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###### Department of Transportation

###### Federal Motor Carrier Safety Administration 

          - [Docket No. FMCSA-2004-19882] 

# AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT. 

# ACTION:

Notice of clarification; agency policy statement. 

# SUMMARY:

The Federal Motor Carrier Safety Administration (FMCSA) clarifies its September 8, 2000 policy statement implementing section 222 of the Motor Carrier Safety Improvement Act of 1999. Section 222 requires the agency to assess maximum statutory penalties if a person is found to have committed a pattern of violations of critical or acute regulations, or previously committed the same or a related violation of critical or acute regulations. This notice clarifies the agency use of previous violations to assess maximum penalties under section 222. It also discusses the notification procedures and extraordinary circumstances that may warrant assessment of less than the maximum penalty. 

      ( print page 77829)    

# DATES:

December 28, 2004. 

# FOR FURTHER INFORMATION CONTACT:

                        Mary Pat Woodman, Chief of the Enforcement and Compliance Division (MC-ECE), (202) 366-9699, FMCSA, 400 Seventh Street, SW., Washington, DC 20590. You may also e-mail                         *marypat.woodman@fmcsa.dot.gov.*

# SUPPLEMENTARY INFORMATION:

## Background 

### Statutory Authority 

Section 222 of the Motor Carrier Safety Improvement Act of 1999 (MCSIA), (Public Law 106-159, 113 Stat. 1748, 1769, Dec. 9, 1999; codified in 49 U.S.C. 521 note) directed the Secretary of Transportation to: 

(a) Ensure that motor carriers operate safely by imposing civil penalties at a level calculated to ensure prompt and sustained compliance with Federal motor carrier safety and commercial driver's license laws. 

(b) Establish and assess minimum civil penalties for each violation of laws referred to under (a) above; and, assess the maximum civil penalty for each violation by any person who is found to have committed a pattern of violations of critical or acute regulations or to have previously committed the same or a related violation of critical or acute regulations. 

(c) If the Secretary determines and documents that extraordinary circumstances exist which merit the assessment of any civil penalty lower than any level established above, the Secretary may assess such lower penalty. Further, in cases where a person has been found to have previously committed the same or a related violation of critical or acute regulations, extraordinary circumstances may be found to exist when the Secretary determines that repetition of such violation does not demonstrate a failure to take appropriate remedial action. 

### September 8, 2000, Policy Statement 

                    On September 8, 2000, FMCSA sent a policy memorandum changing its fine assessment policy to meet the requirements of section 222 to its Field Administrators, Enforcement Team leaders, and State Directors. The memorandum defined a                     *pattern of violations*                     or                     *previously committed violations*                     as three cases within the last six years. The policy memorandum, in pertinent part, states:                 

(Page 1, third paragraph, beginning with the second sentence) 

                        The three cases will consist of two cases which have been closed followed by discovery of new violations, all of which involve the same Part (                        *e.g.*                         Part 395). The six year period is measured from the end of the first to the end of the third compliance review (CR). If a case is appealed, the time needed to process the appeal                         *should not*                         be included as part of the six year period. If the third CR (and subsequent CRs) reveals violations of the same Part cited in two previous CRs within the last six years, a “pattern of violations” or “previously committed violations” is established and the claim letter should assess the maximum penalty for that count(s).                     

                    An electronic copy of the policy memorandum is available through DOT's Docket Management System (DMS) Web site at                     *http://dms.dot.gov,*                     by using the docket number of this notice, FMCSA-2004-19882. The DMS facility is located on the Plaza Level of the Nassif Building, 400 Seventh Street, SW., Washington, DC.                 

## General Discussion of Questions 

We received several questions on the interpretation and implementation of FMCSA's policy memorandum. The agency addresses these questions and clarifies its implementation policy. 

### 1. Will the Agency use Enforcement Cases Closed Before Issuance of the Policy Memorandum To Support Assessment of the Maximum Penalty? 

MCSIA was signed into law on December 9, 1999, and FMCSA was created effective January 1, 2000. However, FMCSA did not provide guidance regarding implementation of section 222 until its September 8, 2000, policy memorandum was issued. We believe fairness to the motor carrier industry will be best served by using enforcement cases closed after September 8, 2000, as prior violations to support assessing maximum penalties under section 222 of MCSIA. Therefore, the agency will not use enforcement cases closed before September 8, 2000. 

### 2. What Type of Agency Action Constitutes a Finding That a Violation was Committed for Purposes of Assessing the Maximum Penalty Under Section 222? 

                    The policy memorandum provided that section 222 of MCSIA applies when there are two closed cases followed by discovery of new violations of the same Code of Federal Regulations (CFR) Part within a 6-year period, measured from the end of the first Compliance Review (CR) to the end of the third CR. It stated that the previous cases had to be closed but did not indicate whether an agency adjudication of the violations is required before a closed enforcement case is used as the basis for assessing the maximum civil penalty. We interpret section 222 as requiring that a previous enforcement case include either: (1) An explicit adjudicatory finding of a violation by the agency (Assistant Administrator or a DOT Administrative Law Judge); (2) an express admission of liability by the respondent in its reply to the Notice of Claim (NOC) and in a settlement agreement; or (3) a Final Agency Order issued under 49 CFR 386.14(e), based on respondent's failure to reply to the NOC.[1] 

A settlement agreement lacking in language admitting liability will not be considered a prior violation for purposes of section 222. Therefore, in response to a NOC advising respondent that payment will constitute an admission of the violations set forth in the NOC, payment of a civil penalty will constitute an express admission of liability. In response to a NOC that lacks such an advisory, payment of a civil penalty will not be construed as a prior violation for purposes of section 222, unless accompanied by a written admission of violations alleged in the NOC. 

### 3. How is the 6 Year Period Calculated for Determining When the Maximum Penalty Will Be Assessed? 

                    The 6 year period is determined by starting with the closing date of the CR or roadside inspection in the third enforcement case and determining whether there are two prior closed enforcement cases against the respondent involving violations of the same CFR Part during the immediately preceding 6 years. Because we are requiring an adjudication or admission of liability before using a previous enforcement case as a finding of a committed violation, a case will be considered closed as of the date of the Final Agency Order.[2]                                          In the event the case is resolved without a Final Agency Order, the relevant date will be the date of the response to the NOC enclosing payment of the civil penalty or the date the settlement is executed by both parties, whichever is later.[3] 
      ( print page 77830)    

### 4. What Extraordinary Circumstances Warrant Assessment of Less Than the Maximum Penalty? 

Requests to reduce the penalty based on extraordinary circumstances will be considered on a case-by-case basis. Section 222 of MCSIA does not define the term “extraordinary circumstances,” but expressly provides that extraordinary circumstances meriting a reduction in the maximum penalty may be found to exist if we determine and document that repetition of the violation does not demonstrate a failure to take appropriate remedial action. Although the statute does not limit application of the extraordinary circumstances factor, we do not believe it is appropriate to attempt to define all possible potential extraordinary circumstances, except as indicated in the next section. The respondent carries the burden to demonstrate that extraordinary circumstances merit a reduction in the maximum penalty in response to the NOC and during the adjudication of the case. 

### 5. What Type of Notice Will Be Required Before Assessing the Maximum Penalty? 

                    Although section 222 of MCSIA does not specifically require prior notice to offenders that future violations may result in the imposition of maximum penalties, the September 8, 2000, policy statement provided that offenders should be given such notice as part of the close-out of the second CR. This guidance is now modified and the agency may assess maximum penalties in all appropriate cases. To address this issue, we (1) modified our standard NOC to advise respondents of the requirements of section 222 of MCSIA, and (2) published this amended policy statement in the                     **Federal Register**                     and posted it on FMCSA's Web site at                     *http://www.fmcsa.dot.gov.*                     No additional notice requirements are necessary.                 

### 6. Do FMCSA Service Centers Have Authority To Settle Cases Subject to Section 222 for Less Than the Maximum Penalty? 

                    Section 222(a) of MCSIA provides that the Secretary “should ensure that motor carriers operate safely by                     *imposing*                     civil penalties at a level calculated to ensure prompt and sustained compliance with Federal motor carrier safety and commercial driver's license laws” (emphasis added). Section 222(b)(2) requires the Secretary to                     *assess*                     the maximum penalty in appropriate circumstances. A question was raised on whether Service Centers may settle cases subject to section 222 for less than the maximum penalty, provided the maximum penalty is assessed in the NOC.                 

Civil Penalties are “assessed” in the NOC and are “imposed” in an agency Order or settlement agreement. Since the literal language of the statute requires that maximum penalties be assessed (but not necessarily imposed) in section 222 cases, this would arguably permit settlement of cases below the maximum penalty, provided the negotiated penalty (the penalty actually imposed) is calculated to ensure prompt and sustained compliance with the Federal Motor Carrier Safety Regulations. To ensure uniformity in implementing section 222, FMCSA Service Centers will not, at this time, be permitted to settle section 222 cases for less than the maximum penalty assessed. However, settlement agreements establishing terms of payment will be permitted. As the agency gains more experience in applying section 222, this settlement limitation will be evaluated. 

Issued on: December 16, 2004. 

Annette M. Sandberg, 

Administrator. 

# Footnotes

1.                             A Notice of Claim (NOC) becomes a Final Agency Order if the respondent fails to reply to the NOC within the time prescribed by 49 CFR 386.14. Under these circumstances, the NOC becomes the Final Agency Order 25 days after it is served.                    
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2.                             The case is considered closed following issuance of the Final Agency Order and the exhaustion of any post order notions such as a Petition for Reconsideration. However, if a Petition for Reconsideration of the Final Agency Order in a previous case is pending before the agency, the case should not be considered closed.                    
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3.                             If a settlement agreement concludes a case pending before an Administrative Law Judge or the Assistant Administrator, the closing date would be                                                 the date the settlement agreement is accepted by the decisionmaker.                    
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[FR Doc. 04-28343 Filed 12-27-04; 8:45 am] 

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