Patterns of Safety Violations by Motor Carrier Management |
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Anne S. Ferro
Federal Motor Carrier Safety Administration
November 13, 2012
[Federal Register Volume 77, Number 219 (Tuesday, November 13, 2012)]
[Proposed Rules]
[Pages 67613-67624]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-27569]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 385 and 386
[Docket No. FMCSA-2011-0321]
RIN 2126-AB42
Patterns of Safety Violations by Motor Carrier Management
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: FMCSA proposes amendments to its regulations that would enable
the Agency to suspend or revoke the operating authority registration of
motor carriers that have
[[Page 67614]]
shown egregious disregard for safety compliance or that permit persons
who have shown egregious disregard for safety compliance to act on
their behalf. These amendments would implement section 4113 of the
Safe, Accountable, Flexible, Efficient Transportation Equity Act: A
Legacy for Users (SAFETEA-LU) as amended by section 32112 of the Moving
Ahead for Progress in the 21st Century Act (MAP-21), and are designed
to enhance the safety of commercial motor vehicle (CMV) operations on
our nation's highways.
DATES: You must submit comments on or before January 14, 2013.
ADDRESSES: You may submit comments identified by docket number FMCSA-
2011-0321 using any one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Fax: 202-493-2251.
Mail: Docket Management Facility (M-30), U.S. Department
of Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE., Washington, DC 20590-0001.
Hand delivery: Same as mail address above, between 9 a.m.
and 5 p.m., e.t., Monday through Friday, except Federal holidays. The
telephone number is 202-366-9329.
To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' heading under
the SUPPLEMENTARY INFORMATION section below for instructions on
submitting comments.
FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed
rule, call or email Juan Moya, Transportation Specialist, Enforcement
Division, Federal Motor Carrier Safety Administration, telephone: 202-
366-4844; email: juan.moya@dot.gov. If you have questions on viewing or
submitting material to the docket, call Renee V. Wright, Program
Manager, Docket Operations, telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
Public Participation and Request for Comments
FMCSA encourages you to participate in this rulemaking by
submitting comments and related materials.
Submitting Comments
If you submit a comment, please include the docket number for this
rulemaking (FMCSA-2011-0321), indicate the specific section of this
document to which each comment applies, and provide a reason for each
suggestion or recommendation. You may submit your comments and material
online or by fax, mail, or hand delivery, but please use only one of
these means. FMCSA recommends that you include your name and a mailing
address, an email address, or a phone number in the body of your
document so the Agency can contact you if it has questions regarding
your submission.
To submit your comment online, go to http://www.regulations.gov and
click on the ``Submit a Comment'' box, which will then become
highlighted in blue. In the ``Document Type'' drop down menu, select
``Rules,'' insert ``FMCSA-2011-0321'' in the ``Keyword'' box, and click
``Search.'' When the new screen appears, click on ``Submit a Comment''
in the ``Actions'' column. If you submit your comments by mail or hand
delivery, submit them in an unbound format, no larger than 8\1/2\ by 11
inches, suitable for copying and electronic filing. If you submit
comments by mail and would like to know that they reached the facility,
please enclose a stamped, self-addressed postcard or envelope.
FMCSA will consider all comments and material received during the
comment period and may change this proposed rule based on your
comments.
Viewing Comments and Documents
To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to http://www.regulations.gov and
click on the ``Read Comments'' box in the upper right hand side of the
screen. Then, in the ``Keyword'' box, insert ``FMCSA-2011-0321'' and
click ``Search.'' Next, click ``Open Docket Folder'' in the ``Actions''
column. Finally, in the ``Title'' column, click on the document you
would like to review. If you do not have access to the Internet, you
may view the docket online by visiting the Docket Management Facility
in Room W12-140 on the ground floor of the DOT West Building, 1200 New
Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m.,
e.t., Monday through Friday, except Federal holidays.
Privacy Act
All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have
provided. Anyone is able to search the electronic form for all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
January 17, 2008 (73 FR 3316), or you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.
Background
Implementation of this proposed rule would enable the Agency to
suspend or revoke the operating authority registration of motor
carriers that have shown egregious disregard for safety compliance,
permit persons who have shown egregious disregard for safety compliance
to exercise controlling influence over their operations or operate
multiple entities under common control to conceal noncompliance with
safety regulations. Motor carriers that engage in such conduct may face
suspension or revocation of their operating authority registration.
FMCSA acknowledges that loss of operating authority registration is a
significant penalty, but the Agency believes this rule is necessary and
appropriate for the small number of motor carriers that engage in the
most egregious instances of noncompliance.
FMCSA has determined that each year a small number of motor
carriers have attempted to avoid regulatory compliance or mask or
otherwise conceal noncompliance by submitting new applications for
registration, often under a different name, to continue operations
after being placed out of service. Motor carriers and individuals do
this for a variety of reasons that include avoiding payment of civil
penalties, circumventing denial of operating authority registration
based on a determination that they are not willing or able to comply
with the applicable statutes or regulations, or avoiding a negative
compliance history. Other motor carriers attempt to avoid compliance,
or mask or otherwise conceal noncompliance, by creating or using an
affiliated company under common operational control. They shift
customers, vehicles, drivers, and other operational activities to one
of the affiliated companies when FMCSA places one of the other commonly
controlled companies out of service.
On August 8, 2008, a fatal bus crash occurred in Sherman, Texas,
highlighting the danger posed by motor carriers and other persons who
avoid regulatory compliance or mask or otherwise conceal noncompliance.
Seventeen motorcoach passengers died, and the driver and 38 other
passengers received minor-to-serious injuries. The investigations
conducted by FMCSA and the National Transportation Safety Board
revealed that the motor carrier was operating without authority and a
reincarnation of another bus company
[[Page 67615]]
that had been recently placed out of service for safety violations and
that both companies were under the control of the same person. FMCSA
determined that the companies' flagrant disregard for safety under this
person's control demonstrated a hazard to the safety of the motoring
public.
Based on these findings, FMCSA instituted a vetting process for
for-hire passenger and household goods carriers that involves a
comprehensive review of registration applications to determine whether
the applicants are reincarnations or affiliates of other motor carriers
with negative compliance histories or are otherwise not willing and
able to comply with the applicable regulations. Although the vetting
process was a significant improvement to the previous registration
review and regulatory compliance process, it is not a complete solution
to the problem of regulatory avoidance because it does not impose
sanctions, and, therefore, deter, the motor carriers or individuals who
engage in or condone egregious disregard for safety compliance.
The Sherman crash is but one example that demonstrates how the
practice of avoiding compliance or masking or otherwise concealing
noncompliance to circumvent Agency enforcement action or to avoid a
negative safety compliance history creates an unacceptable risk of harm
to the public, resulting in the continued operation of at-risk carriers
and impeding FMCSA's ability to execute its safety mission. This rule
would help address these problems by providing a significant
enforcement tool that allows the Agency to suspend, or revoke the
operating authority registration of motor carriers that have shown
egregious disregard for safety compliance, permit persons who have
shown egregious disregard for safety compliance to exercise controlling
influence on their operations or operate multiple entities under common
control to conceal noncompliance with safety regulations.
Section 31135 of title 49, United States Code, originally enacted
as Sec. 4113 of SAFETEA-LU (Pub. L. 109-59, 119 Stat. 1144) and
subsequently amended by Sec. 32112 of MAP-21 (Pub. L. 112-141, 126
Stat. 405), authorizes FMCSA to withhold, suspend, amend, or revoke the
operating authority registration of a motor carrier if it or any person
has engaged in a pattern or practice of avoiding compliance, or
concealing noncompliance with regulations governing CMV safety
prescribed under 49 U.S.C., Chapter 311, subchapter III. That section,
as amended, also permits FMCSA to revoke the individual operating
authority registration of any officer of a motor carrier that engages
in or has engaged in a pattern or practice of, or assisted in avoiding
compliance, or masking or otherwise concealing noncompliance while
serving as an officer of such motor carrier. FMCSA is required to issue
standards to implement the authority granted in Sec. 31135.
To assist the Agency in developing those standards, FMCSA tasked
the Motor Carrier Safety Advisory Committee (MCSAC) with identifying
ideas and concepts that FMCSA should consider. On June 21, 2011, the
MCSAC issued a number of recommendations, some of which formed the
foundation for this proposed rule described below. These
recommendations include the concepts that a pattern is both widespread
and continuing over time, involves more than isolated violations, and
does not require a specific number of violations. The Agency also
embraced the idea that the Agency would have to exercise discretion to
identify those motor carriers whose officers have shown egregious
disregard for safety compliance.
Legal Basis for the Rulemaking
The FMCSA has authority, delegated by the Secretary of
Transportation (Secretary) under 49 CFR 1.87, to establish the minimum
safety standards governing the operation and equipment of a motor
carrier operating in interstate commerce (49 U.S.C. 31136(a) and
31502(b)). Also, as amended by section 4114 of SAFETEA-LU, 49 U.S.C.
31144(a) requires that the Secretary shall determine whether an owner
or operator is fit to safely operate CMVs; periodically update the
safety determinations of motor carriers; and prescribe, by regulation,
penalties for violations of applicable commercial safety fitness
requirements.
Section 31135 of title 49, United States Code, was originally
enacted as part of Sec. 4113 of SAFETEA-LU and was subsequently
amended by Sec. 32112 of MAP-21. Section 31135 requires employers and
employees to comply with FMCSA's safety regulations that apply to the
employees' and the employers' conduct. It prohibits motor carriers from
using common ownership, common management, common control or common
familial relationships to avoid compliance or mask or otherwise conceal
noncompliance, or a history of noncompliance. It also authorizes FMCSA
to withhold,\1\ suspend, amend, or revoke the operating authority
registration of a motor carrier if it or any person has engaged in a
pattern or practice of avoiding compliance, or concealing noncompliance
with regulations governing CMV safety prescribed under 49 U.S.C.,
Chapter 311, subchapter III. FMCSA may suspend, amend, or revoke the
individual registration of an officer of a motor carrier who has
engaged in a pattern or practice of or assisted in avoiding compliance,
or masking or otherwise concealing noncompliance while serving as an
officer of such motor carrier. FMCSA is required to establish standards
implementing Sec. 31135 through rulemaking.
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\1\ Although MAP-21 includes authority for FMCSA to withhold
operating authority registration under Sec. 31135, FMCSA has
elected not to incorporate that authority into this proposed rule.
The Agency has existing authority to withhold operating authority
registration and will continue to exercise this authority under its
current registration process.
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FMCSA relies on 49 U.S.C. 13902, 13905, 31134, and 31135 for the
authority and procedures to suspend and revoke operating authority
registration in this proposed rule. The Motor Carrier Act of 1935 (Pub.
L. 74-255, 49 Stat. 543) authorized the Interstate Commerce Commission
(ICC) to issue operating authority registration to motor carriers,
brokers, and freight forwarders subject to its jurisdiction and to
suspend or revoke such operating authority registration for willful
failure to comply with applicable statutes and regulations. The ICC
Termination Act of 1995 (Pub. L. 104-88, 109 Stat. 803) transferred
this authority to the Secretary by enacting 49 U.S.C. 13902
(establishing standards for issuing operating authority registration)
and 13905 (establishing standards and procedures for suspending and
revoking operating authority registration). Section 4113 of SAFETEA-LU
amended 49 U.S.C. 13902 to authorize FMCSA to deny an application for
operating authority registration of a for-hire motor carrier if the
motor carrier is not willing and able to comply with the duties of
employers and employees established under 49 U.S.C. 31135. In addition,
section 32105 of MAP-21 created new 49 U.S.C. 31134 establishing
requirements for motor carriers seeking to obtain operating authority
registration and USDOT numbers. This new section authorizes FMCSA to
withhold, suspend or revoke operating authority registration for
failing to disclose, among other things, common management or control
with any other person or applicant for operating authority registration
or any other person or applicant for operating authority registration
that has been determined to be unfit, unwilling or
[[Page 67616]]
unable to comply with the requirements for registration. The changes
enacted as a part of MAP-21 are effective October 1, 2012.
Section-by-Section Analysis
FMCSA proposes to amend 49 CFR parts 385 and 386 in the following
ways.
Section 385.901
The proposed rule would apply to for-hire motor carriers,
employers, officers, or other persons subject to FMCSA's safety
jurisdiction that are also required to register (have operating
authority) under 49 U.S.C. 13902. This would include for-hire motor
carriers that transport passengers and/or property, including household
goods carriers and hazardous materials carriers. The rule would not
apply to private motor carriers and for-hire motor carriers that are
exempt from registering with the Agency under section 13902 because of
the commodities they haul or the nature of the services they provide.
Section 385.903
FMCSA proposes to add new Sec. 385.903, which would define the
terms ``Agency Official'' and ``officer.''
The term ``Agency Official'' would mean the Director of FMCSA's
Office of Enforcement and Compliance or his or her designee. The Agency
Official is the person within FMCSA authorized to initiate suspension
(Sec. 385.913) or revocation proceedings (Sec. 385.915) and rule on
petitions for rescission (Sec. 385.917) on behalf of the Agency, as
described below.
The term ``officer'' would identify those individuals whose conduct
would trigger the proposed rule's suspension and revocation procedures.
The definition is identical to the statutory definition codified at 49
U.S.C. 31135. It would make clear that a person may be an officer not
only because of the title or position that person holds, but also
because of the functions he or she performs or the control the person
exercises over the operations of the motor carrier. This could extend
beyond just direct employees of the company, including, but not limited
to, contractors and consultants.
The term ``motor carrier'' when used in this proposed rule would
mean any motor carrier, employer, officer or other person, however
characterized, required to register under 49 U.S.C. 13902.
Section 385.905
Section 385.905 describes the conduct that could trigger suspension
or revocation of a motor carrier's operating authority registration and
how the Agency would determine whether that conduct occurred. Paragraph
(a)(1) would set forth the Agency's authority to suspend or revoke the
motor carrier's operating authority registration if it engages or has
engaged in a pattern or practice of avoiding regulatory compliance or
masking noncompliance. This paragraph would apply to any motor carrier
that holds operating authority registration and has engaged in a
pattern or practice of avoiding regulatory compliance or masking
noncompliance.
Paragraph (a)(2) would set forth the Agency's authority to suspend
or revoke a motor carrier's operating authority registration if it
permits any person to exercise controlling influence over the motor
carrier's operations if that person engages or has engaged in a pattern
or practice of avoiding regulatory compliance or masking noncompliance
while acting on behalf of any motor carrier. This would include conduct
the person engaged in on behalf of a previous or current motor carrier.
A person exercising controlling influence could be an employee,
contractor, consultant or other advisor acting on behalf the motor
carrier, and the conduct triggering enforcement could have been
undertaken by an employee, contractor, consultant or advisor acting on
behalf of another motor carrier.
A motor carrier would not necessarily avoid liability under the
rule by asserting it was not aware that the person had previously
engaged in a pattern or practice of avoiding compliance or masking
noncompliance on behalf of another motor carrier. Motor carriers are
responsible for evaluating the qualifications of people who act on
their behalf or plan to engage to act on their behalf. They can do this
by, among other things, reviewing the person's application, resume or
work proposal, checking references, if any, and reviewing the person's
history working in or with the motor carrier industry. If a person
previously worked for or on behalf of motor carriers subject to FMCSA
jurisdiction, it is possible to review previous motor carriers' safety
performance history and registration status during the time the person
was employed by or engaged to act on behalf of these previous motor
carriers by accessing FMCSA's publically available information systems
located at the Agency Web site http://www.fmcsa.dot.gov. Using these
and other available resources may provide valuable information to help
determine whether motor carriers should permit a person to exercise
controlling influence over their operations.
Paragraph (a)(3) would set forth the Agency's authority to suspend
or revoke the operating authority registration of two or more motor
carriers that use common ownership, common control, or common familial
relationships to avoid regulatory compliance, or mask or otherwise
conceal noncompliance. Under this subparagraph, motor carriers that use
or create other motor carriers in an effort to avoid the consequences
of regulatory noncompliance would be subject to suspension or
revocation.
Paragraph (b) would authorize FMCSA's Director of the Office of
Enforcement and Compliance or his or her designee (the Agency Official)
to exercise the authorities established in paragraph (a).
Section 385.907
The Agency Official would determine whether a motor carrier or
person acting on its behalf has avoided regulatory compliance or masked
or otherwise concealed regulatory noncompliance based on the results of
an investigation by FMCSA, State, or local enforcement personnel. A
motor carrier or person acting on its behalf engages in this conduct
when he, she or it, either individually or on behalf of another motor
carrier, fails to or conceals failure to: (1) Comply with statutory or
regulatory safety requirements; (2) comply with FMCSA, State, or local
orders intended to redress violations of Federal regulatory safety
requirements; (3) pay civil penalties for violations of regulatory
safety requirements; or (4) respond to enforcement actions arising out
of violations of regulatory safety requirements. Failure to respond to
an enforcement action includes, but is not limited to, failure to:
Respond to a Notice of Claim, participate in binding arbitration,
respond to a demand for records, or respond to FMCSA correspondence if
required. Regulatory safety requirements include statutory or
regulatory requirements prescribed under 49 U.S.C. Chapter 311,
subchapter III, which include 49 U.S.C. sections 31131-31151 and 49 CFR
parts 380-387 and 390-398.
Section 385.909
If the Agency Official concludes that the motor carrier or person
acting on its behalf has failed, or concealed failure, to do one or
more of the actions described in Sec. 385.907, the Agency Official
would determine whether such conduct constitutes a pattern or practice
of noncompliance or masking noncompliance by considering certain
factors. These factors would include, but are not limited to, the
frequency, remoteness in time or continuing nature
[[Page 67617]]
of the conduct; the extent to which the regulatory violations caused by
the conduct create a risk to safety; the effect the conduct had on
safety performance, taking into account crashes, deaths and injuries,
if any; whether the motor carrier or person acting on its behalf knew
or should have known the conduct violated regulatory requirements;
existing or closed enforcement actions; whether the motor carrier or
person acting on its behalf engaged in the conduct for the purpose of
avoiding compliance; and the extent to which the person exercises a
controlling influence on the motor carrier's operations, if applicable.
Inadvertent, isolated, or sporadic violations of FMCSA's regulations
generally would not rise to the level of a pattern or practice. To
establish a pattern or practice, the Agency would look for evidence of
knowledge, conduct, or intent that shows egregious disregard for
FMCSA's safety regulations.
Section 385.911
To determine whether two or more motor carriers have common
ownership, common management, common control or common familial
relationships, the Agency Official must determine whether there is
substantial continuity between the motor carrier that has engaged in
regulatory noncompliance and another motor carrier so as to conclude
that one is merely the continuation of another. In making that
determination, the Agency Official may consider, among other things,
the following factors: (1) Whether there is a new or affiliated motor
carrier that was used for the purpose of avoiding regulatory compliance
or masking or otherwise concealing noncompliance; (2) the motor
carriers' safety performance histories; (3) consideration exchanged for
assets sold or transferred between motor carriers; (4) dates the motor
carriers were created, dissolved or ceased operations; (5) whether and
to what extent the motor carriers have shareholders, investors,
officers, managers and employees in common; (6) whether and to what
extent relationships exist between the motor carriers' shareholders,
investors, officers, managers, employees or other persons; (7) whether
and to what extent the motor carriers share or have proximity of
physical or mailing addresses, telephone, fax numbers, or email
addresses; (8) whether and to what extent the motor carriers share or
have motor vehicle equipment in common; (9) whether and to what extent
the motor carriers share or have continuity of liability insurance
policies or coverage under such policies; (10) whether and to what
extent the motor carriers use, share or take over each other's
facilities and other physical assets; (11) continuity or commonality of
nature and scope of operations, including customers for whom
transportation is provided; and (12) advertising, corporate name, or
other acts through which the motor carriers hold themselves out to the
public. The Agency does not consider any one of these factors to be
dispositive, and the proof of all twelve would not be required to
indicate substantial continuity. When considered collectively, however,
they would show whether two or more motor carriers are operationally
the same.
Section 385.913
If the Agency Official makes a determination in accordance with
Sec. 385.905, Sec. 385.913(a) would authorize the Agency Official to
issue an order suspending the motor carrier's registration. Paragraphs
(b) through (e) would establish the procedures FMCSA would follow to
suspend an motor carrier's registration.
Under paragraph (b), the Agency Official would initiate a
suspension proceeding by issuing an order directing the motor carrier
to show good cause, within 30 days of service of the order, why its
operating authority registration should not be suspended. The order
would provide the motor carrier with notice of the alleged conduct and
would explain how to respond to the order. If the proceeding is based
on the conduct of another person, the Agency Official would be required
to serve a copy on the person alleged to have engaged in the conduct
giving rise to the order, and to inform the person that he or she may--
but is not required to--intervene by filing a response in the
proceeding in accordance with the procedures in paragraph (c). Finally,
the order would state that it would be effective on the 35th day after
it was served, if the motor carrier or an intervening person does not
respond appropriately.
Paragraph (c) would establish an independent right for the person
on whose conduct the proceeding is based to intervene in the suspension
proceeding. This provision would give the person an opportunity to
respond to allegations about his or her conduct to protect his or her
interests, which may diverge from the interests of the motor carrier.
If the person does not respond within 30 days of being served with the
order, he or she would waive the right to participate in the
proceeding. By declining to intervene at this stage, he or she would
also waive the right to participate in any future proceedings that
arise out of the initial show cause order, such as revocation,
administrative review, or rescission proceedings under this proposed
rule. When the motor carrier is a sole proprietor or other corporate
structure under which the interests of the company and the person in
question are one and the same, the person may want to specify that he
or she is responding both as the motor carrier and the intervening
person to preserve his or her right to participate in a proceeding at a
later date as an intervening person in the event that the motor
carrier's ownership structure changes.
Under paragraph (d), the Agency Official who issued the order would
review all responses to the order. In reviewing the responses, the
Agency Official would consider, among other things, the factors
described in proposed Sec. Sec. 385.907, 385.909 and/or 385.911. After
reviewing the response, the Agency Official would take one of three
actions. First, he or she could enter an order suspending the motor
carrier's operating authority registration. Second, he or she could
enter an order directing the motor carrier to come into compliance with
this proposed rule. Based on the motor carrier's response and the
factors described in proposed Sec. Sec. 385.907, 385.909 and/or
385.911, an order directing compliance might be more appropriate than
suspension. Third, the Agency Official could determine that neither
suspension nor an order directing compliance is appropriate. In this
case, the Agency Official would enter an order terminating the
proceeding. The Agency Official could enter a termination order in a
number of different circumstances. The Agency Official could terminate
the proceeding after determining that the motor carrier or person
acting on its behalf did not engage in the alleged conduct.
Alternatively, the Agency Official could determine that although the
motor carrier or person acting on its behalf had engaged in the alleged
conduct, the motor carrier had already taken the appropriate remedial
action, rendering an order unnecessary. In this example, the motor
carrier might not be subject to an order under Sec. 385.905 but it
could nonetheless remain subject to civil or criminal penalties under
Sec. 385.921.
If the Agency Official issues an order under paragraph (d) of this
section, the motor carrier or the intervening person may submit a
petition for administrative review with FMCSA's Assistant Administrator
within 15 days of service of that order. The effective date of the
order would be stayed, if either the
[[Page 67618]]
motor carrier or the intervening person seeks administrative review
within the required timeframe, unless the Assistant Administrator finds
good cause not to stay the order. Should neither the motor carrier nor
the intervening person seek administrative review, the order would
become a Final Agency Order 20 days after being served. Failure to
submit a petition for administrative review would constitute a waiver
of the right to contest the order.
Paragraph (e) would establish the procedures for motor carriers and
intervening persons to petition for administrative review of an order
issued under this section. If a person did not intervene under
paragraph (c), he or she would have waived the right to seek
administrative review under this section. Any party seeking
administrative review under this section would be limited to
challenging errors of fact and/or law. The Assistant Administrator
would review the petition(s), and his or her decision regarding the
petition(s) would become the Final Agency Order.
Section 385.915
The Agency Official would be able to initiate a proceeding to
revoke the motor carrier's operating authority registration for failure
to comply with a suspension or compliance order issued under Sec.
385.913. FMCSA's ability to revoke a motor carrier's operating
authority registration is limited to specific circumstances. Under
FMCSA's current statutory authority, the Agency may revoke a motor
carrier's operating authority registration only after: (1) Issuing an
order to the registrant requiring compliance with the statute, an FMCSA
regulation, or a condition of the operating authority registration; and
(2) the registrant willfully does not comply with the order for a
period of 30 days (49 U.S.C. 13905(d)). That means that, under this
proposed rule, the Agency Official could only seek revocation if he or
she determined that the motor carrier willfully failed to comply with
the suspension or compliance order issued under Sec. 385.913 for at
least 30 days. For that reason, there must be a separate procedure
under which the Agency Official could issue a suspension or compliance
order prior to initiating a revocation proceeding under Sec. 385.915.
The procedure for commencing a revocation proceeding under Sec.
385.915 would be similar to the procedure for commencing a suspension
proceeding under Sec. 385.913. Under paragraph (b), the Agency
Official would issue an order to the motor carrier directing it to show
good cause within 30 days of service of the order why its operating
authority registration should not be revoked for failure to comply with
an order issued under Sec. 385.913. The order would provide the motor
carrier with notice of the alleged violation and would explain how to
respond to the order. The order would inform any person who intervened
in the initial proceeding that he or she may--but is not required to--
intervene under paragraph (c) of this section. Any person who did not
intervene in the initial proceeding in accordance with Sec. 385.913(c)
would have waived the right to participate under this section and would
not be entitled to submit an independent response. Finally, the order
would inform the motor carrier that the order would be effective on the
35th day after it was served if the motor carrier or an intervening
person does not respond.
Paragraph (c) would establish an independent right for the person
to intervene in the revocation proceeding, provided he or she
intervened in the initial proceeding under Sec. 385.913(c). If the
person does not respond within 30 days of being served with the order,
he or she waives the right to participate in the proceeding and any
future proceedings that may arise out of the show cause order. This
would include administrative review or rescission proceedings under
this proposed rule.
Under paragraph (d), the Agency Official who issued the order would
review all responses. After reviewing the responses, the Agency
Official would either enter an order revoking the motor carrier's
operating authority registration or terminating the proceeding. If the
Agency Official issues an order revoking operating authority
registration, the motor carrier and the intervening person would within
15 days of service have the right to seek administrative review of the
order by the Assistant Administrator of the order. The effective date
of the order would be stayed if either the motor carrier or intervening
person seeks review, unless the Assistant Administrator finds good
cause not to stay the order. If neither the motor carrier nor the
intervening person seeks review, the order would become a Final Agency
Order 20 days after being served. Failure to submit a petition for
review would constitute a waiver of the right to contest the order. An
order revoking registration under this section would remain in effect
and prevent the motor carrier from obtaining new registration until
that order is rescinded in accordance with Sec. 385.917. Paragraph (e)
would provide that any party seeking review under this section must
follow the procedures set forth in Sec. 385.913(e).
Section 385.917
Section 385.917 would permit the motor carriers as well as
intervening persons to file petitions for rescission of an order issued
under this proposed rule suspending or revoking the motor carrier's
operating authority registration. Rescission would be appropriate when
a motor carrier or intervening person has taken action to correct the
deficiencies that resulted in the suspension or revocation. Motor
carriers or intervening persons could seek rescission of an order in
addition to, or in lieu of, seeking administrative review. However, any
person who does not intervene under Sec. Sec. 385.913(c) and/or
385.915(c) would have waived the right to petition for rescission.
Paragraph (b) would require that the petition be made in writing to
the Agency Official who suspended or revoked the operating authority
registration. Paragraph (c) would require the petitioning motor carrier
or intervening person to include a copy of the order suspending or
revoking the registration, a statement identifying the corrective
action taken, and supporting documentation. Paragraph (d) would give
the Agency Official 60 days in which to issue a written decision that
includes the factual and legal basis for that decision.
Paragraph (e) provides that, if the Agency Official grants the
petition, the order rescinding the suspension or revocation would be a
Final Agency Order. A motor carrier that obtains an order rescinding an
order of suspension could resume operations without seeking additional
authorization, as long as it was otherwise eligible under FMCSA's
regulations. A motor carrier whose order of revocation is rescinded,
however, must reapply for and receive operating authority registration
as a new entrant under 49 CFR part 385 before resuming operations.
Paragraph (f) would provide that if the Agency Official denied the
petition for rescission, the motor carrier or intervening person could
petition the Assistant Administrator for administrative review of this
decision. Motor carriers or intervening persons would be required to
serve a petition for review with the Assistant Administrator within 15
days after service of the order denying the petition for rescission.
The petitioner would be required to identify the disputed factual or
procedural issues relevant to the denial of the petition for rescission
and would not be permitted to challenge the underlying suspension or
revocation order. Paragraph (g) would give the Assistant Administrator
60 days to issue a written
[[Page 67619]]
decision, which would become the Final Agency Order.
Section 385.919
Section 385.919 would clarify that orders issued under the proposed
rule would not amend or supersede existing FMCSA orders, prohibitions,
or requirements. Orders issued under the new rule would be separate
from and in addition to existing orders, prohibitions, or requirements.
Rescission of an order suspending or revoking operating authority
registration under this proposed rule would not affect other suspension
or revocation orders either pending or in effect at the time of
rescission. Once an order is rescinded, a motor carrier would not be
able to resume operations unless it was otherwise eligible under
FMCSA's regulations and was in compliance with any other orders issued
by the Agency.
Section 385.921
Section 385.921 would clarify that existing statutory civil and
criminal penalties and sanctions could apply to motor carriers subject
to enforcement under this proposed rule. These motor carriers could be
subject to civil and criminal penalties, regardless of whether the
Agency Official determines that suspension, revocation, or other
remedial action is appropriate. A motor carrier that takes corrective
action after receiving notice of a show cause order, but before a final
order is entered, would not necessarily avoid civil or criminal
penalties. An intervening person or any other person whose conduct
precipitates an enforcement action would not be subject to civil or
criminal penalties under this section, if that person does not hold
operating authority registration. Currently, maximum civil penalties
for violations of Subchapter III of Title 49, United States Code (which
includes section 31135) are $11,000 per violation. The criminal
penalties for knowingly and willfully violating Subchapter III include
up to one year's imprisonment and a fine not to exceed $25,000.
Section 385.923
Section 385.923 would provide that the regulations governing the
service of documents and the computation of time at 49 CFR Sec. Sec.
386.6 and 386.8 would apply to proceedings under this proposed rule.
Appendix A to Part 386--Penalty Schedule; Violations of Notices and
Orders
This proposed rule would add a new paragraph (i) to Appendix A to
Part 386, establishing a penalty of up to $11,000 for each day that a
motor carrier operated in violation of an order suspending or revoking
operating authority registration under this proposed rule based on 49
U.S.C. 521(b)(2)(A), as adjusted for inflation by the Federal Civil
Penalties Inflation Adjustment Act of 1990, as amended by the Debt
Collection Improvement Act of 1996.
Rulemaking Analyses
Executive Order 12866 (Regulatory Planning and Review) as Supplemented
by E.O. 13563 and DOT Regulatory Policies and Procedures
This action does not meet the criteria for a significant regulatory
action, either as specified in Executive Order 12866 as supplemented by
Executive Order 13563 (76 FR 3821, January 18, 2011) or within the
meaning of the DOT regulatory policies and procedures (44 FR1103,
February 26, 1979). The estimated economic costs of the rule do not
exceed the $100 million annual threshold nor does the Agency expect the
rule to have substantial Congressional or public interest. Therefore,
this rule has not been formally reviewed by the Office of Management
and Budget.
FMCSA assessed the potential costs associated with this proposed
rule. While there should be no cost associated with this rule, there
could potentially be cost associated with the transfer to other firms
of assets from motor carriers that have had their operating authority
registration suspended or revoked, but found these costs to be
insignificant. Moreover, these transfer costs could have been avoided
by complying with the FMCSRs or declining to mask or otherwise conceal
evidence of noncompliance with the FMCSRs. Motor carriers that have
their operating authority registration suspended or revoked would lose
revenue, but this revenue would be reallocated to other firms.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires Federal agencies to consider the effects of the regulatory
action on small business and other small entities and to minimize any
significant economic impact. The term ``small entities'' comprises
small businesses and not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with a population of less than
50,000.\2\
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\2\ Regulatory Flexibility Act (5 U.S.C. 601 et seq.) see
National Archives at http://www.archives.gov/federal-register/laws/regulaotry-flexibility/601.html.
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Accordingly, DOT policy requires an analysis of the impact of all
regulations on small entities, and mandates that agencies strive to
lessen any adverse effects on these businesses. Under the Regulatory
Flexibility Act, as amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), the
proposed rule is not expected to have a significant economic impact on
a substantial number of small entities. Consequently, I certify the
proposed action would not have a significant economic impact on a
substantial number of small entities. FMCSA invites comment from
members of the public who believe there will be a significant impact
either on small businesses or on governmental jurisdictions with a
population of less than 50,000.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), FMCSA wants to assist small
entities in understanding this proposed rule so that they can better
evaluate its effects on them and participate in the rulemaking
initiative. If the proposed rule would affect your small business,
organization, or governmental jurisdiction and you have questions
concerning its provisions or options for compliance, please consult the
FMCSA point of contact, Juan Moya, listed in the FOR FURTHER
INFORMATION CONTACT section of this proposed rule.
Small businesses may send comments on the actions of Federal
employees who enforce or otherwise determine compliance with Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-
734-3247).
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of
[[Page 67620]]
$143.1 million (which is the value of $100 million in 2010 after
adjusting for inflation) or more in any 1 year. Though this proposed
rule would not result in such expenditure, FMCSA discusses the effects
of this rule elsewhere in this preamble.
National Environmental Policy Act and Clean Air Act
FMCSA analyzed this NPRM for the purpose of the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and
determined under its environmental procedures Order 5610.1, published
February 24, 2004 (69 FR 9680), that this proposed action does not have
any effect on the quality of the environment. Therefore, this NPRM is
categorically excluded from further analysis and documentation in an
environmental assessment or environmental impact statement under FMCSA
Order 5610.1, paragraph 6(u) of Appendix 2. The Categorical Exclusion
under paragraph 6(u) relates to regulations implementing ``Motor
carrier identification and registration reports * * *'', which is the
focus of this rulemaking. A Categorical Exclusion determination is
available for inspection or copying in the regulations.gov Web site
listed under ADDRESSES.
In addition to the NEPA requirements to examine impacts on air
quality, the Clean Air Act (CAA) as amended (42 U.S.C. 7401 et seq.)
also requires FMCSA to analyze the potential impact of its actions on
air quality and to ensure that FMCSA actions conform to State and local
air quality implementation plans. No additional contributions to air
emissions are expected from this rule and FMCSA expects the rule to not
be subject to the Environmental Protection Agency's General Conformity
Rule (40 CFR parts 51 and 93).
FMCSA seeks comment on these determinations.
Paperwork Reduction Act
This proposed rule would call for no new collection of information
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
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 proposed rule 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 13045 (Protection of Children)
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (April 23, 1997, 62 FR 19885), requires
that agencies issuing economically significant rules, which also
concern an environmental health or safety risk that an Agency has
reason to believe may disproportionately affect children, must include
an evaluation of the environmental health and safety effects of the
regulation on children. Section 5 of Executive Order 13045 directs an
Agency to submit for a covered regulatory action an evaluation of its
environmental health or safety effects on children. The FMCSA has
preliminarily determined that this proposed rule is not a covered
regulatory action as defined under Executive Order 13045. This
determination is based upon the fact that this proposed rule is not
economically significant under Executive Order 12866, because the
changes proposed in this rule would not have an impact of $100 million
or more in any given year. In addition, this proposal would not
constitute an environmental health risk or safety risk that would
disproportionately affect children.
Executive Order 13132 (Federalism)
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on States or localities. FMCSA has analyzed
this proposed rule under that Order and has determined that it does not
have implications for federalism.
Executive Order 12372 (Intergovernmental Review)
The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this program.
Executive Order 13211 (Energy Supply, Distribution, or Use)
The FMCSA has analyzed this proposed rule under Executive Order
13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use.'' This proposal is not a
significant energy action within the meaning of section 4(b) of the
Executive Order. This proposal is a procedural action, is not
economically significant, and would not have a significant adverse
effect on the supply, distribution, or use of energy.
Privacy Impact Analysis
FMCSA conducted a Privacy Threshold Analysis for the NPRM and
determined that the rulemaking has privacy implications that will be
addressed by modifying the following two documentations: FMCSA
Enforcement Management Information System (EMIS), Privacy Impact
Assessment (PIA) and DOT/FMCSA 002 System of Records Notice (SORN) for
Motor Carrier Safety Proposed Civil and Criminal Enforcement Cases.
These documents have been placed in the docket.
List of Subjects
49 CFR Part 385
Administrative practice and procedure, Highway safety, Mexico,
Motor carriers, Motor vehicle safety, Reporting and recordkeeping
requirements.
49 CFR Part 386
Administrative practice and procedure, Brokers, Freight forwarders,
Hazardous materials transportation, Highway safety, Motor carriers,
Motor vehicle safety, Penalties.
For the reasons stated in the preamble, FMCSA proposes to amend
title 49 CFR, Code of Federal Regulations, chapter III, to read as
follows:
PART 385--SAFETY FITNESS PROCEDURES
1. The authority citation for part 385 is revised to read as
follows:
Authority: 49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 13901-
13905, 14701, 31133, 31135, 31136, 31137(a), 31144, 31148, and
31502; Sec. 113(a), Pub. L. 103-311; Sec. 408, Pub. L. 104-88; Sec.
350, Pub. L. 107-87; and 49 CFR 1.86.
2. Add a new subpart K, consisting of Sec. Sec. 385.901 through
385.923, to read as follows:
Subpart K--Pattern or Practice of Safety Violations by Motor Carrier
Management
385.901 Applicability.
385.903 Definitions.
385.905 Suspension or revocation of registration.
385.907 Regulatory noncompliance.
[[Page 67621]]
385.909 Pattern or practice of avoiding, masking, or concealing.
385.911 Common ownership, management, control or familial
relationship.
385.913 Suspension proceedings.
385.915 Revocation proceedings.
385.917 Petitions for rescission.
385.919 Other orders unaffected.
385.921 Penalties.
385.923 Service and computation of time.
Subpart K--Pattern or Practice of Safety Violations by Motor
Carrier Management
Sec. 385.901 Applicability.
The requirements in this subpart apply to for-hire motor carriers,
employers, officers and persons registered under 49 U.S.C. 13902, 49
CFR part 365, and 49 CFR part 368. When used in this subpart, the term
``motor carrier'' includes all for-hire motor carriers, employers,
officers and other persons, however designated, that are registered
under 49 U.S.C. 13902, 49 CFR part 365, and 49 CFR part 368.
Sec. 385.903 Definitions.
As used in this subpart:
Agency Official means the Director of FMCSA's Office of Enforcement
and Compliance or his or her designee.
Officer means an owner, director, chief executive officer, chief
operating officer, chief financial officer, safety director, vehicle
maintenance supervisor, and driver supervisor of a motor carrier,
regardless of the title attached to those functions, and any person,
however designated, exercising controlling influence over the
operations of a motor carrier.
Sec. 385.905 Suspension or revocation of registration.
(a) General. (1) If a motor carrier engages or has engaged in a
pattern or practice of avoiding compliance, or masking or otherwise
concealing noncompliance, with regulations on commercial motor vehicle
safety under this subchapter, FMCSA may suspend or revoke the motor
carrier's registration.
(2) If a motor carrier permits any person to exercise controlling
influence over the motor carrier's operations and that person engages
in or has engaged in a pattern or practice of avoiding compliance, or
masking or otherwise concealing noncompliance, with regulations on
commercial motor vehicle safety under this subchapter while acting on
behalf of any motor carrier, FMCSA may suspend or revoke the motor
carrier's registration.
(3) If two or more motor carriers use common ownership, common
management, common control, or common familial relationship to enable
any or all such motor carriers to avoid compliance, or mask or
otherwise conceal noncompliance with regulations under this subchapter,
FMCSA may suspend or revoke the motor carriers' registrations.
(b) Determination. (1) The Agency Official may issue an order to
revoke or suspend a motor carrier's registration, or require compliance
with this subpart, upon a determination that the motor carrier engages
or has engaged in a pattern or practice of avoiding regulatory
compliance or masking or otherwise concealing regulatory noncompliance.
(2) The Agency Official may issue an order to revoke or suspend a
motor carrier's registration, or require compliance with this subpart,
upon a determination that the motor carrier permitted a person to
exercise controlling influence over the motor carrier's operations if
that person engages in or has engaged in a pattern or practice of
avoiding regulatory compliance or masking or otherwise concealing
regulatory noncompliance.
(3) The Agency Official may issue an order to revoke or suspend two
or more motor carriers' registrations, or require compliance with this
subpart, upon a determination that the motor carriers use or have used
common ownership, common management, common control, or common familial
relationships to enable any or all such motor carriers to avoid
compliance, or to mask or otherwise conceal noncompliance with
regulations under this subchapter.
Sec. 385.907 Regulatory noncompliance.
A motor carrier or person acting on behalf of a motor carrier
avoids regulatory compliance or masks or otherwise conceals regulatory
noncompliance by, independently or on behalf of another motor carrier,
failing to or concealing failure to:
(a) Comply with statutory or regulatory requirements prescribed
under 49 U.S.C., Chapter 311, subchapter III;
(b) Comply with an FMCSA or State order issued to redress
violations of a statutory or regulatory requirement prescribed under 49
U.S.C., Chapter 311, subchapter III;
(c) Pay a civil penalty assessed for a violation of a statutory or
regulatory requirement prescribed under 49 U.S.C., Chapter 311,
subchapter III; or
(d) Respond to an enforcement action for a violation of a statutory
or regulatory requirement prescribed under 49 U.S.C., Chapter 311,
subchapter III.
Sec. 385.909 Pattern or practice of avoiding, masking or concealing.
The Agency Official may determine that a motor carrier or person
acting on behalf of a motor carrier engages or has engaged in a pattern
or practice of avoiding regulatory compliance, or masking or otherwise
concealing regulatory noncompliance for purposes of this subpart, by
considering, among other things, the following factors, which, in the
case of persons acting on behalf of a motor carrier, may be related to
conduct undertaken on behalf of any motor carrier:
(a) The frequency, remoteness in time, or continuing nature of the
conduct;
(b) The extent to which the regulatory violations caused by the
conduct create a risk to safety;
(c) The degree to which the conduct has affected the safety of
operations, including taking into account any crashes, deaths, or
injuries associated with the conduct;
(d) Whether the motor carrier or person acting on a motor carrier's
behalf knew or should have known that the conduct violated applicable
statutory or regulatory requirements;
(e) Pending or closed enforcement actions, if any;
(f) Whether the motor carrier or person acting on a motor carrier's
behalf engaged in the conduct for the purpose of avoiding compliance or
masking or otherwise concealing noncompliance; and
(g) In the case of a person acting on a motor carrier's behalf, the
extent to which the person exercises a controlling influence on the
motor carrier's operations.
Sec. 385.911 Common ownership, management, control or familial
relationship.
(a) The Agency Official may determine that two or more motor
carriers have common ownership, common management, common control or
common familial relationship if there is substantial continuity between
the motor carriers such that one is merely a continuation of the other.
(b) In making the determination in paragraph (a) of this section,
the Agency Official may consider, among other things, the following
factors:
(1) Whether a new or affiliated motor carrier was used for the
purpose of avoiding compliance or masking or otherwise concealing
noncompliance with the regulations prescribed under 49 U.S.C., Chapter
311, subchapter III. In weighing this factor, the Agency Official may
consider the stated business purpose for the creation of the new or
affiliated motor carrier;
[[Page 67622]]
(2) The motor carriers' safety performance histories, including,
among other things, safety violations and enforcement actions, if any;
(3) Consideration exchanged for assets sold or transferred between
motor carriers;
(4) Dates the motor carriers were created, dissolved or ceased
operations;
(5) Commonality of shareholders, investors, officers, managers and
employees;
(6) The relationships, if any, between the motor carriers'
shareholders, investors, officers, managers, employees or other
persons;
(7) Commonality or proximity of physical or mailing addresses,
telephone, fax numbers, or email addresses;
(8) Identity of motor vehicle equipment;
(9) Continuity of liability insurance policies or commonality of
coverage under such policies;
(10) Continuation of facilities and other physical assets;
(11) Continuity or commonality of nature and scope of operations,
including customers for whom transportation is provided; and
(12) Continuation or commonality of advertising, corporate name, or
other acts through which the motor carriers hold themselves out to the
public.
Sec. 385.913 Suspension proceedings.
(a) General. The Agency Official may issue an order to suspend a
motor carrier's registration based on a determination made in
accordance with Sec. 385.905.
(b) Commencement of proceedings. The Agency Official commences a
proceeding under this section by issuing an order, to the motor carrier
and, if the proceeding is based on the conduct of another person, by
also serving a copy on the person alleged to have engaged in the
pattern or practice that resulted in a proceeding instituted under this
section, which:
(1) Provides notice that the Agency is considering whether to
suspend the motor carrier's registration;
(2) Provides notice of the factual and legal basis for the order;
(3) Directs the motor carrier to show good cause within 30 days why
its registration should not be suspended;
(4) Informs the motor carrier that its response to the show cause
order must be in writing and include all documentation, if any, the
motor carrier wants considered;
(5) Informs the motor carrier of the address and name of the person
to whom the response should be directed and served;
(6) Provides notice to the person(s) who are alleged to have
engaged in the pattern or practice that resulted in the proceeding
instituted under this section, if any, of their right to intervene in
the proceeding; and
(7) Informs the motor carrier that its registration will be
suspended on the 35th day after service of the order, if the motor
carrier or an intervening person does not respond to the order.
(c) Right of individual person(s) to intervene. A person(s) alleged
to have engaged in the pattern or practice that resulted in a
proceeding instituted under this section may intervene in the
proceeding. The person(s) may--but are not required to--serve a
separate response and supporting documentation to an order served under
paragraph (b) of this section, within 30 days of being served with the
order. Failure to timely serve a response constitutes waiver of the
right to intervene.
(d) Review of response. The Agency Official will review the
responses to the order to show cause and determine whether the motor
carrier's registration should be suspended.
(1) The Agency Official may take the following actions:
(i) If the Agency Official determines that the motor carrier's
registration should be suspended, he or she will enter an order
suspending the registration;
(ii) If the Agency Official determines that it is not appropriate
to suspend the motor carrier's registration, he or she may enter an
order directing the motor carrier to correct the compliance
deficiencies; or
(iii) If the Agency Official determines the motor carrier's
registration should not be suspended and a compliance order is not
warranted, he or she will enter an order terminating the proceeding.
(2) If the Agency Official issues an order to suspend the motor
carrier's registration, the order will:
(i) Provide notice to the motor carrier and any intervening
person(s) of the right to petition the Assistant Administrator for
administrative review of the order within 15 days of service of the
order suspending registration;
(ii) Provide notice that a timely petition for administrative
review will stay the effective date of the order unless the Assistant
Administrator orders otherwise for good cause; and
(iii) Provide notice that failure to timely petition for
administrative review constitutes waiver of the right to contest the
order suspending the registration and will result in the order becoming
a Final Agency Order 20 days after it is served.
(e) Administrative review. The motor carrier or the intervening
person(s) may petition the Assistant Administrator for review of an
order issued under this section. The petition must be in writing and
served on the Assistant Administrator, Federal Motor Carrier Safety
Administration, 1200 New Jersey Ave. SE., Washington, DC 20590-0001,
Attention: Adjudications Counsel or by electronic mail to
FMCSA.Adjudication@dot.gov. A copy of the petition must also be served
on the Agency Official.
(1) A petition for review must be served within 15 days of the
service date of the order for which review is requested. Failure to
timely request review waives the right to review.
(2) A petition for review must include:
(i) A copy of the order in dispute;
(ii) A copy of the petitioner's response to the order in dispute,
with supporting documents if any;
(iii) A statement of all factual and procedural issues in dispute;
and
(iv) Written argument in support of the petitioner's position
regarding the procedural or factual issues in dispute.
(3) The Agency Official may serve a response to the petition for
review no later than 15 days following service of the petition.
(4) The Assistant Administrator may ask the parties to submit
additional information or attend a conference to facilitate review.
(5) The Assistant Administrator will issue a written decision on
the petition for review within 30 days of the close of the time period
for serving a response to the petition for review or the date of
service of the response, whichever is earlier.
(6) If a petition for review is timely served in accordance with
this section, the disputed order is stayed, pending the Assistant
Administrator's review. The Assistant Administrator may enter an order
vacating the automatic stay in accordance with the following
procedures:
(i) The Agency Official may file a motion to vacate the automatic
stay demonstrating good cause why the order should not be stayed. The
Agency Official's motion must be in writing, state the factual and
legal basis for the motion, be accompanied by affidavits or other
evidence relied on, and be served on the petitioner and Assistant
Administrator.
(ii) The petitioner may file an answer in opposition, accompanied
by affidavits or other evidence relied on. The answer must be served
within 10 days of service of the motion.
[[Page 67623]]
(iii) The Assistant Administrator will issue a decision on the
motion to vacate within 10 days of the close of the time period for
serving the answer to the motion. The 30-day period for review of the
petition for review in paragraph (e)(5) of this section is tolled from
the time the Agency Official's motion to lift a stay is served until
the Assistant Administrator issues a decision on the motion.
(7) The Assistant Administrator's decision on a petition for review
of an order issued under this section constitutes the Final Agency
Order.
Sec. 385.915 Revocation proceedings.
(a) General. The Agency Official may issue an order to revoke a
motor carrier's registration, if he or she determines that the motor
carrier has willfully violated an order issued under Sec.
385.913(d)(1)(i) or (ii), for a period of at least 30 days.
(b) Commencement of proceedings. The Agency Official may commence a
proceeding under this section by issuing an order to the motor carrier
and serving a copy on the person(s), if any, who intervened under Sec.
385.913(c). The order must:
(1) Provide notice that the Agency is considering whether to revoke
the motor carrier's registration;
(2) Provide notice of the factual and legal basis for the order;
(3) Direct the motor carrier to show good cause within 30 days why
registration should not be revoked;
(4) Inform the motor carrier that the response to the show cause
order must be in writing and include all documentation, if any, the
motor carrier wants considered;
(5) Inform the motor carrier of the address and name of the person
to whom the response should be directed and served;
(6) Provide notice to the person(s), if any, who have intervened
under Sec. 385.913(c) of their right to intervene in the proceeding;
and
(7) Inform the motor carrier that its registration will be revoked
on the 35th day after service of the order if the motor carrier or an
intervening person does not respond to the order.
(c) Right of individual person(s) to intervene. The person(s) who
exercised their right to intervene under Sec. 385.913(c) may--but are
not required to--serve a separate response and supporting documentation
to an order served under paragraph (b) of this section, within 30 days
of being served with the order. Failure to timely serve a response
constitutes waiver of the right to intervene. A person who did not
intervene under Sec. 385.913(c) may not intervene under this section.
(d) Review of response. The Agency Official will review the
responses to the order to show cause and determine whether the motor
carrier's registration should be revoked.
(1) The Agency Official will take one of the following actions:
(i) If the Agency Official determines the motor carrier's
registration should be revoked, he or she will enter an order revoking
the motor carrier's registration; or
(ii) If the Agency Official determines the motor carrier's
registration should not be revoked, he or she will enter an order
terminating the proceeding.
(2) If the Agency Official issues an order to revoke the motor
carrier's registration, the order will:
(i) Provide notice to the motor carrier and any intervening
person(s) of the right to petition the Assistant Administrator for
review of the order within 15 days of service of the order revoking the
motor carrier's registration;
(ii) Provide notice that a timely petition for review will stay the
effective date of the order unless the Assistant Administrator orders
otherwise for good cause; and
(iii) Provide notice that failure to timely petition for review
constitutes waiver of the right to contest the order revoking the motor
carrier's registration and will result in the order becoming a Final
Agency Order 20 days after it is served.
(iv) Provide notice that a Final Agency Order revoking the motor
carrier's registration will remain in effect and bar approval of any
subsequent application for registration until rescinded by the Agency
Official pursuant to Sec. 385.917.
(e) Administrative review. The motor carrier or an intervening
person may petition the Assistant Administrator for review of an order
issued under this section by following the procedures set forth in
Sec. 385.913(e).
Sec. 385.917 Petitions for rescission.
(a) A motor carrier or intervening person may submit a petition for
rescission of an order suspending or revoking registration under this
subpart based on action taken to correct the deficiencies that resulted
in the suspension or revocation.
(b) A petition for rescission must be made in writing to the Agency
Official.
(c) A petition for rescission must include a copy of the order
suspending or revoking the motor carrier's registration, a factual
statement identifying all corrective action taken, and copies of
supporting documentation.
(d) The Agency Official will issue a written decision on the
petition within 60 days of service of the petition. The decision will
state the factual and legal basis for the decision.
(e) If the Agency Official grants the petition, the written
decision is the Final Agency Order. Rescinding an order revoking a
motor carrier's registration does not have the effect of reinstating
the revoked registration. In order to resume operations in interstate
commerce, the motor carrier whose registration was revoked must reapply
for registration as a new entrant under 49 CFR part 385 and comply with
all applicable new entrant requirements.
(f) If the Agency Official denies the petition, the petitioner may
submit a petition for review of the denial with the Assistant
Administrator, Federal Motor Carrier Safety Administration, 1200 New
Jersey Ave. SE., Washington, DC 20590-0001, Attention: Adjudication
Counsel, or by electronic mail to FMCSA.Adjudication@dot.gov. The
petition for review of the denial must be served within 15 days of the
service of the decision denying the petition for rescission. The
petition for review must identify the disputed factual or procedural
issues with respect to the denial of the petition for rescission. The
petition for review may not, however, challenge the basis of the
underlying suspension or revocation order.
(g) The Assistant Administrator will issue a written decision on
the petition for review within 60 days. The Assistant Administrator's
decision constitutes the Final Agency Order.
Sec. 385.919 Other orders unaffected.
If a motor carrier subject to an order issued under this subpart is
or becomes subject to any other order, prohibition, or requirement of
the FMCSA, an order issued under this subpart is in addition to, and
does not amend or supersede the other order, prohibition, or
requirement. A motor carrier subject to an order issued under this
subpart remains subject to the suspension and revocation provisions of
49 U.S.C. 13905 for violations of regulations governing their
operations.
Sec. 385.921 Penalties.
(a) Any motor carrier that the Agency determines engages or has
engaged in a pattern or practice of avoiding regulatory compliance or
masking noncompliance or violates an order issued under this subpart
shall be subject to the civil or criminal penalty provisions of 49
U.S.C. 521(b) and applicable regulations.
[[Page 67624]]
(b) Any motor carrier who permits the exercise of controlling
influence over its operations by any person that the Agency determines,
under this subpart, engages in or has engaged in a pattern or practice
of avoiding regulatory compliance or masking noncompliance while acting
on behalf of any motor carrier, shall be subject to the civil or
criminal penalty provisions of 49 U.S.C. 521(b) and applicable
regulations.
(c) Any two or more motor carriers that the Agency determines,
under this subpart, use or have used common ownership, common
management, common control, or common familial relationships to enable
such motor carriers to avoid compliance, or mask or otherwise conceal
noncompliance, shall be subject to the civil or criminal penalty
provisions of 49 U.S.C. 521(b) and applicable regulations.
Sec. 385.923 Service and computation of time.
Service of documents and computations of time will be made in
accordance with Sec. Sec. 386.6 and 386.8 of this subchapter.
PART 386--RULES OF PRACTICE FOR MOTOR CARRIER, INTERMODAL EQUIPMENT
PROVIDER, BROKER, FREIGHT FORWARDER, AND HAZARDOUS MATERIALS
PROCEEDINGS
3. The authority citation for part 386 is revised to read as
follows:
Authority: 49 U.S.C. 113, chapters 5, 51, 59, 131-141, 145-149,
311, 313, and 315; 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;
Sec. 206, Pub. L. 106-159, 113 Stat. 1763; subtitle B, title IV of
Pub. L. 109-59; 49 CFR 1.86 and 1.87; and Sec. 32112, Pub. L. 112-
141.
4. In Appendix A to Part 386, add a new paragraph IV.j. to read as
follows:
Appendix A to Part 386--Penalty Schedule; Violations of Notice and
Orders
* * * * *
IV. * * *
j. Violation--Conducting operations during a period of
suspension or revocation under Sec. Sec. 385.913 or 385.915.
Penalty--Up to $11,000 for each day that operations are
conducted during the suspension or revocation period.
Issued on: October 31, 2012 .
Anne S. Ferro,
Administrator.
[FR Doc. 2012-27569 Filed 11-9-12; 8:45 am]
BILLING CODE 4910-EX-P