Trucking Matters

www.motorcarrierlawyer.com
Volume 2, Issue 1 LEGAL NEWS FOR THE TRUCKING COMMUNITY Winter 2005

Inside This Issue:

1. If You’ve Been Fined By The DOT And Requested A Hearing . . . Don’t Feel Pressured to Settle Your Case.
2. Did You Know . . .
3. FMCSA Issues Clarification of Its Policy Statement Regarding Maximum Penalties

If You’ve Been Fined By The DOT And You’ve Requested A Hearing . . . Don’t Feel Pressured to Settle Your Case

Mary Helen Delgado, Esq.

In the Fall 2004 Newsletter, I talked about the importance of responding to any correspondence from the Federal Motor Carrier Safety Administration (FMCSA).  If you get fined by the DOT, they will send you a letter called a Notice of Claim; be sure to reply to that letter within the agency’s deadline to reply.

One of the choices you have for replying to a Notice of Claim is to request a hearing.  If you choose this option, you will likely be contacted by an enforcement program specialist from one of the agency’s Service Centers.  The FMCSA maintains four Service Centers around the country—the Southern Service Center in Atlanta Georgia; the Eastern Service Center in Baltimore, Maryland; the Midwestern Service Center in Olympia Fields, Illinois; and the Western Service Center in Lakewood, Colorado.  As the names suggest, the Service Centers deal with motor carriers whose principal place of business is located in either the Southern, Eastern, Midwestern, or Western parts of the United States.

It is standard operating procedure, in most cases, for the agency to call a company and try to settle a case even if the company has requested a hearing.  The agency will do this because it is backlogged with enforcement cases and wants to try to “clear” that backlog.  But you are not required to settle your case, even if someone at the Federal Motor Carrier Safety Administration calls to ask you if you want to settle the case.

Once the agency settles a case, the settlement agreement becomes the Final Agency Order and in most cases, your enforcement case is over.  The agency goes on to the next case but you could be left with not only a fine to pay but the high likelihood that you will suffer higher penalties (and even maximum penalties permitted by law) if you are cited again and the possibility that your case will impact your SafeStat score.  (SafeStat stands for Motor Carrier Safety Status Measurement System.  According to the FMCSA, it is a data driven analysis system that combines current and historical carrier-based safety performance information to measure the relative safety fitness of interstate motor carriers and intrastate motor carriers who transport hazardous materials.)  The information includes, among other things, data on enforcement history.  That’s where your enforcement case comes into play.

Sometimes, settling a case can be economical and can save both time and resources for your company and the FMCSA.  In certain instances, it may even be better to settle than to proceed to a hearing.  But settling too early, or even settling at all, could be detrimental to your company in the long run.

It is important for a company charged with violations of the Federal Motor Carrier Safety, Commercial, orHazardous Materials Regulations to know that if you have replied in a timely manner to the Notice of Claim, admitted or denied the violations, and requested a hearing, only the FMCSA Assistant Administrator can grant or deny your request for a hearing; no one in either the FMCSA Division Office or the Service Center can deny your request for a hearing.  If the above-described circumstances hold true and if you are told by anyone other than the Assistant Administrator that you cannot have, or won’t get a hearing, ask them to send that to you in writing.  Even so, the agency may have sent you a written final agency order when it was not supposed to.  If that happens, you will have an opportunity to Petition for Reconsideration but you must beat that deadline.

“If you have replied in a timely manner to the Notice of Claim, admitted or denied the violations, and requested a hearing, only the FMCSA Assistant Administrator . . . can grant or deny your request for a hearing.”

If you have completely failed to reply to the Notice of Claim or if your reply is late, then the Field Administrator in one of the Service Centers can deny your request for a hearing by issuing an administrative default order.  In all cases, if your hearing request is denied, you will get something in writing from the agency; if someone tells you verbally that your hearing request is denied, or that you probably will not get a hearing, or if they tell you your reply does not have what it takes to get a hearing, that decision is not official until you receive something in writing from the FMCSA.

DID YOU KNOW . . .

The Research and Special Programs Administration (RSPA) is reorganizing into two agencies:  The Pipeline and Hazardous Materials Safety Administration (PHMSA) and the Research and Innovative Technologies Administration (RITA).  The law to reorganize RSPA was passed November 30, 2004 and was meant, according to the law, to “provide the Department of Transportation a more focused research organization with an emphasis on innovative technology . . ..”  The new organizations will separate the research and regulatory functions once held within RSPA.

This reorganization is a significant departure from the plan proposed a year earlier by DOT Secretary Norman Mineta.  The December 2003 proposal would have moved the hazardous materials transportation program from RSPA to the Secretary of Transportation’s office and would have relocated pipeline safety to the Federal Railroad Administration.

FMCSA Issues Clarification of Its Policy Statement Regarding Maximum Penalties

Mary Helen Delgado, Esq

In the December 28, 2004, issue of the Federal Register, the Federal Motor Carrier Safety Administration (FMCSA) issued a Notice of Clarification and Agency Policy Statement clarifying its September 8, 2000 policy memorandum which implemented Section 222 of the Motor Carrier Safety Improvement Act (MCSIA) of 1999.  Section 222 directed the Secretary of Transportation to assess maximum penalties against any person who committed a pattern of certain types of violations or who, in the past, committed the same or a related violation of those same types of violations.

These are some of the highlights of the agency’s Notice of Clarification:

1. To support assessing maximum penalties against a motor carrier or violator, the FMCSA will not use enforcement cases closed before September 8, 2000, the date it issued internal guidance implementing the December 9, 1999, law regarding maximum penalties.

2. The FMCSA will find that a case is “closed” for purposes of determining whether the maximum penalty law applies when:
   1. An Administrative Law Judge or the agency’s Assistant Administrator makes a decision about whether a violation occurred; or

   2. There is an admission of liability in a reply to a Notice of Claim and in a settlement agreement; or

   3. The agency issues a Notice of Final Agency Order based on a violator’s failure to reply to the Notice of Claim.

3. In order for a case to fall under the “maximum penalty” law, the agency requires that there be three cases within six years.  The six-year period is calculated, according to the FMCSA, by starting with the closing date of the compliance review in the third enforcement case and determining whether there are two prior closed cases against the violator involving violations of the same Part of the regulations during the preceding six years.

4. The maximum penalty could be reduced if there are “extraordinary circumstances.”   The law does not define what “extraordinary circumstances” are and neither does the agency.  It will be up to the violator to demonstrate that “extraordinary circumstances” exist to reduce the penalty.

5. The FMCSA says that its only obligation to notify motor carriers that they will be subject to the “maximum penalty” law will be by advising violators in the Notice of Claim and publishing the amended policy statement in the Federal Register and posting it on its website.

6. The agency’s Service Centers will not be permitted to settle maximum penalty cases for less than the maximum amount but they will be permitted to negotiate terms of payments.

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Mary Helen Delgado, is a private attorney in the San Francisco Bay Area. Before entering private practice, she worked for the DOT for 17 years and was a Senior Trial Attorney for the Federal Motor Carrier Safety Administration, where she managed legal enforcement and compliance matters for the agency’s fourteen western states.  Ms. Delgado can be reached at (925) 756-1645 or at helen-delgado@sbcglobal.net

This publication is designed to provide general information regarding the subject matter covered.  It is provided with the understanding that it will be used as an informational guide only.  While this information is intended, but not guaranteed, to reflect current legal developments, we do not represent or guarantee that it will be complete or up-to-date at the time you view it.  Although prepared by a professional, this publication should not be used as a substitute for legal advice regarding your specific situation.  If you need legal advice, you should consult an attorney.