[Federal Register: October 20, 2004 (Volume 69, Number 202)]
[Proposed Rules]
[Page 61617-61631]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20oc04-19]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 386
[FMCSA Docket No. FMCSA-1997-2299]
RIN 2126-AA15
Rules of Practice
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Supplemental notice of proposed rulemaking (SNPRM).
-----------------------------------------------------------------------
SUMMARY: FMCSA proposes to amend its rules of practice for motor
carrier safety, hazardous materials, and other enforcement proceedings.
These rules would increase the efficiency of the procedures, enhance
due process and the awareness of the public and regulated community,
and accommodate recent programmatic changes. The rules would apply to
all motor carriers, other business entities, and individuals involved
in motor carrier safety and hazardous materials administrative actions
and proceedings with FMCSA.
DATES: Comments must be received on or before December 6, 2004.
ADDRESSES: You may submit comments, identified by DOT DMS Docket Number
[[Page 61618]]
FMCSA-1997-2299, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
Agency Web site: http://dms.dot.gov. Follow the
instructions for submitting comments on the DOT electronic docket site.
Fax: 1-202-493-2251.
Mail: Docket Management Facility, U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401,
Washington, DC 20590-0001.
Hand Delivery: 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.
Instructions: All submissions must include the agency name and
docket number for this notice. All comments received will be posted
without change to http://dms.dot.gov, including any personal
information provided. Please see the Privacy Act heading for further
information.
Docket: For access to the docket to read background documents
including those referenced in this document, or to read comments
received, go to http://dms.dot.gov and/or 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.
Privacy Act: Anyone may search the electronic form of all comments
received into any of DOT's dockets by the name of the individual
submitting the comment (or of the person signing the comment, if
submitted on behalf of an association, business, labor union, or other
entity). You may review DOT's complete Privacy Act Statement in the
Federal Register (65 FR 19477, Apr. 11, 2000). This statement is also
available at http://dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: Jackie 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.
SUPPLEMENTARY INFORMATION:
History
On April 29, 1996, the Federal Highway Administration (FHWA), an
operating administration of the DOT, published a notice of proposed
rulemaking (NPRM) for Rules of Practice for Motor Carrier Proceedings;
Investigations; Disqualifications and Penalties (1996 NPRM) (61 FR
18865). In the 1996 NPRM, the FHWA, the relevant portion of which is
now the Federal Motor Carrier Safety Administration, proposed entirely
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 the FHWA to comprehensively
rewrite its rules of practice for motor carrier administrative
proceedings since 1985. The 1996 NPRM was intended to be the forerunner
of a comprehensive revision of the Federal Motor Carrier Safety
Regulations (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 materials
regulations.
On October 21, 1996, the 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) (Public
Law 104-88, 109 Stat. 803, 852 (Dec. 29, 1995)). In the SNPRM, the FHWA
proposed to adopt the term ``Commercial Regulations'' to refer to
requirements imposed on motor carriers as a result of the transfer of
functions from the former Interstate Commerce Commission (``ICC''). The
SNPRM also extended the comment period 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 this SNPRM are discussed in the
Discussion of Comments section of this document.
On February 16, 2000, FMCSA issued a final rule making technical
amendments to part 386 and incorporated enforcement proceedings for
Commercial Regulations into part 386 (65 FR 7753). This rule was
intended to ensure all civil forfeiture and investigation proceedings
instituted by FMCSA are governed by consistent procedures. In addition,
FMCSA adopted some technical amendments which reflected recent
organizational changes, removed obsolete statutory citations, and
incorporated recent statutory changes which affected the civil penalty
schedule.
Given the zero-based review as well as various program changes that
have been made since FHWA issued the 1996 NPRM and SNPRM, FMCSA is
publishing this additional SNPRM. Although the 1996 NPRM proposed
significant reorganization to the FMCSRs,\1\ this SNPRM only proposes
changes to part 386, Rules of practice for motor carrier, broker,
freight forwarder, driver and hazardous materials proceedings,
including our occasional enforcement of the HMRs on shippers.
---------------------------------------------------------------------------
\1\ The 1996 NPRM proposed replacing part 386 with part 363 and
adding three new parts to title 49, CFR. These new parts were part
361, Administrative Enforcement, part 362, Safety ratings, and part
364, Violations, penalties, and collections.
---------------------------------------------------------------------------
Statutory Authority
Congress delegated certain powers to regulate interstate commerce
to the Department of Transportation in numerous pieces of legislation,
most notably in section 6 of the Department of Transportation Act (DOT
Act) (Public Law 85-670, 80 Stat. 931 (1966)). Section 55 of the DOT
Act transferred the authority of the ICC to regulate the qualifications
and maximum hours-of-service of employees, the safety of operations,
and the equipment of motor carriers in interstate commerce to the FHWA.
See 49 U.S.C. 104. This authority, first granted to the ICC in the
Motor Carrier Act of 1935 (Public Law 74-255, 49 Stat. 543), now
appears in chapter 315 of title 49, U.S.C. The regulations issued under
this authority became known as the FMCSRs, appearing generally at 49
CFR parts 390-399, including the commercial regulations (49 CFR parts
360-379) and the Hazardous Materials Regulations (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, U.S.C.
Between 1966 and 1999 a number of statutes added to the FHWA's
authority. For a more detailed statutory background, see the preamble
to the 1996 NPRM (61 FR 18866-67). The various statutory authorities
authorize the enforcement of the FMCSRs and Hazardous Materials
Regulations (HMRs) and provide both civil and criminal penalties for
violations. In practice, when circumstances dictate that an enforcement
action be instituted, civil penalties are more commonly sought than
criminal sanctions. The
[[Page 61619]]
administrative rules proposed in this rulemaking apply, among other
things, to the administrative adjudication of civil penalties assessed
for violations of the FMCSRs and the HMRs.
The Motor Carrier Safety Improvement Act of 1999 (MCSIA) (Public
Law 106-159, 113 Stat. 1748 (Dec. 9, 1999)) established FMCSA as a new
operating administration within the Department of Transportation,
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 to FMCSA.
Background
The goal of the 1996 proposal, which would have replaced part 386
with part 363, was to improve the then existing rules of procedure for
motor carrier enforcement proceedings. Various external sources were
consulted, notably the Model Adjudication Rules of the Administrative
Conference of the United States (December 1993) and various procedural
rules of other Federal agencies. In recognition of the importance of
the historical context of the rules, the predecessors of the current
rules, and their extensive amendments, were reviewed by the FHWA in
hopes of identifying shortcomings and determining the underlying
rationale for certain provisions, which may now seem unnecessary,
unclear, or unavailing. For a detailed description of the findings of
this review, see the preamble to the 1996 NPRM (61 FR 18872-75).
Discussion of Comments
In response to the 1996 NPRM, 127 comments were submitted to the
docket. Because a number of the policy decisions reflected in this
SNPRM are an outgrowth of the comments received on the rules of
practice portion of the 1996 NPRM (essentially proposed part 363),
those relevant comments are summarized below and reflected in the
proposed revisions to part 386. Comments to the 1996 NPRM relating to
other aspects of that proposal are not addressed in this preamble.
Service of Documents
Jewell Smokeless Coal disagreed with the wording in the preamble
discussion of proposed Sec. 363.302 (addressed in Sec. 386.32 of
current rule) regarding computation of time, which states ``service is
complete upon mailing so that the date of the postmark would control.''
The commenter argued that the postal system is not always the most
expedient way to disseminate important information such as serving
documents, creating the danger that the timeframes allowed would expire
before the intended recipient has the opportunity to reply. As an
alternative, such documents should be sent by certified mail and the
day the document was received should be the date service is complete.
If the recipient fails to pick up the certified documents within 10
days from the date notified by the certified mail, the date the
documents are returned to the sender should become the date service was
completed.
The commenter also suggested that certificates of service should
accompany all mailings, including the notice of violation (NOV)
(proposed Sec. 363.102, current Sec. 386.11), the reply form
(proposed Sec. 363.103), and the notice of determination and letter of
disqualification (proposed Sec. 363.202, current Sec. 386.11(a)).
FMCSA's Response. In addressing Jewell Smokeless Coal's comment
regarding the inefficiency of service by U.S. Mail, new section 386.6
proposes to include commercial delivery service as well as facsimile
transmission as alternate methods of completing service. We believe the
date of receipt is not the most efficient way to compute time,
especially if respondent fails to accept service.
As proposed in Sec. 386.6(c), all documents shall be accompanied
by a certificate of service. The requirement is currently contained in
Sec. 386.31(b).
Adjudication Procedure
Transportation Lawyer's Association (TLA) argued that proposed
Sec. 363.108(c)(2) would limit all potential affirmative answers to
those actually raised, including those regarding jurisdiction. The
commenter believed this to be wrong because the defense of lack of
jurisdiction should be available anytime, as permitted by Rule 12(h)(3)
of the Federal Rules of Civil Procedure.
FMCSA's Response. The content of proposed Sec. 363.108(c)(2) is
now in proposed Sec. 386.14(d)(1)(B). Although the proposed provision
requires respondents to submit all arguments relating to jurisdiction,
limitation, and procedure in their reply, respondents are not precluded
from raising jurisdictional arguments at a later time as per current
Sec. 386.36 redesignated as Sec. 386.35, Motions to dismiss and
motions for more definite statements.
TLA indicated that proposed Sec. 363.108(c)(1) would establish
that a general denial is sufficient grounds for a finding of default.
The commenter objected to this provision, arguing that the burden of
proof must be on the agency once the respondent denies the claims. A
general denial should prompt the agency to file a Motion for Final
Agency Order or provide the respondent with an opportunity to correct
its answer, instead of becoming tantamount to default. Failure of the
agency to meet its burden should result in a denial of the motion with
finality.
FMCSA's Response. A general denial does not assist the
decisionmaker in determining whether there are material issues of fact
in dispute. Therefore, in proposed Sec. 386.14(d)(1), the contents of
a reply must include the grounds for contesting a claim.
TLA indicated that proposed Sec. 363.109(h) (not currently
addressed in the FMCSRs) would permit either an attorney or another
person to represent a respondent before the Assistant Administrator or
ALJ. The commenter emphasized that the agency should indicate, in its
notices or regulations, that the seriousness of the potential penalties
might recommend the employment of legal counsel.
FMCSA's Response. Recommending the employment of legal counsel
would be beyond the scope of the agency's authority. In accordance with
proposed Sec. 386.4, the agency affords the respondent several options
in representation because the respondent may or may not be able to
afford legal counsel. The proposal in Sec. 386.4, however, would not
permit a representative to engage in the unauthorized practice of law
in violation of standards set by each State for legal representation.
Jewell Smokeless Coal indicated that the Assistant Administrator
should not be the only one with the power to refer a case to an ALJ
under proposed Sec. 363.109 (current Sec. 386.16). The respondent
should be allowed to refer a matter to an ALJ if he/she believes there
are sufficient facts for such referral. The commenter also indicated
that the respondent should have the option to participate or not to
participate in the referral. If the respondent is comfortable with a
lesser process (in order to avoid the potential expenses involved in
adjudication), then he/she should be allowed to take it.
FMCSA's Response. The respondent may only request that a matter be
referred to an ALJ for hearing. It is the Assistant Administrator who
will decide whether a matter is to be referred to the ALJ. See current
Sec. 386.16(b).
Settlement Agreements
Proposed Sec. 363.106(b)(2) would have required a settlement
agreement to contain a finding of facts constituting the violations
committed, while the current rule, Sec. 386.16(c)(ii), requires ``a
[[Page 61620]]
brief statement of the violations.'' Commenters submitted that the
current provision has been interpreted to mean alleged violations.
Crete Carrier et al. sought assurance that the proposed 1996
requirement would not be construed as an admission, which could be used
against them in litigation, e.g., if a plaintiff claimed a willful
violation of the regulations as an element of its claim for punitive
damages in a crash involving a carrier, and then cited the settlement
submission as evidence. The commenter also pointed to Federal Rules of
Evidence 408, that evidence of payment of a disputed claim in
connection with civil litigation is inadmissible in the proceeding to
prove liability for the claim.
FMCSA's Response. In proposed Sec. 386.22, there is no requirement
that settlements contain admissions of the violation. The parties may
negotiate whether admissions are a condition of the settlement
agreement. Respondent's full payment as its reply to the notice of
claim would constitute an admission of the violation.
With regard to the comment about the application of the Federal
Rules of Evidence in civil penalty proceedings, proposed Sec. 386.37
provides that where an evidentiary matter is not addressed in the
agency's rules or the APA, the Federal Rules of Evidence will be
controlling.
The International Brotherhood of Teamsters (IBT) indicated that
employees or their selected representatives should be entitled to
participate in settlement negotiations.
FMCSA's Response. A party would be able to choose its
representative under proposed Sec. 386.4.
TLA opposed proposed Sec. 363.107 (not currently addressed in the
FMCSRs), which would establish a 90-day limit for settlement
negotiations if no resolution is achieved, because it provides an
opportunity for FMCSA staff to avoid negotiating by causing delay or
mere inaction.
FMCSA's Response. There is nothing in the proposed regulation that
would allow the agency to delay the process. After the 90-day
settlement period, the respondent can seek administrative adjudication
or binding arbitration if it decides to not make payment.
Enforcement
Overnite Express and Silvereagle Arnold indicated that a carrier
should be given opportunity to respond and correct the violation before
a fine is imposed.
FMCSA's Response. The Field Administrator has a range of actions
available to address violations, including administrative handling
without resort to civil penalties. If a notice of claim is issued and
civil penalty assessed, the respondent may always argue corrective
action has been taken, as a means of mitigating the amount of the civil
penalty.
The Administrative Claim Process
The majority of the proposed changes to this SNPRM are briefly
discussed in the Section-by-Section Analysis portion of this preamble.
Many of the proposed changes are technical in nature to eliminate
inconsistencies or increase the efficiency of the procedures. For
example, in proposed Sec. 386.8, entitled ``Compution of time,'' we
eliminated the word ``shall'' in the current regulations and replaced
it with such words as ``will'' or ``must'' to provide more definite
delivery times for motions and replies to the decisionmaker. Because
these changes are not substantive in nature, we will not discuss them
in the Section-by-Section Analysis.
We are proposing to change the time within which respondents must
reply to the notice of claim. Current Sec. 386.14 provides 15 days
from the date of service of the notice of claim for respondent to
reply. Under proposed Sec. 386.14, the reply period would be 30 days
from the date of service of the notice of claim.
This proposed revision reflects a change from the Agency's previous
interpretation of 49 U.S.C 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.'' Our
previous interpretation, contained in both the current part 386 and the
Agency's civil penalty enforcement decisions, was that motor carriers
charged with violations had only 15 days in which to contest those
charges. We ask for comment as to whether the word ``may'' in the
statute permits the Agency to expand the period of time for the motor
carrier to contest the charges.
Proposed Sec. 386.14 is taken from Sec. 363.108 of the 1996 NPRM
and proposes procedures for contested claims. The procedures would
apply if settlement negotiations fail to result in a settlement
agreement, or when the respondent chooses administrative adjudication.
A contested claim would be resolved in an administrative proceeding
adjudicated by a neutral third party provided by the agency. Depending
on the choice of the respondent and the existence of a dispute of a
material fact at issue in the case, the third party may be an informal
hearing officer, a Department of Transportation Administrative Law
Judge, or the Assistant Administrator (agency decisionmaker).
The content of the reply in proposed Sec. 386.14(b) would be
similar to what is currently required in replies under part 386. If the
respondent fails to reply to the notice of claim, Sec. 386.14(c) would
provide that the Field Administrator may issue a notice declaring that
the notice of claim has become the final agency order. The final agency
order would become effective 5 days following service of the notice of
final agency order.
If respondent serves a reply that does not meet the requirements of
Sec. 386.14, respondent may be found in default at the discretion of
the Assistant Administrator. Default would have the same effect as a
failure to reply. In both situations, a final agency order would issue
without inquiry as to the charged violations.
FMCSA has proposed in Sec. 386.16 to provide an informal oral
hearing as a new adjudication option. Section 386.16(c)(2) describes
the process we are proposing. Using a hearing officer, this process
would provide expedited consideration of a civil penalty case without
the formalities attendant to a hearing before an ALJ. The agency
invites comment on the addition of the informal oral hearing option. We
are particularly interested in comments regarding the efficacy of
instituting such a process, hearing officer's qualifications,
procedural rules that should govern the informal hearing process, and
any other relevant issues commenters would like us to consider.
This SNPRM does not substantially change the current process for
formal oral hearings. An overview of the formal oral hearing process
follows:
1. Within 30 days of service of the notice of claim, respondent
submits a reply in which it elects to pay (payment must be included),
to negotiate, to adjudicate, or to submit to binding arbitration.
2. If the respondent requests administrative adjudication, it must
submit a reply that conforms to Sec. 386.14(a)(1). If respondent
requests a formal oral evidentiary hearing and the Assistant
Administrator concludes there is a disputed issue of material fact, the
Assistant Administrator refers the matter to the Department's Office of
Hearings to be assigned to an ALJ.
3. An administrative law judge will preside over the hearing and
findings of fact and conclusions of law and issue a decision. Under the
Administrative Procedure Act (5 U.S.C. 557), an ALJ decision under this
procedure is considered an initial decision and a
[[Page 61621]]
decision of the Assistant Administrator is considered an agency
decision.
4. Also, if respondent initially chooses negotiation and
negotiation fails, the respondent can request a hearing and the
foregoing process applies.
Section-by-Section Analysis
This section-by-section analysis describes the changes to current
part 386 being proposed by this SNPRM. For the convenience of the
reader, it references relevant sections in proposed part 363 of the
1996 NPRM and also specifically states current sections for which there
are no proposed changes.
Subpart A--Scope of Rules; Definitions
The title of Subpart A would be revised to Scope of Rules;
Definitions and General Provisions to reflect the inclusion of several
preliminary procedural rules.
Definitions (Sec. 386.2)
Proposed Sec. 386.2 would add, revise, and remove definitions in
current Sec. 386.2 to reflect our proposed revisions of part 386.
Separation of Functions (Sec. 386.3)
FMCSA is proposing to add Sec. 386.3 to delineate the separation
of functions between enforcement staff and the agency decisionmaker.
Appearances and Rights of Parties (Sec. 386.4)
FMCSA is proposing to add Sec. 386.4, which includes current Sec.
386.50 in its entirety, and the additional procedural requirement to
file a notice of appearance in the action before participating in the
proceedings.
Form of Filings and Extensions of Time (Sec. 386.5)
FMCSA is proposing to add Sec. 386.5, which incorporates current
Sec. 386.33, and establishes length and content limits, and other
administrative requirements and details for filing documents. In
addition, the time period for responses to motions for continuance
would be changed from 7 to 20 days, to remain consistent with the
proposed change of the general requirement for serving all motions and
responses.
Service (Sec. 386.6)
FMCSA is proposing to add Sec. 386.6, which incorporates current
Sec. 386.31, and adds the following elements: (1) It specifies that
the agency must ensure service of the notice of claim; (2) it includes
commercial delivery services and facsimile (with consent of the
parties) as additional options for effecting service; and (3) it
specifies other administrative provisions regarding service.
Filing of Documents (Sec. 386.7)
Proposed Sec. 386.7 contains details relating to the filing of
documents to establish standards relating to form and content.
Computation of Time (Sec. 386.8)
Proposed Sec. 386.8 contains current Sec. 386.32 in its entirety.
This provision has been moved to Subpart A to locate it with other
preliminary procedural requirements. The text has been edited but no
substantive changes are intended.
Commencement of Proceedings (Sec. 386.11, 1996 NPRM proposed as Sec.
363.103)
Section 386.11 describes the commencement of proceedings. The
proposed revisions do not affect the driver qualification proceedings
in paragraph (a). Proposed paragraph (b) removes references to notice
of investigation (NOI) and introduces a new document, the notice of
violation. As proposed, FMCSA would use the notice of violation as a
means of notifying any person subject to the rules in this part that
the agency has received information indicating that the person has
violated provisions of the FMCSRs, HMRs, or Commercial Regulations,
without assessing a civil penalty. This information may come from
investigations, audits, or any other source of information. The notice
of violation would address issues such as: Specific alleged violations
and actions that a person might take to remedy problems identified by
the agency; and other relevant information. The notice of violation
would not be used to assert civil penalties.
The content of current Sec. 386.11(b) would be redesignated as
paragraph (c).
Complaint (Sec. 386.12, 1996 NPRM Proposed as Sec. 363.102)
FMCSA is proposing to remove paragraphs (a) and (b) and to
redesignate paragraphs (c)-(e) as (a)-(c). This change is proposed to
make it consistent with the elimination of the notice of investigation.
Petition To Review and Request for Hearing: Driver Qualification
Proceedings (Sec. 386.13)
FMCSA is not proposing any changes to the language in current Sec.
386.13.
Reply (Sec. 386.14, 1996 NPRM Proposed as Sec. Sec. 363.103)
The title of this section would be revised to Reply. Proposed
paragraph (a) changes the time period for a reply to the notice of
claim from 15 days to 30 days. Proposed paragraph (b) provides the
contents of a reply to a notice of claim. Respondent may choose to pay
the civil penalty, enter into settlement negotiations, request
administrative adjudication, or seek binding arbitration. Proposed
paragraph (c) describes what happens in the event of respondent's
failure to reply. Proposed paragraph (d) describes the contents of a
reply when requesting administrative adjudication. The reply must
include admission or denial of each allegation, all affirmative
defenses, including those relating to jurisdiction, limitations, and
procedure, and state whether or not respondent seeks a hearing or
chooses to submit evidence without a hearing.
Action on Replies to the Notice of Claim (Sec. 386.16)
The title of this section would be revised to Action on replies to
the notice of claim. Proposed paragraph (a), Settlement negotiations,
provides a 90-day period for settlement negotiations unless either
party seeks to discontinue negotiations earlier. If negotiations fail
to produce a settlement agreement, respondent must serve a reply under
Sec. 386.14(b)(1), (3), or (4).
Proposed paragraph (b), Requests to submit written evidence without
oral hearing, changes the sequence and time during which the parties
must serve all written evidence. The Field Administrator will have 45
days following service of respondent's reply in which to submit
evidence and argument. The respondent will then have 30 days following
service of the Field Administrator's submission to serve its own
evidence and argument.
Proposed paragraph (c), Requests for hearing, provides that the
Assistant Administrator will determine whether there exists a dispute
of material fact at issue in the case that warrants a hearing. If a
respondent requests a formal or informal oral hearing, the Field
Administrator must serve a notice of consent or objection within 20
days of service of respondent's reply. If he/she objects, the Field
Administrator must serve a motion for final agency order within 30 days
of service of the objection. Respondent must serve its response to the
Field Administrator's motion within 30 days of service.
If the Field Administrator objects to the request for an informal
oral hearing, he or she must serve the objection, the
[[Page 61622]]
notice of claim, and respondent's reply. Based on these documents, the
Assistant Administrator will determine whether there exists a dispute
of a material fact and whether to grant or deny the request for an
informal hearing. If the hearing is granted, a hearing officer will be
assigned to the matter, and no further motions or discovery will be
permitted. At the conclusion of the hearing, the hearing officer will
issue a report to the Assistant Administrator with findings of fact and
recommended disposition. Respondent waives its right to a formal oral
hearing by participating in an informal hearing. If an informal oral
hearing is denied, the Field Administrator must serve a motion for
final agency order to which respondent will have an opportunity to
answer. After reviewing the record, the Assistant Administrator may
refer the matter to an Administrative Law Judge, assign the matter for
informal oral hearing, or issue a final agency order based upon the
submissions.
Proposed Sec. 386.16(c)(2)(B) reserves the Assistant
Administrator's authority to refer any matter for formal oral hearing
even in instances where respondent has requested an informal oral
hearing.
Intervention (Sec. 386.17)
FMCSA is not proposing any changes to the language in current Sec.
386.17.
Payment of the Claim (Sec. 386.18)
Current part 386 does not specifically address payment of claims.
This SNPRM proposes to add new Sec. 386.18, Payment of claim.
Proposed paragraphs (a) and (b) state that payment may be made at
any time before the issuance of a final agency order. If however,
payment is not served upon the agency within 30 days of service of the
notice of claim, the notice of claim becomes the final agency order.
Proposed paragraph (c) makes it clear that, unless the parties
otherwise agree in writing, respondent's payment of the full claim
amount as its reply to the notice of claim constitutes an admission of
all facts alleged, waives respondent's opportunity to further contest
the claim, and will result in the notice of claim becoming the final
agency order. This is important because certain 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 proposed 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 would be revised to be Settlement
Agreements.
Compliance Order (Sec. 386.21)
Current Sec. 386.21 would be deleted in its entirety.
Consent Order (Sec. 386.22)
The title of this section would be revised to Settlement agreements
and their contents. Proposed paragraph (a) describes the contents for
settlement agreements and the binding effect they have on the parties.
Proposed paragraph (b) addresses settlement agreements before the case
comes before the agency decisionmaker. Proposed paragraph (c) sets
forth procedures for settling a case pending before the agency
decisionmaker. Proposed paragraph (d) describes procedures for settling
a civil forfeiture case pending before and agency hearing officer.
Content of Consent Order (Sec. 386.23)
This section would be deleted in its entirety.
Subpart D--General Rules and Hearings
Service (Sec. 386.31, 1996 NPRM Proposed as Sec. 363.303)
This section would be deleted in its entirety as superseded by
Sec. 386.6.
Computation of Time (Sec. 386.32, 1996 NPRM proposed as Sec. 363.302)
This section would be deleted in its entirety as superseded by
Sec. 386.8.
Extension of Time (Sec. 386.33, 1996 NPRM proposed as Sec. 363.304)
This section would be deleted in its entirety as superseded by
Sec. 386.5.
Official Notice (Sec. 386.34)
This section would be revised to streamline the use of official
notice by the Assistant Administrator and Administrative Law Judge and
redesignated as Sec. 386.31.
Motions (Sec. 386.35)
Current paragraph (c) of Sec. 386.35 would be amended to allow 20
days rather than 7 days for a reply to be served after a motion that is
applying for an order or ruling not otherwise covered in part 386. This
section would then be redesignated as Sec. 386.34.
Motions To Dismiss and Motions for a More Definite Statement (Sec.
386.36, 1996 NPRM Proposed as Sec. 363.108(c)(4))
This section would be redesignated as Sec. 386.35.
We would add a new Sec. 386.36, entitled Motions for Final Agency
Order to describe the procedures governing motions for final agency
order.
Discovery Methods (Sec. 386.37, 1996 NPRM proposed as Sec. 363.109)
The contents of current Sec. 386.37 remain, with the exception of
the last sentence, and will now be located in proposed paragraph (a).
Proposed paragraph (b) would be included to clarify that where an
evidentiary matter is not addressed in the agency's rules or the APA,
the Federal Rules of Evidence will be controlling.
Scope of Discovery (Sec. 386.38)
FMCSA is not proposing any changes to the language in current Sec.
386.38.
Protective Orders (Sec. 386.39)
FMCSA is not proposing any changes to the language in current Sec.
386.39.
Supplementation of Responses (Sec. 386.40)
FMCSA is not proposing any changes to the language in current Sec.
386.40.
Stipulations Regarding Discovery (Sec. 386.41)
FMCSA is not proposing any changes to the language in current Sec.
386.41.
Written Interrogatories to Parties (Sec. 386.42)
This revised section includes the substance of current Sec. 386.42
and adds provisions regarding page limits and time periods in which to
exchange interrogatories.
Production of Documents and Other Evidence (Sec. 386.43)
FMCSA is not proposing any changes to the language in current Sec.
386.43.
Request for Admissions (Sec. 386.44)
FMCSA is not proposing any changes to the language in current Sec.
386.44.
Motion To Compel Discovery (Sec. 386.45)
FMCSA is not proposing any changes to the language in current Sec.
386.45.
Depositions (Sec. 386.46)
This revised section provides procedures governing depositions in
civil penalty proceedings. Depositions would only be allowed after
appointment of an ALJ. Prior to assignment of an ALJ, either party
could petition the Assistant Administrator to conduct depositions on a
showing of good cause. Proposed paragraph (e) includes a witness limit
of no more than 5 witnesses without leave from the agency
decisionmaker, and the deposition itself may not exceed 8 hours for any
one witness. Current Sec. 386.46(e)
[[Page 61623]]
would now be redesignated as proposed Sec. 386.46(f).
Use of Deposition at Hearings (Sec. 386.47)
FMCSA is not proposing any changes to the language in current Sec.
386.47.
Medical Records and Physicians' Reports (Sec. 386.48)
FMCSA is not proposing any changes to the language in current Sec.
386.48.
Form of Written Evidence (Sec. 386.49)
FMCSA is not proposing any changes to the language in current Sec.
386.49.
Appearances and Rights of Witnesses (Sec. 386.50)
This section would be deleted in its entirety as superseded by
Sec. 386.4.
Amendment and Withdrawal of Proceedings (Sec. 386.51, 1996 NPRM
Proposed as Sec. 363.109(i))
Proposed Sec. 386.51(b) would revise current Sec. 386.51(b) by
allowing a party to 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. The decisionmaker would grant the request for withdrawal
unless it would result in injustice, irreparable harm, or prejudice to
the non-moving party. This proposed change would make paragraph (b) of
this section consistent with the requirements in paragraph (a) of this
section.
Appeals From Interlocutory Rulings (Sec. 386.52, 1996 NPRM Proposed as
Sec. 363.307)
This revised section would set forth detailed procedures governing
interlocutory appeals. It delineates interlocutory appeals for cause
and defines all instances of interlocutory appeals of right. This
section also notes that decisions regarding interlocutory appeals may
not be appealed to the Assistant Administrator until the decision has
been entered on the record. Decisions by the Assistant Administrator on
interlocutory appeals do not constitute final agency orders for
purposes of judicial review.
Subpoena, Witness Fees (Sec. 386.53)
FMCSA is not proposing any changes to the language in current Sec.
386.53.
Administrative Law Judges (Sec. 386.54, 1996 NPRM Proposed as Sec.
363.305)
This section would eliminate existing paragraph (a). This section
would enumerate the powers of the ALJs, as well as the limitations on
those powers. It would also provide for the disqualification of ALJs.
Prehearing Conferences (Sec. 386.55)
FMCSA is not proposing any changes to the language in current Sec.
386.55.
Hearings (Sec. 386.56)
FMCSA is not proposing any changes to the language in current Sec.
386.56.
Proposed Findings of Fact, Conclusions of Law (Sec. 386.57)
FMCSA is not proposing any changes to the language in current Sec.
386.57.
Burden of Proof (Sec. 386.58)
FMCSA is not proposing any changes to the language in current Sec.
386.58.
Decision (Sec. 386.61)
FMCSA is not proposing any changes to the language in current Sec.
386.61.
Review of Administrative Law Judge's Decision (Sec. 386.62)
FMCSA is not proposing any changes to the language in current Sec.
386.62.
Decision on Review (Sec. 386.63)
FMCSA is not proposing any changes to the language in current Sec.
386.63.
Reconsideration (Sec. 386.64, 1996 NPRM proposed as Sec. 363.114)
As proposed, most of the existing text in Sec. 386.64 would become
paragraph (a). We would also add a new provision stating that a
petition for reconsideration stays only the payment of a civil penalty.
No other aspects of the final agency order would be stayed unless
ordered by the Assistant Administrator. The revised section also
includes proposed new paragraphs (b)-(e). Proposed paragraph (b) would
codify current case law regarding petitions for reconsideration of
final agency orders issued due to default by the respondent. This
change would clarify that the only issue that will be considered under
the petition for reconsideration of a final agency order based on
default is whether a default occurred. 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. Proposed paragraphs (c)-(e) provide timelines for
serving answers and when a decision must be made by the Assistant
Administrator.
Failure To Comply With Final Agency Order (Sec. 386.65)
FMCSA is not proposing any changes to the language in current Sec.
386.65.
Motions for Rehearing or for Modification (Sec. 386.66)
This section would be deleted in its entirety and all motions
served in accordance with proposed Sec. 386.34.
Appeal (Sec. 386.67, 1996 NPRM Proposed as Sec. 363.115)
Section 386.67 would be revised to adopt the changes proposed for
Sec. 363.115 in the 1996 NPRM. The heading for Sec. 386.67 would be
changed from ``Appeal'' to ``Judicial review.'' Current Sec. 386.67
would be divided into two paragraphs, (a) and (b). The word
``hearings'' would be replaced with ``administrative adjudication'' and
in the second half of the section, ``final agency order'' would replace
``order.'' The effect of these changes would be to liberally interpret
49 U.S.C. 521(b)(8) to allow judicial review for contested claims
resulting in a final agency order, but not for those claims that are
resolved through settlement agreement or in which respondent failed to
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 proposed rules provide
for resolution of contested claims in an administrative adjudication
without formal hearing.
Subpart F--Injunctions and Imminent Hazards
FMCSA is not proposing any changes to the language in current
Sec. Sec. 386.71-386.72.
Subpart G--Penalties
FMCSA is not proposing any changes to the language in current
Sec. Sec. 386.81-386.84.
Appendices
FMCSA is not proposing any 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 that this action is not a significant
regulatory action within the meaning of Executive Order 12866 or
significant within the meaning of Department of Transportation
regulatory policies and procedures. The proposals contained in this
document would not result in an annual effect on the economy of $100
million or more, or lead to a major increase in costs or prices, or
have significant adverse effects on the United States economy. This
proposal would
[[Page 61624]]
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
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 SNPRM on small
entities. No economic impacts of this rulemaking are foreseen, as the
rule would impose no additional substantive burdens that are not
already required by the regulations to which these procedural rules
would serve. Therefore, FMCSA certifies that this proposed 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 herein
in no way preempt State authority or jurisdiction, nor do they
establish any conflicts with existing State role in the regulation and
enforcement of commercial motor vehicle safety. It has therefore been
determined that the SNPRM does not have sufficient federalism
implications to warrant the preparation of a federalism assessment.
Unfunded Mandates Reform Act of 1995
This proposed 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 that 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 that 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
Property Rights.
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
Unified Agenda.
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.
Issued on: October 13, 2004.
Annette M. Sandberg,
Administrator.
In consideration of the foregoing, FMCSA proposes to amend 49 CFR
part 386, as follows:
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
1.73.
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 definitions for Administration and
Final agency order; and by adding definitions for Administrative
adjudication, Agency, Agency Counsel, Decisionmaker, Default,
Department, FMCSRs, Formal hearing, Hearing officer, HMRs, Informal
hearing, Interstate commerce, Mail, Notice of Claim, Notice of
Violation, Person, Reply, Secretary, Service, State, and Submission of
written evidence without hearing to read as follows:
Sec. 386.2 Definitions.
* * * * *
Administration means the Federal Motor Carrier Safety
Administration.
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.
* * * * *
Decisionmaker means the Assistant Administrator of the Federal
Motor Carrier Safety Administration, acting in the capacity of the
decisionmaker or any person to whom the Assistant Administrator has
delegated his/her
[[Page 61625]]
decisionmaking 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 any failure to reply in the time required or failure
to submit an adequate reply in accordance with the requirements of this
part, which may lead to a final agency order or additional penalties.
Department means the Department of Transportation.
* * * * *
Final agency order means a notice of final agency action issued
pursuant to this part by either the appropriate agency Field
Administrator (for default judgments under Sec. 386.15), or the agency
Assistant Administrator, typically requiring payment of a civil penalty
by a broker, freight forwarder, driver, shipper, or motor carrier.
FMCSRs means the Federal Motor Carrier Safety Regulations.
Formal hearing means the full opportunity by respondent to present
relevant discovery, facts, and evidence, including the right of cross-
examination of witnesses and the preparation of a written record.
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 full opportunity by respondent to present
relevant facts and evidence before a hearing officer, who then prepares
findings of fact and recommendations to the decisionmaker.
Interstate commerce means trade, traffic, or transportation in the
United States--
(1) Between a place in a State and a place outside of such State
(including a place outside of the United States);
(2) Between two places in a State through another State or a place
outside of the United States; or
(3) Between two places in a State as part of trade, traffic, or
transportation originating or terminating outside the State or the
United States.
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 a document alleging a violation of the
FMCSRs, HMRs, or Commercial Regulations, for which a proposed civil
penalty has been assessed.
Notice of Violation (NOV) means a document alleging a violation of
the FMCSRs, HMRs, or Commercial Regulations, for which a warning or
other 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 to the claim.
* * * * *
Secretary means the Secretary of Transportation.
Service means to cause delivery of a document, motion, or pleading.
State means a State of the United States, the District of Columbia,
the Commonwealth of Puerto Rico, the Commonwealth of the Northern
Mariana Islands, American Samoa, Guam, and the Virgin Islands.
Submission of written evidence without hearing means the right of
respondent to present written evidence and legal argument to the agency
decisionmaker, or his/her representative, in lieu of an oral hearing.
5. Add Sec. 386.3 to Subpart A to read as follows:
Sec. 386.3 Separation of functions.
(a) Civil penalty proceedings, including hearings, will be
prosecuted by agency counsel who represents the Field Administrator.
(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 action 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.
(c) The Deputy Chief Counsel, Assistant Chief Counsel for
Enforcement and Litigation, attorneys on their staff, and field
enforcement attorneys 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,
attorneys serving as Adjudications Counsel, and attorneys on the staff
of the Chief Counsel advise the decisionmaker regarding civil penalty
proceedings under this part.
6. Add Sec. 386.4 to Subpart A to read as follows:
Sec. 386.4 Appearances and rights of parties.
(a) Any party may be heard either in person, by counsel, or by
other representatives, as the party elects.
(b) Any party may be accompanied, represented, or advised by an
attorney or representative designated by the party. An attorney or
representative who represents a party must file a notice of appearance
in the action, in the manner provided in Sec. 386.7 of this subpart,
and will serve a copy of the notice of appearance on each party, in the
manner provided in Sec. 386.6 of this subpart, before participating in
any proceeding governed by this subpart. The attorney or representative
will include his/her name, address, telephone number, and facsimile
number in the notice of appearance.
7. Add Sec. 386.5 to Subpart A to read as follows:
Sec. 386.5 Form of filings and extensions of time.
(a) Length and content. 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.
(b) Paper and margins. Briefs 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.
(c) Spacing, type, and font minimal. Briefs 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 type.
(d) 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 Assistant
Administrator, Administrative Law Judge or Hearing Officer 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. All requests for
extensions of time must be filed with:
[[Page 61626]]
(1) The Assistant Administrator if the matter is pending before the
agency decisionmaker; or
(2) The Hearing Officer if the matter has been assigned to a
hearing officer for informal hearing; or
(3) The Administrative Law Judge if the matter has been called for
formal hearing; or
(4) The Field Administrator if the matter is not yet before the
agency decisionmaker.
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 registered agent. If a notice of appearance has been filed in
the specific case in question accordance with Sec. 386.4, service is
to be made on the party's attorney of record or their 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
is complete.
(c) Certificate of service. A certificate of service will accompany
all documents served in an administrative proceeding. It must consist
of a certificate of personal delivery or a certificate of mailing,
facsimile, or commercial delivery service, signed by the person making
the personal delivery or mailing the document, the date the service
occurred, and must include a list of persons to be served in accordance
with Sec. 386.7.
(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) Service by the administrative law judge. The administrative law
judge will serve a copy of each document including, but not limited to,
notices of prehearing conferences and hearings, rulings on motions,
decisions, and orders, upon each party to the proceedings by personal
delivery or by mail, provide a courtesy copy to the agency
decisionmaker via the agency's adjudications counsel, and forward the
original to DOT Dockets.
(f) Valid service. A properly addressed document, sent in
accordance with this subpart, which was returned, not claimed, 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. is deemed to have been made
on the next day that is not a Saturday, Sunday, or legal holiday.
(g) Presumption of service. There shall be a presumption of service
if the document is served where a party or a person customarily
receives mail.
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. If the matter has been transferred to the DOT
Docket, the original of all documents subsequently served in the matter
must also be filed as follows: U.S. DOT Dockets (FMCSA), 400 7th
Street, SW., Room PL-401, Washington, DC 20590, Attention: Hearing
Docket Clerk. A person will serve a copy of each document on each party
in accordance with Sec. 386.6 of this subpart.
(b) Form. Each document must be typewritten or legibly handwritten.
(c) 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.
10. Add Sec. 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 mailing.
(2) Documents are not deemed filed until received by the docket
clerk.
(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
period.
11. Amend Sec. 386.11 by revising paragraphs (b) and (c) to read
as follows:
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 that the person has
violated provisions of the FMCSRs, HMRs, or Commercial Regulations. 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. The notice of
violation will address the following issues, as appropriate:
(1) The specific alleged violations.
(2) Any specific actions that 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 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 contains the following:
(i) A statement setting forth the facts alleged.
(ii) Any regulation allegedly violated by the respondent.
(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.
[[Page 61627]]
(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.
Sec. 386.12 [Amended]
12. Remove Sec. 386.12(a) and (b) in their entirety. Then
redesignate current Sec. 386.12 (c) through (e) as proposed Sec.
386.12 (a) through (c) respectively.
13. Revise Sec. 386.14 to read as follows:
Sec. 386.14 Reply.
(a) Time for reply to the notice of claim. Respondent must reply to
the notice of claim in writing within 30 days following service. The
reply is to be served in accordance with Sec. 386.6 upon the service
center who issued the notice.
(b) Contents of 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 claimed in the notice of claim in
accordance with Sec. 386.18 of this part;
(2) Entering into settlement negotiations (while preserving the
right to contest the claim at a later date). This option is not
available if the notice of claim is based upon an enhanced penalty
pursuant to the Motor Carrier Safety Improvement Act of 1999 (MCSIA)
Sec. 222, 49 U.S.C. 521 note;
(3) Contesting the claim by requesting administrative adjudication
pursuant to paragraph (d) of this section; or
(4) Seeking binding arbitration in accordance with the agency's
program. Although the amount of the proposed penalty may be disputed,
referral is contingent upon an admission of liability that the
violations occurred.
(c) Failure to reply to the notice of claim. (1) Respondent's
failure to reply in accordance with paragraph (a) may result in the
issuance of a notice of final agency order by the Field Administrator.
The notice will declare respondent to be in default and further declare
the notice of claim, including the civil penalty assessed 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 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. Under very limited circumstances, the default may be
reviewed by the Assistant Administrator in accordance with Sec.
386.64(b) where a respondent can demonstrate excusable neglect, a
meritorious defense, and 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)(3) of this section. An administrative adjudication is a
process to resolve contested claims before the Assistant Administrator,
Administrative Law Judge, or agency hearing officer.
(1) Contents. In addition to the general requirements of this
section, the reply must 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 Claimant.
(ii) Must include all affirmative defenses, including those
relating to jurisdiction, limitations, and procedure.
(iii) Must state which one of the following respondent seeks:
(A) To submit written evidence without hearing.
(B) An informal oral evidentiary hearing.
(C) A formal oral evidentiary hearing.
14. Revise Sec. 386.16 to read as follows:
Sec. 386.16 Action on replies to the notice of claim.
(a) Settlement negotiations.
(1) Settlement negotiations must be concluded within 90 days of
service of the notice of claim. If a settlement has not been reached
prior to the end of this period, agency counsel will file a notice of
impasse, which automatically triggers respondent's obligation to
proceed under Sec. 386.14(b)(1),(3), or (4).
(2) Either party may, at any time, discontinue settlement
negotiations by filing a notice with the other party. Respondent must,
within 30 days following service of the notice, serve a reply under
Sec. 386.14(b)(1),(3), or (4).
(3) Nothing in this subsection is intended to prohibit the parties
from entering into settlement negotiations at any time during the
administrative adjudication process. If however the matter is before
the agency decisionmaker, settlement between the parties is contingent
upon approval of the agency decisionmaker pursuant to Sec. 386.22(c).
(b) Requests to submit written evidence without oral hearing. Where
respondent has elected to submit written evidence in accordance with
Sec. 386.14(d)(1)(D)(i):
(1) Agency counsel must, not later than 45 days following service
of respondent's reply, serve all written evidence and argument in
support of the notice of claim to the Assistant Administrator via DOT
Dockets 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 30 days following service of
agency counsel's written evidence and argument, serve its written
evidence and argument with the Assistant Administrator via DOT Dockets
in accordance with Sec. Sec. 386.6 and 386.7.
(3) All written evidence submitted by the parties must conform to
the requirements of Sec. 386.49.
(4) Following submission of evidence and argument as outlined in
this section, the Assistant Administrator may issue a final decision
and order based on the evidence and arguments submitted, or may issue
any other order as may be necessary to adjudicate the matter.
(c) Requests for hearing.
(1) If a request for an oral 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.
(2) If a respondent requests a formal or informal oral evidentiary
hearing in its reply, the Field Administrator must serve upon the
Assistant Administrator and respondent a notice of consent or objection
to the request within 20 days of service of respondent's reply.
(3) Requests for formal oral hearing. If the Field Administrator
objects to a request for formal oral hearing, he/she must serve a
motion for final agency order pursuant to Sec. 386.36 within 30 days
of service of the objection. The motion must set forth the reasons why
claimant is entitled to judgment as a matter of law. Respondent must,
within
[[Page 61628]]
30 days of service of the objection and motion, submit and serve a
response to rebut movant's objection. After reviewing the record, the
Assistant Administrator will either set the matter for hearing by
referral to a Department of Transportation Administrative Law Judge or
issue a final agency order based upon the submissions.
(4) Requests for informal oral hearing.
(i) If the Field Administrator objects to a request for an informal
oral 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 (c)(2) of this section.
Based upon the notice of claim, the reply, and the objection, the
Assistant Administrator will issue an order granting or denying the
request for informal hearing.
(A) Informal hearing granted. If the request for informal oral
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. By participating in an informal hearing, respondent waives its
right to a formal oral hearing.
(B) Informal hearing denied. If the request for informal oral
hearing is denied, the Field Administrator must serve a motion for
final agency order pursuant to Sec. 386.36 within 30 days. The motion
must set forth the reasons why claimant is entitled to judgment as a
matter of law. Respondent must, within 30 days of service of the
objection and motion, submit and serve a response to rebut movant's
objection. After reviewing the record, the Assistant Administrator will
set the matter for formal hearing by referral to a Department of
Transportation Administrative Law Judge, will assign the matter for
informal oral hearing, or will issue a final agency order based upon
the submissions.
(ii) Nothing in this section shall limit the Assistant
Administrator's authority to refer any matter for formal oral hearing,
even in instances where respondent seeks only an informal oral 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 4 CFR part 103.
(b) If respondent elects to pay the full amount in its reply,
payment must be postmarked within 30 days following service of the
notice of claim. Failure to serve payment within 30 days of service of
the notice of claim will 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, payment of the full amount in
its reply 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 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 Assistant Administrator or 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 Assistant Administrator or his/her designee;
(vi) A statement that failure to pay in accordance with the terms
of the agreement which has been adopted as a Final Order will result in
the loss of any reductions in penalties for claims found to be valid,
and the original amount claimed 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) An executed settlement agreement is a final agency order and is
binding on the respondent and the agency according to its terms. The
respondent's consent to a settlement agreement that has not been
executed by the Assistant Administrator or his/her designee may not be
withdrawn for a period of 30 days after it is executed by the
respondent.
(b) Civil forfeiture proceedings not before agency decisionmaker.
When a respondent has 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.
(c) Civil forfeiture proceedings before agency decisionmaker. When
a respondent has agreed to a settlement of a civil forfeiture before a
final order has been issued, the parties may execute an appropriate
agreement for disposing 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.
(d) Civil forfeiture proceedings before administrative law judge.
When a respondent has agreed to a settlement of a civil forfeiture
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.
(e) Civil forfeiture proceedings before agency hearing officer.
When a respondent has agreed to a settlement of a civil forfeiture
before the hearing is concluded, the parties may execute an appropriate
agreement for disposing 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
[[Page 61629]]
Assistant Administrator accepts the agreement, he/she will enter an
order in accordance with its terms.
Sec. 386.23 [Removed]
19. Remove Sec. 386.23 in its entirety.
20. Revise Sec. 386.31 to read as follows:
Sec. 386.31 Official notice.
The Assistant Administrator or administrative law judge may take
official notice of any fact not appearing in evidence in the record.
Where the decision rests on a material and disputable fact of which the
agency has taken official notice, a party is entitled to an opportunity
to demonstrate the contrary. If a final agency order has been issued,
the request will be in accordance with Sec. 386.64 of this part. If
official notice is taken prior to the issuance of a final agency order,
the request must comply with Sec. 386.63 of this part.
Sec. 386.32 [Removed]
21. Remove Sec. 386.32 in its entirety.
Sec. 386.33 [Removed]
22. Remove Sec. 386.33 in its entirety.
Sec. 386.34 [Removed]
23. Remove Sec. 386.34 in its entirety.
Sec. 386.35 [Redesignated as Sec. 386.34]
24. Redesignate Sec. 386.35 as Sec. 386.34.
25. Amend redesignated Sec. 386.34(c) by removing the number ``7''
and adding, in its place, the number ``20.''
Sec. 386.36 [Redesignated as Sec. 386.35]
26. Redesignate Sec. 386.36 as Sec. 386.35.
27. Add new Sec. 386.36.
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. If the matter is
pending before a Field Administrator when the motion is made, the
filing is to be served in accordance with Sec. Sec. 386.6 and 386.7.
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. 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. The motion will state with particularity the
grounds upon which it is based and the substantial matters of law to be
argued. The judgment sought will be rendered forthwith if, after
reviewing the record in a light most favorable to the non-moving party,
shows no genuine issue exists as to any material fact.
(c) Answer to Motion. The non-moving party will, within 30 days of
service of the motion for final order, submit and serve a response to
rebut movant's motion.
28. Revise Sec. 386.37 to read as follows:
Sec. 386.37 Discovery methods.
(a) Parties may obtain discovery by one or more of the following
methods: Depositions upon oral examination or written questions;
written interrogatories; production of documents or other evidence for
inspection and other purposes; physical and mental examinations; and
requests for admission.
(b) 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, the Federal Rules of
Evidence apply in all administrative adjudications.
29. 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.
Interrogatories may be served on the claimant after commencement of the
action and on any other party with or after service of the process and
initial pleading upon that party.
(b) A 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
exceed 30.
(c) Each interrogatory shall be answered separately and fully in
writing 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, except that a
respondent may serve upon claimaint its answers or objections within 45
days after service of the notice of claim 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 copy of the interrogatories, answers, and all related
pleadings must be served on the Assistant Administrator or, in cases
that have been called to a hearing, on the administrative law judge,
and upon 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.
30. Revise Sec. 386.46 to read as follows:
Sec. 386.46 Depositions.
(a) When, how, and by whom taken. The deposition of any witness may
be taken at reasonable times subsequent to the appointment of an
Administrative Law Judge. Prior to appointment of an Administrative Law
Judge, a party may petition the Assistant Administrator, in accordance
with Sec. 386.37, for leave to conduct a deposition based on good
cause shown. Depositions may be taken by oral examination or upon
written interrogatories before any person having power to administer
oaths.
(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
cause shown.
(d) 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
[[Page 61630]]
administering the oath. The person who took the deposition must seal
the deposition in an envelope and mail it by certified mail to the
Assistant Administrator or the Administrative Law Judge, if one has
been appointed. 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.
(e) Witness limit. No party may seek deposition testimony of more
than 5 witnesses per side without leave of the decisionmaker or
Administrative Law Judge for good cause shown. Individual depositions
are not to exceed 8 hours for any one witness.
(f) 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.
Sec. 386.50 [Removed]
31. Remove Sec. 386.50 in its entirety.
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 showing of injustice, prejudice, or
irreparable harm to the non-moving party.
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.
(c) Interlocutory appeals of right. If a party notifies the
Administrative Law Judge of an interlocutory appeal of right, the
proceedings are stayed until the Assistant Administrator issues a
decision on the interlocutory appeal. A party may file an interlocutory
appeal with the Assistant Administrator, without the consent of the
Administrative Law Judge, before the Administrative Law Judge has made
a decision, in any of the following situations:
(1) A ruling or order by the Administrative Law Judge barring a
person from the proceedings.
(2) Failure of the Administrative Law Judge to dismiss the
proceedings in accordance with Sec. 386.51(b).
(3) A ruling or order by the Administrative Law Judge in violation
of Sec. 386.54(b).
(4) Denial by the Administrative Law Judge of a motion to
disqualify under Sec. 363.54(c).
(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 decision forming the
basis of an interlocutory appeal of right or not later than 10 days
after the Administrative Law Judge's decision granting an interlocutory
appeal for cause, whichever is appropriate. A party must file a reply
brief, if any, with the 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, on the record and as a party of the decision in
the proceedings, 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. 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.
(7) Hold conferences to settle or simplify the issues by the
consent of the parties.
(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
any document.
(10) Make findings of fact and conclusions of law, and issue
decisions.
(b) Limitations on the power of the Administrative Law Judge. The
Administrative Law Judge is bound by the procedural requirements of
this part and the precedent opinions of the agency. If the
Administrative Law Judge imposes any sanction not specified in this
part, a party may file an interlocutory appeal of right with the
Assistant Administrator pursuant to Sec. 386.52. 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.
[[Page 61631]]
Any request for a change in such assignment, including
disqualification, will be considered only for good cause which would
unduly prejudice the proceeding.
35. Revise Sec. 386.64 to read as follows:
Sec. 386.64 Reconsideration.
(a) Within 20 days following the issuance of the Assistant
Administrator's final agency order, any party may petition the
Assistant Administrator for reconsideration of his/her findings of
fact, conclusions of law, or final agency order. If a civil penalty was
imposed, the filing of a petition for reconsideration stays only the
payment of the penalty. No other aspects of the final agency order are
stayed unless the Assistant Administrator so orders.
(b) In the event a Notice of Final Agency Order is issued by a
Service Center as a result of the respondent's failure to file any
reply in accordance with Sec. 386.14, the only issue that will be
considered upon reconsideration is whether a default has occurred under
Sec. 386.14(c).
(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.
Sec. 386.66 [Removed]
36. Remove Sec. 386.66.
37. Revise Sec. 386.67 to read as follows:
Sec. 386.67 Judicial review.
(a) Any aggrieved person, who, after an administrative
adjudication, is adversely affected by a final agency order issued
under 49 U.S.C. 521 may, within 30 days, 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 or
not the findings and conclusions in the final agency order were
supported by substantial evidence or otherwise 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. In Appendix A to Part 386:
Revise section I, remove and reserve section II, and revise section
III to read as follows:
Appendix A to Part 386--Penalty Schedule; Violations of Notices and
Orders
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
established.)
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 waiver of any reduction in the original claim
found to be valid, and immediate restoration to the full amount
assessed in the notice of claim.
* * * * *
[FR Doc. 04-23393 Filed 10-18-04; 8:53 am]