Reincarnated carrier challenges FMCSA’s out-of-service order

By Charlie Morasch, Land Line contributing writer | Friday, April 19, 2013

A Murfreesboro, NC-based trucking company is using administrative review to challenge FMCSA’s findings that it operated a “reincarnated carrier” after disregarding multiple federal safety and maintenance regulations.

Last December, FMCSA ordered Two Dayes Trucking and Two Dayes Transport to immediately cease all commercial motor vehicle operations. The order came after a Nov. 12, 2012, fatal wreck when company driver William Moore of Two Dayes Transport backed a 2004 International truck with trailer into a private drive on a hilly section of U.S. 258. Media reports said 73-year-old Roy Futrell’s pickup slammed into the trailer and became wedged underneath it, resulting in Futrell’s death at the scene.

Investigators said dirt had covered the truck and trailer’s reflective tape.

FMCSA then investigated the companies after the wreck and said both Two Dayes incarnations disregarded federal regulations on vehicle maintenance and repair, driver hours of service, qualifications of drivers and controlled substance and alcohol use. The companies hauled recycled steel and roofing shingles.

FMCSA said then the company had zero drug and alcohol testing program and had never required either of its two drivers to pass a pre-employment drug test.

After the November wreck, FMCSA found Two Dayes Trucking was operating under a revoked DOT registration and had reincarnated under the name Two Dayes Transport. It had no authority or insurance to operate under, and had no record of ever having maintenance performed on any vehicle or trailer.

Both companies had the same address, company officers and telephone numbers.

Last week, attorneys representing Two Dayes Transport and FMCSA met with a judge to prepare the company’s challenge to FMCSA’s out-of-service order. At issue are whether the company’s challenge – which was filed after a deadline – can be heard.

U.S. Administrative Law Judge J. E. Sullivan hinted that he may issue a ruling by next week on whether Two Dayes Transport’s motion was filed too late to be considered. A hearing with oral arguments on the order will likely be scheduled next month, according to the federal government’s regulations.gov website.

During a conference last week, Sullivan questioned why FMCSA didn’t want to allow the company to file its request for a hearing a few days after the deadline.

“Doesn’t that serve FMCSA’s interest in protecting the public safety if, in fact, FMCSA’s allegation that the respondent’s business is an imminent hazard to public safety is true?” Sullivan said, according to a transcript. “Wouldn’t FMCSA want the respondent to remain out of business for as long as possible?”

Deborah Stanziano, an attorney representing FMCSA, said the 10-day filing deadline is backed by congressional law.

“That’s the time limit that we’ve been given. And if you make a it a free-for-all and interpret the statute to say, well you have to hold the hearing within 10 days after the motor carrier’s filed, whether it’s three days or two years, it makes the statute completely meaningless.”

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