ÿWPCC ûÿ2BÿÿVPÿÿZ¦ÿÿ#|x10cpiðÿÿ‰?xxx,Ûwôxþ6X@É“8Ç;X@þþþþþþþÿþÿÿÿþÿÿþÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿHP LaserJet IIIHPLASIII.PRSÛx Œ @ɇÏ,\,ðÛbˆX@#|xûÿ2#: Z]X·ÿÿJCourier 10cpiCourier 10cpi (Bold)HP LaserJet IIIHPLASIII.PRSÛx Œ @ɇÏ,\,ðÛbˆX@ðÿÿ‰?xxx,Èôxþ6X@É“8Ç;X@þþþþþþþÿþÿÿÿÿÿþÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿ¢ÿÿ‰?xxx,äÈôxÐ `É•BÇ;X€þþþþþþþÿÿÿÿÿÿÿÿþÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿ8ŸÿÿŸ*€ÿÿ€ŸNÿÿŠˆ0ˆ]‰-ÿÿÿÿÿÿÿÿÿÿ6ÿÿÿÿºÿÿºÿÿ\ºÿÿlÿÿ*€ŸÿÿŸ€ÿÿŸÿÿÿÿÿÿÿŸÿÿ€ŸMÿÿNŸÿÿŸ*€ÿÿ€ŸNÿÿ8ŸÿÿŸ*€ÿÿ€ŸNÿÿƒ0ˆ(ˆd‰-ÿ€ŸÿÿÿÿŸÿÿŸÿÿ€Ÿÿÿ*€ŸÿÿŸ*€ÿÿûÿ2AÔ ‰? Ôà ÃÄ ÄÁà4ìÁTITLE 49, CODE OF FEDERAL REGULATIONS, CHAPTER IIIƒ Áàxì!Á(Oct. 1993 edition)ƒ PART 386 -- RULES OF PRACTICE FOR MOTOR CARRIER SAFETY AND HAZARDOUS MATERIALS PROCEEDINGS Subpart A -- Scope of Rules; Definitions Sec. 386.1 Scope of rules in this part. 386.2 Definitions. Subpart B -- Commencement of Proceedings, Pleadings 386.11 Commencement of proceedings. 386.12 Complaint. 386.13 Petitions to review and request for hearing: Driver qualification proceedings. 386.14 Replies and request for hearing: Civil forfeiture proceedings. 386.15 [Reserved] 386.16 Action on petitions or replies. 386.17 Intervention. Subpart C -- Compliance and Consent Orders 386.21 Compliance order. 386.22 Consent order. 386.23 Content of consent order. Subpart D -- General Rules and Hearings 386.31 Service. 386.32 Computation of time. 386.33 Extension of time. 386.34 Official notice. 386.35 Motions. 386.36 Motions to dismiss and motions for a more definite statement. 386.37 Discovery methods. 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 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' reports. 386.49 Form of written evidence. 386.50 Appearances and rights of witnesses.Ôh)0*0*0*°°ÔŒ™386.51 Amendment and withdrawal of pleadings. 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 Burden of proof. Subpart E -- Decision 386.61 Decision. 386.62 Review of administrative law judge's decision. 386.63 Decision on review. 386.64 Reconsideration. 386.65 Failure to comply with final order. 386.66 Motions for rehearing or for modification. 386.67 Appeal. Subpart F -- Injunctions and Imminent Hazards 386.71 Injunctions. 386.72 Imminent hazard. Subpart G -- Penalties 386.81 General. 386.82 Civil penalties for violations of notices and orders. Appendix A to Part 386 -- Penalty Schedule; Violations of Notices and Orders Authority: Title XII of Public Law 99 - 570, 100 Stat. 3207 - 170 (49 U.S.C. App. 2701 et seq.); Title II of Public Law 98 - 554, 98 Stat. 2829 (49 U.S.C. App. 2501 et seq.); Public Law 97 - 449; 96 Stat. 2413 (49 U.S.C. 104(c)(2), 501 et seq., 3101 et seq.); Public Law 93 - 633, 88 Stat. 2156 (49 U.S.C. App. 1801 et seq.); Public Law 97 - 261, 96 Stat. 1121 (49 U.S.C. 10927, note); Public Law 96 - 296, 94 Stat. 820 (49 U.S.C. 10927, note); 49 CFR 1.45, 1.48. Source: 50 FR 40306, Oct. 2, 1985, unless otherwise noted. Subpart A -- Scope of Rules; Definitions ÀÀ 386.1 Scope of rules in this part. The rules in this part govern procedures in proceedings before the Associate Administrator authorized by the Commercial Motor Vehicle Safety Act of 1986, title XII of Public Law 99 - 570, 100 Stat. 3207 - 170 (49 U.S.C. 2701 et. seq.); the Motor Carrier Safety Act of 1984, Public Law 98 - 554, 98 Stat. 2829 (49 U.S.C. 2501 et. seq); the recodification of title 49, United States Code,Ôh)0*0*0*°°Ô Transportation, Public Law 97 - 449, 96 Stat. 2413 (49 U.S.C. 104(c)(2), 501 set seq., 3101 et seq.); the Hazardous Materials Transportation Act, Public Law 93 - 633, 88 STat. 2156 (49 U.S.C. 1801 et seq.); the Bus Regulatory Reform Act of 1982, Public Law 97 - 261, 96 Stat. 1121 (49 U.S.C. 10927, note) and the Motor Carrier Act of 1980, Public Law 96 - 296, 94 Stat. 820, as amended by Public Law 97 - 424, 96 Stat. 2158 (49 U.S.C. 10927, note). The purpose of the proceedings is to enable the Associate Administrator to determine whether any motor carrier, its agent, employee or other person subject to the jurisdiction of the FHWA under any of the above-mentioned Acts has failed to comply with any provision or requirement of those statutes or regulations issued under them and, if such a violation is found, to issue an appropriate order to compel compliance with the statute or regulation, assess a civil penalty, or both. [50 FR 40306, Oct. 2, 1985, as amended at 53 FR 2036, Jan. 26, 1988] ÀÀ 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 Highway Administration. Administrative law judge means an administrative law judge appointed pursuant to the provisions of 5 U.S.C. 3105. Associate Administrator means the Associate Administrator for Motor Carriers of the Federal Highway Administration or his/her authorized delegate. Civil forfeiture proceedings means proceedings to collect civil penalties for violations under the Commercial Motor Vehicle Safety Act of 1986, title XII of Public Law 99 - 570, 100 Stat. 3207 - 170 (49 U.S.C. 2701 et seq.); the Hazardous Materials Transportation Act, 49 U.S.C. 1809; 49 U.S.C. 3102; the Motor Carrier Safety Act of 1984, 49 U.S.C. 2501 et seq.; section 30 of the Motor Carrier Act of 1980, 49 U.S.C. 10927, note; or section 18 of the Bus Regulatory Reform Act of 1982, 49 U.S.C. 10927, note. Claimant means the representative of the Federal Highway Administration authorized to make claims. Compliance Order means a written direction to a respondent under this part requiring the performance of certain acts which, based upon the findings in the proceeding, are considered necessary to bring respondent into compliance with the regulations found to have been violated. Consent Order means a compliance order which has beenÔh)0*0*0*°°Ô agreed to by respondent in the settlement of a civil forfeiture proceeding. Driver qualification proceeding means a proceeding commenced under 49 CFR 391.47 or by issuance of a letter of disqualification. Motor carrier means a motor carrier, motor contract carrier, motor private carrier, or motor carrier of migrant workers as defined in 49 U.S.C. 3101 and 10102. 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. [50 FR 40306, Oct. 2, 1985, as amended at 53 FR 2036, Jan. 26, 1988; 56 FR 10182, Mar. 11, 1991] Subpart B -- Commencement of Proceedings, Pleadings ÀÀ 386.11 Commencement of proceedings. (a) Driver qualification proceedings. These proceedings are commenced by the issuance of a determination by the Director, Office of Motor Carrier Standards, in a case arising under ÀÀ 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 Associate 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 ÀÀ 391.47 of this chapter.Ôh)0*0*0*°°ÔŒ™ (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 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 FHWA 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 appropriate to aid in the enforcement of the law and regulations. (c) Notice of investigation. This is a notice to respondent that FHWA has discovered violations of the Federal Motor Carrier Safety regulations or Hazardous Materials Regulations under circumstances which may require a compliance order and/or monetary penalty. The proposed form of the compliance order will be included in the notice. The Associate Administrator may issue a Notice of Investigation in his or her own discretion or upon a complaint filed pursuant to ÀÀ 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; Ôh)0*0*0*°°ÔŒ (ii) The name and address of each motor carrier 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 Associate 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 ÀÀ 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 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] ÀÀ 386.12 Complaint. (a) Filing of a complaint. Except as otherwise provided in paragraph (c) of this section, any person, State board, organization, or body politic may file a written complaint with the Associate Administrator, requesting the issuance of a notice of investigation under ÀÀ 386.11(c). Each complaint must contain: (1) The name and address of the party who files it, and a statement specifying the authority for a party (other than a natural person) to file the complaint; (2) A statement of the interest of the party in theÔh)0*0*0*°°Ô proceedings; (3) The name and address of each motor carrier against who relief is sought; (4) The reasons why the party believes that a notice of investigation should be issued; (5) A statement of any prior action which the party has taken to redress the violations of law alleged in the complaint and the results of that action; and (6) The relief which the party believes the Administration should seek. (b) Action on paragraph (a) complaint. Upon the filing of a complaint under paragraph (a) of this section, the Associate Administrator shall determine whether it states reasonable grounds for investigation and action by the Administration. If he determines that the complaint states such grounds, the Associate Administrator shall issue, or authorize the issuance of, a notice of investigation under ÀÀ 386.11(c). If he determines that the complaint does not state reasonable grounds for investigation and action by the Administration, the Associate Administrator shall dismiss it. (c) Complaint of substantial violation. Any person may file a written complaint with the Associate Administrator alleging that a substantial violation of any regulation issued under the Motor Carrier Safety Act of 1984 is occurring or has occurred within the preceding 60 days. A substantial violation is one which could reasonably lead to, or has resulted in, serious personal injury or death. Each complaint must be signed by the complainant and must contain: (1) The name, address, and telephone number of the person who files it; (2) The name and address of the alleged violator and, with respect to each alleged violator, the specific provisions of the regulations that the complainant believes were violated; and (3) A concise but complete statement of the facts relied upon to substantiate each allegation, including the date of each alleged violation. (d) Action on complaint of substantial violation. Upon the filing of a complaint of a substantial violation under paragraph (c) of this section, the Associate Administrator shall determine whether it is nonfrivolous and meets the requirements of paragraph (c) of this section. If the Associate Administrator determines that the complaint is nonfrivolous and meets the requirements of paragraph (c), he/she shall investigate the complaint. The complainant shall be timely notified of findings resulting fromÔh)0*0*0*°°Ô such investigation. The Associate Administrator shall not be required to conduct separate investigations of duplicative complaints. If the Associate Administrator determines that the complaint is frivalous or does not meet the requirements of paragraph (c), he/she shall dismiss the complaint and notify the complainant in writing of the reasons for such dismissal. (e) Notwithstanding the provisions of section 552 of title 5, United States Code, the Associate Administrator shall not disclose the identity of complainants unless it is determined that such disclosure is necessary to prosecute a violation. If disclosure becomes necessary, the Associate Administrator shall take every practical means within the Associate Administrator's authority to assure that the complainant is not subject to harassment, intimidation, disciplinary action, discrimination, or financial loss as a result of such disclosure. ÀÀ 386.13 Petitions to review and request for hearing: Driver qualification proceedings. (a) Within 60 days after service of the determination under ÀÀ 391.47 of this chapter or the letter of disqualification, the driver or carrier may petition to review such action. Such petitions must be submitted to the Associate Administrator and must contain the following: (1) Identification of what action the petitioner wants overturned; (2) Copies of all evidence upon which petitioner relies in the form set out in ÀÀ 386.49; (3) All legal and other arguments which the petitioner wishes to make in support of his position; (4) A request for oral hearing, if one is desired, which must set forth material factual issues believed to be in dispute; (5) Certification that the reply has been filed in accordance with ÀÀ 386.31; and (6) Any other pertinent material. (b) Failure to submit a petition as specified in paragraph (a) of this section shall constitute a waiver of the right to petition for review of the determination or letter of disqualification. In these cases, the determination or disqualification issued automatically becomes the final decision of the Associate Administrator 30 days after the time to submit the reply or petition to review has expired, unless the Associate Administrator orders otherwise. Ôh)0*0*0*°°ÔŒ (c) If the petition does not request a hearing, the Associate Administrator may issue a final decision and order based on the evidence and arguments submitted. ÀÀ 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 ÀÀ 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 be served in the form specified in ÀÀ 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 AssociateÔh) 0*0*0*°°Ô 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] ÀÀ 386.15 [Reserved] ÀÀ 386.16 Action on petitions or replies. (a) Replies not requesting an oral hearing. If the reply submitted does not request an oral hearing, the Associate Administrator may issue a final decision and order based on the evidence and arguments submitted. (b) Request for oral hearing. If a request for an oral hearing has been filed, the Associate Administrator shall determine whether there are any material factual issues in dispute. If there are, he/she shall call the matter for a hearing. If there are none, he/she shall issue an order to that effect and set a time for submission of argument by the parties. Upon the submission of argument he/she shall decide the case. (c) Settlement of civil forfeitures. (1) When negotiations produce an agreement as to the amount or terms of payment of a civil penalty or the terms and conditions of an order, a settlement agreement shall be drawn and signed by the respondent and the Associate Administrator. Such settlement agreement must contain the following: (i) The statutory basis of the claim; (ii) A brief statement of the violations; (iii) The amount claimed and the amount paid; (iv) The date, time, and place and form of payment; (v) A statement that the agreement is not binding on the agency until executed by the Associate Administrator; and (vi) A statement that failure to pay in accordance with the terms of the agreement which has been adopted as a Final Order will result in the loss of any reductions in penalties for claims found to be valid, and the original amount claimed will be due immediately. Ôh) 0*0*0*°°ÔŒ (2) Any settlement agreement may contain a consent order. (3) An executed settlement agreement is binding on the respondent and the claimant according to its terms. The respondent's consent to a settlement agreement that has not been executed by the Associate Administrator may not be withdrawn for a period of 30 days after it is executed by the respondent. [50 FR 40306, Oct. 2, 1985, as amended at 56 FR 10183, Mar. 11, 1991] ÀÀ 386.17 Intervention. After the matter is called for hearing and before the date set for the hearing to begin, any person may petition for leave to intervene. The petition is to be served on the administrative law judge. The petition must set forth the reasons why the petitioner alleges he/she is entitled to intervene. The petition must be served on all parties in accordance with ÀÀ 386.31. Any party may file a response within 10 days of service of the petition. The administrative law judge shall then determine whether to permit or deny the petition. The petition will be allowed if the administrative law judge determines that the final decision could directly and adversely affect the petitioner or the class he/she represents, and if the petitioner may contribute materially to the disposition of the proceedings and his/her interest is not adequately represented by existing parties. Once admitted, a petitioner is a party for the purpose of all subsequent proceedings. Subpart C -- Compliance and Consent Orders ÀÀ 386.21 Compliance order. (a) When a respondent contests a Notice of Investigation or fails to reply to such notice, the final order disposing of the proceeding may contain a compliance order. (b) A compliance order shall be executed by the Associate Administrator and shall contain the following: (1) A statement of jurisdictional facts; (2) Findings of facts, or reference thereto in an accompanying decision, as determined by a hearing officer or by the Associate Administrator upon respondent's failure to reply to the notice, which establish the violations charged; (3) A specific direction to the respondent to comply with the regulations violated within time limits provided; Ôh) 0*0*0*°°ÔŒ (4) Other directions to the respondent to take reasonable measures, in the time and manner specified, to assure future compliance; (5) A statement of the consequences for failure to meet the terms of the order; (6) Provision that the Notice of Investigation and the final decision of the hearing officer or Associate Administrator may be used to construe the terms of the order; and (7) A statement that the order constitutes final agency action, subject to review as provided in 49 U.S.C. 521(b)(8) for violations of regulations issued under the authority of 49 U.S.C. 3102, the Motor Carrier Safety Act of 1984 or 12002, 12003, 12004, 12005(b), or 12008(d)(2) of the Commercial Motor Vehicle Safety Act of 1986; or as provided in 5 U.S.C. 701 et seq., for violations of regulations issued under the authority of 49 U.S.C. App. 1804 (hazardous materials proceedings) or 49 U.S.C. 10947 note (financial responsibility proceedings). (c) Notice of Imminent Hazard. A compliance order may also contain notice that further violations of the same regulations may constitute an imminent hazard subjecting respondent to an order under subpart F of this part. [56 FR 10183, Mar. 11, 1991] ÀÀ 386.22 Consent order. When a respondent has filed an election not to contest under ÀÀ 386.15(a), or has agreed to settlement of a civil forfeiture, and at any time before the hearing is concluded, the parties may execute an appropriate agreement for disposing of the case by consent for the consideration of the Associate Administrator. The agreement is filed with the Associate Administrator who may (a) accept it, (b) reject it and direct that proceedings in the case continue, or (c) take such other action as he/she deems appropriate. If the Associate Administrator accepts the agreement, he/she shall enter an order in accordance with its terms. [50 FR 40306, Oct. 2, 1985. Redesignated at 56 FR 10183, Mar. 11, 1991] ÀÀ 386.23 Content of consent order. (a) Every agreement filed with the Associate Administrator under ÀÀ 386.22 must contain: (1) An order for the disposition of the case in a form suitable for the Associate Administrator's signature that has beenÔh) 0*0*0*°°Ô signed by the respondent; (2) An admission of all jurisdictional facts; (3) A waiver of further procedural steps, of the requirement that the decision or order must contain findings of fact and conclusions of law, and of all right to seek judicial review or otherwise challenge or contest the validity of the order; (4) Provisions that the notice of investigation or settlement agreement may be used to construe the terms of the order; (5) Provisions that the order has the same force and effect, becomes final, and may be modified, altered, or set aside in the same manner as other orders issued under 49 U.S.C. 501 et seq., 2501 et seq., 3101 et seq., and 10927, note; and (6) Provisions that the agreement will not be part of the record in the proceeding unless and until the Associate Administrator executes it. (b) A consent order may also contain any of the provisions enumerated in ÀÀ 386.21 -- Compliance Order. [50 FR 40306, Oct. 2, 1985. Redesignated and amended at 56 FR 10183, Mar. 11, 1991] Subpart D -- General Rules and Hearings ÀÀ 386.31 Service. (a) All service required by these rules shall be by mail or by personal delivery. Service by mail is complete upon mailing. (b) A certificate of service shall accompany all pleadings, motions, and documents when they are tendered for filing, and shall consist of a certificate of personal delivery or a certificate of mailing, executed by the person making the personal delivery or mailing the document. The first pleading of the Government in a proceeding initiated under this part shall have attached to it a service list of persons to be served. This list shall be updated as necessary. (c) Copies of all pleadings, motions, and documents must be served on the docket clerk and upon all parties to the proceedings by the person filing them, in the number of copies indicated on the Government's initial service list. ÀÀ 386.32 Computation of time. Ôh) 0*0*0*°°ÔŒ (a) Generally, in computing any time period set out in these rules or in an order issued hereunder, the time computation begins with the day following the act, event, or default. The last day of the period is included unless it is a Saturday, Sunday, or legal Federal holiday in which case the time period shall run to the end of the next day that is not a Saturday, Sunday, or legal Federal holiday. All Saturdays, Sundays, and legal Federal holidays except those falling on the last day of the period shall be computed. (b) Date of entry of orders. In computing any period of time involving the date of the entry of an order, the date of entry shall be the date the order is served. (c) Computation of time for delivery by mail. (1) Documents are not deemed filed until received by the docket clerk. However, when documents are filed by mail, 5 days shall be added to the prescribed period. (2) Service of all documents is deemed effected at the time of mailing. (3) Whenever a party has the right or is required to take some action within a prescribed period after the service of a pleading, notice, or other document upon said party, and the pleading, notice, or document is served upon said party by mail, 5 days shall be added to the prescribed period. ÀÀ 386.33 Extension of time. All requests for extensions of time shall be filed with the Associate Administrator or, if the matter has been called for a hearing, with the administrative law judge. All requests must state the reasons for the request. Only those requests showing good cause will be granted. No motion for continuance or postponement of a hearing date filed within 7 days of the date set for a hearing will be granted unless it is accompanied by an affidavit showing that extraordinary circumstances warrant a continuance. ÀÀ 386.34 Official notice. The Associate Administrator or administrative law judge may take official notice of any fact not appearing in evidence if he/she notifies all parties he/she intends to do so. Any party objecting to the official notice shall file an objection within 10 days after service of the notice. ÀÀ 386.35 Motions. (a) General. An application for an order or ruling not otherwise covered by these rules shall be by motion. All motionsÔh)0*0*0*°°Ô filed prior to the calling of the matter for a hearing shall be to the Associate Administrator. All motions filed after the matter is called for hearing shall be to the administrative law judge. (b) Form. Unless made during hearing, motions shall be made in writing, shall state with particularity the grounds for relief sought, and shall be accompanied by affidavits or other evidence relied upon. (c) Answers. Except when a motion is filed during a hearing, any party may file an answer in support or opposition to a motion, accompanied by affidavits or other evidence relied upon. Such answers shall be served within 7 days after the motion is served or within such other time as the Associate Administrator or administrative law judge may set. (d) Argument. Oral argument or briefs on a motion may be ordered by the Associate Administrator or the administrative law judge. (e) Disposition. Motions may be ruled on immediately or at any other time specified by the administrative law judge or the Associate Administrator. (f) Suspension of time. The pendency of a motion shall not affect any time limits set in these rules unless expressly ordered by the Associate Administrator or administrative law judge. ÀÀ 386.36 Motions to dismiss and motions for a more definite statement. (a) Motions to dismiss must be made within the time set for reply or petition to review, except motions to dismiss for lack of jurisdiction, which may be made at any time. (b) Motions for a more definite statement may be made in lieu of a reply. The motion must point out the defects complained of and the details desired. If the motion is granted, the pleading complained of must be remedied within 15 days of the granting of the motion or it will be stricken. If the motion is denied, the party who requested the more definite statement must file his pleading within 10 days after the denial. ÀÀ 386.37 Discovery methods. Parties may obtain discovery by one or more of the following methods: Depositions upon oral examination or written questions; written interrogatories; production of documents or other evidence for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the Associate Administrator or, in cases that have been called for a hearing, the administrative law judge orders otherwise, theÔh)0*0*0*°°Ô fequency or sequence of these methods is not limited. ÀÀ 386.38 Scope of discovery. (a) Unless otherwise limited by order of the Associate Administrator or, in cases that have been called for a hearing, the administrative law judge, in accordance with these rules, the parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. (b) It is not ground for objection that information sought will not be admissible at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. (c) A party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (a) of this section and prepared in anticipation of or for the hearing by or for another party's representative (including his or her attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his or her case and that he or she is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the Associate Administrator or the administrative law judge shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the proceeding. ÀÀ 386.39 Protective orders. Upon motion by a party or other person from whom discovery is sought, and for good cause shown, the Associate Administrator or the administrative law judge, if one has been appointed, may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (a) The discovery not be had; (b) The discovery may be had only on specified terms and conditions, including a designation of the time or place; (c) The discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (d) Certain matters not relevant may not be inquired into,Ôh)0*0*0*°°Ô or that the scope of discovery be limited to certain matters; (e) Discovery be conducted with no one present except persons designated by the Associate Administrator or the administrative law judge; or (f) A trade secret or other confidential research, development, or commercial information may not be disclosed or be disclosed only in a designated way. ÀÀ 386.40 Supplementation of responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows: (a) A party is under a duty to supplement timely his/her response with respect to any question directly addressed to: (1) The identity and location of persons having knowledge of discoverable matters; and (2) The identity of each person expected to be called as an expert witness at the hearing, the subject matter on which he or she is expected to testify and the substance of his or her testimony. (b) A party is under a duty to amend timely a prior response if he or she later obtains information upon the basis of which: (1) He or she knows the response was incorrect when made; or (2) He or she knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment. (c) A duty to supplement responses may be imposed by order of the Associate Administrator or the administrative law judge or agreement of the parties. ÀÀ 386.41 Stipulations regarding discovery. Unless otherwise ordered, a written stipulation entered into by all the parties and filed with the Associate Administrator or the administrative law judge, if one has been appointed, may: (a) Provide that depositions be taken before any person, at any time or place, upon sufficient notice, and in any manner, andÔh)0*0*0*°°Ô when so taken may be used like other depositions, and (b) Modify the procedures provided by these rules for other methods of discovery. ÀÀ 386.42 Written interrogatories to parties. (a) Any party may serve upon any other party written interrogatories to be answered in writing by the party served, or if the party served is a public or private corporation or a partnership or association or governmental agency, by any authorized officer or agent, who shall furnish such information as is available to the party. A copy of the interrogatories, answers, and all related pleadings shall be served on the Associate Administrator or, in cases that have been called to a hearing, on the administrative law judge, and upon all parties to the proceeding. (b) Each interrogatory shall be answered separately and fully in writing under oath or affirmation, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers and objections shall be signed by the person making them. The party upon whom the interrogatories were served shall serve a copy of the answer and objections upon all parties to the proceeding within 30 days after service of the interrogatories, or within such shortened or longer period as the Associate Administrator or the administrative law judge may allow. (c) An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the Associate Administrator or administrative law judge may order that such an interrogatory need not be answered until after designated discovery has been completed or until a prehearing conference or other later time. ÀÀ 386.43 Production of documents and other evidence; entry upon land for inspection and other purposes; and physical and mental examination. (a) Any party may serve on any other party a request to: (1) Produce and permit the party making the request, or a person acting on his or her behalf, to inspect and copy any designated documents, or to inspect and copy, test, or sample any tangible things which are in the possession, custody, or control of the party upon whom the request is served; or (2) Permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, photographing, testing, or for other purposes as stated in paragraph (a)(1) ofÔh)0*0*0*°°Ô this section. (3) Submit to a physical or mental examination by a physician. (b) The request may be served on any party without leave of the Associate Administrator or administrative law judge. (c) The request shall: (1) Set forth the items to be inspected either by individual item or category; (2) Describe each item or category with reasonable particularity; (3) Specify a reasonable time, place, and manner of making the inspection and performing the related acts; (4) Specify the time, place, manner, conditions, and scope of the physical or mental examination and the person or persons by whom it is to be made. A report of examining physician shall be made in accordance with Rule 35(b) of the Federal Rules of Civil Procedure, title 28, U.S. Code, as amended. (d) The party upon whom the request is served shall serve on the party submitting the request a written response within 30 days after service of the request. (e) The response shall state, with respect to each item or category: (1) That inspection and related activities will be permitted as requested; or (2) That objection is made in whole or in part, in which case the reasons for objection shall be stated. (f) A copy of each request for production and each written response shall be served on all parties and filed with the Associate Administrator or the administrative law judge, if one has been appointed. ÀÀ 386.44 Request for admissions. (a) Request for admission. (1) Any party may serve upon any other party a request for admission of any relevant matter or the authenticity of any relevant document. Copies of any document about which an admission is requested must accompany the request. (2) Each matter for which an admission is requested shall be separately set forth and numbered. The matter is admitted unless within 15 days after service of the request, the party to whom theÔh)0*0*0*°°Ô request is directed serves upon the party requesting the admission a written answer signed by the party or his/her attorney. (3) Each answer must specify whether the party admits or denies the matter. If the matter cannot be admitted or denied, the party shall set out in detail the reasons. (4) A party may not issue a denial or fail to answer on the ground that he/she lacks knowledge unless he/she has made reasonable inquiry to ascertain information sufficient to allow him/her to admit or deny. (5) A party may file an objection to a request for admission within 10 days after service. Such motion shall be filed with the administrative law judge if one has been appointed, otherwise it shall be filed with the Associate Administrator. An objection must explain in detail the reasons the party should not answer. A reply to the objection may be served by the party requesting the admission within 10 days after service of the objection. It is not sufficient ground for objection to claim that the matter about which an admission is requested presents an issue of fact for hearing. (b) Effect of admission. Any matter admitted is conclusively established unless the Associate Administrator or administrative law judge permits withdrawal or amendment. Any admission under this rule is for the purpose of the pending action only and may not be used in any other proceeding. (c) If a party refuses to admit a matter or the authenticity of a document which is later proved, the party requesting the admission may move for an award of expenses incurred in making the proof. Such a motion shall be granted unless there was a good reason for failure to admit. ÀÀ 386.45 Motion to compel discovery. (a) If a deponent fails to answer a question propounded or a party upon whom a request is made pursuant to ÀÀÀÀ 386.42 through 386.44, or a party upon whom interrogatories are served fails to respond adequately or objects to the request, or any part thereof, or fails to permit inspection as requested, the discovering party may move the Associate Administrator or the administrative law judge, if one has been appointed, for an order compelling a response or inspection in accordance with the request. (b) The motion shall set forth: (1) The nature of the questions or request; (2) The response or objections of the party upon whom the request was served; and Ôh)0*0*0*°°ÔŒ (3) Arguments in support of the motion. (c) For purposes of this section, an evasive answer or incomplete answer or response shall be treated as a failure to answer or respond. (d) In ruling on a motion made pursuant to this section, the Associate Administrator or the administrative law judge, if one has been appointed, may make and enter a protective order such as he or she is authorized to enter on a motion made pursuant to ÀÀ 386.39(a). ÀÀ 386.46 Depositions. (a) When, how, and by whom taken. The deposition of any witness may be taken at any stage of the proceeding at reasonable times. Depositions may be taken by oral examination or upon written interrogatories before any person having power to administer oaths. (b) Application. Any party desiring to take the deposition of a witness shall indicate to the witness and all other parties the time when, the place where, and the name and post office address of the person before whom the deposition is to be taken; the name and address of each witness; and the subject matter concerning which each such witness is expected to testify. (c) Notice. Notice shall be given for the taking of a deposition, which shall be not less than 5 days written notice when the deposition is to be taken within the continental United States and not less than 20 days written notice when the deposition is to be taken elsewhere. (d) Taking and receiving in evidence. Each witness testifying upon deposition shall be sworn, and any other party shall have the right to cross-examine. The questions propounded and the answers thereto, together with all objections made, shall be reduced to writing; read by or to, and subscribed by the witness; and certified by the person administering the oath. Thereafter, such officer shall seal the deposition in an envelope and mail the same by certified mail to the Associate Administrator or the administrative law judge, if one has been appointed. Subject to such objections to the questions and answers as were noted at the time of taking the deposition and which would have been valid if the witness were personally present and testifying, such deposition may be read and offered in evidence by the party taking it as against any party who was present or represented at the taking of the deposition or who had due notice thereof. (e) Motion to terminate or limit examination. During the taking of a deposition, a party or deponent may request suspension of the deposition on grounds of bad faith in the conduct of the examination, oppression of a deponent or party or improper questions propounded. The deposition will then be adjourned.Ôh)0*0*0*°°Ô However, the objecting party or deponent must immediately move the Associate Administrator or administrative law judge for a ruling on his or her objections to the deposition conduct or proceedings. The Associate Administrator or administrative law judge may then limit the scope or manner of the taking of the deposition. ÀÀ 386.47 Use of deposition at hearings. (a) Generally. At the hearing, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof in accordance with any one of the following provisions: (1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. (2) The deposition of expert witnesses, particularly the deposition of physicians, may be used by any party for any purpose, unless the Associate Administrator or administrative law judge rules that such use would be unfair or a violation of due process. (3) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or duly authorized agent of a public or private organization, partnership, or association which is a party, may be used by any other party for any purpose. (4) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the presiding officer finds: (i) That the witness is dead; or (ii) That the witness is out of the United States or more than 100 miles from the place of hearing unless it appears that the absence of the witness was procured by the party offering the deposition; or (iii) That the witness is unable to attend to testify because of age, sickness, infirmity, or imprisonment; or (iv) That the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (v) Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open hearing, to allow the deposition to be used. (5) If only part of a deposition is offered in evidence byÔh)0*0*0*°°Ô a party, any other party may require him or her to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts. (b) Objections to admissibility. Except as provided in this paragraph, objection may be made at the hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying. (1) Objections to the competency of a witness or to the competency, relevancy or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time. (2) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless reasonable objection thereto is made at the taking of the deposition. (3) Objections to the form or written interrogatories are waived unless served in writing upon the party propounding them. (c) Effect of taking using depositions. A party shall not be deemed to make a person his or her own witness for any purpose by taking his or her deposition. The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by any other party of a deposition as described in paragraph (a)(2) of this section. At the hearing, any party may rebut any relevant evidence contained in a deposition whether introduced by him or her or by any other party. ÀÀ 386.48 Medical records and physicians' reports. In cases involving the physical qualifications of drivers, copies of all physicians' reports, test results, and other medical records that a party intends to rely upon shall be served on all other parties at least 30 days prior to the date set for a hearing. Except as waived by the Director, Office of Motor Carrier Standards, reports, test results and medical records not served under this rule shall be excluded from evidence at any hearing. [50 FR 40306, Oct. 2, 1985, as amended at 53 FR 2036, Jan. 26, 1988] ÀÀ 386.49 Form of written evidence. Ôh)0*0*0*°°ÔŒ™ All written evidence shall be submitted in the following forms: (a) An affidavit of a person having personal knowledge of the facts alleged, or (b) Documentary evidence in the form of exhibits attached to an affidavit identifying the exhibit and giving its source. ÀÀ 386.50 Appearances and rights of witnesses. (a) Any party to a proceeding may appear and be heard in person or by attorney. A regular employee of a party who appears on behalf of the party may be required by the administrative law judge to show his or her authority to so appear. (b) Any person submits data or evidence in a proceeding governed by this part may, upon timely request and payment of costs, procure a copy of any document submitted by him/her or of any transcript. Original documents, data or evidence may be retained upon permission of the administrative law judge or Associate Administrator upon substitution of copy therefor. ÀÀ 386.51 Amendment and withdrawal of pleadings. (a) Except in instances covered by other rules, anytime more than 15 days prior to the hearing, a party may amend his/her pleadings by serving the amended pleading on the Associate Administrator or the administrative law judge, if one has been appointed, and on all parties. Within 15 days prior to the hearing, an amendment shall be allowed only at the discretion of the Administrative law judge. When an amended pleading is filed, other parties may file a response and objection within 10 days. (b) A party may withdraw his/her pleading only on approval of the administrative law judge or Associate Administrator. ÀÀ 386.52 Appeals from interlocutory rulings. Rulings of the administrative law judge may not be appealed to the Associate Administrator prior to his/her consideration of the entire proceeding except under exceptional circumstances and with the consent of the administrative law judge. In deciding whether to allow appeals, the administrative law judge shall determine whether the appeal is necessary to prevent undue prejudice to a party or to prevent substantial detriment to the public interest. ÀÀ 386.53 Subpoenas, witness fees. (a) Applications for the issuance of subpoenas must beÔh)0*0*0*°°Ô submitted to the Associate Administrator, or in cases that have been called for a hearing, to the administrative law judge. The application must show the general relevance and reasonable scope of the evidence sought. Any person served with a subpoena may, within 7 days after service, file a motion to quash or modify. The motion must be filed with the official who approved the subpoena. The filing of a motion shall stay the effect of the subpoena until a decision is reached. (b) Witnesses shall be entitled to the same fees and mileage as are paid witnesses in the courts of the United States. The fees shall be paid by the party at whose instance the witness is subpoenaed or appears. (c) Paragraph (a) of this section shall not apply to the Administrator or employees of the FHWA or to the production of documents in their custody. Applications for the attendance of such persons or the production of such documents at a hearing shall be made to the Associate Administrator or administrative law judge, if one is appointed, and shall set forth the need for such evidence and its relevancy. ÀÀ 386.54 Administrative law judge. (a) Appointment. After the matter is called for hearing, the Associate Administrator shall appoint an administrative law judge. (b) Power and duties. Except as provided in paragraph (c) of this section, the administrative law judge has power to take any action and to make all needful rules and regulations to govern the conduct of the proceedings to ensure a fair and impartial hearing, and to avoid delay in the disposition of the proceedings. His/her powers include the following: (1) To administer oaths and affirmations; (2) To issue orders permitting inspection and examination of lands, buildings, equipment, and any other physical thing and the copying of any document; (3) To issue subpoenas for the attendance of witnesses and the production of evidence as authorized by law; (4) To rule on offers of proof and receive evidence; (5) To regulate the course of the hearing and the conduct of participants in it; (6) To consider and rule upon all procedural and other motions, including motions to dismiss, except motions which, under this part, are made directly to the Associate Administrator; Ôh)0*0*0*°°ÔŒ (7) To hold conferences for settlement, simplification of issues, or any other proper purpose; (8) To make and file decisions; and (9) To take any other action authorized by these rules and permitted by law. [50 FR 40306, Oct. 2, 1985, as amended at 53 FR 2036, Jan. 26, 1988] ÀÀ 386.55 Prehearing conferences. (a) Convening. At any time before the hearing begins, the administrative law judge, on his/her own motion or on motion by a party, may direct the parties or their counsel to participate with him/her in a prehearing conference to consider the following: (1) Simplification and clarification of the issues; (2) Necessity or desirability of amending pleadings; (3) Stipulations as to the facts and the contents and authenticity of documents; (4) Issuance of and responses to subpoenas; (5) Taking of depositions and the use of depositions in the proceedings; (6) Orders for discovery, inspection and examination of premises, production of documents and other physical objects, and responses to such orders; (7) Disclosure of the names and addresses of witnesses and the exchange of documents intended to be offered in evidence; and (8) Any other matter that will tend to simplify the issues or expedite the proceedings. (b) Order. The administrative law judge shall issue an order which recites the matters discussed, the agreements reached, and the rulings made at the prehearing conference. The order shall be served on the parties and filed in the record of the proceedings. ÀÀ 386.56 Hearings. (a) As soon as practicable after his/her appointment, the administrative law judge shall issue an order setting the date, time, and place for the hearing. The order shall be served on the parties and become a part of the record of the proceedings. TheÔh)0*0*0*°°Ô order may be amended for good cause shown. (b) Conduct of hearing. The administrative law judge presides over the hearing. Hearings are open to the public unless the administrative law judge orders otherwise. (c) Evidence. Except as otherwise provided in these rules and the Administrative Procedure Act, 5 U.S.C. 551 et seq., the Federal Rules of Evidence shall be followed. (d) Information obtained by investigation. Any document, physical exhibit, or other material obtained by the Administration in an investigation under its statutory authority may be disclosed by the Administration during the proceeding and may be offered in evidence by counsel for the Administration. (e) Record. The hearing shall be stenographically transcribed and reported. The transcript, exhibits, and other documents filed in the proceedings shall constitute the official record of the proceedings. A copy of the transcript and exhibits will be made available to any person upon payment of prescribed costs. ÀÀ 386.57 Proposed findings of fact, conclusions of law. The administrative law judge shall afford the parties reasonable opportunity to submit proposed findings of fact, conclusions of law, and supportng reasons therefor. If the administrative law judge orders written proposals and arguments, each proposed finding must include a citation to the specific portion of the record relied on to support it. Written submissions, if any, must be served within the time period set by the administrative law judge. ÀÀ 386.58 Burden of proof. (a) Enforcement cases. The burden of proof shall be on the Administration in enforcement cases. (b) Conflict of medical opinion. The burden of proof in cases arising under ÀÀ 391.47 of this chapter shall be on the party petitioning for review under ÀÀ 386.13(a). Subpart E -- Decision ÀÀ 386.61 Decision. After receiving the proposed findings of fact, conclusions of law, and arguments of the parties, the administrative law judge shall issue a decision. If the proposed findings of fact,Ôh)0*0*0*°°Ô conclusions of law, and arguments were oral, he/she may issue an oral decision. The decision of the administrative law judge becomes the final decision of the Associate Administrator 45 days after it is served unless a petition or motion for review is filed under ÀÀ 386.62. The decision shall be served on all parties and on the Associate Administrator. ÀÀ 386.62 Review of administrative law judge's decision. (a) All petitions to review must be accompanied by exceptions and briefs. Each petition must set out in detail objections to the initial decision and shall state whether such objections are related to alleged errors of law or fact. It shall also state the relief requested. Failure to object to any error in the initial decision shall waive the right to allege such error in subsequent proceedings. (b) Reply briefs may be filed within 30 days after service of the appeal brief. (c) No other briefs shall be permitted except upon request of the Associate Administrator. (d) Copies of all briefs must be served on all parties. (e) No oral argument will be permitted except on order of the Associate Administrator. ÀÀ 386.63 Decision on review. Upon review of a decision, the Associate Administrator may adopt, modify, or set aside the administrative law judge's findings of fact and conclusions of law. He/she may also remand proceedings to the administrative law judge with instructions for such further proceedings as he/she deems appropriate. If not remanded, the Associate Administrator shall issue a final order disposing of the proceedings, and serve it on all parties. ÀÀ 386.64 Reconsideration. Within 20 days after the Associate Administrator's final order is issued, any party may petition the Associate Administrator for reconsideration of his/her findings of fact, conclusions of law, or final order. The filing of a petition for reconsideration does not stay the effectiveness of the final order unless the Associate Administrator so orders. ÀÀ 386.65 Failure to comply with final order. If, within 30 days of receipt of a final agency orderÔh)0*0*0*°°Ô issued under this part, the respondent does not submit in writing his/her acceptance of the terms of an order directing compliance, or, where appropriate, pay a civil penalty, or file an appeal under ÀÀ 386.67, the case may be referred to the Attorney General with a request that an action be brought in the appropriate United States District Court to enforce the terms of a compliance order or collect the civil penalty. ÀÀ 386.66 Motions for rehearing or for modification. (a) No motion for rehearing or for modification of an order shall be entertained for 1 year following the date the Associate Administrator's order goes into effect. After 1 year, any party may file a motion with the Associate Administrator requesting a rehearing or modification of the order. The motion must contain the following: (1) A copy of the order about which the change is requested; (2) A statement of the changed circumstances justifying the request; and (3) Copies of all evidence intended to be relied on by the party submitting the motion. (b) Upon receipt of the motion, the Associate Administrator may make a decision denying the motion or modifying the order in whole or in part. He/she may also, prior to making his/her decision, order such other proceedings under these rules as he/she deems necessary and may request additional information from the party making the motion. ÀÀ 386.67 Appeal. Any aggrieved person, who, after a hearing, is adversely affected by a final order issued under 49 U.S.C. 521 may, within 30 days, petition for review of the order in the United States Court of Appeals in the circuit wherein the violation is alleged to have occurred or where the violator has his principal place of business or residence, or in the United States Court of Appeals for the District of Columbia Circuit. Review of the order shall be based on a determination of whether the Associate Administrator's findings and conclusions were supported by substantial evidence, or were otherwise not in accordance with law. No objection that has not been urged before the Associate Administrator shall be considered by the court, unless reasonable grounds existed for failure or neglect to do so. The commencement of proceedings under this section shall not, unless ordered by the court, operate as a stay of the order of the Associate Administrator. Ôh)0*0*0*°°ÔŒ™Subpart F -- Injunctions and Imminent Hazards ÀÀ 386.71 Injunctions. Whenever it is determined that a person has engaged, or is about to engage, in any act or practice constituting a violation of section 3102 of title 49, United States Code, or the Motor Carrier Safety Act of 1984, or the Hazardous Materials Transportation Act, or any regulation or order issued under that section or those Acts for which the Federal Highway Administrator exercises enforcement responsibility, the Chief Counsel or the Assistant Chief Counsel for Motor Carrier and Highway Safety Law may request the United States Attorney General to bring an action in the appropriate United States District Court for such relief as is necessary or appropriate, including mandatory or prohibitive injunctive relief, interim equitable relief, and punitive damages, as provided by section 213(c) of the Motor Carrier Safety Act of 1984 and section 111(a) of the Hazardous Materials Transportation Act (49 U.S.C. 507(c), 1810). ÀÀ 386.72 Imminent hazard. (a) Whenever it is determined that there is substantial likelihood that death, serious illness, or severe personal injury, will result from the transportation by motor vehicle of a particular hazardous material before a notice of investigation proceeding, or other administrative hearing or formal proceeding to abate the risk of harm can be completed, the Chief Counsel or the Assistant Chief Counsel for Motor Carrier and Highway Safety Law may bring, or request the United States Attorney General to bring, an action in the appropriate United States District Court for an order suspending or restricting the transportation by motor vehicle of the hazardous material or for such other order as is necessary to eliminate or ameliorate the imminent hazard, as provided by section 111(b) of the Hazardous Materials Transportation Act (49 U.S.C. 1810). (b)(1) Whenever it is determined that a violation of 49 U.S.C. 3102 or the Motor Carrier Safety Act of 1984 or the Commercial Motor Vehicle Safety Act of 1986 or a regulation issued under such section or Acts, or combination of such violations, poses an imminent hazard to safety, the Director, Motor Carrier Safety Field Operations or the Regional Directors of Motor Carrier Safety, or his or her delegate, shall order a vehicle or employee operating such vehicle out of service, or order an employer to cease all or part of the employer's commercial motor vehicle operations as provided by section 213(b) of the Motor Carrier Safety Act of 1984 and section 12012(d) of the Commercial Motor Vehicle Safety Act of 1986. (49 U.S.C. 521(b)(5)). In making any such order, no restrictions shall be imposed on any employee orÔh)0*0*0*°°Ô employer beyond that required to abate the hazard. In this paragraph, ``imminent hazard'' means any condition of vehicle, employee, or commercial motor vehicle operations which is likely to result in serious injury or death if not discontinued immediately. (2) Upon the issuance of an order under paragraph (b)(1) of this section, the motor carrier employer or driver employee shall comply immediately with such order. Opportunity for review shall be provided in accordance with 5 U.S.C. 554, except that such review shall occur not later than 10 days after issuance of such order, as provided by section 213(b) of the Motor Carrier Safety Act of 1984 (49 U.S.C. 521(b)(5)). An order to an employer to cease all or part of its operations shall not prevent vehicles in transit at the time the order is served from proceeding to their immediate destinations, unless any such vehicle or its driver is specifically ordered out of service forthwith. However, vehicles and drivers proceeding to their immediate destination shall be subject to compliance upon arrival. (3) For purposes of this section the term ``immediate destination'' is the next scheduled stop of the vehicle already in motion where the cargo on board can be safely secured. (4) Failure to comply immediately with an order issued under this section shall subject the motor carrier employer or driver to penalties prescribed in subpart G of this part. [50 FR 40306, Oct. 2, 1985, as amended at 53 FR 2036, Jan. 26, 1988; 53 FR 50970, Dec. 19, 1988; 56 FR 10184, Mar. 11, 1991] Subpart G -- Penalties Source: 56 FR 10184, Mar. 11, 1991, unless otherwise noted. ÀÀ 386.81 General. (a) The maximum amounts of civil penalties that can be imposed for regulatory violations subject to the civil forfeiture proceedings in this Part are set in the statutes authorizing the regulations. The determination of the actual civil penalties assessed in each proceeding is based on those defined limits and consideration of information available at the time the claim is made concerning the nature, circumstances, extent, and gravity of the violation and, with respect to the violator, the degree of culpability, history of prior offenses, ability to pay, effect on ability to continue to do business, and such other matters as justice and public safety may require. In adjudicating the claims and notices under the administrative procedures herein, additional information may be developed regarding those factors that may affect the final amount of the claim. (b) When assessing penalties for violations of notices and orders or settling claims based on these assessments, considerationÔh)0*0*0*°°Ô will be given to good faith efforts to achieve compliance with the terms of the notices and orders. ÀÀ 386.82 Civil penalties for violations of notices and orders. (a) Additional civil penalties are chargeable for violations of notices and orders which are issued under civil forfeiture proceedings pursuant to 49 U.S.C. 521(b). These notices and orders are as follows: (1) Notice to abate -- ÀÀ 386.11 (b)(2) and (c)(1)(iv); (2) Notice to post -- ÀÀ 386.11(b)(3); (3) Final order -- ÀÀ 386.14(f); and (4) Out-of-service order -- ÀÀ 386.72(b)(3). (b) A schedule of these additional penalties is provided in the appendix A to this part. All the penalties are maximums, and discretion will be retained to meet special circumstances by setting penalties for violations of notices and orders, in some cases, at less than the maximum. (c) Claims for penalties provided in this section and in the appendix A to this part shall be made through the civil forfeiture proceedings contained in this part. The issues to be decided in such proceedings will be limited to whether violations of notices and orders occurred as claimed and the appropriate penalty for such violations. Nothing contained herein shall be construed to authorize the reopening of a matter already finally adjudicated under this part. Pt. 386, App. A Appendix A to Part 386 -- Penalty Schedule; Violations of Notices and Orders I. Notice to Abate a. Violation -- failure to cease violations of the regulations in the time prescribed in the notice. (The time within which to comply with a notice to abate shall not begin to run with respect to contested violations, i.e., where there are material issues in dispute under ÀÀ 386.14, until such time as the violation has been established.) Penalty -- reinstatement of any deferred assessment or payment of a penalty or portion thereof. b. Violation -- failure to comply with specific actions prescribed in a notice of investigation, compliance order orÔh)0*0*0*°°Ô consent order, other than cessation of violations of the regulations, which were determined to be essential to abatement of future violations. Penalty -- $1,000 per violation per day. Maximum -- $10,000. II. Notice to Post Violation -- Failure to post notice of violation (i.e., notice of investigation) as prescribed. Penalty -- $500 (A separate violation may be charged each time a failure to post as ordered is discovered.) III. Final Order Violation -- Failure to comply with final agency order, i.e., failure to pay the penalty assessed therein after notice and opportunity for hearing within time prescribed in the order. Penalty -- Automatic waiver of any reduction in the original claim found to be valid, and immediate restoration to the full amount assessed in the Claim Letter or Notice of Investigation. IV. Out-of-Service Order a. Violation -- Operation of a commercial vehicle by a driver during the period the driver was placed out of service. Penalty -- Up to $1,000 per violation. (For purposes of this violation, the term ``driver'' means an operator of a commercial motor vehicle, including an independent contractor who, while in the course of operating a commercial motor vehicle, is employed or used by another person.) b. Violation -- Requiring or permitting a driver to operate a commercial vehicle during the period the driver was placed out of service. Penalty -- Up to $10,000 per violation. (This violation applies to motor carriers, including an independent contractor who is not a ``driver,'' as defined under paragraph IVa above.) c. Violation -- Operation of a commercial motor vehicle by a driver after the vehicle was placed out of service and before the required repairs are made. Penalty -- $1,000 each time the vehicle is so operated. Ôh)0*0*0*°°ÔŒ™(This violation applies to drivers as defined in IVa above.) d. Violation -- Requiring or permitting the operation of a commercial motor vehicle placed out of service before the required repairs are made. Penalty -- Up to $10,000 each time the vehicle is so operated after notice of the defect is received. (This violation applies to motor carriers, including an independent owner-operator who is not a ``driver,'' as defined in IVa above.) e. Violation -- Failure to return written certification of correction as required by the out-of-service order. Penalty -- Up to $500 per violation. f. Violation -- Knowingly falsifies written certification of correction required by the out-of-service order. Penalty -- Considered the same as the violations described in paragraphs IVc and IVd above, and subject to the same penalties. Note: Falsification of certification may also result in criminal prosecution under 18 U.S.C. 1001. g. Violation -- Operating in violation of an order issued under ÀÀ 386.72(b) to cease all or part of the employer's commercial motor vehicle operations, i.e., failure to cease operations as ordered. Penalty -- Up to $10,000 per day the operation continues after the effective date and time of the order to cease. [56 FR 10184, Mar. 11, 1991]