Rules of Practice for Motor Carrier Proceedings; Investigations; Disqualifications and Penalties

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Parts 361, 362, 363, and 364

[FHWA Docket No. MC-96-18]

RIN 2125-AD64

Rules of Practice for Motor Carrier Proceedings; Investigations;

Disqualifications and Penalties

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Supplemental notice of proposed rulemaking (SNPRM); extension

of comment period.

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SUMMARY: On April 29, 1996, the FHWA published notice of its proposal

to amend its rules of practice for motor carrier administrative

proceedings. (61 FR 18866). The FHWA now proposes to supplement that

notice of proposed rulemaking to make the rules applicable to

proceedings arising under section 103 of the ICC Termination Act of

1995 (ICCTA) as well. Before the ICCTA became effective on January 1,

1996, these proceedings fell under the jurisdiction of the Interstate

Commerce Commission (ICC) and were implemented and administered

pursuant to ICC regulations. But the ICCTA abolished the ICC and gave

the Secretary of Transportation responsibility for carrying out the

provisions of section 103. The Secretary has delegated that

responsibility to the FHWA. By broadening the scope of the proposed

rules of practice to include proceedings arising under the ICCTA, the

FHWA proposes to adopt uniform and consistent procedures to govern all

investigation and civil forfeiture proceedings which it institutes.

DATES: Comments must be received on or before November 20, 1996.

ADDRESSES: Submit written, signed comments to FHWA Docket No. MC-96-18,

FHWA, Office of the Chief Counsel, HCC-10, Room 4232, 400 Seventh

Street SW., Washington, DC 20590. All comments received will be

available for examination at the above address from 8:30 a.m. to 3:30

p.m., e.t., Monday through Friday, except Federal holidays. Those

desiring notification of receipt of comments must include a self-

addressed, stamped postcard/envelope.

FOR FURTHER INFORMATION CONTACT: Judy Rutledge, Office of the Chief

Counsel, (202) 366-0834, Federal Highway Administration, 400 Seventh

Street, SW., Washington, DC 20590. Office hours are from 7:45 a.m. to

4:15 p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: This supplemental notice of proposed

rulemaking addresses procedural changes that will facilitate

implementation of the ICCTA, Pub.L. No. 104-88, 109 Stat. 803.

Effective January 1, 1996, the ICCTA abolished the Interstate Commerce

Commission (ICC) but reenacted various statutory provisions that the

ICC previously administered. Among the statutes reenacted are civil and

criminal penalty provisions that apply to violations of Part B of

Subtitle IV, Title 49, United States Code (49 U.S.C. 13101 et seq.).

Those provisions appear in Chapter 149 of Part B.

The ICCTA charges the Secretary of Transportation with

responsibility for carrying out Part B, including the civil penalty

provisions in Chapter 149. The Secretary has delegated that

responsibility to the Federal Highway Administration (FHWA). Thus, the

FHWA now oversees compliance with Part B of the ICCTA and is authorized

to conduct investigations and implement enforcement proceedings to

obtain compliance.

Currently, investigation and enforcement proceedings relating to

violations of Part B are governed by procedures in former ICC

regulations, which the FHWA adopted as an interim measure. (61 FR

14372, April 1, 1996). Those procedures differ from FHWA's procedures

that apply to investigations and enforcement proceedings for violations

of the safety regulations. For example, civil forfeiture proceedings

arising from violations of the motor carrier safety regulations are

governed by 49 CFR Part 386, whereas, similar proceedings for

violations of Part B of the ICCTA are governed by 49 CFR Part 1021.

Although civil forfeiture claims under Part 386 and Part 1021 are

asserted the same way--by letter containing prescribed information--

only Part 386 requires the respondent to reply to the claim letter in a

specified time with prescribed information in order to administratively

resolve the claim. (49 CFR 386.14). In contrast, Part 1021 does not

require a response to the claim letter and does not establish

[[Page 54602]]

administrative procedures for resolving the claims.

While the ICC existed, these procedural differences were

inconsequential because the regulations were applied by separate

agencies to different violations. The ICC applied Part 1021 procedures

to civil penalties it assessed under Subtitle IV, Title 49, U.S. Code,

while the FHWA applied Part 386 procedures to civil penalties it

assessed under Subtitle VI of Title 49. But now that the FHWA oversees

the statutes previously administered by the ICC, having one set of

procedures will eliminate confusion and duplicative regulatory

provisions.

To establish uniform and consistent procedures for all proceedings,

the FHWA intends to adopt new rules of practice. An extensive revision

of its rules of practice has already been proposed in a notice of

proposed rulemaking (NPRM). (61 FR 18866, April 29, 1996). This

supplemental notice of proposed rulemaking contains the amendments that

the FHWA considers necessary to unite the separate procedures that now

exist.

In this supplemental proposal, the FHWA is adopting the term

``Commercial Regulations'' to refer to the requirements imposed on

motor carriers as a result of the transfer of functions from the former

Interstate Commerce Commission in the ICCTA. The procedures to be

followed by the FHWA in carrying out the transferred functions are

integrated into the proposed procedures published in the April 29

Federal Register. Therefore, it would be helpful for commenters to read

the two proposals together. No substantive changes are being proposed

in this notice.

Part 361--Administrative Enforcement

The changes offered in this proposed Part are principally limited

to the insertion of references to the statutory authority for the

functions transferred from the ICC. A definition of ``Commercial

Regulations'' is included and that term is inserted in the various

sections along with the new statutory authority for those regulations.

Part 362--Safety Ratings

No changes are being made to proposed Part 362.

Part 363--Enforcement Proceedings

A reference to enforcement of the commercial regulations is

inserted in the authority note and the section headed Nature of the

Proceedings.

Part 364--Violations, Penalties and Collections

Substantial additions are made to this proposed part, primarily

incorporating the various violations and penalties included in chapter

149 of Title 49, added by the ICCTA. Comments are particularly invited

on this Part as it relates to the determinative factors in assessing

civil penalties.

In order to provide ample notice and opportunity for comment to the

public, the comment period on the April 29, 1996 NPRM was extended 45

days (61 FR ______, August 6, 1996), by which time comments on both the

NPRM and this SNPRM must be received.

Rulemaking Analyses and Notices

Executive Order 12866 (Federal Regulation) and DOT Regulatory Policies

and Procedures

The FHWA has determined that this action is not a significant

regulatory action within the meaning of Executive Order 12866 or

significant within the meaning of Department of Transportation

regulatory policies and procedures. The proposal contained in this

document would not result in an annual effect on the economy of $100

million or more, lead to a major increase in costs or prices, or have

significant adverse effects on the United States economy. This proposal

would amend provisions in the proposed Rules of Practice for Motor

Carrier Proceedings, Investigations, Disqualifications and Penalties,

published at 61 FR 18866, April 29, 1996, to make them applicable to

proceedings arising under the ICC Termination Act of 1995. Because the

FHWA acquired new statutory responsibilities under the Act, this action

will establish one set of procedures that apply to all FHWA proceedings

and thereby reduce duplicative regulation. Any economic consequences

flowing from the procedures in the proposal are primarily mandated by

statute. A regulatory evaluation is not required because of the

ministerial nature of this action.

Regulatory Flexibility Act

In accordance with the Regulatory Flexibility Act (5 U.S.C. 601-

612), the agency has evaluated the effects of this Supplemental NPRM on

small entities. No economic impacts of this rulemaking are foreseen as

the rule would impose no additional substantive burdens that are not

already required by the statutes and regulations to which these

procedural rules apply. Therefore, the FHWA certifies that this

proposed action would not have a significant economic impact on a

substantial number of small entities.

Executive Order 12612 (Federalism Assessment)

This action has been analyzed in accordance with the principles and

criteria contained in Executive Order 12612. The rules proposed herein

do not preempt State authority or jurisdiction beyond the preemption

established by Federal statute, nor do they establish any conflicts

with existing State roles in regulating carriers and brokers operating

in interstate commerce. It has, therefore, been determined that the

SNPRM does not have sufficient federalism implications to warrant the

preparation of a federalism assessment.

Executive Order 12372 (Intergovernmental Review)

Catalog of Federal Domestic Assistance Program Number 20.217, Motor

Carrier Safety. The regulations implementing Executive Order 12372

regarding intergovernmental consultation of Federal programs and

activities do not apply to this program.

Paperwork Reduction Act

This proposed rule does not require a collection of information for

purposes of the Paperwork Reduction Act of 1980. (44 U.S.C. 3501 et

seq.)

National Environment Policy Act

The agency has analyzed this action for purposes of the National

Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and has

determined that the proposed rules would not have any effect on the

quality of the environment.

Regulation Identification Number

A regulation identification number (RIN) is assigned to each

regulatory action listed in the Unified Agenda of Federal Regulations.

The Regulatory Information Service Center publishes the Unified Agenda

in April and October of each year. The RIN contained in the heading of

this document can be used to cross reference this action with the

Unified Agenda.

List of Subjects in 49 CFR 361, 362, 363, and 364

Administrative procedures, Commercial motor vehicle safety,

Highways and roads, Highway safety, Motor carriers.

Issued on: October 8, 1996.

Rodney E. Slater,

Federal Highway Administrator.

In consideration of the foregoing, the FHWA proposes to amend the

notice of

[[Page 54603]]

proposed rulemaking, 61 FR 18866, April 29, 1996, in the manner set

forth below:

PART 361--ADMINISTRATIVE ENFORCEMENT

1. The authority citation for Part 361 is revised to read as

follows:

Authority: 49 U.S.C. 104, 307, Chapters 5, 51, 59, 131-141, 145-

149, 311, 313, and 315.

2. In proposed Section 361.101, the introductory text is

republished and the section is amended by revising paragraphs (a) and

(c) to read as follows:

Sec. 361.101 Purpose

This part:

(a) Restates the authority of the Department of Transportation

(DOT) to regulate and investigate persons, property, equipment, and

records relating to commercial motor vehicle transportation, intermodal

safe container transportation, the highway transportation of hazardous

materials, and carriers and brokers performing, or arranging,

transportation subject to the jurisdiction of the Secretary;

(b) * * *

(c) Identifies the DOT officials authorized to enforce motor

carrier, broker, freight forwarder, water carrier, and hazardous

materials regulations.

3. Section 361.102 is amended by revising the first sentence of

paragraph (a) and adding a new second sentence and by revisng paragraph

(b) to read as follows:

Sec. 361.102 Authority and delegation.

(a) The authority of the Secretary of Transportation to regulate

and investigate commercial motor vehicle safety, including motor

carriers, commercial motor vehicles and drivers, and the highway

transportation of hazardous materials, is codified in 49 U.S.C.

Chapters 5, 51, 311, 313, and 315, and 42 U.S.C. 4917. The authority of

the Secretary to regulate and investigate motor carriers, brokers,

freight forwarders, and water carriers is codified in 49 U.S.C.

Chapters 131-141 and 145-149. * * *.

(b) The authority of the Secretary listed in paragraph (a) of this

section has been delegated to the Federal Highway Administrator (49

U.S.C. 104(c); 49 CFR 1.48), and is codified in 49 CFR part 325 (Noise

Control), the Federal Motor Carrier Safety Regulations (FMCSRs) (49 CFR

Parts 350-399), relevant portions of the Hazardous Materials

Regulations (HMRs) (primarily 49 CFR Parts 171-173, 177-178, and 180),

and the Commercial Regulations (CRs) (49 CFR Parts 370-379). The

Federal Highway Administrator has delegated the authority to enforce

the FMCSRs, the HMRs, and the CRs to the Associate Administrator for

Motor Carriers.

* * * * *

4. In Sec. 361.103, the introductory text of the section and of

paragraph (a)(2) is republished and paragraphs (a) introductory text,

(a)(1), (a)(2)(i), and (a)(2)(ii) are revised to read as follows:

Sec. 361.103 Inspection and investigation.

The FHWA may begin an investigation on its own initiative or on a

complaint.

(a) Upon a display of official DOT credentials, special agents may

enter without delay at reasonable times any place of business, lands,

buildings, property, equipment, or commercial motor vehicle of a person

subject to the provisions of 49 U.S.C. Chapters 5, 51, 59, 131-141,

145-149, and 42 U.S.C. 4917. Special agents may take the following

actions:

(1) Inspect the equipment, land, buildings, and property of a motor

carrier, broker, freight forwarder, water carrier, or other person on

the premises of the motor carrier, or the equipment of the carrier at

any other location, and inspect any commercial motor vehicle of the

motor carrier whether or not in operation; and

(2) Inspect and copy any record of--

(i) A carrier, broker, lessor, association, or other person subject

to the provisions of 49 U.S.C. Chapters 5, 51, 59, 131-141, 145-149,

311, 313, and 315, and 42 U.S.C. 4917; and

(ii) A person controlling, controlled by, or under common control

with a carrier or broker if the agent considers inspection relevant to

that person's relation to, or transaction with, that carrier.

* * * * *

5. Section 361.104 is amended by revising the introductory

paragraph and by adding a definition for ``Commercial Regulations'' in

alphabetical order, to read as follows:

Sec. 361.104 Definitions.

Words or phrases defined in 49 U.S.C. 13102 and in 49 CFR 383.5 and

390.5 of this subchapter apply in parts 361-364. In addition--

* * * * *

Commercial Regulations (CRs) 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. Code

(49 U.S.C. 13101 through 14913). The regulations include those issued

by the Federal Highway Administration or its predecessor under

authority provided in 49 U.S.C. 13301 or a predecessor statute.

* * * * *

6. Section 361.105 is amended by revising paragraph (d)(3) to read

as follows:

Sec. 361.105 Employer obligations.

* * * * *

(d) * * *

(3) Any equipment, land, buildings, or property used in the

transportation of persons or property or to ensure compliance with the

Federal Motor Carrier Safety Regulations, the Hazardous Materials

Regulations, and the Commercial Regulations.

* * * * *

7. Section 361.109 is amended by adding paragraph (g) to read as

follows:

Sec. 361.109 Depositions and production of records.

* * * * *

(g) A party to a proceeding pending under Part B of Subtitle IV,

Title 49, U.S. Code, may take the testimony of a witness by deposition

and may require the witness to produce records at any time after a

proceeding is at issue on petition and waiver. If a witness fails to be

deposed or to produce records the Associate Administrator may subpoena

the witness to take a deposition, produce the records, or both.

PART 363--ENFORCEMENT PROCEEDINGS

8. The authority citation for Part 363 is added as follows:

Authority: 49 U.S.C. Chapters 5, 51, 133, 147, 149, 311, 313,

and 315.

9. In Sec. 363.101 the first sentence of the introductory paragraph

is revised to read as follows:

Sec. 363.101 Nature of Proceeding.

Civil penalty proceedings are proceedings pursuant to 5 U.S.C. 554

in which the agency makes a monetary claim or seeks an order against

the respondent, based on violation of the FMCSRs, HMRs, or CRs. * * *.

* * * * *

PART 364--VIOLATIONS, PENALTIES, AND COLLECTIONS

10. The authority citation for Part 364 is revised to read as

follows:

Authority: 49 U.S.C. Chapters 5, 51, 133, 149, 311, 313, and

315.

11. Section 364.101 is revised to read as follows:

Sec. 364.101 Purpose.

The purposes of this part are to define the various types of

violations of the

[[Page 54604]]

Federal Motor Carrier Safety Regulations (FMCSRs), the Hazardous

Materials Regulations (HMRs), the Commercial Regulations (CRs), and

orders authorized to be issued thereunder; to describe the range of

penalties that may be imposed for such violations and how those

penalties are assessed; and to identify the means that may be employed

to collect those penalties once it has been finally decided by the

agency that they are due.

12. Section 364.102 is amended by revising paragraphs (a), (b), and

(d) to read as follows:

Sec. 364.102 Policy.

(a) Penalties are assessed administratively by the agency for

violations of the FMCSRs, HMRs, CRs, and administrative orders at

levels sufficient to bring about satisfactory compliance. Criminal

penalties are also authorized to be sought in U.S. District Court under

certain circumstances. The civil and criminal penalties authorized for

violations of the ERs are not exclusive remedies and may be pursued

along with a civil action for injunctive relief that is authorized by

49 U.S.C. 14702.

(b) The amounts of civil penalties that can be assessed for

regulatory violations subject to the proceedings in this subchapter are

established in the statutes granting enforcement powers. 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 addition to

those factors, a civil penalty assessed under 49 U.S.C. 14901 (a) and

(d) concerning the transportation of household goods is also based on

the degree of harm caused to a shipper and whether the shipper has been

adequately compensated before institution of the civil penalty

proceeding. In adjudicating the claims and orders under the

administrative procedures in this subchapter, additional information

may be developed regarding these factors that may affect the final

amount of the claim.

(c) * * *

(d) Criminal penalties for violating the FMCSRs, HMRs, and

administrative orders may be sought against a motor carrier, its

officers or agents, a driver, or other persons when it can be

established that violations were deliberate or resulted from a willful

disregard for the regulations. Criminal penalties may be sought against

an employee only when a causative link can be established between a

knowing and willful violation and an accident or hazardous materials

incident or the risk thereof. Criminal penalties for violating the ERs

may be sought against a person when it can be established that the

person acted with the criminal intent specified in the statute

governing the violation.

* * * * *

13. Section 364.201 is amended by revising the first sentence of

paragraph (a)(4)(i) and by adding paragraph (f) to read as follows:

Sec. 364.201 Types of violations and maximum monetary penalties.

(a) * * *

(4) * * *

(i) Owner operators. For purposes of Sec. 364.201(a) which applies

to violations of the FMCSRs, an owner operator while in the course of

personally operating a commercial motor vehicle is considered an

employee. * * *

* * * * *

(f) Violations of the Commercial Regulations (CRs). Penalties for

violations of the CRs are specified in 49 U.S.C. Chapter 149. These

penalties relate to transportation subject to the Secretary's

jurisdiction under 49 U.S.C. Chapter 135. Unless otherwise noted, a

separate violation occurs for each day the violation continues.

(1) A person who fails to make a report, to specifically,

completely, and truthfully answer a question, or to make, prepare, or

preserve a record in the form and manner prescribed is liable for a

minimum penalty of $500 per violation.

(2) A person who operates as a carrier or broker for the

transportation of property in violation of the registration

requirements of 49 U.S.C. 13901 is liable for a minimum penalty of $500

per violation.

(3) A person who operates as a motor carrier of passengers in

violation of the registration requirements of 49 U.S.C. 13901 is liable

for a minimum penalty of $2,000 per violation.

(4) A person who operates as a foreign motor carrier or foreign

motor private carrier in violation of the provisions of 49 U.S.C.

13902(c) is liable for a minimum penalty of $500 per violation.

(5) A person who operates as a motor carrier or broker for the

transportation of hazardous wastes in violation of the registration

provisions 49 U.S.C. 13901 is liable for a maximum penalty of $20,000

per violation.

(6) A motor carrier or freight forwarder of household goods, or

their receiver or trustee, that does not comply with any regulation

relating to the protection of individual shippers is liable for a

minimum penalty of $1,000 per violation.

(7) A person

(i) That falsifies, or authorizes an agent or other person to

falsify, documents used in the transportation of household goods by

motor carrier or freight forwarder to evidence the weight of a shipment

or

(ii) That charges for services which are not performed or are not

reasonably necessary in the safe and adequate movement of the shipment

is liable for a minimum penalty of $2,000 for the first violation and

$5,000 for each subsequent violation.

(8) A person who knowingly accepts or receives from a carrier a

rebate or offset against the rate specified in a tariff required under

49 U.S.C. 13702 for the transportation of property delivered to the

carrier commits a violation for which the penalty is equal to 3 times

the amount accepted as a rebate or offset and 3 times the value of

other consideration accepted or received as a rebate or offset for the

6-year period before the action is begun.

(9) A person that offers, gives, solicits, or receives

transportation of property by a carrier at a different rate than the

rate in effect under 49 U.S.C. 13702 is liable for a maximum penalty of

$100,000 per violation. When acting in the scope of his/her employment,

the acts or omissions of a person acting for or employed by a carrier

or shipper are considered to be the acts and omissions of that carrier

or shipper, as well as that person.

(10) Any person that offers, gives, solicits, or receives a rebate

or concession related to motor carrier transportation subject to

jurisdiction under subchapter I of 49 U.S.C. Chapter 135, or who

assists or permits another person to get that transportation at less

than the rate in effect under 49 U.S.C. 13702, commits a violation for

which the penalty is $200 for the first violation and $250 for each

subsequent violation.

(11) A freight forwarder, its officer, agent, or employee, that

assists or willingly permits a person to get service under 49 U.S.C.

13531 at less than the rate in effect under 49 U.S.C. 13702 commits a

violation for which the penalty is up to $500 for the first violation

and up to $2,000 for each subsequent violation.

(12) A person that gets or attempts to get service from a freight

forwarder under 49 U.S.C. 13531 at less than the rate in effect under

49 U.S.C. 13702 commits a violation for which the penalty is up to $500

for the first

[[Page 54605]]

violation and up to $2,000 for each subsequent violation.

(13) A person who knowingly authorizes, consents to, or permits a

violation of 49 U.S.C. 14103 relating to loading and unloading motor

vehicles or who knowingly violates subsection (a) of 49 U.S.C. 14103 is

liable for a penalty of not more than $10,000 per violation.

(14) A person, or an officer, employee, or agent of that person,

who tries to evade regulation under Part B of Subtitle IV, Title 49,

U.S. Code, for carriers or brokers is liable for a penalty of $200 for

the first violation and at least $250 for a subsequent violation.

(15) A person required to make a report to the Secretary, answer a

question, or make, prepare, or preserve a record under Part B of

Subtitle IV, Title 49, U.S. CODE, or an officer, agent, or employee of

that person, commits a violation if it does not make the report, does

not completely and truthfully answer the question within 30 days from

the date the Secretary requires the answer, does not make or preserve

the record in the form and manner prescribed, falsifies, destroys, or

changes the report or record, files a false report or record, makes a

false or incomplete entry in the record about a business related fact,

or prepares or preserves a record in violation of a regulation or order

of the Secretary. Maximum penalty: $5,000 per violation.

(16) A motor carrier, water carrier, freight forwarder, or broker,

or their officer, receiver, trustee, lessee, employee, or other person

authorized to receive information from them, commits a violation if

they disclose information identified in 49 U.S.C. 14908 without the

permission of the shipper or consignee. Maximum penalty: $2,000.

(17) A person who violates a provision of Part B, Subtitle IV,

Title 49, U.S. Code, or a regulation or order under Part B, or who

violates a condition of registration related to transportation that is

subject to jurisdiction under subchapter I or III or chapter 135, or

who violates a condition of registration of a foreign motor carrier or

foreign motor private carrier under Sec. 13902, is liable for a penalty

of $500 for each violation if another penalty is not provided in 49

U.S.C. Chapter 149.

(18) A violation of Part B committed by a director, officer,

receiver, trustee, lessee, agent, or employee of a carrier that is a

corporation is also a violation by the corporation to which the

penalties of Chapter 149 apply. Acts and omissions of individuals

acting in the scope of their employment with a carrier are considered

to be the actions and omissions of the carrier as well as the

individual.

(19) In a proceeding begun under 49 U.S.C. 14902 or 14903, the rate

that a carrier publishes, files, or participates in under Sec. 13702 is

conclusive proof against the carrier, its officers, and agents that it

is the legal rate for the transportation or service. Departing, or

offering to depart, from that published or filed rate is a violation of

49 U.S.C. 14902 and 14903.

14. Section 364.202 is amended by revising the sixth sentence of

paragraph (a), by revising paragraphs (b)(1), (b)(2), (b)(4), and

(b)(5), and by redesignating paragraph (c) as paragraph (d) and adding

a new paragraph (c), to read as follows:

Sec. 364.202 Civil penalty assessment factors.

(a) * * * Similarly, when the circumstances in which violations

occur are so obvious that any responsible person could easily correct

them, the continuation of such violations is an aggravating factor to

be considered in assessing the level of civil penalty.

* * * * *

(b) * * *

(1) Degree of culpability. This factor requires an evaluation of

blameworthiness on the part of the violator. It will range from the low

end, where a person may have had various knowledge of violations but

little actual involvement, to the high end, where the person had actual

knowledge and disregarded or even promoted noncompliance.

(2) History of prior offenses. This factor reflects a person's

commitment to compliance with both economic and safety regulations.

Persistent noncompliance with safety regulations reflects a disregard

for safety which, in turn, increases the prospect for imminently

hazardous conditions leading to accidents. Timely correction of

violation patterns should prevent imminent hazards from developing and

reduce the likelihood of accidents. Similarly, repeated violations of

the economic regulations reflect indifference to the adverse financial

impact that noncompliance has on the public and other entities in the

transportation industry.

(3) * * *

(4) Effect on ability to continue to do business. Insofar as this

factor is distinguishable from paragraph (b)(3) of this section, it

relates to the timeliness of payment and abatement of violations.

Evidence that immediate payment of even a mitigated civil penalty will

effectively terminate a person's business will be considered in

determining whether to defer payment or to allow installment payments

of the civil penalty assessed.

(5) Other matters as justice and public safety may require. Matters

other than those specifically included in the factors listed in this

section may also be either aggravating or mitigating in the interest of

justice or public safety. These may include such factors as cooperation

or lack thereof; general attitude toward compliance; institution or

revision of a safety program; hiring or assignment of personnel with

specifically defined compliance and safety responsibilities;

comprehensiveness of corrective actions; and effectiveness and speed of

compliance.

(c) Additional violator factors applying to household goods

shipments. In assessing a civil penalty under 49 U.S.C. 14901 (a) or

(d) concerning the transportation of household goods, the factors

listed in paragraph (b) of this section are considered along with the

following factors:

(1) Degree of harm to shipper. A violation of regulations governing

the transportation of household goods will be evaluated to determine

its effect on shippers. The level of penalty assessed will likely be

higher if the violation resulted in direct harm to a shipper. It will

range from the low end, where the violation did not harm a shipper, to

the high end where the violation caused harm to multiple shippers.

(2) Whether the shipper has been adequately compensated before

institution of the civil penalty proceeding. This factor enables a

carrier or broker to mitigate the penalty by fairly compensating a

shipper for harm caused by a violation before enforcement action is

instituted. A carrier or broker that, on its own initiative, accepts

responsibility for damage caused by its violations demonstrates a

commitment to comply with the economic regulations governing household

goods transportation. Consequently, the civil penalty assessed for the

violations will likely be lower if the carrier or broker adequately

compensates the shipper before the civil penalty proceeding is begun.

(d) * * *

15. Section 364.301 is amended by redesignating paragraphs (d) and

(e) as paragraphs (h) and (i), respectively, and by adding new

paragraphs (d), (e), (f), and (g), to read as follows:

Sec. 364.301 Criminal Penalties.

* * * * *

(d) Any person who violates 49 U.S.C. 14903(b) shall be fined under

title 18 of the United States Code, imprisoned not more than 2 years,

or both.

[[Page 54606]]

(e) A person who violates 49 U.S.C.14905 shall be fined under title

18 of the United States Code, imprisoned not more than 2 years, or

both.

(f) A person who violates 49 U.S.C. 14909 shall be fined under

title 18 of the United States Code, imprisoned not more than 1 year, or

both.

(g) Any person who violates 49 U.S.C. 14912 shall be fined under

title 18 of the United States Code, imprisoned not more than 2 years,

or both.

(h) * * *

(i) * * *

16. Section 364.302 is amended by revising the first sentence in

paragraph (a) to read as follows:

Sec. 364.302 Injunctions.

(a) The Associate Administrator may file a civil action to enforce

or redress a violation of a commercial motor vehicle safety regulation,

an economic regulation, or an order of the FHWA under 49 U.S.C.

Chapters 5, 51, 131-141, 145-149, 311 (except Secs. 31138 and 31139),

and 315, in an appropriate District Court of the United States. * * *.

* * * * *

[FR Doc. 96-26671 Filed 10-18-96; 8:45 am]

BILLING CODE 4910-22-P