Inspections by the FMCSA: Overview
FMCSA agents are authorized by the Regulations to perform inspections of a motor carrier’s vehicles, and upon finding problems, take measures up to and including declaring a vehicle out-of-service. It is possible that a vehicle previously the subject of such an inspection, whether before or after an incident, is involved in your case. The various aspects of the FMCSA’s inspection powers are the subject of this section.
Section 9 of part 396, entitled “Inspection of motor vehicles and intermodal equipment in operation,” discusses the procedures involved in the inspection of equipment by special agents of the FMCSA. It also details the respective obligations of drivers and motor carriers to cooperate with the FMCSA and comply with any action it takes as a result of those inspections. Included within this regulation are the following:
1. The FMCSA agent will create a “Driver Vehicle Examination Report” (DVER) to document the inspection.
2. Upon finding that a motor vehicle “by reason of its mechanical condition or loading would likely cause an accident or breakdown,” the FMCSA agent may mark it out-of-service. The notation of that on the report will also result in marking of the offending vehicle with an “out-of-service vehicle” sticker. Id. Once so marked, the motor carrier cannot use the vehicle or remove the sticker until all the repairs required by the report have been satisfactorily made. This means the vehicle cannot even be towed, except by means of a crane or hoist.
3. Any driver whose vehicle is inspected is required to give the motor carrier a copy of the DVER upon arrival at the next terminal or facility, and if not expected at a terminal or facility or, if the driver is not scheduled to arrive at one within twenty-four hours, he must immediately mail, fax or transmit it to the motor carrier. The motor carrier must review the report and correct violations.
4. Within fifteen days of inspection by the FMCSA, the motor carrier shall certify that the violations on the report have been corrected by completing the form sections included for that purpose and returning it to the FMCSA. The motor carrier must keep a copy for 12 months from the date of inspection.
It is rare to find that a motor carrier was cited for a violation that it then inaccurately certified as corrected, which then caused a crash. But such things do happen, and there are fewer more prime examples of a “smoking gun,” especially if the inaccurate certification was made by the motor carrier with the knowledge that it was false. However rare it may be, the effect this kind of development can have on the resolution of a case is the primary reason this section offers a discussion of these regulations. It is a mistake to overlook this regulation as simply laying out a set of mundane administrative procedures.
It bears repeating that, as with all reports, discovery should ask for any DVER prepared by the FMCSA for the specific vehicle. These can also be obtained with little resistance or expense directly from the FMCSA by way of a Freedom of Information Act (FOIA) request. Also, the driver should be asked during his deposition whether he was should ever subject to an inspection, whether by a state, federal, or local agency. He may have “forgotten” to tell the motor carrier about it as is required. That problem will belong both to him and the motor carrier. If it is found that the vehicle was declared out-of-service for a reason related to those that caused a crash, then the FMCSA agent that made the declaration should be deposed, as well. The agent may turn out to be the perfect expert.
Pertinent Case Law
The clear majority of the cases deal with the criminal and civil penalty proceedings that ensure after a fails to adhere to an out-of-service order or fails to maintain the required documents. Those cases generally do not contain the kind of legal discussion that would readily lend itself to a blog post of this nature.