Statements

Posted on February 28, 2012 
Filed Under GETTING AUDITED

I want to say a few words about statements. Specifically, written statements the FMCSA makes you sign during an audit. For those of you who haven’t had the privilege of going through an audit, if you are audited, the FMCSA may fine you if you have violations. In order to do that, they must prove, at some rudimentary level, you have violated the regulations. They generally do this by photocopying your records.

For example, let’s say you have neglected to renew one of your driver’s medical exams, and he is driving without a current medical. The auditor will establish the fact he has been driving a commercial vehicle by copying the truck registration, and then a few of his logs to show he has been driving that truck. He will photocopy a bill of lading or two, to show the driver has been working for you in the furtherance of your business. He may even copy payroll records to show the driver has been paid by you, and that he works for you. He will copy the expired medical, to show when it was expired. At this point he will write down what he thinks are the facts of the situation, and tell you to sign it. For example, “on 2/16/12, driver Joe Smith operated truck 6, which is over 10,001 lbs. GVWR in interstate commerce from Dallas, TX to Oklahoma City, OK. On this date, the driver did not have a current medical exam.”

98% of motor carriers given these statements sign them. Don’t! You don’t have to. The FMCSA has no power to force you to sign their statements. All you are doing is helping them fine you money. Politely decline, and tell them that any sort of signed admissions must be reviewed by your attorney. Don’t be a jerk about it, do it nicely, but don’t sign their statement.

But why? I know my files are somewhat wrong, so what’s wrong with just admitting it? There is simply nothing to be gained by signing that statement. What you have done is help them fine you, and make it stick. For one thing, those statements are not always correct. The auditor is putting down what he thinks the facts are. The auditors make mistakes. They make mistakes more times than you think. He may be putting down violations which actually are not violations, and then making you admit to them. Once you admit to them, it makes it more difficult to convince his bosses you’re not guilty.

Back in the day, when I worked for the Dark Side as an auditor, I used the statements. All of the auditors do it. I would write up a statement, in which I would spell out certain points of fact which I wanted to nail down as part of my proof. Then I would put in there some BS about how sorry you were, and how you were going to immediately fix the violations, etc., etc. I didn’t care about that, the whole purpose of getting the motor carrier to sign the statement was to get the admission on those key facts. It helped make my charges stick, so they would not be thrown out by the DOT attorneys.

The other reason to make it more difficult for FMCSA to fine you is, the fines are outrageous. In many cases, the penalty is not going to be a simple slap on the wrist. It’s going to be thousands upon thousands of dollars, and very likely it will far exceed the seriousness of whatever violation you have committed. This is merely my opinion. After doing this for over 20 years, both with the FMCSA and outside of the FMCSA, I have come to the opinion that willfully helping them fine you is just not good strategy.

Comments

2 Responses to “Statements”

  1. Aaron Lipcon on March 13th, 2012 9:34 pm

    I dont know if this will go through but worth a try…

    I am principle owner of a rental company that rents or less refrigerated trucks. I rent them by the day week or month. I am unsure of what Regulations apply and dont apply to my business. What do I have to do to ensure the renter is compliant? do I put my renters in jeopordy by not ensuring certain items? Need some help.

    Please reply if you are still consulting or can help me with this quandry.

    Aaron Lipcon
    MRR

  2. Eric Arnold on March 14th, 2012 9:00 am

    This is a pretty open-ended question, but quickly, the motor carrier is responsible for complying with the rules. That is, the renter. He is the one operating the vehicle, not you the owner. The renter must have a qualified driver, comply with the hours of service rules, and ensure the truck is in proper working condition. It helps if you are also properly maintaining the vehicle, because if you are not, in an accident, a plainiff’s attorney may try to pull you into a lawsuit. Hope that helps!

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