[Code of Federal Regulations]
[Title 49, Volume 5]
[Revised as of October 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR386.2]

[Page 257-259]
 
                        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 A_Scope of Rules; Definitions and General Provisions
 
Sec.  386.2  Definitions.

    Abate or abatement means to discontinue regulatory violations by 
refraining from or taking actions identified in a notice to correct 
noncompliance.
    Administration means the Federal Motor Carrier Safety 
Administration.
    Administrative adjudication means a process or proceeding to resolve 
contested claims in conformity with the Administrative Procedure Act, 5 
U.S.C. 554-558.
    Administrative law judge means an administrative law judge appointed 
pursuant to the provisions of 5 U.S.C. 3105.
    Agency means the Federal Motor Carrier Safety Administration.
    Agency Counsel means the attorney who prosecutes a civil penalty 
matter on behalf of the Field Administrator.
    Assistant Administrator means the Assistant Administrator of the 
Federal Motor Carrier Safety Administration. The Assistant Administrator 
is the Chief Safety Officer of the agency pursuant to 49 U.S.C. 113(e). 
Decisions 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 compensation, arranges or offers to 
arrange the transportation of property by an authorized motor carrier. A 
motor carrier, or person who is an employee or bona fide agent of a 
carrier, is not a broker within the meaning of this section when it 
arranges or offers to arrange the transportation of shipments which it 
is authorized to transport and which it has accepted and legally bound 
itself to transport.
    Civil forfeiture proceedings means proceedings to collect civil 
penalties for violations under the Commercial Motor Vehicle Safety Act 
of 1986 (49 U.S.C. Chapter 313); the Hazardous Materials Transportation 
Act of 1975, as amended (49 U.S.C. Chapter 51); the Motor Carrier Safety 
Act of 1984 (49 U.S.C. Chapter 311, Subchapter III); section 18 of the 
Bus Regulatory Reform Act of 1982 (49 U.S.C. 31138); section 30 of the 
Motor Carrier Act of 1980 (49 U.S.C. 31139); and the ICC Termination Act 
of 1995 (49 U.S.C. Chapters 131-149).
    Civil penalty proceedings means proceedings to collect civil 
penalties for violations of regulations and statutes within the 
jurisdiction of FMCSA.
    Claimant means the representative of the Federal Motor Carrier 
Safety Administration authorized to make claims.
    Commercial regulations means statutes and regulations that apply to 
persons providing or arranging transportation for compensation subject 
to the Secretary's 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 Administration or its predecessors under 
authority 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 
Administrator has delegated his/her authority in a civil penalty 
proceeding. As used in this subpart, the Agency decisionmaker is the 
official authorized to

[[Page 258]]

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 required, or 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 additional penalties against the defaulting 
party.
    Department means the U.S. Department of Transportation.
    Dockets means the U.S. Department of Transportation's docket 
management system, which is the central repository for original copies 
of all documents filed before the agency decisionmaker.
    Driver qualification proceeding means a proceeding commenced under 
49 CFR 391.47 or by issuance of a letter of disqualification.
    Federal Motor Carrier Commercial Regulations (FMCCRs) means statutes 
and regulations applying to persons providing or arranging 
transportation for compensation subject to the Secretary's 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 FMCSA or its predecessors under 
authority 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.
    Final Agency Order means the final action by FMCSA issued pursuant 
to this part by the appropriate Field Administrator (for default 
judgments under Sec.  386.14) or the Assistant Administrator, or 
settlement agreements which become the Final Agency Order pursuant to 
386.22, or decisions of the Administrative Law Judge, which become the 
Final Agency Order pursuant to 386.61 or binding arbitration awards. A 
person who fails to perform the actions 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.
    FMCSRs means the Federal Motor Carrier Safety Regulations.
    Formal hearing means an evidentiary hearing on the record in which 
parties have the opportunity to conduct discovery, present relevant 
evidence, and cross-examine witnesses.
    Freight forwarder means a person holding itself out to the general 
public (other than as an express, pipeline, rail, sleeping car, motor, 
or water carrier) to provide transportation of property for compensation 
in interstate commerce, and in the ordinary course of its business:
    (1) Performs or provides for assembling, consolidating, break-bulk, 
and distribution of shipments;
    (2) Assumes responsibility for transportation from place of receipt 
to destination; and
    (3) Uses for any part of the transportation a carrier subject to 
FMCSA jurisdiction.
    Hearing officer means a neutral Agency employee designated by the 
Assistant Administrator to preside over an 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 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.
    Mail means U.S. first class mail, U.S. registered or certified 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 initial document issued by FMCSA to 
assert a civil penalty for alleged violations of the FMCSRs, HMRs, or 
FMCCRs.
    Notice of Violation (NOV) means a document alleging a violation of 
the FMCSRs, HMRs, or FMCCRs, for which

[[Page 259]]

corrective action, other than payment of a civil penalty, is 
recommended.
    Person means any individual, partnership, association, corporation, 
business trust, 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 determining whether the 
respondent seeks to pay, settle, contest, or seek binding arbitration of 
the claim. See Sec.  386.14. If contesting the allegations, the reply 
must also set forth all known affirmative 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 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 written evidence and legal argument to the Agency decisionmaker, or 
his/her representative, in lieu of a formal or informal 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]