[Code of Federal Regulations]

[Title 49, Volume 5]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 49CFR386.11]



[Page 251-253]

 

                        TITLE 49--TRANSPORTATION

 

                      DEPARTMENT OF TRANSPORTATION

 

PART 386_RULES OF PRACTICE FOR MOTOR CARRIER, BROKER, FREIGHT FORWARDER, 

AND HAZARDOUS MATERIALS PROCEEDINGS--Table of Contents

 

            Subpart B_Commencement of Proceedings, Pleadings

 

Sec. 386.11  Commencement of proceedings.





    (a) Driver qualification proceedings. These proceedings are 

commenced by the issuance of a determination by the Director, Office of 

Truck and Bus Standards and Operations, in a case arising under Sec. 

391.47 of this chapter or by the issuance of a letter of 

disqualification.

    (1) Such determination and letters must be accompanied by the 

following:

    (i) A citation of the regulation under which the action is being 

taken;

    (ii) A copy of all documentary evidence relied on or considered in 

taking such action, or in the case of voluminous evidence a summary of 

such evidence;

    (iii) Notice to the driver and motor carrier involved in the case 

that they may petition for review of the action;

    (iv) Notice that a hearing will be granted if the Assistant 

Administrator determines there are material factual issues in dispute;

    (v) Notice that failure to petition for review will constitute a 

waiver of the right to contest the action; and

    (vi) Notice that the burden or proof will be on the petitioner in 

cases arising under Sec. 391.47 of this chapter.

    (2) At any time before the close of hearing, upon application of a 

party, the letter or determination may be amended at the discretion of 

the administrative law judge upon such terms as he/she approves.

    (b) Civil forfeitures. These proceedings are commenced by the 

issuance of a Claim Letter or a Notice of Investigation.

    (1) Each claim letter must contain the following:

    (i) A statement of the provisions of law alleged to have been 

violated;

    (ii) A brief statement of the facts constituting each violation;

    (iii) Notice of the amount being claimed, and notice of the maximum 

amount authorized to be claimed under the statute;

    (iv) The form in which and the place where the respondent may pay 

the claim; and

    (v) Notice that the respondent may, within 15 days of service, 

notify the claimant that the respondent intends to contest the notice, 

and that if the notice is contested the respondent will be afforded an 

opportunity for a hearing.

    (2) In addition to the information required by paragraph (b)(1) of 

this section, the letter may contain such other matters as the FMCSA 

deems appropriate, including a notice to abate.

    (3) In proceedings for collection of civil penalties for violations 

of the motor carrier safety regulations under the Motor Carrier Safety 

Act of 1984, the claimant may require the respondent to post a copy of 

the claim letter in such place or places and for such duration as the 

claimant may determine



[[Page 252]]



appropriate to aid in the enforcement of the law and regulations.

    (c) Notice of investigation. This is a notice to respondent that the 

FMCSA has discovered violations of the Federal Motor Carrier Safety 

Regulations, Hazardous Materials Regulations, or Commercial Regulations 

under circumstances which may require a compliance order and/or monetary 

penalties. The proposed form of the compliance order will be included in 

the notice. The Assistant Administrator may issue a Notice of 

Investigation in his or her own discretion or upon a complaint filed 

pursuant to Sec. 386.12.

    (1) Each notice of investigation must include the following:

    (i) A statement of the legal authority and jurisdiction for the 

institution of the proceedings;

    (ii) The name and address of each motor carrier, broker, or freight 

forwarder against whom relief is sought;

    (iii) One or more clear, concise, and separately numbered paragraphs 

stating the facts alleged to constitute a violation of the law;

    (iv) The relief demanded which, where practical, should be in the 

form of an order for the Assistant Administrator's signature, and which 

shall fix a reasonable time for abatement of the violations and may 

specify actions to be taken in order to abate the violations;

    (v) A statement that the rules in this part require a reply to be 

filed within 30 days of service of the notice of investigation, and

    (vi) A certificate that the notice of investigation was served in 

accordance with Sec. 386.31.

    (2) At any time before the close of hearing or upon application of a 

party, the notice of investigation may be amended at the discretion of 

the administrative law judge upon such terms as he/she deems 

appropriate.

    (3) A Claim Letter may be combined with a Notice of Investigation in 

a single proceeding. In such proceeding, the 30-day reply period in 

paragraph (c)(1) of this section shall apply.

    (4) A notice to abate contained in a Claim Letter or Notice of 

Investigation shall specify what must be done by the respondent, a 

reasonable time within which abatement must be achieved, and that 

failure to abate subjects the respondent to additional penalties as 

prescribed in subpart G of this part.



[50 FR 40306, Oct. 2, 1985, as amended at 53 FR 2036, Jan. 26, 1988; 56 

FR 10182, Mar. 11, 1991; 65 FR 7756, Feb. 16, 2000]



    Effective Date Note: At 70 FR 28480, May 18, 2005, Sec. 386.11 was 

amended by revising paragraphs (b) and (c), effective November 14, 2005. 

For the convenience of the user, the revised text is set forth as 

follows:



Sec. 386.11  Commencement of proceedings.



                                * * * * *



    (b) Notice of Violation. The Agency may issue a Notice of Violation 

as a means of notifying any person subject to the rules in this part 

that it has received information (i.e., from an investigation, audit, or 

any other source) wherein it has been alleged the person has violated 

provisions of the FMCSRs, HMRs, or FMCCRs. The notice of violation 

serves as an informal mechanism to address compliance deficiencies. If 

the alleged deficiency is not addressed to the satisfaction of the 

Agency, formal enforcement action may be taken in accordance with 

paragraph (c) of this section. A notice of violation is not a 

prerequisite to the issuance of a Notice of Claim. The notice of 

violation will address the following issues, as appropriate:

    (1) The specific alleged violations.

    (2) Any specific actions the Agency determines are appropriate to 

remedy the identified problems.

    (3) The means by which the notified person can inform the Agency 

that it has received the notice of violation and either has addressed 

the alleged violation or does not agree with the Agency's assertions in 

the notice of violation.

    (4) Any other relevant information.

    (c) Civil penalty proceedings. These proceedings are commenced by 

the issuance of a Notice of Claim.

    (1) Each Notice of Claim must contain the following:

    (i) A statement setting forth the facts alleged.

    (ii) A statement of the provisions of law allegedly violated by the 

respondent.

    (iii) The proposed civil penalty and notice of the maximum amount 

authorized to be claimed under statute.

    (iv) The time, form, and manner whereby the respondent may pay, 

contest, or otherwise seek resolution of the claim.

    (2) In addition to the information required by paragraph (c)(1) of 

this section, the Notice of Claim may contain such other matters as the 

Agency deems appropriate.

    (3) In proceedings for collection of civil penalties for violations 

of the motor carrier



[[Page 253]]



safety regulations under the Motor Carrier Safety Act of 1984, the 

Agency may require the respondent to post a copy of the Notice of Claim 

in such place or places and for such duration as the Agency may 

determine appropriate to aid in the enforcement of the law and 

regulations.