[Federal Register Volume 74, Number 59 (Monday, March 30, 2009)]
[Notices]
[Pages 14184-14185]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-7057]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration


Supplemental Policy on Assessing Maximum Fines under the Motor 
Carrier Safety Improvement Act of 1999 (MCSIA) Section 222

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of policy change.

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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) 
provides notice to the motor carrier industry of policy changes 
regarding the assessment of maximum fines under section 222 of the 
Motor Carrier Safety Improvement Act of 1999 (MCSIA). 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.

DATES: Effective Date: This change in policy is effective April 1, 
2009.

FOR FURTHER INFORMATION CONTACT: Mr. David Mancl, Acting Chief, 
Enforcement and Compliance Division, MC-ECE, Federal Motor Carrier 
Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 
20590. Telephone: 202-366-6830. Office hours are from 7:45-4:45 p.m., 
e.t., Monday through Friday, except Federal holidays. Web site address: 
http://www.fmcsa.dot.gov.

SUPPLEMENTARY INFORMATION

Background

    Section 222 of MCSIA directs the Secretary of Transportation to 
``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.'' [Pub. L. 106-159, 113 
Stat. 1748, 1769, Dec. 9, 1999; codified in 49 U.S.C. 521 note.]
    On September 8, 2000, FMCSA issued a policy memorandum that changed 
its fine assessment policy to meet the requirements of section 222 of 
MCSIA. On December 28, 2004, FMCSA published a clarification of its 
September 8, 2000, policy statement implementing section 222 of MCSIA 
(69 FR. 77828). The memorandum and subsequent Federal Register notice 
defined both a ``pattern of violations'' and ``previously committed the 
same or related violation'' as three cases closed with findings of 
violation occurring within the last six years. The three cases--also 
known as ``three strikes''--consist of two cases that have been closed 
with findings of violations, followed by a third case, in which the 
discovery of violations during an on-site compliance review, shipper 
review or terminal review involved the same part of the Federal Motor 
Carrier Safety Regulations (FMCSR) and/or Federal Hazardous Materials 
Regulations (HMR) in Title 49 of the Code of Federal Regulations.
    In an August 2007 report,\1\ the Government Accountability Office 
(GAO) concluded that FMCSA's ``three-strikes'' policy failed to assess 
maximum penalties against all serious violators and achieve MCSIA's 
statutory intent that maximum penalties be imposed in two distinct 
situations for a pattern of violations, and for repeat violations of 
the same or related regulations. The GAO recommended that FMCSA revise 
its policy to include (1) a definition for a pattern of violations that 
is distinct from a repeated violation of the same or related 
regulations and (2) a two-strike, rather than a three-strike, policy. 
In an earlier 2006 report,\2\ the Department of Transportation's Office 
of Inspector General (OIG) similarly recommended that FMCSA develop 
procedures to implement the section 222 ``pattern of violations'' 
provision and additionally to count for section 222 purposes all acute 
and critical violations discovered during a compliance review. Based on 
these recommendations, FMCSA re-examined its policy and adopts the 
revisions contained in this notice.
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    \1\ ``Federal Safety Agency Identifies Many High-Risk Carriers 
but Does Not Assess Maximum Fines as Often as Required by Law'' 
(GAO-07-584, August 2007).
    \2\ ``Significant Improvements for Motor Carrier Safety Program 
since 1999 Act but Loopholes for Repeat Violators Need Closing'' 
(OIG Report No. MH-2006-046, April 21, 2006).
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Policy

    This policy supplements FMCSA's existing policy and continues its 
implementation of section 222 of MCSIA consistent with the statutory 
language and in response to the GAO

[[Page 14185]]

and OIG recommendations. In order to ensure adequate notice to the 
regulated industry, only those investigations and cases initiated on or 
after the effective date of this notice will be used to support 
imposition of maximum penalties under the ``two-strikes'' policy. 
Investigations and cases initiated prior to the effective date of this 
notice will continue to be considered for maximum penalty assessment 
under the ``three-strikes'' policy.

''Pattern of Violations''

    Effective with this policy, FMCSA is separately defining a 
``pattern of violations'' as occurring when the Agency discovers two or 
more critical and/or acute violations \3\ in each of three or more 
different regulatory parts (i.e., a minimum of six acute and/or 
critical violations). A ``pattern of violations'' does not require 
previous enforcement and can be found even during a first-time 
investigation. A motor carrier will be subject to maximum fines when a 
``pattern'' of critical or acute violations is discovered after having 
previous contact with FMCSA, a State motor carrier safety enforcement 
agency, or other FMCSA-designated representative acting on behalf of 
FMCSA. This contact may have been through a previous New Entrant Safety 
Audit, Pre-Authorization Safety Audit, Expedited Action Letter, 
Compliance Review, Notice of Violation, Notice of Claim, Warning Letter 
or other significant documented contact reasonably likely to have 
alerted the motor carrier to FMCSA's regulatory and enforcement 
jurisdiction. The previous contact may have occurred prior to the 
effective date of this notice. A roadside inspection, alone, however, 
is not a previous contact for the purpose of subjecting a motor carrier 
to a section 222 pattern of violations finding. Notices of Claim that 
allege the requisite pattern of violations described herein will 
include a proposed civil penalty in the maximum amount authorized by 
statute for each qualifying violation.
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    \3\ Critical and acute regulations are listed in 49 CFR Part 
385, Appendix B. ``Critical violations'' are violations of a 
critical regulation discovered at or above a 10% violation rate; 
they involve more than one discovered violation.
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``Two Strikes''

    Effective with this policy, FMCSA expands its interpretation of 
``previously committed the same or related violation'' and adopts a 
``two-strikes'' policy that is similar to the Agency's existing 
``three-strikes'' policy. Under this supplemental policy, maximum 
penalties will be applied in cases where an acute violation is 
discovered during an investigation within six years of a previously 
closed case that contained a finding of violation of a critical or 
acute regulation in the same FMCSR and/or HMR part. The same standards 
applied by FMCSA under the three-strikes policy will apply to cases 
being used as a previous strike under the two-strikes policy. The 
previous case must have been closed within six years prior to the 
completion of the investigation in which the second strike is 
discovered (but no earlier than the effective date of this two-strikes 
policy); it must contain one or more violations of critical or acute 
regulations in the same regulatory part(s); and those violations must 
have been admitted or adjudicated with a finding of violation. FMCSA 
will continue to measure the six-year period from the date the previous 
enforcement case was closed to the date the investigation is completed. 
The revision of the definition of ``previously committed the same or 
related violation'' in this supplemental policy is consistent with the 
emphasis FMCSA places on violations of acute regulations.

Categories of Investigations

    Effective with this supplemental policy, FMCSA also expands the 
category of investigations during which violations of acute and/or 
critical regulations discovered may be subject to assessment of section 
222 maximum penalties to include rated and unrated compliance reviews, 
terminal reviews, shipper reviews, focused reviews, on- and off-site 
assessment investigations, and on- and off-site investigations arising 
under the Agency's Comprehensive Safety Analysis 2010 program or 
successor programs.

Settlement Policy

    The Agency's December 28, 2004, policy clarification stated that in 
order to ensure uniformity in implementing section 222 of MCSIA, FMCSA 
Service Centers would not be permitted to settle section 222 cases for 
less than the maximum penalty assessed. The policy permitted settlement 
agreements establishing a payment plan and noted that the settlement 
limitation would be re-evaluated as the Agency gained more experience 
in applying the statutory requirement. The Agency has reviewed this 
settlement limitation in light of its experience since the issuance of 
its section 222 policy. The Agency now lifts this settlement 
restriction and will allow FMCSA Service Centers to evaluate on a case-
by-case basis whether section 222 penalty matters are appropriate for 
approved settlement options. The Agency will continue to monitor its 
settlement policy on section 222 cases to ensure uniformity and 
appropriate use of settlement options.

    Issued on: March 24, 2009.
Rose A. McMurray,
Acting Deputy Administrator.
 [FR Doc. E9-7057 Filed 3-27-09; 8:45 am]
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