compliance reviews, driver’s license information, and accidents. This data is collected, analyzed, distributed, and used in a number of federal and state information systems. For example, the Motor Carrier Management Information System (“MCMIS”), Safety and Fitness Electronic Records (“SAFER”), Inspection Selection System (“ISS”), Query Central (“QC”), ASPEN, Comprehensive Analysis and Performance Review Information Systems (“Capri”).
In 2005 FMCSA instituted the hazardous materials safety permit regulation, which uses roadside inspection data maintained in MCMIS either to grant or deny a hazardous materials safety permit. 49 C.F.R. Part 385.407 requires that a company meet certain levels of roadside inspection data in order to receive a hazardous materials safety permit. A company will be denied a safety permit if it has a crash rate in the top 30 percent of the national average as indicated in the MCMIS; or has a driver, vehicle, hazardous materials, or total out-of- service rate in the top 30 percent of the national average as indicated in the MCMIS. While numerous groups and individual companies have challenged this methodology and requested revisions to the rule, the FMCSA has yet to modify its procedures for assigning hazardous materials safety permits.
The denial of a hazardous materials safety permit to a hazmat carrier is the equivalent of an unsatisfactory safety rating in that a company denied a permit cannot transport materials for which an HM permit is required. Additionally, federal personnel at the FMCSA’s Eastern Service Center appear to be assessing civil penalties based solely upon roadside inspection data collected by State personnel. These cases are generally for insurance and registration violations as well as violations pertaining to the MCS-150 but also have been extended to other areas, e.g., operating a vehicle in a condition likely to cause a breakdown. See e.g. In the Matter of Buck Lines Trans, Inc., FMCSA-2007-28625 (Field Administrator’s Submission of Evidence June 28, 2007).
Within the past two years, the FMCSA’s COMPASS initiative has been billed as an IT initiative designed to:
Help FMCSA and State enforcement personnel and industry make America's roads safer. A key component of COMPASS is the commitment to implementing a new operational model being developed as part of the Comprehensive Safety Analysis 2010 (CSA 2010) initiative. COMPASS is now leveraging a service-oriented architecture and leading technologies to develop a solution that can adapt easily to a changing environment. The FMCSA Portal, the first phase of COMPASS, provides single sign-on access to MCMIS, EMIS, L&I, and DataQs via a single password and user ID. Over time, the Portal will provide access to all FMCSA existing systems.
The goal of CSA 2010 is to “develop a new approach to assessing the motor carrier safety performance of a larger segment of the motor carrier industry, while optimizing the use of Agency resources.” www.fmcsa.dot.gov. CSA 2010 is designed to help FMCSA affect a larger number of motor carriers and drivers using a broader array of compliance interventions. A key component of CSA 2010 is the use of the historical data to assess safety performance and to effect so-called “interventions,” which conceivably will include the assessment of civil penalties. In simple terms this means that the roadside inspection reports and the violations noted by inspectors will be used by the federal government to assign safety ratings and assess civil penalties.
Like most federal agencies, the FMCSA has large industry oversight responsibilities with limited resources. It sees increased use of the data collected by both federal and state personnel as a means to reach more motor carriers with fewer resources. In theory, the use of the data in this manner seems an ideal way to leverage scarce government resources. However, it is clear that the FMCSA has consistently refused to consider the complex due process and data accuracy issues associated with the use of this data. Moreover, the FMCSA has yet to address lingering data accuracy and reporting issues. DOT Inspector General Letter to Representative Petri, June 19, 2007.
Although a number of industries have requested that FMCSA revisit the data requirements contained in the HM Permit rule, the FMCSA has, as yet, refused to respond to these requests. See FMCSA Policy on Calculating Crash Rates, 72 Fed. Reg. 62795 (November 7, 2007). It has affirmed the use of the data based upon its determination that challenges to the methodology could only be made as a challenge to the rulemaking and consistently defended its use of the roadside data. See e.g., In the Matter of Ace Transportation, FMCSA-2005-21432 (Final Order October 20, 2005); In the Matter of S. Vitale Pyrotechnic Industries, Inc. FMCSA-2007-27395 (Agency’s Response to Petition March 28, 2007).
Based upon the methodology contained in the HM permitting regulation; FMCSA’s failure to address lingering data issues presented by use of the roadside inspections to deny the HM permit; and its unorthodox use of roadside data to penalize motor carriers in the Eastern Service Center, it is unlikely that the FMCSA will address the relatively complex and unique due process issues inherent in the collection and use of the data to assess a motor carrier’s safety performance or to assess civil penalties when it enacts the myriad of rulemakings which will be required for CSA 2010.
Currently, the FMCSA contends that the “Data Q’s” system affords an opportunity for a motor carrier to address and correct roadside inspection data. The limits of this system are patently clear to anyone who has attempted to correct or dispute roadside inspection data. The Data Q’s system directs a challenge to the roadside inspection directly back to the state enforcement personnel who conducted the roadside inspection or their supervisors. The state roadside inspection personnel generally uphold their prior determination. What is more disturbing is the lack of any clear understanding by the state and federal government of whether the data collected during a roadside inspection constitutes “state” or “federal” action.
In one recent instance, a motor carrier client challenged a violation cited during a roadside inspection which was also pursued by the State as a separate ticketed violation. The case was dismissed by the State at trial. The client submitted a request through the Data Q’s system asking that the so-called violation be removed from its record. The State responded that it would not remove the violation because it was a “violation” regardless of what the State’s attorney had determined at trial.
When pressed, the State further asserted that it had a right to maintain the dismissed charge on the client’s data record because the “feds said that it could.” No clear authority exists on what appeal rights motor carrier has to further challenge the continued presence of this now-incorrect data on its record. While the continued presence of the data may seem like a trivial issue, when the data is incorrect and when it contains defamatory information it can have a significant adverse impact on a company’s reputation and its business.
If the federal government intends to use the roadside inspection data in a manner that penalizes a motor carrier, it must provide a meaningful way for motor carriers to challenge the results of those inspections. The Data Q’s system does not adequately protect a motor carrier’s due process rights. Imagine, for example, receiving a speeding ticket and only being able to challenge the ticket by writing a letter to the officer who wrote the ticket. If that officer predictably upheld the ticket, no further appeal rights would be available.
Now imagine that this information was then published on the internet by the federal government. It is viewable by the driver’s employer and business contacts. Furthermore, it is used by the federal government to determine whether the driver is likely to speed in the future. Finally, in addition to the ticket the driver received from the State, the federal government will also be sending a fine in the mail. That is the current state of the information systems used by the FMCSA and their future intended uses.
Many carriers who believe that they have adequate or even superior safety records will undoubtedly be unconcerned with the implementation of CSA 2010 or the data issues raised in this article. However, these carriers may find that when the CSA 2010 regulations are enacted, they fall short of the identified standards and are subject to increased regulatory oversight and civil penalties.
For example, take a large company that has over 1,000 roadside vehicle inspections. Assume that its roadside vehicle inspection rates are below the averages set forth by the FMCSA. Regardless of this record, the FMCSA would still be able to send a civil penalty for each and every violation noted during each and every roadside inspection--regardless of whether the violations constituted out-of-service violations. While this approach may seem far fetched, in the government world where results are measured in metrics, it is not inconceivable.
In the future, it will be necessary to closely monitor the FMCSA’s activities with regard to its COMPASS and CSA 2010 initiatives to ensure that the agency provides adequate procedural protections. In the meantime, companies should closely monitor their data for accuracy in anticipation of such data being used as a tool to measure a company’s safety status and as a tool for increased enforcement efforts.
McMillan Metro, P.C.