[Federal Register: May 18, 2005 (Volume 70, Number 95)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 386
[FMCSA Docket No. FMCSA-1997-2299]
Rules of Practice
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Final rule.
SUMMARY: FMCSA amends its Rules of Practice for Motor Carrier, Broker,
Freight Forwarder, and Hazardous Materials Proceedings. These rules
increase the efficiency of the procedures, enhance due process and
awareness of the public and regulated community, and accommodate recent
programmatic changes. The changes in these rules apply to all motor
carriers, other business entities, and individuals involved in motor
carrier safety and hazardous materials administrative actions and
proceedings with FMCSA.
DATES: Effective Date: November 14, 2005. Petitions for Reconsideration
must be received by the Agency no later than June 17, 2005. Docket:
Background documents or comments received on the proposed rules may be
accessed electronically at http://dms.dot.gov at any time or in person
at Room PL-401 on the Plaza level of the Nassif Building, 400 Seventh
Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through
Friday, except Federal Holidays.
FOR FURTHER INFORMATION CONTACT: Jackie K. Cho, Office of Chief
Counsel, (202) 366-0834, Federal Motor Carrier Safety Administration,
400 Seventh Street SW., Washington, DC 20590. Office hours are from 8
a.m. to 5:30 p.m., E.T., Monday through Friday, except Federal
holidays. Privacy Act: [[Page 28468]] Anyone is able to search the electronic form of all comments received
into any of DOT's dockets by the name of the individual submitting the
comment (or signing the comment, if submitted on behalf of an
association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (65 FR 19477). This statement is also available at
http://dms.dot.gov. FMCSA may not post copyrighted material on the
electronic docket absent express permission by the copyright holder.
All such material will be made part of the official docket and is
accessible in person as outlined above. Anyone submitting comments to
the docket is responsible for ensuring compliance with all applicable
Legal Basis for the Rulemaking
Congress delegated certain powers to regulate interstate commerce
to DOT in numerous pieces of legislation, most notably in section 6 of
the Department of Transportation Act (DOT Act) (Pub. L. 85-670, 80
Stat. 931 (1966)). Section 55 of the DOT Act transferred to DOT 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.
See 49 U.S.C. 104 (1983). This authority, first granted to the ICC in
the Motor Carrier Act of 1935 (Pub. L. 74-255, 49 Stat. 543), now
appears in chapter 315 of title 49 of the U.S. Code. The regulations
issued under this authority became known as the Federal Motor Carrier
Safety Regulations (FMCSRs), appearing generally at 49 CFR parts 390-
99, including the Federal Motor Carrier Commercial Regulations (FMCCRs)
(49 CFR parts 360-379) and the Hazardous Materials Regulations (HMRs)
(49 CFR parts 171-180). The administrative powers to enforce chapter
315 were also transferred from the ICC to the DOT in 1966, and appear
in chapter 5 of title 49 of the U.S. Code. The Secretary of DOT
delegated oversight of these provisions to the Federal Highway
Administration (FHWA), the predecessor Agency to FMCSA.
Between 1966 and 1999, a number of statutes were added to FHWA's
authority. For a more detailed statutory background, see the preamble
to the 1996 Notice of Proposed Rule Making (1996 NPRM) (61 FR 18866-67
(April 26, 1996)). The various statutes authorize the enforcement of
the FMCSRs and HMRs and provide both civil and criminal penalties for
violations. In practice, when circumstances dictate an enforcement
action be instituted, civil penalties are more commonly sought than
criminal sanctions. The administrative rules in this rulemaking apply,
among other things, to the administrative adjudication of civil
penalties assessed for violations of the FMCSRs, FMCCRs and HMRs.
The Motor Carrier Safety Improvement Act of 1999 (MCSIA) (Pub. L.
106-159, 113 Stat. 1748) established FMCSA as a new operating
administration within DOT, effective January 1, 2000. The staff and
responsibilities previously assigned to FHWA, and reassigned to a new
Office of Motor Carrier Safety within the Department, are now assigned
On April 29, 1996, FHWA published the 1996 NPRM for Rules of
Practice for Motor Carrier Proceedings; Investigations;
Disqualifications and Penalties (61 FR 18865). In the 1996 NPRM, FHWA
proposed eliminating the rules of practice contained in part 386 and
replacing them with new rules of practice in a new part 363.
The 1996 NPRM was the first effort by FHWA to rewrite
comprehensively its rules of practice for motor carrier administrative
proceedings since 1985. The 1996 NPRM was intended to be the forerunner
of a revision of the FMCSRs following the completion of a zero-based
review of those regulations then underway in the Agency. The proposal
would have placed the new regulations in previously unused parts of
chapter III of title 49 of the Code of Federal Regulations (CFR)
reserved for the FMCSRs. The proposed rulemaking was intended to 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
On October 21, 1996, FHWA published a Supplemental Notice of
Proposed Rulemaking (SNPRM) (61 FR 54601) to broaden the scope of the
1996 NPRM to include proceedings arising under section 103 of the
Interstate Commerce Commission Termination Act of 1995 (ICCTA) (Pub. L.
104-88, 109 Stat. 803, 852). In the SNPRM, FHWA proposed to adopt the
term ``Commercial Regulations'' to refer to requirements transferred
from the former ICC. The SNPRM also extended the comment period of the
previous 1996 NPRM to November 20, 1996. FHWA received 127 comments in
response to the 1996 NPRM. No comments were received in response to the
SNPRM. Comments relevant to those portions of the 1996 NPRM addressed
in the recent SNPRM were considered in the Discussion of Comments in
FMCSA's October 29, 2004 SNPRM (October 2004 SNPRM).
On February 16, 2000, FMCSA issued technical amendments to part 386
and incorporated enforcement proceedings for Commercial Regulations
into part 386 (65 FR 7753). This final rule was intended to ensure all
civil forfeiture and investigation proceedings instituted by FMCSA were
governed by consistent procedures. In addition, FMCSA adopted some
technical amendments which reflected organizational changes, removed
obsolete statutory citations, and incorporated statutory changes which
affected the civil penalty schedule.
On October 20, 2004, FMCSA published a SNPRM requesting comments
proposed to further revise the rules of practice (69 FR 61617). The
effective date of this final rule is 180 days following the date of
publication in the Federal Register. Therefore, the revised rules of
practice will apply to all matters where a Notice of Claim or Notice of
Violation is served on or after the effective date.
Discussion of Public Comments
In response to the October 20, 2004 SNPRM, five comments were
submitted to the docket. Commenting were James P. Lamb (Mr. Lamb), a
non-attorney practitioner representing motor carriers; the American
Trucking Associations (ATA); Mary Helen Delgado (Ms. Delgado), an
attorney practicing motor carrier law; the Association for
Transportation Law, Logistics and Policy (ATLLP); and the Scapellato
Group, Inc. (SGI), a law firm practicing motor carrier law. The
comments are addressed below, together with FMCSA's responses on the
Section 386.3--Separation of Functions
Ms. Delgado questioned whether attorneys in the Office of Chief
Counsel act as both enforcement counsel and advisory counsel to the
Agency decisionmaker. SGI commented that because the Assistant
Administrator also serves as the Chief Safety Officer, serious
questions arise regarding whether the Assistant Administrator can
render an impartial decision over issues arising from the very policy
and standards the Chief Safety Officer has established.
FMCSA Response. We have added Sec. 386.3 to clarify how functions
are separated within the Agency, as well as within the Office of Chief
Counsel. This added text makes the Agency's current practice more
transparent as to how the Agency complies with the Administrative
Procedure Act (APA) regarding the separation of functions. The new text
states that prosecutorial functions are performed by attorneys in the
Enforcement and Litigation Division under oversight of the Assistant
Chief Counsel of the Division and the Deputy Chief Counsel. These
attorneys do not advise Agency decisionmakers. Rather, the Chief
Counsel and the Chief Counsel's immediate staff, including Agency
Adjudications Counsel, advise the Assistant Administrator in
enforcement actions. This separation of functions is consistent with
the APA and mirrors practices in effect at other federal agencies.
The Agency decisionmaker determines whether the Agency is fairly
and impartially carrying out the policies and procedures established.
As such, knowledge of those procedures and policies is well served.
Since all field enforcement personnel report to the Associate
Administrator for Enforcement and the Assistant Administrator is not
involved in the enforcement process directly, the arrangement preserves
the integrity of the proceeding and complies with the APA.
Additionally, parties may always raise case-specific conflict issues.
Section 386.4 Appearances and Rights of Witnesses--an FMCSA "Bar"
Both Mr. Lamb and ATLLP recommended that FMCSA adopt standards for
non-attorney practitioners and certify individuals who meet those
standards. Mr. Lamb commented that doing so would "protect the public
from unqualified representation, spare FMCSA unnecessary administrative
problems, and protect the interests of qualified professionals who are
operating in the industry."
ATLLP commented that all respondents should be represented in all
formal proceedings by an attorney or FMCSA practitioner. Thus, ATLLP
continued, certification of motor carrier safety practitioners would
assure the industry it is receiving advice from a knowledgeable source,
which will also foster efficient prosecution of enforcement actions
within the standards of due process. To implement such a
recommendation, ATLLP offered its resources to set up and administer a
program for the certification and continuing education of FMCSA
FMCSA Response. Carriers may select the representative of their
choice in FMCSA proceedings. Creating an FMCSA practitioner "bar"
would limit a carrier's option and perhaps impose additional economic
expense. The Agency believes the potential benefit to the carrier or
Agency does not currently justify the resources and expenses associated
with developing and managing such a system.
Proposed Sec. 386.6(b)--Service
The ATA commented that the Agency should include e-mail as an
acceptable form of service.
FMCSA Response. Although the Agency notes the wider acceptability
of e-mail, after consulting with information technology staff, it has
been determined that the infrastructure necessary to ensure an adequate
level of security measures and technical support are not currently
available. Moreover, the costs associated with implementing such a
system currently outweigh the potential benefits. As technological
capabilities evolve, the issue may be revisited.
Ms. Delgado commented on the lack of clarity in this provision,
especially with regard to when a default is found and a Notice of Final
Agency Order is issued for failure to file a timely reply.
FMCSA Response. This provision has been revised to clearly convey
the effect of a default and when a Final Agency Order will be issued as
a result of a respondent's failure to reply to the Notice of Claim.
Please see the detailed discussion in the Section-by-Section Analysis
for Sec. 386.14.
Ms. Delgado commented that the regulation states the Assistant
Administrator can review a default only where the respondent first
demonstrates excusable neglect, a meritorious defense, or due
diligence. This procedure permits the Agency to default a respondent,
then decide whether the default may be reviewed. Ms. Delgado expressed
concern this would allow Agency Counsel to have both prosecutorial and
decision-making functions and that the lifting of the default should be
separated from the initial decision as to whether the default should be
reviewed. Instead, Ms. Delgado suggested where there is excusable
neglect, a meritorious defense, or due diligence, the Assistant
Administrator should be able to review a default under any
circumstances, and the default will be vacated only where a respondent
can show excusable neglect, a meritorious defense, or due diligence.
FMCSA Response. The section has been revised to clarify the
original intent of the Agency which is in fact to allow, upon petition,
the review of default by the Assistant Administrator under any
circumstances and only those demonstrating excusable neglect, a
meritorious defense, or due diligence will be vacated.
Informal Hearings--Proposed Sec. 386.16
The ATA commented that the Agency should appoint a neutral third-
party mediator to preside over informal hearings and delete the waiver
of formal hearing requirement when a carrier opts for informal hearing.
FMCSA Response. The purpose of the informal hearing option is to
provide respondents with an opportunity to contest alleged violations
in an efficient, often less costly proceeding. The use of a neutral
third party mediator in an informal hearing would not serve this
purpose effectively. While a mediator may facilitate negotiations in a
matter, the goal of an informal hearing is to more quickly resolve a
matter based on the arguments submitted in person by both parties.
As to ATA's comment regarding the waiver of a formal hearing,
please see the detailed discussion in the Section-by-Section Analysis
for Sec. 386.16. The Agency believes the option for requesting an
informal hearing versus a formal hearing is best left to the discretion
of individual respondents based upon which option best suits their
Proposed Sec. 386.16(c)(4)(i)(B)--Informal Hearing Denied
Ms. Delgado commented that the section is confusing and needs to be
clarified, citing the difficulty in tracking the time periods for
response and differentiating which document is due at what time.
FMCSA Response. In response to comments, the Agency has revised
this provision, finalized as Sec. 386.16(b)(4)(A)(i), to clarify the
procedural requirements of all parties in the event an informal hearing
is denied. Please see the detailed discussion of Sec. 386.16 in the
Section 386.31 Service--Official Notice
Ms. Delgado commented that there is no provision for the Agency
decisionmaker to notify the parties that she/he intends to take
FMCSA Response. The provision has been re-inserted into the final
SGI recommended that Sec. 386.46 (Depositions) be revised to
require the Agency to designate a headquarters official to testify on
behalf of the Agency on matters regarding FMCSA policies, procedures,
practices, and other relevant matters similar to the designation
provided in Rule 30(b)(6) of the Federal Rules of Civil Procedure. This
commenter also recommended FMCSA institute administrative procedures to
enforce subpoenas or resolve other discovery requests.
FMCSA Response. Given FMCSA is a large agency with almost 1,200
employees, coupled with the acknowledgement that the facts and issues
in each case differ, no single Agency official could possibly have the
knowledge to address every possible policy, procedure, and practice
issue which might arise in enforcement actions. The Agency therefore
believes the better practice is to let parties seek the testimony of
Agency officials as appropriate based upon the issues involved in the
With regard to SGI's suggestions for delineating procedures for
resolving discovery disputes, including enforcement of subpoenas, the
Agency does not believe it appropriate for inclusion in the rules of
practice. Because discovery does not begin until a matter is pending
before the Assistant Administrator or referred to the Office of
Hearings, the resolution of discovery disputes are within the
discretion of the presiding decisionmaker and thus, a mechanism to
resolve discovery disputes is at all times available to the parties.
Section 386.42--Written Interrogatories to Parties and Sec. 386.43--
Production of Documents and Other Evidence
SGI recommended the Agency create a legal ombudsman position to
resolve costly issues of discovery. This individual should be given
full power and authority to effectively resolve delay.
FMCSA Response. Creating such provisions in the regulations is not
appropriate, as each civil penalty proceeding is different. SGI's
recommendations are essentially seeking intervention and oversight by a
Court Master. As stated in the previous response, discovery disputes
are within the purview of the presiding decisionmaker and the level of
detail that SGI seeks in the regulations lie beyond the scope of the
rules of practice.
Section 386.42(c)--Written Interrogatories to Parties
Ms. Delgado commented the following provision needed clarification,
as it appears to state the Agency will serve written interrogatories
with the notice of claim: "The party to whom the interrogatories are
directed shall serve the answers and any objections within 30 days
after the service of the interrogatories, except that a respondent may
serve upon claimant its answers or objections within 45 days after
service of the notice of claim."
FMCSA Response. The Agency agrees and the phrase "except that a
respondent may serve upon claimant its answers or objections within 45
days after service of the notice of claim" has been eliminated from
the final rule.
Ms. Delgado commented that limiting discovery to commence upon
referral of the matter to the Office of Hearings misinterprets 49
U.S.C. Sec. 502(e)(1), as it provides, "In a proceeding or
investigation, the Secretary may take testimony of a witness by
deposition and may order the witness to produce records. A party to a
proceeding or investigation pending before the Secretary may take the
testimony of a witness by deposition and may require the witness to
produce records at any time after a proceeding or investigation is at
issue on petition and answer." Ms. Delgado posits that civil penalty
proceedings are commenced by the issuance of a notice of claim and
parties must be allowed to take a deposition of a witness "at any
time" after the issuance of the notice of claim, and not subsequent to
the appointment of an Administrative Law Judge.
FMCSA Response. The Agency interprets the language of Sec.
502(e)(1), "at any time after a proceeding or investigation is at
issue on petition and answer," (emphasis added) to mean that discovery
commences after issuance of a Notice of Claim, service of the reply,
and when the matter is pending before the Assistant Administrator or
referred to the Office of Hearings. The issuance of a Notice of Claim
alone is premature for the commencement of discovery, and cannot
constitute a period of petition and answer, as there has been no
opportunity for a respondent to answer the Notice of Claim. The term
"at issue" is generally accepted in the legal community to be the
point in litigation where initial and responsive pleadings such as
claims and responses thereto have been served.
Section 386.54--Administrative Law Judge
Ms. Delgado commented on the changes proposed in this section,
especially the deletion of language in current Sec. 386.54(b). Ms.
Delgado suggested the regulation provide an Administrative Law Judge
with the powers provided under the APA to regulate the conduct of the
FMCSA Response. The substance of the provision has been reinserted
into the final rule. For a detailed discussion, please refer to the
Section-by-Analysis under Sec. 386.54, infra.
Section 386.64--Petitions for Reconsideration
ATA commented the Agency should permit a complete stay of a Final
Agency Order while a petition for reconsideration is pending.
FMCSA Response. This change has been incorporated into the final
The majority of the proposed changes to this SNPRM are discussed in
detail in the Section-by-Section Analysis portion of this preamble.
Minor revisions have been made throughout the final rule for clarity,
readability, or consistency, and such changes will not be discussed.
This Section-by-Section Analysis describes the changes to current
Part 386 as implemented by this final rule, and provides justification
for the changes made.
Subpart A--Scope of Rules; Definitions and General Provisions
The title of Subpart A is revised to Scope of Rules; Definitions,
and General Provisions to reflect the inclusion of several preliminary
Section 386.1 Scope of Rules in This Part
FMCSA makes no changes to the language in current Sec. 386.1.
Section 386.2 Definitions
Based on internal Agency considerations, and to provide clarity in
the use of terms throughout this Part, FMCSA finalizes Sec. 386.2 with
the following revisions. The term Civil forfeiture proceedings is
revised as Civil penalty proceedings to make the use of the term
consistent throughout revised Part 386. In addition, the statutory
citations provided in the definition of Civil penalty proceedings have
been removed, thus avoiding administrative updates to Part 386 each
time new legislation is passed. The term Dockets has been added to this
section because it is used throughout this Part, and the definition
reads as all documents filed [[Page 28471]] before an Agency decisionmaker must be submitted to the Department's
docket management system. The term Commercial regulations has been
revised to Federal Motor Carrier Commercial Regulations (FMCCRs) to
conform to usage in other parts of the regulations. The definitions of
Interstate commerce and State were removed from this section as
unnecessary because the terms are not used in Part 386.
The revised definition of Default now accurately reflects all
possible instances in which a default may occur. The SNPRM proposed
definition only provided for a failure to reply or provide an adequate
reply in the time required; however, a default can also be found where
a carrier has omitted or failed to perform a legal duty within a
specified period. Whether or not a reply is adequate is a determination
for the Assistant Administrator, and thus, a default issued by the
service centers will not be based on an evaluation of the adequacy of a
The definition of Field Administrator is added to this section
because the Field Administrator of each regional service center is
responsible for prosecuting civil penalty proceedings before the Agency
The revised definition of Final agency order now more accurately
provides for all possible instances in which a final agency order would
apply. The final agency order is a crucial benchmark in administrative
adjudication, as it constitutes the final agency action of which a
petitioner may seek review. The existing definition in current Sec.
386.2 does not fully capture the situations in which a final agency
order will result. Moreover, the definition of final agency order is
updated to reflect revisions to other sections in this Part.
The substantive definition of Formal hearing has not changed;
however, the language was reworked for greater readability. The
definition of Informal hearing is revised to include more specificity
to the process. For example, discovery is not permitted and the
informal hearing will not have a transcribed record. The Hearing
Officer's written report and recommendations will serve as the record
of the proceedings. Therefore, the revised definition highlights the
procedural difference in informal hearings.
The definition of Notice of Claim (NOC) was modified to reflect
that it is the initial document issued by the Agency to propose a civil
penalty for alleged violations. The Agency wanted to emphasize the
stage in the proceedings in which an NOC is issued and fine-tune the
language to reflect the revisions made throughout this Part.
The definition of Notice of Violation was revised to reflect the
current reference to the FMCCRs. The definition of Service was removed
because its definition is implicit in Sec. 386.6 and need not be
defined separately in this section.
The definition of Submission of written evidence without hearing
was modified to reflect the change in terminology from "ormal oral
hearing" and "informal oral hearing" as proposed in the October 2004
SNPRM, in favor of "formal hearing" and "informal hearing." The
definition was also revised to read as a submission, rather than as a
"right of a respondent to present," because both the Field
Administrator and the respondent may submit written evidence without a
Section 386.3 Separation of Functions
FMCSA adds Sec. 386.3 to delineate the separation of functions
within the Office of Chief Counsel. Attorneys in the Enforcement and
Litigation Division serve as enforcement counsel in the prosecution of
all cases brought under Part 386, and report to the Assistant Chief
Counsel for Enforcement and Litigation and the Deputy Chief Counsel.
Attorneys serving as Adjudications Counsel as well as the Special
Counsel to the Chief Counsel, advise the Agency decisionmaker regarding
cases brought under Part 386, and report to the Chief Counsel. The
inclusion of such a provision in the regulations ensures fairness to
the motor carrier, by clearly defining the relevant functions of the
divisions within the Office of Chief Counsel. By separating the
attorneys prosecuting enforcement actions from the attorneys advising
the Agency decisionmaker, a motor carrier is assured that those who
prosecute civil penalty cases are separate from those who advise the
Agency decisionmaker. References to the "staff of the Chief Counsel"
are deleted as vague, and more specific terms for the separation of
functions by division were added to clarify Sec. 386.3(c) and (d).
Section 386.4 Appearances and Rights of Parties
FMCSA adds Sec. 386.4, which incorporates part of existing Sec.
386.50(a) in its entirety and the additional procedural requirement for
representatives to file a notice of appearance in the action before
participating in the proceedings. Including such a requirement will
promote administrative efficiency, as all parties will be uniformly
notified of representation, and thus ensure that all documents are
served on the correct parties in a timely fashion. In addition, an
attorney or representative must file a timely notice of all changes in
contact information, as outdated information prevents the proper
service of all documents, including Orders, in a proceeding.
A new paragraph (c) has been added to this section. It is an
administrative provision to clarify that a separate notice of
appearance must be filed in each case, thus preventing a representative
from filing a single appearance to apply to numerous cases.
Section 386.5 Form of Filings and Extensions of Time
FMCSA adds Sec. 386.5, which incorporates current Sec. 386.33,
Extension of time, and also establishes length and content limits, and
other administrative requirements for filing documents. Based on
internal Agency feedback, and in an effort to facilitate the processing
of all documents filed, a new paragraph (a) is added to specify all
filings must be typed or legibly handwritten.
A new paragraph (b) is added, requiring a short factual statement
and the relief requested in each document filed. This provision will
also enable the Agency to process enforcement cases more efficiently
because the issues involved and the relief sought will be known from
the outset, thus less time will be spent managing documents lacking
clarification. This paragraph also places parties on notice that all
documents filed in the proceedings will be publicly available in the
Docket, unless otherwise ordered.
Paragraph (f) has been modified for greater readability and
clarity, and now includes a reference requiring all documents be filed
and served in accordance with Sec. Sec. 386.6 and 386.7, with a copy
served on the presiding decisionmaker over the proceeding at the time
of the filing. A general reference to the presiding decisionmaker
conveys the intent of the regulation, without need to specify in
separate paragraphs, every procedural scenario before each Agency
decisionmaker in which a copy of motion for extension of time must be
Section 386.6 Service
FMCSA adds Sec. 386.6 as proposed in the October 2004 SNPRM, with
minor revisions. Paragraph (a) has been revised to reflect more
accurate terminology by replacing "registered agent" with
"designated agent for service of process," because the term
registered agent carries independent legal [[Page 28472]] significance which does not apply to these rules. Therefore, the term
"designated agent for service of process" was inserted in order to
describe a party's attorney of record or representative as reflected in
a Sec. 386.4 filing or a BOC-3 licensing filing to receive service.
Section 386.6 incorporates the substance of Sec. 386.31(b), and adds
the following elements: (1) Specifies that the Agency must ensure
service of the notice of claim; (2) includes commercial delivery
services and facsimile (with consent of the parties) as additional
options for effecting service; and (3) specifies other administrative
provisions regarding service.
Section 386.7 Filing of Documents
FMCSA adds Sec. 386.7 as proposed in the October 2004 SNPRM, with
some minor revisions. After internal Agency consideration, the need to
specify clearly when and how to tender a document for filing with U.S.
DOT Dockets was recognized for inclusion in the final rule. It is also
important to distinguish the difference between filing and serving a
document. To be recognized on the record, and officially filed before
the Agency decisionmaker, a document must be filed with the Docket
Management System. The same document must then be sent to all parties
listed on the certificate of service, which constitutes service.
Section 386.8 Computation of Time
FMCSA adds Sec. 386.8 as proposed in the October 2004 SNPRM. The
provision contains current Sec. 386.32 in its entirety, which has been
moved to Subpart A to locate it with other preliminary procedural
Section 386.11 Commencement of Proceedings
FMCSA adds Sec. 386.11 as proposed in the October 2004 SNPRM with
one minor revision and one clarification. Driver qualification
proceedings under Sec. 386.11(a) remain unchanged. The Notice of
Investigation has been eliminated, and paragraph (b) now adopts the
Notice of Violation (NOV). FMCSA will use the NOV as a means of
notifying any person subject to the rules in this part that the Agency
has received information indicating violations of the FMCSRs, HMRs, or
FMCCRs, without initiating a civil penalty proceeding. This information
may come from investigations, audits, complaints, or any other source
The NOV will not be used to propose civil penalties. Rather, the
goal of utilizing the NOV, in keeping with the overall mission of the
Agency, is to gain compliance. The NOV offers a motor carrier an
opportunity to take corrective action or cure other alleged violations
before the Notice of Claim (NOC) stage is reached. If such deficiencies
have not been addressed to the satisfaction of the Agency, then the
matter may proceed to the issuance of a NOC. In the final provision the
Agency clarified that a NOV is not a prerequisite to the issuance of a
NOC. The use of the NOV is solely within the discretion of the Agency.
Therefore, a NOV need not be issued prior to a NOC.
The content of current Sec. 386.11(b) is redesignated as paragraph
(c) of this section. Minor revisions have been made for simplicity and
clarity. Instead of the term "amount being claimed," of existing
386.11(b)(1)(iii), has been rephrased as "proposed civil penalty" in
386.11(c)(1)(iii) to more accurately capture the legal status of a
civil penalty when referenced in a NOC.
Section 386.12 Complaint
FMCSA removes paragraphs (a) and (b) of the existing section, and
redesignates paragraphs (c)-(e) as (a)-(c). This change is adopted to
make it consistent with the elimination of the notice of investigation
of Sec. 386.11. With the elimination of the notice of investigation,
existing Sec. 386.12(a) and (b) are no longer necessary, as they
govern the process for initiating and acting on a notice of
investigation. With this change, the newly redesignated paragraph (b)
was updated to reflect the correct internal citations. An existing
error in the spelling of "frivolous" in paragraph (b) was also
corrected for the final version of this section.
Section 386.13 Petition to Review and Request for Hearing: Driver
FMCSA makes no changes to the language in current Sec. 386.13.
Section 386.14 Reply
The title of this section is revised to Reply. This section is
finalized with some revisions. The title of paragraph (b), which
provides the choices for action once a motor carrier is served with a
NOC, is now called "Options for reply" as opposed to "Contents of
reply," because this is a more accurate description of the provision.
FMCSA is finalizing Sec. 386.14(a) which changes the time period
for a reply from 15 days to 30 days, as proposed in the October 2004
SNPRM. Comment was sought from the public regarding this departure in
the interpretation of 49 U.S.C. Sec. 521(b)(1)(A), which states: "The
notice shall indicate that the violator may, within 15 days of service,
notify the Secretary of the violator's intention to contest the
matter." No comments in response to this request were received.
Upon re-examination of this section for the October 2004 SNPRM, the
Agency determined the permissive nature of the word "may" in the
statute allows the Agency to expand the time period for a respondent to
contest a claim, and therefore, the 15-day period may be expanded to 30
days to allow for sufficient time to reply.
Paragraph (b) provides the contents of a reply to a NOC. Respondent
may choose to pay the civil penalty, request administrative
adjudication, or seek binding arbitration. The notable revision in this
paragraph since the proposal is the removal of settlement negotiations
as a formal option to a reply to the NOC. Settlement may occur at any
time during the civil penalty proceeding at the discretion of the
parties. Moreover, because negotiations may be conducted simultaneously
with the other options for a reply, it was decided the stand-alone
option to proceed was not necessary. Should settlement negotiations
reach a stalemate, it is vital to the efficiency of the proceeding to
utilize other options for contesting the claim during the same period
so as not to delay the resolution of a NOC.
Paragraph (c) provides for what occurs in the event of a
respondent's failure to reply within the 30-day period. In such a case,
the Field Administrator may issue a document called a "Notice of
Default and Final Agency Order." The introduction of the Notice of
Default and Final Agency Order is a new revision in the final rule.
Upon consideration of how best to notify respondents of their failure
to reply, in conjunction with the administrative need to note a default
for subsequent stages of a civil penalty proceeding, FMCSA has devised
the Notice of Default and Final Agency Order to specify when a NOC will
become the Final Agency Order. The date on which a Final Agency Order
is effective dictates the timing of subsequent action by both the
Agency and the respondent. Therefore, Sec. 386.14(c)(1) specifies that
in the event of a default, the Final Agency Order becomes effective
five days after the service of the Notice of Default and Final Agency
Order. This document conveys the legal effect of a failure to reply
clearly to the respondent, and provides a date certain from which a
petition for reconsideration or an appeal of final agency action may be
In the past, often when a respondent failed to reply, the NOC
became the Final Agency Order, but the respondent [[Page 28473]] then filed a petition for reconsideration under Sec. 386.64. As a
result, the substantive reply is submitted for the first time as a
basis for reconsideration. Paragraph (c)(2), and Sec. 386.64(b)
clearly define what may be considered in a petition for reconsideration
when a respondent has failed to reply to the NOC in the time allotted.
This provision puts respondents on notice that if they fail to reply
during the 30-day period, a petition for reconsideration does not serve
as a second opportunity to respond to the alleged violations.
Lastly, under Sec. 386.14(c), paragraph (c)(3) notifies
respondents that failure to pay the civil penalty as directed in the
Final Agency Order will trigger an additional civil penalty under
Subpart G of Part 386.
FMCSA is finalizing Sec. 386.14(d), Request for administrative
adjudication, with some minor modifications from the proposed language.
A request for administrative adjudication is the means by which a
respondent may contest the alleged violations in a NOC. The final
provision now includes a statement clarifying that once an
administrative adjudication option is elected, it is binding on the
respondent to promote the efficiency and predictability of the
enforcement process. We also included a requirement that the reply be
in writing. This change was made to prevent respondents from assuming
that oral communications with the service centers or other FMCSA staff
constitute a reply within the meaning of the regulation. In order to
avoid a default, a respondent must submit a timely written reply
stating the grounds for disputing the claim.
A reply must contain certain elements. The first requirement for a
reply requesting administrative adjudication is a statement in which
respondent must admit or deny each and every allegation in the NOC. Any
allegation that is not specifically denied will be considered admitted.
A one-sentence denial in response to all allegations, e.g., "I deny
all allegations" or "I am not guilty," or other blanket denial of
the NOC, without addressing each of the alleged violations one by one
will not be accepted as a proper reply, and may be considered a default
by the Assistant Administrator if the Field Administrator makes such a
motion. For clarity, the term "Claimant," as proposed in the October
2004 SNPRM, is replaced throughout the final rule with the term "Field
Administrator," because claimant is a confusing term in the
The second requirement for a reply requesting administrative
adjudication is a statement of all known affirmative defenses, under
Sec. 386.14(d)(1)(ii). Affirmative defenses are different from
admitting or denying the truth of the alleged violation. Rather,
affirmative defenses are responses attacking the legal right of the
Agency to bring the civil penalty proceeding. Therefore, attacks on the
jurisdiction, limitations, or procedure of the civil penalty
proceedings are affirmative defenses. Any such defenses must be stated
at the outset in the reply.
The last requirement for a reply requesting administrative
adjudication, Sec. 386.14(d)(1)(iii), has been revised from the
proposed provision to clarify that respondents may choose only one of
the three administrative adjudications options provided. Thus, a
sufficient reply requesting administrative adjudication must offer
three basic points of information: (1) Admit or deny the substance of
the allegations; (2) list any known affirmative defenses; and (3)
choose between an informal hearing, formal hearing, or proceed on the
papers and submit written evidence.
Section 386.16 Action on Replies to the Notice of Claim
The title of this section is revised from "Action on petitions or
replies" to "Action on replies to the notice of claim." Upon further
consideration of the functionality of this provision, certain portions
of this provision have been revised from the proposed version to
provide all parties with sufficient time to respond.
As discussed in the analysis of Sec. 386.14, the stand-alone
option of settlement negotiations has been eliminated from the reply
process. Although parties are free to discuss settlement throughout a
civil penalty proceeding, a separate time period in which only
settlement negotiations will occur will no longer serve as an option
for a reply. Accordingly, the procedures set forth in proposed Sec.
386.16(a) are deleted.
Submission of written evidence without a hearing: First, in
requests to submit written evidence without a hearing, now under
finalized Sec. 386.16(a), Agency Counsel is given 60 days to serve all
written evidence following service of the respondent's reply, as
opposed to the proposed 40 days. The period for submission of evidence
has been extended to accommodate the variety of complexity in civil
penalty proceedings, thus ensuring all submissions have sufficient time
to be thoroughly researched, investigated, and prepared. This extra
time also allows for settlement negotiations to continue should the
parties choose. Accordingly, Sec. 386.16(b) extends the period for
respondent's submission of written evidence and argument to 45 days,
instead of the proposed 30 days. Parties are also reminded all written
evidence must be served on the Assistant Administrator in accordance
with Sec. Sec. 386.6 and 386.7. Agency Counsel will then have 20 days
to reply to respondent's submission, an extension from the proposed 15-
day time period.
Requests for hearing: The final version of Sec. 386.16(b) provides
for hearings generally. The Assistant Administrator will determine
whether a dispute of material fact is at issue in the matter, and if
so, the matter will be referred to the Office of Hearings. If a dispute
of a material fact is not at issue, the Assistant Administrator may
issue a decision based on the written record.
The final version of Sec. 386.16(b)(2) changes the time period for
the Field Administrator to consent or object to a hearing request from
the proposed 20-day period to 60 days. In addition, the Field
Administrator must either consent or object with basis to a hearing
request. An objection with basis means an objection qualified by a
simple summary of the basis of the objection. Thus, the time period in
which to respond to a hearing request has been extended to allow
sufficient time to provide a basis of objection. Also included in the
final Sec. 386.16(b)(2) is a provision notifying the parties that
failure to serve an objection within the 60-day period may result in
automatic referral to the Office of Hearings. This provision was
included to provide all parties with a reliable indicator of timely
proceedings, and prevent cases from falling through the cracks due to
lags in procedural responses.
Requests for formal hearing: Specific provisions governing requests
for a formal hearing, or referral to the Office of Hearings for
assignment to an administrative law judge, have been modified to
simplify the process, The proposed version of 386.16(b)(2) and (3) had
provided 20 days for the Field Administrator to serve a notice of
consent or objection, in effect a yes-no response, and then an
additional 60 days to file a motion for final agency order. Respondent
was then given 30 days to respond to the motion. In the finalized
version of Sec. 386.16(b)(3), the 60-day period for the Field
Administrator to file a motion for final agency order is removed. The
Agency believes the introduction of an objection with basis will serve
as a reasonable indicator of the Agency's relevant issues in the
matter, and thus, the need for the imposition of a strict time period
to file such a motion is not warranted.
Moreover, if a motion for final agency order is delayed for an
inordinate amount of time after service of the objection with basis,
respondent may file an appropriate motion before the Assistant
Requests for informal hearing: FMCSA adds Sec. 386.16(b)(4) with
some revisions for clarity, and another change in time periods. An
informal hearing may serve as a speedier alternative to the formal
hearing process, as it requires less in the way of written submissions
independent of the NOC and the respondent's reply. Section
386.16(b)(4)(A) is finalized as proposed, with the exception of
redesignating Sec. 386.16(b)(4)(i) to Sec. 386.16(b)(4)(A)(i) for
clerical consistency. In this streamlined process, a Field
Administrator may object to a request for an informal hearing by
serving an objection with basis, the NOC, and respondent's reply on the
Assistant Administrator, who will grant or deny the request.
As provided in finalized Sec. 386.16(b)(4)(A)(i), if an informal
hearing request is granted, a hearing officer will be assigned to the
matter. No discovery will be conducted, nor will further motions be
considered. All parties may present written and oral evidence, and the
hearing officer will issue a report of the findings of fact and a
recommended disposition in the case to the Assistant Administrator. The
report will serve as the sole written record of the hearing. After
consideration of the hearing officer's report, the Assistant
Administrator will issue a Final Agency Order or other such order as
deemed appropriate. Although participating in an informal hearing
waives a respondent's right to a formal hearing, this option may serve
the needs and interests of respondents to participate in an adversarial
process that may offer a quicker resolution, a minimum of additional
written submissions, in an informal, simplified proceeding. Respondents
are not obligated to choose the informal hearing; the availability of
such an option, however, may be beneficial to a respondent's interest.
In the event an informal hearing is denied, the Field Administrator
must serve a motion for final agency order, unless otherwise directed.
As finalized, Sec. 386.16(b)(4)(A)(ii) differs from the proposed
version by eliminating the period during which the Field Administrator
must file a motion for final agency order. However, once the Field
Administrator files such a motion, respondent's response period has
been increased to 45 days. The time periods were revised to bring
uniformity to the time periods established throughout this part.
Moreover, the mere fact that an informal hearing is denied does not
indicate the complexity of a particular case, and pleadings in such
cases should not be given less preparation time.
The finalized Sec. 386.16(b)(4)(A)(iii), which remains unchanged
from the proposed version, provides the Assistant Administrator with
the discretion to refer any matter for formal or informal hearing, even
in cases where respondent may seek only an informal hearing. This
provision is important because it allows flexibility of procedures for
the agency decisionmaker to resolve a matter based on the changing
needs of each case.
Section 386.17 Intervention
FMCSA makes no changes to the language in current Sec. 386.17.
Section 386.18 Payment of the Claim
Current part 386 does not specifically address payment of claims.
Therefore, FMCSA is finalizing Sec. 386.18 with a few important
clarifications which were not present in the proposed provision.
As per Sec. 386.18(a), payment of the full amount proposed before
a Final Agency Order is issued will resolve the claim. The agency has
clarified Sec. 386.18(b) in order to reflect no written reply is
necessary if a respondent chooses to pay the full amount proposed
within the 30-day period for replies. The finalized provision also
specifies that payment must be served on the Field Administrator, i.e.,
by any of the means listed in Sec. 386.6, and not "postmarked." If,
however, a respondent has submitted in writing that it intends to pay
the civil penalty, but fails to do so within the 30-day period, failure
to serve payment will constitute a default and may result in the NOC
becoming the Final Agency Order.
Finally, because payment is presumed to constitute admission,
respondents have an opportunity to note their objections for the
record. Therefore, Sec. 386.18(c) has been revised since proposed, to
specify that if a respondent objects to the admission of all facts
alleged in the NOC upon payment, such objection must be submitted at
the time of payment, or is otherwise waived.
Section 386.18(c) is also important because future Agency
enforcement actions may be based on, and certain consequences may flow
from, prior and continued violations of the safety regulations.
Therefore, compliance with paragraph (c) will identify the implications
of prior enforcement actions as related to maximum civil penalty cases
under section 222 of the MCSIA. See 49 U.S.C. 521, note.
Subpart C--Consent Orders
The title of Subpart C is revised to Settlement Agreements.
Section 386.21 Compliance Order
Current Sec. 386.21 is deleted in its entirety, as it pertains to
the notice of investigation, which has been eliminated from the
Section 386.22 Settlement Agreements and Their Contents
The title of this section is revised to "Settlement agreements and
their contents" because it is a more accurate description of the
provision. This provision is finalized with revisions from the proposed
version. The parties to a settlement agreement are the respondent motor
carrier, and the Field Administrator of the service center from which
the NOC originated. Therefore, Sec. 386.22(a)(1) has been corrected to
reflect that the Field Administrator or his/her designee is the proper
Agency representative to execute settlement agreements. The contents of
a settlement agreement are set forth in Sec. 386.22(1)(i)-(vii), with
the revision of Sec. 386.22(a)(1)(vi) to include a provision regarding
non-monetary terms of an agreement, such as holding a civil penalty in
abeyance while compliance is achieved, or maintaining a satisfactory
rating for a specified period of time. If a respondent fails to pay or
comply with the terms of the agreement, the civil penalty may be
reinstated and any deductions in the original amount proposed will
become due immediately. Finally, the Agency finalizes Sec.
386.22(a)(1)(vii) as proposed, and the settlement agreement becomes the
Final Agency Order in the proceeding.
As noted above, settlement agreement may also contain conditions,
actions or provisions to redress the violations alleged in the NOC.
Therefore, the parties are free to include any such terms in the
agreement. Accordingly, Sec. 386.22(a)(2) is finalized as proposed.
Section 386.22(a)(3) is finalized with revisions to clarify that
settlement agreements must be approved by the Agency decisionmaker, and
thereafter, the settlement agreement becomes a Final Agency Order. To
preserve the integrity of an agreement while pending approval by a
decisionmaker, this provision also includes that consent to a
settlement agreement may not be withdrawn for a 30-day period.
Section 386.22(b) through (e) are all finalized with the same
revision from the proposed version which specifies when a settlement
agreement becomes [[Page 28475]] the Final Agency Order. The date on which a Final Agency Order becomes
effective is important in subsequent proceedings, such as tracking due
dates for payment, instituting out-of-service orders, and filing
petitions for reconsideration. Thus, in proceedings not before an
Agency decisionmaker, i.e., still handled at the service center, a
settlement agreement becomes the Final Agency Order upon the date of
execution by the Field Administrator or his/her designee. In
proceedings before an Agency decisionmaker, a settlement agreement
becomes the Final Agency Order as of the date the decisionmaker enters
an order accepting the agreement.
Section 386.23 Content of Consent Order
This section is deleted in its entirety, as it pertains to the
notice of investigation, which has been eliminated from the regulation.
Subpart D--General Rules and Hearings
Section 386.31 Service
This section is deleted in its entirety as superseded by Sec.
Section 386.32 Computation of Time
This section is deleted in its entirety as superseded by Sec.
Section 386.33 Extension of Time
This section is deleted in its entirety as superseded by Sec.
Section 386.31 Official Notice
This section has been revised since proposed to properly capture
the procedure for when an Agency decisionmaker takes official notice of
both facts and documents. The proposed provision did not require notice
to all parties when a decisionmaker takes official notice. Such a
provision has now been added, as well as the inclusion of a 10-day
period for objections.
The Agency has also modified the language to state that if a Final
Agency Order has been issued, and the decision rests on a material fact
of which the Agency decisionmaker took official notice, a party may
challenge the official notice under Sec. 386.64 petitions for
reconsideration. This revision prevents the disruption of proceedings
before an Administrative Law Judge or Assistant Administrator for
taking of official notice. A party must be able to assert that the
decision rests on a material and disputable fact of which the Agency
decisionmaker has taken official notice.
Section 386.34 Motions
Current Sec. 386.35 is redesignated Sec. 386.34, and finalized as
proposed. Parties are now given 20 days, rather than seven days, for a
reply to a motion that is applying for an order or ruling not otherwise
covered in Part 386, i.e., not a motion for Final Agency Order under
Sec. 386.36, a motion for rehearing or modification under Sec.
386.66. This is to allow sufficient time for all replies to motion, as
seven days appeared too short in light of the revised time periods for
Section 386.35 Motions To Dismiss and Motions for a More Definite
This section is redesignated as Sec. 386.35.
Section 386.36 Motions for Final Agency Order
The Agency finalizes Sec. 386.36 Motions for final agency order,
which has been revised since proposed. This provision governs all
aspects of a motion for final agency order, including who may file,
what must be included, and the period for an answer. Any party may file
a motion for final agency order. If the matter is still handled in the
service center, then the filing of a motion for final agency order will
trigger the transfer of the case to the Agency decisionmaker because
motions for final order cannot be decided on by the Field
Administrator, as s/he is a party to the proceeding. The form and
content provision which were previously proposed under Sec. 386.36(a)
have been moved to Sec. 386.36(b), and requires a motion and
memorandum of law, and all responsive pleadings and documents in the
case. The agency also requires all motions for final agency order be
accompanied by written evidence under Sec. 386.49. Respondents have
often overlooked the written evidence requirement, or otherwise failed
to include an affidavit stating personal knowledge of the facts
alleged, or exhibits with an affidavit identifying the exhibits and
providing its source. Therefore, the reference to Sec. 386.49 was
included to ensure all parties are on notice to submit written
Analogous to a summary judgment standard, the Agency decisionmaker
may issue a Final Agency Order if after reviewing the record in the
light most favorable to the non-moving party, there are no genuine
issues of material fact. Lastly, a non-moving party is given 45 days,
as opposed to 30 days as proposed, to serve a response to the motion
for final agency order. The time period was extended to 45 days to make
most time periods consistent and predictable throughout this Part.
Section 386.37 Discovery
The title of this section is revised to "Discovery." This
provision incorporates the discovery methods listed in existing Sec.
386.37: depositions, interrogatories, production of documents or other
evidence for inspection, physical and mental examinations and requests
for admissions. The Agency added a new provision since the regulation
was proposed, Sec. 386.37(b), which states discovery may commence only
when a matter is pending before the Assistant Administrator or referred
to the Office of Hearings.
The idea of discovery commencing after a matter has been referred
to the Office of Hearings was introduced in the October 2004 SNPRM,
under Sec. 386.46 for depositions. It has now been added to the
general discovery provision of this section. By allowing discovery to
commence only after the matter is before the Assistant Administrator or
an Administrative Law Judge, any discovery dispute may be resolved
properly by the decisionmaker, and thus prevent further delay of the
proceedings. If discovery begins immediately upon issuance of the NOC,
discovery disputes may arise while a matter is still pending in the
service center, and thus delay or unduly complicate the proceeding with
premature discovery issues. Moreover, the case it technically not at
issue until the initial pleadings, including the notice and any
response have been served.
Finally, upon re-examination, a revised 386.37(c) now states that
where a procedural matter is not addressed in the Agency's rules, the
Federal Rules of Civil Procedure may serve as guidance for the
decisionmaker, not the Federal Rules of Evidence as previously
proposed. The prior text incorrectly referred to the Federal Rules of
Evidence when it should have cited the Federal Rules of Civil
Section 386.38 Scope of Discovery
FMCSA makes no changes to the language in current Sec. 386.38.
Section 386.39 Protective Orders
FMCSA makes no changes to the language in current Sec. 386.39.
Section 386.40 Supplementation of Responses
FMCSA makes no changes to the language in current Sec. 386.40.
Section 386.41 Stipulations Regarding Discovery
FMCSA makes no changes to the language in current Sec. 386.41.
Section 386.42 Written Interrogatories to Parties
FMCSA is finalizing this section, which has been revised since
proposed. The substance of current Sec. 386.42 is incorporated into
the section, while adding page limits and time periods in which to
exchange interrogatories. Consistent with the definition of
commencement of discovery to begin when a matter is pending before the
Assistant Administrator or Administrative Law Judge, Sec. 386.42(a)
has been so modified.
Section 386.42(e) had proposed a copy of interrogatories, answers
and related pleadings be served on the Assistant Administrator or
Administrative Law Judge. However, upon reconsideration, the Agency has
decided to eliminate this requirement, as it could unnecessarily
increase the volume of documents to be included in the docket.
Accordingly, a simple procedure has been created to state for the
record the parties have commenced discovery. As per revised Sec.
386.42(e), all parties must file a notice of discovery, and are
obligated to serve a copy of interrogatories, answers, and pleading to
all parties in the proceeding. This provision will advise the
decisionmaker as to the procedural status of the matter without unduly
burdening the administrative record, and the parties' obligations,
while facilitating discovery.
Section 386.43 Production of Documents and Other Evidence
FMCSA makes no changes to the language in current Sec. 386.43.
Section 386.44 Request for Admissions
FMCSA makes no changes to the language in current Sec. 386.44.
Section 386.45 Motion to Compel Discovery
FMCSA makes no changes to the language in current Sec. 386.45.
Section 386.46 Depositions
FMCSA finalizes this section to provide procedures for depositions.
Three notable provisions have been added to facilitate the process:
Sec. 386.46(a)(3) through (5) give the parties discretion to take
depositions by telephone or other remote methods; provides that a
notice of deposition may include a subpoena duces tecum, which should
specify materials to be produced at the deposition; and if depositions
are to be taken by videotape or audiotape, the method of recording must
be so noticed.
As noted in previous discussions, discovery commences once a matter
is pending before the Assistant Administrator or an Administrative Law
Judge. Prior to this stage, under Sec. 386.46(c), which is finalized
as proposed, either party may petition the Assistant Administrator to
conduct depositions on a showing of good cause.
Based on further consideration to improve the discovery process,
paragraph (d) has been removed and a new paragraph (d) has been added
to the final rule, which provides for written depositions. A notice and
written questions may be served to a deponent. Within 14 days, cross-
questions may be served on all other parties. Seven days after service
of cross-questions, redirect questions may be served, followed by re-
cross within seven days. The written deposition is an alternative to an
oral deposition, which may save parties costs incurred discovery. The
remainder of this section is finalized as proposed, with minor edits
Section 386.47 Use of Deposition at Hearings
FMCSA makes no changes to the language in current Sec. 386.47.
Section 386.48 Medical Records and Physicians' Reports
FMCSA makes no changes to the language in current Sec. 386.48.
Section 386.49 Form of Written Evidence
Although this revision was not proposed in the October 2004 SNPRM,
the Agency believed it necessary to modify this section to reflect the
practical implications of the written evidence requirement. Instead of
requiring an affidavit, a written statement must now accompany all
written evidence. A written statement is a more accurate assessment of
the submissions typically provided by respondents, and while an
affidavit holds legal significance, such significance would serve no
further purpose. The written statement is less a matter of verification
than that of identification and description. With that in mind, it is
sufficient for parties to provide a written statement and thus, a
requirement of form over substance is not essential to this provision.
Section 386.50 Appearances and Rights of Witnesses
This section is deleted in its entirety as superseded by Sec.
Section 386.51 Amendment and Withdrawal of Proceedings
FMCSA is finalizing Sec. 386.51(b), which has been revised since
proposed. A party may withdraw his or her pleadings more than 15 days
prior to the scheduled hearing without the approval of the Assistant
Administrator or the Administrative Law Judge. Withdrawal within the 15
days prior to the scheduled hearing would still require approval of the
decisionmaker. Withdrawal of pleadings will be granted absent a finding
that the withdrawal will result in injustice, prejudice, irreparable
harm, or is otherwise contrary to the public interest. The public
interest exception is the only revision to this section and was
included to ensure full consideration before a pleading is withdrawn.
Section 386.52 Appeals From Interlocutory Rulings
After determining that the existing provision for interlocutory
appeals did not sufficiently address the issues that may arise, the
Agency proposed a more detailed provision for interlocutory appeals in
the October 2004 SNPRM. Upon further consideration, and with the aid of
feedback received internally, proposed Sec. 386.52(c) was removed as
unnecessary, as Sec. 386.52(b) sufficiently covers interlocutory
appeals. Moreover, it is possible that a party may use interlocutory
appeal of right as a stalling tactic. While Sec. 386.52(e) gives the
Assistant Administrator the discretion to reject frivolous, repetitive,
or dilatory appeals, a separate enumeration of interlocutory appeals of
right may be excessive. Given that the overarching mission of the
Agency, and the underlying goal of a civil penalty proceeding is
safety, unnecessarily long delays will only postpone compliance.
Section 386.53 Subpoena, Witness Fees
FMCSA makes no changes to the language in current Sec. 386.53.
Section 386.54 Administrative Law Judges
Upon reconsideration of this section as proposed, the Agency
revised the provision to accurately reflect the powers of an
Administrative Law Judge. Similar to the language in existing Sec.
386.54, the Agency revised Sec. 386.54(a) and inserted Sec.
386.54(a)(11) to reincorporate the catch-all provision regarding the
powers of an Administrative Law Judge, whereby s/he may take all
necessary actions to ensure a fair and impartial hearing. Consistent
with this goal, the APA was added to Sec. 386.54(a)(6) as a reference
to regulate the course of an administrative adjudication.
References to interlocutory appeals of right have been deleted from
Sec. 386.54(b). Aside from these changes, [[Page 28477]]
the remaining provisions of Sec. 386.54 are finalized as proposed.
Section 386.55 Prehearing Conferences
FMCSA makes no changes to the language in current Sec. 386.55.
Section 386.56 Hearings
FMCSA makes no changes to the language in current Sec. 386.56.
Section 386.57 Proposed Findings of Fact, Conclusions of Law
FMCSA makes no changes to the language in current Sec. 386.57.
Section 386.58 Burden of Proof
FMCSA makes no changes to the language in current Sec. 386.58.
Section 386.61 Decision
This provision is modified to make it consistent with the
introduction of the Hearing Officer and his/her role in the decision-
making process. Therefore, the Agency added Sec. 386.61(b), which
provides a Hearing Officer will submit a report of findings of fact and
recommended disposition to the Assistant Administrator within 45 days
after the conclusion of an informal hearing. The Assistant
Administrator will then issue a Final Agency Order adopting the report
or make other such determinations as appropriate. It is important to
note this procedure differs from an Administrative Law Judge's
decision. An Administrative Law Judge's decision becomes the decision
of the Assistant Administrator 45 days after it is served if the
parties do not seek review of the decision. Upon review of a decision,
the Assistant Administrator may adopt, modify, or set aside the
Administrative Law Judge's findings of fact and conclusions of law,
remand the proceedings with instructions, or issue a Final Agency Order
disposing of the proceedings. In contrast, a Hearing Officer's report
and recommendation are advisory, and does not constitute final agency
action until the Assistant Administrator issues a Final Agency Order at
the conclusion of the proceedings.
Section 386.62 Review of Administrative Law Judge's Decision
FMCSA makes no changes to the language in current Sec. 386.62.
Section 386.63 Decision on Review
FMCSA makes no changes to the language in current Sec. 386.63.
Section 386.64 Reconsideration
FMCSA is finalizing this provision, which has been revised since
first proposed, to reflect changes consistent with other sections of
this Part. Section 386.64(a) now provides a petition for
reconsideration must be filed 20 days following service, as opposed to
issuance, of the Final Agency Order.
After further consideration of whether to stay only the civil
penalty once a petition for reconsideration has been filed, the Agency
decided that staying the civil penalty in effect stays the entire case.
Because out-of-service orders in civil penalty proceedings are issued
for failure to pay, no other action may be taken on a case if the civil
penalty is stayed. Therefore, this change has been applied to the final
version of the section.
Section 386.64(b) clarifies that the only issue to be considered
under the petition for reconsideration of a final agency order based on
default is whether a default occurred. Therefore, in a petition for
reconsideration in defaults issued under Sec. 386.14(c), a Final
Agency Order may only be vacated where a respondent demonstrates
excusable neglect, a meritorious defense, and due diligence in seeking
relief. Having this information in the regulations should relieve
parties, as well as the decisionmaker, of the burden of addressing
other issues in these petitions for reconsideration. Newly adopted
paragraphs (c)-(e) provide timelines for serving answers and when a
decision must be made by the Assistant Administrator.
Section 386.65 Failure To Comply With Final Agency Order
FMCSA makes no changes to the language in current Sec. 386.65.
Section 386.66 Motions for Rehearing or for Modification
It was proposed that this section be removed from the regulation.
Upon further consideration, it was decided to re-insert the provision
as it appears in existing Sec. 386.66. The Agency had suggested its
removal because it was assumed all motions would be governed by Sec.
386.34. Internal comments have brought this matter to the Agency's
attention, as motions for rehearing or for modification are
instrumental in the enforcement of settlement agreements. Settlement
agreements may often contain terms requiring more than a year to
conclude. This section provides a mechanism for Agency Counsel to seek
rehearing or modification where respondents have failed to comply with
the Final Agency Order.
Section 386.67 Appeal
The title of this section is changed from "Appeal" to "Judicial
review." FMCSA finalizes this section as proposed, with two revisions
for consistency. Current Sec. 386.67 is divided into two paragraphs,
(a) and (b). The word "hearings" is replaced with "administrative
adjudication" because a respondent may seek judicial review once there
has been final agency action, which may or may not include a hearing.
The effect of this change is to liberally interpret 49 U.S.C. Sec.
521(b)(8) to allow judicial review for contested claims resulting in a
final agency order, but not for those claims resolved through
settlement agreement or in which respondent failed to timely reply. The
statute provides that judicial review is only available after a
hearing. FMCSA believes, however, its interpretation is appropriate in
this instance because these rules provide for resolution of contested
claims in an administrative adjudication without formal hearing.
Lastly, a mistake in the standard of review in proposed Sec.
386.67(b) has been corrected, and should now read: "whether the
findings and conclusions in the Final Agency Order were supported by
substantial evidence or otherwise not in accordance with law."
Subpart F--Injunctions and Imminent Hazards
FMCSA makes no changes to the language in current Sec. Sec.
FMCSA makes no changes to the language in current Sec. Sec.
FMCSA makes administrative changes to the language in current
Appendix A or Appendix B.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
FMCSA has determined 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. Moreover,
the Agency's inclusion of an informal hearing process would add
flexibility and less expense for smaller businesses. Any economic
consequences flowing from the procedures in the proposal are primarily [[Page 28478]]
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 final rule 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
These administrative changes impose no costs in most situations and
can impose no costs in equilibrium. The benefits are administrative
ease, scheduling flexibility, and improved industry-agency relations.
These benefits are not related to safety and are not easily
quantifiable. Nonetheless, the presence of some benefits and
essentially no costs leads to the conclusion the rule is cost-
beneficial but cannot be considered economically significant and
therefore, FMCSA certifies that this final rule would not have a
significant economic impact on a substantial number of small entities.
Executive Order 13132 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132. The rules proposed do not
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 SNPRM does not have sufficient federalism implications to warrant
the preparation of a federalism assessment.
Unfunded Mandates Reform Act of 1995
This final rule would not impose a Federal mandate resulting in the
expenditure by State, local, and tribal governments, in the aggregate,
or by the private sector, of $100 million or more in any one year.
National Environmental Policy Act
This rulemaking is categorically excluded from environmental
studies under paragraph 6.u. of FMCSA Environmental Order 5610.1C.
Executive Order 13211 (Energy Supply, Distribution, or Use)
This action is not a significant energy action within the meaning
of section 4(b) of the Executive Order because as a procedural action
it is not economically significant and will not have a significant
adverse effect on the supply, distribution, or use of energy.
Executive Order 13045 (Protection of Children)
This proposed action is not economically significant and does not
concern an environmental risk to health or safety that would
disproportionately affect children. The Agency has determined this rule
is not a "covered regulatory action" as defined under Executive Order
13045. First, this rule is not economically significant under Executive
Order 12866 because FMCSA has determined the changes in this rulemaking
would not have an impact of $100 million or more in any one year.
Second, the Agency has no reason to believe that the rule would result
in an environmental health risk or safety risk that would
disproportionately affect children.
Executive Order 12630 (Taking of Private Property)
This proposed rule would not effect a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in Sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
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 do not 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.
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
List of Subjects in 49 CFR Part 386
Administrative practice and procedure, Brokers, Freight forwarders,
Hazardous materials transportation, Highway safety, Motor carriers,
Motor vehicle safety, Penalties.
In consideration of the foregoing, FMCSA amends 49 CFR part 386 as
PART 386--RULES OF PRACTICE FOR MOTOR CARRIER, BROKER, FREIGHT
FORWARDER, AND HAZARDOUS MATERIALS PROCEEDINGS
1. The authority citation for part 386 continues to read as follows:
Authority: 49 U.S.C. 13301, 13902, 31132-31133, 31136, 31502,
31504; sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C. 701
note); sec. 217, Pub. L. 105-159, 113 Stat. 1748, 1767; and 49 CFR
2. Revise the heading of subpart A to read as follows:
Subpart A--Scope of Rules; Definitions and General Provisions
3. Amend Sec. 386.2 by removing the definitions for Compliance Order
and Consent Order in their entirety.
4. Amend Sec. 386.2 by revising terms or definitions for Civil penalty
proceedings and Final agency order; and by adding definitions for
Administrative adjudication, Agency, Agency Counsel, Decisionmaker,
Default, Department, Dockets, Field Administrator, FMCSRs, Formal
hearing, Hearing officer, HMRs, Informal hearing, Mail, Notice of
Claim, Notice of Violation, Person, Reply, Secretary, and Submission of
written evidence without hearing to read as follows:
Sec. 386.2 Definitions.
* * * * *
Administrative adjudication means a process or proceeding to
resolve contested claims in conformity with the Administrative
Procedure Act, 5 U.S.C. 554-558.
Agency means the Federal Motor Carrier Safety Administration.
Agency Counsel means the attorney who prosecutes a civil penalty
matter on behalf of the Field Administrator.
* * * * *
Civil penalty proceedings means proceedings to collect civil
penalties for violations of regulations and statutes within the
jurisdiction of FMCSA.
* * * * *
Decisionmaker means the Assistant Administrator of FMCSA, acting in
the capacity of the decisionmaker or any [[Page 28479]]
person to whom the Assistant Administrator has delegated his/her
authority in a civil penalty proceeding. As used in this subpart, the
Agency decisionmaker is the official authorized to issue a final
decision and order of the Agency in a civil penalty proceeding.
Default means an omission or failure to perform a legal duty within
the time specified for action, failure to reply to a Notice of Claim
within the time required, or failure to submit a reply in accordance
with the requirements of this part. A default may result in issuance of
a Final Agency Order or additional penalties against the defaulting
Department means the U.S. Department of Transportation.
Dockets means the U.S. Department of Transportation's docket
management system, which is the central repository for original copies
of all documents filed before the agency decisionmaker.
Federal Motor Carrier Commercial Regulations (FMCCRs) means
statutes and regulations applying to persons providing or arranging
transportation for compensation subject to the Secretary's jurisdiction
under 49 U.S.C. Chapter 135. The statutes are codified in Part B of
Subtitle IV, Title 49 U.S.C. (49 U.S.C. 13101 through 14913). The
regulations include those issued by FMCSA or its predecessors under
authority provided in 49 U.S.C. 13301 or a predecessor statute.
* * * * *
Field Administrator means the head of an FMCSA Service Center who
has been delegated authority to initiate compliance and enforcement
actions on behalf of FMCSA.
Final Agency Order means the final action by FMCSA issued pursuant
to this part by the appropriate Field Administrator (for default
judgments under Sec. 386.14) or the Assistant Administrator, or
settlement agreements which become the Final Agency Order pursuant to
386.22, or decisions of the Administrative Law Judge, which become the
Final Agency Order pursuant to 386.61 or binding arbitration awards. A
person who fails to perform the actions directed in the Final Agency
Order commits a violation of that order and is subject to an additional
penalty as prescribed in Subpart G of this part.
FMCSRs means the Federal Motor Carrier Safety Regulations.
Formal hearing means an evidentiary hearing on the record in which
parties have the opportunity to conduct discovery, present relevant
evidence, and cross-examine witnesses.
Hearing officer means a neutral Agency employee designated by the
Assistant Administrator to preside over an informal hearing.
HMRs means Hazardous Materials Regulations.
Informal hearing means a hearing in which the parties have the
opportunity to present relevant evidence to a neutral Hearing Officer,
who will prepare findings of fact and recommendations for the Agency
decisionmaker. The informal hearing will not be on the transcribed
record and discovery will not be allowed. Parties will have the
opportunity to discuss their case and present testimony and evidence
before the Hearing Officer without the formality of a formal hearing.
* * * * *
Mail means U.S. first class mail, U.S. registered or certified
mail, or use of a commercial delivery service.
* * * * *
Notice of Claim (NOC) means the initial document issued by FMCSA to
assert a civil penalty for alleged violations of the FMCSRs, HMRs, or
Notice of Violation (NOV) means a document alleging a violation of
the FMCSRs, HMRs, or FMCCRs, for which corrective action, other than
payment of a civil penalty, is recommended.
Person means any individual, partnership, association, corporation,
business trust, or any other organized group of individuals.
Reply means a written response to a Notice of Claim, admitting or
denying the allegations contained within the Notice of Claim. In
addition, the reply provides the mechanism for determining whether the
respondent seeks to pay, settle, contest, or seek binding arbitration
of the claim. See Sec. 386.14. If contesting the allegations, the
reply must also set forth all known affirmative defenses and factors in
mitigation of the claim.
* * * * *
Secretary means the Secretary of Transportation.
Submission of written evidence without hearing means the submission
of written evidence and legal argument to the Agency decisionmaker, or
his/her representative, in lieu of a formal or informal hearing.
5. Add Sec. 386.3 to subpart A to read as follows:
Sec. 386.3 Separation of functions.
(a) Civil penalty proceedings will be prosecuted by Agency Counsel
who represent the Field Administrator. In Notices of Violation, the
Field Administrator will be represented by Agency Counsel.
(b) An Agency employee, including those listed in paragraph (c) of
this section, engaged in the performance of investigative or
prosecutorial functions in a civil penalty proceeding may not, in that
case or a factually related case, discuss or communicate the facts or
issues involved with the Agency decisionmaker, Administrative Law
Judge, Hearing Officer or others listed in paragraph (d) of this
section, except as counsel or a witness in the public proceedings. This
prohibition also includes the staff of those covered by this section.
(c) The Deputy Chief Counsel, Assistant Chief Counsel for
Enforcement and Litigation, and attorneys in the Enforcement and
Litigation Division serve as enforcement counsel in the prosecution of
all cases brought under this part.
(d) The Chief Counsel, the Special Counsel to the Chief Counsel,
and attorneys serving as Adjudications Counsel advise the Agency
decisionmaker regarding all cases brought under this Part.
(e) Nothing in this part shall preclude agency decisionmakers or
anyone advising an agency decisionmaker from taking part in a
determination to launch an investigation or issue a complaint, or
similar preliminary decision.
6. Add Sec. 386.4 to subpart A to read as follows:
Sec. 386.4 Appearances and rights of parties.
(a) A party may appear in person, by counsel, or by other
representative, as the party elects, in a proceeding under this
(b) A person representing a party must file a notice of appearance
in the proceeding, in the manner provided in Sec. 386.7 of this
subpart. The notice of appearance must list the name, address,
telephone number, and facsimile number of the person designated to
represent the party. A copy of the notice of appearance must be served
on each party, in the manner provided in Sec. 386.6 of this subpart.
The notice of appearance must be filed and served before the
representative can participate in the proceeding. Any changes in an
attorney or representative's contact information must be served and
filed according to Sec. Sec. 386.6 and 386.7 in a timely manner.
(c) A separate notice of appearance must be filed by a
representative in each case. Blanket appearances on behalf of a party
will not be accepted.
7. Add Sec. 386.5 to subpart A to read as follows:
Sec. 386.5 Form of filings and extensions of time.
(a) Form. Each document must be typewritten or legibly handwritten.
(b) Contents. Unless otherwise specified in this part, each
document must contain a short, plain statement of the facts on which
the person's case rests and a brief statement of the action requested
in the document. Except by prior order, all contents will be made
(c) Length. Except for the Notice of Claim and reply, motions,
briefs, and other filings may not exceed 20 pages except as permitted
by Order following a motion to exceed the page limitation based upon
good cause shown. Exhibits or attachments in support of the relevant
filing are not included in the page limit.
(d) Paper and margins. Filed documents must be printed on 8\1/2\''
by 11'' paper with a one-inch margin on all four sides of text, to
include pagination and footnotes.
(e) Spacing, and font size for typewritten documents. Typewritten
documents will use the following line format: single-spacing for the
caption and footnotes, and double-spacing for the main text. All
printed matter must appear in at least 12-point font, including
(f) Extensions of time. Only those requests showing good cause will
be granted. No motion for continuance or postponement of a hearing date
filed within 15 days of the date set for a hearing will be granted
unless accompanied by an affidavit showing extraordinary circumstances
warrant a continuance. Unless directed otherwise by the Agency
decisionmaker before whom a matter is pending, the parties may
stipulate to reasonable extensions of time by filing the stipulation in
the official docket and serving copies on all parties on the
certificate of service. Motions for extensions of time must be filed in
accordance with Sec. 386.6 and served in accordance with Sec. 386.7.
A copy must also be served upon the person presiding over the
proceeding at the time of the filing.
8. Add Sec. 386.6 to subpart A to read as follows:
Sec. 386.6 Service.
(a) General. All documents must be served upon the party or the
party's designated agent for service of process. If a notice of
appearance has been filed in the specific case in question in
accordance with Sec. 386.4, service is to be made on the party's
attorney of record or its designated representative.
(b) Type of service. A person may serve documents by personal
delivery utilizing governmental or commercial entities, U.S. mail,
commercial mail delivery, and upon prior written consent of the
parties, facsimile. Written consent for facsimile service must specify
the facsimile number where service will be accepted. When service is
made by facsimile, a copy will also be served by any other method
permitted by this section. Facsimile service occurs when transmission
(c) Certificate of service. A certificate of service will accompany
all documents served in a proceeding under this Part. The certificate
must show the date and manner of service, be signed by the person
making service, and list the persons served in accordance with Sec.
(d) Date of service. A document will be considered served on the
date of personal delivery; or if mailed, the mailing date shown on the
certificate of service, the date shown on the postmark if there is no
certificate of service, or other mailing date shown by other evidence
if there is no certificate of service or postmark.
(e) Valid service. A properly addressed document, sent in
accordance with this subpart, which was returned, unclaimed, or
refused, is deemed to have been served in accordance with this subpart.
The service will be considered valid as of the date and the time the
document was mailed, or the date personal delivery of the document was
refused. Service by delivery after 5 p.m. in the time zone in which the
recipient will receive delivery is deemed to have been made on the next
day that is not a Saturday, Sunday, or legal holiday.
(f) Presumption of service. There shall be a presumption of service
if the document is served where a party or a person customarily
receives mail or at the address designated in the entry of appearance.
If an entry of appearance has been filed on behalf of the party,
service is effective upon service of a document to its representative.
9. Add Sec. 386.7 to subpart A to read as follows:
Sec. 386.7 Filing of documents.
(a) Address and method of filing. A person serving or tendering a
document for filing must personally deliver or mail one copy of each
document to all parties and counsel or their designated representative
of record if represented. A signed original and one copy of each
document submitted for the consideration of the Assistant
Administrator, an Administrative Law Judge, or Hearing Officer must be
personally delivered or mailed to: U.S. DOT Dockets 400 7th Street,
SW., Room PL-401, Washington, DC 20590. A person will serve a copy of
each document on each party in accordance with Sec. 386.6 of this
10. Add 386.8 to subpart A to read as follows:
Sec. 386.8 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 will 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 will be computed.
(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 is the
date the order is served.
(c) Computation of time for delivery by mail.
(1) Service of all documents is deemed effected at the time of
(2) Documents are not deemed filed until received by Dockets.
(3) Whenever a party has a right or a duty to act or to make any
response within a prescribed period after service by mail, or on a date
certain after service by mail, 5 days will be added to the prescribed
11. Amend Sec. 386.11 by revising paragraphs (b) and (c) to read as
Sec. 386.11 Commencement of proceedings.
* * * * *
(b) Notice of Violation. The Agency may issue a Notice of Violation
as a means of notifying any person subject to the rules in this part
that it has received information (i.e., from an investigation, audit,
or any other source) wherein it has been alleged the person has
violated provisions of the FMCSRs, HMRs, or FMCCRs. The notice of
violation serves as an informal mechanism to address compliance
deficiencies. If the alleged deficiency is not addressed to the
satisfaction of the Agency, formal enforcement action may be taken in
accordance with paragraph (c) of this section. A notice of violation is
not a prerequisite to the issuance of a Notice of Claim. The notice of
violation will address the following issues, as appropriate:
(1) The specific alleged violations.
(2) Any specific actions the Agency determines are appropriate to
remedy the identified problems.
(3) The means by which the notified person can inform the Agency
that it has received the notice of violation and [[Page 28481]]
either has addressed the alleged violation or does not agree with the
Agency's assertions in the notice of violation.
(4) Any other relevant information.
(c) Civil penalty proceedings. These proceedings are commenced by
the issuance of a Notice of Claim.
1) Each Notice of Claim must contain the following:
(i) A statement setting forth the facts alleged.
(ii) A statement of the provisions of law allegedly violated by the
(iii) The proposed civil penalty and notice of the maximum amount
authorized to be claimed under statute.
(iv) The time, form, and manner whereby the respondent may pay,
contest, or otherwise seek resolution of the claim.
(2) In addition to the information required by paragraph (c)(1) of
this section, the Notice of Claim may contain such other matters as the
Agency deems appropriate.
(3) In proceedings for collection of civil penalties for violations
of the motor carrier safety regulations under the Motor Carrier Safety
Act of 1984, the Agency may require the respondent to post a copy of
the Notice of Claim in such place or places and for such duration as
the Agency may determine appropriate to aid in the enforcement of the
law and regulations.
12. Remove Sec. 386.12(a) and (b) in their entirety and redesignate
Sec. 386.12 (c) through (e) as Sec. 386.12 (a) through (c),
respectively and revise newly redesignated (b) to read as follows:
Sec. 386.12 Complaint.
* * * * *
(b) Action on complaint of substantial violation. Upon the filing
of a complaint of a substantial violation under paragraph (a) of this
section, the Assistant Administrator shall determine whether it is
nonfrivolous and meets the requirements of paragraph (a) of this
section. If the Assistant Administrator determines the complaint is
nonfrivolous and meets the requirements of paragraph (a), he/she shall
investigate the complaint. The complainant shall be timely notified of
findings resulting from such investigation. The Assistant Administrator
shall not be required to conduct separate investigations of duplicative
complaints. If the Assistant Administrator determines the complaint is
frivolous or does not meet the requirements of the paragraph (a), he/
she shall dismiss the complaint and notify the complainant in writing
of the reasons for such dismissal.
* * * * *
13. Revise Sec. 386.14 to read as follows:
Sec. 386.14 Reply.
(a) Time for reply to the Notice of Claim. Respondent must serve a
reply to the Notice of Claim in writing within 30 days following
service of the Notice of Claim. The reply is to be served in accordance
with Sec. 386.6 upon the Service Center indicated in the Notice of
(b) Options for reply. The respondent must reply to the Notice of
Claim within the time allotted by choosing one of the following:
(1) Paying the full amount asserted in the Notice of Claim in
accordance with Sec. 386.18 of this part;
(2) Contesting the claim by requesting administrative adjudication
pursuant to paragraph (d) of this section; or
(3) Seeking binding arbitration in accordance with the Agency's
program. Although the amount of the proposed penalty may be disputed,
referral to binding arbitration is contingent upon an admission of
liability that the violations occurred.
(c) Failure to answer the Notice of Claim. (1) Respondent's failure
to answer the Notice of Claim in accordance with paragraph (a) may
result in the issuance of a Notice of Default and Final Agency Order by
the Field Administrator. The Notice of Default and Final Agency Order
will declare respondent to be in default and further declare the Notice
of Claim, including the civil penalty proposed in the Notice of Claim,
to be the Final Agency Order in the proceeding. The Final Agency Order
will be effective five days following service of the Notice of Default
and Final Agency Order.
(2) The default constitutes an admission of all facts alleged in
the Notice of Claim and a waiver of respondent's opportunity to contest
the claim. The default will be reviewed by the Assistant Administrator
in accordance with Sec. 386.64(b), and the Final Agency Order may be
vacated where a respondent demonstrates excusable neglect, a
meritorious defense, or due diligence in seeking relief.
(3) Failure to pay the civil penalty as directed in a Final Agency
Order constitutes a violation of that order, subjecting the respondent
to an additional penalty as prescribed in Subpart G of this part.
(d) Request for administrative adjudication. The respondent may
contest the claim and request administrative adjudication pursuant to
paragraph (b)(2) of this section. An administrative adjudication is a
process to resolve contested claims before the Assistant Administrator,
Administrative Law Judge, or Hearing Officer. Once an administrative
adjudication option is elected, it is binding on the respondent.
(1) Contents. In addition to the general requirements of this
section, the reply must be in writing and state the grounds for
contesting the claim and must raise any affirmative defenses the
respondent intends to assert. Specifically, the reply:
(i) 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 not specifically
denied in the reply is deemed admitted. A mere general denial of the
claim is insufficient and may result in a default being entered by the
Agency decisionmaker upon motion by the Field Administrator.
(ii) Must include all known affirmative defenses, including those
relating to jurisdiction, limitations, and procedure.
(iii) Must state which one of the following options respondent
(A) To submit written evidence without hearing; or
(B) An informal hearing; or
(C) A formal hearing.
14. Revise Sec. 386.16 to read as follows:
Sec. 386.16 Action on replies to the Notice of Claim.
(a) Requests to submit written evidence without a hearing. Where
respondent has elected to submit written evidence in accordance with
(1) Agency Counsel must serve all written evidence and argument in
support of the Notice of Claim no later than 60 days following service
of respondent's reply. The written evidence and argument must be served
on the Assistant Administrator in accordance with Sec. Sec. 386.6 and
386.7. The submission must include all pleadings, notices, and other
filings in the case to date.
(2) Respondent will, not later than 45 days following service of
Agency Counsel's written evidence and argument, serve its written
evidence and argument on the Assistant Administrator in accordance with
Sec. Sec. 386.6 and 386.7.
(3) Agency Counsel may file a written response to respondent's
submission. Any such submission must be filed [[Page 28482]]
within 20 days of service of respondent's submission.
(4) All written evidence submitted by the parties must conform to
the requirements of Sec. 386.49.
(5) Following submission of evidence and argument as outlined in
this section, the Assistant Administrator may issue a Final Agency
Order and order based on the evidence and arguments submitted, or may
issue any other order as may be necessary to adjudicate the matter.
(b) Requests for hearing. (1) If a request for a formal or informal
hearing has been filed, the Assistant Administrator will determine
whether there exists a dispute of a material fact at issue in the
matter. If so, the matter will be set for hearing in accordance with
respondent's reply. If it is determined that there does not exist a
dispute of a material fact at issue in the matter, the Assistant
Administrator may issue a decision based on the written record, or may
request the submission of further evidence or argument.
(2) If a respondent requests a formal or informal hearing in its
reply, the Field Administrator must serve upon the Assistant
Administrator and respondent a notice of consent or objection with a
basis to the request within 60 days of service of respondent's reply.
Failure to serve an objection within the time allotted may result in
referral of the matter to hearing.
(3) Requests for formal hearing. Following the filing of an
objection with basis, the Field Administrator must serve a motion for
Final Agency Order pursuant to Sec. 386.36 unless otherwise ordered by
the Assistant Administrator. The motion must set forth the reasons why
the Field Administrator is entitled to judgment as a matter of law.
Respondent must, within 45 days of service of the motion for Final
Agency Order, submit and serve a response to the Field Administrator's
motion. After reviewing the record, the Assistant Administrator will
either set the matter for hearing by referral to the Office of Hearings
or issue a Final Agency Order based upon the submissions.
(4) Requests for informal hearing.
(i) If the Field Administrator objects with basis to a request for
an informal hearing, he/she must serve the objection, a copy of the
Notice of Claim, and a copy of respondent's reply, on the respondent
and Assistant Administrator, pursuant to paragraph (b)(2) of this
section. Based upon the Notice of Claim, the reply, and the objection
with basis, the Assistant Administrator will issue an order granting or
denying the request for informal hearing.
(A) Informal hearing granted. If the request for informal hearing
is granted by the Assistant Administrator, a Hearing Officer will be
assigned to hear the matter and will set forth the date, time and
location for hearing. No further motions will be entertained, and no
discovery will be allowed. At hearing, all parties may present
evidence, written and oral, to the Hearing Officer, following which the
Hearing Officer will issue a report to the Assistant Administrator
containing findings of fact and recommending a disposition of the
matter. The report will serve as the sole record of the proceedings.
The Assistant Administrator may issue a Final Agency Order adopting the
report, or issue other such orders as he/she may deem appropriate. By
participating in an informal hearing, respondent waives its right to a
(B) Informal hearing denied. If the request for informal hearing is
denied, the Field Administrator must serve a motion for Final Agency
Order pursuant to Sec. 386.36, unless otherwise directed by the
Assistant Administrator. The motion must set forth the reasons why the
Field Administrator is entitled to judgment as a matter of law.
Respondent must, within 45 days of service of the motion for Final
Agency Order, submit and serve a response to the Field Administrator's
motion. After reviewing the record, the Assistant Administrator will
set the matter for formal hearing by referral to the Office of
Hearings, or will issue a Final Agency Order based upon the
(C) Nothing in this section shall limit the Assistant
Administrator's authority to refer any matter for formal hearing, even
in instances where respondent seeks only an informal hearing.
15. Add Sec. 386.18 to subpart B to read as follows:
Sec. 386.18 Payment of the claim.
(a) Payment of the full amount claimed may be made at any time
before issuance of a Final Agency Order. After the issuance of a Final
Agency Order, claims are subject to interest, penalties, and
administrative charges in accordance with 31 U.S.C. 3717; 49 CFR part
89; and 31 CFR 901.9.
(b) If respondent elects to pay the full amount as its response to
the Notice of Claim, payment must be served upon the Field
Administrator at the Service Center designated in the Notice of Claim
within 30 days following service of the Notice of Claim. No written
reply is necessary if respondent elects the payment option during the
30-day reply period. Failure to serve full payment within 30 days of
service of the Notice of Claim when this option has been chosen may
constitute a default and may result in the Notice of Claim, including
the civil penalty assessed by the Notice of Claim, becoming the Final
Agency Order in the proceeding pursuant to Sec. 386.14(c).
(c) Unless objected to in writing, submitted at the time of
payment, payment of the full amount in response to the Notice of Claim
constitutes an admission by the respondent of all facts alleged in the
Notice of Claim. Payment waives respondent's opportunity to further
contest the claim, and will result in the Notice of Claim becoming the
Final Agency Order.
16. Revise the heading of subpart C to read as follows:
Subpart C--Settlement Agreements
Sec. 386.21 [Removed]
17. Remove Sec. 386.21.
18. Revise Sec. 386.22 to read as follows:
Sec. 386.22 Settlement agreements and their contents.
(a) Settlement agreements. (1) When negotiations produce an
agreement as to the amount or terms of payment of a civil penalty or
the terms and conditions of an order, a settlement agreement shall be
drawn and signed by the respondent and the Field Administrator or his/
her designee. Such settlement agreement must contain the following:
(i) The statutory basis of the claim;
(ii) A brief statement of the violations;
(iii) The amount claimed and the amount paid;
(iv) The date, time, and place and form of payment;
(v) A statement that the agreement is not binding on the Agency
until executed by the Field Administrator or his/her designee;
(vi) A statement that failure to pay in accordance with the terms
of the agreement or to comply with the terms of the agreement may
result in the reinstatement of any penalties held in abeyance and may
also result in the loss of any reductions in civil penalties asserted
in the Notice of Claim, in which case the original amount asserted will
be due immediately; and
(vii) A statement that the agreement is the Final Agency Order.
(2) A settlement agreement may contain any conditions, actions, or
provisions agreed by the parties to redress the violations cited in the
Notice of Claim or notice of violation.
(3) A settlement agreement accepted and approved by the Assistant
Administrator or Administrative Law
Judge is a Final Agency Order which is binding on all parties according
to its terms. Consent to a settlement agreement which has not yet been
approved by the Assistant Administrator or Administrative Law Judge may
not be withdrawn for a period of 30 days.
(b) Civil Penalty Proceedings not before Agency Decisionmaker. When
the parties have agreed to a settlement at any time prior to the case
coming before the Agency decisionmaker, the parties may execute an
appropriate agreement for disposing of the case. The agreement does not
require approval by the Agency decisionmaker. The agreement becomes the
Final Agency Order upon execution by the Field Administrator or his/her
(c) Civil Penalty Proceedings before Agency Decisionmaker. When a
respondent has agreed to a settlement of a civil penalty before a Final
Agency Order has been issued, the parties may execute an appropriate
agreement for disposal of the case by consent for the consideration of
the Assistant Administrator. The agreement is filed with the Assistant
Administrator, who may accept it, reject it and direct that proceedings
in the case continue, or take such other action as he/she deems
appropriate. If the Assistant Administrator accepts the agreement, he/
she shall enter an order in accordance with its terms. The settlement
agreement becomes the Final Agency Order as of the date the Assistant
Administrator enters an order accepting the settlement agreement.
(d) Civil Penalty Proceedings before Administrative Law Judge
(ALJ). When a respondent has agreed to a settlement of a civil penalty
before the hearing is concluded, the parties may execute an appropriate
agreement for disposing of the case by consent for the consideration of
the ALJ. The agreement is filed with the ALJ who may accept it, reject
it, and direct that proceedings in the case continue, or take such
other action as he/she deems appropriate. If the ALJ accepts the
agreement, he/she shall enter an order in accordance with its terms.
The settlement agreement becomes the Final Agency Order as per Sec.
(e) Civil Penalty Proceedings before Hearing Officer. When a
respondent has agreed to a settlement of a civil penalty before the
hearing is concluded, the parties may execute an appropriate agreement
for disposal of the case for the consideration of the Hearing Officer.
The agreement is filed with the Hearing Officer, who, within 20 days of
receipt, will make a report and recommendation to the Assistant
Administrator who may accept it, reject it, and direct that proceedings
in the case continue, or take such other action as he/she deems
appropriate. If the Assistant Administrator accepts the agreement, he/
she will enter an order in accordance with its terms. The settlement
agreement becomes the Final Agency Order as of the date the Assistant
Administrator enters an order accepting the settlement agreement.
Sec. 386.23 [Removed]
19. Remove Sec. 386.23.
20. Revise Sec. 386.31 to read as follows:
Sec. 386.31 Official notice.
Upon notification to all parties, the Assistant Administrator or
Administrative Law Judge may take official notice of any fact or
document not appearing in evidence in the record. Any party objecting
to the official notice must file an objection within 10 days after
service of the notice. If a Final Agency Order has been issued, and the
decision rests on a material and disputable fact of which the Agency
decisionmaker has taken official notice, a party may challenge the
action of official notice in accordance with Sec. 386.64 of this part.
Sec. 386.32 [Removed]
21. Remove Sec. 386.32.
Sec. 386.33 [Removed]
22. Remove Sec. 386.33.
Sec. 386.34 [Removed]
23. Remove Sec. 386.34.
Sec. 386.35 [Redesignated and Amended]
24. Redesignate Sec. 386.35 as Sec. 386.34 and amend paragraph (c) by
removing the number ``7'' and adding, in its place, the number ``20.''
Sec. 386.36 [Redesignated]
25. Redesignate Sec. 386.36 as Sec. 386.35.
26. Add a new Sec. 386.36 to read as follows:
Sec. 386.36 Motions for final agency order.
(a) Generally. Unless otherwise provided in this section, the
motion and answer will be governed by Sec. 386.34. Either party may
file a motion for final order. The motion must be served in accordance
with Sec. Sec. 386.6 and 386.7. If the matter is still pending before
the service center, upon filing, the matter is officially transferred
from the service center to the Agency decisionmaker, who will then
preside over the matter.
(b) Form and content.
(1) Movant's filing must contain a motion and memorandum of law,
which may be separate or combined and must include all responsive
pleadings, notices, and other filings in the case to date.
(2) The motion for final order must be accompanied by written
evidence in accordance with Sec. 386.49.
(3) The motion will state with particularity the grounds upon which
it is based and the substantial matters of law to be argued. A Final
Agency Order may be issued if, after reviewing the record in a light
most favorable to the non-moving party, the Agency decisionmaker
determines no genuine issue exists as to any material fact.
(c) Answer to Motion. The non-moving party will, within 45 days of
service of the motion for final order, submit and serve a response to
rebut movant's motion.
27. Revise Sec. 386.37 to read as follows:
Sec. 386.37 Discovery.
(a) Parties may obtain discovery by one or more of the following
methods: Depositions upon oral examination or written questions;
written interrogatories; request for production of documents or other
evidence for inspection and other purposes; physical and mental
examinations; and requests for admission.
(b) Discovery may not commence until the matter is pending before
the Assistant Administrator or referred to the Office of Hearings.
(c) Except as otherwise provided in these rules, in the
Administrative Procedure Act, 5 U.S.C. 551 et seq., or by the Assistant
Administrator or Administrative Law Judge, in the absence of specific
Agency provisions or regulations, the Federal Rules of Civil Procedure
may serve as guidance in administrative adjudications.
28. Revise Sec. 386.42 to read as follows:
Sec. 386.42 Written interrogatories to parties.
(a) Without leave, any party may serve upon any other party written
interrogatories to be answered by the party to whom the interrogatories
are directed; or, if that party is a public or private corporation or
partnership or association or governmental agency, by any officer or
agent, who will furnish the information available to that party.
(b) The maximum number of interrogatories served will not exceed
30, including all subparts, unless the Assistant Administrator or
Administrative Law Judge permits a larger number on motion and for good
cause shown. Other interrogatories may be added without leave, so long
as the total number of approved and additional interrogatories does not
(c) Each interrogatory shall be answered separately and fully in
writing [[Page 28484]] under oath unless it is objected to, in which event the grounds for
objection shall be stated and signed by the party, or counsel for the
party, if represented, making the response. The party to whom the
interrogatories are directed shall serve the answers and any objections
within 30 days after the service of the interrogatories, or within such
shortened or longer period as the Assistant Administrator or the
Administrative Law Judge may allow.
(d) Motions to compel may be made in accordance with Sec. 386.45.
(e) A notice of discovery must be served on the Assistant
Administrator or, in cases that have been referred to the Office of
Hearings, on the Administrative Law Judge. A copy of the
interrogatories, answers, and all related pleadings must be served on
all parties to the proceeding.
(f) An interrogatory otherwise proper is not necessarily
objectionable merely because an answer to the interrogatory involves an
opinion or contention that relates to fact or the application of law to
fact, but the Assistant Administrator or Administrative Law Judge may
order that such an interrogatory need not be answered until after
designated discovery has been completed or until a prehearing
conference or other later time.
29. Revise Sec. 386.46 to read as follows:
Sec. 386.46 Depositions.
(a) When, how, and by whom taken.
(1) The deposition of any witness may be taken at reasonable times
subsequent to the appointment of an Administrative Law Judge. Prior to
referral to the Office of Hearings, a party may petition the Assistant
Administrator, in accordance with Sec. 386.37, for leave to conduct a
deposition based on good cause shown.
(2) Depositions may be taken by oral examination or upon written
interrogatories before any person having power to administer oaths.
(3) The parties may stipulate in writing or the Administrative Law
Judge may upon motion order that a deposition be taken by telephone or
other remote electronic means.
(4) If a subpoena duces tecum is to be served on the person to be
examined, the designation of the materials to be produced as set forth
in the subpoena shall be attached to, or included in, the notice.
(5) If the deposition is to be recorded by videotape or audiotape,
the notice shall specify the method of recording.
(b) Application. Any party desiring to take the deposition of a
witness must indicate to the witness and all other parties the time
when, the place where, and the name and post office address of the
person before whom the deposition is to be taken; the name and address
of each witness; and the subject matter concerning which each such
witness is expected to testify.
(c) Notice. A party desiring to take a deposition must give notice
to the witness and all other parties. Notice must be in writing. Notice
of the deposition must be given not less than 20 days from when the
deposition is to be taken if the deposition is to be held within the
continental United States and not less than 30 days from when the
deposition is to be taken if the deposition is to be held elsewhere,
unless a shorter time is agreed to by the parties or by leave of the
Assistant Administrator or Administrative Law Judge by motion for good
(d) Depositions upon written questions. Within 14 days after the
notice and written questions are served, a party may serve cross-
questions upon all other parties. Within 7 days after being served with
cross-questions, a party may serve redirect questions upon all other
parties. Within 7 days after being served with redirect questions, a
party may serve recross questions upon all other parties. The Assistant
Administrator or Administrative Law Judge may enlarge or shorten the
time for cause shown.
(e) Taking and receiving in evidence. Each witness testifying upon
deposition must be sworn, and any other party must be given the right
to cross-examine. The questions propounded and the answers to them,
together with all objections made, must be reduced to writing; read by
or to, and subscribed by the witness; and certified by the person
administering the oath. The person who took the deposition must seal
the deposition transcript in an envelope and file it in accordance with
Sec. 386.7. Subject to objections to the questions and answers as were
noted at the time of taking the deposition and which would have been
valid if the witness were personally present and testifying, the
deposition may be read and offered in evidence by the party taking it
as against any party who was present or represented at the taking of
the deposition or who had due notice of it.
(f) Witness Limit. No party may seek deposition testimony of more
than five witnesses without leave of the Agency decisionmaker for good
cause shown. Individual depositions are not to exceed 8 hours for any
(g) Motion to terminate or limit examination. During the taking of
a deposition, a party or deponent may request suspension of the
deposition on grounds of bad faith in the conduct of the examination,
oppression of a deponent or party or improper questions propounded. The
deposition will then be adjourned. The objecting party or deponent
must, however, immediately move for a ruling on his or her objections
to the deposition conduct or proceedings before the Assistant
Administrator or Administrative Law Judge, who then may limit the scope
or manner of the taking of the deposition.
30. Revise Sec. 386.49 to read as follows:
Sec. 386.49 Form of written evidence.
All written evidence should be submitted in the following forms:
(a) A written statement of a person having personal knowledge of
the facts alleged, or
(b) Documentary evidence in the form of exhibits attached to a
written statement identifying the exhibit and giving its source.
Sec. 386.50 [Removed]
31. Remove Sec. 386.50.
32. Amend Sec. 386.51 by revising paragraph (b) to read as follows:
Sec. 386.51 Amendment and withdrawal of pleadings.
* * * * *
(b) A party may withdraw his/her pleading any time more than 15
days prior to the hearing by serving a notice of withdrawal on the
Assistant Administrator or the Administrative Law Judge. Within 15 days
prior to the hearing a withdrawal may be made only at the discretion of
the Assistant Administrator or the Administrative Law Judge. The
withdrawal will be granted absent a finding that the withdrawal will
result in injustice, prejudice, or irreparable harm to the non-moving
party, or is otherwise contrary to the public interest.
33. Revise Sec. 386.52 to read as follows:
Sec. 386.52 Appeals from interlocutory rulings.
(a) General. Unless otherwise provided in this subpart, a party may
not appeal a ruling or decision of the Administrative Law Judge to the
Assistant Administrator until the Administrative Law Judge's decision
has been entered on the record. A decision or order of the Assistant
Administrator on the interlocutory appeal does not constitute a Final
Agency Order for the purposes of judicial review under Sec. 386.67.
(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 Assistant Administrator
issues a decision on the interlocutory appeal. The Administrative Law
Judge must 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.
(d) Procedure. A party must file a notice of interlocutory appeal,
with any supporting documents, with the Assistant Administrator, and
serve copies on each party and the Administrative Law Judge, not later
than 10 days after the Administrative Law Judge's oral decision has
been issued, or a written decision has been served. A party must file a
reply brief, if any, with the Assistant Administrator and serve a copy
of the reply brief on each party, not later than 10 days after service
of the appeal brief. The Assistant Administrator will render a decision
on the interlocutory appeal, within a reasonable time after receipt of
the interlocutory appeal.
(e) The Assistant Administrator may reject frivolous, repetitive,
or dilatory appeals, and may issue an order precluding one or more
parties from making further interlocutory appeals, and may order such
further relief as required.
34. Revise Sec. 386.54 to read as follows:
Sec. 386.54 Administrative Law Judge.
(a) Powers of an Administrative Law Judge. The Administrative Law
Judge may take any action and may prescribe all necessary rules and
regulations to govern the conduct of the proceedings to ensure a fair
and impartial hearing, and to avoid delay in the disposition of the
proceedings. In accordance with the rules in this subchapter, an
Administrative Law Judge may do the following:
(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 and the Administrative
(7) Hold conferences to settle or simplify the issues by consent of
(8) Dispose of procedural motions and requests, except motions that
under this part are made directly to the Assistant Administrator.
(9) Issue orders permitting inspection and examination of lands,
buildings, equipment, and any other physical thing and the copying of
(10) Make findings of fact and conclusions of law, and issue
(11) To take any other action authorized by these rules and
permitted by law.
(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. 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 Assistant Administrator. Any request for a change in such
assignment, including disqualification, will be considered only for
good cause which would unduly prejudice the proceeding.
35. Amend Sec. 386.61 by designating the existing paragraph as
paragraph (a) and adding a new introductory heading and adding
paragraph (b), to read as follows.
Sec. 386.61 Decision.
(a) Administrative Law Judge. * * *
(b) Hearing Officer. The Hearing Officer will prepare a report to
the Assistant Administrator containing findings of fact and recommended
disposition of the matter within 45 days after the conclusion of the
hearing. The Assistant Administrator will issue a Final Agency Order
adopting the report, or may make other such determinations as
appropriate. The Assistant Administrator's decision to adopt a Hearing
Officer's report may be reviewed in accordance with Sec. 386.64.
36. Revise Sec. 386.64 to read as follows:
Sec. 386.64 Reconsideration.
(a) Within 20 days following service of the Final Agency Order, any
party may petition the Assistant Administrator for reconsideration of
the order. If a civil penalty was imposed, the filing of a petition for
reconsideration stays the entire action, unless the Assistant
Administrator orders otherwise.
(b) In the event a Notice of Default and Final Agency Order is
issued by the Field Administrator as a result of the respondent's
failure to reply in accordance with Sec. 386.14(a), the only issue
that will be considered upon reconsideration is whether a default has
occurred under Sec. 386.14(c). The Final Agency Order may be vacated
where a respondent can demonstrate excusable neglect, a meritorious
defense, or due diligence in seeking relief.
(c) Either party may serve an answer to a petition for
reconsideration within 30 days of the service date of the petition.
(d) Following the close of the 30-day period, the Assistant
Administrator will rule on the petition.
(e) The ruling on the petition will be the Final Agency Order. A
petition for reconsideration of the Assistant Administrator's ruling
will not be permitted.
37. Revise Sec. 386.67 to read as follows:
Sec. 386.67 Judicial review.
(a) Any party to the underlying proceeding, who, after an
administrative adjudication, is adversely affected by a Final Agency
Order issued under 49 U.S.C. 521 may, within 30 days of service of the
Final Agency Order, petition for review of the order in the United
States Court of Appeals in the circuit where 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 will be based on a determination of whether the
findings and conclusions in the Final Agency Order were supported by
substantial evidence or were otherwise not in accordance with law. No
objection that has not been raised before the Agency will be considered
by the court, unless reasonable grounds existed for failure or neglect
to do so. The commencement of proceedings under this section will not,
unless ordered by the court, operate as a stay of the Final Agency
Order of the Agency.
38. Revise Sec. 386.71 to read as follows:
Sec. 386.71 Injunctions.
Whenever it is determined that a person has engaged, or is about to
engage, in any act or practice constituting a violation of section
31502 of title 49, United States Code; of the Motor Carrier Safety Act
of 1984; the Hazardous Materials Transportation Act; or any regulation
or order issued under that section or those Acts for which the Federal
Motor Carrier Safety [[Page 28486]] Administrator exercises enforcement responsibility, the Chief Counsel
may request the United States Attorney General to bring an action in
the appropriate United States District Court for such relief as is
necessary or appropriate, including mandatory or prohibitive injunctive
relief, interim equitable relief, and punitive damages, as provided by
section 213(c) of the Motor Carrier Safety Act of 1984 and section
111(a) of the Hazardous Materials Transportation Act (49 U.S.C. 507(c)
39. Revise Sec. 386.82(a)(3) to read as follows:
Sec. 386.82 Civil penalties for violations of notices and orders.
(a) Additional civil penalties are chargeable for violations of
notices and orders which are issued under civil forfeiture proceedings
pursuant to 49 U.S.C. 521(b). These notices and orders are as follows:
* * * * *
(3) Final order--Sec. 386.14, Sec. 386.17, Sec. 386.22, and
Sec. 386.61; and
* * * * *
40. Amend Appendix A to Part 386 by revising section I, removing and
reserving section II, and revising section III to read as follows:
Appendix A to Part 386--Penalty Schedule; Violations of Notices and
I. Notice to Abate
Violation--Failure to cease violations of the regulations in the
time prescribed in the notice. (The time within to comply with a
notice to abate shall not begin to run with respect to contested
violations, i.e., where there are material issues in dispute under
Sec. 386.14, until such time as the violation has been
Penalty reinstatement of any deferred assessment or payment of a
penalty or portion thereof.
* * * * *
III. Final Order
Violation--Failure to comply with Final Agency Order.
Penalty--Automatic reinstatement of any penalty previously
reduced or held in abeyance and restoration of the full amount
assessed in the Notice of Claim less any payments previously made.
* * * * *
41. Amend Appendix B to Part 386 by revising the heading and paragraphs
(a)(1) through (4) to read as follows:
Appendix B to Part 386--Penalty Schedule; Violations and Maximum Civil
* * * * *
(a) Violations of the Federal Motor Carrier Safety Regulations
(1) Recordkeeping. A person or entity that fails to prepare or
maintain a record required by parts 40, 382, 385, and 390-99 of this
subchapter, or prepares or maintains a required record that is
incomplete, inaccurate, or false, is subject to a maximum civil
penalty of $550 for each day the violation continues, up to $5,500.
(2) Knowing falsification of records. A person or entity that
knowingly falsifies, destroys, mutilates, or changes a report or
record required by parts 382, 385, and 390-99 of this subchapter,
knowingly makes or causes to be made a false or incomplete record
about an operation or business fact or transaction, or knowingly
makes, prepares, or preserves a record in violation of a regulation
or order of the Secretary is subject to a maximum civil penalty of
$5,500 if such action misrepresents a fact that constitutes a
violation other than a reporting or recordkeeping violation.
(3) Non-recordkeeping violations. A person or entity that
violates parts 382, 385, or 390-99 of this subchapter, except a
recordkeeping requirement, is subject to a civil penalty not to
exceed $11,000 for each violation.
(4) Non-recordkeeping violations by drivers. A driver who
violates parts 382, 385, and 390-99 of this subchapter, except a
recordkeeping violation, is subject to a civil penalty not to exceed
* * * * *
Issued on: May 12, 2005.
Annette M. Sandberg,
[FR Doc. 05-9898 Filed 5-17-05; 8:45 am]