[Federal Register Volume 75, Number 108 (Monday, June 7, 2010)]
[Notices]
[Pages 32242-32243]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13591]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[FMCSA Docket No. FMCSA-2010-0149]
Rules of Practice
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of suspension of informal hearing procedure; request for
comments.
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SUMMARY: The FMCSA announces that it is re-evaluating the
appropriateness and effectiveness of the informal hearing procedure
authorized under the Agency's Rules of Practice. Although proceedings
where an informal hearing has already been requested will continue to
be processed under the Rules of Practice, the Agency will not entertain
any new requests for informal hearings pending its re-evaluation of the
procedure.
DATES: Effective June 7, 2010. Comments must be received by August 6,
2010.
ADDRESSES: You may submit comments identified by the Federal Docket
Management System Docket Number, FMCSA-2010-0149, by any of the
following methods. Do not submit the same comments by more than one
method. However, to allow effective public participation before the
comment period deadline, the Agency encourages use of the Web site,
which is listed first. It will provide the most efficient and timely
method of receiving and processing your comments.
Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
Fax: 1-202-493-2251.
Mail: Docket Management Unit; U.S. Department of
Transportation, Room W12-140, 1200 New Jersey Avenue, SE., Washington,
DC 20590.
Hand Delivery: Ground floor, Room W12-140, 1200 New Jersey
Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., e.t., Monday
through Friday, except Federal holidays.
Instructions: All submissions must include the Agency name and
docket number for this regulatory action. Note that all comments
received will be posted without change to http://www.regulations.gov,
including any personal information provided. The Department of
Transportation's (DOT) complete Privacy Act Statement was published in
the Federal Register on April 11, 2000 (65 FR 19476), and can be viewed
at http://docketsinfo.dot.gov.
Public Participation: The regulations.gov system is generally
available 24 hours each day, 365 days each year. You can find
electronic submission and retrieval help and guidelines under the
``help'' section of the Web site. For notification that FMCSA received
the comments, please include a self-addressed, stamped envelope or
postcard, or print the acknowledgement page that appears after
submitting comments on line. Copies or abstracts of all documents
referenced in this notice are in the docket: FMCSA-2010-0149. For
access to the docket to read background documents or comments received,
go to http://www.regulations.gov at any time or to Room W12-140, 1200
New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m.,
e.t., Monday through Friday, except Federal holidays. All comments
received before the close of business on the comment closing date
indicated above will be considered and will be available for
examination in the docket at the above address. Comments received after
the closing date will be considered to the extent practicable. FMCSA
may, however, issue a final determination at any time after the close
of the comment period. In addition to late comments, FMCSA will also
continue to file in the public docket relevant information that becomes
available after the comment closing date. Interested persons should
monitor the public docket for new material.
FOR FURTHER INFORMATION CONTACT: Michael J. Falk, Office of Chief
Counsel, Adjudications Counsel (MC-CCA), FMCSA, 1200 New Jersey Avenue,
SE., Washington, DC 20590. Tel. (202) 366-9304.
SUPPLEMENTARY INFORMATION:
Background
Under 49 U.S.C. 113(f), Congress directed FMCSA to carry out the
duties and powers related to motor carriers or motor carrier safety
vested in the Secretary of Transportation by chapters 5, 51, 55, 57,
59, 133 through 149, 311, 313, 315 and 317 of title 49 of the U.S.
Code, except as otherwise delegated by the Secretary. Regulations
implementing this statutory authority include the Federal Motor Carrier
Safety Regulations (FMCSRs) (49 CFR parts 380-399), the Federal Motor
Carrier Commercial Regulations (FMCCRs) (49 CFR parts 360-379), and the
Federal Hazardous Materials Regulations (HMRs) (49 CFR parts 171-180).
FMCSA's enforcement powers include the general authority to conduct
administrative enforcement proceedings for violations of the FMCCRs (49
U.S.C. 14701) as well as to assess civil penalties for violations
related to commercial motor vehicle safety (49 U.S.C. chapter 5) and
hazardous materials (49 U.S.C. chapter 51).
In accordance with this authority, the Agency promulgated
regulations governing civil penalty and driver disqualification
proceedings before the Agency. These regulations are known as the Rules
of Practice for Motor Carrier, Intermodal Equipment Provider, Broker,
Freight Forwarder, and Hazardous Materials Proceedings (Rules of
Practice) and are codified at 49 CFR part 386.
In May 2005, the Agency amended the Rules of Practice to establish,
among other things, an informal hearing process as an option for
adjudicating administrative enforcement proceedings (see 70 FR 28467,
May 18, 2005). Civil penalty proceedings are initiated by issuance of a
Notice of Claim by a representative of the Agency (Claimant) pursuant
to 49 CFR 386.11(c). Under 49 CFR 386.14(b)(2), the party against whom
a claim is made (Respondent) must reply to the Notice of Claim by
electing one of three options: (1) Paying the full amount of the claim;
(2) contesting the claim by requesting administrative adjudication
pursuant to section 386.14(d); or (3) seeking binding arbitration in
accordance with the Agency's arbitration program. Under section
386.14(d)(1)(iii), a respondent electing administrative adjudication
may request that the matter be adjudicated either through: (A)
Submission of written evidence without hearing; (B) an informal
hearing; or (C) a formal hearing.
[[Page 32243]]
The informal hearing process was intended to provide expedited
consideration of a civil penalty case by a neutral third party without
the formalities attendant to a hearing before an Administrative Law
Judge (see 69 FR 61620, Oct. 20, 2004). Section 386.2 defines an
informal hearing as ``a hearing in which the parties have the
opportunity to present relevant evidence to a neutral Hearing Officer,
who will prepare findings of fact and recommendations for the Agency
decisionmaker. The informal hearing will not be on the transcribed
record and discovery will not be allowed. Parties will have the
opportunity to discuss their case and present testimony and evidence
before the Hearing Officer without the formality of a formal hearing.''
After receiving the hearing officer's report and recommendations, the
Assistant Administrator has the discretion to either adopt the report
or issue other orders as he or she deems appropriate. [See sections
386.16(b)(4)(i)(A) and 386.61(b)].
FMCSA implemented informal hearings on a graduated basis in order
to evaluate the efficacy of this new process. In the first phase of
implementation, FMCSA considered requests for informal hearings only
from respondents in the Midwestern Service Center's geographical area
(see 71 FR 13894, Mar. 17, 2006). In the second phase, FMCSA expanded
eligibility to respondents in the Eastern Service Center's geographical
area (see 72 FR 6806, Feb. 13, 2007). To date, only respondents located
in States within the Agency's Eastern and Midwestern Service Centers
have been eligible to request informal hearings.
Having evaluated the implementation of the informal hearing
procedure, FMCSA has concerns about the appropriateness of the
personnel the Agency assigned to serve as hearing officers. Section
386.2 defines ``hearing officer'' as ``a neutral Agency employee
designated by the Assistant Administrator to preside over an informal
hearing.'' The Agency selected two FMCSA employees--one located in the
Southern Service Center and one located in the Western Service Center--
to serve as hearing officers. However, the Agency did not receive
enough informal hearing requests to dedicate these employees as full-
time hearing officers. As a result, these employees continued to carry
out their existing responsibilities related to the implementation of
the enforcement programs in their respective Service Center areas.
Although, as noted above, informal hearings are not available to
respondents located in the Southern and Western Service Centers, there
is legitimate concern that FMCSA personnel involved in the Agency's
enforcement program may not be considered sufficiently neutral.
Suspension of Current Informal Hearing Procedure
After careful consideration, and as a result of the issues
discussed above, FMCSA has decided to suspend the use of informal
hearings for enforcement actions initiated after publication of this
notice pending re-evaluation of the informal hearing procedure. This
re-evaluation will include consideration of possible regulatory changes
as well as implementation strategies.
Five cases assigned to hearing officers are still awaiting informal
hearings. There are 15 additional cases in which claimants have
consented to respondents' informal hearing requests, but have not been
assigned to a hearing officer. Furthermore, in 13 additional cases,
claimants in the Eastern and Midwestern Service Centers have objected
to requests for informal hearings. The Agency has not yet ruled on
these objections because of its concerns regarding the informal hearing
procedure. In order to avoid further delaying the resolution of the 20
pending cases awaiting informal hearings or assignment of a hearing
officer, the Agency will assign these cases to one or more hearing
officers not connected with the Agency's enforcement program, who will
be responsible for initiating and concluding the informal hearing
process. The Agency will also make it a priority to consider the
pending objections to informal hearings and may thus assign additional
cases to the hearing officer(s), as appropriate.
Notices of Claim issued after publication of this notice in the
Federal Register will advise respondents seeking to contest a claim
through administrative adjudication that they may either submit written
evidence without a formal hearing or request a formal hearing.
FMCSA has determined that no Respondent has suffered substantive
harm or prejudice as a result of disposition under the informal hearing
option. Of the 11 cases assigned to hearing officers, only three were
finally resolved under the informal hearing procedure. In these cases,
the hearing officer issued a final report recommending that the
Assistant Administrator approve settlement agreements entered into by
the parties. The Assistant Administrator accepted the recommendations,
resulting in final disposition of these cases. With respect to the
other eight cases, six are awaiting informal hearings following
assignment of a hearing officer, one was settled before a specific
hearing officer was assigned, and the final case is awaiting further
action following issuance of the hearing officer's report.
Finally, FMCSA believes that, if implemented more effectively, re-
establishment of an informal hearing process would be beneficial to
both the Agency and to respondents seeking more informal resolution of
enforcement matters. FMCSA seeks public comment on options for
implementing an effective informal hearing process.
Issued on: May 28, 2010.
Anne S. Ferro,
Administrator.
[FR Doc. 2010-13591 Filed 6-4-10; 8:45 am]
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