By Jeff McConnell & James Mennella
attorneys at law
You’ve just purchased your third tractor, you’re now running a three-truck operation, and you’re finding out that there’s a lot more to running a trucking company than just driving.
The “notice of claim” provision and issuance of civil penalties by the Federal Motor Carrier Safety Administration are among the details that you may not have been aware of. The provision is used by the FMCSA as the charging document to initiate a civil action for violation of federal laws.
Q: As a small trucking company, what are the main rules we need to be concerned about?
A: To survive a compliance review by the U.S. DOT, you’ll need to be in compliance with the applicable portions of the Federal Motor Carrier Safety Regulations, Federal Hazardous Materials Regulations, and the Federal Motor Carrier Commercial Regulations.
To verify you’re in compliance with the regs, you can contact a representative of the U.S. DOT and discuss your specific operation.
OOIDA members can call the Association’s Member Assistance Department for an initial review before they contact the DOT.
Q: How do these reviews get started?
A: Usually, there is a triggering event that will cause the compliance review. The complete list of items is too long to print here; however, some of the main culprits are: having an improper operating authority; hours-of-service violations; or failure to have proper proof of financial responsibility.
Q: How cooperative should I be in releasing information at a compliance review?
A: Just like an IRS audit, the person conducting the review will have specific questions for charged violations. You shouldn’t bring up or produce documentation that isn’t requested, but you’ll want to be certain your ducks are in a row for the required basics. If you’re in violation, try to correct it before the review so you might be able to prevent or reduce any civil penalty.
The hidden risks come with the violations found during the compliance review. If the examiner finds additional evidence while conducting the review, you can expect an increase in the civil penalty on the notice of claim.
Q: How is the penalty determined?
A: The feds take into account several factors before proposing or claiming a civil penalty. Generally, they take into consideration the nature of the violation(s) in respect to the violator and the degree of fault involved. They also consider whether there is a history of prior offenses and your ability to pay. An important factor to keep in mind is that the penalty is calculated to “induce compliance,” so don’t expect much leniency.
Q: How do I reply or respond to these claims?
A: You can pay the penalty, request administrative adjudication, or enter binding arbitration. If you request administrative adjudication, then you can submit evidence and argument without a hearing; request a formal hearing; or request an informal hearing.
All of the options, except paying the face value of the claim, have their own nuances, procedures and pitfalls that you need experienced help with. This is not an area where you want to try to play Perry Mason or Matlock.
Q: What is the worst thing they can do to me if I don’t respond or pay the civil penalty?
A: Unless you have another career in mind, don’t ignore the feds. Interstate commerce is regulated by the federal government, which has the exclusive power to prohibit you from operating in interstate commerce and also to suspend your FMCSA registration.
Of course, they have other means of getting you to comply, including IRS offsets against tax refunds, collection agencies and civil lawsuits in U.S. District Court. LL