While the referenced carrier is contesting the FMCSA's claim and may have meritorious defenses to at least some of the charges, for other carriers the message should be clear: achieve and maintain compliance with the Safety Regulations, or face the prospect of civil penalties much larger than would have been assessed only a couple of years ago. Of course, being in compliance with the Safety Regulations is not only the best way to avoid crippling civil penalties; it also provides a carrier the best insurance against being selected for a Compliance Review in the first place. This is because the FMCSA uses its Motor Carrier Safety Status Measurement System (SafeStat)³ to identify carriers for Compliance Reviews, and SafeStat theoretically targets only "the worst of the worst" for Compliance Reviews. However, SafeStat is not foolproof, and consequently even carriers who do strive to comply with the Safety Regulations can find themselves the subject of a Compliance Review. The manner in which the carrier responds to the Compliance Review can influence whether and in what amount a civil penalty will be claimed by the FMCSA, and can also impact the carrier's prospects for success in challenging the claim if it elects to do so.

It is generally recommended that the carrier take a reasonably cooperative approach to the Compliance Review, at least as long as the demeanor of the investigator remains cordial and non-confrontational. This does not mean acceding to unreasonable demands, such as signing an admission that one or more violations occurred or providing an involuntary explanation of the significance of a given document. However, where documents are requested that the investigator has the right to inspect (and this generally includes about all of the carrier's records), resisting the request is unlikely to accomplish anything other than to convince the investigator that s/he is on the right track and thereby prolong the Compliance Review. The attitude displayed by the carrier should be that of concern for the safety of its operation; while the carrier may not be aware of problems, if they exist the carrier wants to know about them so they can be corrected. If the Compliance Review eventually results in assessment of a civil penalty and the carrier elects to contest the claim, a positive attitude toward safety is a factor that has been cited in decisions as grounds for reducing the penalty amount.

While maintaining a cooperative attitude, the carrier should assign a knowledgeable employee (in the case of a small carrier, this might be the owner) to remain with the investigator at all times while the Compliance Review is under way. To the greatest extent possible, th e investigator's access to the carrier's personnel should be limited to the assigned individual. A thorough record should be made of all documents requested by and furnished to the investigator, as well as of any documents that for any reason could not be provided. This information can prove useful later on, particularly if it develops that the records selected for review (logs, for example) do not comprise a truly representative sample.⁴ Also, a carrier employee assigned to the investigator may be able to provide further explanation for documents which on their face appear to establish a violation but which, when properly understood, reflect wholly lawful operation. On the other hand, the assigned employee (and any other employee who may have cause to interact with the investigator) should be cautioned not to make any statement that would represent an admission of a violation.

At the conclusion of the Compliance Review, the investigator will present a computer-generated report summarizing his/her findings, and will request that the report be signed by the carrier to acknowledge receipt of a copy thereof. The carrier should sign the report as requested, but generally should decline (and should instruct its employees to decline) to sign any other documents that may have been generated during the course of the Compliance Review. There is no requirement that the carrier sign any such documents, which may contain admissions against interest that can later be used against the carrier. Ordinarily, the report will include a list of "Requirements and Recommendations", including a request that the carrier send a letter to the State Office of the FMCSA within 15 days describing actions taken in response to the Compliance Review. The letter should be sent as requested, but again, care should be taken to word the letter so as to avoid admitting that any violations have occurred. Finally, the report will contain a proposed Safety Rating.

Following completion of the Compliance Review, the carrier should immediately take action to correct any deficiencies that may have been discovered and to document the actions taken and when they were taken. This is probably a good idea in any event, but there is another reason beyond pure concern for safety that should motivate any carrier anticipating receipt of a Notice of Claim as a result of the Compliance Review to act swiftly to bring its operations into compliance with the Safety Regulations. For those cases where a civil penalty is subsequently claimed, the FMCSA through its Chief Safety Officers has frequently stated that actions by a carrier to achieve compliance with the Safety Regulations taken after the Compliance Review is completed but before a Notice of Claim is received as a factor potentially warranting a reduction in the penalty amount. Because the time between completion of the Compliance Review and the issuance of any resulting Notice of Claim will be very brief, prompt action will be required of any carrier hoping to avail itself of this opportunity to potentially reduce the ultimate penalty amount.

Hopefully, a Compliance Review of any readers of this publication will result in a "Satisfactory" safety rating and be closed without assessment of a civil penalty. However, if a Notice of Claim is received, it is imperative that the carrier act promptly to preserve its rights if it desires an opportunity to reduce the amount of the claimed penalty. Under the FMCSA's Rules of Practice (49 CFR Part 386), the carrier must serve its written reply within thirty days following service of the Notice of Claim. Failure to timely serve a reply, or to reply in the precise manner specified in the Rules of Practice, can and likely will result in the Notice of Claim becoming a "final order", with only limited opportunity for the carrier to thereafter seek reduction in the penalty amount. Similarly, if a hearing is desired by the carrier, it must be requested within the time period specified for the carrier's reply or any right to a hearing will be deemed waived.

*Mr. Kistler is a partner with the law firm of Kinsey Rowe Becker & Kistler, LLP, Lincoln, Nebraska, and has represented motor carriers for over 30 years.

¹ This is an update of an article originally written by the author in 2000.
² A "Notice of Claim" is the document used by the FMCSA to initiate a civil penalty proceeding.
³ FMCSA describes SafeStat as "an automated, data-driven analysis system designed to incorporate current on-road safety performance information on all carriers with on-site compliance review and enforcement history information, when available, in order to measure relative motor carrier safety fitness." The primary use of SafeStat is "to identify and prioritize carriers for FMCSA and state safety improvement and enforcement programs."
⁴ In one recent case (not involving a Nebraska-based carrier), the investigator gave the appearance of having randomly selected those drivers whose logs were to be reviewed from a list provided by the carrier. It was later established that the investigator had in fact arrived for the Compliance Review with a list of pre-selected drivers furnished by a disgruntled former employee whose complaint to the then-Federal Highway Administration had prompted the Compliance Review. Those drivers whose logs were "randomly" selected for review were, of course, the drivers identified by the former employee as being those whose logs would most likely include false entries. The case eventually settled for less than one-third the amount of the original claim.