[Federal Register: December 28, 2004 (Volume 69, Number 248)]
[Notices]
[Page 77828-77830]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28de04-167]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2004-19882]
Section 222 of the Motor Carrier Safety Improvement Act of 1999;
Clarification of Agency Policy Statement
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of clarification; agency policy statement.
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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA)
clarifies its September 8, 2000 policy statement implementing section
222 of the Motor Carrier Safety Improvement Act of 1999. Section 222
requires the agency to assess maximum statutory penalties if a person
is found to have committed a pattern of violations of critical or acute
regulations, or previously committed the same or a related violation of
critical or acute regulations. This notice clarifies the agency use of
previous violations to assess maximum penalties under section 222. It
also discusses the notification procedures and extraordinary
circumstances that may warrant assessment of less than the maximum
penalty.
[[Page 77829]]
DATES: December 28, 2004.
FOR FURTHER INFORMATION CONTACT: Mary Pat Woodman, Chief of the
Enforcement and Compliance Division (MC-ECE), (202) 366-9699, FMCSA,
400 Seventh Street, SW., Washington, DC 20590. You may also e-mail
marypat.woodman@fmcsa.dot.gov.
SUPPLEMENTARY INFORMATION:
Background
Statutory Authority
Section 222 of the Motor Carrier Safety Improvement Act of 1999
(MCSIA), (Public Law 106-159, 113 Stat. 1748, 1769, Dec. 9, 1999;
codified in 49 U.S.C. 521 note) directed the Secretary of
Transportation to:
(a) Ensure that motor carriers operate safely by imposing civil
penalties at a level calculated to ensure prompt and sustained
compliance with Federal motor carrier safety and commercial driver's
license laws.
(b) Establish and assess minimum civil penalties for each violation
of laws referred to under (a) above; and, assess the maximum civil
penalty for each violation by any person who is found to have committed
a pattern of violations of critical or acute regulations or to have
previously committed the same or a related violation of critical or
acute regulations.
(c) If the Secretary determines and documents that extraordinary
circumstances exist which merit the assessment of any civil penalty
lower than any level established above, the Secretary may assess such
lower penalty. Further, in cases where a person has been found to have
previously committed the same or a related violation of critical or
acute regulations, extraordinary circumstances may be found to exist
when the Secretary determines that repetition of such violation does
not demonstrate a failure to take appropriate remedial action.
September 8, 2000, Policy Statement
On September 8, 2000, FMCSA sent a policy memorandum changing its
fine assessment policy to meet the requirements of section 222 to its
Field Administrators, Enforcement Team leaders, and State Directors.
The memorandum defined a pattern of violations or previously committed
violations as three cases within the last six years. The policy
memorandum, in pertinent part, states:
(Page 1, third paragraph, beginning with the second sentence)
The three cases will consist of two cases which have been closed
followed by discovery of new violations, all of which involve the
same Part (e.g. Part 395). The six year period is measured from the
end of the first to the end of the third compliance review (CR). If
a case is appealed, the time needed to process the appeal should not
be included as part of the six year period. If the third CR (and
subsequent CRs) reveals violations of the same Part cited in two
previous CRs within the last six years, a ``pattern of violations''
or ``previously committed violations'' is established and the claim
letter should assess the maximum penalty for that count(s).
An electronic copy of the policy memorandum is available through
DOT's Docket Management System (DMS) Web site at http://dms.dot.gov, by
using the docket number of this notice, FMCSA-2004-19882. The DMS
facility is located on the Plaza Level of the Nassif Building, 400
Seventh Street, SW., Washington, DC.
General Discussion of Questions
We received several questions on the interpretation and
implementation of FMCSA's policy memorandum. The agency addresses these
questions and clarifies its implementation policy.
1. Will the Agency use Enforcement Cases Closed Before Issuance of the
Policy Memorandum To Support Assessment of the Maximum Penalty?
MCSIA was signed into law on December 9, 1999, and FMCSA was
created effective January 1, 2000. However, FMCSA did not provide
guidance regarding implementation of section 222 until its September 8,
2000, policy memorandum was issued. We believe fairness to the motor
carrier industry will be best served by using enforcement cases closed
after September 8, 2000, as prior violations to support assessing
maximum penalties under section 222 of MCSIA. Therefore, the agency
will not use enforcement cases closed before September 8, 2000.
2. What Type of Agency Action Constitutes a Finding That a Violation
was Committed for Purposes of Assessing the Maximum Penalty Under
Section 222?
The policy memorandum provided that section 222 of MCSIA applies
when there are two closed cases followed by discovery of new violations
of the same Code of Federal Regulations (CFR) Part within a 6-year
period, measured from the end of the first Compliance Review (CR) to
the end of the third CR. It stated that the previous cases had to be
closed but did not indicate whether an agency adjudication of the
violations is required before a closed enforcement case is used as the
basis for assessing the maximum civil penalty. We interpret section 222
as requiring that a previous enforcement case include either: (1) An
explicit adjudicatory finding of a violation by the agency (Assistant
Administrator or a DOT Administrative Law Judge); (2) an express
admission of liability by the respondent in its reply to the Notice of
Claim (NOC) and in a settlement agreement; or (3) a Final Agency Order
issued under 49 CFR 386.14(e), based on respondent's failure to reply
to the NOC.\1\
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\1\ A Notice of Claim (NOC) becomes a Final Agency Order if the
respondent fails to reply to the NOC within the time prescribed by
49 CFR 386.14. Under these circumstances, the NOC becomes the Final
Agency Order 25 days after it is served.
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A settlement agreement lacking in language admitting liability will
not be considered a prior violation for purposes of section 222.
Therefore, in response to a NOC advising respondent that payment will
constitute an admission of the violations set forth in the NOC, payment
of a civil penalty will constitute an express admission of liability.
In response to a NOC that lacks such an advisory, payment of a civil
penalty will not be construed as a prior violation for purposes of
section 222, unless accompanied by a written admission of violations
alleged in the NOC.
3. How is the 6 Year Period Calculated for Determining When the Maximum
Penalty Will Be Assessed?
The 6 year period is determined by starting with the closing date
of the CR or roadside inspection in the third enforcement case and
determining whether there are two prior closed enforcement cases
against the respondent involving violations of the same CFR Part during
the immediately preceding 6 years. Because we are requiring an
adjudication or admission of liability before using a previous
enforcement case as a finding of a committed violation, a case will be
considered closed as of the date of the Final Agency Order.\2\ In the
event the case is resolved without a Final Agency Order, the relevant
date will be the date of the response to the NOC enclosing payment of
the civil penalty or the date the settlement is executed by both
parties, whichever is later.\3\
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\2\ The case is considered closed following issuance of the
Final Agency Order and the exhaustion of any post order notions such
as a Petition for Reconsideration. However, if a Petition for
Reconsideration of the Final Agency Order in a previous case is
pending before the agency, the case should not be considered closed.
\3\ If a settlement agreement concludes a case pending before an
Administrative Law Judge or the Assistant Administrator, the closing
date would be the date the settlement agreement is accepted by the
decisionmaker.
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[[Page 77830]]
4. What Extraordinary Circumstances Warrant Assessment of Less Than the
Maximum Penalty?
Requests to reduce the penalty based on extraordinary circumstances
will be considered on a case-by-case basis. Section 222 of MCSIA does
not define the term ``extraordinary circumstances,'' but expressly
provides that extraordinary circumstances meriting a reduction in the
maximum penalty may be found to exist if we determine and document that
repetition of the violation does not demonstrate a failure to take
appropriate remedial action. Although the statute does not limit
application of the extraordinary circumstances factor, we do not
believe it is appropriate to attempt to define all possible potential
extraordinary circumstances, except as indicated in the next section.
The respondent carries the burden to demonstrate that extraordinary
circumstances merit a reduction in the maximum penalty in response to
the NOC and during the adjudication of the case.
5. What Type of Notice Will Be Required Before Assessing the Maximum
Penalty?
Although section 222 of MCSIA does not specifically require prior
notice to offenders that future violations may result in the imposition
of maximum penalties, the September 8, 2000, policy statement provided
that offenders should be given such notice as part of the close-out of
the second CR. This guidance is now modified and the agency may assess
maximum penalties in all appropriate cases. To address this issue, we
(1) modified our standard NOC to advise respondents of the requirements
of section 222 of MCSIA, and (2) published this amended policy
statement in the Federal Register and posted it on FMCSA's Web site at
http://www.fmcsa.dot.gov. No additional notice requirements are
necessary.
6. Do FMCSA Service Centers Have Authority To Settle Cases Subject to
Section 222 for Less Than the Maximum Penalty?
Section 222(a) of MCSIA provides that the Secretary ``should ensure
that motor carriers operate safely by imposing civil penalties at a
level calculated to ensure prompt and sustained compliance with Federal
motor carrier safety and commercial driver's license laws'' (emphasis
added). Section 222(b)(2) requires the Secretary to assess the maximum
penalty in appropriate circumstances. A question was raised on whether
Service Centers may settle cases subject to section 222 for less than
the maximum penalty, provided the maximum penalty is assessed in the
NOC.
Civil Penalties are ``assessed'' in the NOC and are ``imposed'' in
an agency Order or settlement agreement. Since the literal language of
the statute requires that maximum penalties be assessed (but not
necessarily imposed) in section 222 cases, this would arguably permit
settlement of cases below the maximum penalty, provided the negotiated
penalty (the penalty actually imposed) is calculated to ensure prompt
and sustained compliance with the Federal Motor Carrier Safety
Regulations. To ensure uniformity in implementing section 222, FMCSA
Service Centers will not, at this time, be permitted to settle section
222 cases for less than the maximum penalty assessed. However,
settlement agreements establishing terms of payment will be permitted.
As the agency gains more experience in applying section 222, this
settlement limitation will be evaluated.
Issued on: December 16, 2004.
Annette M. Sandberg,
Administrator.
[FR Doc. 04-28343 Filed 12-27-04; 8:45 am]