DOT 49 CFR PART 386-2010 RULES OF PRACTICE FOR MOTOR CARRIER INTER-MODAL EQUIPMENT PROVIDER BROKER FREIGHT FORWARDER AND HAZARDOUS MATERIALS PROCEEDINGS.pdf

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1、274 49 CFR Ch. III (10110 Edition) Pt. 386 driver to drive after having been on duty 15 hours. 395.5(b)(1) Requiring or permitting a pas-senger-carrying commercial motor vehicle driver to drive after having been on duty more than 60 hours in 7 consecutive days. 395.5(b)(2) Requiring or permitting a

2、pas-senger-carrying commercial motor vehicle driver to drive after having been on duty more than 70 hours in 8 consecutive days. 395.8(a) Failing to require driver to make a record of duty status. 395.8(e) False reports of records of duty status. 395.8(i) Failing to require driver to for-ward within

3、 13 days of completion, the origi-nal of the record of duty status. 395.8(k)(1) Failing to preserve drivers record of duty status for 6 months. 395.8(k)(1) Failing to preserve drivers records of duty status supporting documents for 6 months. 75 FR 17244, Apr. 5, 2010 PART 386RULES OF PRACTICE FOR MO

4、TOR CARRIER, INTER-MODAL EQUIPMENT PROVIDER, BROKER, FREIGHT FORWARDER, AND HAZARDOUS MATERIALS PROCEEDINGS Subpart AScope of Rules; Definitions and General Provisions Sec. 386.1 Scope of the rules in this part. 386.2 Definitions. 386.3 Separation of functions. 386.4 Appearances and rights of partie

5、s. 386.5 Form of filings and extensions of time. 386.6 Service. 386.7 Filing of documents. 386.8 Computation of time. Subpart BCommencement of Proceedings, Pleadings 386.11 Commencement of proceedings. 386.12 Complaint. 386.13 Petitions to review and request for hearing: Driver qualification pro-cee

6、dings. 386.14 Reply. 386.15 Reserved 386.16 Action on replies to the Notice of Claim. 386.17 Intervention. 386.18 Payment of the claim. Subpart CSettlement Agreements 386.22 Settlement agreements and their con-tents. Subpart DGeneral Rules and Hearings 386.31 Official notice. 386.34 Motions. 386.35

7、Motions to dismiss and motions for a more definite statement. 386.36 Motions for final agency order. 386.37 Discovery. 386.38 Scope of discovery. 386.39 Protective orders. 386.40 Supplementation of responses. 386.41 Stipulations regarding discovery. 386.42 Written interrogatories to parties. 386.43

8、Production of documents and other evidence; entry upon land for inspection and other purposes; and physical and mental examination. 386.44 Request for admissions. 386.45 Motion to compel discovery. 386.46 Depositions. 386.47 Use of deposition at hearings. 386.48 Medical records and physicians re-por

9、ts. 386.49 Form of written evidence. 386.51 Amendment and withdrawal of plead-ings. 386.52 Appeals from interlocutory rulings. 386.53 Subpoenas, witness fees. 386.54 Administrative law judge. 386.55 Prehearing conferences. 386.56 Hearings. 386.57 Proposed findings of fact, conclusions of law. 386.58

10、 Burden of proof. Subpart EDecision 386.61 Decision. 386.62 Review of administrative law judges decision. 386.63 Decision on review. 386.64 Reconsideration. 386.65 Failure to comply with final order. 386.66 Motions for rehearing or for modifica-tion. 386.67 Judicial review. Subpart FInjunctions and

11、Imminent Hazards 386.71 Injunctions. 386.72 Imminent hazard. Subpart GPenalties 386.81 General. 386.82 Civil penalties for violations of no-tices and orders. 386.83 Sanction for failure to pay civil pen-alties or abide by payment plan; oper-ation in interstate commerce prohibited. 386.84 Sanction fo

12、r failure to pay civil pen-alties or abide by payment plan; suspen-sion or revocation of registration. APPENDIX A TO PART 386PENALTY SCHED-ULE; VIOLATIONS OF NOTICES AND ORDERS VerDate Mar2010 08:20 Dec 16, 2010 Jkt 220216 PO 00000 Frm 00284 Fmt 8010 Sfmt 8010 Y:SGML220216.XXX 220216jdjones on DSK8K

13、YBLC1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-275 Federal Motor Carrier Safety Administration, DOT 386.2 APPENDIX B TO PART 386PENALTY SCHED-ULE; VIOLATIONS AND MAXIMUM MONE-TARY PENALTIES AUTHORITY: 49 U.S.C. 521, 5123, 13301, 13

14、902, 14915, 3113231133, 31136, 31144, 31151, 31502, 31504; Sec. 204, Pub. L. 10488, 109 Stat. 803, 941 (49 U.S.C. 701 note); Sec. 217, Pub. L. 105 159, 113 Stat. 1748, 1767; and 49 CFR 1.73. SOURCE: 50 FR 40306, Oct. 2, 1985, unless otherwise noted. EDITORIAL NOTE: Nomenclature changes to part 386 a

15、ppear at 65 FR 7755, Feb. 16, 2000, and 66 FR 49873, Oct. 1, 2001. Subpart AScope of Rules; Definitions and General Provisions 386.1 Scope of the rules in this part. (a) The rules in this part govern pro-ceedings before the Assistant Adminis-trator, who also acts as the Chief Safe-ty Officer of the

16、Federal Motor Carrier Safety Administration (FMCSA), under applicable provisions of the Federal Motor Carrier Safety Regulations (FMCSRs) (49 CFR parts 350399), in-cluding the commercial regulations (49 CFR parts 360379), and the Hazardous Materials Regulations (49 CFR parts 171180). (b) The purpose

17、 of the proceedings is to enable the Assistant Administrator: (1) To determine whether a motor carrier, intermodal equipment provider (as defined in 390.5 of this chapter), property broker, freight forwarder, or its agents, employees, or any other per-son subject to the jurisdiction of FMCSA, has fa

18、iled to comply with the provisions or requirements of applica-ble statutes and the corresponding reg-ulations; and (2) To issue an appropriate order to compel compliance with the statute or regulation, assess a civil penalty, or both, if such violations are found. 73 FR 76819, Dec. 17, 2008 386.2 De

19、finitions. Abate or abatement means to dis-continue regulatory violations by re-fraining from or taking actions identi-fied in a notice to correct noncompli-ance. Administration means the Federal Motor Carrier Safety Administration. Administrative adjudication means a process or proceeding to resolv

20、e con-tested claims in conformity with the Administrative Procedure Act, 5 U.S.C. 554558. Administrative law judge means an ad-ministrative law judge appointed pur-suant to the provisions of 5 U.S.C. 3105. Agency means the Federal Motor Car-rier Safety Administration. Agency Counsel means the attorn

21、ey who prosecutes a civil penalty matter on behalf of the Field Administrator. Assistant Administrator means the As-sistant Administrator of the Federal Motor Carrier Safety Administration. The Assistant Administrator is the Chief Safety Officer of the agency pur-suant to 49 U.S.C. 113(e). Decisions

22、 of the Assistant Administrator in motor carrier, broker, freight forwarder, and hazardous materials proceedings under this part are administratively final. Broker means a person who, for com-pensation, arranges or offers to arrange the transportation of property by an authorized motor carrier. A mo

23、tor car-rier, or person who is an employee or bona fide agent of a carrier, is not a broker within the meaning of this sec-tion when it arranges or offers to ar-range the transportation of shipments which it is authorized to transport and which it has accepted and legally bound itself to transport.

24、Civil forfeiture proceedings means pro-ceedings to collect civil penalties for violations under the Commercial Motor Vehicle Safety Act of 1986 (49 U.S.C. Chapter 313); the Hazardous Ma-terials Transportation Act of 1975, as amended (49 U.S.C. Chapter 51); the Motor Carrier Safety Act of 1984 (49 U.

25、S.C. Chapter 311, Subchapter III); section 18 of the Bus Regulatory Re-form Act of 1982 (49 U.S.C. 31138); sec-tion 30 of the Motor Carrier Act of 1980 (49 U.S.C. 31139); and the ICC Termi-nation Act of 1995 (49 U.S.C. Chapters 131149). Civil penalty proceedings means pro-ceedings to collect civil p

26、enalties for violations of regulations and statutes within the jurisdiction of FMCSA. Claimant means the representative of the Federal Motor Carrier Safety Ad-ministration authorized to make claims. Commercial regulations means statutes and regulations that apply to persons providing or arranging tr

27、ansportation VerDate Mar2010 08:20 Dec 16, 2010 Jkt 220216 PO 00000 Frm 00285 Fmt 8010 Sfmt 8010 Y:SGML220216.XXX 220216jdjones on DSK8KYBLC1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-276 49 CFR Ch. III (10110 Edition) 386.2 for com

28、pensation subject to the Sec-retarys jurisdiction under 49 U.S.C. Chapter 135. The statutes are codified in Part B of Subtitle IV, Title 49, U.S.C. (49 U.S.C. 13101 through 14913). The regulations include those issued by the Federal Motor Carrier Safety Ad-ministration or its predecessors under auth

29、ority provided in 49 U.S.C. 13301 or a predecessor statute. Decisionmaker means the Assistant Administrator of FMCSA, acting in the capacity of the decisionmaker or any person to whom the Assistant Adminis-trator has delegated his/her authority in a civil penalty proceeding. As used in this subpart,

30、 the Agency decision-maker is the official authorized to issue a final decision and order of the Agency in a civil penalty proceeding. Default means an omission or failure to perform a legal duty within the time specified for action, failure to reply to a Notice of Claim within the time re-quired, o

31、r failure to submit a reply in accordance with the requirements of this part. A default may result in issuance of a Final Agency Order or ad-ditional penalties against the default-ing party. Department means the U.S. Depart-ment of Transportation. Dockets means the U.S. Department of Transportations

32、 docket manage-ment system, which is the central re-pository for original copies of all docu-ments filed before the agency decision-maker. Driver qualification proceeding means a proceeding commenced under 49 CFR 391.47 or by issuance of a letter of dis-qualification. Federal Motor Carrier Commercia

33、l Reg-ulations (FMCCRs) means statutes and regulations applying to persons pro-viding or arranging transportation for compensation subject to the Sec-retarys jurisdiction under 49 U.S.C. Chapter 135. The statutes are codified in Part B of Subtitle IV, Title 49 U.S.C. (49 U.S.C. 13101 through 14913).

34、 The reg-ulations include those issued by FMCSA or its predecessors under au-thority provided in 49 U.S.C. 13301 or a predecessor statute. Field Administrator means the head of an FMCSA Service Center who has been delegated authority to initiate compliance and enforcement actions on behalf of FMCSA.

35、 Final Agency Order means the final action by FMCSA issued pursuant to this part by the appropriate Field Ad-ministrator (for default judgments under 386.14) or the Assistant Admin-istrator, or settlement agreements which become the Final Agency Order pursuant to 386.22, or decisions of the Administ

36、rative Law Judge, which be-come the Final Agency Order pursuant to 386.61 or binding arbitration awards. A person who fails to perform the ac-tions directed in the Final Agency Order commits a violation of that order and is subject to an additional penalty as prescribed in Subpart G of this part. FM

37、CSRs means the Federal Motor Carrier Safety Regulations. Formal hearing means an evidentiary hearing on the record in which parties have the opportunity to conduct dis-covery, present relevant evidence, and cross-examine witnesses. Freight forwarder means a person holding itself out to the general p

38、ublic (other than as an express, pipeline, rail, sleeping car, motor, or water car-rier) to provide transportation of prop-erty for compensation in interstate commerce, and in the ordinary course of its business: (1) Performs or provides for assem-bling, consolidating, break-bulk, and distribution o

39、f shipments; (2) Assumes responsibility for trans-portation from place of receipt to des-tination; and (3) Uses for any part of the transpor-tation a carrier subject to FMCSA ju-risdiction. Hearing officer means a neutral Agen-cy employee designated by the Assist-ant Administrator to preside over an

40、 informal hearing. HMRs means Hazardous Materials Regulations. Informal hearing means a hearing in which the parties have the opportunity to present relevant evidence to a neu-tral Hearing Officer, who will prepare findings of fact and recommendations for the Agency decisionmaker. The in-formal hear

41、ing will not be on the tran-scribed record and discovery will not be allowed. Parties will have the oppor-tunity to discuss their case and present VerDate Mar2010 08:20 Dec 16, 2010 Jkt 220216 PO 00000 Frm 00286 Fmt 8010 Sfmt 8010 Y:SGML220216.XXX 220216jdjones on DSK8KYBLC1PROD with CFRProvided by

42、IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-277 Federal Motor Carrier Safety Administration, DOT 386.4 testimony and evidence before the Hearing Officer without the formality of a formal hearing. Mail means U.S. first class mail, U.S. registered or certified

43、 mail, or use of a commercial delivery service. Motor carrier means a motor carrier, motor private carrier, or motor carrier of migrant workers as defined in 49 U.S.C. 13102 and 31501. Notice of Claim (NOC) means the ini-tial document issued by FMCSA to as-sert a civil penalty for alleged viola-tion

44、s of the FMCSRs, HMRs, or FMCCRs. Notice of Violation (NOV) means a doc-ument alleging a violation of the FMCSRs, HMRs, or FMCCRs, for which corrective action, other than payment of a civil penalty, is recommended. Person means any individual, part-nership, association, corporation, busi-ness trust,

45、 or any other organized group of individuals. Reply means a written response to a Notice of Claim, admitting or denying the allegations contained within the Notice of Claim. In addition, the reply provides the mechanism for deter-mining whether the respondent seeks to pay, settle, contest, or seek b

46、inding arbitration of the claim. See 386.14. If contesting the allegations, the reply must also set forth all known affirma-tive defenses and factors in mitigation of the claim. Petitioner means a party petitioning to overturn a determination in a driver qualification proceeding. Respondent means a

47、party against whom relief is sought or claim is made. Secretary means the Secretary of Transportation. Submission of written evidence without hearing means the submission of writ-ten evidence and legal argument to the Agency decisionmaker, or his/her rep-resentative, in lieu of a formal or infor-mal

48、 hearing. 50 FR 40306, Oct. 2, 1985, as amended at 53 FR 2036, Jan. 26, 1988; 56 FR 10182, Mar. 11, 1991; 65 FR 7755, Feb. 16, 2000; 65 FR 78427, Dec. 15, 2000; 67 FR 61821, Oct. 2, 2002; 70 FR 28748, May 18, 2005; 72 FR 55701, Oct. 1, 2007 386.3 Separation of functions. (a) Civil penalty proceeding

49、s will be prosecuted by Agency Counsel who rep-resent the Field Administrator. In No-tices of Violation, the Field Adminis-trator will be represented by Agency Counsel. (b) An Agency employee, including those listed in paragraph (c) of this sec-tion, engaged in the performance of in-vestigative or prosecutorial functions in a civil penalty proceeding may not, in that case or a factually related case, discuss or communicate the facts or issues