BEFORE THE FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION UNITED STATES DEPARTMENT OF TRANSPORTATION SUPPLEMENTAL COMMENTS OF THE

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1 BEFORE THE FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION UNITED STATES DEPARTMENT OF TRANSPORTATION SUPPLEMENTAL COMMENTS OF THE OWNER-OPERATOR INDEPENDENT DRIVERS ASSOCIATION, INC. IN RESPONSE TO FMCSA S NOTICE OF PROPOSED RULEMAKING PATTERNS OF SAFETY VIOLATIONS BY MOTOR CARRIER MANAGEMENT Docket No. FMCSA JAMES J. JOHNSTON PAUL D. CULLEN, SR. President PAUL D. CULLEN, JR. Owner Operator Independent The Cullen Law Firm, PLLC Drivers Association, Inc th Street, N.W., Suite 300 Washington, DC 20007

2 I. STATEMENT OF INTEREST These supplemental comments are submitted on behalf of Owner-Operator Independent Drivers Association, Inc. ( OOIDA or Association ) in response to the Notice of Proposed Rulemaking and Request for Comments published by the Federal Motor Carrier Safety Administration, ( FMCSA or Agency ), Docket No. FMCSA , 77 Fed. Reg (November 13, 2012) (the Notice or NPRM ). The Notice requests comments on FMCSA s proposed rule to suspend or revoke the operating authority registration of motor carriers that have shown egregious disregard for safety compliance or that permit person who have shown egregious disregard for safety compliance to act on their behalf. These supplemental comments raise a few additional issues not covered in OOIDA s previous comments. OOIDA supports the goals of this rulemaking. In these supplemental comments, OOIDA asks FMCSA to clarify some of the terms it uses in the language of the rules, and to clarify some of the agency s explanations of the proposed rule in the Notice s discussion section. OOIDA is a not-for-profit corporation incorporated in 1973 under the laws of the State of Missouri, with its principal place of business in Grain Valley, Missouri. OOIDA is the largest international trade association representing the interests of independent owner-operators, smallbusiness motor carriers, and professional drivers. The approximately 150,000 members of OOIDA are professional drivers and small-business men and women located in all 50 states and Canada who collectively own and operate more than 200,000 individual heavy-duty trucks. Single-truck motor carriers represent nearly half of the total of active motor carriers operated in the United States. The mailing address of the Association is: Owner-Operator Independent Drivers Association, Inc. P.O. Box NW OOIDA Drive Grain Valley, Missouri

3 The Association actively promotes the views of professional drivers and small-business truckers through its interaction with state and federal government agencies, legislatures, courts, other trade associations, and private businesses to advance an equitable and safe environment for commercial drivers, including those with their own federal motor carrier operating authority. OOIDA is active in all aspects of highway safety and transportation policy, and represents the positions of professional drivers and small-business truckers in numerous committees and various forums on the local, state, national, and international levels. In sum, OOIDA s mission includes the promotion and protection of the interests of independent truckers on any issue which might touch on their economic well-being, their working conditions, or the safe operation of their motor vehicles on the nation s highways. The proposed rule will govern OOIDA members who have their own operating authority, and it will affect the work environment of OOIDA members who operate commercial motor vehicles for motor carriers. OOIDA supports the goals of this Notice to deny or revoke operating authority to those persons with the most egregious records violations of the safety rules. In these supplemental comments, OOIDA suggests additional ways in which this effort could be improved such as doing a better job of engaging the public to help identify bad actors attempting to evade FMCSA attention while staying in the industry. OOIDA also asks for clarification of several aspects of the proposed rule. OOIDA is concerned for the lack of definition of egregious and concerned for the possibility that such determinations be made on data that is neither valid nor accurate. Were FMCSA to find that a motor carrier has shown an egregious disregard for safety compliance, the loss of operating authority would be the death knell for the business. A finding that a person has shown an egregious disregard for safety, including a driver, would make that person unemployable in the trucking industry. Small business motor carriers and their drivers 3

4 are, therefore, interested in ensuring that FMCSA s procedures are fair, correct, lawful, and constitutional. II. COMMENTS OOIDA asks FMCSA to clarify and offers comments on several proposed provisions, and offers suggestions for FMCSA to make this rule more effective. A. Please clarify the FMCSA s interpretation of the Definition of Officer in proposed section The definition of Officer under 49 U.S.C. ' 31135(d)(2), includes any person, however designated, exercising controlling influence over the operations of a motor carrier. In the Notice, FMCSA offers its interpretation of what kind of persons fall into that definition. Historically, owner-operator drivers assume some level of control over their business and the operation of the commercial motor vehicle. This control is subject to the responsibility that motor carriers must assume over its owner-operators. See 49 C.F.R. ' (c)(1). In practice, the amount of control that a motor carrier exercises over its owner-operators varies from carrier to carrier. FMCSA s analysis of proposed Section (a)(2) states that [a] person exercising controlling influence could be an employee, contractor, consultant or other advisor acting on behalf [of] the motor carrier. Therefore, OOIDA asks FMCSA to clarify whether, in its interpretation of that definition, owner-operator drivers are intended to be one of the subjects of this rulemaking when they cannot otherwise be characterized as an owner, director, chief executive officer, chief operating officer, chief financial officer, safety director, vehicle maintenance supervisor, and driver supervisor of a motor carrier, regardless of the title attached to those functions 4

5 B. FMCSA can and should be more specific as to what makes up a pattern or practice under section OOIDA believes that FMCSA has the authority and responsibility to more specifically define what conduct it will consider to be a pattern or practice of violating the safety rules. OOIDA agrees in principal that motor carriers who pose a threat to public safety by repeated violations of the rules, including concealment of those violations, should be subject to the suspension or revocation of their operating authority. OOIDA understands and agrees that FMCSA will need to exercise discretion in making such determinations. But that need does not preclude the agency from establishing a more precise baseline formula from which such discretion is exercised. It is possible for FMCSA to create a more exact formula to define pattern and practice without being strictly tied to it. Current FMCSA rules under 49 C.F.R. Part 385 demonstrate that the agency has experience in categorizing FMCSR violations as acute and critical, giving each a numerical score that contributes to a motor carrier s safety rating. Such score can lead to the revocation of a motor carrier s operating authority. OOIDA asks FMCSA, in a comment below, to help distinguish the function of this new rule from the proceedings under Part 385. For this comment, however, Part 385 demonstrates that FMCSA has the expertise to categorize and quantify a motor carrier s safety violation. It should revise the proposed rule to provide a similar level of specificity. Unless FMCSA provides more specific guidance to the term pattern or practice, then FMCSA will find itself mired in disputes as to what that term means and whether the enforcement official found sufficient evidence to justify such enforcement actions. Carriers with different levels of egregious safety records will be treated differently by enforcement officials, and motor carriers with the same safety records will face different enforcement 5

6 actions by different enforcement officials. Even though the occasional incorrect roadside inspection may not itself make a pattern or practice of a violation of the safety rules, under the broad rule proposed by FMCSA, there may be some instances where one single violation would make the difference in an enforcement official s determination of a pattern or practice of safety violations. FMCSA s effort to further define pattern or practice would protect the regulated community in two important ways. It would help ensure that FMCSA enforcement officials adhere to the same standards when performing their duties ensuring uniform application of the rule. Such a standard would also give motor carriers more of a clear warning, before FMCSA must take action, that they are at risk to lose their authority and that they must correct their safety practices. Of course all motor carriers should seek to achieve the fewest violations possible, but this regulation is focused on stopping the worst offenders. If motor carriers find it difficult or impossible to compare their safety record with an elusive and inexact enforcement threshold, then the agency, and public safety, loses much of the deterrent impact of the new rule. C. OOIDA asks FMCSA to clarify some of the terminology to describe the motor carrier behavior it seeks to address in section and In promulgating rules that implement a statute, the agency is bound to use the terms provided in the statute. Here, FMCSA adopts some of that language in the proposed rule. Some of the terms beg for clarification. Part Avoiding Regulatory Compliance Does FMCSA interpret this term to mean anything other than violating the rules? 6

7 Concealing Regulatory Non-Compliance Does FMCSA interpret this to mean anything other than concealing violations of the rules? The analysis for Section refers to one category of offending actions as failing or concealing the failure to (2) comply with FMCSA, State, or local order intended to redress violations of Federal regulatory safety requirements. This description appears to refer to out-of-service orders. Does FMCSA intend this language to mean out-of-service orders? Does FMCSA intend this language to mean any other type of orders, and if yes, can FMCSA please provide examples? Part FMCSA entitles this section Pattern or practice of avoiding, masking or concealing. It is clear that FMCSA should focus on identifying patterns or practices of violations of the rules. As to concealment, however, to what extent will FMCSA be focused on finding a pattern or practice of concealment? Is FMCSA also interested in single acts of concealing a pattern or practice of rule violations (such as the failure to disclose prior or current affiliations with motor carriers on new applications for motor carrier authority)? D. What data will FMCSA rely upon to determine patterns of safety violations? What sources of information will enforcement officials rely upon to determine that a motor carrier has engaged in a pattern or practice of violating the safety rules or concealing such violations? Will FMCSA rely upon inspection reports submitted to MCMIS by it state enforcement partners under MCSAP? Will FMCSA rely upon violations of the rules to be discovered for the first time during a safety audit? Are there any other sources of information that FMCSA will rely upon for such enforcement practices? For the purpose of these comments, OOIDA reasserts the position it has taken in other forums, including pending litigation, questioning the accuracy of the inspection data that 7

8 FMCSA collects in its database. In most instances, such inspections are submitted by persons who are accountable to no independent third party for the accuracy of their work. Most drivers and motor carriers have had no opportunity to challenge or ask for a review of their inspection report. FMCSA s DataQs system merely asks the enforcement agency that produced the inspection report to review its own work. The driver and carrier have no opportunity to ask an independent fact finder to perform such a review. And when the motor carrier or driver does have such an opportunity in a state court of law and achieves a dismissal of the allegation of a safety violation, FMCSA refuses to take action to delete that inspection report from its database, deferring on that decision to the state enforcement agency who failed to prove its allegation in state court. Until FMCSA resolves these issues, the extent to which the proposed rule relies upon invalid and unreliable data will undermine its lawfulness (and utility). E. Improvements to the FMCSA Register would allow the public to help FMCSA identify individuals seeking to reincarnate as a new motor carrier. With regarding to FMCSA s investigation of new application of operating authority to identify common ownership, common management, or common control by persons with a history of violating the rules, FMCSA would be greatly aided by members of the public if it were to make its FMCSA Register more accessible and informative. Drivers who have been the victim of demands to violate the law by unscrupulous motor carriers have an intense interest in keeping those actors out of the industry. Motor carriers who face unfair competition from motor carriers who ignore or seek safety short-cuts to gain a competitive edge have a similar interest. Drivers and motor carriers who have a personal knowledge of motor carrier officials could also help FMCSA identify new applications for motor carrier authority that involve individuals connected to a history of non-compliance with the safety 8

9 rules. The FMCSA Register is an online document that purports to give the public notice of different stages of FMCSA administrative decisions, including applications for authority, regarding motor carriers. The FMCSA Register web site information itself, however, is not in plain English, is difficult to understand, and only makes public its information for a short period of time before it is removed and before the deadlines for public comments are due. The FMCSA Register fails to provide meaningful functionality to the public. F. What is FMCSA s standard for failing to disclose affiliated motor carriers on an application for operating authority? One focus of this rulemaking is to identify individuals who have a history of violating the safety rules but who attempt to escape the consequences of that history by applying for new motor carrier operating authority. What standards will FMCSA use under the new rule to deny motor carrier operating authority to individuals who conceal, or avoid disclosing, affiliation with existing or former motor carriers on their application for operating authority. In response to several applications for authority by Mexico-domiciled motor carriers, OOIDA has uncovered, and brought to FMCSA s attention, the failure of several of these applicants to disclose affiliated motor carriers. OOIDA noted in those comments that failure to provide all requested information is a violation of the oath of the person who signed such applications. In most of those circumstances, FMCSA waived off these non-disclosures as inconsequential and took no negative action on the application. Therefore, OOIDA asks, do these new rules provide any baseline standard for such avoiding, masking, or concealing past or current affiliation with other motor carriers? 9

10 G. What are the differences in the purpose and function of the propose rules and the existing motor carrier rating and disciplinary Rules in 49 U.S.C. Part 385? The proposed rule will be added to Title 49 Code of Federal Regulations Part 385. Part 385 already contains procedures for reviewing the safety fitness of motor carriers and taking disciplinary action against them. OOIDA asks FMCSA to explain in more detail how the new rules mesh with the existing rules. Are the new rules intended to create an entirely new enforcement process? Do the new rules simply provide FMCSA with another disciplinary option at the end of a safety audit? What functions do the proposed suspension proceedings serve that are different from existing procedures in Parts 385 and 386? III. CONCLUSION OOIDA support the concept of FMCSA taking action to remove the worst actors in motor carrier safety management from the motor carrier industry. Such persons routinely put the careers and the safety of drivers at risk. But FMCSA must write its rules so that they can be clearly understood and uniformly enforced, and so that they accurately and fairly identify those persons who are the worst actors in the industry. /s/paul D. Cullen, Jr. PAUL D. CULLEN, JR. THE CULLEN LAW FIRM, PLLC JAMES J. JOHNSTON th Street N.W. President Suite 300 Owner-Operator Independent Washington, DC Drivers Association, Inc. (202) January 14,