WASHINGTON — New enforcement rights proposed for truck drivers and trucking companies under investigation will create a “chilling effect” within the federal government at the expense of safety, crash victim advocates warn.
Responding to a Notice of Proposed Rulemaking (NPRM) issued by the U.S. Department of Transportation in May, the Truck Safety Coalition (TSC), which represents victims of truck crashes and their families, emphasized the NPRM’s “enforcement rights” provision as particularly troublesome.
“The NPRM proposes that regulated parties, at any point during enforcement action, petition the DOT General Counsel with claims that DOT personnel violated rules throughout the course of the enforcement action,” TSC President Tami Friedrich Trakh and TSC Executive Director Zach Cahalan wrote in comments published on Tuesday.
According to the provision, if such violation claims against DOT personnel can be corroborated, DOT’s general counsel can direct the Federal Motor Carrier Safety Administration to provide the following relief:
- Removal of the enforcement team from the particular matter.
- Elimination of certain issues or the exclusion of certain evidence or the directing of certain factual findings in the course of the enforcement action.
- Restarting the enforcement action again from the beginning or recommencing the action from an earlier point in the proceeding.
In addition, the provision allows the general counsel to recommend disciplinary action against the FMCSA investigator that committed the violation.
The relief measures being proposed are “highly irregular and inconsistent with established norms for federal regulators,” TSC contends.
“First of all, it creates a chilling effect for DOT/FMCSA personnel to know that the party they are investigating can file a complaint with the DOT Secretary about their conduct and face discipline.
“Furthermore, what constitutes discipline? The NPRM does not address this obvious question. Does this mean staff can be terminated? Will they be subject to leave without pay? There is no question that these newly proposed ‘enforcement rights’ will result in DOT/FMCSA enforcement staff performing their life-saving work with trepidation and deference to the parties they investigate.”
Providing such a complaint channel also creates a “de facto pardon mechanism” for the Transportation secretary to veto any enforcement case for any reason the secretary sees fit, TSC warns, and is inappropriate for a regulated-regulator relationship.
“DOT/FMCSA staff should not have to concern themselves with the political connectedness of the carriers they investigate, but rather, be guided only by the evidence yielded during the investigation. The enforcement process has historically been safeguarded from the potential for political interference precisely because politics has no role in safeguarding the public from motor carriers who operate with reckless disregard for safety regulations.”
The American Trucking Associations, on the other hand, whose members include the country’s largest trucking companies, believes the new provision “could provide a valuable channel for regulated stakeholders to seek redress and improve accountability in enforcement practices,” wrote Brenna Lyles, ATA’s senior director for safety policy, in comments published by DOT on Tuesday.
Pointing out that non-federal enforcement officials also enforce FMCSA regulations, Lyles asked DOT to clarify whether the violation petition process would also be available in enforcement actions conducted by such officials.
Lyles also sought clarification on how the new enforcement provision would affect the assignment of safety ratings and Compliance, Safety, Accountability [CSA] scores.
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