32242 Federal Register / Vol. 75, No. 108 / Monday, June 7, 2010 / Notices 

• NCDOT District 1 Office, 4009 

District Drive, Raleigh, NC. 

The project Web site http:// 

www.sehsr.org includes a complete list 

of locations and addresses. The 

document is also available at the 

Virginia Department of Rail and Public 

Transportation Office at 600 East Main 

Street, Suite 2102, Richmond, VA; and 

the North Carolina Department of 

Transportation Rail Division at 1 South 

Wilmington Street, Raleigh, NC. In 

addition, electronic versions of the Draft 

Tier II EIS and appendices are available 

through FRA’s Web site at 

www.fra.dot.gov, on the DRPT Web site 

at http://www.drpt.virginia.gov and on 

the project Web site at www.sehsr.org. 

Issued in Washington, DC, on June 2, 2010. 

Mark E. Yachmetz, 

Associate Administrator for Policy and 

Development. 

[FR Doc. 2010–13587 Filed 6–4–10; 8:45 am] 

BILLING CODE 4910–06–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

[FMCSA Docket No. FMCSA–2010–0149] 

Rules of Practice 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT. 

ACTION: Notice of suspension of informal 

hearing procedure; request for 

comments. 

SUMMARY: The FMCSA announces that it 

is re-evaluating the appropriateness and 

effectiveness of the informal hearing 

procedure authorized under the 

Agency’s Rules of Practice. Although 

proceedings where an informal hearing 

has already been requested will 

continue to be processed under the 

Rules of Practice, the Agency will not 

entertain any new requests for informal 

hearings pending its re-evaluation of the 

procedure. 

DATES: Effective June 7, 2010. 

Comments must be received by August 

6, 2010. 

ADDRESSES: You may submit comments 

identified by the Federal Docket 

Management System Docket Number, 

FMCSA–2010–0149, by any of the 

following methods. Do not submit the 

same comments by more than one 

method. However, to allow effective 

public participation before the comment 

period deadline, the Agency encourages 

use of the Web site, which is listed first. 

It will provide the most efficient and 

timely method of receiving and 

processing your comments. 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

• Fax: 1–202–493–2251. 

• Mail: Docket Management Unit; 

U.S. Department of Transportation, 

Room W12–140, 1200 New Jersey 

Avenue, SE., Washington, DC 20590. 

• Hand Delivery: Ground floor, Room 

W12–140, 1200 New Jersey Avenue, SE., 

Washington, DC, between 9 a.m. and 5 

p.m., e.t., Monday through Friday, 

except Federal holidays. 

Instructions: All submissions must 

include the Agency name and docket 

number for this regulatory action. Note 

that all comments received will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. The 

Department of Transportation’s (DOT) 

complete Privacy Act Statement was 

published in the Federal Register on 

April 11, 2000 (65 FR 19476), and can 

be viewed at http://docketsinfo.dot.gov. 

Public Participation: The 

regulations.gov system is generally 

available 24 hours each day, 365 days 

each year. You can find electronic 

submission and retrieval help and 

guidelines under the ‘‘help’’ section of 

the Web site. For notification that 

FMCSA received the comments, please 

include a self-addressed, stamped 

envelope or postcard, or print the 

acknowledgement page that appears 

after submitting comments on line. 

Copies or abstracts of all documents 

referenced in this notice are in the 

docket: FMCSA–2010–0149. For access 

to the docket to read background 

documents or comments received, go to 

http://www.regulations.gov at any time 

or to Room W12–140, 1200 New Jersey 

Avenue, SE., Washington, DC, between 

9 a.m. and 5 p.m., e.t., Monday through 

Friday, except Federal holidays. All 

comments received before the close of 

business on the comment closing date 

indicated above will be considered and 

will be available for examination in the 

docket at the above address. Comments 

received after the closing date will be 

considered to the extent practicable. 

FMCSA may, however, issue a final 

determination at any time after the close 

of the comment period. In addition to 

late comments, FMCSA will also 

continue to file in the public docket 

relevant information that becomes 

available after the comment closing 

date. Interested persons should monitor 

the public docket for new material. 

FOR FURTHER INFORMATION CONTACT: 

Michael J. Falk, Office of Chief Counsel, 

Adjudications Counsel (MC–CCA), 

FMCSA, 1200 New Jersey Avenue, SE., 

Washington, DC 20590. Tel. (202) 366– 

9304. 

SUPPLEMENTARY INFORMATION: 

Background 

Under 49 U.S.C. 113(f), Congress 

directed FMCSA to carry out the duties 

and powers related to motor carriers or 

motor carrier safety vested in the 

Secretary of Transportation by chapters 

5, 51, 55, 57, 59, 133 through 149, 311, 

313, 315 and 317 of title 49 of the U.S. 

Code, except as otherwise delegated by 

the Secretary. Regulations implementing 

this statutory authority include the 

Federal Motor Carrier Safety 

Regulations (FMCSRs) (49 CFR parts 

380–399), the Federal Motor Carrier 

Commercial Regulations (FMCCRs) (49 

CFR parts 360–379), and the Federal 

Hazardous Materials Regulations 

(HMRs) (49 CFR parts 171–180). 

FMCSA’s enforcement powers 

include the general authority to conduct 

administrative enforcement proceedings 

for violations of the FMCCRs (49 U.S.C. 

14701) as well as to assess civil 

penalties for violations related to 

commercial motor vehicle safety (49 

U.S.C. chapter 5) and hazardous 

materials (49 U.S.C. chapter 51). 

In accordance with this authority, the 

Agency promulgated regulations 

governing civil penalty and driver 

disqualification proceedings before the 

Agency. These regulations are known as 

the Rules of Practice for Motor Carrier, 

Intermodal Equipment Provider, Broker, 

Freight Forwarder, and Hazardous 

Materials Proceedings (Rules of 

Practice) and are codified at 49 CFR part 

386. 

In May 2005, the Agency amended the 

Rules of Practice to establish, among 

other things, an informal hearing 

process as an option for adjudicating 

administrative enforcement proceedings 

(see 70 FR 28467, May 18, 2005). Civil 

penalty proceedings are initiated by 

issuance of a Notice of Claim by a 

representative of the Agency (Claimant) 

pursuant to 49 CFR 386.11(c). Under 49 

CFR 386.14(b)(2), the party against 

whom a claim is made (Respondent) 

must reply to the Notice of Claim by 

electing one of three options: (1) Paying 

the full amount of the claim; (2) 

contesting the claim by requesting 

administrative adjudication pursuant to 

section 386.14(d); or (3) seeking binding 

arbitration in accordance with the 

Agency’s arbitration program. Under 

section 386.14(d)(1)(iii), a respondent 

electing administrative adjudication 

may request that the matter be 

adjudicated either through: (A) 

Submission of written evidence without 

hearing; (B) an informal hearing; or (C) 

a formal hearing. 

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Federal Register / Vol. 75, No. 108 / Monday, June 7, 2010 / Notices 32243 

The informal hearing process was 

intended to provide expedited 

consideration of a civil penalty case by 

a neutral third party without the 

formalities attendant to a hearing before 

an Administrative Law Judge (see 69 FR 

61620, Oct. 20, 2004). Section 386.2 

defines an informal hearing as ‘‘a 

hearing in which the parties have the 

opportunity to present relevant 

evidence to a neutral Hearing Officer, 

who will prepare findings of fact and 

recommendations for the Agency 

decisionmaker. The informal hearing 

will not be on the transcribed record 

and discovery will not be allowed. 

Parties will have the opportunity to 

discuss their case and present testimony 

and evidence before the Hearing Officer 

without the formality of a formal 

hearing.’’ After receiving the hearing 

officer’s report and recommendations, 

the Assistant Administrator has the 

discretion to either adopt the report or 

issue other orders as he or she deems 

appropriate. [See sections 

386.16(b)(4)(i)(A) and 386.61(b)]. 

FMCSA implemented informal 

hearings on a graduated basis in order 

to evaluate the efficacy of this new 

process. In the first phase of 

implementation, FMCSA considered 

requests for informal hearings only from 

respondents in the Midwestern Service 

Center’s geographical area (see 71 FR 

13894, Mar. 17, 2006). In the second 

phase, FMCSA expanded eligibility to 

respondents in the Eastern Service 

Center’s geographical area (see 72 FR 

6806, Feb. 13, 2007). To date, only 

respondents located in States within the 

Agency’s Eastern and Midwestern 

Service Centers have been eligible to 

request informal hearings. 

Having evaluated the implementation 

of the informal hearing procedure, 

FMCSA has concerns about the 

appropriateness of the personnel the 

Agency assigned to serve as hearing 

officers. Section 386.2 defines ‘‘hearing 

officer’’ as ‘‘a neutral Agency employee 

designated by the Assistant 

Administrator to preside over an 

informal hearing.’’ The Agency selected 

two FMCSA employees—one located in 

the Southern Service Center and one 

located in the Western Service Center— 

to serve as hearing officers. However, 

the Agency did not receive enough 

informal hearing requests to dedicate 

these employees as full-time hearing 

officers. As a result, these employees 

continued to carry out their existing 

responsibilities related to the 

implementation of the enforcement 

programs in their respective Service 

Center areas. Although, as noted above, 

informal hearings are not available to 

respondents located in the Southern and 

Western Service Centers, there is 

legitimate concern that FMCSA 

personnel involved in the Agency’s 

enforcement program may not be 

considered sufficiently neutral. 

Suspension of Current Informal 

Hearing Procedure 

After careful consideration, and as a 

result of the issues discussed above, 

FMCSA has decided to suspend the use 

of informal hearings for enforcement 

actions initiated after publication of this 

notice pending re-evaluation of the 

informal hearing procedure. This reevaluation will include consideration of 

possible regulatory changes as well as 

implementation strategies. 

Five cases assigned to hearing officers 

are still awaiting informal hearings. 

There are 15 additional cases in which 

claimants have consented to 

respondents’ informal hearing requests, 

but have not been assigned to a hearing 

officer. Furthermore, in 13 additional 

cases, claimants in the Eastern and 

Midwestern Service Centers have 

objected to requests for informal 

hearings. The Agency has not yet ruled 

on these objections because of its 

concerns regarding the informal hearing 

procedure. In order to avoid further 

delaying the resolution of the 20 

pending cases awaiting informal 

hearings or assignment of a hearing 

officer, the Agency will assign these 

cases to one or more hearing officers not 

connected with the Agency’s 

enforcement program, who will be 

responsible for initiating and 

concluding the informal hearing 

process. The Agency will also make it 

a priority to consider the pending 

objections to informal hearings and may 

thus assign additional cases to the 

hearing officer(s), as appropriate. 

Notices of Claim issued after 

publication of this notice in the Federal 

Register will advise respondents 

seeking to contest a claim through 

administrative adjudication that they 

may either submit written evidence 

without a formal hearing or request a 

formal hearing. 

FMCSA has determined that no 

Respondent has suffered substantive 

harm or prejudice as a result of 

disposition under the informal hearing 

option. Of the 11 cases assigned to 

hearing officers, only three were finally 

resolved under the informal hearing 

procedure. In these cases, the hearing 

officer issued a final report 

recommending that the Assistant 

Administrator approve settlement 

agreements entered into by the parties. 

The Assistant Administrator accepted 

the recommendations, resulting in final 

disposition of these cases. With respect 

to the other eight cases, six are awaiting 

informal hearings following assignment 

of a hearing officer, one was settled 

before a specific hearing officer was 

assigned, and the final case is awaiting 

further action following issuance of the 

hearing officer’s report. 

Finally, FMCSA believes that, if 

implemented more effectively, reestablishment of an informal hearing 

process would be beneficial to both the 

Agency and to respondents seeking 

more informal resolution of enforcement 

matters. FMCSA seeks public comment 

on options for implementing an 

effective informal hearing process. 

Issued on: May 28, 2010. 

Anne S. Ferro, 

Administrator. 

[FR Doc. 2010–13591 Filed 6–4–10; 8:45 am] 

BILLING CODE 4910–EX–P 

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