3 days ago
Does DOT's enforcement policy put truck safety at risk?
WASHINGTON — A new enforcement policy being considered by the U.S. Department of Transportation marks a significant change in enforcement of trucking violations, and crash-victim advocates are concerned it will make the roads less safe.
In a Notice of Proposed Rulemaking (NPRM) issued in May, the DOT is proposing several administrative changes, including how it oversees enforcement procedures by several of its modal agencies, including the Federal Motor Carrier Safety Administration.
The NPRM 'proposes updates to the Department's procedural requirements governing the review and clearance of guidance documents, and the initiation and conduct of enforcement actions, including administrative enforcement proceedings and judicial enforcement actions brought in Federal court,' the proposal states.
Significantly for the trucking industry, DOT's proposal follows a trend within government to push adjudication out of the regulatory agencies and into the federal courts.
Unless a statute or regulation clearly authorizes an agency such as FMCSA to enforce a legal requirement directly through an administrative enforcement proceeding, DOT's NPRM states, 'the proper forum for the enforcement action is Federal court, and the enforcement action must be initiated in court by attorneys of the Department of Justice acting in coordination with DOT counsel.'
Zach Cahalan, executive director of the Truck Safety Coalition, a truck-crash victim advocacy group, believes that placing enforcement for truck industry violations in the hands of courts and judges unfamiliar with how the industry operates could result in less enforcement and riskier carriers.
'TSC is deeply concerned that these changes will severely diminish DOT's ability to enforce safety regulations against carriers,' Cahalan told FreightWaves.
'The notion that regulated entities should have their fate decided by federal judges rather than the DOT is absurd and unheard of. Make no mistake, this is a radical departure from the longstanding accepted norms and will only benefit industry. This will result in far less enforcement and more unsafe carriers operating discriminately on our roads.'
Cahalan also noted DOT's plan to adopt the 'Brady rule' in all enforcement actions, including those of the FMCSA, as part of the proposed rule. The rule states that the government has a duty to disclose exculpatory information – information that could clear someone of guilt or blame – in criminal cases.
Adopting the rule for enforcement actions 'will contribute to the Department's goal of open and fair investigations and administrative enforcement proceedings,' DOT stated.
'These disclosures should include any material evidence … that may be favorable to the regulated entity in the enforcement action—including evidence that tends to negate or diminish the party's responsibility for a violation or that could be relied upon to reduce the potential fine or other penalties.'
But adopting such a practice, Cahalan said, 'does strike me as favorable to industry.'
Brian Stansbury, who was chief counsel at FMCSA during the Biden administration, understands why safety advocates are concerned with the proposed policy shift.
'Giving members of the regulated community the ability to disqualify the enforcement official that they're dealing with gives the regulated community real power to push back on enforcement proceedings,' Stansbury, now a partner at the law firm Hunton Andrews Kurth LLP, told FreightWaves in an interview.
'My concern is that it could make enforcement harder for the department if the first move every single time by a member of the regulated community is to try to disqualify the enforcement official. This could result in additional delays and wasted resources spent addressing requests to disqualify. This is an even greater concern with respect to FMCSA enforcement, where you have so many enforcement matters occurring at any given time.'
Regarding adoption of the Brady rule in administrative enforcement actions, 'I believe government enforcement officials should be held to a high level of impartiality with a focus on justice, not getting a favorable result, and I am comfortable with the regulated community to have tools to ensure they get exculpatory information,' he said.
'But it also gives bad actors a tool to delay and undermine enforcement actions, and those bad actors are probably the ones most inclined to operate unsafely. It's the risk of abuse that we have to be thoughtful about.'
P. Sean Garney, co-director of Scopelitis Transportation Consulting and an FMCSA regulations expert, said that while DOT's policy shift seeks to reduce regulatory red tape, it is no gift to the trucking industry.
'I think this is more about regulatory philosophy than an industry versus safety issue,' Garney told FreightWaves. 'Some regulations protect industry and keep bad actors out. Good actors in the industry have a vested interest in setting a reasonable standard through regulation.'
Garney pointed out that a provision within the proposal that weakens the power of guidance documents could actually work against the industry.
'Without this guidance they won't know how to stay compliant and will not have a reliable foundation on which to build their operations.'
The deadline for public comment on DOT's proposed enforcement changes is June 16.
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Click for more FreightWaves articles by John Gallagher.
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