[Federal Register Volume 61, Number 83 (Monday, April 29, 1996)]
[Proposed Rules]
[Pages 18866-18898]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10125]
[[Page 18865]]
_______________________________________________________________________
Part III
Department of Transportation
_______________________________________________________________________
Federal Highway Administration
_______________________________________________________________________
49 CFR Part 361, et al.
Rules of Practice for Motor Carrier Proceedings, Investigations,
Disqualifications and Penalties; Proposed Rule
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 /
Proposed Rules
[[Page 18866]]
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Parts 361, 362, 363, 364, 385, 386 and 391
[FHWA Docket No. MC-96-18]
RIN 2125-AD64
Rules of Practice for Motor Carrier Proceedings; Investigations;
Disqualifications and Penalties
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice of proposed rulemaking (NPRM); request for comments.
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SUMMARY: The FHWA proposes to amend its rules of practice for motor
carrier safety, hazardous materials, and other enforcement proceedings,
motor carrier safety rating procedures, driver qualification
proceedings, and its schedule of penalties for violations of the
Federal Motor Carrier Safety Regulations and the Hazardous Materials
Regulations. The FHWA further proposes to add provisions on
investigative authority and procedures and general motor carrier
responsibilities. These rules would increase the efficiency of the
practices, consolidate existing administrative review procedures,
enhance due process and the awareness of the public and regulated
community, and accommodate recent programmatic changes. The rules would
apply to all motor carriers, other business entities, and individuals
involved in motor carrier safety and hazardous materials administrative
actions and proceedings with the FHWA after the effective date of the
final rule.
DATES: Comments must be received on or before July 29, 1996.
ADDRESSES: Submit written, signed comments to FHWA Docket No. MC-96-18,
FHWA, Office of the Chief Counsel, HCC-10, Room 4232, 400 Seventh
Street SW., Washington, DC 20590. All comments received will be
available for examination at the above address from 8:30 a.m. to 3:30
p.m., e.t., Monday through Friday, except Federal holidays. Those
desiring notification of receipt of comments must include a self-
addressed, stamped postcard/envelope.
FOR FURTHER INFORMATION CONTACT:
Paul Brennan, Office of the Chief Counsel, (202) 366-0834, Federal
Highway Administration, 400 Seventh Street SW., Washington, DC 20590.
Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through
Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Introduction
This rulemaking includes the first comprehensive rewrite of the
FHWA's rules of practice for motor carrier administrative proceedings
since 1985. It is the forerunner of a comprehensive revision of the
Federal Motor Carrier Safety Regulations (FMCSR) anticipated to follow
the completion of a zero-based review of those regulations presently
underway in the agency. These proposed regulations would appear in
previously unused chapters of that portion of the Code of Federal
Regulations reserved for the FMCSR, thus leaving ample room for the
future revisions. The current rules of practice for safety enforcement
and driver qualification proceedings, found in 49 CFR part 386 and in
Sec. 391.47, would be replaced by new part 363. New part 361 restates,
explains and expands upon statutory authority, administrative
enforcement powers, and general responsibilities. New part 364 is the
first general treatment of penalties for violations of safety rules
provided in regulatory form. The amendments embodied in these three
proposed parts are based on the FHWA's experience enforcing the motor
carrier safety regulations through part 386. It is intended that the
new procedures would make administrative actions and proceedings more
efficient while enhancing the guarantee of due process to carriers,
individuals, and other entities by substantially increasing awareness
of the consequences of noncompliance with commercial motor vehicle
safety and hazardous materials regulations.
New part 362 would replace current part 385, which provides
administrative review procedures within the safety ratings process.
Safety ratings continue to gain in relative importance in the entire
safety program in response to legislative mandate, as a part of agency
programmatic changes, and in the significance attached to the ratings
by the industry itself. Updated procedures will allow for better
accommodation of these interests. Parts 385 and 386 would be deleted
and reserved for future use.
This rulemaking preamble will first briefly discuss the current
statutory background. Each proposed part is then analyzed by describing
some of the antecedents of any corresponding current procedures,
followed by a section-by-section analysis of the proposed rules.
Finally, the proposed rules themselves appear.
Statutory Background
Congress has delegated certain powers to regulate interstate
commerce to the Department of Transportation in numerous pieces of
legislation, most notably in the Department of Transportation Act (DOT
Act), section 6, Pub. L. 85-670, 80 Stat. 931 (1966). Section 55 of the
DOT Act transferred the authority of the Interstate Commerce Commission
(ICC) to regulate the qualifications and maximum hours of service of
employees, the safety of operations, and the equipment of motor
carriers in interstate commerce to the Federal Highway Administration
(the agency), an operating administration of the DOT. 49 U.S.C. 104.
This authority, first granted to the ICC in the Motor Carrier Act of
1935, Pub. L. 74-255, 49 Stat. 543, now appears in 49 U.S.C. Chapter
315. The regulations issued under this authority became known as the
Federal Motor Carrier Safety Regulations (FMCSRs), appearing generally
at 49 CFR parts 390-399. The administrative powers to enforce Chapter
315 were also transferred from the ICC to the DOT in 1966, and appear
in 49 U.S.C. Chapter 5.
The Motor Carrier Safety Act of 1984 (1984 Act), Pub. L. 98-554, 98
Stat. 2832, restated, for the first time, the interstate safety
authority in terms of particular classes of commercial motor vehicles
(CMV). These statutory classes coincided identically with the
definition of CMV adopted by the agency in the existing FMCSRs issued
under the Motor Carrier Act of 1935. The 1984 Act is codified at 49
U.S.C. Chapter 311, Subchapter III. These two largely overlapping
statutes, i.e., Chapters 311 and 315, serve as parallel and
complementary authorities for issuance of safety regulations for motor
carriers and commercial motor vehicles operating in interstate
commerce.
It should be noted that both chapters define interstate commerce as
trade, traffic, or transportation in the United States which is between
a place in a state and a place outside of such state or is between two
places in the same state through another state or place outside the
state. The DOT and the ICC interpret as within this jurisdiction
transportation wholly within a state which is part of a continuing
through movement of property or passengers across state lines. This
``crossing state lines'' definition represents a delegation of less
than the full power possessed by Congress to regulate interstate
commerce. A more complete delegation is found in other laws in which
all trade, traffic, and transportation affecting interstate commerce is
deemed
[[Page 18867]]
interstate commerce regardless of its direct connection with a movement
of goods across state lines.
For example, the Commercial Motor Vehicle Safety Act of 1986
(CMVSA), Pub. L. 99-570, 100 Stat. 3 207-170, 49 U.S.C. chapter 313)
applies to trade, traffic, and transportation on public highways wholly
within a state as affecting interstate commerce because such trade,
traffic and transportation intermingles with cross-border movements and
therefore affects interstate commerce. The CMVSA established a national
commercial driver's license program (CDL) for all drivers of CMVs,
which were defined to exclude certain smaller vehicles covered under
the 1984 Act and longstanding FHWA regulations, unless the agency
determined that it was appropriate to include them. The FHWA did
restrict the CDL program to larger vehicles. At the same time, the
CMVSA extended jurisdictional coverage to drivers in commerce that had
previously been considered entirely intrastate and thus beyond the
jurisdictional reaches of the earlier acts. This was a major departure
from the traditional, ICC-inherited zone of jurisdiction based on the
origin and destination of the cargo being transported. The distinction
can be seen most readily in drug testing requirements, which were
initially issued by DOT 1989 under its parallel general safety
authority in sections 31502 and 31136. Congress enacted specific drug
and alcohol testing statutory requirements in 1991 by amending the
CMVSA (49 U.S.C. 31306). This action had the effect of expanding the
reach of testing from drivers of vehicles carrying interstate cargo to
drivers of any vehicles meeting the definition of ``commercial motor
vehicle'' provided in the CMVSA, which, by their very nature, affect
interstate commerce.
The Hazardous Materials Transportation Uniform Safety Act of 1990
(HMTUSA) Pub. L. 101-615, 104 Stat. 3244, replacing the Hazardous
Materials Transportation Act (HMTA), Pub. L. 93-633, 88 Stat. 2156
(1975) required the DOT to issue regulations for the safe
transportation of hazardous materials in inter- and intrastate
commerce. 49 U.S.C. Chapter 51. The Research and Special Programs
Administration (RSPA) of DOT issues the Hazardous Materials Regulations
(HMR), which provide standards on the classification, packaging,
handling, and registration of hazardous materials. The FHWA enforces
the HMR in relation to the transportation of hazardous materials by
highway.
The Motor Carrier Act of 1980, Pub. L. 96-296, 94 Stat. 793, and
the Bus Regulatory Reform Act of 1982, Pub. L. 97-261, 96 Stat. 1121,
established requirements for minimum levels of insurance for for-hire
interstate motor carriers and all carriers of certain hazardous
materials in inter- and intrastate commerce. 49 U.S.C. 31138-31139.
The Intermodal Safe Container Act of 1992, Pub.L. 102-548, 106
Stat. 3646, established weight certification requirements for tenderors
and carriers of intermodal containers. 49 U.S.C. Chapter 59.
The various acts authorize the enforcement of the FMCSRs and HMRs
and provide both civil and criminal penalties for violations. In
practice, when circumstances dictate that an enforcement action be
instituted, civil penalties are more commonly sought than criminal
sanctions. The administrative rules proposed in this rulemaking apply,
among other things, to the administrative adjudication of civil
penalties assessed for violations of the FMCSR and the HMR.
Analysis
Part 361: Administrative
As proposed, this part sets forth the authority granted to the
agency to enforce the commercial motor vehicle safety regulations--the
FMCSRs and HMRs. It also describes the practices followed by the agency
in exercising this authority and prescribes certain responsibilities
imposed by these authorities upon motor carriers and others subject to
these acts.
Background
Except for a somewhat obscure provision in appendix B to chapter
III, subchapter B of the CFR, the authority for the agency's inspection
and other administrative powers appears only in statute (see, e.g., 49
U.S.C. 501-525, 31133, and 5121). Standards and practices for the
agency's training materials, policy guidance, and internal manuals
which are available to the public, but only upon request. Including
these standards and practices in the regulations would provide one
convenient and authoritative reference source for all regulatees and
put them on notice of what may be expected from Federal enforcement
officials as well as what is expected of the regulated community.
Detailed intra-agency delegations of motor carrier safety-related
functions at one time appeared in 49 CFR 301.60, but were removed in
1988 following a significant reorganization of the motor carrier safety
functions and anticipated republication of the regulations under new
authority. 53 FR 2035 (January 26, 1988). Specific delegations of
authority from the Administrator to the Office of Motor Carriers now
appear only in FHWA organizational documents.
Section-by-Section Analysis
Section 361.101 Purpose
This part would spell out the authority and procedures used by the
FHWA to conduct investigations and other enforcement activities related
to commercial motor vehicle safety, and the corresponding obligations
of the regulated industry. Its purpose is to inform the public of the
agency's role, to increase awareness of and compliance with the safety
regulations, and to facilitate public contact with FHWA officials
enforcing the regulations.
361.102 Authority and Delegations
The first sentence of paragraph (a) would list the chapters of
title 49, U.S. Code, in which Congress has conferred on the Secretary
of Transportation the authority to regulate commercial motor vehicle
safety. Many sections of these chapters are cited throughout this
document. One statutory provision which is not mentioned again is 42
U.S.C. 4917, which gives the Secretary the authority to enforce
Environmental Protection Agency standards for the limitation of noise
emissions resulting from the operation of motor carriers engaged in
interstate commerce. The regulations implementing this provision appear
in part 325, and would not be amended in this rulemaking.
The second sentence of paragraph (a) would specify the
administrative powers the FHWA may employ in carrying out its
regulatory authority. The intention of this sentence would be to allow
application of all of these powers in the enforcement of each relevant
regulatory chapter (i.e., 49 U.S.C. chs. 51, 59, 311, 313, and 315).
The powers specified are virtually identical to those listed in title
49 U.S.C. 5121 and 31133, which are to be used in the enforcement of
chapters 51 and 311, respectively. The administrative powers to enforce
chapter 315 are provided in chapter 5 (see 49 U.S.C. 501(b)). Because
the jurisdiction of chapters 311 and 315 are identical as applied by
the FHWA, with 49 U.S.C. 31136 and 31502 routinely cited as parallel
authority for safety regulations, the administrative powers available
to enforce chapter 315 may also be said to be coextensive with those
under chapter 311.
[[Page 18868]]
The authority to investigate violations of chapter 313, the
commercial driver's license program, including drug and alcohol
testing, appears in 49 U.S.C. 322 and 31317. (See 12018(a) of the CMVSA
of 1986, in which the FHWA is granted the power to issue such
regulations as may be necessary to carry out the chapter). It is under
this authority that the administrative powers in 49 U.S.C. 31133 and
chapter 5 would be applied in this rule to enforcement of chapter 313.
Similar authority to enforce chapter 59 may be found in 49 U.S.C. 5907.
Paragraphs (b) and (c) would restate the delegation of these
authorities within the Department of Transportation from the Secretary
to FHWA officials in the field who routinely contact motor carriers.
The delegations are broad in order to allow flexibility. The term
``agency'' is used wherever possible when referring to FHWA officials.
The exact delegations from the Secretary of Transportation which have
been made to the Federal Highway Administration appear in 49 CFR 1.48.
Further delegations within the FHWA appear in FHWA organizational
documents (generally FHWA Order 1-1) available for review at FHWA
regional offices. See 49 CFR part 301. All of these subdelegations of
powers delegated to the Secretary of Transportation are within the
agency's discretion and are carefully designed to comport with
principles of fairness, due process, and efficiency.
Paragraph (d) would restate the delegation of authority to the
States which is provided in 49 U.S.C. 31134. Because States are
partners with the Federal Government in enforcing motor carrier safety
laws, it is important to reemphasize that nothing in this part would
preempt States from enforcing State law. Other parts of the regulations
do, however, provide standards for the preemption of State laws. See 49
CFR part 355; part 397, subpart E; and Sec. 382.109.
Section 361.103 Inspection and Investigation
With the exception of paragraph (e), this section would detail the
scope of the FHWA power to conduct on-site inspections or, as they are
more commonly called, compliance reviews, one of the administrative
powers listed in the previous section. It would be reemphasized in
paragraph (a) that this power applies in carrying out all of the listed
commercial motor vehicle safety chapters of the U.S. Code. The language
on the conduct of on-site inspection and copying of records and
equipment is taken from 49 U.S.C. 504(c) and 5121(c), with the added
proviso that such inspections take place at reasonable times, a
fundamental requirement of the law relating to administrative searches.
Reasonable times would be further explained in paragraph (c) as the
regular working hours of the carrier and certain other times in
particular circumstances.
Consistent with 49 U.S.C. 504, the on-site inspection powers would
apply only to motor carriers and other regulated entities, such as
hazardous materials shippers and tenderors of intermodal containers.
The term ``motor carrier'' is broadly defined in 49 CFR 390.5 as
including a carrier's agents, officers, and representatives. In
contrast, the other investigatory administrative powers, such as the
power to issue subpoenas, require production of records, and take
depositions, would apply to any entity so long as the administrative
action is related to an authorized safety investigation. Thus, an
entity perhaps not directly regulated by the FHWA, such as a trucking
service company, a non-hazardous materials shipper, or a medical
examiner, which possesses information related to an investigation of a
violation of the safety regulations by a motor carrier would be
required to produce records of that information upon request,
enforceable through administrative subpoena and subsequent court order.
No distinction among regulated and other entities in application of
any of the administrative powers, including on-site inspections,
appears in 49 U.S.C. 31133(a). The proposed regulatory approach,
however, is consistent with 49 U.S.C. 502 and 504 and the long-standing
practice of the FHWA.
Proposed paragraph (b) restates two general principles of
administrative law regarding the scope of investigations, questions
about which have arisen in the past during the course of inspections.
First, any records related to an investigation may be inspected,
regardless of whether or not the FHWA requires the records to be
maintained under its regulatory authority. Second, as part of an
inspection and investigation, FHWA officials may question carrier
officials and employees.
The last sentence of paragraph (b) would incorporate the carrier's
right of accompaniment during an inspection, as provided in 49 U.S.C.
31133(b). This means the carrier or its representative must be given
the opportunity to accompany the investigator during the inspection of
records and equipment. The invitation does not have to be accepted, but
it must be offered. Paragraph (d) is modeled on provisions in other
agencies' regulations. It is proposed that an employer's consent to
allow entry on its business premises of an agency official for purposes
of conducting an investigation may not be conditioned on the outcome of
the investigation or any resulting enforcement actions.
An agency official denied entry by an employer would not attempt to
force entry. The right of access for inspection of records and
equipment and administrative subpoenas are enforceable through a civil
action in U.S. District Court for an appropriate order and such other
relief as may be necessary and proper under the circumstances pursuant
to proposed Sec. 304.302 (derived from 49 U.S.C. 507).
Paragraph (e) would restate 49 U.S.C. 505(a) and would be included
because it is related to the scope of investigations. Given the fluid
nature of the motor carrier industry, reviewing lease arrangements may
be essential in determining legal responsibility for compliance with
the safety regulations. Paragraph (f) would detail the confidentiality
of investigatory reports.
Section 361.104 Definitions
To avoid repetition, the definitions provided in Sec. 390.5 are
also applicable to this rule. The few additional definitions necessary
for this rule are provided.
Section 361.105 Employer Obligations
Paragraph (a) would simply restate the responsibility of motor
carriers and other persons to comply with applicable safety
regulations. 49 U.S.C. 31135. Paragraph (b) would establish the duty of
persons to post notices of violations when required by the FHWA. See 49
U.S.C. 521(b)(3). In addition, reasonable standards for posting such
notices are proposed. Paragraph (c) would inform the public that safety
regulations published in the Federal Register are available for review
in FHWA offices.
Paragraph (c) also proposes to require that employers maintain a
copy of applicable safety regulations and make it available to
employees upon request. It has long been a requirement that employers
assure compliance by their employees of the safety regulations (see 49
CFR 390.11). This obligation could not be met without ready access to
the governing regulations. 49 U.S.C. 31502 authorizes the Secretary to
prescribe requirements for the ``safety of operation and the
equipment'' of motor carriers and the practical mandate to maintain an
accessible source of knowledge of the requirements is clearly within
this authority. The FHWA does not consider this an increased paperwork
burden because printed copies of the regulations are readily available
from a number of sources in addition to the
[[Page 18869]]
Government Printing Office at little or no cost.
Paragraphs (d) through (e) would reiterate the on-site inspection
process from the point of view of the person being investigated.
Section 361.106 Vehicle Inspection
Although the FHWA does not generally focus its enforcement efforts
on safety equipment inspections of CMVs on the roadside, this section
would mirror 49 U.S.C. 31142, which provides the authority to conduct
such inspections. Vehicles may also be inspected at a motor carrier's
terminal. See 49 U.S.C. 504(c).
Section 361.107 Complaints
Little in this proposed section goes beyond the statutory language.
Paragraphs (a) through (e) would be a mixture of 49 U.S.C. 506(b) and
31143(a), which set forth the FHWA's procedure and obligations in
responding to complaints of violations of the safety regulations lodged
by members of the public. The only addition to the statutes is the
second sentence of paragraph (b), which would clarify what constitutes
a nonfrivolous complaint. Proposed paragraphs (f) through (g) repeat
the prohibitions in 49 U.S.C. 31105(a) on retaliation against employees
who file complaints alleging violations of the safety regulations.
Because of the numerous questions which the FHWA regularly receives in
this area, paragraph (h) would inform the public that the prohibitions
are enforced by the Department of Labor and cites the relevant
regulations.
Section 361.108 Administrative Subpoenas
The administrative subpoena power would be elaborated, as
authorized in 49 U.S.C. 502(d).
Section 361.109 Depositions and Production of Records
Two more administrative powers would be elaborated, as authorized
in 49 U.S.C. 502 (e) and (f).
Part 362: Safety Ratings
This part would set forth the standards and procedures applicable
to the determination of a motor carrier's safety fitness and the
issuance of a safety rating by the FHWA.
Background
Section 215 of the 1984 Act, enacted on October 30, 1984 (now
codified at 49 U.S.C. 31144), required the Secretary of Transportation
to establish a procedure to determine the safety fitness of owners and
operators of commercial motor vehicles in interstate commerce. Even
before the statutory mandate, the FHWA had been providing safety
fitness information to the Interstate Commerce Commission since 1967,
and had developed a rating system for motor carriers. Following the
1984 Act, the FHWA published an NPRM on June 25, 1986 (51 FR 23088),
and issued a final rule on December 19, 1988, with an effective date of
January 18, 1989 (53 FR 50961). The regulations are codified at 49 CFR
part 385. The regulations were amended by the interim final rule
published on August 16, 1991 (56 FR 40801) to implement the provisions
of the Motor Carrier Safety Act of 1990 (MCSA of 1990) (section 15 of
the Sanitary Food Transportation Act of 1990, Pub. L. 101-500, 104
Stat. 1218) which prohibits a motor carrier that receives an
``unsatisfactory'' safety rating from operating commercial motor
vehicles to transport certain hazardous materials or more than 15
passengers.
The regulations established a ``safety fitness standard'' which the
FHWA uses for assigning motor carrier safety ratings of
``satisfactory,'' ``conditional,'' or ``unsatisfactory.'' The safety
ratings are used to prioritize motor carriers for review and focus
enforcement resources on carriers with the most serious compliance
problems. The safety ratings had routinely been made available to the
ICC for consideration of operating authority applications and self-
insurance, and have been available to the Department of Defense in the
selection of carriers to transport hazardous materials and passengers,
to other governmental and private industry shippers for carrier
selection purposes, to insurance companies to assist in risk
determinations and to the public upon request.
The current rule also prescribes procedures for administrative
review of the rating based on factual disputes, and for requested
changes in safety ratings based upon evidence that corrective actions
have been taken to bring the motor carrier into compliance with the
safety fitness standard.
Since the adoption of the safety rating regulations, the process
has been the subject of occasional dispute. To some, the method used in
determining a safety rating is abstract and confusing, especially when
determined at the same time as, but not necessarily in conjunction
with, the decision whether or not to initiate enforcement actions. The
existence of both ``unsatisfactory'' and ``conditional'' ratings,
moreover, has resulted in unintended significance being given to the
``conditional'' rating. Since it is less than a ``satisfactory''
rating, some shippers and others comparing the performance of various
carriers may give the ``conditional'' ratings an overlay negative
connotation not intended by the agency. Some motor carriers, on the
other hand, equate the satisfactory rating with a level of excellence
unintended by the agency and inconsistent with the general meaning of
the term ``satisfactory,'' i.e., adequate.
Other motor carriers have argued that a rating may be based on
alleged violations of the regulations discovered during on-site audits
but not fully documented. It may then become difficult to contest these
violations in an administrative proceeding challenging the rating. In
practice, the FHWA has addressed this concern by taking a second
investigative look at disputed violations.
Although the FHWA believes that current procedures satisfy the due
process provisions of the Administrative Procedure Act, 5 U.S.C. 551 et
seq., there is room for improvement and greater efficiency. The
situation took on added significance with the enactment of the Motor
Carrier Safety Act of 1990 and its requirement that motor carriers that
receive an ``unsatisfactory'' safety rating be prohibited from
operating commercial motor vehicles to transport hazardous materials
and passengers. This prohibition, which becomes effective 45 days after
receipt of an ``unsatisfactory'' safety rating, would clearly affect a
motor carrier's ability to stay in business. In light of these
concerns, and to improve the objectivity of the information on which
ratings are based, the FHWA has already made several adjustments to the
safety rating methodology and has heightened its responsiveness to
carriers exposed to serious consequences following ratings.
Full compliance with all of the safety and hazardous materials
regulations should certainly be the objective of all responsible motor
carriers. At a minimum, however, a motor carrier must have managerial
control over the critical functions of its operations that reflect on
safety, i.e., it must have an effective system to assure compliance
with the regulations. A negative rating is, of course avoided through
full compliance. It is also avoided by adopting reliable measures to
assure that the motor carrier's employees know what is required by the
regulations, have the opportunity to achieve full compliance, and do
not violate those regulations.
In reviewing a motor carrier's operations for rating purposes, the
FHWA places more emphasis on compliance with those regulations that
have the greatest immediate and direct
[[Page 18870]]
impact on safety. In evaluating the several factors that comprise the
rating, violations of those regulations will have a greater effect on
the overall rating. The FHWA has been using the concepts of ``acute''
and ``critical'' regulations to carry out this purpose. The term
``acute'' refers to regulatory requirements the violations of which
would create an immediate risk to persons or property, e.g., using a
driver after he has tested positive for alcohol. The term critical
refers to those regulatory requirements the violation of which, if
occurring in patterns, would indicate a breakdown in effective control
over essential safety functions, e.g., using drivers beyond their
allowable driving or duty hours. These concepts would now be codified
if this proposal becomes final.
It is also being proposed that the safety ratings be reduced to
only one category, eliminating both the ``satisfactory'' and
``conditional'' safety rating categories. Conditions may be attached to
the avoidance of an ``unsatisfactory'' rating, but they would not place
the motor carrier in a rating category from which negative assumptions
may be drawn. This raises some additional questions to be resolved in
the final rule, e.g., whether and how best to describe those carriers
which are not rated ``unsatisfactory'' and what should be done with the
ratings of those carriers currently rated ``conditional.''
The FHWA believes that Congress has expressed its will in the MCSA
of 1990 (49 U.S.C. 5113) and in subsequent oversight reports that
severe consequences should attach to an ``unsatisfactory'' rating.
Although the language in that provision employs the terms
``satisfactory'' and ``conditional,'' no particular significance is
attributed to those terms other than they are an improvement from the
``unsatisfactory'' classification. This proposal reflects the FHWA's
continuing intention to focus on the ``unsatisfactory'' category and
assure that before carriers are assigned such a rating, it is indeed a
reflection of demonstrably poor compliance or performance. If the
unsatisfactory safety rating is to be considered tantamount to a
determination that the carrier assigned such a rating should not to be
operating commercial motor vehicles in interstate commerce without
appropriate corrective measures, then such a carrier should be well
below average and the percentage of carriers earning such a rating
ought to be relatively small. The information used to assign such a
rating should be put to a more strenuous test before consequences
attach.
The FHWA is, therefore, also proposing to give motor carriers
advance notice of unsatisfactory ratings so that any challenges to the
ratings can be resolved before the rating takes effect. In addition,
expedited procedures for the review of unsatisfactory ratings are
proposed for carriers when their ability to stay in business might be
affected by such a rating. Finally, the FHWA is also proposing to
recognize a practice that has been evolving over the last few years by
affording some discretionary relief to motor carriers adversely
affected by ratings that are able to demonstrate a willingness to
comply and accept conditions designed to improve their safety
management systems and practices.
It must be recognized that the FHWA will never be able to complete
an individual on-premises compliance review of every motor carrier in
existence. More and more, the information obtained from State accident
reports and reports generated by the 2 million roadside inspections
conducted each year is being used to identify carriers that may be
experiencing safety or compliance problems and therefore pose potential
safety risks. (As prescribed in current regulations, this information
is also factored into a carrier's rating.) Complaints are also
indications of the possible existence of compliance problems, and there
is a statutory duty to investigate nonfrivolous complaints. As the
amount and reliability of external information grows, the absence of
negative indicators becomes a more reliable premise for refraining from
individual, on-site compliance reviews. Moreover, a ``satisfactory''
rating produced by a compliance review is only a current assessment of
a motor carrier's level of compliance, and its significance obviously
diminishes with time.
In a one-category rating system, therefore, an ``unsatisfactory''
rating is definitely a negative finding, which is likely to have
adverse impacts on the motor carrier's business opportunities. The
remaining group of carriers that are not rated ``unsatisfactory'' would
be comprised of those carriers with existing ``satisfactory'' or
``conditional'' ratings (which may be dated) and other carriers that
are not rated (this would be the largest group). The latter subgroup of
unrated carriers would be comprised both of carriers that survive
future compliance reviews without receiving an ``unsatisfactory''
rating and those that have not been subject to on-premises compliance
reviews. In this proposal, we would not use any terminology to describe
carriers that are not rated ``unsatisfactory,'' so that no connotation,
positive or negative, would attach. If readers are particularly opposed
to this approach, the FHWA is interested in receiving comments on the
use of categories and the proper terminology to be applied to them.
In this proposal, the FHWA would be prescribing the immediate
termination of ``satisfactory'' and ``conditional'' ratings. This would
have no impact on carriers presently holding such ratings as they would
not be grouped in the unsatisfactory category. The FHWA is also
particularly interested in comments on this issue.
In recent times, the FHWA has considered programs that would
provide incentives to those carriers that demonstrate exceptional
performance and compliance. Nothing in this proposal should be
interpreted to mean that we have abandoned such concepts. The agency
will continue to work with other organizations and associations, such
as the Commercial Vehicle Safety Alliance, to develop the potential of
using positive incentives to promote compliance.
Finally, the safety rating is only one means of promoting
compliance with the safety regulations. The FHWA will continue to
employ selective compliance and enforcement measures in the form of
inspections, investigations, civil penalty assessments and criminal
prosecutions. These will be driven, for the most part, by performance
indicators and complaints. We will also continue to rely heavily on the
partnership developed with State safety enforcement agencies through
the Motor Carrier Safety Assistance Program. Enforcement actions are
considered an effective tool to promote compliance and penalties will
be imposed for violations of the safety regulations when circumstances
warrant, regardless of the carrier's rating. This recognizes that many
otherwise satisfactory motor carriers will tolerate violations of the
regulations from time to time, or will get careless in their management
practices designed to detect and eliminate violations. Enforcement is
appropriate in such situations without necessarily affecting a
carrier's overall rating.
This following section-by-section analysis explains these changes
in more detail.
Section-by-Section Analysis
Section 362.101 Purpose
This section would identify the scope and purpose of the part. The
definitions section of part 385 would be removed as unnecessary.
[[Page 18871]]
Section 362.102 Motor Carrier Identification Report
This requirement is presently found at Sec. 385.21, and provides
that interstate and foreign carriers must file a Motor Carrier
Identification Report, Form MCS-150 (copy provided in the appendix),
within 90 days of beginning operations. This is essential to an
accurate motor carrier census and relates to the assignment of a DOT
identification number. It also assists the FHWA in scheduling reviews
of unrated motor carriers. Since this is a continuing requirement, the
provision in the current rule requiring the filing of the report within
90 days of the effective date of the rule has been eliminated.
Section 362.103 Safety Fitness--Standard and Factors
The safety fitness standard in the current Sec. 385.5 and the
factors in Sec. 385.7 would be clarified, simplified and combined into
one section. This proposal also elaborates on the factors used to
determine the rating and codifies the practice of placing special
emphasis on compliance with ``acute'' and ``critical'' regulations.
Section 362.104 Determination of Safety Fitness--Safety Ratings
The current 49 CFR 385.9 would be amended to define the one safety
rating that may be issued by the FHWA (``unsatisfactory''), and to
describe what constitutes such rating. For example, a carrier would be
issued an unsatisfactory rating if it is determined that the carrier
does not have adequate safety management controls in place to ensure
compliance with the safety fitness standards and factors prescribed in
proposed Sec. 362.103, and which has resulted in one or more of the
specific occurrences listed in Sec. 362.103(b)(1) (i) through (x). In
addition, this section provides that an ``unsatisfactory'' safety
rating may be avoided based on conditions, such as compliance with
specific provisions of the safety or hazardous materials regulations,
the requirements of a compliance order or settlement agreement, or
notices to abate, which may be imposed at the time the proposed safety
rating is issued.
This requirement is not intended to replace the current
``conditional'' safety rating. Rather, it is intended to provide the
agency with flexibility to promote compliance with the regulations by
obtaining the correction of deficiencies in specific areas of a
carrier's operations without calling the motor carrier's entire safety
fitness into question. The conditions upon which it would avoid
``unsatisfactory'' would be known by the motor carrier and the agency.
No separate status would attach to the rating, nor would the existence
or the nature of the conditions be routinely available to the public
under Sec. 362.110. The motor carrier could correct deficiencies
without having its ability to stay in business negatively affected, as
is generally the case with the current ``conditional'' safety rating.
Section 362.105 Unsatisfactory Rated Motor Carriers--Prohibition on
Transportation of Hazardous Materials and Passengers; Ineligibility for
Federal Contracts
This section would incorporate and clarify the existing
prohibitions and penalties listed in section 49 CFR 385.13 that are
applicable to motor carriers that receive a safety rating of
unsatisfactory. The listing of applicable penalty statutes would be
replaced with a reference to the penalty provisions listed in appendix
A to part 386 of this chapter (Part 364 in this proposal). Finally, the
references to the 45-day period during which a motor carrier must
improve the safety rating would be removed and incorporated into the
procedures for obtaining review of the rating (new Sec. 362.108, see
description below).
Section 362.106 Notification of a Safety Rating
This section would clarify and incorporate the rating notification
requirements of the current Sec. 385.11, and establish the concept of a
proposed safety rating of unsatisfactory. A proposed safety rating of
unsatisfactory would become the motor carrier's final safety rating 45
days after the date the notice of proposed safety rating is received by
the motor carrier, unless the carrier petitions for a review or obtains
relief pursuant to proposed Sec. 362.108 (see below). This proposed
rating incorporates the requirement in the MCSA of 1990 that a motor
carrier receiving an unsatisfactory safety rating be given 45 days to
improve its rating before the Act's prohibition of hazardous materials
and passengers transportation takes effect. It would also eliminate a
distinction between carriers based on type of operation by applying the
concept of the proposed rating to all unsatisfactory findings and would
afford all carriers the opportunity to be heard during that period and
to improve the rating before consequences attach. This section also
would provide that a proposed safety rating would not be made routinely
available to the public until it becomes final. This would ensure that
a proposed safety rating of unsatisfactory will not affect a motor
carrier's business before the carrier is given the opportunity to
improve or challenge its proposed rating.
The FHWA recognizes that the assignment of a negative safety rating
often has graver consequences for the rated motor carrier than any
civil penalties that might be sought for individual violations
considered in the compilation of the rating. Several prohibitions
attach to the assignment of an unsatisfactory rating and decisions are
made daily by shippers and insurers on the basis of safety ratings.
This is a primary purpose of the rating as conceived by Congress and
implemented by the agency. For this reason, the agency treats the
rating as a valuable compliance and enforcement measure and provides an
administrative proceeding to afford the ratee with the opportunity to
be heard before the rating is made known. The FHWA believes that
withholding information about a proposed rating from the public is
consistent with the Freedom of Information Act, which provides an
exemption from required release of information compiled for law
enforcement purposes (Exemption 7). The exemption applies because (a) a
law enforcement proceeding would be pending, i.e. the determination of
the motor carrier's safety fitness; and (b) the premature release of a
proposed rating could reasonably be expected to cause harm in that the
consequences would attach before a final decision was made. Since the
purpose of providing the administrative proceeding is to prevent
unintended consequences from inchoate determinations, release of
proposed ratings to shippers and insurers who may very well act on the
information could easily frustrate that purpose. It could also increase
demand for expedited adjudication which could adversely impact an
orderly consideration of all relevant issues. Moreover, the length of
time between a proposed rating and a final rating is finite and would
rarely exceed 45 days. The FHWA also recognizes that release of a
proposed rating may be unavoidable under some circumstances, but it
would be the agency's intent that routine release under Sec. 362.110
would not occur.
Section 362.107 Change to Safety Rating Based on Corrective Actions
This section would continue the remedy presently available in
Sec. 385.17 by allowing for a change in an unsatisfactory rating to be
requested both within the 45 days the rating remains in a proposed
status and at any time after the rating becomes final. The
[[Page 18872]]
filing of a petition for change of a proposed rating would not stay
this 45-day period, but if the FHWA cannot make a determination within
the 45-day period and the motor carrier has submitted evidence that
corrective actions have been taken, the period may be extended for up
to an additional 10 days. This would allow the agency to prioritize
requests based on the consequences a particular carrier may face from
an adverse rating. This section would also provide for a higher level
agency review of a denial of a request for a rating change. In cases
where the resulting unsatisfactory rating causes an out-of-service
order to be issued, an expedited review by the Associate Administrator
would also be available.
Section 362.108 Administrative Review
This section would consolidate, clarify, and revise the existing
procedures in Secs. 385.15 and 385.17 dealing with petitions for review
of safety ratings. The section would establish a single procedure
applicable to reviews of proposed safety ratings of unsatisfactory and
of denials of requests for changes in ratings under Sec. 362.106.
Petitions for reviews of safety ratings of unsatisfactory under this
section would be similar to the procedures in the present Sec. 385.15
applicable to reviews by the Director, Office of Motor Carrier Field
Operations, in cases where there are factual or procedural disputes to
be resolved. A motor carrier receiving notice of a proposed safety
rating of unsatisfactory would still have the option of requesting a
change in the rating based on corrective actions taken. This section
would provide a carrier selecting that action with the additional
opportunity to petition for review if it believes the rating or the
denial of a change was based on errors of procedure or fact.
The existing 90-day filing deadline for petitions under this
section would be reduced to 45 days for consistency and finality. When
the procedure applies to proposed safety ratings of unsatisfactory, the
request for review must be submitted during the 45-day period before
the proposed rating becomes final. This section would maintain the
current statutory requirement that the FHWA complete the review within
30 days in cases where the petition is filed by a motor carrier subject
to the hazardous materials and passenger prohibition in Sec. 362.105.
The petitioner would be required to submit with its petition all
arguments and information it desires to be considered on review. In
most cases, the Director, Office of Field Operations, will complete the
review and render a decision on the basis of the written submission.
The Director would have the discretion to request additional
information or to call a conference. If it is determined that the motor
carrier operations still fail to meet the safety fitness standard, the
motor carrier would be provided with written notification that its
petition has been denied and that the proposed safety rating of
unsatisfactory is final. Except as provided below, the decision of the
Director, Office of Motor Carrier Field Operations, would become the
final agency action. Because the unsatisfactory rating generates an
out-of-service order for a passenger or hazardous materials carrier,
such motor carrier would have the right to an expedited administrative
review of this decision by the Associate Administrator for Motor
Carriers in accordance with 5 U.S.C. 554 and corresponding procedures
are proposed in part 363. This is a new review procedure proposed to
better guarantee due process of law. The expedited review, if timely
requested, would be provided within 10 days from the date of the notice
of denial of the initial review petition. The Associate Administrator
may refer the petition for review for a hearing before an Administrator
Law Judge (ALJ). The Associate Administrator or ALJ may stay any safety
rating during the pendency of the expedited administrative review.
Section 362.109 Temporary Relief From Rating
This section would provide a means to grant temporary relief to a
motor carrier from dire consequences of an unsatisfactory rating upon a
showing of willingness to adopt necessary changes in safety management
polices and practices and to make good faith efforts to improve safety
performance. The temporary relief would be entirely discretionary on
the part of the Regional Director, in the case of a petition for change
in the rating, and the Director of the Office of Field Operations, in
the case of an initial administrative review. The exercise of
discretion by these officials is not reviewable as every carrier
affected by a proposed rating or final rating is provided with ample
opportunity for administrative review in this Part. This provision
merely institutionalizes a practice that has been growing in the recent
past whereby a rating is ``conditionally rescinded,'' to allow a motor
carrier to demonstrate its improved practices in order to earn a better
rating. If a motor carrier is forced to cease operating because of an
unsatisfactory rating, it presumably would be unable to gather any
experience with improved systems that would convince a reviewer that it
had indeed committed itself to safety compliance. The proposed
procedure would require the motor carrier to operate under a consent
order for a period not to exceed 60 days at the conclusion of which a
final rating would be assigned.
Section 362.110 Safety Fitness Information
This section would incorporate the requirements of the current
Sec. 385.19. The section has been clarified to make clear that the
information would also be made available to State agencies.
Part 363: Enforcement Proceedings
The goal of this proposal is to improve the current rules of
procedure for motor carrier enforcement proceedings. Mindful that this
must also have been the goal each of the numerous times the rules have
been amended since their inception in 1969, the task has been
approached deliberately. To open the process to new ideas, various
external sources have been consulted, notably the Model Adjudication
Rules of the Administrative Conference of the United States (December
1993) and various procedural rules of other Federal agencies. On the
other hand, in recognition of the importance of the historical context
of the rules, the predecessors of the current rules, and their
extensive amendments, were reviewed in hopes of identifying
shortcomings and determining the underlying rationale for certain
provisions which may now seem unnecessary, unclear, or unavailing.
This review reveals that even the first incarnation of motor
carrier procedural rules by the FHWA, spare though they may have been,
were not created in a vacuum, but were largely based on practices and
procedures of the Interstate Commerce Commission from whence the FHWA
inherited its motor carrier safety functions. Each subsequent amendment
was believed to be necessary to address programmatic or statutory
changes or to increase efficiency and fairness. And each amendment or
wholesale revision was built on the foundation of previous rules. This
effort is no different, notwithstanding the recourse to model rules.
Because of the importance of past practice in understanding both
the current system and needed changes, and because such a history has
not been compiled elsewhere, a fairly extensive examination of previous
rules is offered.
[[Page 18873]]
The proposed rules will then be explained in this context.
Background
The current rules are the legacy of two distinct strains of
administrative procedures of the ICC. Until 1966, the ICC had the sole
responsibility on the Federal level for regulating motor carrier
safety. In addition to its pervasive regulation of interstate routes,
rates and services through a comprehensive system of certificates of
authority to operate, the ICC also established standards for the safety
of operation of motor carriers. Interstate Commerce Act, sec. 104, 24
Stat. 379, (1887); added ch. 498, 49 Stat. 546 (1935). Most of the
safety standards were enforced through a rather onerous process
involving numerous formal steps--opening an investigation,
investigation, record production and depositions, proceedings before
the full Commission, compliance orders, and, if it came to that, the
withdrawal of operating authority.
In addition, the ICC had limited authority under section 222(h) of
the Interstate Commerce Act to levy civil, monetary penalties against
carriers for failure to keep records, file reports, or respond to
questions posed by the ICC, so-called recordkeeping violations. Acts of
fraud, misrepresentation, false statements, and intentional violations
of nonrecordkeeping requirements in the FMCSRs were punishable solely
as criminal offenses in Federal court, or through the formal process
relating to operating authority. The section 222(h) recordkeeping
violations subject to monetary penalties were enforced by the ICC in
civil actions in the United States District Courts in the event
informal administrative procedures to resolve such actions were
unsuccessful.
The two separate enforcement tracks were carried over to the FHWA
after the ICC's safety functions were transferred to DOT. In 1969, the
FHWA issued rules of practice for motor carrier proceedings which
crystallized the dichotomy. 34 FR 936 (January 22, 1969). Part 385 of
title 49 CFR was entitled ``Collection and Compromise of Claims for
Forfeiture under Section 222(h) of the Interstate Commerce Act.'' Part
386 provided ``The Rules of Practice for Motor Carrier Safety
Proceedings under section 204(c) of the Interstate Commerce Act.''
Part 385 was very brief, providing requirements for claim notices
and settlement agreements. Respondents were instructed that they should
respond to the claim and should state whether they wished to discuss
payment. A response was not mandatory. Section 222(h) claims that did
not result in a settlement or to which there was no response were
enforced through litigation in U.S. District Court. Mirroring the ICC
situation, no administrative procedure was provided to resolve the
claims.
As the FHWA's version of the ICC's formal process, part 386 was
considerably more involved than part 385 and established the framework
for the current rules of procedures.
All proceedings under part 386 alleging safety violations began
with issuance of a notice of investigation (NOI) to a motor carrier, a
procedural relic of the cumbersome ICC process. Under 49 U.S.C. 506, an
order to compel compliance could not be issued without an NOI and an
``opportunity for a proceeding.'' The Federal Highway Administrator
assigned to a hearing examiner all NOIs properly contested by the
carrier in the form provided in the rule. After a hearing, the hearing
examiner issued an order disposing of the proceedings, which was
reviewable by the Administrator on his/her own motion or that of a
party. The proceedings could also be disposed of by issuance of a
consent order pursuant to the agreement of the parties. Improperly
contested or unanswered NOIs could result in unilateral issuance of a
final order by the Administrator. For the most part, the orders
directed the carrier to comply with the safety regulations it was
already duty bound to follow.
For enforcement of orders against regulated carriers, the FHWA had
to petition the ICC to open its own investigation into the carrier's
operating authority, thus bringing the matter back to that cumbersome
process. Moreover, a revocation proceeding by the ICC would generally
not be commenced without a showing that an FHWA order had been
violated.
In 1977, the FHWA made the first extensive revisions to these
procedural rules. 42 FR 18076 (April 5, 1977). Part 385 was repealed
and its settlement procedures incorporated into part 386. The
respondent's statement of desire to discuss payment of the amount of
the claim became mandatory and an occasional source of confusion or, at
least, an excuse not to file a proper response. It is not difficult to
see that a statement expressing a willingness to settle could be seen
by the uninitiated as a quasi admission of culpability at odds with a
statement contesting the allegations of the claim. Some respondents
merely stated they wished to discuss settlement and failed to file a
reply consistent with the rules, thereby risking waiver of the right to
contest the claim, waiver of the right to a hearing, or worse, default.
This situation was exacerbated by regulatory changes in action taken by
the FHWA upon a failure to reply.
In the interest of uniformity, the scope of Part 386 was expanded
in 1977 to include monetary penalty actions arising under section
222(h) of the ICC Act (formerly processed under part 385) and the HMTA
and to include driver qualification determinations. Unfortunately for
uniformity, the standards for these proceedings varied in particulars.
For example, the commencement of proceedings was trifurcated into
issuances of claim letters for civil penalties, letters of
disqualification or determinations for driver qualifications, and NOIs
for violations of other safety rules. Significantly, monetary penalty
assessments were now, for the first time, subject to an extensive
administrative process.
In terms of procedures, no longer would all properly contested
matters result in a hearing. Instead, ``to expedite the decisionmaking
process and to reduce the number of unnecessary hearings,'' the
Associate Administrator (AA) for Safety, rather than the Federal
Highway Administrator, would only assign matters with material factual
issues in dispute to a hearing officer. If no hearing was requested in
the reply, the AA could simply issue a final order based on the
evidence and arguments submitted.
When no reply was received at all, the outcome varied by the type
of proceeding. If a driver failed to reply in accordance with the rules
to a letter or determination of disqualification in a driver
qualification proceeding, the letter or determination automatically
became the final order of the Associate Administrator 30 days later. In
contrast, no such automatic procedure existed when no reply at all was
made to claim letters or NOIs. The AA still had to issue a final order,
although it could be done sua sponte.
Also added to part 386 were pre-trial procedures on discovery and
motion practice designed to expedite the proceedings and clarify
procedural points which had arisen under the 1969 rules.
Minor revisions were made to the rules later in 1977, based on
comments received from the public and six months of practice. 42 FR
53965 (October 4, 1977). Most significant among the changes, a motion
by a party was required before the AA could issue a final order where
no reply was made to the NOI or claim letter. In addition, discovery
and amendment of pleadings were expanded to situations in which a
[[Page 18874]]
matter was not assigned for a hearing but decided by the AA based on
the pleadings. Finally, for matters under the HMTA only, an option was
added whereby a respondent could reply to a claim or NOI with a notice
to submit evidence, rather than request a hearing, and then submit the
evidence at a later date.
In 1985, the rules were again comprehensively amended. 50 FR 40304
(October 2, 1985). The precipitating factors were again statutory
changes and internal reorganization. Pursuant to the Motor Carrier
Safety Act of 1984 and amendments to the HMTA, the rule contained
provisions for the FHWA to seek to enjoin in U.S. District Court
carrier actions in violation of the FMCSRs and HMRs and to order out-
of-service all carrier operations constituting an imminent hazard to
safety.
A section on judicial appeal of final orders was also added to the
rule consistent with the 1984 Act. This became important because the
1984 Act authorized the FHWA, for the first time, to assess civil,
monetary penalties for non-recordkeeping violations of the FMCSRs.
Prior to the 1984 Act, monetary penalties could only be assessed for
violations of the HMRs and recordkeeping requirements in section 222(h)
of the ICC Act and the FMCSR. The 1984 Act expressly made all penalty
assessments subject to the notice and hearing requirements of the
Administrative Procedure Act. Thus, the reach and depth of the FHWA's
civil penalty authority was greatly expanded, and the procedural rules
were amended to reflect this new authority and responsibility.
In terms of procedure, however, the basic trichotomy of the 1977
rules was continued--driver qualification, civil penalty, and NOI
proceedings. Despite the sudden predominance of civil penalties in
terms of the safety program generally, and, specifically, of the
relative number of administrative proceedings, the civil penalty
procedures were little changed from the 1977 rules, which, in turn,
were largely based on the old ICC NOI procedures. Although these
procedures met the requirement in the 1984 Act to comply with the
Administrative Procedure Act, they perhaps did not offer the clearest
and most efficient method of resolving the new influx of cases.
The civil penalty procedures were amended, however, in several
minor ways relevant to this discussion. First, similar to the earlier
provisions for driver qualification proceedings, the failure to reply
to a claim letter automatically resulted in the letter becoming the
final order of the Associate Administrator for the newly organized
Office of Motor Carriers (AA) without a separate order having to be
issued upon the motion of a party. Unlike the qualification section,
however, this seemingly applied only to a complete failure to reply,
and not merely a failure to reply in the form provided in the rule. For
NOIs, nothing changed in this regard. Final orders continued to be
issued by the AA only upon motion of a party. Second, the procedure for
notice of intent to submit evidence without a hearing was extended from
hazardous materials cases to all civil penalty proceedings. Third,
Administrative Law Judges formally replaced hearing officers as
arbiters, although this had been the practice for some time. Fourth,
the discovery and hearing procedure sections were made more detailed to
closer approximate the Federal Rules of Civil Procedure (title 28,
U.S.C.).
The important results of the 1985 amendments were the expansion of
civil penalty authority and the addition of out-of-service order
authority. These two developments further marginalized the venerable
NOI process. In practice, civil penalty proceedings came to greatly
overshadow the cumbersome NOI proceedings. Instead of having to endure
a long administrative process possibly resulting in an order to comply
with regulations with which a carrier was already bound to comply, and
which could only be enforced through intervention in ICC proceedings,
another long process, direct administrative action could be taken
against the carrier in the form of financial penalty. If a carrier
persisted in a state of noncompliance, it could now be directly ordered
out of service as an imminent hazard. An NOI-based order to comply with
the regulations paled in comparison with these new powers.
The next revision of the rules made only technical amendments. 53
FR 2035 (January 26, 1988). Added to the authorities and scope sections
in part 386 were references to the CMVSA of 1986 (49 U.S.C. Chapter
313), in order to implement the CMVSA-based civil and criminal
penalties added to 49 U.S.C. 521(b). The Administrative Law Judge's
power to dismiss matters referred by the AA for a hearing was made
explicit. And the rather detailed delegations of authority from the
Administrator to various positions within the Office of Motor Carriers
were removed from the regulations and placed in the FHWA Organization
Manual,\1\ consistent with an agency-wide trend to maximize
flexibility.
---------------------------------------------------------------------------
\1\ FHWA Orders 1-1, Part I, Chapter 7, Motor Carrier Safety, is
available for inspection and copying as provided at 49 CFR part 7,
appendix D.
---------------------------------------------------------------------------
A small change was made to the rules on December 19, 1988 (53 FR
50961). The FHWA clarified that an out-of-service order designed to
eliminate an imminent hazard applied immediately, pending an
opportunity for review within 10 days.
More extensive amendments were made in 1991. 56 FR 10183 (March 11,
1991); NPRM, 55 FR 11224 (March 27, 1990). A new subpart G spelled out
the statutory civil penalty assessment criteria and specified the four
types of FHWA orders the violation of which could lead to additional
penalties. The four types of orders were notice to abate, notice to
post, final order, and out-of-service order. New appendix A to part 386
established a penalty schedule ranging from $500 to $10,000 for
violations of such orders. These amendments implemented a provision of
the 1984 Act (49 U.S.C. 521(b)(7)).
Another 1991 amendment added a ``new'' order to the AA's
enforcement arsenal--the compliance order, last heard from in ICC
proceedings predating the formation of the DOT. See Sec. 386.21. The
compliance order attempted to give meaning to the largely moribund NOI
process, the procedures for which nevertheless remained in the
regulations. The compliance order became the name of the final order
issued by the AA in an NOI proceeding in which a consent order could
not be achieved. A compliance order could go beyond the NOI in that it
could direct a carrier to ``take reasonable measures beyond the
requirements of the regulations, in the time and manner specified, to
assure future compliance.'' The order warned that failure to take those
measures would constitute a violation of a final order of the AA,
subjecting the carrier to the additional penalties of appendix A and an
out-of-service order if the carrier's operations constituted an
imminent hazard to safety. In practice, it is not common for a
compliance order to be issued directing a carrier to take compliance
measures beyond those required in the safety regulations, but such
measures may be dictated by the circumstances. The rule allows
challenges to the reasonableness of these measures. In order to
expedite the use of NOIs, the NOI and civil penalty procedures were
merged into Sec. 386.14, though the differences in default standards,
discussed above, remained. The combination of NOIs and civil penalty
[[Page 18875]]
claims into a single administrative proceeding has been permitted since
the 1985 rules.
In practice, it is common for NOIs and notices of claims to be both
combined or issued separately at the same time in parallel proceedings,
on those occasions when NOIs are used. The primary use of the NOI is as
a warning that further violations of the same regulations could
constitute an imminent hazard and lead to an out-of-service order, as
provided in Sec. 386.21(c).
The 1991 rulemaking made two further amendments worth mentioning.
First, settlement agreements were amended to require a statement that
failure to pay in accordance with the agreement resulted in the
original claim amount becoming due and payable immediately. Second, a
provision was added to the out-of-service procedure allowing a vehicle
in transit at the time it is ordered out of service to proceed to its
immediate destination. Both of these concepts are incorporated in the
proposed rules.
Section-by-Section Analysis
Subpart A--Civil Penalty Proceedings
Section 363.101 Nature of Proceeding
Civil penalty proceedings would be defined broadly as
administrative proceedings in which the FHWA seeks payment of a fine or
orders a motor carrier, individual, or other regulated entity, the
``respondent,'' to take some action. Civil penalty proceedings are
based on violations of the FMCSRs or HMRs, which must be established
administratively by final order of the agency. Civil penalty
proceedings would include all motor carrier safety, hazardous materials
and intermodal container administrative enforcement proceedings by the
FHWA, other than those involving driver qualification and safety
ratings. For example, proceedings resulting from issuance of an out-of-
service order are civil penalty proceedings.
Driver qualification procedures are proposed in subpart B of this
part. Safety ratings are issued and may generally be contested in
accordance with proposed part 302. However, when the safety rating has
the effect of placing a carrier out of service, the carrier is offered
the same opportunity for an expedited hearing as is available to a
carrier subject to a direct out-of-service order.
The notice of investigation (NOI) procedure, the resurfaced, ICC-
originated process which allows for a finding of violations but
provides no penalties, would finally be laid to rest. Any orders,
findings, notices, or warnings the NOI procedure may have allowed would
be incorporated into the civil penalty process. The use of one set of
procedures for all claims arising from a single set of violations
should result in clearer standards and greater efficiency, and would
eliminate parallel proceedings arising from an NOI and a monetary claim
based on a single set of violations.
The procedures are designed to comport with the Administrative
Procedure Act and principles of due process. The proposed rules ensure
that persons are adequately notified of the violations they are alleged
to have committed and of their right to the opportunity to be heard by
the agency, and, in the appropriate circumstances, to a hearing before
an Administrative Law Judge.
Section 363.102 Notice of Violation (Complaint)
A Notice of Violation setting forth the allegations of the claim of
the agency against the respondent would begin a proceeding. Paragraphs
(a) and (b) propose the minimum information to be included in the
notice. The only item which is not a restatement of part 386 is the
reply form at paragraph (a)(5), which will be discussed below. To
ensure that respondents are notified of the agency's claim, paragraph
(c) would specify as the form of service to be used in issuing the
notice one which utilizes a return receipt. This requirement is
consistent with current practice.
Section 363.103 Form Reply to Notice of Violation
It is proposed to include with each notice of violation a reply
form on which the respondent is asked to check off its intended
response to the claim. The respondent may check only one option on the
reply form. The choices are to: (1) Pay the penalty, (2) discuss
settlement, and (3) contest the claim. If (2) is chosen, respondent
retains the right to contest the claim or pay the penalty at a later
date, as detailed below. For the first time, replies may be sent by
telefax, although respondent retains the burden to prove it has made a
timely reply. If no reply form (or payment or answer to the claim) is
served on the agency within 15 days, the notice of violation becomes
the final order, the violations are established as alleged, and the
respondent waives the right to contest the claim.
The intent of these provisions is to increase the efficiency of the
notice of claim process currently provided in part 386. Providing one
or two time periods in which to respond to claims and disqualification
determinations would be simpler than the 3 or 4 periods currently
provided in part 386. Though it adds a step, the reply form is designed
to provide a clear starting point to the process and to obtain a clear
and simple statement from the respondent of its intentions with regard
to the claim. Cases involving respondents that do not reply can be
processed expeditiously.
On the other hand, the reply form would add flexibility. The agency
can easily amend the claim to reflect any changed circumstances
discovered as a result of settlement negotiations. Respondents would
avoid generating perhaps lengthy and involved replies on the record,
only to resolve the matter later outside formal channels.
Because of the immediate severity of an out-of-service order, and
the consequent reduction in the time period to resolve contested
issues, no reply form is sent along with an out-of-service order. See
Sec. 363.110.
Section 363.104 Special Procedures for Out-of-Service Orders
This section is largely a restatement of what presently appears in
Sec. 386.72(b)(1), but would add a requirement for personal service, a
reference to the penalty for noncompliance, and a provision for
expedited adjudication under proposed Sec. 363.110. The authority
summarily to order a motor carrier to cease all or parts of its
operations because violations of the FMCS are creating an imminent
hazard is found at 49 U.S.C. 521(b)(5)(A).
Section 363.105 Payment of the Claim
This is the first, and obviously simplest, resolution to a notice
of violation assessing a monetary penalty. Because payment terminates
the proceeding, it may be made with or without filing the reply form.
However, if payment is chosen on the reply form, but is not made to the
agency within the time to reply, the notice becomes the final agency
order as if the respondent failed to reply. Paragraph (a) would provide
that payment may be made at any time in the course of the proceeding
before issuance of a final order. If it takes the form of a settlement
agreement, however, it must be done in accordance with Sec. 363.106. Of
course, payment of the monetary claim might not terminate the
proceeding if some other order is also being sought.
Paragraph (c) makes it clear that payment of the claim is
tantamount to a final order finding the facts of the violations as
alleged in the notice, unless the parties expressly agree in writing to
treat the violations otherwise. This is important because certain
future agency enforcement actions may be
[[Page 18876]]
based on, and certain consequences may flow from, prior and continued
violations of the safety regulations.
Section 363.106 Settlement of Civil Penalty Claims; Generally
Settlement may occur at any time in the process including after the
termination of negotiations under Sec. 363.107 and during a hearing.
Settlement procedures have been a key feature of the FHWA civil penalty
process since their inception in 1969. Settlement of alleged violations
before resort to a final formal adjudication is efficient and promotes
the partnership of the FHWA and its regulated entities directed toward
safer commercial motor vehicle transportation.
The content of settlement agreements would not be substantively
altered from that required in part 386. As civil penalty proceedings
are not limited in this proposed rule to monetary claims, so may
settlement agreements resolve the terms of other orders sought against
respondent by the agency. Thus, the consent order procedure in part
386, which provided for issuance by the agency of such other orders,
and which could include settlement agreements resolving monetary claims
anyway, is no longer necessary.
It should be noted that settlement agreements will contain a
finding that certain violations did, in fact, occur. Settlement
agreements should not be necessary in cases in which full payment of
the claim is made and no other orders are sought or terms placed on
respondent. Full payment automatically results in a finding of the
violations as alleged in the notice.
Paragraph (d) involves the situation in which partial payment is
made by a respondent, with or without an accompanying unilateral
expression of the respondent's intent in offering the payment. The
FHWA's acceptance of partial payment, as indicated by cashing a check,
for instance, in no way should be interpreted as settlement of the
claim or as forgiving the remainder of the claim. All settlement
agreements must be in the form provided in paragraph (b).
Paragraph (e) would allow execution of settlement agreement during
the course of administrative proceedings, upon the consent of parties
and without the approval of the AA.
Section 363.107 Settlement Negotiations
In contrast to the general requirements in the preceding section
applying in all instances of settlements, this section would establish
procedures when the settlement negotiations option is chosen by the
respondent on the form reply. Respondents would retain the opportunity
to convert the proceeding into a contested claim at any point in the
negotiation process. They could do this by requesting an administrative
adjudication and filing an answer to the notice of violation. For its
part, the agency could discontinue negotiations it feels are not
proving fruitful by sending the respondent a final notice of violation.
Paragraph (d) proposes a 90-day limit on this initial negotiation
process. If a settlement agreement is not reached within 90 days, the
agency may issue a final notice of violation to the respondent. The
purpose of this provision is to keep the administrative case moving
toward resolution. As justice delayed is justice denied, so does a
delayed penalty reduce its effectiveness. Under current practice, some
cases in which a respondent has indicated a willingness to settle have
a tendency to languish when agreement cannot be readily reached. This
provision should help to avoid consequent case backlogs and should
actually promote settlement as it pushes the case along the track
toward resolution. In accordance with Sec. 363.106, a settlement may be
reached at any point in the civil penalty process, including in
contested claims being administratively adjudicated.
Paragraph (e) would establish the procedures when a final notice of
violation is sent to a respondent after negotiations have been
expressly terminated by one of the parties or 90 days have passed
without settlement. For flexibility, the final notice may simply
incorporate the original notice of violation. For efficiency, if the
negotiations have revealed, for example, that one of the claimed
violations did not occur, the final notice may be amended deleting that
charge. The procedures for replying to the final notice similarly would
incorporate those for immediately contesting the original claim. At
this point, after negotiations have indicated that the parties cannot
agree on resolution of the claim and that it is indeed contested, the
respondent would have no choice but to answer the notice in writing.
Section 363.108 Request for an Administrative Adjudication
This section proposes procedures for contested claims. The
procedures would apply when the ``contest the claim'' option is chosen
on the reply form or when the settlement option is chosen but
settlement is not reached. A contested claim would be resolved in an
administrative proceeding adjudicated by a neutral third party provided
by the agency. Depending on the choice of the respondent and the
existence of material factual issues in dispute, the third party may be
the Associate Administrator (AA) or an Administrative Law Judge (ALJ).
The AA would decide whether or not a case will be referred to an ALJ.
Paragraph (a) would provide a respondent 28 days from receipt of
the notice of violation to serve a written answer on the agency
contesting the claim. If the answer is responding to an original notice
of violation this means that the respondent would be required to send
the agency the reply form in 15 days and the written answer within
another 13 days after that. Of course, respondent may choose to file an
answer within 15 days of the notice of violation, in which case a reply
form would be unnecessary. As with the reply form, the answer may be
served on the agency by telefax.
The content of the answer in paragraph (c) would be similar to that
currently required in replies under Part 386. Paragraph (c)(3) would
clarify that referral to an ALJ may not be available in all instances
where it is requested, but only where there are factual issues in
dispute. Part 386 presently states this concept in terms of an oral
hearing, i.e., an oral hearing is only available for cases with factual
issues. Questions sometimes arise when contested claims without factual
issues are decided by the AA without referral to an ALJ, much less an
oral hearing, even though a hearing was requested. Though
Sec. 386.16(b) clearly gives the AA this power, as provided by the 1977
amendments, the section on content of replies does not reflect it. The
proposed rule clearly states the agency's intent that the opportunity
for a hearing does not mean that all contested matters are referred to
an ALJ for a hearing. Finally, consistent with the standard in Part
386, failure to request referral to an ALJ would result in a waiver of
the right to opportunity for it.
The provision in part 386 allowing the respondent to file a notice
of intent to submit evidence without an oral hearing, with its own
array of deadlines, would be eliminated as unnecessary. Paragraph
(c)(3) would simply give the respondent the option of requesting
referral to an ALJ or not. For tactical or efficiency reasons, a
respondent may very well wish the AA, instead of an ALJ, to resolve its
contested claim, even where factual issues are present. (See, however,
discussion under Sec. 363.109).
If the respondent fails to answer the claim, paragraph (d) would
provide that the notice of violation becomes the final agency order in
the same manner as
[[Page 18877]]
when the reply form was not served on the agency. Moreover, merely
choosing an administrative adjudication on the reply form without
filing an answer would also be deemed a failure to answer.
If the notice is answered, but not in the form provided in this
section, the respondent may be found in default in the discretion of
the AA or ALJ. Default would have the same effect as a failure to
answer. In both situations, the ALJ or AA would issue a final order
without inquiry as to the charged violations.
These provisions would clearly assign the power to determine the
adequacy of the answer in various situations. Findings of default and
failure to answer, and resulting Final Order finding of the violations
as alleged, would support any subsequent collection actions taken by
the agency.
Section 363.109 Procedures in Administrative Adjudications
All contested claims would be transmitted to the AA to either
decide or refer to an ALJ for decision. Only the AA could determine
whether or not there are factual issues in dispute and assign an ALJ to
resolve a contested claim, unless the AA expressly requests the ALJ to
make that determination. Assigning to an ALJ only those cases with
apparent or potential factual issues has been a feature of the rules
since 1977, and has been upheld in litigation on numerous occasions as
complying both with the Administrative Procedure Act and due process
principles. Issues of efficiency and adjudicative economy dictate that
this standard continue in effect.
The first sentence of subsection (b) proposes that if there are
facts in dispute and respondent has requested referral, the AA must
refer the matter to an ALJ. Subsection (c) proposes to provide the AA
with the discretion to decide the matter in two circumstances: (1)
Where referral is requested but there are no factual issues, and (2)
where referral is not requested.
There may be another situation between these two poles, however. If
respondent has not requested referral, but the AA nevertheless believes
referral would be beneficial to resolve a factual or other issue,
should the AA have such discretion? May respondents be required to
participate in possibly costly adjudication even though respondent is
comfortable with potentially ``lesser'' process? The second sentence of
subsection (b) would allow referral in those instances in the
discretion of the AA. The FHWA requests comments on this issue.
Subsections (d) and (e) would accomplish in two short statements
and one reference what the procedures have attempted over the years to
do by detail. The Federal Rules of Civil Procedure, the approximation
of which served as justification for the ever expanding standards in
part 386 on discovery and motion practice, are incorporated into the
civil penalty process, thereby eliminating the need for virtually all
of subpart D to part 386. The AA and ALJ may suspend or adapt the
Federal rules as appropriate, in conformance with the Administrative
Procedure Act.
Subsections (f) and (g) would authorize the ALJ to employ
appropriate process, including alternative dispute resolution.
Subsection (h) would set minimal standards for appearance of
representatives of respondents in administrative proceedings.
Subsection (i) would provide that the parties in an administrative
adjudication may withdraw the matter under certain circumstances.
Withdrawal by a party, or by the consent of the parties, would
terminate the jurisdiction of the ALJ.
Section 363.110 Expedited Review by Associate Administrator
This section proposes expedited procedures for administrative
review of out-of-service orders or unsatisfactory safety ratings after
review by the Director of the Office of Field Operations. Subsection
(c) would reduce the time to conduct an entire administrative
adjudication to 10 days because subsection (b) provides that the out-
of-service order shall remain in effect pending resolution of the
contested claim. This last provision has been a part of the regulations
since the 1985 amendments added the out-of-service procedure. The FHWA
believes that it complies with intent of Congress in the 1984 Act. The
rest of subsection (b) would restate the ``immediate destination''
exception which was added to part 386 in the 1991 amendments. In the
interest of uniformity, subsection (d) would incorporate the procedures
in Sec. 363.109.
Sections 363.111 Through 363.116
With few exceptions, these sections would incorporate the
provisions of subpart E of part 386, on decisions and appeals, into the
new rule without substantive change. Section 386.66, which set a one
year period before considering motions for modification of orders,
would not be carried over. There would be no minimum time for an order
to be in effect before it may be rescinded or modified by order of the
AA or ALJ. Any such motions may be made pursuant to Sec. 363.109(e).
For the sake of clarity, Sec. 363.114 would add a sentence to what
is now in Sec. 386.67, liberally interpreting 49 U.S.C. 521(b)(8) to
allow judicial review for contested claims resulting in a final agency
order, but not for those claims that are resolved through settlement
agreement or in which respondent failed to answer or defaulted. The
statute provides that judicial review is only available after a
hearing. The FHWA believes its interpretation is appropriate because
these proposed rules provide for resolution of contested claims in an
administrative adjudication without a formal reply. Of course,
ultimately the courts must interpret the statute to determine their
scope of review.
The grounds for review of an ALJ's decision by the Associate
Administrator would be explained in somewhat greater detail in 49 CFR
363.111(b) than current 49 CFR 386.62.
Subpart B--Driver Qualification Proceedings
Section 363.201 Nature of the Proceeding
Driver qualification (DQ) proceedings are the means by which the
agency adjudicates challenges to its determinations concerning a
driver's qualifications to operate a CMW.
Section 363.202 Commencement of Proceedings
DQ proceedings would begin with a notice of determination or letter
of disqualification, which may be sent to a driver unilaterally by the
agency, in resolution of a conflict of medical evaluations under
Sec. 363.204 (formerly Sec. 391.47), or to notify the driver of the
consequences of a conviction for certain driving offenses.
Section 363.203 Answer
The content of an answer is proposed. A failure to answer would
result in the notice of determination or letter of disqualification
becoming the final order of the agency automatically in the same manner
as a failure to answer a notice of violation in a civil penalty
proceeding. Thus, the three different standards for failure to reply
under Part 386 are condensed into one under this proposed rule.
Section 363.204 Special Proceeding for Resolution of Conflicts of
Medical Evaluation
This section, because it is entirely procedural in nature, would be
moved from its present location in Sec. 391.47 and remain relatively
unchanged. A change is proposed as to the status of drivers
[[Page 18878]]
during the pendency of this special proceeding and is discussed under
Sec. 363.205, below.
Section 363.205 Driver's Qualification Status Pending Proceedings
Two different statuses are possible under current provisions. A
driver is either physically qualified or unqualified. This section
would clarify the driver's status during proceedings based on the
circumstances that brought about the proceedings. It would also change
current Sec. 391.47, which requires that a driver be considered
unqualified while any conflict of medical opinion is being resolved.
Although the agency operated in the past on a presumption that, in the
interest of safety, the driver was unqualified, such a result is not
required in all cases. It is likely, moreover, that this presumption
inhibited drivers from seeking resolution through the FHWA, which has
primary authority to make qualification determinations for drivers in
interstate commerce.
After consultations with the Department of Labor and the Equal
Employment Opportunity Commission, which have responsibilities for
implementing the anti-discrimination provisions of the Rehabilitation
Act, 29 U.S.C. 701 et seq., and the Americans with Disabilities Act, 42
U.S.C. 12101 et seq., respectively, the change in status is being
proposed. The changes would allow the driver's status, supported by at
least one medical opinion, to remain qualified during the pendency of
driver qualification proceedings with respect to the driver's employer
if the conflict arose during the term of employment. However, if a
driver involved in a conflict is not currently employed, e.g., an
applicant, the driver, would be deemed unqualified with respect to a
potential employer with which the driver's status is in conflict.
Section 363.206 Administrative Adjudication
The procedures for agency action on answers to notices of
determination would track those for administrative adjudication of
contested civil penalty claims. The civil penalty administrative
procedures would be incorporated by reference.
Subpart C--General Provisions
Section 363.301 Applicability
These general provisions would apply to this part and part 362 on
safety ratings.
Section 363.302 Computation of Time
The time computation standards would be largely unchanged from
Sec. 386.32 (a) and (b). Those provisions in that section which
currently allow the addition of five days to specified time periods to
account for use of the U.S. Postal Service in serving documents,
Sec. 386.32(c) (1) and (3), would not be carried over to the proposed
rule. Instead, the proposed rule would provide that service is complete
upon mailing so that the date of the postmark would control.
Section 363.303 Service
A general definition of service would be added to the regulations.
A certificate of service would be required to accompany all documents
served in an administrative proceeding, except the agency's notice and
the respondent's form reply, which occur before a matter is contested.
A service list will be provided in the agency's notice, which will
establish the persons who must be served with documents. Whereas
Sec. 386.31 states these certificate and list requirements in terms of
pleadings and motions, this section would make it clear that service
requirements apply early in administrative proceedings, before any
assignment of an ALJ.
Section 363.304 Extension of Time
This section would be carried over from part 386, with the added
provision that an extension of time may be effected pursuant to mutual
consent of the parties.
Section 363.305 Administrative Law Judge
This section would enumerate the powers of the ALJs, as well as the
limitations on that power. It would also provide for the
disqualification of ALJs. The provisions on limitations and
disqualification are modeled after the procedural regulations of the
Federal Aviation Administration. See 14 CFR 13.205 (b) and (c).
Section 363.306 Certification of Documents
This section would provide good faith standards for the filing of
documents in administrative proceedings. Sanctions are also proposed
for the ALJ or AA to impose if the standards are not met. This section
is based on 14 CFR 13.207.
Section 363.307 Interlocutory Appeals
This section, based on 14 CFR 13.219, would provide standards and
procedures for interlocutory appeals to the AA of matters before the
ALJ.
Part 364: Violations, Penalties, and Collections
Background
Much of the penalty information in this part appears in the U.S.
Code and, until now, has not appeared in published regulations. One
exception is appendix A to part 386 on penalties for violations of
agency notices and orders, which was published in 1991. Other
exceptions are the driver disqualification periods in 49 CFR 383.51 and
391.15 and the special penalties for violations of out-of-service
orders in Sec. 383.53, all of which were required to be published by
the CMVSA of 1986 and subsequent amendments.
Section-by-Section Analysis
Subpart A--General
Section 364.101 Purpose
The purpose of this proposed subpart is to inform the public of the
standards for assessment and collection of penalties for violations of
the FMCSRs and HMRs.
Section 364.102 Policy
This section would serve as a general summary of the part.
Subsection (a) would state the general policy that penalties serve as a
tool to obtain compliance with the regulations. Generally, the
enforcement program is but a part, albeit significant, of the mission
of the Office of Motor Carriers to reduce highway accidents and
injuries by increasing compliance with safety regulations. Most
carriers, drivers, and other entities choose to comply with the
regulations willingly. Various educational and other compliance
programs are available to assist them. For those carriers who
intentionally refuse to comply with or carelessly ignore the
regulations, however, enforcement may become necessary.
Subsection (b) would list the statutory penalty criteria used by
the FHWA to assess penalty amounts. These factors would be explained in
depth in Sec. 364.104. The last sentence would inform respondents that
information developed in an administrative adjudication may affect the
amount of penalty ultimately ordered. Subsection (c) would express the
notion that good faith efforts to achieve compliance will be taken into
account in assessing penalties or settling claims. Subsection (e) would
apply concepts of comity and resource allocation in stating that it is
within the discretion of the agency not to act to enforce violations of
the safety regulations when another governmental entity has already
imposed appropriate penalties for the same violations.
[[Page 18879]]
Subpart B--Civil Penalties
Section 364.201 Types of Violation and Maximum Monetary Penalties
The penalty amounts in this section would be listed by the type of
violation and would track the structures of the relevant statues.
Subsection (a) would refer to violations of parts 382 and 390-399
of the FMCSRs and is based on the penalty structure in 49 U.S.C.
521(b)(2)(A), part of the 1984 Act. The penalty structure is
incorporated into the enforcement scheme for violations of Part 382
drug and alcohol testing requirements in 49 CFR 382.507, as authorized
by 49 U.S.C. 31306, 31317, and 322(a).
The statutory description of violation types would be augmented in
places by language from the legislative history of the 1984 Act,
especially the description in proposed Sec. 364.201(a)(2) of what
constitutes a serious pattern of violations. See S. Rep. No. 424, 98th
Cong., 2d Sess. 10-13 (1984). The definition of a serious pattern would
be further elucidated by the agency's interpretation. The
interpretation in Sec. 364.201(a)(1) of a ``knowing'' recordkeeping
violation as including violations occurring where the means to verify
the incorrect records existed is based on published decisions of ALJs
in civil penalty proceedings. See In the Matter of Trinity
Transportation, Inc., 55 FR 43291 (October 26, 1990); for other
decisions, see Federal Register notices beginning at 55 FR 43264; 55 FR
2924 (January 29, 1990); 57 FR 29710 (June 26, 1992); 58 FR 16916
(March 31, 1993); 58 FR 62450 (November 26, 1993). Various examples of
types of violations are also proposed in the section.
Subsection (b) would list violations and amounts pertaining to
commercial driver's licenses and is based on 49 U.S.C. 521(b)(2)(B).
Paragraph (1) of subsection (c), on the penalty amount for failing
to maintain minimum levels of financial responsibility, is based on 49
U.S.C. 31138-31139. Paragraph (2) would state the rebuttable
presumption that lack of proof of insurance indicates lack of
insurance. It also states the current enforcement practice which allows
rebuttal of that presumption upon presentation of proof within 10 days.
Though the statute makes no distinction in penalties, allowing a
$10,000 maximum for all violations, paragraph (3) would provide that
mere failure to present proof of insurance, where the insurance
actually exists, is a separate recordkeeping offense, subject to a much
smaller penalty than the failure to have the insurance.
Proposed subsection (d), on violations of the HMRs, is based on 49
U.S.C. 5123. Subsection (e) would represent the current appendix A to
part 386, on violations of notices and orders.
Section 364.202 Civil Penalty Assessment Factors
This section would further explain the penalty assessment criteria
listed in Sec. 364.102(b). The criteria are statutory and found in 49
U.S.C. 5123(c) and 521(b)(2)(C). The criteria would be categorized as
involving either the violation or the violator. The proposed
explanation of each factor is based on the agency's reasonable
interpretation of the statute in light of current agency practice.
Particular attention should be paid to the factor proposed in paragraph
(2) of subsection (b), history of prior offenses, which may be used by
the agency to determine if a carrier's operations constitute an
imminent hazard to safety subject to an out-of-service order. Proposed
subsection (c) is a reminder that the application of the factors in a
particular case may be used in a decision to pursue means of
enforcement other than monetary penalties.
Subpart C--Criminal Penalties and Other Sanctions
Section 364.301 Criminal Penalties
Criminal penalties are rarely pursued by the Federal government of
violations of commercial motor vehicle safety regulations. Since
passage of the 1984 Act, the object of the great majority of safety
enforcement cases has been compliance with the regulations through the
assessment of monetary penalties. Other civil penalties, such as out-
of-service orders, have also gained in importance since 1984. The
commercial motor vehicle safety program is administrative in the first
instance. Generally, commercial motor vehicle transportation is a
highly regulated industry, with safety as an important part of the
overall regulatory scheme. International Brotherhood of Teamsters v.
U.S. DOT, 932 F.2d 1292, 1300 (9th Cir. 1991). The FHWA's regulatory
program is not converted into a criminal law enforcement scheme merely
because the government also retains certain parallel criminal penalty
authority.
The advantage to this structure is that the agency can take direct
administrative action against violators, when necessary, supported by
the authority to enforce agency orders in court. Before the 1984 Act,
the agency had only limited civil and criminal penalty authority which
could not be enforced directly by the agency in Federal court. In
practice, these cases generally did not receive very high priority in
the hierarchy of demands placed upon many United States Attorneys and
the courts. This regrettable situation was largely ameliorated with the
expanded civil penalty authority of the 1984 Act. This section would
serve as notice, however, that the criminal penalty authority still
exists. In fact it was enhanced in the 1984 Act. Subsection (e) would
notify the public that willful violations may be referred to the
Department of Justice for possible criminal enforcement.
Section 364.302 Injunctions
This proposed section is intended to notify the public of the
authority of the FHWA to bring civil actions in U.S. District Court to
enforce many of its safety regulations and orders, and, in the case of
the transportation of hazardous materials, to eliminate an imminent
hazard to safety. It is based on 49 U.S.C. 507 and 5122. In practice,
the form of relief sought is usually injunctive, typically an order to
a motor carrier to cease operations, although the statutes allow all
appropriate or necessary relief, including punitive damages.
It is important to note that the regulations and orders which may
be enforced in this way are somewhat limited, and do not include all of
the safety regulations which have been discussed in this document.
Hazardous materials regulations and orders may be enforced, and
imminent hazards eliminated, pursuant to 49 U.S.C. 5122. For most, but
not all, CMV safety violations not involving hazardous materials, 49
U.S.C. 507 authorizes enforcement actions. But 49 U.S.C. 507
specifically excepts violations of the financial responsibility
requirements for motor carriers, found in 49 U.S.C. 31138 and 31139,
from the authority to enforce directly through civil action. This is
unlike the statutory section authorizing the use of administrative
powers (49 U.S.C. 31133), which contains no such exclusion and thus
does apply to enforcement of financial responsibility requirements.
Neither chapter 313, on the CDL program, nor chapter 59, on
Intermodal Safe Container Transportation, contain any express
provisions for injunctive relief, nor are those chapters mentioned at
all in 49 U.S.C. 507. Therefore, those chapters are not included in
this section articulating the statutory authority for injunctive
relief.
Finally, the authority to seek an injunction directly in court (49
U.S.C. 507) should be distinguished from the
[[Page 18880]]
authority to administratively order a vehicle, employee, or employer to
cease operations which pose an imminent hazard to safety (49 U.S.C.
521(b)(5)(A)). The latter process contemplates an administrative
proceeding before any attempts at enforcement in court. This ``out-of-
service order'' procedure is discussed in subsections (c) and (d), and
may be used to enforce CDL and intermodal container violations.
Section 364.303 Driver Disqualifications
This section would be a restatement of disqualification periods
applicable to drivers who commit certain violations. These
disqualification sanctions also appear in Secs. 383.51 and 391.15.
Drivers are also unqualified for any period in which they fail to meet
the qualification requirements of part 391.
Subpart D--Monetary Penalty Collections
Section 364.401 Payment
Payment is demanded upon issuance of a final order imposing a
monetary penalty and generally due and payable within 30 days
thereafter. Unless judicial review is sought, the penalty amount is
subject to the accrual of interest after the date specified in the
final order.
Section 364.402 Collections
This section would provide that monies due and payable will be
collected pursuant to the Federal debt collection regulations. If
administrative actions fail to result in payment, the matter will be
referred to the Department of Justice for collection in a civil action
filed in U.S. District Court. 49 U.S.C. 521(b)(4), 5123(d),
31138(d)(4), 31139(f)(4).
Removal of Parts 385 and 386
Because this rulemaking is a comprehensive revision of safety
ratings and enforcement case procedures, it is proposed to remove and
reserve parts 385 and 386 from the Code of Federal Regulations.
Removal and Reservation of Section 391.47
Because the procedure for resolution of medical conflicts would be
revised and relocated in subpart B of part 303, it is proposed to
remove and reserve Sec. 391.47 of 49 CFR part 391.
Rulemaking Analyses and Notices
Executive Order 12866 (Federal Regulation) and DOT Regulatory Policies
and Procedures
FHWA has determined that this action is not a significant
regulatory action within the meaning of Executive Order 12866 or
significant within the meaning of Department of Transportation
regulatory policies and procedures. The proposals contained in this
document would not result in an annual effect on the economy of $100
million or more, or lead to a major increase in costs or prices, or
have significant adverse effects on the United States economy. This
proposal would augment, replace or amend existing procedures and
practices. Any economic consequences flowing from the procedures in the
proposal are primarily mandated by statute. A regulatory evaluation is
not required because of the ministerial nature of this action.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.), the agency has evaluated the effects of this NPRM on small
entities. No economic impacts of this rulemaking are foreseen as the
rule would impose no additional substantive burdens that are not
already required by the regulations to which these procedural rules
would serve as the adjective law. Therefore, the FHWA certifies that
this proposed rule would not have a significant economic impact on a
substantial number of small entities.
Executive Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612. The rules proposed herein
in no way preempt State authority or jurisdiction, nor do they
establish any conflicts with existing State role in the regulation and
enforcement of commercial motor vehicle safety. It has therefore been
determined that the NPRM does not have sufficient federalism
implications to warrant the preparation of a federalism assessment.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation of Federal programs and
activities apply to this program.
Paperwork Reduction Act
This proposed rule does not contain a collection of information
requirement for purposes of the Paperwork Reduction Act of 1980. 44
U.S.C. 3501 et seq.
National Environmental Policy Act
The agency has analyzed this action for purposes of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and has
determined that the proposed rule would not have any effect on the
quality of the environment.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects in 49 CFR Parts 361, 362, 363, 364, 385, 386, and 391
Administrative procedures, Commercial motor vehicle safety,
Highways and roads, Highway safety, Motor carriers.
Issued on: April 18, 1996.
Rodney E. Slater,
Federal Highway Administrator.
In consideration of the foregoing, the FHWA proposes to amend title
49, CFR, subtitle B, chapter III, by removing and reserving parts 385
and 386, and by adding parts 361, 362, 363, and 364 as set forth below:
1. Chapter III is amended by adding parts 361, 362, 363, and 364 to
read as follows:
PART 361--ADMINISTRATIVE ENFORCEMENT
Sec.
361.101 Purpose.
361.102 Authority and delegation.
361.103 Inspection and investigation.
361.104 Definitions.
361.105 Employer obligations.
361.106 Vehicle/driver inspection.
361.107 Complaints.
361.108 Administrative subpoenas.
361.109 Depositions and production of records.
Authority: 49 U.S.C. 104, 307, chapters 5, 51, 59, 311, 313, and
315.
Sec. 361.101 Purpose.
This part:
(a) Restates the authority of the Department of Transportation
(DOT) to regulate and investigate persons, property, equipment, and
records relating to commercial motor vehicle transportation, intermodal
safe container transportation, and the highway transportation of
hazardous materials;
[[Page 18881]]
(b) Describes certain obligations and rights of motor carriers and
other entities subject to DOT regulations; and
(c) Identifies the DOT officials authorized to enforce motor
carrier and hazardous materials regulations.
Sec. 361.102 Authority and delegation.
(a) The authority of the Secretary of Transportation to regulate
and investigate commercial motor vehicle safety, including motor
carriers, commercial motor vehicles and drivers, and the highway
transportation of hazardous materials, is codified in 49 U.S.C.
Chapters 5, 51, 59, 311, 313, and 315, and 42 U.S.C. 4917. In carrying
out the provisions of these chapters, the Secretary may conduct
inspections and investigations, compile statistics, make reports, issue
subpoenas, require the production of records and property, take
depositions, hold hearings, prescribe recordkeeping and reporting
requirements, conduct or make contracts for studies, development,
testing evaluation and training, and perform other acts the Secretary
considers appropriate.
(b) The authority of the Secretary listed in paragraph (a) of this
section has been delegated to the Federal Highway Administrator (49
U.S.C. 104(c); 49 CFR 1.48), and is codified in 49 CFR part 325 (Noise
Control), the Federal Motor Carrier Safety Regulations (FMCSRs) (49 CFR
Parts 350-399) and relevant portions of the Hazardous Materials
Regulations (HMRs) (primarily 49 CFR Parts 171-173, 177-178, and 180).
The Federal Highway Administrator has delegated the authority to
enforce the FMCSRs and the HMRs to the Associate Administrator for
Motor Carriers.
(c) The Associate Administrator for Motor Carriers has retained the
authority to approve operating procedures for investigations under this
part, including inspections, and has delegated to subordinate managers,
supervisors, and field personnel, hereinafter ``special agents,'' the
authority to perform such investigations.
(d) The Administrator may delegate to a State which is receiving a
grant under 49 U.S.C. 31102 such functions respecting the enforcement
(including investigations) of the provisions of this subchapter and
regulations issued herein as the Administrator determines appropriate.
Nothing in this part shall preempt the authority of any State to
conduct investigations, initiate enforcement proceedings, or otherwise
implement applicable provisions of State law with respect to motor
carrier safety.
Sec. 361.103 Inspection and investigation.
The FHWA may begin an investigation on its own initiative or on a
complaint.
(a) Upon a display of official DOT credentials, special agents may
enter without delay at reasonable times any place of business,
property, equipment, or commercial motor vehicle of a person subject to
the provisions of 49 U.S.C. Chapters 5, 51, 59, 311, 313, and 315, and
42 U.S.C. 4917. Special agents may take the following actions:
(1) Inspect the equipment and property of a motor carrier or other
person on the premises of the motor carrier, or the equipment of the
motor carrier at any other location, and inspect any commercial motor
vehicle of the motor carrier whether or not in operation; and
(2) Inspect and copy any record of--
(i) A carrier, lessor, association, or other person subject to the
provisions of 49 U.S.C. Chapters 5, 51, 59, 311, 313, and 315, and 42
U.S.C. 4917; and
(ii) A person controlling, controlled by, or under common control
with a carrier, if the agent considers inspection relevant to that
person's relation to, or transaction with, that carrier.
(3) Inspect and copy records, property, and equipment related to
manufacturing, fabricating, marking, maintaining, reconditioning,
repairing, testing, or distributing a package or a container for use by
a person transporting hazardous material by commercial motor vehicle,
and to the highway transportation of hazardous materials.
(b) Special agents may inspect and copy any record related to an
investigation, whether or not it is required to be maintained by
Federal Highway Administration (FHWA) regulations or orders. Special
agents may ask any employer, owner, operator, agent, employee, or other
person for information necessary to carry out their statutory and
regulatory functions. Special agents shall offer the employer or other
person subject to the investigation a right of accompaniment during an
inspection and shall notify the person of the general purpose for which
the information is sought.
(c) Reasonable times for inspections are the regular working hours
of the motor carrier or other person, or other times agreed to by the
carrier or other person, required by exigent circumstances, or
authorized by any court of the United States. If the person operates
twenty-four hours per day, reasonable time means whenever authorized
agents can obtain access to records necessary to conduct an inspection,
and a representative of the person can exercise the right of
accompaniment.
(d) The right of a special agent to enter upon the premises of any
person, inspect vehicles, examine records, or interview any person
shall not imply or be conditioned upon a waiver of any cause of action,
claim, order or penalty.
(e) The Associate Administrator may require a motor carrier to file
with the FHWA a copy of any lease agreement or other business
arrangement that is related to transportation safety.
(f) Information received in an investigation, including the
identity of the person investigated and any other person who provides
information during the investigation, may be kept confidential under
the investigatory file exception, or other appropriate exception, to
the public disclosure requirements of 5 U.S.C. 552.
Sec. 361.104 Definitions.
Words or phrases defined in 49 CFR 383.5 and 390.5 of this
subchapter apply in parts 361-364. In addition--
Abate or abatement means to discontinue regulatory violations by
refraining from or taking actions, identified in a notice, to correct
noncompliance.
Administrative law judge means an administrative law judge
appointed pursuant to the provisions of 5 U.S.C. 3105.
Associate Administrator means the Associate Administrator for Motor
Carriers or an authorized delegate of that official.
Federal Motor Carrier Safety Regulations (FMCSRs) means safety
regulations issued by the Federal Highway Administration under the
authority provided in 49 U.S.C. 104(c) or delegated by the Secretary of
Transportation in 49 CFR 1.48, and set forth in subchapter B of this
chapter.
Hazardous Materials Regulations (HMR) means safety regulations
issued by the Research and Special Programs Administration under
authority delegated by the Secretary of Transportation in 49 CFR 1.53,
and set forth in subchapter C of chapter I of this title.
Respondent means a party against whom relief is sought or claim is
made.
Special agent means an individual employed by the Federal Highway
Administration and empowered by the Secretary through delegations of
authority to perform the activities referred to in Sec. 361.103.
Sec. 361.105 Employer obligations.
(a) An employer, employee, and other person shall comply with
applicable commercial motor vehicle safety regulations.
[[Page 18882]]
(b) A violator shall post all notices of violation which have
become final, as required by any notice issued by a special agent. Such
notices shall be posted by the employer in each motor carrier's places
of employment in a conspicuous place or places where notices to
employees are customarily posted. Each employer shall insure that such
notices are not altered, defaced, or covered by other materials.
(c) All regulations on commercial motor vehicle safety and
hazardous materials safety are published in the Federal Register,
codified in the Code of Federal Regulations, and available for review
and copying at the Regional Offices of the Federal Highway
Administration. An employer shall maintain current copies of applicable
regulations, and shall make them available for inspection to any
employee upon request.
(d) After proper identification of a special agent through the
display of credentials, and an explanation of the purpose of the
investigation, a person shall, upon the request of the special agent,
provide access to:
(1) The records requested to be reviewed;
(2) Employees of the person to be interviewed; and
(3) Any equipment or property used in the transportation of persons
or property or to ensure compliance with the Federal Motor Carrier
Safety Regulations and the Hazardous Materials Regulations.
(e) The request for the production of records or access to
employees or equipment may be made at the initiation of the
investigation or at any time thereafter.
Sec. 361.106 Vehicle/driver inspection.
Upon the instruction of a duly authorized Federal, State or local
enforcement official, each commercial motor vehicle used in interstate
commerce shall be subject to an inspection of all safety equipment and
operating conditions required under the Federal Motor Carrier Safety
Regulations and Hazardous Materials Regulations. Each driver of such
vehicle shall also be subject to an inspection by such enforcement
officials of all documents required to be maintained by that driver
under those regulations.
Sec. 361.107 Complaints.
(a) A person, including a governmental authority, may file with the
Associate Administrator a complaint concerning an alleged violation of
this chapter. The complaint must state the facts that are alleged to
constitute a violation. Any office of the FHWA's Office of Motor
Carriers will accept a written complaint. For a listing of FHWA
Regional Offices see Sec. 390.27 of this subchapter. There are also
Office of Motor Carrier facilities located in each State and listed in
local telephone directories.
(b) The Associate Administrator shall timely investigate any
nonfrivolous written complaint alleging that a substantial violation of
any regulation issued under this chapter is occurring or has occurred
within the preceding 60 days. Nonfrivolous written complaints are
allegations of violations of applicable safety regulations containing
sufficient descriptive detail and knowledge of events to create a
reasonable suspicion that the violations occurred or are occurring.
Substantial violation in this context means the same as a pattern of
serious violations or a substantial health and safety violation, as
those terms are defined in part 364 of this subchapter, or patterns of
record falsification that evidences an intent to avoid detection of
such violations.
(c) The Associate Administrator may dismiss a complaint determined
not to state reasonable grounds for investigation and need not conduct
separate investigations of duplicative complaints.
(d) The complainant shall be timely notified of findings resulting
from an investigation or of dismissal of a complaint.
(e) The agency shall not disclose the identity of complainants
without their consent unless it is determined that such disclosure is
necessary to prosecute a violation. If disclosure becomes necessary,
the Associate Administrator shall take every practical measure within
his authority to assure that the complainant is not subject to
harassment, intimidation, disciplinary action, discrimination, or
financial loss as a result of such disclosure.
(f) No motor carrier or other employer subject to the regulations
in this chapter shall discharge, discipline, or in any manner
discriminate against any employee with respect to the employee's
compensation, terms, conditions, or privileges of employment because
such employee (or any person acting pursuant to a request of such
employee) has filed any complaint or instituted or caused to be
instituted any proceeding relating to a violation of a commercial motor
vehicle safety rule, regulation, standard, or order, or has testified
or is about to testify in any such proceeding.
(g) No motor carrier or other employer subject to the regulations
in this chapter shall discharge, discipline, or in any manner
discriminate against an employee with respect to the employee's
compensation, terms, conditions, or privileges of employment for
refusing to operate a vehicle when such operation constitutes a
violation of any Federal rules, regulations, standards, or orders
applicable to commercial motor vehicle safety or health, or because of
the employee's reasonable apprehension of serious injury to himself or
the public due to the unsafe condition of such equipment. The unsafe
conditions causing the employee's apprehension of injury must be of
such nature that a reasonable person, under the circumstances then
confronting the employee, would conclude that there is a bona fide
danger of an accident, injury, or serious impairment of health,
resulting from the unsafe condition. In order to qualify for protection
under this section, the employee must have sought from his employer,
and have been unable to obtain, correction of the unsafe condition.
(h) Violations of paragraphs (f) and (g) of this section are
subject to enforcement by the Occupational Safety and Health
Administration (OSHA) of the Department of Labor. The proper steps for
an employee to follow when pursuing their rights under these paragraphs
are found in 49 U.S.C. 31105(b) and 29 CFR part 1978.
Sec. 361.108 Administrative subpoenas.
(a) The Associate Administrator may subpoena witnesses and records
related to a proceeding or investigation from a place in the United
States to the designated place of the proceeding or investigation.
(b) If a person fails to comply with a subpoena, the Associate
Administrator may file a civil action in the district court of the
United States in which the proceeding or investigation is being
conducted to enforce the subpoena. The court may punish a refusal to
obey an order of the court to comply with a subpoena.
(c) A motor carrier not complying with a subpoena of the Associate
Administrator to appear, testify, or produce records is subject to a
fine of at least $100 but not more than $5,000, and imprisonment of not
more than one year.
Sec. 361.109 Depositions and production of records.
(a) In any proceeding, compliance review, or investigation, the
Associate Administrator may take testimony of a witness by deposition
and may order the witness to produce records. If a witness refuses to
be deposed or to produce records under this section, the
[[Page 18883]]
Associate Administrator may subpoena the witness to appear for a
deposition, produce the records, or both.
(b) A deposition may be taken before a judge of a court of the
United States, a United States magistrate, a clerk of a district court,
or a chancellor, justice, or judge of a supreme or superior court,
mayor or chief magistrate of a city, judge of a county court, or court
of common pleas of any State, or a notary public who is not counsel or
attorney of a party or interested in the proceeding or investigation.
(c) Notice must be given in writing to the person being deposed in
accordance with the Federal Rules of Civil Procedure. The notice shall
state the name of the witness and the time and place of taking the
deposition.
(d) The testimony of a person deposed under this section shall be
taken under oath. The person taking the deposition shall prepare, or
cause to be prepared, a transcript of the testimony taken. The
transcript shall be subscribed by the deponent, unless signature is
waived.
(e) The testimony of a witness who is in a foreign country may be
taken by deposition before an officer or person designated by the
Associate Administrator or agreed on by the parties by written
stipulation filed with the Associate Administrator. The deposition
shall be promptly filed with the Associate Administrator.
(f) Each witness summoned before the Associate Administrator or
whose deposition is taken under this section and the individual taking
the deposition are entitled to the same fees and mileage paid for those
services in the courts of the United States.
PART 362--SAFETY RATINGS
Sec.
362.101 Purpose.
362.102 Motor Carrier Identification Report.
362.103 Safety fitness--standards and factors.
362.104 Determination of safety fitness--safety ratings.
362.105 Unsatisfactory rated motor carrier--prohibition on
transportation of hazardous materials and passengers; ineligibility
for Federal contracts.
362.106 Notification of a safety rating.
362.107 Change to safety rating based on corrective actions.
362.108 Administrative review.
362.109 Temporary relief from rating.
362.110 Safety fitness information.
Appendix to Part 362--Form MCS-150, Motor Carrier Identification Report
Authority: 49 U.S.C. 104, 504, 521(b)(5)(A), 31144, and 31502;
49 CFR 1.48.
Sec. 362.101 Purpose.
(a) This part establishes standards and procedures applicable to
motor carrier identification, the determination of a motor carrier's
safety fitness and the issuance of a safety rating by the FHWA. This
part also notes the restrictions applicable to unsatisfactory rated
motor carriers, provides for availability of safety fitness
information, and includes procedures for administrative review of
safety ratings.
(b) The procedures set forth in 49 CFR part 363, subpart C also
apply to this part.
Sec. 362.102 Motor Carrier Identification Report.
(a) All motor carriers currently conducting operations in
interstate or foreign commerce shall file a Motor Carrier
Identification Report, Form MCS-150 (see appendix to this part), within
90 days after beginning operations.
(b) The Motor Carrier Identification Report, Form MCS-150, is
available from all FHWA region and division motor carrier safety
offices nationwide and from the FHWA Office of Motor Carrier
Information and Analysis, 400 Seventh Street, SW., Washington, DC
20590.
(c) The completed Motor Carrier Identification Report, Form MCS-
150, shall be filed with the FHWA, Office of Information and Analysis,
400 Seventh Street, SW., Washington, DC 20590.
Sec. 362.103 Safety fitness--standards and factors.
(a) To meet safety fitness standards, a motor carrier must
demonstrate through its performance that it has adequate safety
management controls in place to ensure compliance with applicable
safety and hazardous materials regulations and to facilitate the safe
movement of property and passengers by highway.
(b) The information obtained from reviews, investigations, roadside
inspections, and other available performance data is used to assess a
motor carrier's safety fitness in the context of the following factors:
(1) The adequacy of safety management controls. Safety management
controls are those systems, programs, practices and procedures
implemented by a motor carrier to ensure regulatory compliance and
reduce the safety risks associated with:
(i) Commercial driver's license violations (49 CFR part 383),
including controlled substances and alcohol testing violations (49 CFR
part 382):
(ii) Inadequate levels of financial responsibility (49 CFR part
387);
(iii) The failure to record and track accidents and incidents. (49
CFR part 390).
(iv) The use of unqualified drivers (49 CFR part 391);
(v) Improper use and driving of motor vehicles (49 CFR part 392);
(vi) Unsafe vehicles operating on the highways (49 CFR part 393);
(vii) The use of fatigued drivers (49 CFR part 395);
(viii) Inadequate inspection, repair, and maintenance of vehicles
(49 CFR part 396);
(ix) Transportation and routing of hazardous materials (49 CFR part
397); and
(x) Violations of hazardous materials regulations (49 CFR parts
107-177, 180).
(2) Frequency and severity of violations of applicable safety and
hazardous materials regulations and orders, including violations of
compatible state regulations and orders.
(3) Number and frequency of driver/vehicle violations resulting in
driver/vehicle being placed out of service.
(4) Frequency of accidents and hazardous materials incidents,
including: The recordable accident rate per million miles; the
recordable preventable accident rate per million miles; other accident
indicators; and whether these accident and incident indicators have
improved or deteriorated over time.
(c) In considering violations referred to in paragraph (b)(2) of
this section, particular attention is given to violations of
regulations that are critical or acute. These terms as used in this
paragraph to denote the seriousness of regulatory requirements are
defined as follows:
(1) Critical regulation--violations of which, if occurring in
patterns, reflect a breakdown of management control directly related to
essential safety functions. A pattern is evident when violations are
occurring at a rate in excess of 10 percent. Examples of violations of
critical regulations are using drivers to operate commercial motor
vehicles after they have exceeded the allowable driving time or on-duty
time.
(2) Acute regulation--violations of which are so severe as to
require immediate correction, and by themselves reflect negatively on
the motor carrier's ability to manage safety compliance, regardless of
its overall safety posture. An example of a violation of an acute
regulation is allowing a driver to operate after the drivers has tested
positive for alcohol have exceeded the allowable driving time or on-
duty time.
Sec. 362.104 Determination of safety fitness--safety ratings.
(a) Following a review of a motor carrier, the degree to which the
[[Page 18884]]
operations of the motor carrier are consistent with the safety fitness
standards and factors set forth in Sec. 362.103 determines whether the
following rating will be assigned:
(1) Unsatisfactory--an unsatisfactory safety rating means a failure
by a motor carrier to have adequate safety management controls in place
to prevent involvement in crashes by its vehicles and drivers,
evidenced by higher than normal accident rates, or to ensure compliance
with the applicable safety standards, regulations and orders, as
evidenced by inordinate ratios of violations detected in on-site
reviews or roadside inspections associated with the factors listed in
Sec. 362.103(b).
(2) [Reserved]
(b) An otherwise unsatisfactory safety rating may be deferred,
suspended or otherwise avoided if conditions imposed as a result of a
review of a motor carrier's operation and performance are met, which
would include compliance with specific provisions of the safety or
hazardous materials regulations, the requirements of an order or
notices to abate, or other commitments to improve compliance and
performance. The conditions may be imposed in lieu of an unsatisfactory
rating, and failure of the conditions may result in the immediate
assignment of an unsatisfactory rating.
Sec. 362.105 Unsatisfactory rated motor carriers--prohibition on
transportation of hazardous materials and passengers; ineligibility for
Federal contracts.
(a) A motor carrier rated unsatisfactory is prohibited from
operating a commercial motor vehicle to transport--
(1) Hazardous materials for which vehicle placarding is required
pursuant to part 172 of Chapter I of this title; or
(2) More than 15 passengers, including the driver.
(b) A motor carrier subject to the provisions of paragraph (a) of
this section is ineligible to contract or subcontract with any Federal
agency for transportation of the property or passengers referred to in
paragraphs (a)(1) and (a)(2) of this section.
(c) Penalties. When it is known that the carrier transports the
property or passengers referred to in paragraphs (a)(1) and (a)(2) of
this section, an order will be issued placing those operations out of
service. Any motor carrier that operates commercial motor vehicles in
violation of this section will be subject to the penalty provisions
listed in part 364 of this chapter.
Sec. 362.106 Notification of a safety rating.
(a) Written notification of the safety rating will be provided to a
motor carrier as soon as practicable after assignment of the rating.
(b) Before a safety rating of unsatisfactory is assigned to any
motor carrier, the FHWA will issue a notice of proposed safety rating.
The notice of proposed safety rating will list the deficiencies
discovered during the review of the motor carrier's operations, for
which corrective actions must be taken.
(c) A notice of a proposed safety rating of unsatisfactory will
indicate that, if the unsatisfactory rating becomes final, the motor
carrier will be subject to the provisions of Sec. 362.105, which
prohibit motor carriers rated unsatisfactory from transporting
hazardous materials or passengers, and other consequences that may
result from such rating.
(d) A proposed safety rating will not be made available to the
public under Sec. 362.110.
(e) Except as provided in Sec. 362.107, a proposed safety rating
issued pursuant to paragraph (b) of this section will become the motor
carrier's final safety rating 45 days after the date the notice of
proposed safety rating is received by the motor carrier.
Sec. 362.107 Change to safety rating based on corrective actions.
(a) Within the 45-day period specified in Sec. 362.106(e), or at
any time after a rating has become final, a motor carrier may request a
change to a proposed or final safety rating based on evidence that
corrective actions have been taken and that its operations currently
meet the safety standards and factors specified in Sec. 362.102.
(b) A request for a change to a safety rating must be made, in
writing, to the Regional Director, Office of Motor Carriers, for the
FHWA Region in which the carrier maintains its principal place of
business, and must include a written description of corrective actions
taken and other documentation that may be relied upon as a basis for
the requested change to the proposed rating.
(c) The final determination on the request for change will be based
upon the documentation submitted and any additional investigation
deemed necessary.
(d) The filing of a request for change to a proposed rating under
this section does not stay the 45-day period established in
Sec. 362.106(e), after which a proposed safety rating becomes final. If
the motor carrier has submitted evidence that corrective actions have
been taken pursuant to this section and a final determination cannot be
made within the 45-day period, the period of the proposed safety rating
may be extended for up to 10 days at the discretion of the Regional
Director.
(e) If it is determined that the motor carrier has taken the
corrective actions required and that its operations currently meet the
safety standards and factors specified in Sec. 362.103, the motor
carrier will be provided with written notification that the proposed
unsatisfactory rating will not be assigned, or, if already assigned,
rescinded.
(f) If it is determined that the motor carrier has not taken all
the corrective actions required or that its operations still fail to
meet the safety standards and factors specified in Sec. 362.103, the
motor carrier shall be provided with written notification that its
request has been denied and that the proposed safety rating of
unsatisfactory will become final pursuant to Sec. 362.106(e), or that
an unsatisfactory safety rating currently in effect will not be change.
(g) Any motor carrier whose request for change is denied pursuant
to paragraph (f) of this section may petition for administrative review
pursuant to Sec. 362.108 within 45 days of the denial of the request
for rating change. If the unsatisfactory rating has become final, it
shall remain in effect during the period of any administrative review
unless stayed by the reviewing official.
Sec. 362.108 Administrative review.
(a) Within the 45-day notice period provided in Sec. 362.106(e), or
within 45 days after denial of a request for a change in rating as
provided in Sec. 362.107(g), the motor carrier may petition the FHWA
for administrative review of a proposed or final safety rating by
submitting a written request to the Director, Office of Motor Carrier
Field Operations, 400 Seventh Street, SW., Washington, DC 20590.
(b) The petition must state why the proposed safety rating is
believed to be in error and list all factual and procedural issues in
dispute. The petition may be accompanied by any information or
documents the motor carrier is relying upon as the basis for its
petition.
(c) The Director, Office of Motor Carrier Field Operations, may
request the petitioner to submit additional data and attend a
conference to discuss the safety rating. Failure to provide the
information requested or attend the conference may result in dismissal
of the petition.
(d) The petitioner shall be notified in writing of the decision on
administrative review. The notification will occur within 30 days after
receipt
[[Page 18885]]
of a petition from a hazardous materials or passenger motor carrier.
(e) If the decision on administrative review results in a final
rating of unsatisfactory for a hazardous materials or passenger motor
carrier, the decision shall be accompanied by an appropriate out-of-
service order and provide for an expedited agency appeal of such
decision pursuant to Secs. 363.108 and 363.110 of this subchapter.
(f) All other decisions on administrative review of ratings
constitute final agency action. Thereafter, improvement in the rating
may be obtained under Sec. 362.107.
Sec. 362.109 Temporary relief from rating.
(a) Proposed rating. At any time before a proposed unsatisfactory
rating becomes final, the Regional Director in the region wherein the
motor carrier maintains its principal place of business for safety
purposes may temporarily suspend the proposed rating for a period up to
60 days; provided: the motor carrier consents in writing to an order
directing compliance with conditions designed to assure that the safety
fitness standard will be met and satisfactory performance will be
achieved. The temporary suspension is discretionary with the Regional
Director after consideration of circumstances satisfying that official
that a good faith effort by the motor carrier will be made and that
this effort is reasonably certain to bring about compliance. The
consent order must contain a provision that the temporary recision will
be withdrawn and the proposed unsatisfactory rating will become final
upon a failure of one or more of the conditions in the order. If a
satisfactory level of compliance is achieved after the period covered
by the consent order, the Regional Director may withdraw the proposed
unsatisfactory rating, which action may or may not be subject to
prescribed conditions.
(b) Final rating. The Director of the Office of Field Operations,
or other official designated by the Associate Administrator, may
temporarily suspend a final rating of unsatisfactory under the same
conditions set forth in paragraph (a) of this section.
Sec. 363.110 Safety fitness information.
(a) Final ratings will be made available to other Federal and State
agencies in writing, telephonically or by remote computer access.
(b) The final safety rating assigned to a motor carrier will be
made available to the public upon request. Any person requesting the
assigned rating of a motor carrier shall provide the FHWA with the
motor carrier's name, principal office address, and, if known, the DOT
number or the ICC docket number, if any.
(c) Requests shall be addressed to the Office of Motor Carrier
Information Management and Analysis, HIA-1, Federal Highway
Administration, 400 Seventh Street, SW., Washington, DC 20590.
(d) Oral requests by telephone will be given an oral response.
Appendix to Part 362--Form MCS-150.Motor Carrier Identification Report
(Approved by OMB under control number 2125-0544)
BILLING CODE 4910-22-M
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[GRAPHIC] [TIFF OMITTED] TP29AP96.006
BILLING CODE 4910-22-C
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Notice
The Form MCS-150, Motor Carrier Identification Report, must be
filed by all motor carriers operating in interstate or foreign
commerce. A new motor carrier must file Form MCS-150 within 90 days
after beginning operations. Exception: A motor carrier that has
received written notification of a safety rating from the Federal
Highway Administration (FHWA) need not file the report. To mail,
fold the completed report so that the self-addressed postage paid
panel is on the outside. This report is required by 49 CFR Part 385
and authorized by 49 U.S.C. 504 (1982 & Supp. III 1985).
The public reporting burden for this collection of information
on the Form MCS-150 is estimated by the FHWA to average 20 minutes.
If you wish to comment on the accuracy of the estimate or make
suggestions for reducing this burden, please direct your comments to
the Office of Management and Budget and the FHWA at the following
addresses:
Office of Management and Budget, Paperwork Reduction Project,
Washington, DC 20503
and
Federal Highway Administration, OMC Field Operations, HFO-10, 400
7th Street, SW., Washington, DC 20590
Instructions for Completing the Motor Carrier Identification Report
(MCS-150)
(Please Print or Type All Information)
1. Enter the legal name of the business entity (i.e.,
corporation, partnership, or individual) that owns/controls the
motor carrier/shipper operation.
2. If the business entity is operating under a name other than
that in Block 1, (i.e., ``trade name'') enter that name. Otherwise,
leave blank.
3. Enter the principal place of business street address (where
all safety records are maintained).
4. Enter mailing address if different from the physical address,
otherwise leave bank. Also, applies to #7, #8, #12-#14.
5. Enter the city where the principal place of business is
located.
6. If a Mexican motor carrier or shipper, enter the Mexican
neighborhood or barrio where the principal place of business is
located.
7. Enter the city corresponding with the mailing address.
8. If a Mexican motor carrier or shipper, enter the Mexican
neighborhood or barrio corresponding with the mailing address.
9. Enter the name of the county in which the principal place of
business is located.
10. Enter the two-letter postal abbreviation for the State, or
the name of the Canadian Province or Mexican State, in which the
principal place of business is located.
11. Enter the zip code number corresponding with the street
address.
12. Enter the name of the county corresponding with the mailing
address.
13. Enter the two-letter postal abbreviation for the State, or
the name of the Canadian Province or Mexican State, corresponding
with the mailing address.
14. Enter the ZIP code number corresponding with the mailing
address.
15. Enter the telephone number, including area code, of the
principal place of business.
16. Enter the identification number assigned to your motor
carrier operation by the U.S. Department of Transportation, if
known. Otherwise, enter ``N/A.''
17. Enter the motor carrier ``MC'' or ``MX'' number under which
the Interstate Commerce Commission (ICC) issued your operating
authority, if appropriate. Otherwise, enter ``N/A.''
18. Enter the employer identification number (EIN #) or social
security number (SSN #) assigned to your motor carrier operation by
the Internal Revenue Service.
19. Circle the appropriate type of carrier operation.
A. Interstate.
B. Intrastate, transporting hazardous materials (49 CFR 100-180).
C. Intrastate, NOT transporting hazardous materials.
Interstate--transportation of persons or property across State
lines, including international boundaries, or wholly within one
State as part of a through movement that originates or terminates in
another State or country.
Intrastate--transportation of persons or property wholly within
one State.
20. Circle the appropriate type of shipper operation.
A. Interstate
B. Intrastate
Interstate & Intrastate--See #19 above.
21. Enter the carrier's total mileage for the past calendar
year.
22. Circle appropriate classification. Circle all that apply. If
``L. Other'' is circled, enter the type of operation in the space
provided.
A. Authorized For Hire
B. Exempt For Hire
C. Private (Property)
D. Private Passengers (Business)
E. Private Passengers (Non-Business)
F. Migrant
G. U.S. Mail
H. Federal Government
I. State Government
J. Local Government
K. Indian Tribe
L. Other
Authorized For Hire--transportation for compensation as a common
or contract carrier of property, owned by others, or passengers
under the provisions of the ICC.
Exempt For Hire--transportation for compensation of property or
passengers exempt from the economic regulation by the ICC.
Private (Property)--means a person who provides transportation
of property by commercial motor vehicle and is not a for-hire motor
carrier.
Private Passengers (Business)--a private motor carrier engaged
in the interstate transportation of passengers which is provided in
the furtherance of a commercial enterprise and is not available to
the public at large (e.g., bands).
Private Passengers (Non-Business)--a private motor carrier
involved in the interstate transportation of passengers that does
not otherwise meet the definition of a private motor carrier of
passengers (business) (e.g., church buses).
Migrant--interstate transportation, including a contract
carrier, but not a common carrier of 3 or more migrant workers to or
from their employment by any motor vehicle other than a passenger
automobile or station wagon.
U.S. Mail--transportation of U.S. Mail under contract with the
U.S. Postal Service.
Federal Government--transportation of property or passengers by
a U.S. Federal Government agency.
State Government--transportation of property or passengers by a
U.S. State Government agency.
Local Government--transportation of property or passengers by a
local municipality.
Indian Tribe--transportation of property or passengers by a
Indian tribal government.
Other--transportation of property or passengers by some other
operation classification not described by any of the above.
23. Circle all the letters of the types of cargo you usually
transport. If ``Z. Other'' is circled, enter the name of the
commodity in the space provided.
24. Circle all the letters of the types of hazardous materials
(HM) you transport/ship. In the columns before the HM types, either
circle C for carrier of HM or S for a shipper of HM. In the columns
following the HM types, either circle T if the HM is transported in
cargo tanks or P if the HM is transported in other packages (49 CFR
173.2).
25. Enter the total number of vehicles owned, term leased and
trip leased, that are, or can be, operational the day this form is
completed.
Motorcoach--a vehicle designed for long distance transportation
of passengers, usually equipped with storage racks above the seats
and a baggage hold beneath the cabin.
School Bus--a vehicle designed and/or equipped mainly to carry
primary and secondary students to and from school, usually built on
a medium or large truck chassis.
Mini-bus/Van--a multi-purpose passenger vehicle with a capacity
of 10-24 people, typically built on a small truck chassis.
Limousine--a passenger vehicle usually built on a lengthened
automobile chassis.
26. Enter the number of interstate/intrastate drivers used on an
average work day. Part-time, casual, term leased, trip leased and
company drivers are to be included. Also, enter the total number of
drivers and the total number of drivers who have a Commercial
Drivers License (CDL).
Interstate--driver transports people or property across State
lines, including international boundaries, or wholly within one
State as part of a through movement that originates or terminates in
another State or country.
Intrastate--driver transports people or property wholly within
one State.
100-mile radius driver--driver operates only within a 100 air-
mile radius of the normal work reporting location.
27. Print or type the name, in the space provided, of the
individual authorized to sign
[[Page 18888]]
documents on behalf of the entity listed in Block 1. That individual
must sign, date, and show his or her title in the spaces provided
(Certification Statement, see 49 CFR 385.21 and 385.23).
PART 363--ENFORCEMENT PROCEEDINGS
Subpart A--Civil Penalty Proceedings
Sec.
363.101 Nature of proceeding.
363.102 Notice of violation (complaint).
363.103 Form reply to notice of violation.
363.104 Special procedures for out-of-service orders.
363.105 Payment of the claim.
363.106 Settlement of civil penalty claims; generally.
363.107 Settlement negotiations.
363.108 Request for administrative adjudication.
363.109 Procedures in administrative adjudications.
363.110 Expedited review by the Associate Administrator.
363.111 Administrative Law Judge decision.
363.112 Review of Administrative Law Judge decision.
363.113 Decision on review.
363.114 Reconsideration.
363.115 Judicial review.
363.116 Failure to comply with final order.
Subpart B--Driver Qualification Proceedings
Sec.
363.201 Nature of Proceeding.
363.202 Commencement proceedings.
363.203 Answer to medical qualification determination or letter of
disqualification.
363.204 Special proceeding for resolution of conflicts of medical
evaluation.
363.205 Driver's qualification status pending determinations and
proceedings.
363.206 Administrative adjudication.
Subpart C--General Provisions
Sec.
363.301 Applicability.
363.302 Computation of time.
363.303 Service.
363.304 Extension of time.
363.305 Administrative Law Judge.
363.306 Certification of documents.
363.307 Interlocutory appeals.
Subpart A--Civil Penalty Proceedings
Sec. 363.101 Nature of proceeding.
Civil penalty proceedings are proceedings pursuant to 5 U.S.C. 554
in which the agency makes a monetary claim or seeks an order against
the respondent, based on violation of the FMCSRs or HMRs. Final agency
orders that may result from civil penalty proceedings include one or
more of the following:
(a) Monetary penalty;
(b) Settlement agreement;
(c) Out-of-service order;
(d) Notice to post;
(e) Notice of abate; and
(f) Any other order within the authority of the agency.
Sec. 363.102 Notice of violation (complaint).
(a) Civil penalty proceedings are commenced by the issuance of a
notice of violation, which serves as the complaint in subsequent
proceedings and represents the claim of the agency against respondent.
Each notice shall contain the following:
(1) The provisions of law and regulation alleged to have been
violated;
(2) A recitation, separately stated and numbered, of each alleged
violation, including a brief statement of the material facts
constituting each violation.
(3) The amount being claimed and the maximum amount authorized to
be claimed under the statute, and the contents of any order sought to
be imposed;
(4) A statement that failure to answer the notice within the
prescribed time will constitute a waiver of the opportunity to contest
the claim;
(5) A reply form to be completed and returned to the agency, except
in the case of an out-of-service order; and
(6) The address and telefax number to which the reply form and/or
full payment of the amount claimed may be sent, and the telephone
number to call to discuss settlement.
(b) A notice may contain such other matters as the FHWA deems
appropriate, including a notice to abate.
(c) A notice of violation is transmitted by the agency to the
respondent using a method of delivery with a return receipt, such as,
but not limited to, certified mail and personal delivery evidenced by a
certificate of service.
Sec. 363.103 Form reply to notice of violation.
(a) Time for reply. The reply form included in the notice of
violation must be served on the agency by the respondent within 15 days
of respondent's receipt of the notice. The form reply may be sent to
the agency by mail, personal delivery, or telefax. Although a return
receipt is not required, the burden is on the respondent to prove it
has made a timely answer.
(b) Contents of reply form. The respondent must provide the
information requested on the reply form, and indicate, by checking the
appropriate box, its response to the Notice of Violation. Respondent
may select only one option on the reply form. The response options are:
(1) Pay the full amount claimed in the Notice of Violation (check
included), and/or agree to comply with the order by signing where
indicated;
(2) Enter into settlement negotiations (while preserving the right
to contest the claim at a later date); and
(3) Contest the claim immediately through the institution of
administrative adjudication.
(c) Failure to reply. If a completed reply on the form provided, or
in a form containing the same information, is not served on the agency
within 15 days of the respondent's receipt of the notice of violation,
the notice of violation becomes the final agency order in the
proceeding. Respondent's failure to reply constitutes an admission of
all facts alleged in the notice of violation and a waiver of the
respondent's opportunity to contest the claim.
Sec. 363.104 Special procedures for out-of-service orders.
(a) Whenever it is determined that a violation of the FMCSRs poses
an imminent hazard to safety, the agency may order a vehicle or
employee operating such vehicle out of service, or order a motor
carrier to cease all or part of the employer's commercial motor vehicle
operations. In making any such order, no restrictions shall be imposed
on any employee or motor carrier beyond that required to abate the
hazard.
(b) An out-of-service order must be personally served on the driver
when a driver or vehicle is being placed out of service, and on a
responsible representative of the motor carrier at its principal place
of business or other location to which the order applies when all or
part of a motor carrier's commercial motor vehicle operations are being
placed out of service.
(c) A motor carrier or employee shall comply with the out-of-
service order immediately upon its issuance. The penalty for violating
an out-of-service order shall be specifically noted in the order. An
out-of-service order shall not prevent vehicles of the motor carrier in
transit at the time the order is served from proceeding to their
immediate destinations, unless any such vehicles or drivers are
specifically ordered out of service effective immediately. Vehicles and
drivers proceeding to their immediate destination shall be subject to
compliance with the order upon arrival.
(d) If the out-of-service order is contested, an administrative
adjudication shall be made available on an expedited basis under
procedures provided in Sec. 363.110.
(e) For purposes of this section, the term immediate destination
means the next scheduled stop of the vehicle
[[Page 18889]]
already in transit where the cargo on board can be safely secured, and
the term imminent hazard means any condition of vehicle, employee, or
commercial motor vehicle operations which is likely to result in
serious injury of death if not discontinued immediately.
Sec. 363.105 Payment of the claim.
(a) Payment of the full amount claimed may be made at any time
before issuance of a final order, with or without the reply form. After
the issuance of a final order, claims are subject to interest,
penalties, and administrative charges in accordance with 4 CFR part
103.
(b) If the full payment option is selected by the respondent on the
reply form, but payment is not made on the agency within 15 days of the
respondent's receipt of the notice of violation, the notice of
violation becomes the final agency order in the proceeding.
(c) Unless otherwise provided in writing by the mutual consent of
the parties, payment and/or compliance with the order constitutes an
admission of all facts alleged in the notice of violation and a waiver
of the respondent's opportunity to contest the claim, and results in
the notice of violation becoming the final agency order.
Sec. 363.106 Settlement of civil penalty claims; generally.
(a) Settlement of disputed civil penalty claims may occur at any
time before the issuance of a final order.
(b) Content of settlement agreements. When agreement is reached to
resolve the claim, a settlement agreement constituting the final
disposition of the proceeding shall be signed by the parties. The
settlement agreement shall contain the following:
(1) The legal basis of the claim, including an admission of all
jurisdictional facts;
(2) Unless otherwise provided, a finding of the facts constituting
the violations committed;
(3) The amount due the FHWA and the terms of payment, and/or the
terms of the order;
(4) An express waiver of the right to further procedural steps and
of all rights to judicial review;
(5) A statement that the agreement is not binding on the agency
until executed by the agency's authorized representative; and
(6) A statement that failure to pay other otherwise perform in
accordance with the terms of the agreement will result in the notice of
violation becoming the final agency order, and the amount claimed in
the notice of violation becoming due and payable immediately.
(c) An executed settlement agreement is binding on the parties
according to its terms. The respondent's signed, written consent to a
settlement agreement may only be withdrawn, in writing, if the agency
has not executed the agreement within 28 days after execution by
respondent.
(d) The agency's acceptance of partial payment of a claim tendered
unilaterally by a respondent does not constitute a settlement
agreement. All settlement agreements must be in the form specified in
paragraph (b) of this section.
(e) Settlement agreements reached during the course of an
administrative adjudication need not be approved by the Administrative
Law Judge or Associated Administrator unless specifically directed by
those officials.
Sec. 363.107 Settlement negotiations.
This section establishes procedures when the settlement
negotiations option is selected on the reply form.
(a) The parties should enter into negotiations expeditiously and in
good faith, using all reasonable means.
(b) Opportunity for an administrative adjudication. Respondents
electing on the reply form to engage in settlement negotiations retain
the opportunity to contest the claim through an administrative
adjudication if the negotiations do not result in a settlement
agreement.
(c) Discontinuance of negotiations within 90 days. The agency may
discontinue negotiations within 90 days of the notice of violation by
sending the respondent a final notice of violation. The respondent may
discontinue negotiations within the same period by requesting an
administrative adjudication and sending the agency a written answer to
the notice of violation.
(d) Failure to reach agreement after 90 days. If the parties do not
reach a settlement agreement within 90 days, a final notice of
violation shall be issued by the agency to the respondent.
(e) Final Notice of Violation. The final notice of violation
represents the agency's final claim against the respondent. The final
notice of violation may incorporate the notice of violation by
reference, amend the notice of violation to reflect the settlement
negotiations, or include some combination of both.
(1) A final notice of violation shall be transmitted to the
respondent using a method of delivery within a return receipt, such as,
but not limited to, certified mail and personal delivery evidenced by a
certificate of service.
(2) The reply to the final notice of violation shall be completed
in conformance with the requirements of Sec. 363.108(c).
Sec. 363.108 Request for administrative adjudication.
The respondent may contest the claim by requesting an
administrative adjudication and sending a written answer to the agency.
An administrative adjudication is a process to resolve contested claims
before the Associate Administrator or an Administrative Law Judge.
Unless settled, the Associate Administrator shall decide the matter or
refer it to an Administrative Law Judge expeditiously.
(a) Time for answer. Respondents who select administrative
adjudication on the reply form to the notice of violation, or who
receive a final notice of violation, must serve a written answer on the
agency within 28 days of receipt of the applicable notice.
(b) Form of answer. The answer may be sent to the agency by mail,
personal delivery, or telefax. Though a return receipt is not required,
the burden is on the respondent to prove it has made a timely answer.
(c) Contents of answer. Generally, the answer must state the
grounds for contesting the claim and any affirmative defenses that the
respondent intends to assert. Specifically, the answer:
(1) Must admit or deny each separately stated and numbered
allegation of violation in the claim. A statement that the person is
without sufficient knowledge or information to admit or deny will have
the effect of a denial. Any allegation in the claim that is not
specifically denied in the answer is deemed admitted. A general denial
of the claim is grounds for a finding of default;
(2) Must include all affirmative defenses, including those relating
to jurisdiction, limitations, and procedure;
(3) Must request referral to an Administrative Law Judge, if
desired. Referral to an Administrative Law Judge is generally available
only to resolve material issues of fact. Failure to request it results
in a waiver of the right to an opportunity for referral; and
(4) May include a motion to dismiss, but a motion to dismiss is not
a substitute for an answer.
(d) Failure to answer. If a written answer meeting the requirements
of this section is not served on the agency by the respondent or
representative of the respondent within 28 days, the notice of
violation or final notice of violation,
[[Page 18890]]
whichever is applicable, becomes the final agency order in the
proceeding. Merely selecting the adjudication option on the reply form,
without submitting a written answer in accordance with this section,
also results in the notice of violation becoming the final agency order
in the proceeding. Respondent's failure to answer constitutes an
admission of all facts alleged in the notice of violation and a waiver
of the respondent's opportunity to contest the claim.
(e) Default. If an answer is not in the form required by paragraph
(c) of this section the respondent may be found in default by the
Associate Administrator or Administrative Law Judge and a final agency
order issued in the proceeding. Default by respondent constitutes an
admission of all facts alleged in the notice of violation and a waiver
of the respondent's opportunity to contest the claim, and results in
the Notice of Violation becoming the final agency order in the
proceeding.
Sec. 363.109 Procedures in administrative adjudications.
(a) Associate Administrator. Contested claims shall be transmitted
to the Associate Administrator for resolution by final order or for
assignment to an Administrative Law Judge. The Associate Administrator
determines if there are material factual issues in dispute, but may
refer the matter to an administrative law judge to make the
determination.
(b) Referral to an Administrative Law Judge. If there are material
factual issues in dispute and respondent has requested referral to an
Administrative Law Judge, the Associate Administrator shall assign the
matter to an Administrative Law Judge. The Associate Administrator may,
in his or her discretion, refer other matters to an Administrative Law
Judge.
(c) Decision. If there are no material factual issues in dispute or
the matter has not been referred to an Administrative Law Judge, the
Associate Administrator may resolve the Matter and issue a final order.
(d) Except as otherwise provided in these rules, in the
Administrative Procedure Act, 5 U.S.C. 551 et seq., or by the Associate
Administrator or Administrative Law Judge, the Federal Rules of Civil
Procedure and the Federal Rules of Evidence shall apply in all
administrative adjudications.
(e) Motions. An application for an order or ruling in an
administrative adjudication shall be by motion. Unless made during an
oral hearing, motions shall be made in writing, shall state with
particularity the grounds for relief sought, and shall be accompanied
by any relevant affidavits or other evidence. Any party may file a
response to a written motion within 7 days, or within such other time
provided by the Associate Administrator or the Administrative Law
Judge. Failure to respond to a motion may constitute grounds for
granting it. Oral argument or briefs on a motion may be ordered by the
Administrative Law Judge or by the Associate Administrator.
(f) The Associate Administrator and the Administrative Law Judge
have the discretion to conduct an oral hearing on the record, decide
the matter on the pleadings, or employ any other appropriate process.
(g) The Associate Administrator and the Administrative Law Judge
may conduct or permit forms of alternative dispute resolution upon the
consent of the parties.
(h) Appearance. Any party to an administrative proceeding may
appear personally and be represented by an attorney or other person. A
representative must serve a notice of appearance on all parties,
including the name of the respondent or title of the matter, as well as
the representative's name, address, and telephone number, before
participating in the proceeding.
(i) Withdrawal. At any time after a request for an administrative
adjudication, but prior to the issuance of a decision by the
Administrative Law Judge or Associate Administrator, any party may, in
writing, withdraw a request for an administrative adjudication or the
agency may withdraw the notice of violation. If a proceeding before an
Administrative Law Judge is so withdrawn, the assignment of the
Administrative Law Judge is terminated and the Administrative Law Judge
shall dismiss the proceeding with prejudice. A withdrawal by the
respondent constitutes and irrevocable waiver of the respondent's right
to an administrative adjudication on the matter presented in the notice
of violation.
Sec. 363.110 Expedited review by the Associate Administrator.
(a) Decisions to order a motor carrier's operations out of service
is whole or in part are subject to review by the Associate
Administrator in accordance with 5 U.S.C. 554, except that such review
must be provided within 10 days from the date of the out-of-service
order; provided a written request for review is received by the
Associate Administrator within 5 days from the date of the notice.
Written requests received after the 5th day but within 10 days of the
effective date of the out-of-service order or final unsatisfactory
rating resulting in an out-of-service order will be reviewed within 10
days from the date of the request.
(b) Any petition for review received more than 10 days after the
date of an out-of-service order will be treated as a request for
administrative adjudication under Sec. 363.108 of this part, unless the
Associate Administrator, in his or her discretion, provides otherwise.
(c) Any requests for review submitted pursuant to this section must
be in writing and particularly address the matters which are disputed,
the grounds for the dispute, and the reasons why expedited review is
required.
(d) The Associate Administrator may refer the matter for a hearing
before and Administrative Law Judge within the same time prescribed for
expedited review. The procedures in Sec. 363.109, except for time
periods, shall apply to the hearing.
(e) The Associate Administrator or Administrative Law Judge may
stay any order or safety rating during the pendency of the expedited
review. Thereafter, the matter may be administered pursuant to
Sec. 363.109.
(f) Unless a stay is granted under paragraph (e) of this section or
the period extended by mutual consent of the parties, the decision on
an expedited review shall be issued within the time prescribed for such
expedited review.
(g) The decision of the Administrative Law Judge on referral from
the Associate Administrator shall become the final agency order after
24 hours unless amended or vacated by the Associate Administrator.
Sec. 363.111 Administrative Law Judge decision.
(a) After considering the evidence and arguments of the parties,
the Administrative Law Judge shall issue a decision. The decision shall
be sent to the parties and to the Associate Administrator. The
Administrative Law Judge may issue an oral decision in the presence of
the parties, which will be entered in the record of the proceedings.
(b) Finality. Except for expedited review under Sec. 363.110, the
decision of the Administrative Law Judge becomes the final decision of
the agency 45 days after it is issued, unless a petition for review is
filed under Sec. 363.112 within that period, or the Associate
Administrator, on his own motion, reviews or vacates the decision.
Sec. 363.112 Review of Administrative Law Judge decision.
(a) All petitions to review administrative adjudication decisions
of the Administrative Law Judge must be accompanied by a statement of
the
[[Page 18891]]
grounds for review. Each petition must set out in detail objections to
the decision and refer to any evidence in the record which is relied
upon to support the petition. It shall also state the relief requested.
Failure to object to any error in the decision constitutes a waiver of
the right to allege such error in subsequent proceedings.
(b) A party may petition for review of a decision of the
Administrative Law Judge on only the following three grounds:
(1) A finding of fact is not supported by substantial evidence;
(2) A conclusion of law is not made in accordance with applicable
law, precedent, or public policy; and
(3) The Administrative Law Judge committed prejudicial error in
applying the governing procedural rules.
(c) Reply briefs may be filed within 35 days after the petition for
review is filed. Further pleadings may be filed by a party only if
expressly allowed by the Associate Administrator.
(d) Copies of the petition for review and all motions and briefs
must be served on all parties.
(e) Oral argument will be permitted only if expressly allowed by
the Associate Administrator.
Sec. 363.113 Decision on review.
(a) The Associate Administrator may adopt, modify, or reverse the
Administrative Law Judge's decision and may make any necessary findings
of law or fact. The Associate Administrator may also remand the matter
to the Administrative Law Judge with instructions for further
proceedings. If the matter is not remanded, the Associate Administrator
shall issue a final order disposing of the proceedings and serve it on
all parties.
(b) Finality. Unless otherwise stated, an order of the Associate
Administrator on review becomes the final order of the agency upon
issuance.
Sec. 363.114 Reconsideration.
Within 21 days of a decision by the Associate Administrator, any
party may petition for reconsideration. The filing of a petition for
reconsideration does not stay the effectiveness of a final order unless
so ordered by the Associate Administrator.
Sec. 363.115 Judicial review.
(a) Any aggrieved person, who, after an administrative
adjudication, is adversely affected by a final order issued may, within
30 days, petition for review of the order in the United States Court of
Appeals in the circuit wherein the violation is alleged to have
occurred, or where the violator has its principal place of business or
residence, or in the United States Court of Appeals for the District of
Columbia Circuit.
(b) Judicial review shall be based on a determination of whether or
not the findings and conclusions in the final order were supported by
substantial evidence or otherwise in accordance with law. No objection
that has not been urged before the agency must be considered by the
court, unless reasonable grounds existed for failure or neglect to do
so. The commencement of proceedings under this section shall not,
unless ordered by the court, operate as a stay of the final order of
the agency.
Sec. 363.116 Failure to comply with final order.
If, within 30 days of receipt of a final agency order issued under
this part, the respondent does not pay a civil penalty assessed, take
any other action required by the order, or file a petition under
Secs. 363.114 or 363.115, the case may be referred to the Attorney
General with a request that an action be brought in the appropriate
United States District Court to enforce the terms of the order or
collect the civil penalty.
Subpart B--Driver Qualification Proceedings
Sec. 363.201 Nature of proceeding.
Driver qualification proceedings are the means by which the agency
resolves challenges to or disputes involving a determination of a
driver's medical qualification to operate a commercial motor vehicle or
challenges to disqualification by the Federal Highway Administration of
a driver following convictions for certain driving offenses.
Sec. 363.202 Commencement of proceedings.
(a) Driver qualification proceedings are commenced by the issuance
to a driver or motor carrier of:
(1) A notice of determination by the agency (the determination may
be issued unilaterally by the agency or in resolution of a conflict of
medical evaluations pursuant to Sec. 363.204); or
(2) A letter of disqualification issued by the agency, based upon a
conviction for a disqualifying offense or other cause listed in
Sec. 383.51 or 391.15 of this subchapter.
(b) Each notice of determination or letter of disqualification
shall contain the following:
(1) A statement of the provisions of the regulations under which
the action is being taken;
(2) A copy of all documentary evidence relied on or considered in
taking such action, or, in the case of voluminous evidence, a summary
of such evidence;
(3) Notice that the determination or disqualification may be
contested, and that failure to answer will constitute a waiver of the
opportunity to contest the determination or disqualification; and
(4) Notice that the burden of proof will be on the applicant in
cases arising under Sec. 363.204.
(c) In a medical qualification proceeding, the notice of
determination must be transmitted to the driver involved. In cases
arising under Sec. 363.204, the notice of determination shall also be
transmitted to the motor carrier and any other parties involved in the
resolution of a conflict of medical evaluations. Any party may respond.
In a disqualification proceeding, the letter of disqualification must
be transmitted both to the driver and to the employing motor carrier,
if the latter is known.
(d) The notice or letter commencing the proceeding is transmitted
by the agency to any respondent or necessary party using a method of
delivery with a return receipt, such as, but not limited to, certified
mail and personal delivery evidenced by a certificate of service.
Sec. 363.203 Answer to medical qualification determination or letter
of disqualification.
(a) Time to answer. An answer to the notice of determination or
letter of disqualification must be completed by the respondent and
served on the agency within 2 months of respondent's receipt of the
notice of determination. The answer may be sent to the agency by mail
or telefax. Though a return receipt is not required, the burden is on
the respondent to prove it has made a timely answer.
(b) Contents of the answer. The answer must contain the following:
(1) The grounds for contesting the determination;
(2) Copies of all evidence upon which petitioner relies.
(3) A request for referral to an Administrative Law Judge, if one
is desired, which must set forth material factual issues believed to be
in dispute.
(c) Supporting evidence. All written evidence shall be submitted in
the following forms:
(1) An affidavit of a person having personal knowledge of the facts
alleged;
(2) Documentary evidence in the form of exhibits attached to an
affidavit identifying the exhibit and giving its source;
(3) A medical report (or reports) prepared by a medical examiner or
authorized representative of a medical institution; and
(4) An official record of a government agency.
(d) Failure to answer. If a written answer contesting the notice or
letter is
[[Page 18892]]
not received by the agency within 2 months, the notice of determination
or letter of disqualification becomes the final agency order in the
proceeding. Respondent's failure to answer constitutes and admission of
all facts alleged in the letter or notice and a waiver of the
respondent's opportunity to contest the determination of
disqualification.
(e) Letter of Disqualification. In proceedings based on convictions
for disqualifying offenses, the only relevant defenses are that:
(1) The respondent driver was not convicted as alleged;
(2) The alleged conviction was overturned, vacated, remanded, or
otherwise voided on appeal;
(3) The violation for which the conviction was entered is not a
disqualifying offense; or
(4) The term of the disqualification period has already been served
in whole or in part because of State action.
Sec. 363.204 Special procedures for resolution of conflicts of medical
evaluation.
(a) Applications. An application for determination of a driver's
medical qualifications under standards in part 391 of this chapter will
only be accepted if they conform to the requirements of this section.
(b) Conditions. Each applicant must meet the following conditions.
(1) The application must be in writing and contain the name and
address of the driver, motor carrier, and all physicians involved in
the conflict.
(2) The applicant must provide documentary evidence that there is
disagreement between the physician for the driver and the physician for
the motor carrier concerning the driver's medical qualifications.
(3) The applicant must submit a written opinion and report from an
independent medical specialist in the field in which the conflict
arose, together with the results of all tests performed by that
independent specialist. The independent medical specialist should be
one agreed to by the motor carrier and the driver.
(4) If no agreement to select an independent specialist can be
reached, the applicant must demonstrate it agreed and the other party
refused to submit the matter to a specialist. If possible, the
applicant must then submit the report of an independent specialist
selected by the applicant. The report should be based on personal
examination or, if that is not possible, on an evaluation of the
reports of the two examining physicians in conflict.
(5) The independent medical specialist must be provided with a copy
of the regulations in part 391 of this subchapter, and this part, a
medical history of the driver, and a detailed statement of the work the
driver performs or is to perform, which must be noted in the
specialist's report.
(6) The applicant must submit all medical records, statements and
reports of all physicians known to have provided opinions as to the
driver's qualifications.
(7) The applicant must submit any other documentary evidence which
may reflect on the driver's qualifications.
(8) The application must allege that the driver intends to drive or
is intended to be used as driver in interstate commerce.
(9) The application and all supporting documents must be submitted
in triplicate to the Director, Office of Motor Carrier Research and
Standards, Federal Highway Administration, Washington DC 20590.
(c) Initiation. Upon receipt of a satisfactory application, the
Director will issue a notice to all parties that an application for
resolution of a medical conflict has been received with respect to the
identified driver, and may require additional information from the
parties.
(d) Reply. Any party may submit a reply to the notice within 30
days after service. The reply must be accompanied by all evidence the
party desires to be considered by the Director in making a
determination.
(e) Parties. For purposes of this section, the parties are the
driver, the motor carrier, and any other person whom the Director
designates as such.
(f) Determination. After considering all the medical evidence
submitted by the parties and the opinions of medical experts to whom
any matter under consideration may have been referred, the Director
shall issue a Determination of Qualification deciding whether the drive
is qualified under part 391 of this subchapter.
(g) Petitions for review. A driver or motor carrier adversely
affected by the Director's determination may within 60 days petition
for review to the Associate Administrator under this part.
Sec. 363.205 Driver's qualification status pending determinations and
proceedings.
(a) In proceedings which are unilaterally commenced by the agency,
the driver shall be deemed qualified unless and until a final order is
issued disqualifying the driver.
(b) In proceedings arising under Sec. 363.204:
(1) If the driver is not yet employed by the motor carrier with
which the conflict of medical qualification arises, the driver shall be
deemed unqualified as a driver only with respect to that motor carrier.
(2) If the conflict arises from a biennial or other medical
examination conducted after the driver was previously found qualified
and employed as a driver by the motor carrier with which the conflict
exists, the driver shall be deemed qualified only with respect to that
motor carrier unless and until a final determination by the Director,
Office of Motor Standards is issued finding the driver unqualified, or
unless the Associate Administrator otherwise provides.
(c) During the pendency of a proceeding on a petition for review of
the Determination of Qualification issued by the Director under
Sec. 363.204, the driver's status will remain as decided in that
Determination, unless otherwise provided by the Associate
Administrator.
Sec. 363.206 Administrative adjudication.
(a) Referral to an Administrative Law Judge. If there are material
factual issues in dispute and respondent has requested referral to an
Administrative Law Judge, the Associate Administrator may assign the
matter to an Administrative Law Judge.
(b) Decision. If there are not material factual issues in dispute
or respondent has not requested referral, the Associate Administrator
may resolve the matter and issue a final order.
(c) Procedures. Administrative adjudication and any agency review
are conducted in accordance with Secs. 363.109 and 363.111-363.115.
Subpart C--General Provisions
Sec. 363.301 Applicability.
The general provisions in this subpart apply to part 362 of this
subchapter and this part 363.
Sec. 363.302 Computation of time.
(a) Generally, in computing any time period set out in these rules
or in an order issued hereunder, the time computation begins with the
day following the act, event, or default. The last day of the period is
included unless it is a Saturday, Sunday, or legal Federal holiday, in
which case the time period shall run to the end of the next day that is
not a Saturday, Sunday, or legal Federal holiday. All Saturdays,
Sundays, and legal Federal holidays except those falling on the last
day of the period shall be counted.
(b) Date of entry of orders. In computing any period of time
involving the date of the entry of an order, the date of entry shall be
the date the order is served.
[[Page 18893]]
Sec. 363.303 Service.
(a) Definition.
Service means the delivery of documents to necessary entities in
the context of an administrative proceeding. Service by mail is
complete upon mailing.
(b) Certificate of service. A certificate of service shall
accompany all documents served in an administrative proceeding, except
the notice of violation on Sec. 363.102, the reply form in
Sec. 363.103, and the notice of determination and letter of
disqualification in Sec. 363.202. It shall consist of a certificate of
personal delivery or a certificate of mailing, executed by the person
making the personal delivery or mailing the document.
(c) Service list. The initial notice or other document of the
agency in an administrative proceeding shall have attached a list of
persons to be served. This service list shall be updated by the agency
as necessary. Copies of all documents must be served on the persons,
and in the number of copies, indicated on the service list.
(d) Form of delivery. All service required by these rules shall be
made by mail or personal delivery, unless otherwise prescribed.
Sec. 363.304 Extension of time.
(a) Unless directed otherwise by the Associate Administrator or
Administrative Law Judge before whom a matter is pending, the parties
may stipulate to reasonable extensions of time by filing such
stipulation in the official docket and serving copies on all parties on
the service list.
(b) All requests for extensions of time shall be filed with the
office in the agency to which the answer is to be sent, or, if the
matter is an administrative adjudication, with the Administrative Law
Judge or the Associate Administrator, whichever is appropriate. All
requests must state the reasons for the request. Only those requests
showing good cause or upon the mutual consent of the parties may be
granted by the appropriate official. No motion for continuance or
postponement of a hearing date filed within 7 days of the date set for
a hearing will be granted unless it is accompanied by an affidavit
showing that extraordinary circumstances warrant a continuance.
Sec. 363.305 Administrative Law Judge.
(a) Powers of an Administrative Law Judge. In accordance with the
rules in this subchapter, an Administrative Law Judge may:
(1) Give notice of and hold prehearing conferences and hearings;
(2) Administer oaths and affirmations;
(3) Issue subpoenas authorized by law
(4) Rule on offers of proof;
(5) Receive relevant and material evidence;
(6) Regulate the course of the administrative adjudication in
accordance with the rules of this subchapter;
(7) Hold conferences to settle or simplify the issues by the
consent of the parties;
(8) Dispose of procedural motions and requests;
(9) Make findings of fact and conclusions of law, and issue
decisions.
(b) Limitations on the power of the Administrative Law Judge. The
Administrative Law Judge is bound by the procedural requirements of
this part and the precedent opinions of the agency as recorded in
written opinions of the Associate Administrator or in opinions adopted
by the Associate Administrator. If the Administrative Law Judge imposes
any sanction not specified in this subchapter, a party may file an
interlocutory appeal of right with the Associate Administrator pursuant
to Sec. 363.307. This section does not preclude an Administrative Law
Judge from barring a person from a specific proceeding based on a
finding of obstreperous or disruptive behavior in that proceeding.
(c) Disqualification. The Administrative Law Judge may disqualify
himself or herself at any time, either at the request of any party or
upon his or her own initiative. Assignments of Administrative Law
Judges are made by the Chief Administrative Law Judge upon the request
of the Associate Administrator. Any request for a change in such
assignment, including disqualification, will be considered only for
good cause which would unduly prejudice the proceeding.
Sec. 363.306 Certification of documents.
(a) Signature required. The attorney of record, the party, or the
party's representative shall sign each document tendered for filing
with the hearing docket clerk, the Administrative Law Judge, the
Associate Administrator, or served on a party.
(b) Effect of signing a document. By signing a document, the
attorney of record, the party, or the party's representative certifies
that the attorney, the party, or the party's representative has read
the document and, based on reasonable inquiry and to the best of that
person's knowledge, information, and belief, the document is--
(1) Consistent with these rules;
(2) Warranted by existing law or that a good faith argument exists
for extension, modification, or reversal of existing law; and
(3) Not unreasonable or unduly burdensome or expensive, not made to
harass any person, not made to cause unnecessary delay, not made to
cause needless increase in the cost of the proceedings, or for any
other improper purpose.
(c) Sanctions. If the attorney of record, the party, or the party's
representative signs a document in violation of this section, the
Administrative Law Judge or the Associate Administrator may:
(1) Strike the pleading signed in violation of this section;
(2) Strike the request for discovery or the discovery response
signed in violation of this section and preclude further discovery by
the party;
(3) Deny the motion or request signed in violation of this section;
(4) Exclude the document signed in violation of this section from
the record;
(5) Dismiss the interlocutory appeal and preclude further appeal on
that issue by the party who filed the appeal until an initial decision
has been entered on the record; or
(6) Dismiss the petition for review of the Administrative Law
Judge's decision to the Associate Administrator.
Sec. 363.307 Interlocutory appeals.
(a) General. Unless otherwise provided in this subpart, a party may
not appeal a ruling or decision of the Administrative Law Judge to the
Associate Administrator until the Administrative Law Judge's decision
has been entered on the record. A decision or order of the Associate
Administrator on the interlocutory appeal does not constitute a final
order for the purposes of judicial review under Sec. 363.115.
(b) Interlocutory appeal for cause. If a party files a written
request for an interlocutory appeal for cause with the Administrative
Law Judge, or orally requests an interlocutory appeal for cause, the
proceedings are stayed until the Administrative Law Judge issues a
decision on the request. If the Administrative Law Judge grants the
request, the proceedings are stayed until the Associate Administrator
issues a decision on the interlocutory appeal. The Administrative Law
Judge shall grant an interlocutory appeal for cause if a party shows
that delay of the appeal would be detrimental to the public interest or
would result in undue prejudice to any party.
(c) Interlocutory appeals of right. If a party notifies the
Administrative Law
[[Page 18894]]
Judge of an interlocutory appeal of right, the proceedings shall be
stayed until the Associate Administrator issues a decision on the
interlocutory appeal. A party may file an interlocutory appeal with the
Associate Administrator, without the consent of the Administrative Law
Judge, before the Administrative Law Judge has made a decision, in the
following situations:
(1) A ruling or order by the Administrative Law Judge barring a
person from the proceedings;
(2) Failure of the Administrative Law Judge to dismiss the
proceedings in accordance with Sec. 363.109(i);
(3) A ruling or order by the Administrative Law Judge in violation
of Sec. 363.305(b); and
(4) Denial by the Administrative Law Judge of a motion to
disqualify under Sec. 363.305(c).
(d) Procedure. A party must file a notice of interlocutory appeal,
with any supporting documents, with the Associate Administrator, and
serve copies on each party and the Administrative Law Judge, not later
than 10 days after the Administrative Law Judge's decision forming the
basis of an interlocutory appeal of right or not later than 10 days
after the Administrative Law Judge's decision granting an interlocutory
appeal for cause, whichever is appropriate. A party must file a reply
brief, if any, with the Associate Administrator and serve a copy of the
reply brief on each party, not later than 10 days after service of the
appeal brief. The Associate Administrator shall render a decision on
the interlocutory appeal, on the record and as a part of the decision
in the proceedings, within a reasonable time after receipt of the
interlocutory appeal.
(e) The Associate Administrator may reject frivolous, repetitive,
or dilatory appeals, and may issue an order precluding one or more
parties from making further interlocutory appeals in a proceeding in
which there have been frivolous, repetitive, or dilatory interlocutory
appeals.
PART 364--VIOLATIONS, PENALTIES, AND COLLECTIONS
Subpart A--General
Sec.
364.101 Purpose.
364.102 Policy.
Subpart B--Civil Penalties
364.201 Types of violations and maximum monetary penalties.
364.202 Civil penalty assessment factors.
Subpart C--Criminal Penalties and Other Sanctions
364.301 Criminal penalties.
364.302 Injunctions.
364.303 Disqualifications.
Subpart D--Monetary Penalty Collection
364.401 Payment.
364.402 Collections.
Authority: 49 U.S.C. Chapters 5, 51, 311, 313 and 315.
Subpart A--General
Sec. 364.101 Purpose.
The purposes of this part are to define the various types of
violations of the Federal Motor Carrier Safety Regulations (FMCSRs) and
Hazardous Materials Regulations (HMRs), and orders authorized to be
issued thereunder; to describe the range of penalties that may be
imposed for such violations and how those penalties are assessed; and
to identify the means that may be employed to collect those penalties
once it has been finally decided by the agency that they are due.
Sec. 364.102 Policy.
(a) Penalties are assessed administratively by the agency for
violations of the FMCSRs, HMRs, and administrative orders at levels
sufficient to bring about satisfactory compliance. Criminal penalties
are also authorized to be sought in U.S. District Court under certain
circumstances.
(b) The maximum amounts of civil penalties that can be assessed for
regulatory violations subject to the proceedings in this subchapter are
established in the statutes granting enforcement powers. The
determination of the actual civil penalties assessed in each proceeding
is based on those defined limits and consideration of information
available at the time the claim is made concerning the nature,
circumstances, extent and gravity of the violation and, with respect to
the violator, the degree of culpability, history of prior offenses,
ability to pay, effect on ability to continue to do business, and such
other matters as justice and public safety may require. In adjudicating
the claims and orders under the administrative procedures in this
subchapter, additional information may be developed regarding these
factors that may affect the final amount of the claim.
(c) When assessing penalties for violations of notices and orders
or settling claims based on these assessments, consideration will be
given to good faith efforts to achieve compliance with the terms of the
notices and orders.
(d) Criminal penalties may be sought against a motor carrier, its
officers or agents, a driver, or other persons when it can be
established that violations were deliberate or resulted from a willful
disregard for the regulations. Criminal penalties may be sought against
an employee only when a causative link can be established between a
knowing and willful violation and an accident or hazardous materials
incident or the risk thereof.
(e) If a State, political subdivision of a State, foreign nation,
or other governmental entity imposes any civil or criminal penalty for
acts constituting violations of the regulations covered by this part,
and those penalties are determined by the Associate Administrator to be
appropriate for such violations, no further penalties will be assessed
by the Federal Highway Administration.
Subpart B--Civil Penalties
Sec. 364.201 Types of violations and maximum monetary penalties.
(a) Violations of parts 350-399 of the FMCS are divided into three
categories, each of which carries a maximum penalty as noted below.
Unless otherwise noted, a separate violation occurs for each day the
violation continues:
(1) Recordkeeping--violations which involve knowing failure to
prepare or maintain a record required by the regulations, or knowing
preparation or maintenance of a required record which is incomplete,
inaccurate or false. Maximum penalty: $500 per violation, which may be
increased by $500 for each day the violation continues up to $2,500.
Actual or constructive possession of the means with which to verify the
existence or accuracy of the record is presumptive evidence that the
person responsible for maintaining such record committed a knowing
violation when such record is incomplete, inaccurate, or false.
(2) Serious pattern of safety violations--no civil penalties are
assessed for isolated violations of non-recordkeeping provisions of the
regulations. The term ``serious patterns of violations'' describes a
middle range of violations between those of recordkeeping noncompliance
and willful disregard of the regulations. These types of violations are
not the isolated human errors, but are tolerated patterns of equipment
violations or operating conduct that any responsible business entity
could detect and correct if it wanted to meet its full safety
responsibility to the public. A pattern may be established by single
violations
[[Page 18895]]
of more than one regulation, as well as by multiple violations of a
single regulation. No set number of acts are required. All that is
needed is a basis to infer that the acts are not isolated or sporadic.
More than one pattern may be alleged in a single claim. For example, in
one notice of violations, patterns of hours-of-service violations, use
of unsafe equipment, and employment of unqualified drivers may be
alleged and supported with separately counted violations in each
category. The area of noncompliance may be further broken down if
patterns are discernible to that extent. In the same notice, for
instance, it may be alleged that each driver used by a carrier
constitutes a separate pattern and further that each such driver may
account for separate patterns of violations of the 10-hour driving rule
(49 CFR 395.3(a)(1)), the 15-hour on-duty rule (Sec. 395.3(a)(2)), and
the 70-hours in 8 days on-duty rule (Sec. 395.3(b)(2)), each of which
presents a separate pattern. When serious patterns of violation are
detected, civil penalties not to exceed $1,000 for each violation
within a pattern up to a maximum of $10,000 for each pattern may be
assessed.
(3) Substantial Health and Safety Violations. This category applies
to violations which could reasonably lead to, or have resulted in,
serious personal injury or death. These are violations that are serious
in their nature and have been allowed to occur or continue by the motor
carrier who knew or should have known of their existence. Illustrative
of such violations are vehicles that are dispatched or continued in a
condition which would result in an out-of-service order; drivers who
are dispatched or continued in use when they are unqualified,
disqualified, or have tested positive for drugs; and drivers who are
dispatched or continue in an unsafe or fatigued condition. Penalties up
to $10,000 may be assessed for each violation.
(4) Limitation on employee non-recordkeeping violations. Except for
recordkeeping violations, no civil penalty may be assessed against an
employee of a motor carrier unless it is determined that the employee's
actions amounted to gross negligence or reckless disregard for safety.
When that can be shown, the maximum civil penalty is $1,000.
(i) Owner operators. For purposes of this section, an owner-
operator while in the course of personally operating a commercial motor
vehicle is considered an employee. When that same owner-operator is not
acting in a driving capacity, he or she shall be treated as a motor
carrier or employer.
(ii) Gross negligence is an act or omission of an aggravated nature
regarding a legal duty, as opposed to a mere failure to exercise
ordinary care. It amounts to indifference to or utter disregard of a
legal duty so far as other persons may be affected. Reckless disregard
for safety is conduct evincing indifference to consequences under
circumstances involving danger to life or safety of others even though
no harm was intended.
(b) Violations pertaining to commercial drivers licenses (CDL).
Violations with respect to the operations of commercial motor vehicles
(CMV) for which a CDL is required under part 383 of this chapter are
subject to civil penalties up to a maximum of $2,500 per violation.
These violations include the operation of a CMV by a driver who has not
obtained a CDL or has more than one driver's license; failure to make
required notifications of traffic violations, license suspensions or
previous employment; and operating a CMV after the driver or the CMV
was placed out-of-service by a duly authorized enforcement official.
(c) Violations pertaining to minimum levels of Financial
Responsibility.
(1) Failure by a motor carrier to maintain the prescribed levels of
financial responsibility pursuant to Part 387 of this chapter
constitutes a violation for which a civil penalty of up to $10,000 may
be assessed for each violation. Each time a motor carrier dispatches a
commercial motor vehicle without the required level of Financial
Responsibility may be counted as a separate violation with no overall
limitation.
(2) Failure to produce the required proof of Financial
Responsibility (MCS-90 or MCS-82) is presumptive evidence of failure to
maintain the required levels of Financial Responsibility. The
presumption may be rebutted by presentation of the required proof of
Financial Responsibility covering the applicable period of time within
10 days of demand.
(3) Failure to maintain the required proof of Financial
Responsibility upon demand is a separate offense for which a civil
penalty of up to $500 may be assessed. A separate civil penalty of $500
may be assessed for each day such record is not produced after demand
has been made.
(d) Violations of the Hazardous Materials Regulations. The
violations in this subsection apply to motor carriers, drivers, and
shippers when the transportation is by highway in commercial motor
vehicles.
(1) All violations of the Hazardous Materials Transportation Act
(HMTA), as amended, or orders or regulations issued under the authority
of that Act applicable to the transporting of hazardous materials by
highway or the causing of them to be transported by highway are subject
to a civil penalty of not more than $25,000 and not less than $250 for
each violation. When the violation is a continuing one, each day of the
violation constitutes a separate offense.
(2) All violations of the HMTA, as amended, or orders, regulations,
or exemptions issued under the authority of that Act applicable to the
manufacture, fabrication, marking, maintenance, reconditioning, repair
or testing of a packaging or container which is represented, marked,
certified or sold as being qualified for use in the transportation of
hazardous materials by highway are subject to a civil penalty of not
more than $25,000 and not less than $250 for each violation.
(3) Whenever regulations issued under the authority of the HMTA, as
amended, require compliance with another set of regulations, e.g., the
Federal Motor Carrier Safety Regulations, while transporting hazardous
materials, any such violation of the latter regulations will be
considered a violation of the HMR and subject to a civil penalty of not
more than $25,000 and not less than $250.
(4) Transporting hazardous materials requiring the display of
placards or transporting more than 15 passengers by a motor carrier
during any period in which such motor carrier has a final safety rating
of unsatisfactory is considered a violation of the MHTA and subject to
a civil penalty of not more than $25,000 and not less then $250, and
each transportation movement by such carrier is considered a separate
violation.
(e) Violations of Notices and Orders. Additional civil penalties
pursuant to 49 U.S.C. 521(b) are chargeable for violations of notices
and orders which are issued in proceedings under part 306, as follows:
(1) Notice to Abate.
(i) Failure to cease violations of the safety regulations in the
time prescribed in the notice may subject the motor carrier to
reinstatement of any deferred assessment or payment of a penalty or
portion thereof. (The time within which to comply with a notice to
abate shall not begin with respect to contested violations until such
time as the violations are established.)
(ii) Failure to comply with specific actions prescribed in an order
(other than to cease violations of the regulations), which were
determined to be essential to abatement of future
[[Page 18896]]
violations is subject to a civil penalty of $1,000 per violation per
day up to a maximum of $10,000 per violation.
(2) Notice to Post. Failure to post the notice of violation as
directed is subject to a civil penalty of $500 for each such failure.
(3) Final Order. Failure to pay the penalty assessed in a final
order within the time prescribed in the order will result in an
automatic waiver of any reduction in the original claim found to be
valid and immediate restoration to the full amount assessed in the
notice of violation.
(4) Out-of-Service Order.
(i) Operation of a commercial motor vehicle by a driver during the
period the driver was placed out of service subjects the driver to
civil penalty of $1,000 to $2,500 per violation. (For purposes of this
violation, the term ``driver'' includes an independent contractor who,
while in the course of operating a commercial motor vehicle, is
employed or used by another person.)
(ii) Requiring or Permitting a driver to operate a commercial motor
vehicle during the period the driver was placed out of service subjects
the motor carrier to a civil penalty of $2,500 to $10,000 per
violation.
(iii) Operation of a commercial motor vehicle by a driver after the
vehicle was placed out of service and before the required repairs are
made subjects the driver to a civil penalty of $1,000 to $2,500 each
time the vehicle is so operated. (This violation applies to drivers as
defined in paragraph (e)(4)(i) of this section.)
(iv) Requiring or Permitting the operation of a commercial motor
vehicle after the vehicle was placed out of service and before the
required repairs were made subjects the motor carrier to a civil
penalty of $2,500 to $10,000 each time the vehicle is so operated after
notice of the defect is received. (This violation applies to motor
carriers, including independent contractors who are not ``drivers'' as
defined in paragraph (e)(4)(i) of this section).
(v) Failure to return written certification of correction as
required by the out-of-service order is subject to a civil penalty of
up to $500 per violation.
(vi) Knowingly falsifying written certification of correction
required by the out-of-service order is considered the same as
operating or requiring or permitting a driver to operate an out-of-
service vehicle and is subject to the same civil penalties provided in
paragraph (e)(4)(iii) and (iv) of this section. Falsification of
certification may also result in criminal prosecution under 18 U.S.C.
1001.
(vii) Operating or causing to operate in violation of an order to
cease all or part of the motor carrier's commercial motor vehicle
operations, i.e., failure to cease operations as ordered, is subject to
a civil penalty of up to $10,000 per day after the effective date and
time of the order to cease.
Sec. 364.202 Civil penalty assessment factors.
(a) The nature, circumstances, extent, and gravity of the
violations listed in Sec. 364.201 may serve as mitigating or
aggravating factors affecting the amount of the penalty assessed. These
factors relate to the violations per se, i.e., their magnitude,
blatancy, frequency and potential for immediate consequences. They
could be determinative in charging substantial health and safety
violations or patterns of safety violations, as well as assessing a
high, medium, or low penalty. In evaluating a motor carrier's safety
fitness, the terms acute and critical are used in reference to
particular regulations of which violations are noted. Violations of
these regulations, therefore, are by their nature serious, and this
will be considered in assessing penalties. Similarly, when the
circumstances in which violations occur are so obvious that any
responsible motor carrier could easily correct them, the continuation
of such violations is an aggravating factor to be considered in
assessing the level of civil penalty. When violations are so numerous,
frequent or longstanding as to indicate habitual noncompliance, the
extent of the violations is a consideration. Finally, the gravity of
the violation relates to the likelihood of immediate and harmful
consequences. When violations have resulted in death or serious
injuries, the level of civil penalty is likely to be higher. Similarly,
the occurrence of death or serious injury in other instances resulting
from the same type of violation increases the gravity of the offense.
(b) Violator factors. The following factors relate to the
disposition or conduct of the violator for consideration in the
assessment of civil penalties.
(1) Degree of culpability. This factor requires an evaluation of
blameworthiness on the part of the violator. It will range from the low
end, where a motor carrier may have had various knowledge of violations
but little actual involvement, to the high end, where the motor carrier
had actual knowledge and disregarded or even promoted noncompliance.
(2) History of prior offenses. Persistent noncompliance reflects a
disregard for safety which, in turn, increases the prospect for
imminently hazardous conditions leading to accidents. Timely correction
of violation patterns should prevent imminent hazards from developing
and reduce the likelihood of accidents. Consequently, this factor is a
major indicator of a motor carrier's knowledge of its responsibility
and disposition toward compliance. Evaluation of this factor will range
from a low end, where there is no history of previous violation, to a
history of previous noncompliance with the regulations generally, to
prior violations of similar regulations, to recent violations of the
same regulations, to the high end of repeated and persistent violations
of the same regulations.
(3) Ability to pay. The violator's size, gross revenues, resources,
and the standards in 4 CFR part 103 (Standards for Compromise of
Claims: Inability to Pay) should be taken into consideration in making
a determination whether to charge the total potential assessment. This
consideration may affect the decision as to the number of violations to
cite as well as the level of the penalty to be assessed for each
violation. The violator may submit evidence of its ability to pay at
any time, and it will be considered in mitigation of the amount
claimed. However, this evidence may not be given much weight when the
other factors in this paragraph (b) indicate a high assessment is
warranted.
(4) Effect on ability to continue to do business. Insofar as this
factor is distinguishable from paragraph (b)(3) of this section, it
relates to the timeliness of payment and abatement of violations.
Evidence that immediate payment of even a mitigated civil penalty will
effectively terminate a motor carrier's or shipper's business will be
considered in determining whether to defer payment or to allow
installment payments of the civil penalty assessed.
(5) Other matters as justice and public safety may require. Matters
other than those specifically included in the factors listed in this
section may also be either aggravating or mitigating in the interest of
justice or public safety. These may include such factors as cooperation
or lack thereof; general attitude toward compliance; institution or
revision of a safety program; hiring or assignment of personnel with
specifically defined safety responsibilities; comprehensiveness of
corrective actions; and effectiveness and speed of compliance.
(c) The preponderance of aggravating factors may also indicate the
need for more intensive enforcement in the form of other orders,
revocations of operating authority, out-of-service, injunctions, or
criminal prosecutions.
[[Page 18897]]
Subpart C--Criminal Penalties and Other Sanctions
Sec. 364.301 Criminal penalties.
(a) Except as provided in paragraph (b) of this section, any person
who knowingly and willfully violates any provision of the FMCS shall,
upon conviction, be subject for each offense to a fine not to exceed
$25,000 or imprisonment for a term not to exceed one year, or both,
except that, if such violator is an employee, the violator shall only
be subject to penalty if, while operating a commercial motor vehicle,
the violator's activities have led to or could have led to death or
serious injury, in which case the violator shall be liable upon
conviction, for a fine not to exceed $2,500.
(b) Any person who knowingly and willfully violates sections 12002,
12003, 12004, 12005(b), or 12008(d)(2) of the Commercial Motor Vehicle
Safety Act of 1986 (49 U.S.C. 31302, 31303, 31304, 31305(b), or
31310(g)(2)), or regulations issued under such sections, shall, upon
conviction, be subject for each offense to a fine not to exceed $5,000
or imprisonment for a term not to exceed 90 days, or both.
(c) Any person who knowingly violates 49 U.S.C. 5104(b), or any
person who knowingly and willfully violates any provision of the HMTA,
as amended, or any regulation issued thereunder, shall be fined under
title 18 of the United States Code, imprisoned for 5 years, or both.
(d) Additional criminal penalties appear in 49 U.S.C. 522-526.
(e) If the agency becomes aware of any willful act for which a
criminal penalty may be imposed as noted in this section, the facts and
circumstances of such violation may be reported to the Department of
Justice for criminal prosecution of the offender.
Sec. 364.302 Injunctions.
(a) The Associate Administrator may file a civil action to enforce
or redress a violation of a commercial motor vehicle safety regulation
or order of the FHWA under 49 U.S.C. chapters 5, 51, 311 (except
sections 31138 and 31139), and 315, in an appropriate district court of
the United States. The court may grant such relief as is necessary or
appropriate, including injunctive and equitable relief and punitive
damages.
(b) Imminent Hazard--Hazardous Materials Regulations. The Associate
Administrator may file a civil action to suspend or restrict the
transportation of hazardous material responsible for an imminent hazard
or to eliminate or ameliorate such a hazard, in an appropriate district
court of the United States. The court may grant such relief as is
necessary or appropriate, including injunctive and equitable relief and
punitive damages. ``Imminent hazard'' means that there is substantial
likelihood that death, serious illness, or severe personal injury will
result from the transportation by motor vehicle of a particular
hazardous material before an administrative proceeding to abate the
risk of harm can be completed.
(c) Imminent Hazard--Federal Motor Carrier Safety Regulations.
Whenever it is determined that a violation of the FMCS poses an
imminent hazard, the Associate Administrator or the authorized delegate
of that official shall order a commercial motor vehicle or the operator
of a commercial motor vehicle out of service, or order an employer to
cease all or part of its commercial motor vehicle operations until such
time as the violations creating the imminently hazardous condition are
satisfactorily abated. ``Imminent hazard'' means any condition of
commercial motor vehicle, driver or commercial motor vehicle operations
which is likely to result in serious personal injury or death if not
discontinued immediately.
(d) The employer or driver shall comply immediately upon the
issuance of an order under paragraph (c) of this section. Opportunity
for review shall be provided in accordance with Sec. 363.110 of this
subchapter. An order to an employer to cease all or part of its
operations shall not prevent vehicles in transit at the time the order
is served from proceeding to their immediate destinations, unless any
such vehicle or its driver is specifically ordered out of service
forthwith. Vehicles and drivers proceeding to their immediate
destinations shall be subject to full compliance with the order upon
arrival.
(e) For purposes of paragraph (d), the term immediate destination
means the next scheduled stop of the vehicle already in motion where
the cargo on board can be safely secured.
Sec. 364.303 Disqualifications.
In addition to any civil or criminal penalties provided for in this
part, operators of commercial motor vehicles who are convicted of
certain offenses may also be disqualified for periods from 60 days to
lifetime, as follows:
(a) Serious traffic violations.
(1) Two serious traffic violations in a 3-year period--sixty days.
(2) Three serious traffic violations in a 3-year period--one
hundred twenty days.
(b) Violations of out-of-service orders.
(1) First violation of operating a commercial motor vehicle during
the period that the operator, operation, or vehicle are placed out of
service--ninety days.
(2) Second violation in a ten-year period of operating a commercial
motor vehicle during the period that the operator, operation, or
vehicle are placed out of service--one to five years.
(3) Third violation or more in a ten-year period of operating a
commercial motor vehicle during the period that the operator,
operation, or vehicle are placed out of service--three to five years.
(4) First violation of operating a commercial motor vehicle
transporting hazardous materials or passengers during the period that
the operator, operation, or vehicle are placed out of service--180
days.
(5) Second violation or more of operating a commercial motor
vehicle transporting hazardous materials or passengers during the
period that the operator, operation, or vehicle are placed out of
service--three to five years.
(c) First violation of driving a commercial motor vehicle under the
influence of alcohol or a controlled substance--at least one year.
(d) First violation of leaving the scene of an accident involving a
commercial motor vehicle operated by the violator--at least one year.
(e) Using a commercial motor vehicle in the commission of a felony
(except a felony described in paragraph (i) of this section--at least
one year.
(f) Second or further violations described in paragraphs (c) and
(d) of this section--lifetime.
(g) Using a commercial motor vehicle in the commission of more than
one felony arising out of different criminal episodes--lifetime.
(h) Any combination of violations described in paragraphs (c)
through (f) of this section--lifetime.
(i) Using a commercial motor vehicle in the commission of a felony
involving manufacturing, distributing, or dispensing a controlled
substance, or possession in a commercial motor vehicle with intent to
manufacture, distribute, or dispense a controlled substance--lifetime.
Subpart D--Monetary Penalty Collection
Sec. 364.401 Payment.
All monetary penalties are due and payable as provided in the final
agency order or settlement agreement disposing of the notice of
violation or claim. Interest will accrue from the date payment was due
and payable after issuance of a final order, and will be added to all
outstanding balances not timely paid.
[[Page 18898]]
Sec. 364.402 Collections.
Unpaid monetary penalties or balances will be pursued aggressively
under the Federal Standards for the Administrative Collection of Claims
at 4 CFR part 102, as adopted by the Department of Transportation and
delegated to the Federal Highway Administration in 49 CFR part 89.
Penalties may be recovered in an action on behalf of the United States
in the appropriate U.S. District Court.
PARTS 385 AND 386 AND Sec. 391.47--[REMOVED AND RESERVED]
2. Chapter III of title 49, CFR, is amended by removing and
reserving parts 385 and 386 and Sec. 391.47.
[FR Doc. 96-10125 Filed 4-26-96; 8:45 am]
BILLING CODE 4910-22-M
