Road Law – July 2022
In an earlier article, we discussed out-of-service orders and the associated penalties with the violation of the same. Since that article, new regulations such as CSA and ELDs have entered into the mix, to name a few. However, when we think about out of service, we usually think driver qualification and roadworthy equipment.
Several inquiries to date have been about violating operational out-of-service orders, which we don’t usually see. To follow is a recent example of a new entrant’s case, and we hope this information will be helpful to you.
Q: I received a violation in Oklahoma for violating an out-of-service order. Can you help me?
A: Yes, we can help, but we need to know if the violation is due to equipment problems or if it is driver related? Also, where is the court located?
Response: There is no court listed, only a notice of claim from the Oklahoma Highway Patrol for operating in violation of FMCSA’s operational out-of-service order for failure to permit a safety audit.
A: In your case, we are dealing with an administrative agency, and our only option is to request an administrative hearing with the Oklahoma Department of Public Safety to address your problem.
You also may receive a notice of civil penalty from the feds for operating while operationally out of service.
On the federal level, as a new entrant, you are required to be under an 18-month safety monitoring period before your registration can be finalized. Part of this requirement is to undergo a safety audit during this time period. Can you provide some further information about what happened?
Response: I was driving the truck while the company was out of service because I didn’t know that there was an audit requirement that I had missed. I was away from home and didn’t respond to the letter requesting the safety audit in a timely manner, but after I found out I contacted them to schedule the audit. They told me I was out of service.
A: It is important to know that as a new entrant, there will be a safety audit within 12 months after you begin operations and there can also be compliance reviews or interventions if Data Q safety data indicates there may be a problem. If you are a smaller organization, it is critical that someone is monitoring your mail for any communications from the FMCSA and that if and when an audit occurs, they will want to conduct it at your principal place of business.
While not an exhaustive list, keep in mind that automatic failure of the safety audit will occur for violations in relation to alcohol and drug violations (drug testing programs and procedures for dealing with alcohol/drugs, etc.), driver violations (unqualified drivers, suspensions, revocations, etc.), operations violations (insurance requirements, hours of service records, etc.), and repairs/inspections violations (operating out of service vehicles or failure to repair vehicles or without inspection).
Q: How long will this take, and can I continue to operate my equipment?
A: The resolution of your case may take some time with the Oklahoma Department of Public Safety. However, that doesn’t control your ability to operate your equipment.
It appears from your case information that due to not responding to the request for a safety audit your registration was revoked and you are still operationally out of service.
Until you are reinstated and have undergone the safety audit, you can’t legally operate without further risk of penalties. The timing will be based on the speed of the FMCSA in processing your case. LL
Send any questions or comments regarding transportation law to: Jeff McConnell and James Mennella; Road Law, 3441 W. Memorial, Suite 4; Oklahoma City, OK 73134; call 405-242-2030; fax 888-588-8983; or contact them via RoadLaw.net.