When a Motor Carrier faces an FMCSA Notice of Claim for violations of the regulations, what are the Motor Carrier’s options? An explanation of its choices is found at 49 CFR 386.14. Those choices are three:
1. Accept that all of the charges are correct and either pay the penalty immediately or arrange a payment plan as arranged by the administrators at FMCSA. Alternatively the company can plead to the FMCSA in writing why the penalty should be reduced and discuss a potential settlement (i.e. payment plan).
2. Challenge the validity of the charges by filing a written answer to the charges. This choice requires either an administrative hearing that someone will have to attend or an adjudication based upon the documents submitted. It would be advisable if the Motor Carrier is going in this direction that it hire an attorney.
3. Instead of pleading the case for a reduction in penalties to the administrators at FMCSA, the Motor Carrier can ask for binding arbitration. Again, it would be advisable for the Motor Carrier to hire an attorney if it wants to go down that road.
If the Motor Carrier selects option 1 and it wants to plead its case in writing to an administrator, below is a template that either the Motor Carrier or its attorney can rely on when preparing the Motor Carrier’s Reply to the Notice of Claim. Just remember that the reply needs to be served on the DOT within 30 days of the date of the Notice of Claim.
A DOT administrator that I have talked to says that the Motor Carrier’s Reply can ask for “the sun, the moon and the stars”. However, he said that the Motor Carrier needs to realize that it is not going to get everything it asks for. He said “It never hurts to ask.” Here is the template.
REPLY TO NOTICE OF CLAIM
Case Number NV-2012-????-US????
US DOT Number: ???????
Violation Date: DD/MM/YYY
Sir or Madam:
This is Motor Carrier X’s Reply to the above Notice of Claim issued against it by the FMCSA on DD/MM/YYYY.
THE FMCSA SHOULD REDUCE THE ASSESSED PENALTIES.
There are a number of compelling reasons why FMCSA should reduce the Assessed Penalties. Fill in those reasons below
Degree of Culpability
In this section, explain the circumstances and why the charges are not as serious as the FMCSA believes.
You may also want to discuss inspections, training or other remedial action that that the Motor Carrier has undertaken or is undertaking to prevent similar future violations.
If possible, explain why any prior violations are different from these. If they are the same, emphasize the impact that the remedial training and inspections will have to avoid the problem in the future.
Degree of Harm to Shippers
For each violation, the Motor Carrier should explain how it attempted to minimize the impact to the shipper. You are going to have to go through each instance of a violation and explain how the shipper was impacted if at all.
Ability to Pay
You should give the FMCSA an explanation about the financial responsibilities that the Motor Carrier is facing and what future forecasts for business looks like. Everyone has financial challenges. But it doesn’t hurt to put a few of those in writing to remind the FMCSA of particular challenges your company faces.
Effect on Ability to do Business
In this section you will explain how the responsibilities and forecasts mentioned in the above section will impact the company itself.
Any other Reason
This is the catch-all section. If you have other reasons to reduce the penalty, put those here.
ALTERNATIVELY, THE FMSCA SHOULD OFFER MOTOR CARRIER X A PAYMENT PLAN
This is the last alternative that you offer the FMCSA. If the Motor Carrier can’t pay the total fines immediately, then you will want to work out a payment plan, even on a reduced penalty.
Good luck preparing this on your own. If you have questions, give us a call at Bauman, Loewe, Witt & Maxwell and we will try to steer you in the right direction.