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Before the. DEPARTMENT of TRANSPORTATION FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION. CFR Title 49 Part 386 Docket No.

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Before the

DEPARTMENT of TRANSPORTATION

FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION

CFR Title 49 Part 386 Docket No. FMCSA – 2011 - 0259

Am endm ent to A gen cy Rul es of Pr acti ce

Comments of the

AMERICAN MOVING & STORAGE ASSOCIATION

AMERICAN MOVING & STORAGE ASSOCIATION Paul C. Oakley

Senior Vice President Government Affairs 1611 Duke Street

Alexandria, Virginia 22314 (703) 683 - 7410

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Before the

DEPARTMENT of TRANSPORTATION

FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION

CFR Title 49 Part 386 Docket No. FMCSA – 2011 - 0259

Am endm ent to A gen cy Rul es of Pr acti ce Comments of the

AMERICAN MOVING & STORAGE ASSOCIATION

The American Moving & Storage Association (“AMSA” or “Association”) submits the following comments in response to the Federal Motor Carrier Safety Administration’s (FMCSA) notice of proposed rulemaking and subsequent request for additional comments appearing at Volume 76 Federal Register No. 239, December 13, 2011.

The notice and the subsequent request solicit public comment on a proposal to amend its Rules of Practice for Motor Carrier, Intermodal Equipment Provider, Broker, Freight Forwarder, and Hazardous Materials proceedings in three respects. First, the Agency proposes to clarify that paying the full proposed civil penalty in an enforcement proceeding, either in response to a Notice of Claim (NOC) or later in the proceeding, would not allow respondents to unilaterally avoid an admission of liability for the violations charged. Second, FMCSA proposes to establish procedures for issuing out-of service orders to motor carriers, intermodal equipment providers, brokers, and freight forwarders it determines are reincarnations of other entities with a history of failing to comply with statutory or regulatory requirements. These procedures would provide for

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administrative review before the out-of-service order takes effect. Finally, the Agency proposes procedures for consolidating Agency records of reincarnated companies with their predecessor entities.

Specifically, 49 CFR would be amended at 386.18(a) and (c) to clarify that payment of the full amount of the proposed civil penalty constitutes an admission of all of the facts alleged in the Notice of Claim, unless otherwise agreed by the FMCSA. Also, Section 386.73 would be amended to provide a mechanism to prevent motor carriers, intermodal equipment providers, brokers, and freight forwarders, from creating new or multiple business identities to avoid statutory or regulatory requirements, FMCSA Orders and enforcement actions, or a negative compliance history. The rule would authorize FMCSA to issue out-of-service orders to motor carriers, intermodal equipment providers, brokers, and freight forwarders determined to be reincarnated or operating as affiliates to avoid enforcement action or negative compliance and it would provide a mechanism for administrative review of such orders. The rule would also establish procedures to consolidate the compliance records of motor carriers, intermodal equipment providers, brokers, and freight forwarders determined to be reincarnated or affiliated entities.

IDENTITY of COMMENTER and BACKGROUND

AMSA is the only national trade association representing the segment of the motor carrier industry that specializes in household goods transportation and commercial moving and storage. AMSA has approximately 3800 members, including national and international van lines with agency networks; independent national and regional van lines; local agents affiliated with a van

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line network; and local unaffiliated movers. AMSA members are domiciled and provide relocation and warehousing services throughout North America and at strategic points throughout the world.

As the representative of the nation’s household goods movers, we support effective government regulations and policies that enable our members to provide quality service at compensatory prices. Along with providing advocacy for consumers utilizing professional moving and storage services, we strive to furnish information that informs the public about their rights and responsibilities when they move and the value of professional moving and storage services.

COMMENTS

AMSA Support for the Proposal regarding Reincarnated Carriers. We support the objective of the proposed rules providing for stronger commercial motor vehicle safety and operational management efficiencies. We welcome the additional identification and vetting by the FMCSA of reincarnated “chameleon” carriers who continue to reapply for new authority and especially those who continue to reapply for membership in our quality industry association under the guise of a new business entity free from a history of unprofessional and often criminal behavior. In recent years we have had to devote significant resources to vetting the backgrounds of companies and their principal executives applying for AMSA membership. Our efforts in most cases have been successful but they come at considerable expense. Plus, our methods are not foolproof and we welcome the Agency’s proposed additional scrutiny, procedures and penalties for reincarnated companies that are shown to have a history of failing to comply with regulatory and compliance requirements.

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AMSA is Opposed to Construing Payment of Civil Penalties as an Admission of Liability in Civil Cases. As provided, the FMCSA proposes to amend 49 CFR 386.18(a) and (c) to clarify that payment of the full amount of the proposed civil penalty constitutes an admission of all facts alleged in the NOC, unless otherwise agreed by both the respondent and FMCSA. The mutual consent provision will give FMCSA Field Administrators the discretion to permit payment without an admission of liability in appropriate cases, such as first-time inadvertent minor violations where the respondent demonstrates a sincere intent to comply in the future. Payment without written objection will continue to be considered as an admission of liability. If payment is tendered with a written objection, it will still be treated as an admission of liability unless the Field Administrator responsible for prosecuting the case agrees in writing that payment will not be treated as an admission. Respondents, therefore, should contact the appropriate FMCSA Service Center to seek the necessary written consent if they are considering paying the penalty with written objection.

Our concern with the Agency’s proposal is the likely consequence of causing companies that are not actually guilty of the purported violations, because of the legal costs and time involved in appealing the enforcement ruling, to pay the fine so as to simply end the matter in the interest of cost efficiency. The proposal is similar to a ‘nolo contendre’ plea in a criminal case when there is no admission of guilt but the case is closed. It strikes us a bit of a guilty-until-proven-innocent approach that isn’t fair to non-violating companies who make a business decision to take the least expensive way out of a difficult situation.

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Plus, since it constitutes an automatic admission of guilt that may raise the possibility of civil litigation or a personal injury suit arising out of whatever act or acts the company allegedly committed that gave rise to the enforcement case, the proposal may well have the unintended consequence of increasing the Government’s cost and time burden of prosecuting the cases that companies won’t be as eager to settle, since the admitted liability would eliminate a defense in a personal injury suit and could result in a judgment for damages fare in excess of any civil penalty.

CONCLUSION

AMSA appreciates the opportunity to provide its comments in this matter. We support the FMCSA’s proposals regarding reincarnated “chameleon” carriers that will result enhanced commercial motor vehicle safety and, in our case, increased protection to the public from the likelihood of using a reincarnated carrier to perform their household goods shipment. We do not however support the proposed change that will cause payment of civil penalties in enforcement proceedings to be interpreted as an automatic admission of liability of the part of the company that is the subject of the proceeding. We believe that this constitutes an unfair and an inappropriate response to what often is a simple economic business decision and we ask that this proposal be given no further consideration.

Respectfully submitted,

AMERICAN MOVING & STORAGE ASSOCIATION

____________________________ By: PAUL C. OAKLEY

Senior Vice President - Government Affairs Dated: January 9, 2012

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