Federal Register / Vol. 69, No. 202 / Wednesday, October 20, 2004 / Proposed Rules 61617

of this Commission decision is available 

for inspection and copying during 

normal business hours in the 

Commission’s Reference Center, 445 

Twelfth Street, SW., Washington, DC 

20554. The full text of this Commission 

decision is available for inspection and 

copying during normal business hours 

in the Commission’s Reference Center, 

445 Twelfth Street, SW., Washington, 

DC 20554. The complete text of this 

decision may also be purchased from 

the Commission’s duplicating 

contractor, Best Copy and Printing, Inc., 

445 Twelfth Street, SW., Room CY–

B402, Washington, DC 20054, telephone 

1–800–378–3160 or http://

www.BCPIWEB.com.

Provisions of the Regulatory 

Flexibility Act of 1980 do not apply to 

this proceeding. 

Members of the public should note 

that from the time a Notice of Proposed 

Rule Making is issued until the matter 

is no longer subject to Commission 

consideration or court review, all ex 

parte contacts are prohibited in 

Commission proceedings, such as this 

one, which involve channel allotments. 

See 47 CFR 1.1204(b) for rules 

governing permissible ex parte contact. 

For information regarding proper 

filing procedures for comments, see 47 

CFR 1.415 and 1.420.

List of Subjects in 47 CFR Part 73

Radio, Radio broadcasting.

For the reasons discussed in the 

preamble, the Federal Communications 

Commission proposes to amend 47 CFR 

part 73 as follows:

PART 73—RADIO BROADCAST 

SERVICES 

1. The authority citation for part 73 

continues to read as follows:

Authority: 47 U.S.C. 154, 303, 334 and 336.

§ 73.202 [Amended] 

2. Section 73.202(b), the Table of FM 

Allotments under Louisiana, is 

amended by removing Channel 252A at 

Leesville and by adding New Llano, 

Channel 252C3.

Federal Communications Commission. 

John A. Karousos, 

Assistant Chief, Audio Division, Media 

Bureau.

[FR Doc. 04–23458 Filed 10–19–04; 8:45 am] 

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73

[DA 04–3171; MB Docket No. 04–387; RM–

11083] 

Radio Broadcasting Services; 

Cedarville, CA

AGENCY: Federal Communications 

Commission.

ACTION: Proposed rule.

SUMMARY: This document requests 

comments on a petition for rulemaking 

filed by Jeffrey Cotton requesting the 

allotment of Channel 260A at 

Cedarville, California as that 

community’s first local service. The 

coordinates for Channel 260A at 

Cedarville are 41–31–45 NL and 120–

10–20 WL located at the center of the 

community.

DATES: Comments must be filed on or 

before November 29, 2004, and reply 

comments on or before December 14, 

2004.

ADDRESSES: Secretary, Federal 

Communications Commission, 445 

Twelfth Street, SW., Washington, DC 

20554. In addition to filing comments 

with the FCC, interested parties should 

serve the petitioner as follows: Jeffrey 

Cotton, Route 60–5b, Lake City, 

California 96115.

FOR FURTHER INFORMATION CONTACT:

Helen McLean, Media Bureau, (202) 

418–2738.

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s Notice of 

Proposed Rule Making, MB Docket No. 

04–387, adopted October 6, 2004, and 

released October 8, 2004. The full text 

of this Commission notice is available 

for inspection and copying during 

normal business hours in the FCC’s 

Reference Information Center at Portals 

II, CY–A257, 445 Twelfth Street, SW., 

Washington, DC. This document may 

also be purchased from the 

Commission’s duplicating contractors, 

Best Copy and Printing, Inc., 445 12th 

Street, SW., Room CY–B402, 

Washington, DC 20554, telephone 1–

800–378–3160 or http://

www.BCPIWEB.com.

Provisions of the Regulatory 

Flexibility Act of 1980 do not apply to 

this proceeding. 

Members of the public should note 

that from the time a Notice of Proposed 

Rule Making is issued until the matter 

is no longer subject to Commission 

consideration or court review, all ex 

parte contacts are prohibited in 

Commission proceedings, such as this 

one, which involve channel allotments. 

See 47 CFR 1.1204(b) for rules 

governing permissible ex parte contacts. 

For information regarding proper 

filing procedures for comments, see 47 

CFR 1.415 and 1.420.

List of Subjects in 47 CFR Part 73

Radio, Radio broadcasting.

For the reasons discussed in the 

preamble, the Federal Communications 

Commission proposes to amend 47 CFR 

part 73 as follows:

PART 73—RADIO BROADCAST 

SERVICES 

1. The authority citation for part 73 

continues to read as follows:

Authority: 47 U.S.C. 154, 303, 334 and 336.

§ 73.202 [Amended] 

2. Section 73.202(b), the Table of FM 

Allotments under California, is 

amended by adding Cedarville, Channel 

260A.

Federal Communications Commission. 

John A. Karousos, 

Assistant Chief, Audio Division, Media 

Bureau.

[FR Doc. 04–23459 Filed 10–19–04; 8:45 am] 

BILLING CODE 6712–01–P

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 

61618 Federal Register / Vol. 69, No. 202 / Wednesday, October 20, 2004 / Proposed Rules 

1The 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.

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.

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-ofservice 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 

Federal Register / Vol. 69, No. 202 / Wednesday, October 20, 2004 / Proposed Rules 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 § 363.302 (addressed in 

§ 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 § 363.102, 

current § 386.11), the reply form 

(proposed § 363.103), and the notice of 

determination and letter of 

disqualification (proposed § 363.202, 

current § 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 § 386.6(c), all 

documents shall be accompanied by a 

certificate of service. The requirement is 

currently contained in § 386.31(b). 

Adjudication Procedure 

Transportation Lawyer’s Association 

(TLA) argued that proposed 

§ 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 § 363.108(c)(2) is now in 

proposed § 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 § 386.36 redesignated as 

§ 386.35, Motions to dismiss and 

motions for more definite statements. 

TLA indicated that proposed 

§ 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 § 386.14(d)(1), the contents of 

a reply must include the grounds for 

contesting a claim. 

TLA indicated that proposed 

§ 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 

§ 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 § 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 

§ 363.109 (current § 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 § 386.16(b). 

Settlement Agreements 

Proposed § 363.106(b)(2) would have 

required a settlement agreement to 

contain a finding of facts constituting 

the violations committed, while the 

current rule, § 386.16(c)(ii), requires ‘‘a 

61620 Federal Register / Vol. 69, No. 202 / Wednesday, October 20, 2004 / Proposed Rules 

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 

§ 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 § 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 § 386.4. 

TLA opposed proposed § 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 § 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 § 386.14 

provides 15 days from the date of 

service of the notice of claim for 

respondent to reply. Under proposed 

§ 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 § 386.14 is taken from 

§ 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 

§ 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, § 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 § 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 § 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 

§ 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 

Federal Register / Vol. 69, No. 202 / Wednesday, October 20, 2004 / Proposed Rules 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 (§ 386.2) 

Proposed § 386.2 would add, revise, 

and remove definitions in current 

§ 386.2 to reflect our proposed revisions 

of part 386. 

Separation of Functions (§ 386.3) 

FMCSA is proposing to add § 386.3 to 

delineate the separation of functions 

between enforcement staff and the 

agency decisionmaker. 

Appearances and Rights of Parties 

(§ 386.4) 

FMCSA is proposing to add § 386.4, 

which includes current § 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 

(§ 386.5) 

FMCSA is proposing to add § 386.5, 

which incorporates current § 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 (§ 386.6) 

FMCSA is proposing to add § 386.6, 

which incorporates current § 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 (§ 386.7) 

Proposed § 386.7 contains details 

relating to the filing of documents to 

establish standards relating to form and 

content. 

Computation of Time (§ 386.8) 

Proposed § 386.8 contains current 

§ 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 

(§ 386.11, 1996 NPRM proposed as 

§ 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 § 386.11(b) 

would be redesignated as paragraph (c).

Complaint (§ 386.12, 1996 NPRM 

Proposed as § 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 (§ 386.13) 

FMCSA is not proposing any changes 

to the language in current § 386.13. 

Reply (§ 386.14, 1996 NPRM Proposed 

as §§ 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 

(§ 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 

§ 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 

61622 Federal Register / Vol. 69, No. 202 / Wednesday, October 20, 2004 / Proposed Rules 

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 § 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 (§ 386.17) 

FMCSA is not proposing any changes 

to the language in current § 386.17. 

Payment of the Claim (§ 386.18) 

Current part 386 does not specifically 

address payment of claims. This 

SNPRM proposes to add new § 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 (§ 386.21) 

Current § 386.21 would be deleted in 

its entirety. 

Consent Order (§ 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 (§ 386.23) 

This section would be deleted in its 

entirety. 

Subpart D—General Rules and Hearings 

Service (§ 386.31, 1996 NPRM Proposed 

as § 363.303)

This section would be deleted in its 

entirety as superseded by § 386.6. 

Computation of Time (§ 386.32, 1996 

NPRM proposed as § 363.302) 

This section would be deleted in its 

entirety as superseded by § 386.8. 

Extension of Time (§ 386.33, 1996 

NPRM proposed as § 363.304) 

This section would be deleted in its 

entirety as superseded by § 386.5. 

Official Notice (§ 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 § 386.31. 

Motions (§ 386.35) 

Current paragraph (c) of § 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 § 386.34. 

Motions To Dismiss and Motions for a 

More Definite Statement (§ 386.36, 1996 

NPRM Proposed as § 363.108(c)(4)) 

This section would be redesignated as 

§ 386.35. 

We would add a new § 386.36, 

entitled Motions for Final Agency Order 

to describe the procedures governing 

motions for final agency order. 

Discovery Methods (§ 386.37, 1996 

NPRM proposed as § 363.109) 

The contents of current § 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 (§ 386.38) 

FMCSA is not proposing any changes 

to the language in current § 386.38. 

Protective Orders (§ 386.39) 

FMCSA is not proposing any changes 

to the language in current § 386.39. 

Supplementation of Responses 

(§ 386.40) 

FMCSA is not proposing any changes 

to the language in current § 386.40. 

Stipulations Regarding Discovery 

(§ 386.41) 

FMCSA is not proposing any changes 

to the language in current § 386.41. 

Written Interrogatories to Parties 

(§ 386.42) 

This revised section includes the 

substance of current § 386.42 and adds 

provisions regarding page limits and 

time periods in which to exchange 

interrogatories. 

Production of Documents and Other 

Evidence (§ 386.43) 

FMCSA is not proposing any changes 

to the language in current § 386.43. 

Request for Admissions (§ 386.44) 

FMCSA is not proposing any changes 

to the language in current § 386.44. 

Motion To Compel Discovery (§ 386.45) 

FMCSA is not proposing any changes 

to the language in current § 386.45. 

Depositions (§ 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 § 386.46(e) 

Federal Register / Vol. 69, No. 202 / Wednesday, October 20, 2004 / Proposed Rules 61623

would now be redesignated as proposed 

§ 386.46(f). 

Use of Deposition at Hearings (§ 386.47) 

FMCSA is not proposing any changes 

to the language in current § 386.47. 

Medical Records and Physicians’

Reports (§ 386.48) 

FMCSA is not proposing any changes 

to the language in current § 386.48. 

Form of Written Evidence (§ 386.49) 

FMCSA is not proposing any changes 

to the language in current § 386.49. 

Appearances and Rights of Witnesses 

(§ 386.50) 

This section would be deleted in its 

entirety as superseded by § 386.4. 

Amendment and Withdrawal of 

Proceedings (§ 386.51, 1996 NPRM 

Proposed as § 363.109(i)) 

Proposed § 386.51(b) would revise 

current § 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 

(§ 386.52, 1996 NPRM Proposed as 

§ 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 (§ 386.53) 

FMCSA is not proposing any changes 

to the language in current § 386.53. 

Administrative Law Judges (§ 386.54, 

1996 NPRM Proposed as § 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 (§ 386.55) 

FMCSA is not proposing any changes 

to the language in current § 386.55. 

Hearings (§ 386.56) 

FMCSA is not proposing any changes 

to the language in current § 386.56. 

Proposed Findings of Fact, Conclusions 

of Law (§ 386.57) 

FMCSA is not proposing any changes 

to the language in current § 386.57.

Burden of Proof (§ 386.58) 

FMCSA is not proposing any changes 

to the language in current § 386.58. 

Decision (§ 386.61) 

FMCSA is not proposing any changes 

to the language in current § 386.61. 

Review of Administrative Law Judge’s 

Decision (§ 386.62) 

FMCSA is not proposing any changes 

to the language in current § 386.62. 

Decision on Review (§ 386.63) 

FMCSA is not proposing any changes 

to the language in current § 386.63. 

Reconsideration (§ 386.64, 1996 NPRM 

proposed as § 363.114) 

As proposed, most of the existing text 

in § 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 (§ 386.65) 

FMCSA is not proposing any changes 

to the language in current § 386.65. 

Motions for Rehearing or for 

Modification (§ 386.66) 

This section would be deleted in its 

entirety and all motions served in 

accordance with proposed § 386.34. 

Appeal (§ 386.67, 1996 NPRM Proposed 

as § 363.115) 

Section 386.67 would be revised to 

adopt the changes proposed for 

§ 363.115 in the 1996 NPRM. The 

heading for § 386.67 would be changed 

from ‘‘Appeal’’ to ‘‘Judicial review.’’

Current § 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 §§ 386.71–

386.72. 

Subpart G—Penalties 

FMCSA is not proposing any changes 

to the language in current §§ 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 

61624 Federal Register / Vol. 69, No. 202 / Wednesday, October 20, 2004 / Proposed Rules 

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 § 386.2 by removing the 

definitions for Compliance Order and 

Consent Order in their entirety. 

4. Amend § 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:

§ 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 

Federal Register / Vol. 69, No. 202 / Wednesday, October 20, 2004 / Proposed Rules 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 § 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

§ 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 § 386.3 to Subpart A to read 

as follows:

§ 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 § 386.4 to Subpart A to read 

as follows:

§ 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 § 386.7 of this subpart, and 

will serve a copy of the notice of 

appearance on each party, in the 

manner provided in § 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 § 386.5 to Subpart A to read 

as follows:

§ 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 81⁄2′′ by 11′′ paper with a oneinch 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:

61626 Federal Register / Vol. 69, No. 202 / Wednesday, October 20, 2004 / Proposed Rules 

(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 § 386.6 to Subpart A to read 

as follows:

§ 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 

§ 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 § 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 § 386.7 to Subpart A to read 

as follows:

§ 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 § 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 § 386.8 to Subpart A to read 

as follows:

§ 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 § 386.11 by revising 

paragraphs (b) and (c) to read as follows:

§ 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. 

Federal Register / Vol. 69, No. 202 / Wednesday, October 20, 2004 / Proposed Rules 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.

§ 386.12 [Amended] 

12. Remove § 386.12(a) and (b) in 

their entirety. Then redesignate current 

§ 386.12 (c) through (e) as proposed 

§ 386.12 (a) through (c) respectively. 

13. Revise § 386.14 to read as follows:

§ 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 § 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 

§ 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) § 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 § 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 § 386.16 to read as follows:

§ 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 § 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 § 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 

§ 386.22(c). 

(b) Requests to submit written 

evidence without oral hearing. Where 

respondent has elected to submit 

written evidence in accordance with 

§ 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 §§ 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 §§ 386.6 and 386.7. 

(3) All written evidence submitted by 

the parties must conform to the 

requirements of § 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 § 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

61628 Federal Register / Vol. 69, No. 202 / Wednesday, October 20, 2004 / Proposed Rules 

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 § 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 § 386.18 to Subpart B to read 

as follows:

§ 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 § 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

§ 386.21 [Removed] 

17. Remove § 386.21. 

18. Revise § 386.22 to read as follows:

§ 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 

Federal Register / Vol. 69, No. 202 / Wednesday, October 20, 2004 / Proposed Rules 61629

Assistant Administrator accepts the 

agreement, he/she will enter an order in 

accordance with its terms.

§ 386.23 [Removed] 

19. Remove § 386.23 in its entirety. 

20. Revise § 386.31 to read as follows:

§ 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 § 386.64 of this part. If official 

notice is taken prior to the issuance of 

a final agency order, the request must 

comply with § 386.63 of this part.

§ 386.32 [Removed] 

21. Remove § 386.32 in its entirety.

§ 386.33 [Removed] 

22. Remove § 386.33 in its entirety.

§ 386.34 [Removed] 

23. Remove § 386.34 in its entirety.

§ 386.35 [Redesignated as § 386.34] 

24. Redesignate § 386.35 as § 386.34.

25. Amend redesignated § 386.34(c) 

by removing the number ‘‘7’’ and 

adding, in its place, the number ‘‘20.’’

§ 386.36 [Redesignated as § 386.35] 

26. Redesignate § 386.36 as § 386.35. 

27. Add new § 386.36.

§ 386.36 Motions for final agency order 

(a) Generally. Unless otherwise 

provided in this section, the motion and 

answer will be governed by § 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 §§ 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 nonmoving party, shows no genuine issue 

exists as to any material fact. 

(c) Answer to Motion. The nonmoving 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 § 386.37 to read as follows:

§ 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 § 386.42 to read as follows:

§ 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 § 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 § 386.46 to read as follows:

§ 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 § 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 crossexamine. 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 

61630 Federal Register / Vol. 69, No. 202 / Wednesday, October 20, 2004 / Proposed Rules 

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.

§ 386.50 [Removed] 

31. Remove § 386.50 in its entirety. 

32. Amend § 386.51 by revising 

paragraph (b) to read as follows:

§ 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 § 386.52 to read as follows:

§ 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 § 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 § 386.51(b). 

(3) A ruling or order by the 

Administrative Law Judge in violation 

of § 386.54(b). 

(4) Denial by the Administrative Law 

Judge of a motion to disqualify under 

§ 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 § 386.54 to read as follows:

§ 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 

§ 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. 

Federal Register / Vol. 69, No. 202 / Wednesday, October 20, 2004 / Proposed Rules 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 § 386.64 to read as follows:

§ 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 § 386.14, the only issue that will be 

considered upon reconsideration is 

whether a default has occurred under 

§ 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.

§ 386.66 [Removed] 

36. Remove § 386.66. 

37. Revise § 386.67 to read as follows:

§ 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 

§ 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] 

BILLING CODE 4910–EX–P