UNITED STATES DEPARTMENT OF TRANSPORTATION

FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION

IMMINENT HAZARD

OPERATIONS OUT-OF-SERVICE ORDER

This is an Imminent Hazard Operations Out-of-Service Order (“Order”) issued by the Secretary of Transportation pursuant to 49 U.S.C. § 521(b)(5)(A), 49 U.S.C. § 13905(f), 49 U.S.C. § 31144(c)(1) and (5), 49 U.S.C. § 31133(a)(10), 49 U.S.C. § 31134, and 49 C.F.R. § 386.72(b)(1), and pursuant to a delegation of authority to the Regional Field Administrator, Southern Service Center, Federal Motor Carrier Safety Administration (“FMCSA”), United States Department of Transportation (“USDOT”), Atlanta, Georgia. This Order applies to LESLIE ERICKSON dba LES’S TREE AND STUMP, INC. (USDOT No. 2512204), a motor carrier, and its owners, officers, agents, and employees (hereinafter collectively referred to as “you,” “your,” “it,” and/or “LES’S TREE AND STUMP, INC.”), and to all commercial motor vehicles owned or operated by or on behalf of LES’S TREE AND STUMP, INC., including those commercial motor vehicles identified in Appendix A attached hereto.

The Secretary and the FMCSA find your operations and continued operation of any commercial motor vehicle (hereinafter referred to as “commercial motor vehicles,” and/or “vehicles”) in the United States constitute an imminent hazard. This finding means that based upon your present state of unacceptable safety compliance, your operation of any commercial motor vehicle poses an imminent hazard to public safety.

EFFECTIVE IMMEDIATELY YOU MUST CEASE ALL COMMERCIAL MOTOR VEHICLE OPERATIONS INCLUDING ALL INTERSTATE AND INTRASTATE TRANSPORTATION.

Your vehicles and their drivers now in interstate or intrastate commerce may proceed to their next immediate destination. See 49 C.F.R. § 386.72(b)(4) and (5). You may not load or transport any additional freight or property while this order is in effect.

YOU MAY NOT LOAD OR TRANSPORT ANY ADDITIONAL CARGO OR

OPERATE ANY COMMERCIAL MOTOR VEHICLE IN INTERSTATE OR INTRASTATE COMMERCE WHILE THIS ORDER IS IN EFFECT.

“Operate” or “Operating” includes without limitation all interstate and intrastate transportation by drivers from all dispatching locations or terminals. LES’S TREE AND STUMP, INC.’s commercial motor vehicles may not be operated in interstate or intrastate commerce by any other motor carrier or any driver, even without freight. Any movement of LES’S TREE AND STUMP, INC.’s commercial motor vehicles, including its trailers, to any storage, repair, or other location for the purposes of repair, sale, storage, or final destination must be accomplished only by towing, such that the truck tractor is not driven or operated. Your commercial motor vehicles may be moved, including by tow, only upon the prior written approval of the Regional Field Administrator for FMCSA’s Southern Service Center.           

Within eight (8) hours of receipt of this Order, you must submit to the Regional Field Administrator in writing by facsimile the location of each commercial motor vehicle under your control. You must identify the vehicle, including tractor, power unit, and/or trailer, by year, make, model and vehicle identification number (VIN), and you must include a copy of the current registration. You must also identify the street address, city, and state of the location of each vehicle, and you must identify the driver last operating the vehicle. Your submission must be faxed to the Regional Field Administrator at 404-327-7359.

You cannot avoid this Order by continuing operations under the name of another person or company. If you intend to sell, lease, loan or otherwise transfer or allow the use of any commercial motor vehicle, including any trailer, to any other person, motor carrier, or business, you must provide written notice to the Regional Field Administrator no less than five business days before any such sale, lease, loan, transfer or use.

1. JURISDICTION

 LES’S TREE AND STUMP, INC. is a motor carrier engaged in interstate commerce using commercial motor vehicles and is, therefore, subject to the Federal Motor Carrier Safety Regulations (“FMCSRs”), 49 C.F.R. parts 350-399, and the alcohol and controlled substances regulations at 49 C.F.R. part 40, as well as the Orders of the USDOT and FMCSA. See 49 U.S.C. §§ 506, 507, 13501, 31133 and 31136, and 31144. You are required to comply, and to ensure your drivers comply, with the FMCSRs and Orders of the USDOT and FMCSA. 49 C.F.R. § 390.11.

This Order has the force and effect of any other Order issued by FMCSA and is binding upon LES’S TREE AND STUMP, INC. as well as any and all of its owners, officers, members, directors, successors, assigns, and closely affiliated companies. This Order applies to all motor carrier operations and all vehicles owned, leased, rented or otherwise operated by you.

II.      BASIS FOR ORDER

The basis for determining LES’S TREE AND STUMP, INC.’s motor carrier operations pose an imminent hazard to the public is that LES’S TREE AND STUMP, INC. has engaged in and continues to engage in a pattern and practice of flagrantly ignoring and violating the Federal Motor Carrier Safety Regulations. LES’S TREE AND STUMP, INC. fails to adequately maintain its vehicles, lacks a preventive vehicle maintenance program, and has a vehicle out-of-service rate dramatically above the industry average. LES’S TREE AND STUMP, INC. allows unqualified drivers to operate its vehicles, and it does not maintain complete driver qualification files essential to ensuring its drivers are qualified. LES’S TREE AND STUMP, INC. has an almost non-existent drug and alcohol testing program. Further, LES’S TREE AND STUMP, INC. does not require its drivers to prepare and submit records of duty status or time records, and it does not have safety management practices in place to ensure its drivers comply with the maximum hours of service limitations. LES’S TREE AND STUMP, INC.’s flagrant disregard for compliance with safety regulations poses an ongoing and continuing imminent hazard to safety which substantially increases the likelihood of serious injury or death if not discontinued immediately.

III.    BACKGROUND

On June 5, 2014, FMCSA notified LES’S TREE AND STUMP, INC. that its application seeking registration to operate in interstate commerce was approved, and it was required to contact FMCSA to validate its application information and schedule a new entrant safety audit. FMCSA warned LES’S TREE AND STUMP, INC. that failure to take these necessary actions could result in revocation of its new entrant registration and its motor carrier operations could be placed out-of-service. Despite repeated reminders from FMCSA, LES’S TREE AND STUMP, INC. failed to contact FMCSA as directed in the notification letter. On February 17, 2015, FMCSA revoked LES’S TREE AND STUMP, INC.’s new entrant registration and ordered the carrier to cease all interstate transportation.

On July 20, 2015, FMCSA approved LES’S TREE AND STUMP, INC.’s reapplication for new entrant registration and again informed the carrier it must immediately contact FMCSA and schedule a new entrant safety audit. On August 22, 2015, a LES’S TREE AND STUMP, INC. vehicle was involved in a personal injury crash on Chimney Rock Highway in Henderson County, North Carolina. LES’S TREE AND STUMP, INC.’s driver crashed into four cars stopped at a traffic light, and, during the investigation, the driver informed North Carolina State Highway Patrol officers that he pressed the brake pedal of the vehicle, but the vehicle would not stop. The North Carolina State Highway Patrol investigation found the driver not qualified to operate the vehicle because he did not possess a valid commercial driver’s license (CDL). The post-crash inspection of the vehicle found seven of ten brakes inoperative or out of adjustment.  

After the accident, FMCSA repeatedly attempted to conduct an investigation into the motor carrier operations of LES’S TREE AND STUMP, INC. An FMCSA investigator contacted LES’S TREE AND STUMP, INC. and scheduled a compliance investigation for October 5, 2015. However, the day before the scheduled investigation, LES’S TREE AND STUMP, INC. abruptly notified the FMCSA investigator that it would not be available for the investigation. FMCSA then served a demand to inspect and copy records to LES’S TREE AND STUMP, INC., but the carrier failed to comply with FMCSA’s demand. After that, FMCSA issued a notice of claim to LES’S TREE AND STUMP, INC., with a proposed civil penalty of $7,700, for failure to comply with the demand for records and for operating in violation of an FMCSA out-of-service order issued for refusal to submit to a new entrant safety audit. On February 2, 2016, FMCSA served another demand to inspect and copy records to LES’S TREE AND STUMP, INC. Subsequently, the carrier complied with this demand for access.

FMCSA’s investigation uncovered serious violations of the FMCSRs by LES’S TREE AND STUMP, INC., demonstrating a continuing and flagrant disregard for regulatory compliance and a safety management structure and philosophy indifferent to motor carrier safety. Following the compliance investigation FMCSA issued the carrier a proposed a safety rating of “Unsatisfactory.”

LES’S TREE AND STUMP, INC. does not have a systematic vehicle inspection, repair, and maintenance program in place to prevent the operation of unsafe motor vehicles[1] and was unable to produce any maintenance record identifying the date and nature of inspections, repairs, and maintenance conducted.[2]  LES’S TREE AND STUMP, INC. also does not retain any periodic inspection reports on its vehicles.[3] Although the President of LES’S TREE AND STUMP, INC. initially stated that repairs are performed at the carrier’s facility, he later retracted his statement and admitted that the carrier does not have a repair shop at the facility. LES’S TREE AND STUMP, INC.’s lack of a preventive maintenance program has resulted in the carrier’s vehicles being placed out-of-service or cited for vehicle violations in the last eight of its nine roadside inspections. During its investigation, FMCSA discovered that LES’S TREE AND STUMP, INC. allowed the same driver and vehicle involved in the August 22, 2015 accident to continue to operate even though the driver and vehicle had been placed out-of-service the week before the crash. During the August 14, 2015 roadside inspection, LES’S TREE AND STUMP, INC.’s vehicle was placed out-of-service for inoperative or out of adjustment brakes, and its driver was placed out-of-service because he did not possess a valid CDL. LES’S TREE AND STUMP, INC. did not repair the vehicle violations following the inspection, and it allowed its driver to continue to operate the vehicle without a valid CDL.

LES’S TREE AND STUMP, INC.’s two current drivers are not qualified to operate its vehicles because neither driver possesses a valid CDL.[4] Further, LES’S TREE AND STUMP, INC. maintains incomplete driver qualification files on its drivers, and the files lacked essential qualifying documentation.[5] LES’S TREE AND STUMP, INC. employs a third driver, but carrier officials experienced difficulty spelling the driver’s last name and had minimal information on the driver. LES’S TREE AND STUMP, INC. did not maintain a driver qualification file on the third driver, and carrier officials stated the driver was presently in Florida on personal leave.

LES’S TREE AND STUMP, INC. does not follow FMCSA mandated alcohol and controlled substance testing requirements to ensure that its drivers are able to safely operate its vehicles. LES’S TREE AND STUMP, INC. is using drivers to operate its vehicles before receiving negative pre-employment controlled substance test results.[6] LES’S TREE AND STUMP, INC. is also not conducting random alcohol and controlled substance testing on its drivers.[7] Further, LES’S TREE AND STUMP, INC. is not conducting post-accident alcohol tests on its drivers.[8]

LES’S TREE AND STUMP, INC. also fails to comply with hours of service regulations in 49 C.F.R. part 395. LES’S TREE AND STUMP, INC. does not require its drivers to complete records of duty status or time records, and it does not have safety management practices in place to ensure its drivers comply with maximum hours of service limitations.

In sum, LES’S TREE AND STUMP, INC.’s continued and blatant disregard for the FMCSRs substantially increases the likelihood of serious injury or death, and its operations pose an imminently hazardous and potentially deadly risk for its drivers and the motoring public if not discontinued immediately.

IV.       REMEDIAL ACTION

To eliminate this imminent hazard, and before LES’S TREE AND STUMP, INC. will be permitted to resume operations placed out-of-service by this Order, LES’S TREE AND STUMP, INC. must take specific steps to ensure and demonstrate compliance with the FMCSRs, including the following:

1. You must establish safety management controls and procedures to ensure that your drivers comply with HOS requirements as set forth in 49 C.F.R. part 395. Your safety management system must ensure that your drivers comply with HOS requirements and do not exceed maximum driving times. You must establish safety management controls and procedures to require drivers to prepare and submit records of duty status or time records and associated supporting documents as required, ensure that drivers’ records of duty status or time records are checked, ensure that your drivers are not violating HOS requirements, ensure drivers do not falsify records of duty status or time records, and ensure that each driver accurately completes his or her records of duty status or time records in the form and manner required under 49 C.F.R. part 395.

2. You must ensure and demonstrate that each and every commercial motor vehicle you operate or intend to operate, whether owned, rented, leased or otherwise used, is in a safe operating condition and in full compliance with 49 C.F.R. part 393 (Parts and Accessories Necessary for Safe Operation) and part 396 (Inspection, Repair and Maintenance), and that all defects and deficiencies have been corrected and repaired.

3. You must establish safety management controls and procedures that ensure that each and every commercial motor vehicle you operate or intend to operate, whether owned, rented, leased or otherwise used, is systematically and properly inspected, maintained and repaired as required by 49 C.F.R. part 396, and that documentation of inspections, maintenance and repair are obtained and maintained as required.

4. You must ensure that each commercial motor vehicle you operate or intend to operate, whether owned, rented, leased or otherwise used, has been and is periodically inspected as required by 49 C.F.R. part 396 and Appendix G to Subchapter B of Chapter III, and that such periodic inspections are conducted by qualified inspectors.

5. You must ensure that employees, contractors and/or agents used to inspect and maintain each commercial motor vehicle you operate and/or intend to operate are trained and qualified to conduct such inspections, maintenance and repairs, and documentation of training and qualifications is maintained in accordance with 49 C.F.R. part 396.

6. You must require drivers to conduct pre-trip and post-trip commercial motor vehicle inspections, and must require drivers to prepare Driver Vehicle Inspection Reports in accordance with 49 C.F.R. § 396.11 at the end of each day and establish procedures to ensure that reported safety defects and/or discrepancies are corrected before the vehicle is again operated as required by 49 C.F.R. part 396.

7. You must establish safety management controls and procedures to ensure that defects and deficiencies discovered during inspections of your commercial motor vehicles are repaired prior to the vehicle being operated.  You must ensure that no commercial motor vehicle that fails, or has failed, a safety inspection is used prior to necessary repairs being made and the vehicle passing an appropriate safety inspection.

8. You must ensure that you maintain driver qualification files, as required by 49 C.F.R. part 391. You must ensure that every driver you use has completed and furnished an employment application. You must investigate each driver’s background within 30 days of employment and must maintain a copy of the response from each State agency in the driver’s qualification file. You must ensure that you obtain from each driver an annual list of traffic violations and an annual Motor Vehicle Record, and that you perform an annual review on each driver's driving record. You must ensure that you perform a three-year previous employment check on your drivers prior to their operating a commercial motor vehicle, in accordance with 49 C.F.R. § 391.23. You must ensure each driver possesses the requisite driver’s license and DOT medical examiner’s certificate as well as ensure that a copy of each driver’s license and medical examiner’s certificate is maintained in the driver’s qualification file.

9. You must establish a DOT controlled substance and alcohol testing program in compliance with 49 C.F.R. parts 40 (Procedures for Transportation Workplace Drug and Alcohol Testing Programs) and 382 (Controlled Substances and Alcohol Use and Testing) and provide evidence of this program to the Southern Service Center Regional Field Administrator. You must use only those laboratories certified by the U.S. Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration for the analysis of urine specimens. You must implement a policy on the misuse of alcohol and controlled substances that conforms to 49 C.F.R. § 382.601(b). You must ensure that driver supervisors undergo at least 60 minutes of training on alcohol misuse as well as an additional 60 minutes of training on controlled substance use that conforms to 49 C.F.R. § 382.603.

10. You must ensure that each driver selected for random controlled substances or alcohol testing has an equal chance of being selected each time selections are made. You must ensure that you have received a negative pre-employment controlled substances test for each driver before using that driver to perform safety-sensitive functions. You must establish policies and procedures to ensure that you do not dispatch a driver who has tested positive for controlled substances or alcohol until that driver has completed the return-to-duty process in 49 C.F.R. Part 40.

11. You must ensure that all drivers are adequately trained in the requirements of the FMCSRs and that they are able to conduct motor carrier operations consistent with those regulations.

12. You must contact FMCSA’s North Carolina Division and arrange for inspection of each of your commercial motor vehicles by an FMCSA inspector or an inspector designated by FMCSA.

13. You must comply with all Orders issued by FMCSA.

V.        RESCISSION OF ORDER

            LES’S TREE AND STUMP, INC.’s motor carrier operations are subject to this Order unless and until the Order is rescinded in writing by FMCSA. Unless and until this Order is rescinded, and until such time as you have a valid and active USDOT number and operating authority registration (if applicable), you are prohibited from operating any commercial motor vehicle in interstate and/or intrastate commerce. This Order will not be rescinded until the Regional Field Administrator for FMCSA’s Southern Service Center has determined that the Remedial Action requirements specified in Paragraph IV of this Order have been fully satisfied and acceptable documentation submitted.

Before this Order will be rescinded, you must comply with the provisions of this Order, eliminate the problems constituting the imminent hazard that your operations pose, and adequately demonstrate to the Regional Field Administrator for FMCSA’s Southern Service Center the actions taken to eliminate the safety problems. You cannot avoid this Order by continuing operations under the name of another person or company. 

Any sale, lease, or other agreements involving your commercial motor vehicles or motor carrier operations require 5 business days written notice to the Regional Field Administrator. Any such action taken in anticipation of this Order must cease immediately.

Prior to rescission of this Order, LES’S TREE AND STUMP, INC. will be required to:

1. Identify the cause for its noncompliance.2.  Develop a detailed Safety Management Plan of action that addresses each area of non-compliance, the steps it intends to take to overcome its non-compliance, and a
2. Develop a detailed Safety Management Plan of action that addresses each area of non-compliance, the steps it intends to take to overcome its non-compliance, and a time table for these steps.
3. Execute the Safety Management Plan and provide certification by all owners and officers.

Any request to rescind this Order and documentation demonstrating satisfaction of the Remedial Action requirements must be directed to the Regional Field Administrator, Southern Service Center, with a copy to the Division Administrator, North Carolina Division, at the following addresses:

            Regional Field Administrator, Southern Service Center

            Federal Motor Carrier Safety Administration

            1800 Century Blvd., NE, Suite 1700

            Atlanta, Georgia 30345

            Division Administrator, North Carolina Division

            Federal Motor Carrier Safety Administration

            310 New Bern Avenue, Suite 468

Raleigh, North Carolina 27601

Rescission of this Order does not constitute a reinstatement of your USDOT Number or operating authority registration. In order for LES’S TREE AND STUMP, INC. to resume motor carrier operations transporting property in interstate or intrastate commerce, LES’S TREE AND STUMP, INC. will be required to apply to reactivate its USDOT number registration, and if its operations require Federal operating authority, apply for new operating authority registration and demonstrate that it is fit and willing and able to comply with: 1) the statutory and regulatory registration requirements; 2) applicable safety regulations including the FMCSRs; 3) the commercial motor vehicle safety requirements of employers and employees set forth in 49 U.S.C. § 31135; 4) the safety fitness requirements set forth in 49 U.S.C. § 31144; and 5) minimum financial responsibility requirements established under 49 U.S.C. §§ 13906 and 31138.

VI.       ENFORCEMENT OF ORDER

            This Order, issued pursuant to 49 U.S.C. § 521(b)(5)(A), 49 U.S.C. § 13905(f), 49 U.S.C. § 31144(c)(1) and (5), 49 U.S.C. §§ 31133 and 31134, and 49 C.F.R. § 386.72(b)(1), is an Order of, and enforceable by, the Secretary. Violation of this Order may subject LES’S TREE AND STUMP, INC. to civil penalties and may also result in an action in the United States District Court for equitable relief and punitive damages. LES’S TREE AND STUMP, INC. may be assessed civil penalties of up to $25,000 for each violation of this Order. 49 U.S.C. §§ 507, 521(b)(2)(F) and 521(b)(4) and 49 C.F.R. part 386 App. A, § IV(g).  LES’S TREE AND STUMP, INC. may also be assessed civil penalties of up to $10,000 for providing transportation requiring registration, including operating a commercial motor vehicle in interstate commerce, without operating authority registration and up to $25,000 for operating a commercial motor vehicle in interstate commerce without USDOT number registration. See 49 U.S.C. §§ 14901, 14702-03, 507, 521(b)(2)(F) and 31134. If violations are determined to be willful, criminal penalties may be imposed, including a fine of up to $25,000 and imprisonment for a term not to exceed one year. 49 U.S.C. §§ 521(b)(6)(A).

VII.     PENALTIES FOR VIOLATIONS OF FEDERAL REQUIREMENTS

            Any motor carrier or driver that violates Federal requirements, including the FMCSRs, and/or permits its employee(s) to violate Federal requirements is subject to civil and/or criminal penalty provisions. Penalty provisions for violations of Federal statutes and regulations are separate and distinct from this Order. Penalties may be assessed for the violations of Federal requirements, including the FMCSRs and Orders of the FMCSA, previously discovered, discovered after the service of this Order, and/or discovered during subsequent investigations.

VIII.    RIGHT TO REVIEW

            You have the right to administrative review in accordance with 5 U.S.C. § 554 and 49 C.F.R. § 386.72(b)(4). If requested, administrative review must commence within ten days after the petition for review is filed and must be concluded as expeditiously as practicable but may run longer than ten days from the date of issuance of such Order or the filing of the petition for review. See 49 U.S.C. § 521(b)(5) and 49 C.F.R. § 386.72(b)(4). A request for review must be addressed to the Assistant Administrator, United States Department of Transportation, Federal Motor Carrier Safety Administration, and should be sent to the attention of Adjudications Counsel by facsimile or electronic mail as follows:

By Fax:

                        Adjudications Counsel (MC-CCA)

                        (202) 366-3602

or electronic mail:

FMCSA.Adjudication@dot.gov

with a copy mailed or sent by commercial delivery service to the Assistant Administrator and Adjudications Counsel at the following address:

            Adjudications Counsel (MC-CCA)

            Federal Motor Carrier Safety Administration

            Office of Chief Counsel

            1200 New Jersey Avenue, S.E.

            Washington, DC 20590

A copy of any request for administrative review must also be sent to the Regional Field Administrator by mail, and/or facsimile as follows:

Regional Field Administrator, Southern Service Center

            Federal Motor Carrier Safety Administration

            1800 Century Blvd., NE, Suite 1700

            Atlanta, GA 30345

            Fax: (404) 327-7359

The request must state the material facts at issue which you believe dispute or contradict the finding that your operations constitute an “imminent hazard” to the public.

A REQUEST FOR ADMINISTRATIVE REVIEW DOES NOT IN ANY WAY DELAY YOUR DUTY TO COMPLY WITH THIS ORDER IMMEDIATELY. This Order is separate and independent from all other orders or actions that may be issued by FMCSA, and does not amend or modify any other such orders or actions. Any request for administrative review of this Order does not attach to or apply to any other order or action.

Date:  March 8, 2016                                     

Darrell L. Ruban, Regional Field Administrator

Federal Motor Carrier Safety Administration

Southern Service Center

APPENDIX A