Law Offices of Seaton & Husk, LP

Avoid a Shutdown or High Fine
By Henry E. Seaton
January 2001
Reprinted from etrucker.com

With an increase in the number of investigators, small carriers face a greater likelihood of drawing a safety audit. Several factors can trigger an audit, and your SafeStat score, which you can access via the Web at http://ai.volpe.dot.gov, is the best indicator of your chances of being audited. And you have more on the line with an audit than ever before. A new regulation requires the Federal Motor Carrier Safety Administration to place out of service motor carriers that receive unsatisfactory safety ratings after Nov. 20, 2000.

If you receive an unsatisfactory audit, you have 60 days to fix deficiencies and demonstrate satisfactory compliance before the rating becomes final. But the new rules leave no margin for error. Unless you can correct deficiencies within 60 days, you face a shutdown order that will put you out of business.

The Department of Transportation is also getting tough on fines. The amounts for first-offense civil penalties are going up, and fines for repeated violations will be crippling. It's not good enough to comply with the spirit of the safety regulations. Unless you comply with the letter of the regulations you are risking heavy fines and out-of-service orders.

Technical record keeping violations alone can lead to dire consequences. Consider the following example from a recent compliance review. The safety investigator assigned satisfactory ratings to five of the six areas of compliance. But FMCSA denied a satisfactory rating because the carrier's paperwork was not in order. Specifically, the investigator argued that toll receipts are supporting documents that must be maintained as part of each driver's record of duty status.

The carrier argued on appeal that its driver packets were separated after log verification and that all toll receipts were kept by accounting in a separate envelope. The carrier said that only if it found discrepancies between toll receipts and a driver's logs did it keep the receipts with the driver's records. In those cases, the carrier also sent out a warning letter.

FMCSA said this record keeping procedure was inadequate. It agreed with the investigator that the toll receipts were not being maintained in a manner allowing him to properly review the driver's logs. The agency refused to upgrade the carrier's safety rating, concluding that "it is reasonable to expect motor carriers to retain all supporting documents along with the individual driver's [logs]."

This decision does not say that you must reassemble the driver packets. But stuffing toll receipts into a white envelope is clearly insufficient. DOT expects you to retain supporting documents in an orderly and accountable fashion. At a minimum, you should keep such material in chronological order and ensure that the driver's name or truck number appears on any supporting data that is separated from the driver's log and trip pack.

The regulations require you to keep all supporting documents for each driver for six months from the date of receipt. FMCSA has made clear that it doesn't expect to have to search high and low for these documents.
The FMCSA even expects you to keep records on owner-operator tolls that you, as a carrier, don't even pay. In Docket No. FMCSA-2000-6997, the carrier's contractors paid their own tolls, so the carrier claimed it had no reason to maintain the receipts. In fact, the carrier pointed out that leasing regulations prevent it from requiring owner-operators to submit receipts as a condition of being paid. Even so, FMCSA ruled that toll receipts were supporting documents that carriers must maintain for owner-operators as well as for company drivers.

The bottom line is that tougher rules and policies and an increase in the investigator work force make strict compliance more important than ever. Don't assume that compliance that is "good enough" will be good enough for the feds.