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THE FMCSA’S UNIFORM
FINE ASSESSMENT MODEL:
Is it Really a Model of Uniformity?

Mary Helen Delgado*

Introduction and Background

The Federal Motor Carrier Safety Administration (FMCSA) uses the Uniform Fine Assessment (UFA) software to calculate the civil penalty it proposes to assess when it issues a Notice of Claim (NOC), its charging document, to a motor carrier. The UFA software, according to the FMCSA, performs the calculation of a uniform and reasonable fine amount based on the nature of the violations and the various criteria set forth in the Federal Motor Carrier Safety Regulations (FMCSR). The FMCSA, in the executive summary of its December 28, 1999 report titled Uniform Fine Assessments for Violations of the Federal Motor Carrier Safety and Hazardous Materials Regulations1, (UFA report) summarizes the UFA Model as follows:

The principle of a uniform and fair application of penalties is a fundamental tenet of the arbitrary and capricious doctrine. It has been recognized in the criminal law with the advent of uniform sentencing guidelines and is well established in administrative and civil law as well. It connotes principles of equity, fairness, and due process, in that it mandates that companies will be treated equally. The guidance issued previously on penalty assessments was a recognition of the need to treat all carriers equally and that unequal treatment would be a violation of the [Administrative Procedure Act] and the Constitution. For these reasons, the Uniform Fine Assessment software was created.. . . . The Uniform Fine Assessment Models accomplish [application of the statutory factors in a more uniform manner] by removing as much subjectivity from the process as possible. This results in fair and equitable treatment based on the statutory criterion.

The fallacy of the UFA Model, however, is that it is “fair and equitable.” In practice, when two “dummy” motor carrier files are set up in UFA and the same information for both cases, except the gross revenue, is entered into the UFA software, similar results occur. For example, the UFA Model would generate the same fine for a motor carrier grossing $10 (ten dollars) as it would for a motor
carrier with the same violation and history profile grossing $729,000.

The Statutory Criteria

In determining the amount of the civil penalty a violator will be assessed, the FMCSA is required to take into account nine statutory factors.2 What the UFA Model attempts to do is reduce these nine factors to a computable set of steps to arrive at a particular penalty. Notwithstanding the nine statutory factors, or any other combination of mitigating factors , and despite apparent changes made to UFA version 2.1 several years ago, the minimum penalty that will be calculated by the [UFA Model] per case still appears to be $2000.”3

Is the UFA Model Objective?

The method used by the UFA Model is supposed to be “objective.” The Model itself, however, relies, in part, on a field investigator’s subjective determination to establish the penalty. For example, when the UFA Model considers the “Circumstances” factor, one of the nine statutory factors, the UFA report says the “appropriate fine assessment within the range is dependent on the decision maker’s subjective determination concerning the circumstances of the violation.”4 A subjective determination is used because “many of these factors are difficult to measure objectively.”5 The UFA Model, therefore, considers only whether the circumstances of the violation are aggravating or mitigating—a subjective determination left to the investigator.

When the UFA Model considers the “Gravity” factor, one of the nine statutory factors, it considers
the “seriousness” of the violation.6 According to the UFA report, for recordkeeping violations, “seriousness is measured by either the failure to make or keep a record or falsifying a record.”7 For recordkeeping violations then, the UFA Model fails to consider how severe or minor the violation is; it only restates the type of violation charged—failing to make or keep a record or falsifying a record. There is simply no determination of the statutorily required “gravity of the violation.”

For non-recordkeeping violations, the UFA report states that “seriousness is measured in terms of the likelihood of the violation causing an accident.”8 Here, subjectivity plays an important part. If “seriousness” is measured in terms of the “likelihood of the violation causing an accident,” who makes that determination? That person is likely the field investigator. The UFA Model is only capable of calculating the weights and scores of the criteria that gets entered into the Model and these criteria are based on the subjective decision of the investigator who decides whether any given violation is likely to cause an accident or not.

Recent Cases Further
Implicating the Fairness
of the UFA Model

In a recent line of cases,9 dated March 16, 2005, the FMCSA Assistant Administrator issued Orders which placed the “uniformity and fairness” of the UFA into question. In each of the cited ases, the Assistant Administrator stated, “. . . there are questions about how this UFA considered the statutory factors “History” and “Extent,”10 I previously mentioned how other statutory factors, “Circumstances” and “Gravity” are subjectively determined. The Assistance Administrator has now said that there are questions about how two additional factors, “History” and “Extent,” are determined.

The “History” Factor

“The civil penalty is based, in large part, upon the ‘History’ category, for which [the FMCSA] concluded the carrier had been ‘previously assessed or penalized for violations.’ Yet there is no evidence [the motor carrier] had a ‘history of prior offenses,’ which is the statutory criterion.”11 The Assistant Administrator stated, “a carrier cannot have a history of prior offenses if no previous violations are in evidence. . .. The ‘History’ factor means a history of previous violations, not a history of contacts with the agency.”12

The Assistant Administrator has discovered the precise inconsistencies and unfairness inherently built into the UFA Model. Within the UFA Model, the criteria for “history of prior offenses” factor is broken down into seven levels. Looking at those seven levels reveals something very interesting; it is the only criterion of the nine used to calculate both the “per count penalty” as well as the “total penalty.”13

When a field investigator decides what to input into the UFA Model for the “history of prior offenses” factor, he or she has seven choices: 1) No history; 2) Prior safety review or educational contact; 3) Previously cited for violations in other parts, no penalty; 4) Previously cited for violations in the same parts, no penalty; 5) Previously assessed or penalized for violations in other parts; 6) Previously assessed or penalized for violations in the same parts; or 7) Violation of order OR two previous enforcement cases.

The first choice means there have been no prior contacts, or enforcement cases against the motor carrier. The second choice factors in pure agency contacts with the carrier. As for choices three and four, “Previously cited for violations in the same or other parts, no penalty,” the language choice is markedly different from the word used in choices five and six, “Previously assessed or penalized for violations in the same or other parts.” In choices 3 and 4, the word used is “cited.” In choices 5 and 6, the words are “assessed or penalized.” But it appears the FMCSA has not used the terms “assessed or penalized” to mean that there has been a finding of violation or an admission of violation in all cases. Apparently, the FMCSA uses those terms to mean either that there has been a finding of violation or an admission of violation or simply that a Notice of Claim has been issued?

The Assistant Administrator, in the MP Livestock Trust case, cautioned the FMCSA about the validity of whether a motor carrier has “been ‘assessed or penalized for violations’ as alleged in the UFA.”14 The Assistant Administrator said in a footnote to the case, “Although the Notice of Claim used stated it was assessing a civil penalty upon the carrier, the use of that term is improper. The Notice of Claim is merely claiming or proposing, not assessing, a civil penalty.”15

The FMCSA, in its UFA report, admits that prior contacts with the agency will be included in the “history of prior offenses” factor saying, “This [prior history] factor includes prior Compliance Reviews and enforcement cases that have been processed through the federal [FMCSA] system.”16 But as the Assistant Administrator clarified, “History . . . means a history of previous violations, not a history of contacts with the agency.”17

The “Extent” Factor

Just as the Assistant Administrator’s holdings in the five cases cited in Footnote 9 reveals serious concerns about the method used by the FMCSA to determine the “history” factor, the cases also reveal the Assistant Administrator’s concerns which seriously implicate the correctness of the FMCSA’s calculation of the “Extent” factor.

To calculate the “Extent” of the violation, the UFA software typically uses the number of violations discovered by the field investigator during a compliance review and divides that by the number of records the investigator checked. The resulting ratio is the “Extent” of the violations. For example, if the investigator discovers 50 false log violations out of 100 records checked, the “extent of the violations” is 50%. The Assistant Administrator ruled that where, in this example for instance, the FMCSA charges only one of the 50 violations discovered, the “extent” should not be 50 out of 100 or 50%; it should be 1 out of 100 or 1%.

In situations such as the example mentioned above where the FMCSA assumes the “violations discovered” are violations in fact, the Assistant Administrator has said, “The extent-of-violations figure . . . is erroneous . . ..”18 What the FMCSA appears to have been doing is using alleged violations, ones with which it has affirmatively chosen NOT to charge the motor carrier, to negatively impact, and thereby, likely inflate motor carriers’ fines. As the Assistant Administrator said, “While [the FMCSA] ‘had complete discretion to bring or not bring charges on all matters discovered in the [compliance review], those matter which have not been charged and litigated can have no effect on the amount of civil penalties for the charged and established violations.”19

In the cited cases, listed in Footnote 9, the issue became whether the FMCSA’s UFA Model considers alleged violations written on the compliance review report or whether the agency’s UFA considers actual violations which have been charged and determined to exist either by an explicit finding of liability or by the motor carrier’s admission, as the basis for determining the “history of prior offenses.” According to the holdings in this recent line of cases, it is apparent the AssistantAdministrator found inaccuracies and other problems in the calculation of the civil penalty because the FMCSA used violations it chose not to charge, in addition to violations it did charge, to calculate “extent of violations.” What the FMCSA appears to have done is use the number of violations the field investigator says he or she discovered rather than violations with which it has charged the motor carrier and for which it has evidence. By doing this, the agency can artificially inflate the number of violations it has apparently discovered.

Conclusion

The Assistant Administrator’s decisions in the five referenced cases effectively place a moratorium on the FMCSA’s ability to assess any civil penalty based on its use of the Uniform Fine Assessment software, without the agency making substantial and legally sufficient changes to its software. Any Notices of Claim issued after May 24, 2005, which used an unchanged UFA, should be highly suspect and challenged, when appropriate. Also, the FMCSA should be very cautious about turning to its “CR/Roadside Penalty Worksheets” as either a temporary or long-term “fix” to the UFA; the legal sufficiency of those worksheets also should be questioned because the methods used for determining a penalty using those worksheets could possibly be arbitrary and capricious.

The Assistant Administrator has said that “ correct use of UFA algorithms is presumed to meet the statutory requirements.” See cases mentioned in Footnote 9. The rulings in these five cases should have a serious impact on the FMCSA’s ability to presume that the nine-factor statutory requirements have been met simply by using the UFA software.

The Assistant Administrator has questioned the validity of the “number of violations discovered” as it relates to the “Extent” factor. He has made great headway in getting to the issue of fairness and uniformity as it relates to the FMCSA’s assessment of civil penalties against motor carriers under its jurisdiction. But in my opinion, the Assistant Administrator did not go far enough, as mentioned below. His failure to take his analysis one step further is more likely a function of the types of cases he had before him rather than a lack of insight into the workings of the UFA.

The next area of scrutiny should be the validity of the field investigators’ determination of the “number of violations discovered.” As we have seen, this number can significantly affect the amount of a motor carrier’s civil penalty; it can also affect a motor carrier’s safety fitness rating. If the “number of violations discovered” is a significant factor in determining when certain violations reach the 10% threshold for purposes of impacting a motor carrier’s safety rating, the very foundation upon which that “number of violations discovered” rests must be accurate. And the FMCSA must take all necessary steps to ensure that those numbers are, indeed, accurate. As it stands now, only the FMCSA knows how those numbers are obtained and whether the numbers written on the compliance review are an actual reflection of the “number discovered” or not. The questions become: Where is evidence to substantiate the “number discovered.” Does the agency preserve that evidence or not and is it available for review by affected motor carriers?

Whether the FMCSA knew or should have known the history of problems with its UFA Model or the extent of the flaws therein, the agency certainly has been put on actual notice of the “inaccuracies and other problems” with the UFA software used to calculate civil penalties. Those in TLA Feature Articles the motor carrier industry who are subject to the FMCSA’s jurisdiction should not be left totrust, on blind faith, the numbers on the compliance review or fall victim to the agency’s inability or unwillingness to be fair in its assessment of civil penalties simply because it may be a difficult thing to do.

Endnotes

* Mary Helen Delgado is an attorney with the Delgado Law Offices in Antioch, California. She is also a former Senior Trial Attorney for the Federal Motor Carrier Safety Administration.

1. This report is available on the USDOT Docket Management system, http://dms.dot.gov, as an attachment to the Paul A. Michels dba Michels Trucking case, Docket No. FMCSA-2000-7960, Document #11 (February 8, 2001).

2. The nine factors which must be taken into account in determining the amount of any civil penalty are: the nature, circumstances, extent, and gravity of the violation committed and, with respect tothe violator, the degree of culpability, history of prior offenses, ability to pay, effect on ability to continue to do business, and such other matters as justice and public safety may require. 49 U.S.C. §521(b)(2)(D).

3. Uniform Fine Assessments for Violations of the Federal Motor Carrier Safety and Hazardous Materials Regulations, December 28, 1999, page 4. Compare this information with the July 7, 1999, “Documentation” information found at http://infosys.fmcsa.dot.gov/downloadResults2UFA.asp. The document, titled, UFA Version 2.1 New Features & Changes, states, “UFA no longer has a minimum fine of $2,000.” Although the file at this web address is dated July 7, 1999, the document, when opened, is dated January 11, 2000. The current version of UFA is Version 2.4.3.

4. Id. at 5

5. Id.

6. Id. at 6

7. Id.

8. Id.

9. See MP Livestock Trust, Docket No. FMCSA-2001-10610-11, March 16, 2005; L & W Trucking, LLC, Docket No. FMCSA-2001-11002-9 March 16, 2005; G.E Robinson Company, Inc., Docket No. FMCSA-2003-14980-4, March 16, 2005; Charley Transportation, Inc., Docket No. FMCSA-2001-10952-7, March 16, 2005; and Starving Students Moving Systems, Inc. dba Official Moving Systems, Docket No. FMCSA-2001-10187-14, March 16, 2005.

10. Id. at 4, 7, 7, 3, and 5, respectively.

11. MP Livestock Trust, Docket No. FMCSA-2001-10610-11 at 4 and Charley Transportation, Inc., Docket No. FMCSA-2001-10952-7 at 3.

12. L & W Trucking, LLC, Docket No. FMCSA-2001-11002-9 at 7.

13. Uniform Fine Assessments for Violations of the Federal Motor Carrier Safety and Hazardous Materials Regulations, December 28, 1999, at 6

14. MP Livestock Trust, Docket No. FMCSA-2001-10610-11 at 5.

15. Id.

16. Uniform Fine Assessments for Violations of the Federal Motor Carrier Safety and Hazardous Materials Regulations, December 28, 1999, at 6.

17. L & W Trucking, LLC, Docket No. FMCSA-2001-11002-9 March 16, 2005, at 7.

18. G.E Robinson Company, Inc., Docket No. FMCSA-2003-14980-4, March 16, 2005, at 8.

19. L & W Trucking, LLC, Docket No. FMCSA-2001-11002-9 March 16, 2005, at 7-8, citing House of Raeford Farms, Inc., Docket No. FHWA-94-5264, Order on Motion for Summary Judgment and Motion to Strike, March 10, 1995, at 20.

Note: Following the Assistant Administrator’s Orders as noted in Footnote 9, the FMCSA requested, and received, stays and extensions of time to file petitions for reconsideration in the following cases: MP Livestock Trust, Docket No. FMCSA-2001-10610; L & W Trucking, LLC, Docket No. FMCSA-2001-11002; G.E Robinson Company, Inc., Docket No. FMCSA-2003-14980; and Starving Students Moving Systems, Inc. dba Official Moving Systems, Docket No. FMCSA-2001-10187.

On April 20, 2005, the FMCSA notified the Assistant Administrator that it had withdrawn the Notice of Claim which proposed a penalty of slightly more than $41,000 in Charley Transportation, Inc., Docket No. FMCSA-2001-10952 because the agency chose not to pursue enforcement.

On May 24, 2005, the stays were lifted and the dockets closed in all other cases listed in Footnote 9 because the FMCSA failed to submit a petition for reconsideration in each of the cases in which it requested an extension of time to do so.