Transport Insights

After the DOT Investigation

Eric DeJesus, Safety Consultant 

Date: 1/13/2023

So you’ve just been through a DOT Federal Motor Carrier Safety Administration (FMCSA) investigation. Don’t panic. Investigations shouldn’t be feared if you prepare ahead of time. Now that the investigation is completed, what happens next?

First, let’s discuss the types of investigations.

  • New Entrant Audit: Comprises around 78% of all audits. These are conducted within the first 18 months of registering your DOT number and include an educational component. Grading for a new entrant audit is pass/fail. A failed new entrant audit is comparable to an unsatisfactory, but you will be given an opportunity to correct deficiencies.
  • Compliance Review: This is what most people call an audit, but they only comprise about 4% of all audits done by DOT. A compliance review is broad in scope, covering:
    • Factor 1: General: Part 387 and Part 390
    • Factor 2: Driver: Part 382, Part 383, and Part 391
    • Factor 3: Operational: Part 392 and Part 395
    • Factor 4: Vehicle: Part 393 and Part 396
    • Factor 5: Hazardous Materials: Parts 171, 172, 177, 180, and 397
    • Factor 6: Recordable Accident Rate
  • Focused Audit: These are narrow in scope and focus on problem areas identified from roadside inspections. Focused audits account for about 18% of all investigations.

Any investigation can be conducted on-site at your offices or off-site. You upload the requested documents to FMCSA for review in an off-site audit. Off-site audits have grown in the last few years to comprise nearly 50% of all audits conducted.

Once you have gathered all your documents and DOT has completed the investigation, you’ll be notified of your final rating or proposed rating within 30 days. A Satisfactory rating is final on receipt of the notice. A Conditional or Unsatisfactory rating is final 45 to 60 days after receipt. An Unsatisfactory final rating leads to an Out-Of-Service (OOS) order unless the carrier challenges the rating or provides proof of substantial improvement since the audit.

The Carrier Investigation Report may carry with it some potential penalties.

  • Notice of Claim (NOC)
    • A formal notice that violations are severe enough to warrant assessment and civil penalties.
  • Notice of Violation (NOV)
    • A formal notice that violations are severe enough to warrant formal action but not civil penalties. To avoid further intervention from FMCSA, the carrier must take corrective action and provide evidence of it or contest the violations.
  • Cooperative Safety Plan
    • A voluntary plan a carrier may implement with the help of Safety Investigators (SI) to address safety problems. This plan may be used alone or with a Notice of Violation (NOV), but it cannot replace a Notice of Claim (NOC).
  • Operation Out of Service Order (OOSO)
    • An order requiring the carrier to cease all motor vehicle operations immediately.

The auditor will provide you with a report of their findings. There may be three types of violations listed depending on the findings.

  • Acute - Noncompliance with a single acute violation is considered serious and requires immediate corrective actions by the carrier. For each instance of noncompliance, one point will be assessed.
  • Critical - Those where noncompliance relates to a breakdown in a carrier’s management controls. When several documents are reviewed, the number of violations required to meet a pattern of noncompliance is equal to at least 10% of those examined. For each pattern of noncompliance, one point will be assessed…unless the Factor being reviewed is HOS; it will be assessed as two points.
  • Non-Scoring Violations - Those noncompliance areas that are not assessed a point as a violation in the audit but have a bearing on the overall severity of fines levied by the FMCSA. While not assessed points, these areas are still violations and should be addressed appropriately.

If you disagree with the violations and rating because FMCSA committed an error, then you should request an administrative review as provided for under 385.15. You must detail all factual and procedural issues in dispute and provide proof.

If you do not disputing the findings of the investigation, then it’s time to get busy correcting policies and processes and taking corrective action to address the findings. After reviewing the findings, including a failed new entrant audit, you should:

  • Create a plan of action
    • Once you have reviewed the findings, you need to act. Prioritize the violations and map out your plan to correct any deficiencies discovered.
  • Act
    • Implement the changes recommended by the auditor. As new gaps are identified, you may need to adjust your plan.
  • Track Progress
    • It is essential to keep track of the actions taken, which will need to be reported to FMCSA to update your rating.

Once all deficiencies have been corrected, you may request an updated safety rating under §385.17. You will need to provide evidence that it has taken corrective actions with a written description of the actions taken, along with any other documentation showing the actions are working.

Establishing a safety plan, changing policies and procedures, and taking meaningful action to correct the deficiencies from the investigation can be a complex process. The consultants at J. J. Keller can help your organization through this trying time!