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Judge refutes FMCSA OOS action, allows carrier involved in fatality back on highway

DND International driver Renato Velasquez (shown) entered not guilty pleas to felony driving violations stemming from the Jan. 27 crash that killed Vincent Petrella and injured Trooper Douglas Balder. The accident led the FMCSA to put DND out-of-service, an action that was overturned by an administrative law judge in Illinois. (The Trucker file photo)

By LYNDON FINNEY
The Trucker Staff

4/17/2014

CHICAGO — An Illinois administrative law judge Wednesday usurped the authority of the Federal Motor Carrier Safety Administration to order a Naperville, Ill., motor carrier out-of-service following an investigation undertaken as the result of a January accident that killed a Tollway worker and injured a state trooper.

Following a four-day hearing, Administrative Law Judge Richard C. Goodwin declared that there was no evidence that the company’s actions had contributed to the fatal crash, and that the government had failed to establish that DND International was an imminent hazard, despite the fact that the FMCSA said its probe compared seven DND drivers’ logbooks to other records, including Tollway data, and found that all of the drivers had falsified their logs and that DND’s CSA scores in Unsafe Driving and Hours of Service compliance were both above the intervention level.

The FMCSA order, signed by Midwest Field Administrator Darin Jones, said that the agency’s investigation had uncovered “an unmistakable, dangerous pattern of serious falsification” of duty logbooks.

DND challenged the agency’s ruling and Goodwin ruled that the investigator’s methods were insufficient to justify such a sweeping penalty, and he deemed the Tollway records of little weight. He also dismissed FMCSA’s claim that DND had refused to use Tollway data as a way of monitoring its drivers’ compliance with the rules.

Goodwin said that Jones, who spent about a day on the witness stand, contradicted the allegations contained in the FMCSA order. When questioned, Jones was at times “evasive” and also gave “lengthy rambling” responses, the judge wrote. Goodwin said he gave the field administrator’s testimony “limited weight” as a result.

The OOS “amounted to the ‘death penalty’ for DND,” Goodwin said, because it forced the company off the roads. His 65-page ruling characterized the order as an overreaction that denied DND the chance to address regulators’ concerns.

The FMCSA said it would appeal the decision.

“FMCSA investigators uncovered a dangerous pattern of behavior that the company and their drivers made every effort to conceal,” the agency said in a prepared statement. “Keeping this company off the road is in the best interest of public safety and we will appeal this initial decision.”

The administrative law judge’s ruling comes one week after Illinois Sen. Dick Durbin asked the Department of Transportation’s Inspector General (IG) to audit the FMCSA’s investigative practices in the wake of a January fatality and a report in the Chicago Tribune that said the FMCSA had ordered, but never actually launched, an investigation of DND.

The paper reported the carrier had a long history of safety violations.

In requesting the audit in a letter to DOT IG Calvin L. Scovel III, Durbin, a Democrat, pointed to the Tribune report, saying the report was a “troubling example of FMCSA ordering, but never actually launching, an investigation into an Illinois motor carrier with a long history of violating safety rules. FMCSA ordered an investigation of DND International in August of 2013.  However, FMCSA did not start the investigation until after a DND driver was involved in the fatal crash in January on I-88 in Aurora, Ill.  Earlier intervention and follow-through by FMCSA could have avoided this tragedy and we need a hard look into whether FMCSA is taking the proper steps to keep these accidents waiting to happen off the road.”

Wednesday night, a spokesman for the Illinois Democrat said the judge’s ruling “seems to put profits over the safety of motorists.”

On April 2, about a week before Durbin made his request, the FMCSA had put DND International out-of-service for being an imminent hazard to the public.

DND driver Renato Velasquez entered not guilty pleas to felony driving violations stemming from the Jan. 27 crash that killed Vincent Petrella and injured Trooper Douglas Balder.

The Trucker staff can be reached to comment on this article at editor@thetrucker.com.

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