Scanned Document - Federal Motor Carrier Safety Administration ...

BEFORE THE
FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION
In the Matter of:
COREAS TRANSPORTATION, INC.
USDOT# 1862163
and
ALCIDES ALFARO dba
COREA TRANSPORTATION
USDOT# 2303177
Docket No. FMCSA-2012-0438 1
(Southern Service Center)
Petitioner.
FINAL DECISION ON PETITION FOR ADMINISTRATIVE REVIEW OF
OPERATIONS OUT -OF -SERVICE AND
RECORD CONSOLIDATION ORDER
I. Procedural History
On October 16, 2012, the Field Administrator for the Southern Service Center, Federal
Motor Carrier Safety Administration (FMCSA), served an Operations Out-Of-Service and
Record Consolidation Order (the Order) against Coreas Transportation, Inc. (Coreas) and its
alleged reincarnation, Alcides Alfaro dba Corea Transportation. FMCSA issued the Order under
the provisions of 49 CFR 386.73 (Consolidation Proceedings). On or about November 19, 2012,
Alcides Alfaro dba Corea Transportation (Petitioner or Corea) served a request for administrative
review ofthe Order under 49 CFR 386.73(g). 2
1
The prior case number of this matter was NC-2012-9000-ROOSC.
2
See Petition. Petitioner originally filed its Petition on October 25, 2012. The U.S.
Department of Transportation Dockets facility (Dockets) initially rejected Petitioner's filing
because it failed to include a Certificate of Service as required by 49 CFR 386.6( c). Dockets
notified Petitioner that it may re-submit its Petition within 20 days of the date of the notice with a
proper certificate of service. On November 19, 2012, Petitioner "re-submitted" its Petition with
a certificate of service within the time period specified by Dockets. Therefore, Petitioner's
Petition was considered timely filed. See e.g. Gajda Trucking Company, FMCSA-2009-0276,

FMCSA-2012-0438
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Under 49 CFR 386.73(g)(5), the Field Administrator "must serve written argument and
supporting documentary evidence, if any, in defense of the disputed order no later than 15 days
following the period in which petitioner may serve supplementary documentary evidence and/or
written argument in support ofthe petition for administrative review." The Field Administrator
was therefore required to serve his written argument and documentary evidence in defense of the
Order no later than November 30, 2012. 3 The Field Administrator's submission however, was
not served until December 10, 2012.
On January 10, 2013, I issued an Interim Decision directing the Field Administrator to
address the effect of his late filing on these proceedings. 4 The consequence ofthe untimely
filing is intertwined with the issue of which party has the burden ofproof in these proceedings. 5
Therefore, the Interim Decision also directed the parties to submit argument regarding the issue
of respective burdens of production and proof in proceedings under 49 CFR 386.73.
On January 21, 2013, the Field Administrator served his response to my Interim Order.
Petitioner did not respond to my Interim Order. In his response, the Field Administrator moved
for additional time to file his evidence and averred that his late filing should be accepted. With
regard to the burden ofproof, the Field Administrator stated that the "petitioner therefore has the
burden of identifying all factual and procedural errors made by FMCSA in issuing the order." 6
Order Denying Petition for Reconsideration (Nov. 13, 2009).
3
This date is calculated as 30 days from the date ofthe service of the Order plus 15 days in
accordance with 49 CFR 386.73(g)(4) and (5).
4
5
Interim Order, January 10,2013.
Interim Order, page 6.
6
Field Administrator's Reply to Interim Decision on Petition for Administrative Review of
Operations Out-of-Service and Record Consolidation Order and Motion to Extend Time
(Response to Interim Order), page 9.

FMCSA-2012-0438
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II.
Decision
A. Burden of Proof
The Consolidation Proceedings were established by the Agency under the statutory
authority contained in 49 U.S.C. §31136 and 49 U.S.C. §31144 and effective on May 29,2012. 78
Although placed within 49 CFR Part 386, which contains the Rules of Practice for Motor
Carrier, Intermodal, Equipment Provider, Broker, Freight Forwarder and Hazardous Materials
Proceedings (Rules of Practice), the Agency rendered the majority ofthe Rules of Practice
inapplicable to Consolidation Proceedings. 9 In so doing, the Agency removed any reference to
the applicable burden of proof in Consolidation Proceedings. 10
In the first two final decisions issued in Consolidation Proceedings, I stated that
Petitioner had the burden of proving that the FMC SA erroneously issued the underlying record
consolidation and operations out-of-service orders. 11
My initial conclusion in those cases relied
on the language in 49 CFR 386.73(g)(3) which requires a petitioner to "state all factual and
procedural issues in dispute in its petition for administrative review" and 49 CFR 386.73(g)
which states that a petition for administrative review that "does not identify factual or procedural
7
8
77 Fed. Reg. 24864 (April26, 2012).
77 Fed. Reg. 248643, 24864 (April26, 2012).
9
49 CFR 386.730). The only provisions of the Rules of Practice applicable to Consolidation
Proceedings are Subpart A (Scope of Rules; Definitions and General Provisions) and 49 CFR
386.67 (Judicial Review).
10
The burden of proof in enforcement cases and in cases arising under 49 CFR 391.47 is set
forth in Subpart D (386.58). Subpart Dis not applicable to proceedings under 49 CFR 386.73.
11
All American, LLC, et al. FMCSA-2012-0252 (Decision on Petition for Review of Operations
Out-of-Service Order and Order to Merge and Consolidate Motor Carrier Records (Sept. 10,
2012); Wendell Kleen dba Blue Chip Transp., et. a!., FMCSA-2012-0307 (Final Decision on
Petition for Review of Operations Out-of-Service Order and Order to Merge and Consolidate
Motor Carrier Records (Oct. 25, 2012).

FMCSA-2012-0438
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errors in the issuance of the order under review will be dismissed."
However, upon further review, I determined that I had misapplied the burden of proof in
those initial decisionsY In HP Distribution, I correctly noted that 49 CFR 386.73(g)(3)(ii) only
requires that a petition include a statement of all factual and procedural issues in dispute and
does not set forth a burden ofproof. 13 I therefore correctly placed the burden of proof on the
Field Administrator as the proponent ofthe order. 14
I also issued a final decision in the matter
of Universe Bus under Section 386.73(g) and stated that the "FA must prove by a preponderance
ofthe evidence that Petitioner was under common ownership and/or control with each ofthe
other five motor carriers named in the RCO in order to avoid enforcement or other consequences
associated with a negative compliance history." 15
Subsequently, the Field Administrator for the Eastern Service Center (ESC) filed a
motion requesting clarification of the Universe Bus decision. 16 In his motion, the ESC's Field
12
HP Distribution, LLP, FMCSA-2012-0362 (Decision on Petition for Administrative Review
of Operations Out-of-Service and Record Consolidation Order, Dec. 17, 2012).
13
Id, footnote 7.
14
5 U.S.C. 556(d); Hazardous Waste Treatment Council v. EPA, 886 F.2d 335, 349 (D.C. Cir.
198) (In administrative proceedings, the AP A provides a default rule for allocating proof burdens
when regulatory statutes do not set forth separate rules."). In the legal basis section of 49 CFR
386.73, the Agency points to two separate statutes as authority for 49 CFR 386.73. It states that
the Secretary is authorized to "prescribe regulations ensuring that commercial motor vehicles
(CMVs) are operated safely under 49 U.S.C. 31136(a)(l) and to determine whether an owner or
operator is fit to safely operate CMVs under 49 U.S.C. 31144." 77 Fed. Reg. 24863,24864.
Both statutes are contained in subchapter III of Chapter 311 of Title 49. Violations of
regulations promulgated under subchapter III of Chapter 311 of Title 49 are enforced under the
provisions of 49 U.S.C. § 521(b).
15
Universe Bus, FMCSA-2012-0212, page 5 (Decision on Petition for Administrative Review
of Operations Out-of-Service and Record Consolidation Order, Dec. 17, 2012).
16
Universe Bus, FMCSA-2012-0212, (Regional Field Administrator's Request for Clarification
of the Assistant Administrator's December 17, 2012 Decision on Petition for Administrative
Review, Jan. 7, 2013). There is no provision under 49 CFR 386.73 for the Field Administrator to

FMCSA-2012-0438
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Administrator asked that I clarify the scope of administrative review under Section 3 86.73.
While ESC's Field Administrator framed the issue as one ofthe appropriate standard ofreview,
the underpinnings of his argument relate to the allocation ofthe burden of proof in Consolidation
Proceedings. 17
The burden ofproof relates to both the burden of producing evidence to go forward in a
matter and the burden of persuasion. 18 Because Subpart D does not apply to these proceedings, 19
I
I
the applicable burden ofproofmust be gleaned from the Administrative Procedures Act (APA). 20
Under the APA, the proponent ofan order has the burden ofproof. 21 The Field Administrator is
the proponent ofthe Order in this matter.
The Field Administrator cites to 49 CFR 386.73(g) in support of his claim that the burden
of proof in Consolidation Proceedings is on the petitioner to "identify all factual and procedural
errors made by FMCSA in issuing the order." 22 The Field Administrator therefore interprets 49
file a petition for reconsideration of a final decision under 386.73 as the provisions of subpart E
(except 386.67) are not applicable to these proceedings. 49 CFR 386.730).
17
Id, page 5. The Field Administrator "therefore requests clarification of the basis for which
the Decision extends beyond the scope of Petitioner's request for administrative review." The
Field Administrator contends that "Petitioner has the burden of identifying all factual and
procedural errors made by FMCSA in issuing the order" and contends that "there is no
regulatory basis for reviewing an uncontested fact or procedure." Page 6. Therefore, although
Respondent frames the issue as the appropriate standard of review, Respondent's argument
relates to the burden ofproof rather than a standard of review.
18
Director, Office ofWorkers' Compensation Programs, Dept. ofLabor v. Greenwich
Collieries, 512 U.S. 267, 278 (1994).
19
49 CFR 386.730).
20
5. U.S.C. § 556; Hazardous Waste Treatment Council v. EPA, 886 F.2d 335,349 (D.C. Cir.
1989) ("In administrative proceedings, the APA provides a default rule for allocating proof
burdens when regulatory statutes do not set forth separate rules.").
21
22
5. U.S.C. § 556.
Response to Interim Order, page 9.

FMCSA-2012-0438
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CPR 386.73(g) to shift the burden ofproof from the Field Administrator, the proponent ofthe
Order, to Petitioner. 23 The Field Administrator contends that "review ofmatters for which no
error was alleged is outside ofthe scope ofreview under 49 CPR 386.73." 24
The principles ofstatutory construction are fully transferable to the construction of
regulations? 5 A court is required to interpret a regulation so that "ifit can be prevented, no
clause, sentence, or word shall be superfluous, void, or insignificant. " 26 The Field
Administrator's construction impermissibly embraces one portion of Section 386.73(g) while
disregarding the remainder ofthe Section. 27
The plain language of49 CPR 386.73(g) does not establish a standard ofproofin
Consolidation Proceedings. Instead, when read in its entirety, Section 386.73(g) appears
intended to distinguish administrative review from corrective action proceedings:
A motor carrier .. .issued an order under this section may petition for administrative
review ofthe order. A petition for administrative review is limited to contesting factual
or procedural errors in the issuance ofthe order under review and may not be submitted
to demonstrate corrective action. A petition for administrative review that does not
identify factual or procedural errors in the issuance ofthe order under review will be
dismissed. Petitioners seeking to demonstrate corrective action may do so by
submitting a Petition for Rescission under paragraph (h) of this section. 28
23
24
49 U.S.C. § 556.
Response to Interim Order, page 10.
25
Morales v. Sociedad Espanola De Auxilio Mutuo Y Beneficenia, 524 F.3d 54, 59 (1st Cir.
2008).
26
TRW, Inc. v. Andrews, 534 U.S. 19, 31 (2001) quoting Duncan v. Walker, 533 U.S. 167, 174
(2001).
27
"It is an elementary rule ofconstruction that effect must be given, ifpossible, to every word,
clause and sentence ofa statute." US. v. Menasche, 348 U.S. 528, 538 (1955).
28
The highlighted language identifies the portions of the regulation omitted from the Field
Administrator's interpretation.

FMCSA-2012-0438
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The Field Administrator's interpretation, which attempts to transform Section 386.73(g)
into a standard ofproof by ignoring the majority ofthe regulatory text, is an unreasonable
interpretation. 29 I must therefore tum to the plain language of the regulation. 30 Under 49 CFR
386.73(g), a petition for administrative review that requests review based on corrective action
and does not identify factual or procedural errors in the issuance ofthe order will be dismissed.
The Field Administrator's contention that Section 386.73(g) limits review to those allegations of
error identified by a petitioner in its petition for administrative review is not supported by a plain
reading of the Section. 31 So long as a petition for review is timely served; contains a statement
of all factual and procedural issues in dispute; and does not request review based on corrective
action, the petition will not be dismissed. Section 386.73(g) does not alter the burden of proof
otherwise applicable to these proceedings. The burden of proof is therefore on the Field
Administrator to prove that an order issued under Section 386.73 was properly issued.
The Field Administrator's reliance on 49 CFR 386.73(g)(3) to shift the burden of proof to
Petitioner is also an unreasonable interpretation. 32 Section 386.73(g)(3) establishes the content
requirements for a petition for administrative review and requires that the petition contain a
statement of "all factual and procedural issues in dispute. " 33 There is no language from which I
29
30
US. v. Menasche, at 538 (1955); Aspenwood at 1261.
Aspenwood Investment Co. v. HUD, 355 F.3d 1256, 1261 (lOth Cir. 2004).
31
49 CFR 386.73(g) requires petitioner to set forth all factual and procedural issues in dispute.
Section 386.73(g)( 4) does not permit petitioner to expand the issues on review in any
supplemental filing. Therefore, Section 386.73(g) when read with 386.73(g)(4) does not permit
petitioner to assert new allegations of error after its initial petition for review.
32
33
Reiter v. Sanotone Corp., 442 U.S. 330, 338 (1979).
This requirement is similar to those set forth for a notice of claim under 3 86.11 (c).

could infer that Section 386.73(g)(3) addresses the burden ofproof in Consolidation
Proceedings. 34
FMCSA-2012-0438
Page 8 of20
49 CFR 3 86.73 (g)( 4) also supports a construction that places the burden ofproof on the
Field Administrator. Section 386.73(g)(4) permits, but does not require, the petitioner to
supplement its petition with argument and documentary evidence. 35 While petitioner may not
expand the issues with supplemental evidence, it is not required to address every issue identified
in the petition? 6 Thus, a petitioner is not required to submit any evidence in support of its
petition requesting administrative review of an order issued under 386.73. If Petitioner had the
burden of proof in Consolidation Proceedings, it would be required to submit evidence in support
ofits petition. 37
Finally, the Field Administrator's interpretation completely disregards 49 CFR
386.73(g)(5), 38 which states that the Field Administrator "must serve written argument and,
supporting documentary evidence, if any, in defense ofthe disputed order" no later than 15 days
34
35
36
5 U.S.C. § 556; Hazardous Waste Treatment Council v. EPA, 886 F.2d at 349.
Petitioner however, may not expand the allegations of error by supplemental filing.
49 CFR 385.73(g)(4).
37
In contrast, for safety rating appeals under 49 CFR 385.15 petitioner bears the burden to
demonstrate that the Agency committed error. Thus, a petitioner under 385.15(b) is required to
submit any information and documents that support its argument. AA Logistic, Inc. flk/a P & A
Transport, FMCSA-2012-0206 (Final Decision on Review, Aug. 13, 2012). Similarly,"
hazardous materials safety permit appeals are also subject to a different burden ofproof in that,
under Section 5 56( d) of the AP A, safety permit applicants bear the burden of showing that the
application was improperly denied. Under 49 CFR 385.423, the petitioner must submit "all
information, evidence and arguments upon which it relies" to support its request for
administrative review. Lynden Transport, Inc., FMCSA-2005-20910 (Recommended Decision
of Chief Administrative Law Judge, July 1, 2005) adopted as final order in (Final Order on
Review, Aug. 24, 2005).
38
US. v. McCord, 33 F.3d 1434, 1444 (3rd Cir. 1994). The Field Administrator fails to refer to
49 CFR 386.73(g)(5) in his response to the Interim Order.

FMCSA-2012-0438
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following the period in which petitioner may serve its supplemental evidence. Requiring the
Field Administrator to file written argument, and supporting documentary evidence, if any, is
consistent with the Field Administrator bearing the burden ofproof in these proceedings. 39
Therefore, once the petitioner has timely served a petition identifying factual and procedural
issues in dispute, to sustain his burden of proof, the Field Administrator must thereafter produce
evidence in defense of the order and bears the burden of demonstrating that the order was
properly issued.
The Field Administrator argues that the "proceedings were intended to be limited and
efficient." 40 He further contends that the regulations "do not authorize, or even contemplate, de
novo or general review of an order issued under Section 386.73, the determinations ofthe Field
Administrator in establishing the enforcement purpose for issuing the order, or the basis for
issuing the order." 41 Such argument mistakenly views the Assistant Administrator as an
appellate reviewer rather than the agency decisionmaker who issues a final decision in these
proceedings. 42 Thus, the issue to be addressed is the standard ofproof to be applied by the
agency decisionmaker in Consolidation Proceedings rather than the scope ofreview. Because
the Field Administrator bears the burden of proof, he is required to produce argument and
documentary evidence, if any, in defense of the order and to prove by a preponderance ofthe
evidence that the order was properly issued. 43 The Assistant Administrator reviews the Field
39
40
41
42
See supra Footnote 37.
Response to Interim Order, Page 9.
!d., Page 10.
49 CFR 386.2.
43
The words "if any" refer to the documentary evidence. Because the petitioner is required to
submit a copy ofthe order with its petition, it is possible that the evidence in support of the order
may already be contained as attachments to the order. Thus, the Field Administrator would not

FMCSA-2012-0438
Page 10 of20
Administrator's submission and determines whether the order was properly issued and evaluates
any allegations of error raised by the petitioner. 44
The Field Administrator correctly notes that the procedures outlined in 49 CFR 386.73(g)
are limited and efficient. Section 386.73(g) does not permit discovery, a hearing, or any other
administrative proceeding before the order goes into effect 45 although the Assistant
Administrator may ask the parties to attend a conference or submit additional evidence. 46 The
time periods for petitioning for review, serving supplemental evidence, serving the Field
Administrator's evidence, and for my decision are extremely brief. 47 The only opportunity for an
administrative review before the order goes into effect is the petition for administrative review
before the Assistant Administrator. Like other proceedings under 49 CFR Part 3 86, the
proceedings under Section 386.73(g)(l) are initiated by notice pleading, i.e., the order is only
required to "provide notice of the factual and legal basis of the order" it is not required to contain
any evidence. 48
be required to submit any additional evidence ifthe evidence in defense ofthe order is contained
within the order and has already been submitted with the petition for administrative review.
44
In evaluating whether an order was properly issued the Assistant Administrator will look to
the provisions of 49 CFR 386.73(c).
45
49 CFR 386.73(j). If a petition for administrative review is timely served, a disputed record
consolidation and out of service order is automatically stayed pending the Assistant
Administrator's review. 49 CFR 386.73(8). The automatic stay may be removed in accordance
with the procedures set forth in 49 CFR 386.73(i).
46
47
48
49 CFR 386.73(g)(6).
49 CFR 386.73(g)(2); (g)(4); (g)(5); (g)(7).
49 CFR 386.73(f). See infra footnote 37.

My conclusion that the Field Administrator bears the burden ofproof in these
FMCSA-2012-0438
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proceedings is based on the plain meaning of the provisions of Section 386.73(g). 49 Recognizing
that the Field Administrator bears the burden of proof in these proceedings will not alter the time
frames for any ofthe administrative procedures and thus, there is no real danger that requiring
the Field Administrator to bear the burden ofproof will affect the efficient or limited nature of
these proceedings. 50
B. Timeliness of the Field Administrator's Evidence
Having determined that the Field Administrator bears the burden ofproof in these
proceedings, I must determine what effect, if any, the Field Administrator's late filing has on
these proceedings. In his response to the Interim Order, the Field Administrator moves for an
extension oftime to file his evidence under 49 CFR 3 86.5 and notes that his evidence was filed
only 10 days after the deadline. 5 1 The Field Administrator cites to the Federal Rules of Civil
Procedure as guidance regarding whether the Field Administrator's untimely filing should be
accepted. 52 The Field Administrator also argues that there has been no prejudice to Petitioner
and that the automatic stay imposed by 49 CFR 386.73(g)(8) means that the Petitioner has not
49
Gardenbring v. Jenkins, 485 U.S. 415, 430 (1988) (While deference is required if regulation
is ambiguous, a court need not defer to the Agency's interpretation where an alternate reading is
compelled by the regulation's plain language.)
50
I would also note that in all prior proceedings under 386.73, the Field Administrator has
submitted evidence in defense ofthe order. See e.g. All American, LLC, et al. FMCSA-2012­
0252 (Decision on Petition for Review of Operations Out-of-Service Order and Order to Merge
and Consolidate Motor Carrier Records (Sept. 10, 2012); Wendell Kleen dba Blue Chip Transp.,
et. al., FMCSA-2012-0307 (Final Decision on Petition for Review of Operations Out-of-Service
Order and Order to Merge and Consolidate Motor Carrier Records (Oct. 25, 2012).
51
52
Response to Interim Order, page 2.
!d. at page 4.

FMCSA-2012-0438
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been subject to any negative consequences as a result ofthe delayed filing. 5 3 In fact, the Field
Administrator argues that dismissal of the Order would have a negative impact on safety and
would be tantamount to a default judgment. 54 Petitioner did not respond to the Field
Administrator's motion for extension of time. 5 5
49 CFR 386.5(±) governs requests for extensions oftime in Consolidation Proceedings.
Under Section 386.5(±), only those requests showing good cause will be granted. Requests for
extension of time are routinely granted in administrative enforcement proceedings and safety
rating proceedings. 56 The Field Administrator avers that his late filing was caused by the
confusion regarding the calculation ofthe due date for his submission. 57 The Field
Administrator avers that this confusion was compounded by the fact that Petitioner's petition
was initially rejected by Dockets and subsequently re-filed. 58
The Field Administrator's argument that Petitioner's filing led to confusion regarding the
due date for his submission does not demonstrate good cause for the late filing ofhis evidence.
The calculation ofthe due date for the Field Administrator's evidence is not based on when the
Petitioner files his petition for administrative review but rather is calculated from the service date
53
54
Id at page 4.
Id at page 6.
55
Because the Field Administrator's motion was combined with its Response to the Interim
Order, Petitioner may not have realized that it could respond to the Field Administrator's motion.
Although the request for extension of time was preserved in Consolidation Proceedings, the
corollary motion regulation (386.34) was not. Thus, there are no procedural regulations
governing motions practice under Consolidation Proceedings.
56
Stricklin Trucking Co., Inc., FMCSA-2012-0144, Page 2 (Order Granting Respondent's
Request for Extension ofTime, June 2, 2012); Thomas Hammond, FMCSA-2003-15980 (Order,
Sept. 24, 2003).
57
Field Administrator's Response to Interim Order, Page 6.
58
Id at page 6.

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of the order by the Field Administrator. Thus, whether the Petitioner was required tore-file its
petition for administrative review is irrelevant to determining the due date under 49 CFR
386.73(g)(5).
Nevertheless, I agree that the procedures for calculating the Field Administrator's due
date are cumbersome and that the Field Administrator clearly intended to participate in the
proceedings.5 9 Moreover, the short delay in filing did not prejudice Petitioner in any way
because the Field Administrator has acknowledged that the automatic stay provision of 49 CFR
386.73(g)(8) remained in place to defer any consequences flowing from the issuance of the
Order. Thus, I find that the Field Administrator has demonstrated good cause for granting an
extension oftime to file his evidence and his motion for extension oftime is granted. 60
C. Filing Requirements for Petition for Administrative Review
In my Interim Decision, I also asked the Field Administrator to clarify the service and
filing requirements for a petition for administrative review under 49 CFR 386.73(g). According
to the Field Administrator, a petitioner must serve its petition on the Field Administrator or
Director who issued the order and also on the Assistant Administrator. 61 Further, under 49 CFR
386.7, the petitioner must also file a copy of its petition for administrative review with Dockets.
I agree with the Field Administrator's interpretation of the regulations applicable to
Consolidation Proceedings. Nevertheless, I note that the Order did not inform the Petitioner of
the requirement to file a copy of its petition for administrative review with Dockets. 62 Therefore,
59
60
61
62
Id, page 5-6; 49 CFR 386.73(g)(5).
Thomas Hammond, FMCSA-2003-15980 (Order, Sept. 24, 2003).
49 CFR 386.73(g)(l).
Field Administrator's Submission, Exhibit 1.

FMCSA-2012-0438
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the Field Administrator should consider revising future orders to note that the petitioner is
required to file a copy of its petition for administrative review with Dockets.
D. Merits of Petition for Administrative Review
Having determined that the Field Administrator bears the burden ofproof in these
proceedings, I now turn to the merits of Petitioner's petition for administrative review. The Field
Administrator's Order asserts that Corea Transportation (Corea) is a mere continuation of Coreas
Transportation, Inc. (Coreas) 63 Petitioner contends that Coreas and Corea "are not the sarne." 64
In support ofits Petition, Petitioner attempted to explain the similarities between the two
companies and provided copies ofFactoring Services agreements in support ofits contention. 65
The Field Administrator submitted documentary evidence and argument in defense ofthe Order.
A motor carrier is reincarnated ifthere is substantial continuity between the entities such
that one is merely a continuation ofthe other. 66 Moreover, the Field Administrator must
demonstrate that the motor carrier operated or attempted to operate under a new identity to avoid
complying with a statutory or regulatory requirement; avoid paying a civil penalty; avoid
responding to an enforcement action; or avoid being linked with a negative compliance history. 67
The following factors may be considered in this determination: 1) whether the new or affiliated
entity was created for purpose of evading statutory or regulatory requirements, an FMCSA order,
enforcement action, or negative compliance history; 2) the previous entity's safety performance
history, including safety violations and enforcement actions; 3) consideration exchanged for
63 Id.
64
Petition for Administrative Review.
65 !d.
66
49 CFR 386.73(c).
67
49 CFR 386.73(a) and 386.73(b).

FMCSA-2012-0438
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assets purchased or transferred; 4) dates ofcreation and dissolution or cessation of operations; 5)
commonality of ownership among the entities; 6) commonality of officers and management
personnel; 7) identity ofphysical or mailing addresses, telephone, fax numbers, or email
addresses; 8) identity of motor vehicle equipment; 9) continuity of liability insurance policies or
commonality of coverage under such policies; 1 0) commonality ofdrivers and other employees;
11) continuation of carrier facilities and other physical assets; 12) continuity or commonality of
nature and scope of operations, including customers; and 13) advertising, corporate name, or
other actions through which the company holds itself out to the public. 68 The Field
Administrator or Director may also examine the company management structures, financial
records, corporate filing records, asset purchase or transfer and title history, employee records,
insurance records, and any other information related to the general operations of the entities
involved. 69 The Field Administrator's determination will be "based on consideration of all
relevant information, and one factor or potential source of evidence is not necessarily more
significant than another. Where the greater weight of the evidence shows that a motor carrier
created a new identity or shifted its operations to another, commonly owned and controlled,
entity to avoid FMCSA authority or negative safety performance history, the motor carrier will
be placed out of service and/or have its records consolidated with the records ofthe preexisting
or affiliated entity." 70
The Field Administrator's documentary evidence and argument demonstrates that Corea
Transportation is a reincarnation of Coreas Transportation, Inc. Petitioner's evidence failed to
demonstrate any error in the issuance of the Order. Coreas is owned by Alcides E. Alfaro Corea.
68
49 CFR 386.73(c)(l)- (13).
69
49 CFR 386.73(d).
70
77 Fed. Reg. 24863, 24867 (April26, 2012).

Corea is owned by Alcides Alfaro, Mr. Coreas' father. 71
FMCSA-2012-0438
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Coreas was subject to a compliance
review on March 7, 2012 which resulted in an Unsatisfactory safety rating. 72 On March 12,
2012, the Agency served Coreas with notice that its Unsatisfactory safety rating would become
effective on May 12, 2012. 73
On March 27, 2012, FMCSA's North Carolina Division
Administrator issued a Notice of Claim for violations discovered during the compliance review
seeking $6,320 in civil penalties. 74 On May 16, 2012, because Coreas failed to respond to the
Notice of Claim, the Field Administrator issued a Notice of Default and Final Agency Order. 75
On August 7, 2012, Coreas was placed out of service and ordered to cease all interstate
transportation for failure to pay the civil penalty. 76 This order remains in effect. 77
On May 7, 2012, just five days before the Unsatisfactory rating was scheduled to become
effective, Mr. Alfaro applied for a U.S. DOT number for Corea. 78 Petitioner 79 contends that
Corea was formed by Mr. Corea's father because "he knew that something like this was going
to happen." 80 Mr. Corea also claims he did not know his father was starting the business. Mr.
71
72
73
74
75
76
77
78
Field Administrator's Submission, Declaration ofLesley Wooddy; Petition, Page 1.
!d., Exhibit 2.
!d., Exhibit 3.
!d., Exhibit 5.
!d., Exhibit 6.
!d., Exhibit 8.
Id., Declaration of Lesley, Wooddy, page 3.
!d., Exhibit 9.
79
Although the Petition was filed by Corea, the filing was clearly prepared and signed by
Alcides E. Alfaro Corea.
80
Petition, paragraph 3.

FMCSA-2012-0438
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Corea explains that his father opened the new company because most ofthe trucks that were
operating under Coreas were owned by his father and leased to him and thus his father needed
to continue to operate after Coreas was ordered to cease operations. 81
I find Petitioner's explanation ofthe circumstances surrounding the formation of Corea to
be unpersuasive in light ofthe timing of the formation of Corea relative to the Unsatisfactory
safety rating and pending civil penalty proceedings against Coreas at the time offormation. I
find that Corea was formed solely to avoid the effect ofthe Unsatisfactory safety rating and
pending 82 civil penalty proceedings against Coreas.
Corea is therefore a mere continuation of Coreas. Having found that Corea was formed
solely to evade the effect ofthe Unsatisfactory safety rating and a pending civil penalty
proceeding against Coreas, I will also evaluate the remainder ofthe factors presented by the
Field Administrator support a finding that Corea is a mere continuation of Coreas. 83 The Field
Administrator submitted ample evidence indicating a commonality ofownership and control
among the owners and operators of Corea and Coreas. 84 The evidence demonstrates that the
telephone number, facsimile number, and mailing address were the same; 85 that both companies
used the same rental lot to park their commercial motor vehicles; 86 that Corea used at least 12 of
the 16 commercial motor vehicles previously operated by Coreas and that no lease agreements
81
Petition, paragraphs 3, 7, 9.
82
Although the civil penalty was not final at the time ofthe formation of Corea, Coreas knew
that the penalty had been proposed. A default was issued for the civil penalty just 10 days after
the formation of Corea.
83
84
85
77 Fed; Reg. 24863, 24867 (April26, 2012).
Field Administrator's Submission, Declaration ofLesley Wooddy, Exhibit 9.
Field Administrator's Submission, Declaration ofLesley Wooddy.
86 d ~.

FMCSA-2012-0438
Page 18 of20
existed for the vehicles between the two companies; 87 that 12 ofthe 14 drivers previously used
by Coreas were used by Corea and that the drivers were notre-qualified by Corea; 88 and that
both companies' operations were similar in that they obtain loads from online brokers and used
the same factoring company to process freight transactions and deposit funds into the same bank
89
account.
Petitioner admitted that both companies used the same phone number but claimed that it
was because there was a contract with the phone company that would have required Coreas to
pay an early termination fee. 90 Petitioner also acknowledged that it used the same commercial
motor vehicles, but asserted that the vehicles belonged to Mr. Alfaro in the first instance. 91
Petitioner claimed that Mr. Alfaro did not take over Coreas but that he was merely using some of
the services until he was ready to get his "own services later when he was ready for the
changes." 92 Finally, Petitioner attached copies of two Factoring Services agreements with
TransAm Financial Services, Inc. 93 Petitioner's explanations do not rebut the evidence
submitted by the Field Administrator in support of a finding that Corea is a mere continuation of
Coreas. Even if the commercial motor vehicles were originally owned by Mr. Alfaro, ownership
ofthe vehicles is not necessarily probative because Petitioner admitted that Coreas previously
used the vehicles in its business. Moreover, Petitioner failed to present any evidence that the
87
88
Id, Declaration of Lesley Wooddy; Exhibits 12, 13, and 14.
Id, Declaration of Lesley Wooddy.
89 Id
90
91
92
93
Petition, paragraph 4.
Id, paragraph 7.
Id, paragraph 5.
Petition, Factoring Services agreements.

FMCSA-2012-0438
Page 19 of20
vehicles were previously owned by Mr. Alfaro or that the vehicles had previously been used
under a lease agreement.
Further, the Factoring Services agreements are not persuasive on the issue ofwhether
Corea is a mere continuation of Coreas. While there is a separate Factoring Service agreement
for each company, the agreement for Corea was not signed until October 12, 2012, after Coreas
was placed out of service for failure to pay the civil penalty. Thus, the existence ofthe separate
Factoring Services agreements does not rebut the evidence produced by the Field Administrator
in defense of the Order.
Accordingly, It Is Hereby Ordered, that the petition for administrative review is denied.
Assistant Administrator
Federal Motor Carrier Safety Administration
3/11113
Date

FMCSA-2012-0362
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CERTIFICATE OF SERVICE
This is to certify that on this \2- day of ~ , 2013, the
undersigned mailed or delivered, as specified, the designated number of copies of the
foregoing document to the persons listed below.
Alcides Alfaro
Corea Transportation
1320 Gretna Green Lane
Charlotte, NC 28217
One Copy
U.S. Mail
Deborah A. Stanziano
Office of Chief Counsel
Federal Motor Carrier Safety Administration
Southern Service Center
1800 Century Blvd., NE
Suite 1700
Atlanta, GA 30345
Field Administrator's Attorney
One Copy
U.S. Mail
U.S. Department ofTransportation
Docket Operations, M-30
West Building Ground Floor
Room Wl2-140
1200 New Jersey Avenue, SE
Washington, DC 20590
Original
Personal Delivery