Motor Carrier Management Information System (MCMIS) Changes To Improve Uniformity in the Treatment of Inspection Violation Data, 32491-32496 [2014-13022]
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Dated: May 27, 2014.
Dennis J. McLerran,
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For reasons set out in the preamble,
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HAZARDOUS SUBSTANCES
POLLUTION CONTINGENCY PLAN
1. The authority citation for part 300
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■
Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C.
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1991 Comp., p. 351; E.O. 12580, 52 FR 2923;
3 CFR, 1987 Comp., p. 193.
Appendix B to Part 300—[Amended]
32491
inspection data quality. This document
describes the MCMIS changes, responds
to comments received on the proposed
changes and provides the schedule for
implementation of these changes.
DATES: June 2, 2014.
FOR FURTHER INFORMATION CONTACT: Ms.
Courtney Stevenson, Federal Motor
Carrier Safety Administration, 1200
New Jersey Avenue SE., Washington,
DC 20590, telephone 202–366–5241 or
by email: courtney.stevenson@dot.gov.
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SUPPLEMENTARY INFORMATION:
■
I. Public Participation and Request for
Comments
[FR Doc. 2014–13059 Filed 6–4–14; 8:45 am]
On December 2, 2013 (78 FR 72146),
FMCSA encouraged interested parties to
submit comments and related materials
to docket number FMCSA–2013–0457.
2. Table 1 of Appendix B to part 300
is amended by removing the entry for
‘‘OR’’, ‘‘Harbor Oil’’, ‘‘Portland’’.
BILLING CODE 6560–50–P
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
49 CFR Parts 383 and 390
[Docket No. FMCSA–2013–0457]
Motor Carrier Management Information
System (MCMIS) Changes To Improve
Uniformity in the Treatment of
Inspection Violation Data
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Interpretative Rule and
Statement of Policy.
AGENCY:
FMCSA announced proposed
changes to its Motor Carrier
Management Information System
(MCMIS) on December 2, 2013. These
changes will allow the States to reflect
the results of adjudicated citations
related to roadside inspection violation
data collected in MCMIS. Individuals
must submit certified documentation of
adjudication results through a Request
for Data Review (RDR) in FMCSA’s
DataQs system to initiate this process.
MCMIS is being modified to accept
adjudication results showing that a
citation was dismissed or resulted in a
finding of not guilty; resulted in a
conviction of a different or lesser
charge; or, resulted in conviction of the
original charge. The adjudication results
will impact the use of roadside
inspection violation data in other
FMCSA data systems. These changes are
intended to improve roadside
SUMMARY:
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Viewing Comments and Documents
To view comments, as well as
documents mentioned in this document
as being available in the docket, go to
https://www.regulations.gov and insert
the docket number, ‘‘FMCSA–2013–
0457’’ in the ‘‘Keyword’’ box and click
‘‘Search.’’ Next, click ‘‘Open Docket
Folder’’ button and choose the
document listed to review. If you do not
have access to the Internet, you may
view the docket by visiting the Docket
Management Facility in Room W12–140
on the ground floor of the DOT West
Building, 1200 New Jersey Avenue SE.,
Washington, DC 20590, between 9 a.m.
and 5 p.m. Monday through Friday,
except Federal holidays.
Privacy Act
All comments the Agency received
were posted without change to https://
www.regulations.gov and include any
personal information provided. Anyone
may search the electronic form of all
comments received into any of our
dockets by the name of the individual
submitting the comment (or of the
person signing the comment, if
submitted on behalf of an association,
business, labor union, etc.). You may
review DOT’s complete Privacy Act
Statement in the Federal Register
published on January 17, 2008 (73 FR
3316), or you may visit https://
edocket.access.gpo.gov/2008/pdf/E8785.pdf.
II. Executive Summary
Complete, timely, accurate, and
consistently-reported inspection data
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enables FMCSA to achieve its safety
mission by identifying and addressing
trends in regulatory compliance. States
adopt and enforce Federal standards for
motor carrier safety and hazardous
materials transportation under State law
as an eligibility requirement for receipt
of grant funds under the Motor Carrier
Safety Assistance Program (MCSAP).
MCSAP also requires that States report
violations discovered through roadside
inspections to FMCSA data systems and
that they participate in FMCSA’s
national data correction system known
as DataQs.
In addition to the inspection data
reported to FMCSA, States may issue a
citation associated with a violation
noted in the roadside inspection. Such
citations may subsequently be
adjudicated in a due process system.
The change reflected in this document
and in FMCSA’s data systems will allow
motor carriers or drivers to submit the
results of an adjudicated citation
through the DataQs system. After
confirming the adequacy of the
documentation submitted in an RDR,
the State will submit the adjudication
results into the new field created to
record this information.
Adjudication results recorded in
MCMIS will potentially impact other
FMCSA data systems, such as the
Agency’s Safety Measurement System
(SMS) and the Pre-employment
Screening Program (PSP).
Based on feedback to the December 2,
2013, notice, the Agency has
determined that it will not apply this
policy retroactively. The policy
announced in this document applies to
inspections occurring on or after August
23, 2014. Accordingly DataQs will be
modified to accept RDRs related to
adjudicated citations in August 2014.
The August 23, 2014, date is based on
the time needed for State
implementation of compatible State
information technology (IT) systems
able to record and transmit the
adjudication data.
III. Compliance With the
Administrative Procedure Act
This document announces changes to
MCMIS that support a more consistent
program for handling DataQs seeking
recognition of adjudicated citations.
This document contains a general
statement of policy and reflects a change
in Agency practice and procedures with
respect to the handling of adjudicated
citations through DataQs and in Agency
information systems. The
Administrative Procedure Act (APA), 5
U.S.C. 552(a)(1)(D), requires agencies to
provide public notice of statements of
general policy by publication in the
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Federal Register. Such ‘‘interpretative
rules, general statements of policy or
rules of agency organization, procedure,
or practice’’ are not subject to the APA’s
notice and comment requirements (5
U.S.C. 553(b)(A)). This document does
not amend any Agency regulation nor
does it change how data correction is
sought through DataQs. The IT and
program changes announced in this
document allow FMCSA and the States
to receive more complete information
on the subsequent disposition of
citations issued during roadside
inspections by accepting certified
records of adjudication results
submitted through the DataQs process.
Presently, MCMIS contains records of
inspections, including violations
observed by law enforcement officers,
during such commercial motor vehicle
(CMV) inspections. See 78 FR 59082,
59083 (September 25, 2013). Because
MCMIS has always been a system that
records roadside inspection data,
MCMIS records presently do not reflect
convictions, acquittals or other
subsequent adjudications or
adjustments of charges that occur during
subsequent due process proceedings. A
driver has always been able to challenge
the correctness of a violation that has
been cited in a roadside inspection
report using the DataQs system, whether
a citation has been issued for that
violation or not.
As currently required in the MCSAP
grant program, pursuant to 49 CFR
350.201(s), the States must ‘‘establish a
program to ensure that accurate,
complete, and timely motor carrier
safety data are collected and reported,
and ensure the State’s participation in a
national motor carrier safety data
correction system prescribed by
FMCSA.’’ Today’s announced policy
change is thus within the scope of the
current MCSAP program.
IV. Background
A. Databases for Inspection Data
State and local law enforcement
officials routinely conduct roadside
inspections documenting violations of
laws or regulations that are compatible
with the Federal Motor Carrier Safety
Regulations (FMCSRs) and Hazardous
Materials Regulations (HMRs). See 49
CFR 350.105 (defining ‘‘compatible or
‘‘compatibility’’). These law
enforcement officials, at their discretion,
may issue citations for the violations
recorded on the roadside inspection
report. States are responsible for
entering roadside inspection and
violation data into SafetyNet, a database
management system that allows entry,
access, analysis, and reporting of data
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from driver/vehicle inspections,
crashes, investigations, assignments,
and complaints. SafetyNet provides data
to MCMIS that interfaces with several
databases, including: (1) The Safety and
Fitness Electronic Records (SAFER)
system; (2) PSP; and (3) SMS. SafetyNet
and MCMIS have always contained
records of inspections and reportable
crashes.
B. Motor Carrier Safety Data Correction
System
As noted, pursuant to 49 CFR
350.201(s), one condition for
participation in the Motor Carrier Safety
Assistance Program (MCSAP) is that a
State establish a program to ensure that
accurate and timely motor carrier safety
data are collected and reported and that
the State participates in a national
motor carrier safety data correction
system prescribed by FMCSA. DataQs is
that national motor carrier data
correction system (49 CFR 350.211)
(State certification at paragraph 11).
DataQs is an online system that
provides an electronic means for
drivers, motor carriers, and members of
the public to submit concerns about the
accuracy of crash, inspection, and
violation data in FMCSA data systems.
When a request for an RDR is filed, the
DataQs system automatically forwards
the request to the appropriate Federal or
State office for processing and
resolution (https://
dataqs.fmcsa.dot.gov/).
The data system and policy changes
announced in this document will allow
drivers, motor carriers, and members of
the public to file an RDR in FMCSA’s
DataQs system and to seek
acknowledgement of the adjudication in
the inspection record. The change in the
State data systems will parallel
corresponding changes to FMCSA data
systems. A citation that has been
resolved through a judicial or
administrative process, regardless of
outcome, is considered to be
adjudicated.
FMCSA believes these changes will
(1) provide a uniform and orderly
process to incorporate recording
adjudicated citations through DataQs
under the State’s MCSAP Commercial
Vehicle Safety Plans and budgets (see 49
CFR 350.213 for description of CVSP);
(2) provide an effective process to
ensure system effectiveness and data
quality; and (3) reduce the cost of
applying and implementing these
changes across the Agency and the
States. FMCSA is requiring that MCSAP
grantees follow this policy of recording
adjudication results as a condition of
their grant funding under 49 CFR
350.201.
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V. Discussion of Public Comments and
FMCSA Responses
A. General Discussion
FMCSA announced proposed changes
to MCMIS on December 2, 2013 (78 FR
72146). The Agency received 111
unique comments during the 30-day
comment period. Seventy of the 111
comments supported the proposed
changes, with commenters stating that
this change will help ensure that drivers
and carriers are treated justly. Steve
Davis, a fleet owner for FedEx Ground,
said, ‘‘I strongly approve of this change
to allow updated court information to be
included in MCMIS. This will improve
uniformity without question and give a
true account of the resolution of
violation information.’’ More than half
of the supporting commenters (38) did
not identify themselves with a specific
stakeholder group. The remaining
commenters in support of the changes
were motor carriers (17) and
representatives of industry associations
(9) and the Commercial Motor Vehicle
Safety Alliance (CVSA).
The motor carriers that commented
included Coach USA, DART Transit
Company, J.B. Hunt, Sharp Transport,
Inc., and Stallion Transportation Group.
The industry associations that
submitted comments included the
Alliance for Safe, Efficient and
Competitive Trucking Transportation
(ASECTT), American Bus Association
(ABA), American Moving and Storage
Association (AMSA), American
Trucking Associations, Inc. (ATA),
Institute of Makers of Explosives (IME),
International Food Distributors
Association (IFDA), Minnesota Trucking
Association/Minnesota Trucking
Associate Safety Council (MTA/
MTASC), National Association of Small
Trucking Companies (NASTC), OwnerOperator Independent Drivers
Association, Inc. (OOIDA).
Those commenters generally opposing
the changes offered suggestions to
improve the proposal. These included
Advocates for Highway and Auto Safety
(Advocates), American Association for
Justice (AAJ), the Kentucky State Police,
the Pennsylvania State Police, and the
West Virginia Public Service
Commission. One commenter, Jeff
Steeger, who did not identify himself
with a particular group, objected to the
policy and stated it would ‘‘allow
carriers and their drivers to improve
their SMS score while demonstrating a
continued lack of compliance with our
safety regulations.’’
The common areas of concern
included enforcement impacts; pleas,
dismissals, and other court actions;
retroactive implementation; workload
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and resources; continued uniformity
concerns; and questions about the
impacts on SMS weighting based on
violation on the conviction.
Comments to the docket also
addressed consistency in the processing
of RDRs, other quality assurance
initiatives, crash weighting and the
process for requesting appeals. Most of
these issues are outside of the scope of
the December 2, 2013, notice and,
therefore, are not addressed herein. It
should be noted, however, that the
Agency is involved in separate
initiatives addressing many of these
issues.
FMCSA received comments seeking
clarification on what is a ‘‘conviction’’
under FMCSA regulations and
expressing concerns that routinelyassessed fees may inadvertently count
as ‘‘convictions.’’ In Section V.A. of
today’s document the Agency clarifies
how it interprets the regulatory
definitions in 49 CFR 383.5 and 390.5.
B. Enforcement Impacts
Both law enforcement and industry
commenters expressed concerns that
changing how data systems address
violations in roadside inspections based
on adjudicated citations would result in
law enforcement officers issuing fewer
citations. The impact of this change
would be that officers would issue more
warnings, which cannot be adjudicated
by a court. Four commenters affiliated
with law enforcement agencies
indicated that this change would result
in an influx of RDRs and increased
workload. Coach USA urged that,
‘‘FMCSA should not accept information
regarding violations from state officials
unless the state issued a citation for the
alleged violation at issue.’’
FMCSA acknowledges that law
enforcement agencies may alter their
enforcement practices as a result of
today’s policy change. However, it
remains the Agency’s position that these
process changes will improve data
quality, accuracy, and uniformity. The
Agency’s interests are in capturing fair
and accurate violations in MCMIS.
FMCSA has never provided direction to
law enforcement on when to issue
citations and defers to those agencies for
the best ways to enforce the violations
they observe.
C. Dismissals, Pleas and Other Court
Actions
The treatment of dismissed citations
was the most common topic addressed
by commenters. Sixteen commenters
argued that a dismissed citation does
not always indicate that the violation
did not occur at the time of the
inspection and, therefore, dismissed
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citations should not be the sole basis for
removing violations from inspection
reports. These commenters expressed
the opinion that often citations are
dismissed based on plea bargaining or
technical issues such as the carrier’s or
driver’s evidence of corrective action, a
lenient judge or jury, an absent officerwitness, or a clerical error.
Several commenters expressed
concern that there will be increased
attempts to plea bargain to a violation
with a lower severity weight to improve
SMS scores. Additionally, commenters
expressed concern about court clerks
causing errors or officers being unable to
attend hearings, resulting in dismissals.
Lt. Colonel Keith Percy of the Kentucky
State Police, stated that ‘‘Criminal court
systems, already overburdened with
cases considered more serious than
traffic violations, are under great
pressure to deal cases away, and traffic
cases fall away with little, if any,
political consequence.’’
Advocates for Highway and Auto
Safety recommended that ‘‘the agency
should maintain discretion to retain
citations, even when dismissed, if such
dismissals are not on the merits and
indicate a pattern and practice that
would violate the prohibition against
masking of traffic violations.’’
FMCSA acknowledges that these
scenarios may occur. However, there are
checks and balances in place to prevent
improper dismissal of commercial
driver violations, including 49 CFR
384.226 that prohibits States from
masking convictions, deferring
imposition of judgment, or allowing an
individual to enter into a diversion
program that would prevent a
commercial learner’s permit (CLP) or
CDL holder’s conviction from appearing
on the Commercial Driver’s License
Information System (CDLIS) driving
record.
On the issue of burden on the system,
it should be noted that, notwithstanding
the nearly 3.5 million inspections
conducted from January 1, 2013,
through December 31, 2013, there were
fewer than 40,000 RDRs submitted
through DataQs for this period.
Based on an annual estimate of 3.5
million inspections, only 1.1 percent of
inspections resulted in an RDR. The
Agency has confidence that the courts
will strive to objectively evaluate the
charged violations and that dismissals
of citations for administrative or other
reasons will not have a significant
impact on the reliability of safety data.
Additionally, the Agency will continue
to provide outreach to courts and
prosecutors to explain the serious
impacts of cases involving CMVs and
commercial drivers and to improve their
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knowledge and understanding of CMV
violations and their potential
consequences.
As part of its data quality program,
FMCSA will be monitoring the
incoming data on adjudicated citations
to look for patterns that might indicate
routine masking of violations by State
officials and take appropriate action to
address these situations.
D. Prospective Implementation
The December 2, 2013, notice
specifically asked for comment on the
Agency’s plan to implement these
changes prospectively. Only six
commenters addressed the issue. Three
representatives of industry associations
recommended that the Agency apply the
policy retroactively, starting from the
implementation of the Compliance,
Safety, Accountability program in 2010.
Two members of the law enforcement
community supported the prospectiveonly application of the policy. Stephen
Keppler of the Commercial Vehicle
Safety Alliance noted that applying the
policy retroactively would have
significant adverse impacts, including
decreased data uniformity and
consistency, and an increase in States’
workloads that could deplete their
resources. Mr. Keppler also stated that
prospective implementation of this
policy ‘‘allows for improved planning,
resource allocation and management for
both the States and FMCSA.’’
The Kentucky State Police indicated
that they would expect the number of
RDRs submitted to increase
significantly, especially due to
dismissals. The Pennsylvania State
Police noted that there would be
significant workload impact on the
minor judiciary. The Agency therefore
continued to consider workload in
deciding not to implement this change
retroactively.
FMCSA continues to believe that
prospective application will mitigate the
potential for significantly increased
numbers of RDRs, based on hundreds—
potentially thousands—of past
adjudicated citations, which could
quickly exhaust States’ DataQs
capability. Such a drain on State DataQs
staff could prevent States from promptly
acting on other RDR requests and/or
could create a need to redirect scarce
State resources, adversely affecting
motor carrier safety enforcement. As
previously stated, FMCSA believes that
prospective application will (1) provide
a uniform and orderly process for the
States to incorporate this policy into
their State MCSAP plans and budgets
(see 49 CFR 350.213); (2) provide an
effective process that the Agency can
test to ensure system effectiveness and
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data quality; and (3) reduce the cost of
applying and implementing these
changes across the Agency and the
States.
Based on the comments and the
workload and safety impacts noted
above, the Agency has determined that
it will implement the policy and
changes prospectively. The policy
announced in this document applies to
inspections occurring on or after August
23, 2014. Accordingly, DataQs will be
modified to accept RDRs related to
adjudicated citations in August 2014.
E. Uniformity and Masking
Commenters expressed concern that
this proposal effectively moves the
decision making on roadside inspection
data from the State DataQs officials to
the courts, where the decisions will not
be any more consistent, based on the
courts’ and judges’ varying knowledge
of CMVs, CDLs, and motor carrier safety
regulations.
The IFDA expressed concern that,
‘‘. . . this continued broad delegation of
authority to the states directly
contradicts a primary rationale for the
announced changes which is to
‘‘improve uniformity across the states.
Given this obvious inconsistency, we
question how much actual difference
the announced changes are likely to
make.’’
As previously noted, FMCSA will
continue and increase its outreach
efforts to courts and prosecutors to
remind them of the prohibition in 49
CFR 384.226 on masking convictions,
deferring imposition of judgment, or
allowing an individual to enter into a
diversion program that would prevent a
CLP or CDL holder’s conviction for a
violation, in any type of motor vehicle,
of a State or local traffic law (other than
parking, vehicle weight, or vehicle
defect violations) from appearing on the
CDLIS driving record.
F. Adequate Documentation
Commenters requested more
information on the Agency’s definition
of adequate documentation needed to
demonstrate dismissal or other
adjudication outcome. ATA
recommended that the Agency ‘‘clearly
define ‘adequate documentation’ for the
purposes of this notice.’’ ATA further
indicated that ‘‘FMCSA must instruct
States which documents are acceptable
and provide motor carriers and drivers
with recourse to amend their records
should a State refuse to accept proof of
adjudication.’’
FMCSA will accept scanned copies of
certified documentation from the
appropriate court or administrative
tribunal. Examples include but are not
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limited to certified records of the docket
entry, the order of dismissal, or entry of
a ‘‘not guilty’’ determination. FMCSA
recognizes that the varying nature and
types of tribunals may result in varying
types of official documentation that
contain the adjudication results, and
thus the Agency has not specifically
limited the type of document that must
be submitted. The submitter should
obtain certified documents that are
clearly identified and verifiable. These
documents must be uploaded into the
DataQs system for verification by a State
official. Alternatively, the
documentation may include a Web site
link to an official court Web site with
adjudication results.
G. SMS Weighting
AAJ and ATA questioned which SMS
severity weights would be used if a
conviction was for a different charge
than the initial cited violation. FMCSA
clarifies that where the adjudication
results in a conviction to a different
charge, the severity weight will be
reduced to a 1 in SMS. The chart in
Section V.D. of this document provides
more detail on the impact of changes in
SMS and PSP.
VI. Overview of Changes
A. Terms Used in the Document
For purposes of this document, the
following terms have the meaning
indicated.
Adequate Documentation: For the
purpose of processing an RDR seeking to
document the result of an adjudicated
citation, FMCSA finds that scanned
copies of certified documentation from
the appropriate court or administrative
tribunal or providing a direct web link
to the adjudication results of an official
court or agency Web site presents
adequate and verifiable documentation
of the adjudication result.
Adjudicated Citation: Refers to a
citation that has been contested and
resolved through a due process
proceeding in a State, local, or
administrative tribunal, regardless of
how the action is resolved, whether by
a judge or prosecutor or as part of a plea
agreement or otherwise.
Citation: Refers to a notice, issued by
a law enforcement officer to a CMV
driver for a violation of law or an
adopted FMCSR or HMR. The driver
may contest the citation through a Stateprovided administrative or judicial
system.
Conviction: This term is defined in 49
CFR 383.5 and 390.5 as an unvacated
adjudication of guilt, or a determination
that a person has violated or failed to
comply with the law in a court of
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original jurisdiction or by an authorized
administrative tribunal, an unvacated
forfeiture of bail or collateral deposited
to secure the person’s appearance in
court, a plea of guilty or nolo
contendere accepted by the court, the
payment of a fine or court costs, or
violation of a condition of release
without bail, regardless of whether or
not the penalty is rebated, suspended, or
probated.
Court Costs: FMCSA interprets ‘‘court
costs’’ as fees imposed by a court or
administrative tribunal that are
intended to cover the State’s expenses of
handling the case. Payment of an
incidental expense uniformly imposed
on all persons that appear before a
particular court or tribunal regardless of
case outcome should not be considered
a court cost under FMCSA’s regulatory
definition of ‘‘Conviction.’’ Examples of
excluded, non-punitive court costs
include but are not limited to
scheduling fees, the cost of a certified
copy of the court’s docket or order, or
attorney fees.
Fine: A sum of money imposed as a
penalty for an offense. A court cost may
be considered a fine when the amount
charged exceeds the amount generally
imposed for court costs and is akin to
a penalty.
Unvacated: Refers to an order or
judgment that has not been canceled or
rescinded.
B. New Data Field for Adjudicated
Citations Results
Previously, SafetyNet and MCMIS
recorded inspection and violation data
from the initial inspection report only
and did not contain a data field that
would allow the State to append the
result of an adjudicated citation to the
appropriate violation on the inspection
report. With these changes, SafetyNet
and MCMIS will be modified to provide
a field that may be populated with the
adjudication result of a citation
associated with the related inspection
report. The adjudication result will
impact the use of the related violations
in SMS and PSP, as indicated in the
chart below in Section V.D.
32495
C. Revised DataQs Guidance to the
States
FMCSA will issue revised direction to
the States on receiving, reviewing, and
documenting adjudication results when
an RDR containing adequate
documentation is submitted. Upon
confirming the adequacy and accuracy
of the documentation, States will enter
the adjudication result in the field
appending the inspection record in
SafetyNet. State and Federal data
systems will be modified to accept data
concerning a citation associated with a
violation that was dismissed or resulted
in a finding of not guilty or resulted in
a conviction of a different or lesser
charge.
D. Impact of Changes in SMS and PSP
The following table indicates how the
adjudication outcomes documented in
MCMIS will impact the use of the cited
violation in FMCSA’s SMS and PSP
databases:
Result of adjudicated citation associated with a
violation uploaded to MCMIS
Violation in SMS
Violation in PSP
Dismissed with fine or punitive court costs ..........
Dismissed without fine or punitive court costs .....
Not Guilty ..............................................................
Convicted of a lesser charge ................................
Violation not removed ..........................................
Remove violation ..................................................
Remove violation ..................................................
Append inspection to indicate violation ‘‘Resulted
in conviction of a different charge.’’ Change
severity weight to 1.
Violation not removed.
Remove Violation.
Remove Violation.
Append inspection to indicate violation
‘‘Resulted in conviction of a different
charge.’’
As required by FMCSA’s MCSAP
regulations (49 CFR part 350), States
must follow the Agency’s regulatory
definition of ‘‘conviction’’ in 49 CFR
383.5 and 390.5 and address RDRs
accordingly. Thus, when an RDR
indicates that a court dismissed a
citation while still imposing a fine or
punitive court cost, the outcome will be
recorded in MCMIS as a conviction.
rmajette on DSK2TPTVN1PROD with RULES
E. Prohibition on Masking Convictions
FMCSA regulation at 49 CFR 384.226
prohibits States from masking
convictions, deferring imposition of
judgment, or allowing an individual to
enter into a diversion program that
would prevent a CLP or CDL holder’s
conviction for any violation, in any type
of motor vehicle, of a State or local
traffic control law (other than parking,
vehicle weight, or vehicle defect
violations) from appearing on the CDLIS
driving record, whether the driver was
convicted for an offense committed in
the State where the driver is licensed or
another State. The Agency views the
practice of courts dismissing citations
after a guilty plea has been entered or
VerDate Mar<15>2010
14:48 Jun 04, 2014
Jkt 232001
following payment of a fine or
mandatory contribution to a State or
local program as a condition of
dismissal, as ‘‘masking’’ of a commercial
driver’s violation of State or local traffic
control laws. Masking convictions
allows commercial drivers to
accumulate multiple serious traffic
safety violations without the driver’s
State of licensure or other States being
aware of the driver’s actual driving
history, and it is for this safety reason
that such practices are prohibited.
The changes to State and FMCSA data
systems outlined in this document will
enable both the Agency and the State
licensing agencies to better track and
document patterns and practices that
are inconsistent with 49 CFR 384.226
concerning the masking prohibition.
States found to have used masking or
other diversionary programs may be
found in substantial noncompliance and
could risk decertification of their CDL
programs, which could impact grant
funding.
PO 00000
Frm 00063
Fmt 4700
Sfmt 4700
VII. Implementation Plan
A. Policy
FMCSA’s State Programs Division
will issue direction to the MCSAP
agencies explaining the expectations
and responsibilities related to the
adjudicated citation process. This policy
will apply to inspections occurring on
or after August 23, 2014, and will be
included in the next version of the
DataQs manual.
B. Training
FMCSA will conduct training for
DataQs analysts through DataQs email
blasts, training bulletins and webinars.
The webinars and other training will be
provided to DataQs analysts before the
policy is implemented to improve the
consistency of implementation. The
Agency will also be providing training
to its own staff. In addition, information
will be available on the Agency’s Web
site and on the DataQs Web site.
E:\FR\FM\05JNR1.SGM
05JNR1
32496
Federal Register / Vol. 79, No. 108 / Thursday, June 5, 2014 / Rules and Regulations
Issued on: May 30, 2014.
Anne S. Ferro,
Administrator.
[FR Doc. 2014–13022 Filed 6–2–14; 11:15 am]
BILLING CODE 4910–EX–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 622
[Docket No. 121004515–3608–02]
RIN 0648–XD307
Fisheries of the Caribbean, Gulf of
Mexico, and South Atlantic; 2014
Limited Commercial and Recreational
Fishing Seasons for Red Snapper in
the Southern Atlantic States
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; limited fishing
seasons.
AGENCY:
NMFS has determined that
limited commercial and recreational
fishing seasons can occur in 2014.
Therefore, NMFS announces the
commercial and recreational annual
catch limits (ACLs) for red snapper in
the South Atlantic exclusive economic
zone (EEZ) for the 2014 fishing year, the
opening and closing dates of the 2014
recreational fishing season, and the
opening date of the 2014 commercial
fishing season through this temporary
rule. The 2014 commercial ACL is
50,994 lb (23,130 kg), gutted weight, and
the 2014 recreational ACL is 22,576 fish.
Based on NMFS projections, the
recreational fishing season in 2014 will
be open for three consecutive weekends,
starting July 11, 2014, and consist of 3
days the first two weekends (Friday,
Saturday, Sunday) and 2 days the third
weekend (Friday and Saturday). The
commercial fishing season in 2014 will
open on July 14, 2014, and NMFS will
monitor commercial harvest in-season
and close the commercial sector when
the commercial ACL is reached or
projected to be reached by filing an inseason closure notification with the
Office of the Federal Register. This
temporary rule is necessary to announce
the limited fishing seasons for South
Atlantic red snapper to provide socioeconomic benefits to snapper-grouper
fishermen and communities that utilize
the red snapper resource while at the
same time allowing red snapper to
rebuild to sustainable levels.
rmajette on DSK2TPTVN1PROD with RULES
SUMMARY:
VerDate Mar<15>2010
14:48 Jun 04, 2014
The 2014 recreational fishing
season will open at 12:01 a.m. on July
11, 2014, and close at 12:01 a.m. on July
14, 2014; open at 12:01 a.m. on July 18,
2014, and close at 12:01 a.m. on July 21,
2014; and open at 12:01 a.m. on July 25,
2014, and close at 12:01 a.m. on July 27,
2014. The 2014 commercial fishing
season will open at 12:01 a.m. on July
14, 2014, and remain open until NMFS
publishes an in-season closure
notification in the Federal Register.
FOR FURTHER INFORMATION CONTACT:
Catherine Hayslip, telephone: 727–824–
5305, email: Catherine.Hayslip@
noaa.gov.
SUPPLEMENTARY INFORMATION: The
snapper-grouper fishery of the South
Atlantic, which includes red snapper, is
managed under the Fishery
Management Plan for the SnapperGrouper Fishery of the South Atlantic
Region (FMP). The FMP was prepared
by the Council and is implemented
through regulations at 50 CFR part 622
under the authority of the MagnusonStevens Fishery Conservation and
Management Act (Magnuson-Stevens
Act).
On July 24, 2013, NMFS published a
final rule to implement Amendment 28
to the FMP (78 FR 44461). In part, the
final rule for Amendment 28 to the FMP
established a process for setting
commercial and recreational ACLs and
determining whether limited
commercial and recreational fishing
seasons for red snapper in or from the
South Atlantic EEZ can occur during a
given fishing year. That final rule also
implemented accountability measures
(AMs) for South Atlantic red snapper, if
limited fishing seasons are allowed in a
fishing year, including setting a season
length for the recreational sector and
implementing an in-season closure
when the commercial ACL is reached or
projected to be reached. The final rule
for Amendment 28 to the FMP also
implemented a 75-lb (34-kg) commercial
trip limit during the limited commercial
fishing season and a 1-fish per person
recreational bag limit during the limited
recreational fishing season.
DATES:
Jkt 232001
Red Snapper Harvest in 2014
NMFS used the formulas established
in Amendment 28 to the FMP to
determine if harvest of red snapper
could occur in 2014. In accordance with
50 CFR 622.193(y), the total removals
(landings plus dead discards) for 2013
were compared to the 2013 ABC to
determine if the ABC was exceeded and
thus whether the ACL for 2014 could be
set greater than zero. In 2013, total
removals equaled 72,881 fish. Because
the 2013 total removals for red snapper
PO 00000
Frm 00064
Fmt 4700
Sfmt 4700
are less than the 2013 ABC of 96,000
fish, NMFS has determined that the
ACL for 2014 can be set greater than
zero and that limited commercial and
recreational fishing seasons may be
established in 2014.
NMFS has determined that the 2014
total ACL for red snapper in the South
Atlantic EEZ is 31,386 fish. Based on
the current allocation ratio for red
snapper (28.07 percent commercial and
71.93 percent recreational), the 2014
commercial ACL is 50,994 lb (23,130
kg), gutted weight, and the 2014
recreational ACL is 22,576 fish. For
details regarding the calculation of the
commercial and recreational ACLs and
the recreational season length, please
see SERO–LAPP–2014–06 ‘‘2014 South
Atlantic Red Snapper Annual Catch
Limits and Recreational Season Length
Projection’’, which can be found at
https://sero.nmfs.noaa.gov/sustainable_
fisheries/s_atl/sg/documents/pdfs/sa_
rs_acl_season_projections.pdf.
NMFS has determined the length of
the recreational fishing season for 2014.
The recreational fishing season will be
open for three weekends consisting of 3
days the first two weekends (Friday,
Saturday, Sunday) and 2 days the third
weekend (Friday and Saturday). The
recreational fishing season for red
snapper in the South Atlantic EEZ will
open at 12:01 a.m. on July 11, 2014, and
close at 12:01 a.m. on July 14, 2014;
open at 12:01 a.m. on July 18, 2014, and
close at 12:01 a.m. on July 21, 2014; and
open at 12:01 a.m. on July 25, 2014, and
close at 12:01 a.m. on July 27, 2014.
After the recreational sector closes, both
harvest and possession of red snapper
under the bag limit are prohibited.
NMFS has determined that the 2014
commercial fishing season for red
snapper in the South Atlantic EEZ will
open at 12:01 a.m. on July 14, 2014, and
NMFS will monitor commercial harvest
in-season and close the commercial
sector when the commercial ACL is
reached or projected to be reached by
filing an in-season closure notification
with the Office of the Federal Register.
After the commercial sector closes, both
sale and purchase of red snapper in or
from the South Atlantic EEZ are
prohibited. When the recreational and
commercial sectors are closed, all
harvest and all possession of red
snapper in the South Atlantic EEZ will
be prohibited.
In accordance with 50 CFR
622.183(b)(5), if the Regional
Administrator, Southeast Region,
NMFS, (RA) determines tropical storm
or hurricane conditions exist, or are
projected to exist, in the South Atlantic,
during the 2014 commercial or
recreational fishing season, the RA may
E:\FR\FM\05JNR1.SGM
05JNR1
]]>Agencies
[Federal Register Volume 79, Number 108 (Thursday, June 5, 2014)]
[Rules and Regulations]
[Pages 32491-32496]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-13022]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 383 and 390
[Docket No. FMCSA-2013-0457]
Motor Carrier Management Information System (MCMIS) Changes To
Improve Uniformity in the Treatment of Inspection Violation Data
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Interpretative Rule and Statement of Policy.
-----------------------------------------------------------------------
SUMMARY: FMCSA announced proposed changes to its Motor Carrier
Management Information System (MCMIS) on December 2, 2013. These
changes will allow the States to reflect the results of adjudicated
citations related to roadside inspection violation data collected in
MCMIS. Individuals must submit certified documentation of adjudication
results through a Request for Data Review (RDR) in FMCSA's DataQs
system to initiate this process. MCMIS is being modified to accept
adjudication results showing that a citation was dismissed or resulted
in a finding of not guilty; resulted in a conviction of a different or
lesser charge; or, resulted in conviction of the original charge. The
adjudication results will impact the use of roadside inspection
violation data in other FMCSA data systems. These changes are intended
to improve roadside inspection data quality. This document describes
the MCMIS changes, responds to comments received on the proposed
changes and provides the schedule for implementation of these changes.
DATES: June 2, 2014.
FOR FURTHER INFORMATION CONTACT: Ms. Courtney Stevenson, Federal Motor
Carrier Safety Administration, 1200 New Jersey Avenue SE., Washington,
DC 20590, telephone 202-366-5241 or by email:
courtney.stevenson@dot.gov. FMCSA office hours are from 9 a.m. to 5
p.m., e.t., Monday through Friday, except Federal holidays. If you have
questions on viewing or submitting material to the docket, call Docket
Operations, telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
I. Public Participation and Request for Comments
On December 2, 2013 (78 FR 72146), FMCSA encouraged interested
parties to submit comments and related materials to docket number
FMCSA-2013-0457.
Viewing Comments and Documents
To view comments, as well as documents mentioned in this document
as being available in the docket, go to https://www.regulations.gov and
insert the docket number, ``FMCSA-2013-0457'' in the ``Keyword'' box
and click ``Search.'' Next, click ``Open Docket Folder'' button and
choose the document listed to review. If you do not have access to the
Internet, you may view the docket by visiting the Docket Management
Facility in Room W12-140 on the ground floor of the DOT West Building,
1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5
p.m. Monday through Friday, except Federal holidays.
Privacy Act
All comments the Agency received were posted without change to
https://www.regulations.gov and include any personal information
provided. Anyone may search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or of the person signing the comment, if
submitted on behalf of an association, business, labor union, etc.).
You may review DOT's complete Privacy Act Statement in the Federal
Register published on January 17, 2008 (73 FR 3316), or you may visit
https://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.
II. Executive Summary
Complete, timely, accurate, and consistently-reported inspection
data
[[Page 32492]]
enables FMCSA to achieve its safety mission by identifying and
addressing trends in regulatory compliance. States adopt and enforce
Federal standards for motor carrier safety and hazardous materials
transportation under State law as an eligibility requirement for
receipt of grant funds under the Motor Carrier Safety Assistance
Program (MCSAP). MCSAP also requires that States report violations
discovered through roadside inspections to FMCSA data systems and that
they participate in FMCSA's national data correction system known as
DataQs.
In addition to the inspection data reported to FMCSA, States may
issue a citation associated with a violation noted in the roadside
inspection. Such citations may subsequently be adjudicated in a due
process system. The change reflected in this document and in FMCSA's
data systems will allow motor carriers or drivers to submit the results
of an adjudicated citation through the DataQs system. After confirming
the adequacy of the documentation submitted in an RDR, the State will
submit the adjudication results into the new field created to record
this information.
Adjudication results recorded in MCMIS will potentially impact
other FMCSA data systems, such as the Agency's Safety Measurement
System (SMS) and the Pre-employment Screening Program (PSP).
Based on feedback to the December 2, 2013, notice, the Agency has
determined that it will not apply this policy retroactively. The policy
announced in this document applies to inspections occurring on or after
August 23, 2014. Accordingly DataQs will be modified to accept RDRs
related to adjudicated citations in August 2014. The August 23, 2014,
date is based on the time needed for State implementation of compatible
State information technology (IT) systems able to record and transmit
the adjudication data.
III. Compliance With the Administrative Procedure Act
This document announces changes to MCMIS that support a more
consistent program for handling DataQs seeking recognition of
adjudicated citations. This document contains a general statement of
policy and reflects a change in Agency practice and procedures with
respect to the handling of adjudicated citations through DataQs and in
Agency information systems. The Administrative Procedure Act (APA), 5
U.S.C. 552(a)(1)(D), requires agencies to provide public notice of
statements of general policy by publication in the Federal Register.
Such ``interpretative rules, general statements of policy or rules of
agency organization, procedure, or practice'' are not subject to the
APA's notice and comment requirements (5 U.S.C. 553(b)(A)). This
document does not amend any Agency regulation nor does it change how
data correction is sought through DataQs. The IT and program changes
announced in this document allow FMCSA and the States to receive more
complete information on the subsequent disposition of citations issued
during roadside inspections by accepting certified records of
adjudication results submitted through the DataQs process.
Presently, MCMIS contains records of inspections, including
violations observed by law enforcement officers, during such commercial
motor vehicle (CMV) inspections. See 78 FR 59082, 59083 (September 25,
2013). Because MCMIS has always been a system that records roadside
inspection data, MCMIS records presently do not reflect convictions,
acquittals or other subsequent adjudications or adjustments of charges
that occur during subsequent due process proceedings. A driver has
always been able to challenge the correctness of a violation that has
been cited in a roadside inspection report using the DataQs system,
whether a citation has been issued for that violation or not.
As currently required in the MCSAP grant program, pursuant to 49
CFR 350.201(s), the States must ``establish a program to ensure that
accurate, complete, and timely motor carrier safety data are collected
and reported, and ensure the State's participation in a national motor
carrier safety data correction system prescribed by FMCSA.'' Today's
announced policy change is thus within the scope of the current MCSAP
program.
IV. Background
A. Databases for Inspection Data
State and local law enforcement officials routinely conduct
roadside inspections documenting violations of laws or regulations that
are compatible with the Federal Motor Carrier Safety Regulations
(FMCSRs) and Hazardous Materials Regulations (HMRs). See 49 CFR 350.105
(defining ``compatible or ``compatibility''). These law enforcement
officials, at their discretion, may issue citations for the violations
recorded on the roadside inspection report. States are responsible for
entering roadside inspection and violation data into SafetyNet, a
database management system that allows entry, access, analysis, and
reporting of data from driver/vehicle inspections, crashes,
investigations, assignments, and complaints. SafetyNet provides data to
MCMIS that interfaces with several databases, including: (1) The Safety
and Fitness Electronic Records (SAFER) system; (2) PSP; and (3) SMS.
SafetyNet and MCMIS have always contained records of inspections and
reportable crashes.
B. Motor Carrier Safety Data Correction System
As noted, pursuant to 49 CFR 350.201(s), one condition for
participation in the Motor Carrier Safety Assistance Program (MCSAP) is
that a State establish a program to ensure that accurate and timely
motor carrier safety data are collected and reported and that the State
participates in a national motor carrier safety data correction system
prescribed by FMCSA. DataQs is that national motor carrier data
correction system (49 CFR 350.211) (State certification at paragraph
11). DataQs is an online system that provides an electronic means for
drivers, motor carriers, and members of the public to submit concerns
about the accuracy of crash, inspection, and violation data in FMCSA
data systems. When a request for an RDR is filed, the DataQs system
automatically forwards the request to the appropriate Federal or State
office for processing and resolution (https://dataqs.fmcsa.dot.gov/).
The data system and policy changes announced in this document will
allow drivers, motor carriers, and members of the public to file an RDR
in FMCSA's DataQs system and to seek acknowledgement of the
adjudication in the inspection record. The change in the State data
systems will parallel corresponding changes to FMCSA data systems. A
citation that has been resolved through a judicial or administrative
process, regardless of outcome, is considered to be adjudicated.
FMCSA believes these changes will (1) provide a uniform and orderly
process to incorporate recording adjudicated citations through DataQs
under the State's MCSAP Commercial Vehicle Safety Plans and budgets
(see 49 CFR 350.213 for description of CVSP); (2) provide an effective
process to ensure system effectiveness and data quality; and (3) reduce
the cost of applying and implementing these changes across the Agency
and the States. FMCSA is requiring that MCSAP grantees follow this
policy of recording adjudication results as a condition of their grant
funding under 49 CFR 350.201.
[[Page 32493]]
V. Discussion of Public Comments and FMCSA Responses
A. General Discussion
FMCSA announced proposed changes to MCMIS on December 2, 2013 (78
FR 72146). The Agency received 111 unique comments during the 30-day
comment period. Seventy of the 111 comments supported the proposed
changes, with commenters stating that this change will help ensure that
drivers and carriers are treated justly. Steve Davis, a fleet owner for
FedEx Ground, said, ``I strongly approve of this change to allow
updated court information to be included in MCMIS. This will improve
uniformity without question and give a true account of the resolution
of violation information.'' More than half of the supporting commenters
(38) did not identify themselves with a specific stakeholder group. The
remaining commenters in support of the changes were motor carriers (17)
and representatives of industry associations (9) and the Commercial
Motor Vehicle Safety Alliance (CVSA).
The motor carriers that commented included Coach USA, DART Transit
Company, J.B. Hunt, Sharp Transport, Inc., and Stallion Transportation
Group. The industry associations that submitted comments included the
Alliance for Safe, Efficient and Competitive Trucking Transportation
(ASECTT), American Bus Association (ABA), American Moving and Storage
Association (AMSA), American Trucking Associations, Inc. (ATA),
Institute of Makers of Explosives (IME), International Food
Distributors Association (IFDA), Minnesota Trucking Association/
Minnesota Trucking Associate Safety Council (MTA/MTASC), National
Association of Small Trucking Companies (NASTC), Owner-Operator
Independent Drivers Association, Inc. (OOIDA).
Those commenters generally opposing the changes offered suggestions
to improve the proposal. These included Advocates for Highway and Auto
Safety (Advocates), American Association for Justice (AAJ), the
Kentucky State Police, the Pennsylvania State Police, and the West
Virginia Public Service Commission. One commenter, Jeff Steeger, who
did not identify himself with a particular group, objected to the
policy and stated it would ``allow carriers and their drivers to
improve their SMS score while demonstrating a continued lack of
compliance with our safety regulations.''
The common areas of concern included enforcement impacts; pleas,
dismissals, and other court actions; retroactive implementation;
workload and resources; continued uniformity concerns; and questions
about the impacts on SMS weighting based on violation on the
conviction.
Comments to the docket also addressed consistency in the processing
of RDRs, other quality assurance initiatives, crash weighting and the
process for requesting appeals. Most of these issues are outside of the
scope of the December 2, 2013, notice and, therefore, are not addressed
herein. It should be noted, however, that the Agency is involved in
separate initiatives addressing many of these issues.
FMCSA received comments seeking clarification on what is a
``conviction'' under FMCSA regulations and expressing concerns that
routinely-assessed fees may inadvertently count as ``convictions.'' In
Section V.A. of today's document the Agency clarifies how it interprets
the regulatory definitions in 49 CFR 383.5 and 390.5.
B. Enforcement Impacts
Both law enforcement and industry commenters expressed concerns
that changing how data systems address violations in roadside
inspections based on adjudicated citations would result in law
enforcement officers issuing fewer citations. The impact of this change
would be that officers would issue more warnings, which cannot be
adjudicated by a court. Four commenters affiliated with law enforcement
agencies indicated that this change would result in an influx of RDRs
and increased workload. Coach USA urged that, ``FMCSA should not accept
information regarding violations from state officials unless the state
issued a citation for the alleged violation at issue.''
FMCSA acknowledges that law enforcement agencies may alter their
enforcement practices as a result of today's policy change. However, it
remains the Agency's position that these process changes will improve
data quality, accuracy, and uniformity. The Agency's interests are in
capturing fair and accurate violations in MCMIS. FMCSA has never
provided direction to law enforcement on when to issue citations and
defers to those agencies for the best ways to enforce the violations
they observe.
C. Dismissals, Pleas and Other Court Actions
The treatment of dismissed citations was the most common topic
addressed by commenters. Sixteen commenters argued that a dismissed
citation does not always indicate that the violation did not occur at
the time of the inspection and, therefore, dismissed citations should
not be the sole basis for removing violations from inspection reports.
These commenters expressed the opinion that often citations are
dismissed based on plea bargaining or technical issues such as the
carrier's or driver's evidence of corrective action, a lenient judge or
jury, an absent officer-witness, or a clerical error.
Several commenters expressed concern that there will be increased
attempts to plea bargain to a violation with a lower severity weight to
improve SMS scores. Additionally, commenters expressed concern about
court clerks causing errors or officers being unable to attend
hearings, resulting in dismissals. Lt. Colonel Keith Percy of the
Kentucky State Police, stated that ``Criminal court systems, already
overburdened with cases considered more serious than traffic
violations, are under great pressure to deal cases away, and traffic
cases fall away with little, if any, political consequence.''
Advocates for Highway and Auto Safety recommended that ``the agency
should maintain discretion to retain citations, even when dismissed, if
such dismissals are not on the merits and indicate a pattern and
practice that would violate the prohibition against masking of traffic
violations.''
FMCSA acknowledges that these scenarios may occur. However, there
are checks and balances in place to prevent improper dismissal of
commercial driver violations, including 49 CFR 384.226 that prohibits
States from masking convictions, deferring imposition of judgment, or
allowing an individual to enter into a diversion program that would
prevent a commercial learner's permit (CLP) or CDL holder's conviction
from appearing on the Commercial Driver's License Information System
(CDLIS) driving record.
On the issue of burden on the system, it should be noted that,
notwithstanding the nearly 3.5 million inspections conducted from
January 1, 2013, through December 31, 2013, there were fewer than
40,000 RDRs submitted through DataQs for this period.
Based on an annual estimate of 3.5 million inspections, only 1.1
percent of inspections resulted in an RDR. The Agency has confidence
that the courts will strive to objectively evaluate the charged
violations and that dismissals of citations for administrative or other
reasons will not have a significant impact on the reliability of safety
data. Additionally, the Agency will continue to provide outreach to
courts and prosecutors to explain the serious impacts of cases
involving CMVs and commercial drivers and to improve their
[[Page 32494]]
knowledge and understanding of CMV violations and their potential
consequences.
As part of its data quality program, FMCSA will be monitoring the
incoming data on adjudicated citations to look for patterns that might
indicate routine masking of violations by State officials and take
appropriate action to address these situations.
D. Prospective Implementation
The December 2, 2013, notice specifically asked for comment on the
Agency's plan to implement these changes prospectively. Only six
commenters addressed the issue. Three representatives of industry
associations recommended that the Agency apply the policy
retroactively, starting from the implementation of the Compliance,
Safety, Accountability program in 2010. Two members of the law
enforcement community supported the prospective-only application of the
policy. Stephen Keppler of the Commercial Vehicle Safety Alliance noted
that applying the policy retroactively would have significant adverse
impacts, including decreased data uniformity and consistency, and an
increase in States' workloads that could deplete their resources. Mr.
Keppler also stated that prospective implementation of this policy
``allows for improved planning, resource allocation and management for
both the States and FMCSA.''
The Kentucky State Police indicated that they would expect the
number of RDRs submitted to increase significantly, especially due to
dismissals. The Pennsylvania State Police noted that there would be
significant workload impact on the minor judiciary. The Agency
therefore continued to consider workload in deciding not to implement
this change retroactively.
FMCSA continues to believe that prospective application will
mitigate the potential for significantly increased numbers of RDRs,
based on hundreds--potentially thousands--of past adjudicated
citations, which could quickly exhaust States' DataQs capability. Such
a drain on State DataQs staff could prevent States from promptly acting
on other RDR requests and/or could create a need to redirect scarce
State resources, adversely affecting motor carrier safety enforcement.
As previously stated, FMCSA believes that prospective application will
(1) provide a uniform and orderly process for the States to incorporate
this policy into their State MCSAP plans and budgets (see 49 CFR
350.213); (2) provide an effective process that the Agency can test to
ensure system effectiveness and data quality; and (3) reduce the cost
of applying and implementing these changes across the Agency and the
States.
Based on the comments and the workload and safety impacts noted
above, the Agency has determined that it will implement the policy and
changes prospectively. The policy announced in this document applies to
inspections occurring on or after August 23, 2014. Accordingly, DataQs
will be modified to accept RDRs related to adjudicated citations in
August 2014.
E. Uniformity and Masking
Commenters expressed concern that this proposal effectively moves
the decision making on roadside inspection data from the State DataQs
officials to the courts, where the decisions will not be any more
consistent, based on the courts' and judges' varying knowledge of CMVs,
CDLs, and motor carrier safety regulations.
The IFDA expressed concern that, ``. . . this continued broad
delegation of authority to the states directly contradicts a primary
rationale for the announced changes which is to ``improve uniformity
across the states. Given this obvious inconsistency, we question how
much actual difference the announced changes are likely to make.''
As previously noted, FMCSA will continue and increase its outreach
efforts to courts and prosecutors to remind them of the prohibition in
49 CFR 384.226 on masking convictions, deferring imposition of
judgment, or allowing an individual to enter into a diversion program
that would prevent a CLP or CDL holder's conviction for a violation, in
any type of motor vehicle, of a State or local traffic law (other than
parking, vehicle weight, or vehicle defect violations) from appearing
on the CDLIS driving record.
F. Adequate Documentation
Commenters requested more information on the Agency's definition of
adequate documentation needed to demonstrate dismissal or other
adjudication outcome. ATA recommended that the Agency ``clearly define
`adequate documentation' for the purposes of this notice.'' ATA further
indicated that ``FMCSA must instruct States which documents are
acceptable and provide motor carriers and drivers with recourse to
amend their records should a State refuse to accept proof of
adjudication.''
FMCSA will accept scanned copies of certified documentation from
the appropriate court or administrative tribunal. Examples include but
are not limited to certified records of the docket entry, the order of
dismissal, or entry of a ``not guilty'' determination. FMCSA recognizes
that the varying nature and types of tribunals may result in varying
types of official documentation that contain the adjudication results,
and thus the Agency has not specifically limited the type of document
that must be submitted. The submitter should obtain certified documents
that are clearly identified and verifiable. These documents must be
uploaded into the DataQs system for verification by a State official.
Alternatively, the documentation may include a Web site link to an
official court Web site with adjudication results.
G. SMS Weighting
AAJ and ATA questioned which SMS severity weights would be used if
a conviction was for a different charge than the initial cited
violation. FMCSA clarifies that where the adjudication results in a
conviction to a different charge, the severity weight will be reduced
to a 1 in SMS. The chart in Section V.D. of this document provides more
detail on the impact of changes in SMS and PSP.
VI. Overview of Changes
A. Terms Used in the Document
For purposes of this document, the following terms have the meaning
indicated.
Adequate Documentation: For the purpose of processing an RDR
seeking to document the result of an adjudicated citation, FMCSA finds
that scanned copies of certified documentation from the appropriate
court or administrative tribunal or providing a direct web link to the
adjudication results of an official court or agency Web site presents
adequate and verifiable documentation of the adjudication result.
Adjudicated Citation: Refers to a citation that has been contested
and resolved through a due process proceeding in a State, local, or
administrative tribunal, regardless of how the action is resolved,
whether by a judge or prosecutor or as part of a plea agreement or
otherwise.
Citation: Refers to a notice, issued by a law enforcement officer
to a CMV driver for a violation of law or an adopted FMCSR or HMR. The
driver may contest the citation through a State-provided administrative
or judicial system.
Conviction: This term is defined in 49 CFR 383.5 and 390.5 as an
unvacated adjudication of guilt, or a determination that a person has
violated or failed to comply with the law in a court of
[[Page 32495]]
original jurisdiction or by an authorized administrative tribunal, an
unvacated forfeiture of bail or collateral deposited to secure the
person's appearance in court, a plea of guilty or nolo contendere
accepted by the court, the payment of a fine or court costs, or
violation of a condition of release without bail, regardless of whether
or not the penalty is rebated, suspended, or probated.
Court Costs: FMCSA interprets ``court costs'' as fees imposed by a
court or administrative tribunal that are intended to cover the State's
expenses of handling the case. Payment of an incidental expense
uniformly imposed on all persons that appear before a particular court
or tribunal regardless of case outcome should not be considered a court
cost under FMCSA's regulatory definition of ``Conviction.'' Examples of
excluded, non-punitive court costs include but are not limited to
scheduling fees, the cost of a certified copy of the court's docket or
order, or attorney fees.
Fine: A sum of money imposed as a penalty for an offense. A court
cost may be considered a fine when the amount charged exceeds the
amount generally imposed for court costs and is akin to a penalty.
Unvacated: Refers to an order or judgment that has not been
canceled or rescinded.
B. New Data Field for Adjudicated Citations Results
Previously, SafetyNet and MCMIS recorded inspection and violation
data from the initial inspection report only and did not contain a data
field that would allow the State to append the result of an adjudicated
citation to the appropriate violation on the inspection report. With
these changes, SafetyNet and MCMIS will be modified to provide a field
that may be populated with the adjudication result of a citation
associated with the related inspection report. The adjudication result
will impact the use of the related violations in SMS and PSP, as
indicated in the chart below in Section V.D.
C. Revised DataQs Guidance to the States
FMCSA will issue revised direction to the States on receiving,
reviewing, and documenting adjudication results when an RDR containing
adequate documentation is submitted. Upon confirming the adequacy and
accuracy of the documentation, States will enter the adjudication
result in the field appending the inspection record in SafetyNet. State
and Federal data systems will be modified to accept data concerning a
citation associated with a violation that was dismissed or resulted in
a finding of not guilty or resulted in a conviction of a different or
lesser charge.
D. Impact of Changes in SMS and PSP
The following table indicates how the adjudication outcomes
documented in MCMIS will impact the use of the cited violation in
FMCSA's SMS and PSP databases:
----------------------------------------------------------------------------------------------------------------
Result of adjudicated citation
associated with a violation Violation in SMS Violation in PSP
uploaded to MCMIS
----------------------------------------------------------------------------------------------------------------
Dismissed with fine or punitive Violation not removed.. Violation not removed.
court costs.
Dismissed without fine or Remove violation....... Remove Violation.
punitive court costs.
Not Guilty...................... Remove violation....... Remove Violation.
Convicted of a lesser charge.... Append inspection to Append inspection to indicate violation ``Resulted in
indicate violation conviction of a different charge.''
``Resulted in
conviction of a
different charge.''
Change severity weight
to 1.
----------------------------------------------------------------------------------------------------------------
As required by FMCSA's MCSAP regulations (49 CFR part 350), States
must follow the Agency's regulatory definition of ``conviction'' in 49
CFR 383.5 and 390.5 and address RDRs accordingly. Thus, when an RDR
indicates that a court dismissed a citation while still imposing a fine
or punitive court cost, the outcome will be recorded in MCMIS as a
conviction.
E. Prohibition on Masking Convictions
FMCSA regulation at 49 CFR 384.226 prohibits States from masking
convictions, deferring imposition of judgment, or allowing an
individual to enter into a diversion program that would prevent a CLP
or CDL holder's conviction for any violation, in any type of motor
vehicle, of a State or local traffic control law (other than parking,
vehicle weight, or vehicle defect violations) from appearing on the
CDLIS driving record, whether the driver was convicted for an offense
committed in the State where the driver is licensed or another State.
The Agency views the practice of courts dismissing citations after a
guilty plea has been entered or following payment of a fine or
mandatory contribution to a State or local program as a condition of
dismissal, as ``masking'' of a commercial driver's violation of State
or local traffic control laws. Masking convictions allows commercial
drivers to accumulate multiple serious traffic safety violations
without the driver's State of licensure or other States being aware of
the driver's actual driving history, and it is for this safety reason
that such practices are prohibited.
The changes to State and FMCSA data systems outlined in this
document will enable both the Agency and the State licensing agencies
to better track and document patterns and practices that are
inconsistent with 49 CFR 384.226 concerning the masking prohibition.
States found to have used masking or other diversionary programs may be
found in substantial noncompliance and could risk decertification of
their CDL programs, which could impact grant funding.
VII. Implementation Plan
A. Policy
FMCSA's State Programs Division will issue direction to the MCSAP
agencies explaining the expectations and responsibilities related to
the adjudicated citation process. This policy will apply to inspections
occurring on or after August 23, 2014, and will be included in the next
version of the DataQs manual.
B. Training
FMCSA will conduct training for DataQs analysts through DataQs
email blasts, training bulletins and webinars. The webinars and other
training will be provided to DataQs analysts before the policy is
implemented to improve the consistency of implementation. The Agency
will also be providing training to its own staff. In addition,
information will be available on the Agency's Web site and on the
DataQs Web site.
[[Page 32496]]
Issued on: May 30, 2014.
Anne S. Ferro,
Administrator.
[FR Doc. 2014-13022 Filed 6-2-14; 11:15 am]
BILLING CODE 4910-EX-P
