This one has been rattling around in my head for months, so it’s time to put it on the blog. You may have heard me talk about FMCSA’s Imminent Hazard Orders before. When DOT, aka FMCSA, declares you an imminent hazard, they basically shut you down immediately, and you stay shut down. Back in day, say 20 years ago, FMCSA used these Imminent Hazard Orders, but they would generally use them as a lever to force the motor carrier to agree to all sorts of conditions, at which point FMCSA would let the carrier keep operating. No longer. Once FMCSA says you’re an imminent hazard, you’re done, and you stay done.
The agency primarily uses these Orders against bus companies, because they’ve decided those are the companies most likely to kill someone. However, they can, and do, use them against anyone. They use them liberally, without regard to due process, fairness, or the law. This spring, one of the motor carriers finally stood up to them. This is that story.
In January, 2014, there was a fatal accident in Chicago where an Illinois tollway worker was killed. The driver of the truck which killed the tollway worker was an owner-operator leased to DND International, Inc. of Naperville, IL. The driver of the truck was found to have been over his hours of service at the time of the accident, and found to have falsified his logs to cover up the number of hours he drove.
FMCSA began a two month audit of DND, which concluded on March 21, 2014. At the conclusion of the audit, FMCSA alleged that DND’s drivers were falsifying their logs at a 25% rate, and issued DND a proposed Conditional rating.
On April 1, 2014, FMCSA served DND an Imminent Hazard Order, and ordered it to cease operations immediately. DND was somewhat shocked by this, as just ten days earlier, FMCSA concluded their audit, gave them a Conditional rating, and made no mention of future action. Now DND was completely out of business. At the time DND was put out of business, it had roughly 50 owner operators.
DND immediately contacted their lawyer, who challenged the FMCSA action. Per the FMCSA’s regulations, DND was given a hearing before an Administrative Law Judge (ALJ), which began a week later. The trial took about 4 days. The FMCSA argued that DND’s drivers were falsifying their logs. Also, DND’s CSA scores were an Hours of Service score of 91 and an Unsafe Driving score of 88. Finally, they argued that since their driver caused the fatality, that made the entire company an imminent hazard, which must be forced out of business.
DND argued that although its driver did have a terrible accident, it did not force him to violate the hours of service rules, and the driver had violated numerous company policies in doing so. They argued their overall accident record was not that bad, nor was their on-the-road compliance record. DND also pointed out they had already begun the process of installing EOBRs in their trucks when FMCSA pulled their authority.
The judge, rightly so, ruled for DND. His decision can be found here:
His decision was complete and total repudiation of the FMCSA’s Imminent Hazard Order. The judge found that, based on the evidence presented by FMCSA, DND was not an “imminent hazard”, and should have never been placed out of business. He found the agency did not prove DND had falsified logs to conceal hours of service violations. He found the agency did not prove DND did not have adequate safety management systems. He found that the FMCSA’s Field Administrator, who issued the Order putting DND out of business, was evasive under cross-examination by DND’s lawyer.
For around 3-4 years, FMCSA has been consistently abusing the “imminent hazard” statute. As discussed by the judge, it is only to be used when a motor carrier’s actions substantially increase the likelihood of serious injury or death if not discontinued immediately. The FMCSA may come across 2 or 3 instances in a year which justify an “imminent hazard” Order. Instead, the agency is doing 5 or 10 times that many Orders.
According to FMCSA’s recent way of thinking, failing to comply with any of their thousands of rules substantially increases the likelihood of death and destruction, therefore justifying them putting a carrier out of business at their discretion. That, coupled with high CSA scores, defines an “imminent hazard”.
There are 7 categories of CSA scores: Unsafe Driving, Hours of Service, Driver Fitness, Drug and Alcohol, Maintenance, Hazardous Materials, and Crashes. If you have 3 or more scores of 85 and above, watch out! FMCSA considers you to be an “imminent hazard” candidate. If they audit you, and find violations, you could very well end up out of business altogether.
This DND decision should put an end to that sort of nonsense, but there’s no guarantee. FMCSA is appealing the DND decision. The FMCSA continues to sink motor carriers via its “imminent hazard” orders, although I suspect they are doing it somewhat less than they were before the DND decision.
DND, on the other hand, has been wiped out. Even though FMCSA’s action was completely erroneous, DND has been destroyed. As you for-hire carriers already know, if you’re forced to shut down for 2 weeks, you’re finished. Your customers won’t trust you again. No one will insure you. DND will have a tough time getting any sort of compensation out of FMCSA, because the law lets the government do these kind of things without consequence. In other words, you can’t sue the government for damages. Well, you can, but you will very likely lose. Meanwhile, DND is still out of business.
As far as FMCSA goes, it really doesn’t matter if FMCSA is wrong or its actions are illegal. No damage has been done to FMCSA by the DND decision. They sank DND, even though they were wrong. They can’t be sued. They can sink the next motor carrier if they want. Really, the only thing which limits them is their consciences. I wouldn’t expect that to stop them, because the people calling the shots in that place think they did the right thing in blowing up DND. These people are not bothered by judge’s decisions, law, or any other sort of impediments. It’s all about “saving lives” to these people, and the end justifies the means.