[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: 49CFR386.14]



[Page 254-255]

 

                        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. 386.14  Replies and request for hearing: Civil forfeiture 

proceedings.



    (a) Time for reply. The respondent must reply within 15 days after a 

Claim Letter is served, or 30 days after a Notice of Investigation is 

received.

    (b) Contents of reply. The reply must contain the following:

    (1) An admission or denial of each allegation of the claim or notice 

and a concise statement of facts constituting each defense;

    (2) If the respondent contests the claim or notice, a request for an 

oral hearing or notice of intent to submit evidence without an oral 

hearing must be contained in the reply. A request for a hearing must 

list all material facts believed to be in dispute. Failure to request a 

hearing within 15 days after the Claim Letter is served, or 30 days in 

the case of a Notice of Investigation, shall constitute a waiver of any 

right to a hearing;

    (3) A statement of whether the respondent wishes to negotiate the 

terms of payment or settlement of the amount claimed, or the terms and 

conditions of the order; and

    (4) Certification that the reply has been served in accordance with 

Sec. 386.31.

    (c) Submission of evidence. If a notice of intent to submit evidence 

without oral hearing is filed, or if no hearing is requested under 

paragraph (b)(2) of this section, and the respondent contests the claim 

or the contents of the notice, all evidence must be served in written 

form no later than the 40th day following service of the Claim Letter or 

Notice of Investigation. Evidence must



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be served in the form specified in Sec. 386.49.

    (d) Complainant's request for a hearing. If the respondent files a 

notice of intent to submit evidence without formal hearing, the 

complainant may, within 15 days after that reply is filed, submit a 

request for a formal hearing. The request must include a listing of all 

factual issues believed to be in dispute.

    (e) Failure to reply or request a hearing. If the respondent does 

not reply to a Claim Letter within the time prescribed in this section, 

the Claim Letter becomes the final agency order in the proceeding 25 

days after it is served. When no reply to the Notice of Investigation is 

received, the Assistant Administrator may, on motion of any party, issue 

a final order in the proceeding.

    (f) Non-compliance with final order. Failure to pay the civil 

penalty as directed in a final order constitutes a violation of that 

order subjecting the respondent to an additional penalty as prescribed 

in subpart G of this part.



[50 FR 40306, Oct. 2, 1985, as amended at 56 FR 10183, Mar. 11, 1991]



    Effective Date Note: At 70 FR 28481, May 18, 2005, Sec. 386.14 was 

revised, effective November 14, 2005. For the convenience of the user, 

the revised text is set forth as follows:



Sec. 386.14  Reply.



    (a) Time for reply to the Notice of Claim. Respondent must serve a 

reply to the Notice of Claim in writing within 30 days following service 

of the Notice of Claim. The reply is to be served in accordance with 

Sec. 386.6 upon the Service Center indicated in the Notice of Claim.

    (b) Options for reply. The respondent must reply to the Notice of 

Claim within the time allotted by choosing one of the following:

    (1) Paying the full amount asserted in the Notice of Claim in 

accordance with Sec. 386.18 of this part;

    (2) Contesting the claim by requesting administrative adjudication 

pursuant to paragraph (d) of this section; or

    (3) Seeking binding arbitration in accordance with the Agency's 

program. Although the amount of the proposed penalty may be disputed, 

referral to binding arbitration is contingent upon an admission of 

liability that the violations occurred.

    (c) Failure to answer the Notice of Claim. (1) Respondent's failure 

to answer the Notice of Claim in accordance with paragraph (a) may 

result in the issuance of a Notice of Default and Final Agency Order by 

the Field Administrator. The Notice of Default and Final Agency Order 

will declare respondent to be in default and further declare the Notice 

of Claim, including the civil penalty proposed in the Notice of Claim, 

to be the Final Agency Order in the proceeding. The Final Agency Order 

will be effective five days following service of the Notice of Default 

and Final Agency Order.

    (2) The default constitutes an admission of all facts alleged in the 

Notice of Claim and a waiver of respondent's opportunity to contest the 

claim. The default will be reviewed by the Assistant Administrator in 

accordance with Sec. 386.64(b), and the Final Agency Order may be 

vacated where a respondent demonstrates excusable neglect, a meritorious 

defense, or due diligence in seeking relief.

    (3) Failure to pay the civil penalty as directed in a Final Agency 

Order constitutes a violation of that order, subjecting the respondent 

to an additional penalty as prescribed in Subpart G of this part.

    (d) Request for administrative adjudication. The respondent may 

contest the claim and request administrative adjudication pursuant to 

paragraph (b)(2) of this section. An administrative adjudication is a 

process to resolve contested claims before the Assistant Administrator, 

Administrative Law Judge, or Hearing Officer. Once an administrative 

adjudication option is elected, it is binding on the respondent.

    (1) Contents. In addition to the general requirements of this 

section, the reply must be in writing and state the grounds for 

contesting the claim and must raise any affirmative defenses the 

respondent intends to assert. Specifically, the reply:

    (i) Must admit or deny each separately stated and numbered 

allegation of violation in the claim. A statement that the person is 

without sufficient knowledge or information to admit or deny will have 

the effect of a denial. Any allegation in the claim not specifically 

denied in the reply is deemed admitted. A mere general denial of the 

claim is insufficient and may result in a default being entered by the 

Agency decisionmaker upon motion by the Field Administrator.

    (ii) Must include all known affirmative defenses, including those 

relating to jurisdiction, limitations, and procedure.

    (iii) Must state which one of the following options respondent 

seeks:

    (A) To submit written evidence without hearing; or

    (B) An informal hearing; or

    (C) A formal hearing.

    (2) [Reserved]



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