Barely two weeks after the Federal Motor Carrier Safety Administration shut down Napierville, IL-based DND International (USDOT No. 1434005), a Dept. of Transportation administrative law judge (ALJ) has invalidated the agency’s April 1 imminent hazard out of service (IHOOS) order on the grounds that it violated statutory and regulatory procedures and was unwarranted by the facts in the case.
In an April 16 initial decision, DOT ALJ Richard Goodwin ruled that FMCSA denied DND International due process because it did not complete an administrative review of its IHOOS order within 10 days as required by federal law and regulation.
Although Goodwin declared that this procedural error alone warrants rescinding the IHOOS order, his 65-page decision concludes that FMCSA’s order was wrong on the merits as well. He said that FMCSA Field Administrator Darin Jones’ testimony in the expedited hearing “contradicted most of the allegations” in the IHOOS order he signed on April 1. Goodwin concluded that Jones had failed to carry out his burden of proof that DND’s operations constituted an imminent hazard to public safety, that DND’s operating authority should be revoked or that the carrier’s USDOT number registration should be suspended.
The ALJ ruled that a number of specific FMCSA allegations in the IHOOS order are “unsupported by the totality of the evidence and testimony in this case.” For example, the evidence does not support the allegation that DND lacks adequate safety management practices to ensure that its drivers are preparing and submitting accurate records of duty status and that they comply with hours of service driving limitations, Goodwin said. Nor is there evidence that DND’s drivers routinely falsify their records of duty status and exceed hours of service limitations, he said. The ALJ also rejected as unsupported FMCSA’s allegation that DND lacks adequate safety management practices to prevent its drivers from operating their commercial motor vehicles in an unsafe manner.
Goodwin said FMCSA’s allegation that a failure to establish an effective driver hours-of-service management program was a key contributing factor in a Jan. 27 fatal crash is unsupported by the evidence. He noted that the accident remains under investigation by several federal and state parties, including NTSB and FMCSA itself.
The accident involved the DND driver striking vehicles that were parked in the travel lane of the Illinois Tollway as they were assisting a disabled tractor-trailer. The DND driver said his view was obstructed by another tractor-trailer until that truck changed lanes and it was too late for him to stop. Goodwin said there was no evidence that the driver was anywhere but in the travel lane of traffic when confronted on an interstate highway by three vehicles stopped in the travel lanes of traffic.
FMCSA’s actions failed the three-step analysis for determining whether IHOOS order is appropriate, Goodwin ruled. Although DND did commit safety violations, the agency did not show that those violations posed an imminent hazard to safety or, even if they did, that the IHOOS order was narrowly tailored to abate the hazard. “The relevant factors cited by the Field Administrator justifying the Imminent Hazard finding established nothing more than DND may have warranted a ‘Conditional’ safety fitness rating,” Goodwin said.
FMCSA said it will appeal Goodwin’s initial decision. “FMCSA investigators uncovered a dangerous pattern of behavior that the company and their drivers made every effort to conceal. Keeping this company off-the-road is in the best interest of public safety,” the agency said.
Goodwin’s decision further complicates what had already been a difficult situation for FMCSA in its handling of the DND matter. The Chicago Tribune reported April 9 that DND had been slated for a compliance review last summer but that FMCSA didn’t launch the review until after the Jan. 27 crash. That disclosure led Sen. Richard Durbin (D-Ill.), who initially praised FMCSA for prompt action, to ask the DOT Inspector General to investigate FMCSA’s oversight of carriers with a history of violations.
