Notice of Reinstatement of Informal Hearing Procedure |
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Anne S. Ferro
Federal Motor Carrier Safety Administration
March 27, 2014
[Federal Register Volume 79, Number 59 (Thursday, March 27, 2014)]
[Notices]
[Pages 17229-17230]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-06838]
[[Page 17229]]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2010-0149]
Notice of Reinstatement of Informal Hearing Procedure
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice.
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SUMMARY: FMCSA announces that it is reinstating the informal hearing
procedure authorized under the Rules of Practice for Motor Carrier,
Intermodal Equipment Provider, Broker, Freight Forwarder, and Hazardous
Materials Proceedings (Rules of Practice), codified at 49 CFR part 386.
On June 7, 2010, the Agency stated that it would not entertain new
requests for informal hearings pending a reevaluation of the procedure,
based on concerns about the neutrality of Agency Hearing Officers.
After conducting numerous informal hearings (involving cases that were
pending at the time the 2010 notice was published) with an attorney in
the Office of Chief Counsel's Section of Adjudications serving as
Hearing Officer, the Agency believes informal hearings should remain an
option for administrative adjudication of contested civil penalty
claims and will again permit respondents in enforcement cases to
request this option. Prior to June 7, 2010, FMCSA had made informal
hearings available only to respondents located within its Eastern and
Midwestern Service Centers. The Agency removes this geographical
limitation and will make informal hearings available to all
respondents, regardless of where they are domiciled.
DATES: Effective March 27, 2014.
ADDRESSES: For access to the docket to read background documents,
including those referenced in this document, or to read comments
received, go to http://www.regulations.gov at any time and insert
``FMCSA-2010-0149'' in the ``Keyword'' box, and then click ``Search.''
The docket is also available by going to the ground floor, Room W12-
140, DOT Building, 1200 New Jersey Avenue SE., Washington, DC, between
9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal
holidays.
FOR FURTHER INFORMATION CONTACT: Sue Lawless, Office of Chief Counsel,
Adjudications Counsel (MC-CCA), FMCSA, 1200 New Jersey Avenue SE.,
Washington, DC 20590. Telephone (202) 366-0834.
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 49 CFR
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; or (B) an informal
hearing; or (C) a formal hearing.
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 (AA), who, pursuant to section 386.2, is the
Agency's ``decisionmaker,'' 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). FMCSA was concerned 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 also continued to carry out their existing responsibilities
related to the implementation of the enforcement programs in their
respective Service Center areas. FMCSA was concerned that FMCSA
personnel involved in the Agency's enforcement program may not be
considered neutral.
Suspension of Informal Hearing Procedure
On June 7, 2010, FMCSA published a Federal Register notice stating
that it was suspending the use of informal hearings for enforcement
actions
[[Page 17230]]
initiated after publication of the notice pending reevaluation of the
informal hearing procedure (see 75 FR 32242). At that time, there were
20 pending cases awaiting informal hearings and an additional 13 cases
in which respondents had requested informal hearings subject to
objections by the Eastern and Midwestern Service Centers. In order to
avoid further delaying the resolution of these cases, the Agency
assigned them to a Hearing Officer located within the Office of Chief
Counsel's Section of Adjudications. This section is not connected with
the Agency's enforcement program and the attorneys assigned to this
section currently draft decisions and orders in civil penalty cases,
safety rating appeals, and Hazardous Materials Permit appeals for the
review and signature of FMCSA's Assistant Administrator. See 49 CFR
386.3. In its June 7, 2010 notice, FMCSA sought public comment on
options for implementing an effective informal hearing process.
Comments on the Notice
Only the American Trucking Associations (ATA) submitted a comment
in response to the Notice. The ATA made three suggestions that it
believed would either enhance the neutrality of the process or speed
its resolution: (1) Allow service of claims and responses to claims via
electronic means; (2) utilize hearing officers who are not employed by
FMCSA to conduct informal hearings; and (3) permit carriers who opt for
an informal hearing to preserve their right to a formal hearing.
Response to Comments
The ATA's first suggestion could potentially speed the adjudicatory
process, not only for informal hearings, but for other matters coming
before the Assistant Administrator under 49 CFR part 386.
Implementation of this proposal, however, would require the Agency to
revise its rules regarding service of documents to permit electronic
service, and the Agency will consider doing so at the appropriate time.
ATA's second suggestion is based on the misconception that any
FMCSA employee, regardless of his or her position in the agency, is
necessarily biased and cannot act as a neutral arbiter. Under the
Agency's Rules of Practice, the Chief Counsel, the Special Assistant to
the Chief Counsel, and attorneys in the Chief Counsel's Section of
Adjudications are separated from enforcement functions and enforcement
counsel, and advise the Assistant Administrator in contested cases.
(See 49 CFR 386.3.) These attorneys have advised the Assistant
Administrator, and prepared numerous orders and decisions in matters
coming before the Assistant Administrator during the past several
years, many of which have been favorable to respondents in contested
enforcement cases.
After suspending the informal hearing process for enforcement
actions initiated on or after June 7, 2010, the Agency held informal
hearings in more than 30 cases pending before that date, with an
Adjudications attorney serving as Hearing Officer. The informal
hearings, which were held via teleconference, proved to be an
efficient, less expensive means of adjudication than a formal hearing
before an administrative law judge. They were less resource intensive
for both parties, provided a timely means of resolution, and were an
effective means to resolve enforcement cases. The Agency intends to
continue to use personnel identified in section 386.3, including
Adjudications counsel, as hearing officers, but reserves the right to
use other neutral arbiters.
The ATA's third suggestion is essentially a request to amend 49 CFR
386.16(b)(4)(A) by eliminating the final sentence of that paragraph,
which states: ``By participating in an informal hearing, respondent
waives its right to a formal hearing.'' Implementation of this
recommendation would require notice and comment rulemaking and, as
such, is beyond the scope of this notice. Moreover, it appears to be
based on the erroneous assumption that a respondent waives its right to
appeal the decision of the Hearing Officer by requesting an informal
hearing. This is not the case.
The Hearing Officer issues a report to the Assistant Administrator
that includes findings of fact and a recommended disposition of the
case. The Assistant Administrator then issues either a Final Order
adopting the report or other orders he or she may deem appropriate. If
a respondent disagrees with the Final Order, it may submit a petition
for reconsideration under 49 CFR 386.64. Final Orders in informal
hearing cases are also subject to the appeal provisions of section
386.67. There is a right, therefore, to appeal the Hearing Officer's
recommendation.
Furthermore, if a respondent is concerned about the fairness of the
informal hearing process, it has the option of requesting a formal
hearing in its reply to the Notice of Claim. A respondent requesting a
formal hearing simply because it is dissatisfied with the results of
the informal hearing process would essentially be engaging in forum
shopping. Permitting such a practice would be an inefficient use of
Agency resources and delay resolution of the matter.
Reinstatement of Informal Hearings
Accordingly, FMCSA rescinds its June 7, 2010 notice suspending the
availability of informal hearings for enforcement actions initiated on
or after the date of that Notice. In addition, the Agency removes the
geographical limitations on eligibility for informal hearings imposed
on March 17, 2006 and February 13, 2007. The informal hearing option
will be available to all respondents subject to civil penalty
enforcement actions initiated by Notices of Claim issued on or after
the date of this notice.
Issued on: March 14, 2014.
Anne S. Ferro,
Administrator.
[FR Doc. 2014-06838 Filed 3-26-14; 8:45 am]
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