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| section_id ▼ | title_number | title_name | chapter | subchapter | part_number | part_name | subpart | subpart_name | section_number | section_heading | agency | authority | source_citation | amendment_citations | full_text |
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| 33:33:3.0.1.1.35.0.1.1 | 33 | Navigation and Navigable Waters | II | 386 | PART 386—CREDIT ASSISTANCE FOR WATER RESOURCES INFRASTRUCTURE PROJECTS | § 386.1 Purpose and scope. | USACE | The Water Infrastructure Finance and Innovation Act of 2014 (WIFIA) authorized a new Federal credit program for water resources infrastructure projects to be administered by the U.S. Army Corps of Engineers (Corps). Title 1, Division D of the Consolidated Appropriations Act, 2021, and Division J, Title III of the Infrastructure Investment and Jobs Act limits the program to safety projects to maintain, upgrade, and repair dams identified in the National Inventory of Dams with a primary owner type of State, local government, public utility or private. The purpose of this rule is to establish the process by which the Corps will administer such credit assistance, including the assessment of fees, and to set forth the policies and procedures that the Corps will use for receiving, evaluating, approving applications, and servicing and monitoring direct loans and loan guarantees. | |||||||
| 33:33:3.0.1.1.35.0.1.10 | 33 | Navigation and Navigable Waters | II | 386 | PART 386—CREDIT ASSISTANCE FOR WATER RESOURCES INFRASTRUCTURE PROJECTS | § 386.10 Threshold criteria. | USACE | (a) To be eligible to receive Federal credit assistance under this part, a project shall meet the following threshold criteria: (1) The project and prospective borrower shall be creditworthy. (2) A project shall have eligible project costs that are reasonably anticipated to equal or exceed $20 million. (3) A Federal credit instrument: (i) Shall be repayable, in whole or in part, from State or local taxes, user fees, or other dedicated revenue sources that also secure the senior project obligations of the project; (ii) Shall include a rate covenant, coverage requirement, or similar security feature supporting the project obligations; and (iii) May have a lien on revenues subject to any lien securing project obligations. (4) In the case of a project that is undertaken by an entity that is not a State or local government or an agency or instrumentality of a State or local government, or a Tribal government or consortium of Tribal governments, the project that the entity is undertaking shall be publicly sponsored. (5) The prospective borrower shall have developed an operations and maintenance plan that identifies adequate revenues to operate, maintain, and repair the project during its useful life. If the borrower is a State infrastructure financing authority, it shall have ensured and will ensure that its borrowers have a plan for the eligible projects they are undertaking that identifies adequate revenues to operate, maintain and repair such projects during the useful life of such projects. The requirement in this paragraph (a)(5) may be met through the development of a written plan or a financial model. (b) With respect to paragraph (a)(3) of this section, the Secretary may accept general obligation pledges or general corporate promissory pledges and will determine the acceptability of other pledges and forms of collateral as dedicated revenue sources on a case-by-case basis. The Secretary shall not accept a pledge of Federal funds, regardless of source, as security for the Federal credit instrument. (c)… | |||||||
| 33:33:3.0.1.1.35.0.1.11 | 33 | Navigation and Navigable Waters | II | 386 | PART 386—CREDIT ASSISTANCE FOR WATER RESOURCES INFRASTRUCTURE PROJECTS | § 386.11 Selection criteria. | USACE | The selection criteria in paragraphs (a) through (l) of this section will be used for evaluating and selecting among eligible projects to receive credit assistance: (a) The extent to which the project is nationally or regionally significant, with respect to the generation of economic and public benefits, such as— (1) The reduction of flood risk; (2) The improvement of water quality and quantity, including aquifer recharge; (3) The protection of drinking water, including source water protection; (4) The support of domestic and international commerce; and (5) The restoration of degraded aquatic ecosystem structures. (b) The extent to which the project financing plan includes public or private financing, in addition to WIFIA credit assistance. (c) The likelihood that WIFIA credit assistance would enable the project to proceed at an earlier date than the project would otherwise be able or likely to proceed. (d) The extent to which the project uses new or innovative approaches. (e) The amount of budget authority required to fund the WIFIA Federal credit instrument. (f) The extent to which the project— (1) Protects against an extreme weather event, such as a flood or hurricane; or (2) Helps maintain or protect the environment. (g) The extent to which a project serves regions with significant clean energy exploration development, or production areas. (h) The extent to which a project serves regions with significant water resource challenges, including the need to address— (1) Water quality concerns in areas of regional, national, or international significance; (2) Water quantity concerns related to groundwater, surface water, or other water sources; (3) Significant flood risk; (4) Water resource challenges identified in existing regional, State, or multistate agreements; or (5) Water resources with exceptional recreational value or ecological assistance. (i) The extent to which the project addresses identified municipal, State, or regional priorities. (j) The readiness of the project to proceed tow… | |||||||
| 33:33:3.0.1.1.35.0.1.12 | 33 | Navigation and Navigable Waters | II | 386 | PART 386—CREDIT ASSISTANCE FOR WATER RESOURCES INFRASTRUCTURE PROJECTS | § 386.12 Term sheets and approvals. | USACE | (a) The Corps, after review and evaluation of an application, and all other required documents submitted by a prospective borrower, may offer to such prospective borrower a written term sheet and/or a credit agreement, including detailed terms and conditions that must be met. (b) The issuance of a term sheet, upon execution by the Secretary, does not constitute a commitment by the Secretary to enter into the Loan Agreement or Loan Guarantee Agreement. Execution of the Loan Agreement or Loan Guarantee Agreement represents obligation by the Secretary. | |||||||
| 33:33:3.0.1.1.35.0.1.13 | 33 | Navigation and Navigable Waters | II | 386 | PART 386—CREDIT ASSISTANCE FOR WATER RESOURCES INFRASTRUCTURE PROJECTS | § 386.13 Closing on the Loan Agreement or Loan Guarantee Agreement. | USACE | (a) Only a Loan Agreement or Loan Guarantee Agreement executed by the Secretary can obligate the Corps to issue a loan or loan guarantee. The Corps is not bound by oral representations. Each Loan Agreement or Loan Guarantee Agreement shall contain the following requirements and conditions, and shall not be executed until the Corps determines that the following requirements and conditions are satisfied: (1) Except if explicitly authorized by an Act of Congress, no Federal funds, proceeds of Federal loans, or proceeds of loans guaranteed by the Federal Government may be used by a borrower to pay for credit subsidy costs, administrative fees, or other fees charged by or paid to the Corps relating to the WIFIA program; however, proceeds of the Federal credit instrument may be used to pay for such administrative or other fees but may not be used to pay an “Optional Credit Subsidy Fee”. (2) At closing, the Corps will ensure that the following requirements and conditions are or will be satisfied pursuant to the credit agreement or otherwise: (i) The project qualifies as an eligible project under WIFIA; (ii) The face value of the credit agreement is limited to no more than 49 percent of reasonably anticipated eligible project costs, or if credit assistance in excess of 49 percent has been approved, no more than the percentage of eligible project costs agreed upon, not to exceed 80 percent of total project costs; (iii) If the credit instrument is a loan guarantee, the loan guarantee does not finance, either directly or indirectly, tax exempt debt obligations, consistent with the requirements of section 149(b) of the Internal Revenue Code; (iv) The amount of the credit agreement, when combined with other funds, will be sufficient to carry out the project, including adequate contingency funds; (v) The borrower is pledging collateral and/or providing a general obligation pledge, determined by the Corps to be necessary to secure the repayment of the credit agreement; (vi) The credit agreement and related documents inc… | |||||||
| 33:33:3.0.1.1.35.0.1.14 | 33 | Navigation and Navigable Waters | II | 386 | PART 386—CREDIT ASSISTANCE FOR WATER RESOURCES INFRASTRUCTURE PROJECTS | § 386.14 Reporting requirements. | USACE | The borrower will provide annual audited financial statements, a public benefits report, and other reports to the Corps in the form and manner agreed upon in the credit agreement. These other reports may include, but are not limited to, an updated financial model and construction reports. The Corps may conduct periodic financial and compliance reviews or audits of the borrower and its project, as determined necessary by the Corps. | |||||||
| 33:33:3.0.1.1.35.0.1.15 | 33 | Navigation and Navigable Waters | II | 386 | PART 386—CREDIT ASSISTANCE FOR WATER RESOURCES INFRASTRUCTURE PROJECTS | § 386.15 Fees. | USACE | (a) Application fee. The Corps will require a non-refundable application fee for each project applying for credit assistance under the WIFIA program. The application fee will be due upon submission of the application. For public applicants with projects serving small communities or economically disadvantaged communities, the total application fee will be $0. For all other applications, the total application fee will be $25,000. The total application fee will be credited to the transaction processing fee required under paragraph (b) of this section. (b) Transaction processing fee. Except as otherwise provided in paragraph (f) of this section, the Corps will require an additional transaction processing fee for projects selected to receive WIFIA assistance upon closing, or if the project does not proceed to closing, e.g., if the application is withdrawn or denied. The proceeds of any such fees will be used to pay the remaining portion of the Corps' cost of providing credit assistance and the costs of conducting engineering reviews and retaining expert firms, including financial and legal services, to assist in the underwriting of the Federal Credit instrument. (c) Servicing fee. The Corps will require borrowers to pay a servicing fee for each credit instrument approved for funding. Separate fees may apply for each type of credit instrument ( e.g., a secured loan with a single disbursement, or a secured loan with multiple disbursements), depending upon the costs of servicing the credit instrument as determined by the Secretary. Such fees will be set at a level sufficient to enable the Corps to recover all or a portion of the costs to the Federal Government of servicing WIFIA credit instruments. (d) Optional credit subsidy fee. If, in any given year, there is insufficient budget authority to fund the credit instrument for a qualified project that has been selected to receive assistance under WIFIA, the Corps and the approved applicant may agree upon a supplemental fee to be paid by or on behalf of the ap… | |||||||
| 33:33:3.0.1.1.35.0.1.2 | 33 | Navigation and Navigable Waters | II | 386 | PART 386—CREDIT ASSISTANCE FOR WATER RESOURCES INFRASTRUCTURE PROJECTS | § 386.2 Definitions. | USACE | The following definitions apply to this part: (a) Application means the form and attachments submitted by prospective borrowers that have been selected to apply for credit assistance after the review of letters of interest. (b) Borrower means any entity that enters into a direct loan or Loan Guarantee Agreement with the Corps that is primarily liable for payment of the principal or interest on a Federal credit instrument. “Borrower” is synonymous with “obligor.” “Obligor” is used in place of borrower in this part whenever “obligor” appears in a corresponding section of WIFIA. (c) Clean energy means systems, processes, and best practices for producing, converting, storing, transmitting, distributing, and consuming energy that avoid, reduce, or sequester the amount of greenhouse gas (GHG) emitted to, or concentrated in, the atmosphere. (d) Community means a collection of people in a geographic area having one or more characteristic in common. The geographic area may be contained within or cross political subdivisions of States. (e) Credit agreement means a contractual agreement (or agreements) between the Corps and a borrower (and the lender, if applicable) establishing the terms and conditions, rules, and requirements of a secured loan or loan guarantee. (f) Credit assistance means a secured loan or loan guarantee under 33 U.S.C. 3908. (g) Credit subsidy shall have the same meaning as “cost” under section 502(5) of the Federal Credit Reform Act of 1990 (2 U.S.C. 661a(5)), which is the net present value at the time the Loan Agreement or Loan Guarantee Agreement is executed. The credit subsidy cost for a given project is the net present value, at the time the Loan Agreement or Loan Guarantee Agreement is executed of the following estimated cash flows, discounted to the point of disbursement: (1) Payments by the Government to cover defaults and delinquencies, interest subsidies, or other payments; less (2) Payments to the Government including origination and other fees, penalties, and recoverie… | |||||||
| 33:33:3.0.1.1.35.0.1.3 | 33 | Navigation and Navigable Waters | II | 386 | PART 386—CREDIT ASSISTANCE FOR WATER RESOURCES INFRASTRUCTURE PROJECTS | § 386.3 Limitations on assistance. | USACE | (a) The total amount of credit assistance offered to any project under this part shall not exceed 49% of the reasonably anticipated eligible project costs, or, if the secured loan does not receive an investment grade rating, the total amount of credit assistance shall not exceed the amount of the senior project obligations of the project (33 U.S.C. 3908(b)(2)(B)). (b) Notwithstanding paragraph (a) of this section, the Secretary may offer credit assistance in excess of 49% of the reasonably anticipated eligible project costs as long as such excess assistance combined for all projects does not require greater than 25% of the subsidy amount made available for the fiscal year, per 33 U.S.C. 3912(d). (1) Use of the authority to offer credit assistance in excess of 49% of the anticipated eligible project costs shall be considered on a case by case basis. (2) In the event this authority is used, all other criteria and requirements described in this part must be met and adhered to. (c) For each project receiving credit assistance, total Federal assistance may not exceed 80% of the total project costs, except for certain rural water projects authorized to be carried out by the Secretary of the Interior that includes among its beneficiaries a federally recognized Indian Tribe and for which the authorized Federal share of the total project costs is greater than 80%, and in accordance with 85 FR 39189 ( see division D of the Further Consolidated Appropriations Act, 2020 (Pub. L. 116-94)). (d) Proceeds from the credit assistance shall not be utilized to provide cash contributions to the Corps for project related costs, except for such fees as allowed by 33 U.S.C. 3908(b)(7), limited to the application, transaction processing, and servicing fees as described in § 386.15. (e) Costs incurred, and the value of any integral in-kind contributions made, before receipt of credit assistance may be considered in calculating eligible project costs only upon approval of the Secretary. Such costs and integral in-kind contributions … | |||||||
| 33:33:3.0.1.1.35.0.1.4 | 33 | Navigation and Navigable Waters | II | 386 | PART 386—CREDIT ASSISTANCE FOR WATER RESOURCES INFRASTRUCTURE PROJECTS | § 386.4 Application process. | USACE | (a) Each fiscal year for which budget authority is made available by Congress, the Corps shall publish a solicitation to announce the availability of credit assistance. It will specify how to electronically submit a preliminary application, the estimated amount of funding available to support Federal credit instruments, contact name(s), and other details for submissions and funding approvals. (b) Prospective borrowers seeking credit assistance under this part will be required to follow an application process requiring submission of the preliminary application as designated in the solicitation to announce the availability of credit assistance. In addition, the extent to which the project financing plan includes any other form of Federal assistance (including grants), in addition to WIFIA credit assistance, will be required to be provided in the application. (c) Following approval of the term sheet, and/or negotiation of satisfactory terms and conditions of the Federal credit instrument, the prospective borrower will proceed to closing, as described in § 386.13. | |||||||
| 33:33:3.0.1.1.35.0.1.5 | 33 | Navigation and Navigable Waters | II | 386 | PART 386—CREDIT ASSISTANCE FOR WATER RESOURCES INFRASTRUCTURE PROJECTS | § 386.5 Federal requirements. | USACE | All projects receiving credit assistance under this part shall comply, where applicable, with: (a) Environmental authorities. (1) The National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq.; (2) Archeological and Historic Preservation Act, 16 U.S.C. 469-469c; (3) Clean Air Act, 42 U.S.C. 7401 et seq.; (4) Clean Water Act, 33 U.S.C. 1251 et seq.; (5) Coastal Barrier Resources Act, 16 U.S.C. 3501 et seq.; (6) Coastal Zone Management Act, 16 U.S.C. 1451 et seq.; (7) Endangered Species Act, 16 U.S.C. 1531 et seq.; (8) Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, Executive Order 12898, 3 CFR, 1994 Comp., p. 859; (9) Floodplain Management, Executive Order 11988, as amended by Executive Order 13690; (10) Protection of Wetlands, Executive Order 11990, 3 CFR, 1977 Comp., p. 121, as amended by Executive Order 12608, 3 CFR, 1987 Comp., p. 245; (11) Farmland Protection Policy Act, 7 U.S.C. 4201 et seq.; (12) Fish and Wildlife Coordination Act, 16 U.S.C. 661-666c, as amended; (13) Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq.; (14) National Historic Preservation Act, 54 U.S.C. 300101 et seq..; (15) Safe Drinking Water Act, 42 U.S.C. 300f et seq.; and (16) Wild and Scenic Rivers Act, 16 U.S.C. 1271 et seq. (b) Economic and miscellaneous authorities. (1) Debarment and Suspension, Executive Order 12549, 3 CFR, 1986 Comp., p. 189; (2) New Restrictions on Lobbying, 31 U.S.C. 1352; (3) Prohibitions relating to violations of the Clean Water Act or Clean Air Act with respect to Federal contracts, grants, or loans under 42 U.S.C. 7606 and 33 U.S.C. 1368, and Executive Order 11738, 3 CFR, 1971-1975 Comp., p. 799; and (4) The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. 4601 et seq. (c) Civil rights, nondiscrimination, equal employment opportunity authorities. (1) Age Discrimination Act, 42 U.S.C.6101 et seq.; (2) Equal Employment Opportunity, Execut… | |||||||
| 33:33:3.0.1.1.35.0.1.6 | 33 | Navigation and Navigable Waters | II | 386 | PART 386—CREDIT ASSISTANCE FOR WATER RESOURCES INFRASTRUCTURE PROJECTS | § 386.6 Floodplain management. | USACE | (a) In making WIFIA funding decisions under this part, the Corps will follow the requirements of Executive Order (E.O.) 11988, as amended by E.O. 13690, and Engineering Regulation (ER) 1165-2-26, “Implementation of E.O. 11988 on Floodplain Management”. Applicants shall submit information regarding the project that is sufficient for the Corps to determine that the project is in compliance with the requirements of E.O. 11988 and ER 1165-2-26. (b) Projects funded under this part will meet or exceed applicable State, local, Tribal, and territorial standards for flood risk and floodplain management, as well as E.O. 11988. (c) All projects under this part are considered Federal actions under E.O. 11988 and thus, project applicants shall determine whether the proposed project will occur in the floodplain. If the project is located within the floodplain, the applicant must determine whether the action is critical or not and what floodplain standard to follow. The Corps will implement the Federal Flood Risk Management Standard (FFRMS), where appropriate, which is a flood standard established by E.O. 13690, that aims to build a more resilient future through the encouragement of consideration of current and future risk when Federal investments are used to build or rebuild near floodplains. The Corps will ensure unwise uses are avoided, where possible, including the increase or transfer of flood risks, resulting in adverse impacts to human health, safety, welfare, property, natural resources, or functions of floodplains. Further guidance on implementation of E.O. 11988 can be found in the Corps ER 1165-2-26 (30 March 1984). Further information on FFRMS can be found at https://www.iwr.usace.army.mil/Missions/Flood-Risk-Management/Flood-Risk-Management-Program/About-the-Program/Policy-and-Guidance/Federal-Flood-Risk-Management-Standard/. | |||||||
| 33:33:3.0.1.1.35.0.1.7 | 33 | Navigation and Navigable Waters | II | 386 | PART 386—CREDIT ASSISTANCE FOR WATER RESOURCES INFRASTRUCTURE PROJECTS | § 386.7 American iron and steel. | USACE | (a) All projects receiving credit assistance under this part for construction, alteration, maintenance, or repair of a project shall use only iron and steel products produced in the United States, unless waiver of the requirement in this paragraph (a) is granted by an official authorized to do so. (b) Consistent with 33 U.S.C. 3914(b), “iron and steel products” means the following products made primarily of iron or steel: lined or unlined pipes and fittings, manhole covers and other municipal castings, hydrants, tanks, flanges, pipe clamps and restraints, valves, structural steel, reinforced precast concrete and construction materials. Equipment employed in construction that does not become part of the project is not an “iron and steel product” for the purpose of this section. | |||||||
| 33:33:3.0.1.1.35.0.1.8 | 33 | Navigation and Navigable Waters | II | 386 | PART 386—CREDIT ASSISTANCE FOR WATER RESOURCES INFRASTRUCTURE PROJECTS | § 386.8 Labor standards. | USACE | All laborers and mechanics employed by contractors or subcontractors on projects receiving credit assistance under this part shall be paid wages at rates not less than those prevailing for the same type of work on similar construction in the immediate locality, as determined by the Secretary of Labor. | |||||||
| 33:33:3.0.1.1.35.0.1.9 | 33 | Navigation and Navigable Waters | II | 386 | PART 386—CREDIT ASSISTANCE FOR WATER RESOURCES INFRASTRUCTURE PROJECTS | § 386.9 Investment-grade ratings. | USACE | (a) At the time a prospective borrower submits an application, the Corps shall require a preliminary rating opinion letter. The letter is a conditional credit assessment from a NRSRO that provides a preliminary indication of the project's overall creditworthiness and that specifically addresses the potential of the project's senior debt obligations, which may include, or be limited to, the Federal credit instrument to achieve an investment-grade rating, and address the rating of obligations similar to those proposed for the Federal credit instrument when the Federal credit instrument is not a senior debt obligation. The requirement of this paragraph (a) may be met, on a case-by-case basis, by accepting a recent credit rating of obligations that have a lien on the revenues pledged for repayment. This rating should be based on an unenhanced analysis of the underlying pledged source of repayment and not give any credit to any prospective loan guarantee provided by the U.S. Government. (b) Consistent with 33 U.S.C. 3907(a)(D)(ii), the full funding of a Federal credit instrument shall be contingent on: (1) The assignment of investment-grade ratings by NRSROs to all project obligations that have a lien on the pledged security senior to that of the Federal credit instrument on the pledged security; or (2)(i) In the event that the Federal credit instrument is: (A) A senior debt obligation; (B) Pari passu with the senior project obligations; or (C) A general obligation of the prospective borrower, to the Federal credit instrument. (ii) The applicant must provide at least one final rating opinion letter which provides a credit rating on the direct loan or the unenhanced Federal credit instrument. This rating should be based on an unenhanced analysis of the underlying pledged source of repayment and not give any credit to the loan or loan guarantee provided by the U.S. Government. (c) Neither the preliminary rating opinion letter nor the final ratings should reflect the effect of bond insurance, unless that insuranc… | |||||||
| 34:34:2.1.1.1.19.1.137.1 | 34 | Education | III | 386 | PART 386—REHABILITATION TRAINING: REHABILITATION LONG-TERM TRAINING | A | Subpart A—General | § 386.1 What is the Rehabilitation Long-Term Training program? | ED | (a) The Rehabilitation Long-Term Training program provides financial assistance for— (1) Projects that provide basic or advanced training leading to an academic degree in one of those fields of study identified in paragraph (b) of this section; (2) Projects that provide a specified series of courses or program of study leading to award of a certificate in one of those fields of study identified in paragraph (b) of this section; and (3) Projects that provide support for medical residents enrolled in residency training programs in the specialty of physical medicine and rehabilitation. (b) The Rehabilitation Long-Term Training program is designed to provide academic training that leads to an academic degree or academic certificate in areas of personnel shortages identified by the Secretary and published in a notice in the Federal Register. These areas may include— (1) Assisting and supporting individuals with disabilities pursuing self-employment, business ownership, and telecommuting; (2) Vocational rehabilitation counseling; (3) Rehabilitation technology, including training on its use, applications, and benefits; (4) Rehabilitation medicine; (5) Rehabilitation nursing; (6) Rehabilitation social work; (7) Rehabilitation psychiatry; (8) Rehabilitation psychology; (9) Rehabilitation dentistry; (10) Physical therapy; (11) Occupational therapy; (12) Speech pathology and audiology; (13) Physical education; (14) Therapeutic recreation; (15) Community rehabilitation program personnel; (16) Prosthetics and orthotics; (17) Rehabilitation of individuals who are blind or visually impaired, including rehabilitation teaching and orientation and mobility; (18) Rehabilitation of individuals who are deaf or hard of hearing; (19) Rehabilitation of individuals who are mentally ill; (20) Undergraduate education in the rehabilitation services; (21) Independent living; (22) Client assistance; (23) Administration of community rehabilitation programs; (24) Rehabilitation administration; (25) Vocational eval… | |||||
| 34:34:2.1.1.1.19.1.137.2 | 34 | Education | III | 386 | PART 386—REHABILITATION TRAINING: REHABILITATION LONG-TERM TRAINING | A | Subpart A—General | § 386.2 Who is eligible for an award? | ED | Those agencies and organizations eligible for assistance under this program are described in 34 CFR 385.2. | |||||
| 34:34:2.1.1.1.19.1.137.3 | 34 | Education | III | 386 | PART 386—REHABILITATION TRAINING: REHABILITATION LONG-TERM TRAINING | A | Subpart A—General | § 386.3 What regulations apply? | ED | The following regulations apply to the Rehabilitation Training: Rehabilitation Long-Term Training program: (a) The regulations in this part 386. (b) The regulations in 34 CFR part 385. | |||||
| 34:34:2.1.1.1.19.1.137.4 | 34 | Education | III | 386 | PART 386—REHABILITATION TRAINING: REHABILITATION LONG-TERM TRAINING | A | Subpart A—General | § 386.4 What definitions apply? | ED | The following definitions apply to this program: (a) Definitions in 34 CFR 385.4. (b) Other definitions. The following definitions also apply to this part: Academic year means a full-time course of study— (i) Taken for a period totaling at least nine months; or (ii) Taken for the equivalent of at least two semesters, two trimesters, or three quarters. Certificate means a recognized educational credential awarded by a grantee under this part that attests to the completion of a specified series of courses or program of study. Professional corporation or professional practice means— (i) A professional service corporation or practice formed by one or more individuals duly authorized to render the same professional service, for the purpose of rendering that service; and (ii) The corporation or practice and its members are subject to the same supervision by appropriate State regulatory agencies as individual practitioners. Related agency means— (i) An American Indian rehabilitation program; or (ii) Any of the following agencies that provide services to individuals with disabilities under an agreement or other arrangement with a designated State agency in the area of specialty for which training is provided: (A) A Federal, State, or local agency. (B) A nonprofit organization. (C) A professional corporation or professional practice group. Scholar means an individual who is enrolled in a certificate or degree granting course of study in one of the areas listed in § 386.1(b) and who receives scholarship assistance under this part. Scholarship means an award of financial assistance to a scholar for training and includes all disbursements or credits for student stipends, tuition and fees, books and supplies, and student travel in conjunction with training assignments. State vocational rehabilitation agency means the designated State agency as defined in 34 CFR 361.5(c)(13). | |||||
| 34:34:2.1.1.1.19.2.137.1 | 34 | Education | III | 386 | PART 386—REHABILITATION TRAINING: REHABILITATION LONG-TERM TRAINING | C | Subpart C—How Does the Secretary Make an Award? | § 386.20 What additional selection criteria are used under this program? | ED | In addition to the criteria in 34 CFR 385.31(c), the Secretary uses the following additional selection criteria to evaluate an application: (a) Relevance to State-Federal vocational rehabilitation service program. (1) The Secretary reviews each application for information that shows that the proposed project appropriately relates to the mission of the State-Federal vocational rehabilitation service program. (2) The Secretary looks for information that shows that the project can be expected either— (i) To increase the supply of trained personnel available to State and other public or nonprofit agencies involved in the rehabilitation of individuals with disabilities through degree or certificate granting programs; or (ii) To improve the skills and quality of professional personnel in the rehabilitation field in which the training is to be provided through the granting of a degree or certificate. (b) Nature and scope of curriculum. (1) The Secretary reviews each application for information that demonstrates the adequacy of the proposed curriculum. (2) The Secretary looks for information that shows— (i) The scope and nature of the coursework reflect content that can be expected to enable the achievement of the established project objectives; (ii) The curriculum and teaching methods provide for an integration of theory and practice relevant to the educational objectives of the program; (iii) For programs whose curricula require them, there is evidence of educationally focused practical and other field experiences in settings that ensure student involvement in the provision of vocational rehabilitation, supported employment, customized employment, pre-employment transition services, transition services, or independent living rehabilitation services to individuals with disabilities, especially individuals with significant disabilities; (iv) The coursework includes student exposure to vocational rehabilitation, supported employment, customized employment, employer engagement, and independent living rehabili… | |||||
| 34:34:2.1.1.1.19.2.137.2 | 34 | Education | III | 386 | PART 386—REHABILITATION TRAINING: REHABILITATION LONG-TERM TRAINING | C | Subpart C—How Does the Secretary Make an Award? | § 386.21 What are the application procedures for these programs? | ED | (a) Application. No grant shall be awarded or contract entered into under the Rehabilitation Long-Term Training program unless the applicant has submitted to the Secretary an application at such time, in such form, in accordance with such procedures identified by the Secretary and, and including such information as the Secretary may require, including— (1) A description of how the designated State unit or units will participate in the project to be funded under the grant or contract, including, as appropriate, participation on advisory committees, as practicum sites, in curriculum development, and in other ways so as to build closer relationships between the applicant and the designated State unit and to encourage students to pursue careers in public vocational rehabilitation programs; (2) The identification of potential employers that provide employment that meets the requirements in § 386.33(c); and (3) An assurance that data on the employment of graduates or trainees who participate in the project is accurate. (b) The Secretary gives the designated State agency an opportunity to review and comment on applications submitted from within the State that it serves. The procedures to be followed by the applicant and the State are in 34 CFR 75.155-75.159. | |||||
| 34:34:2.1.1.1.19.3.137.1 | 34 | Education | III | 386 | PART 386—REHABILITATION TRAINING: REHABILITATION LONG-TERM TRAINING | D | Subpart D—What Conditions Must Be Met After an Award? | § 386.30 What are the matching requirements? | ED | The grantee is required to contribute at least ten percent of the total cost of a project under this program. However, if the grantee can demonstrate that it has insufficient resources to contribute the entire match but that it can fulfill all other requirements for receiving an award, the Secretary may waive part of the non-Federal share of the cost of the project after negotiations with Department staff. | |||||
| 34:34:2.1.1.1.19.3.137.2 | 34 | Education | III | 386 | PART 386—REHABILITATION TRAINING: REHABILITATION LONG-TERM TRAINING | D | Subpart D—What Conditions Must Be Met After an Award? | § 386.31 What are the requirements for directing grant funds? | ED | (a) A grantee must use at least 65 percent of the total cost of a project under this program for scholarships as defined in § 386.4. (b) The Secretary may waive the requirement in (a) and award grants that use less than 65 percent of the total cost of the project for scholarships based upon the unique nature of the project, such as the establishment of a new training program or long-term training in an emerging field that does not award degrees or certificates. (c) Before providing a scholarship to a scholar, a grantee must make good faith efforts to determine that the scholar is not concurrently receiving more than one scholarship under this program for the same academic term. | |||||
| 34:34:2.1.1.1.19.3.137.3 | 34 | Education | III | 386 | PART 386—REHABILITATION TRAINING: REHABILITATION LONG-TERM TRAINING | D | Subpart D—What Conditions Must Be Met After an Award? | § 386.32 What are allowable costs? | ED | In addition to those allowable costs established in the Education Department General Administrative Regulations in 34 CFR 75.530 through 75.562, the following items are allowable under long-term training projects: (a) Student stipends. (b) Tuition and fees. (c) Books and supplies. (d) Student travel in conjunction with training assignments. | |||||
| 34:34:2.1.1.1.19.3.137.4 | 34 | Education | III | 386 | PART 386—REHABILITATION TRAINING: REHABILITATION LONG-TERM TRAINING | D | Subpart D—What Conditions Must Be Met After an Award? | § 386.33 What are the requirements for grantees in disbursing scholarships? | ED | Before disbursement of scholarship assistance to an individual, a grantee— (a)(1) Must obtain documentation that the individual is— (i) A U.S. citizen or national; or (ii) A permanent resident of the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, American Samoa, or the Commonwealth of the Northern Mariana Islands; (2) Must confirm from documentation issued to the individual by the U.S. Department of Homeland Security that he or she— (i) Is a lawful permanent resident of the United States; or (ii) Is in the United States for other than a temporary purpose with the intention of becoming a citizen or permanent resident; and (b) Must confirm that the applicant has expressed interest in a career in clinical practice, administration, supervision, teaching, or research in the vocational rehabilitation, supported employment, or independent living rehabilitation of individuals with disabilities, especially individuals with significant disabilities; (c) Must obtain documentation, as described in § 386.40(a)(7), that the individual expects to seek and maintain employment in a designated State agency or in a related agency as defined in § 386.4 where (1) The employment is in the field of study in which the training was received or (2) Where the job functions are directly relevant to the field of study in which the training was received. (d) Must ensure that the scholarship, when added to the amount of financial aid the scholar receives for the same academic year under title IV of the Higher Education Act, does not exceed the scholar's cost of attendance; (e) Must limit scholarship assistance to no more than four academic years, unless the grantee provides an extension consistent with the institution's accommodations under section 504 of the Act; and (f) Must obtain a Certification of Eligibility for Federal Assistance from each scholar as prescribed in 34 CFR 75.60, 75.61, and 75.62. | |||||
| 34:34:2.1.1.1.19.3.137.5 | 34 | Education | III | 386 | PART 386—REHABILITATION TRAINING: REHABILITATION LONG-TERM TRAINING | D | Subpart D—What Conditions Must Be Met After an Award? | § 386.34 What assurances must be provided by a grantee that intends to provide scholarships? | ED | A grantee under this part that intends to grant scholarships for any academic year must provide the following assurances before an award is made: (a) Requirement for agreement. No individual will be provided a scholarship without entering into a written agreement containing the terms and conditions required by this section. An individual will sign and date the agreement prior to the initial disbursement of scholarship funds to the individual for payment of the individual's expenses. An agreement must be executed between the grantee and scholar for each subsequent year that scholarship funds are disbursed and must contain the terms and conditions required by this section. (b) Disclosure to applicants. The terms and conditions of the agreement between the grantee and a scholar will be fully disclosed in the application for scholarship. (c) Form and terms of agreement. Prior to granting each year of a scholarship, the grantee will require each scholar to enter into a signed written agreement in which the scholar agrees to the terms and conditions set forth in § 386.40. This agreement must be in the form and contain any additional terms and conditions that the Secretary may require. (d) Executed agreement. The grantee will provide an original signed executed payback agreement upon request to the Secretary. (e) Standards for satisfactory progress. The grantee will establish, publish, and apply reasonable standards for measuring whether a scholar is maintaining satisfactory progress in the scholar's course of study. The Secretary considers an institution's standards to be reasonable if the standards— (1) Conform with the standards of satisfactory progress of the nationally recognized accrediting agency that accredits the institution's program of study, if the institution's program of study is accredited by such an agency, and if the agency has those standards; (2) For a scholar enrolled in an eligible program who is to receive assistance under the Rehabilitation Act, are the same as or stricter than th… | |||||
| 34:34:2.1.1.1.19.3.137.6 | 34 | Education | III | 386 | PART 386—REHABILITATION TRAINING: REHABILITATION LONG-TERM TRAINING | D | Subpart D—What Conditions Must Be Met After an Award? | § 386.35 What information must be provided by a grantee that is an institution of higher education to assist designated State agencies? | ED | A grantee that is an institution of higher education provided assistance under this part must cooperate with the following requests for information from a designated State agency: (a) Information required by section 101(a)(7) of the Act which may include, but is not limited to— (1) The number of students enrolled by the grantee in rehabilitation training programs; and (2) The number of rehabilitation professionals trained by the grantee who graduated with certification or licensure, or with credentials to qualify for certification or licensure, during the past year. (b) Information on the availability of rehabilitation courses leading to certification or licensure, or the credentials to qualify for certification or licensure, to assist State agencies in the planning of a program of staff development for all classes of positions that are involved in the administration and operation of the State vocational rehabilitation program. | |||||
| 34:34:2.1.1.1.19.3.137.7 | 34 | Education | III | 386 | PART 386—REHABILITATION TRAINING: REHABILITATION LONG-TERM TRAINING | D | Subpart D—What Conditions Must Be Met After an Award? | § 386.36 What is a grantee's liability for failing to provide accurate and complete scholar information to the Department? | ED | The Department may recover, in whole or in part, from the grantee the debt amount and any collection costs described in §§ 386.40(d) and 386.43, if the Department: (a) Is unable to collect, or improperly collected, some or all of these amounts or costs from a scholar and (b) Determines that the grantee failed to provide to the Department accurate and complete documentation described in § 386.34. | |||||
| 34:34:2.1.1.1.19.4.137.1 | 34 | Education | III | 386 | PART 386—REHABILITATION TRAINING: REHABILITATION LONG-TERM TRAINING | E | Subpart E—What Conditions Must Be Met by a Scholar? | § 386.40 What are the requirements for scholars? | ED | (a) A scholar must— (1) Be enrolled in a course of study leading to a certificate or degree in one of the fields designated in § 386.1(b); (2) Receive the training at the educational institution or agency designated in the scholarship; (3) Not accept payment of educational allowances from any other entity if that allowance conflicts with the scholar's obligation under section 302 of the Act and this part; (4) Not receive concurrent scholarships for the same academic term from more than one project under this program; (5) Enter into a signed written agreement with the grantee, prior to the receipt of scholarship funds, as required in § 386.34(c); (6) Maintain satisfactory progress toward the certificate or degree as determined by the grantee; (7) Upon exiting the training program under paragraph (a)(1) of this section, subsequently maintain employment on a full- or part-time basis subject to the provisions in paragraph (b) of this section— (i)(A) In a State vocational rehabilitation agency or related agency as defined in § 386.4; and (B)( 1 ) In the field of study for which training was received, or ( 2 ) Where the field of study is directly relevant to the job functions performed; and (ii) For a period of at least the full-time equivalent of two years for every academic year for which assistance under this section was received subject to the provisions in paragraph (c) of this section for part-time coursework; (8) Complete the service obligation within a period, beginning after the recipient exits the training program for which the scholarship was awarded, of not more than the sum of the number of years in the period described in paragraph (a)(7)(ii) of this section and two additional years; (9) Repay all or part of any scholarship received, plus interest, if the individual does not fulfill the requirements of this section, except as provided for in § 386.41 for exceptions and deferrals; and (10) Provide the grantee all requested information necessary for the grantee to meet the exit certification r… | |||||
| 34:34:2.1.1.1.19.4.137.2 | 34 | Education | III | 386 | PART 386—REHABILITATION TRAINING: REHABILITATION LONG-TERM TRAINING | E | Subpart E—What Conditions Must Be Met by a Scholar? | § 386.41 Under what circumstances does the Secretary grant a deferral or exception to performance or repayment under a scholarship agreement? | ED | Based upon sufficient evidence to substantiate the grounds as detailed in § 386.42, a repayment exception to or deferral of the requirements of § 386.40(a)(7) may be granted, in whole or in part, by the Secretary as follows: (a) Repayment is not required if the scholar— (1) Is unable to continue the course of study or perform the work obligation because of a permanent disability that meets one of the following conditions: (i) The disability had not been diagnosed at the time the scholar signed the agreement in § 386.34(c); or (ii) The disability did not prevent the scholar from performing the requirements of the course of study or the work obligation at the time the scholar signed the agreement in § 386.34(c) but subsequently worsened; or (2) Has died. (b) Repayment of a scholarship may be deferred during the time the scholar is— (1) Engaging in a full-time course of study in the field of rehabilitation at an institution of higher education; (2) Serving on active duty as a member of the armed services of the United States for a period not in excess of four years; (3) Serving as a volunteer under the Peace Corps Act; (4) Serving as a full-time volunteer under title I of the Domestic Volunteer Service Act of 1973; (5) Experiencing a temporary disability that affects the scholar's ability to continue the course of study or perform the work obligation, for a period not to exceed three years; or (c) Under limited circumstances as determined by the Secretary and based upon credible evidence submitted on behalf of the scholar, the Secretary may grant an exception to, or deferral of, the requirement to repay a scholarship in instances not specified in this section. These instances could include, but are not limited to, the care of a disabled spouse, partner, or child or the need to accompany a spouse or partner on active duty in the Armed Forces. | |||||
| 34:34:2.1.1.1.19.4.137.3 | 34 | Education | III | 386 | PART 386—REHABILITATION TRAINING: REHABILITATION LONG-TERM TRAINING | E | Subpart E—What Conditions Must Be Met by a Scholar? | § 386.42 What must a scholar do to obtain an exception or a deferral to performance or repayment under a scholarship agreement? | ED | To obtain an exception or a deferral to performance or repayment under a scholarship agreement under § 386.41, a scholar must provide the following: (a) Written application. A written application must be made to the Secretary to request a deferral or an exception to performance or repayment of a scholarship. (b) Documentation. Sufficient documentation must be provided to substantiate the grounds for all deferrals or exceptions, including the following, as appropriate. (1) Documentation necessary to substantiate an exception under § 386.41(a)(1) or a deferral under § 386.41(b)(5) must include a letter from a qualified physician or other medical professional, on official stationery, attesting how the disability affects the scholar in completing the course of study or performing the work obligation. The documentation must be less than three months old and include the scholar's diagnosis and prognosis and ability to complete the course of study or work with accommodations. (2) Documentation to substantiate an exception under § 386.41(a)(2) must include a death certificate or other evidence conclusive under State law. (3) Documentation necessary to substantiate a deferral or exception under 386.41(c) based upon the disability of a spouse, partner, or child must meet the criteria, as relevant, in paragraph (b)(1) of this section. | |||||
| 34:34:2.1.1.1.19.4.137.4 | 34 | Education | III | 386 | PART 386—REHABILITATION TRAINING: REHABILITATION LONG-TERM TRAINING | E | Subpart E—What Conditions Must Be Met by a Scholar? | § 386.43 What are the consequences of a scholar's failure to meet the terms and conditions of a scholarship agreement? | ED | In the event of a failure to meet the terms and conditions of a scholarship agreement or to obtain a deferral or an exception as provided in § 386.41, the scholar must repay all or part of the scholarship as follows: (a) Amount. The amount of the scholarship to be repaid is proportional to the employment obligation not completed. (b) Interest rate. The Secretary charges the scholar interest on the unpaid balance owed in accordance with 31 U.S.C. 3717. (c) Interest accrual. (1) Interest on the unpaid balance accrues from the date the scholar is determined to have entered repayment status under paragraph (e) of this section. (2) Any accrued interest is capitalized at the time the scholar's repayment schedule is established. (3) No interest is charged for the period of time during which repayment has been deferred under § 386.41. (d) Collection costs. Under the authority of 31 U.S.C. 3717, the Secretary may impose reasonable collection costs. (e) Repayment status. A scholar enters repayment status on the first day of the first calendar month after the earliest of the following dates, as applicable: (1) The date the scholar informs the Secretary he or she does not plan to fulfill the employment obligation under the agreement. (2) Any date when the scholar's failure to begin or maintain employment makes it impossible for that individual to complete the employment obligation within the number of years required in § 386.40(a)(8). (f) Amounts and frequency of payment. The scholar shall make payments to the Secretary that cover principal, interest, and collection costs according to a schedule established by the Secretary. | |||||
| 46:46:8.0.1.11.41.0.18.1 | 46 | Shipping | II | J | 386 | PART 386—REGULATIONS GOVERNING PUBLIC BUILDINGS AND GROUNDS AT THE UNITED STATES MERCHANT MARINE ACADEMY | § 386.1 Hours of admission to property. | FMC | Academy property shall be closed to the public during other than normal working hours, as well as during Regimental leave periods and indoctrination training for the fourth class year. The closing of property shall not apply where the Superintendent has approved the after normal working hours use of buildings or athletic facilities for authorized activities. During normal working hours, property shall be closed to the public only when situations require this action to ensure the orderly conduct of Academy business. The Superintendent, or a designated representative of the Superintendent, shall make the decision to close all or any areas of Academy property. This action shall be coordinated with the Head, Department of Public Safety and Security (Security), of the Academy. When property, or a portion thereof, is closed to the public, admission to the property, or to any area thereof, shall be restricted to authorized persons, who shall register with Security personnel upon entry to the property. When requested, any person shall display Government or other identifying credentials to Security personnel when entering, leaving, or while on Academy property. | ||||||
| 46:46:8.0.1.11.41.0.18.10 | 46 | Shipping | II | J | 386 | PART 386—REGULATIONS GOVERNING PUBLIC BUILDINGS AND GROUNDS AT THE UNITED STATES MERCHANT MARINE ACADEMY | § 386.19 Dogs and other animals. | FMC | Persons are prohibited from bringing dogs and other animals on to the Academy premises, except for authorized purposes and except for seeing eye or other guide dogs, or pets approved in writing by the Superintendent or a designee of the Superintendent. | ||||||
| 46:46:8.0.1.11.41.0.18.11 | 46 | Shipping | II | J | 386 | PART 386—REGULATIONS GOVERNING PUBLIC BUILDINGS AND GROUNDS AT THE UNITED STATES MERCHANT MARINE ACADEMY | § 386.21 Vehicular and pedestrian traffic. | FMC | Operators of all vehicles on Academy property shall drive in a careful and safe manner at all times and shall comply with the signals and directions of Academy special police, Security personnel or other authorized individuals, and all posted traffic signs and with restrictions indicated by marked traffic areas. The following acts are prohibited on Academy property: the blocking with vehicles of entrances, driveways, walks, loading platforms or fire hydrants; parking without a permit, except in emergencies; parking in unauthorized locations or in locations reserved for other persons, or parking contrary to the direction of posted signs or marked traffic areas, including yellow curbs. Vehicles parked in violation of the foregoing shall be subject to the issuance of a Traffic Violation Notice and/or removal of the vehicle at the owner's risk and expense. The Superintendent may issue and post other specific traffic directives as may be required, applicable to drivers and pedestrians. When so issued and posted, such directives shall have the same force and effect as if made a part hereof. Proof that a motor vehicle was in violation of these regulations or such directives shall be evidence that the registered owner was responsible for the violation. | ||||||
| 46:46:8.0.1.11.41.0.18.12 | 46 | Shipping | II | J | 386 | PART 386—REGULATIONS GOVERNING PUBLIC BUILDINGS AND GROUNDS AT THE UNITED STATES MERCHANT MARINE ACADEMY | § 386.23 Weapons and explosives. | FMC | No person shall carry or possess firearms, other dangerous or deadly weapons or parts thereof, explosives or items intended to be used to fabricate an explosive or incendiary device, or parts thereof, either openly or concealed, while on Academy property, except for official purposes specifically authorized in writing by the Superintendent or a designee of the Superintendent. | ||||||
| 46:46:8.0.1.11.41.0.18.13 | 46 | Shipping | II | J | 386 | PART 386—REGULATIONS GOVERNING PUBLIC BUILDINGS AND GROUNDS AT THE UNITED STATES MERCHANT MARINE ACADEMY | § 386.25 Enforcement, penalties and other laws. | FMC | Whoever shall be found guilty of violating any regulations in this part while in or on Academy property is subject to a fine of not more than $50 or imprisonment of not more than 30 days, or both (40 U.S.C. 318c). Nothing in these regulations shall be construed to abrogate any other Federal laws or regulations or any State and local laws and regulations applicable to any area in which the property is situated. These regulations shall be posted prominently throughout the Academy. Penalties for their violation shall be incorporated in the Schedule of Fines for Petty Offenses established by order of the United States District Court for the Eastern District of New York. | ||||||
| 46:46:8.0.1.11.41.0.18.2 | 46 | Shipping | II | J | 386 | PART 386—REGULATIONS GOVERNING PUBLIC BUILDINGS AND GROUNDS AT THE UNITED STATES MERCHANT MARINE ACADEMY | § 386.3 Preservation of property. | FMC | Prohibited actions against property on the Academy grounds are improper disposal of rubbish; theft of or damage to property; throwing articles from an Academy building; and climbing on statues, fountains or any part of a building. | ||||||
| 46:46:8.0.1.11.41.0.18.3 | 46 | Shipping | II | J | 386 | PART 386—REGULATIONS GOVERNING PUBLIC BUILDINGS AND GROUNDS AT THE UNITED STATES MERCHANT MARINE ACADEMY | § 386.5 Conformity with signs and posted regulations. | FMC | Persons in and on Academy property shall, at all times, comply with official signs and posted regulations of a prohibitional, instructional or directional nature, and shall also comply with the directions of Academy special police and other authorized officials. These regulations shall be enforced by uniformed special police and other designated security personnel. | ||||||
| 46:46:8.0.1.11.41.0.18.4 | 46 | Shipping | II | J | 386 | PART 386—REGULATIONS GOVERNING PUBLIC BUILDINGS AND GROUNDS AT THE UNITED STATES MERCHANT MARINE ACADEMY | § 386.7 Disturbances. | FMC | Any loitering, disorderly conduct or other conduct on Academy property which creates loud or unusual noise or a nuisance which unreasonably obstructs the use of any area, including entrances, foyers, lobbies, corridors, offices, elevators, stairways, or parking lots; or impedes or disrupts the performance of official duties by Government employees or Midshipmen activities is prohibited. | ||||||
| 46:46:8.0.1.11.41.0.18.5 | 46 | Shipping | II | J | 386 | PART 386—REGULATIONS GOVERNING PUBLIC BUILDINGS AND GROUNDS AT THE UNITED STATES MERCHANT MARINE ACADEMY | § 386.9 Gambling. | FMC | Unless permitted by Executive or Department of Transportation Order, participating in games of chance for money or other consideration, or in the operation of gambling devices, or the conduct of a lottery or a pool, or the selling or purchasing of numbers tickets, is prohibited on Academy property. | ||||||
| 46:46:8.0.1.11.41.0.18.6 | 46 | Shipping | II | J | 386 | PART 386—REGULATIONS GOVERNING PUBLIC BUILDINGS AND GROUNDS AT THE UNITED STATES MERCHANT MARINE ACADEMY | § 386.11 Alcoholic beverages and controlled substances. | FMC | Operation of a motor vehicle on Academy property while intoxicated, under criteria set forth in the statutes of the State of New York, is prohibited. The consumption or possession by any person on Academy property of alcoholic beverages, narcotic drugs, hallucinogens, marijuana, barbiturates, amphetamines or any other substances controlled under the laws of the State of New York or the United States is prohibited. These prohibitions shall not apply in cases where drugs are being used as prescribed for a patient by a licensed physician. The prohibition against possession and consumption of alcoholic beverages shall not apply when possessed or consumed by staff or resident officers in private residences, or when the Superintendent, or a designee of the Superintendent, has granted an exemption in writing for an appropriate reason. | ||||||
| 46:46:8.0.1.11.41.0.18.7 | 46 | Shipping | II | J | 386 | PART 386—REGULATIONS GOVERNING PUBLIC BUILDINGS AND GROUNDS AT THE UNITED STATES MERCHANT MARINE ACADEMY | § 386.13 Soliciting, vending, and debt collection. | FMC | Soliciting aims, or commercial soliciting and vending of all kinds, displaying or distributing commercial advertising, or collecting private debts is prohibited on Academy property. This prohibition does not apply to national or local drives for funds for charitable purposes, welfare, health, or other purposes as authorized by the “Manual on Fund Raising Within the Federal Service,” issued by the U.S. Office of Personnel Management under Executive Order 10927 of March 18, 1961, and sponsored or approved by the Superintendent; and to commercial lessees and contractors authorized to sell goods or services. | ||||||
| 46:46:8.0.1.11.41.0.18.8 | 46 | Shipping | II | J | 386 | PART 386—REGULATIONS GOVERNING PUBLIC BUILDINGS AND GROUNDS AT THE UNITED STATES MERCHANT MARINE ACADEMY | § 386.15 Distribution of handbills. | FMC | The distribution of materials such as pamphlets, handbills and flyers, and the displaying of placards or posting of materials on bulletin boards or elsewhere in or on Academy property shall be coordinated with the Head, Department of Public Safety and Security, of the Academy so as not to impede Academy employees in the performance of their duties or Midshipmen activities. | ||||||
| 46:46:8.0.1.11.41.0.18.9 | 46 | Shipping | II | J | 386 | PART 386—REGULATIONS GOVERNING PUBLIC BUILDINGS AND GROUNDS AT THE UNITED STATES MERCHANT MARINE ACADEMY | § 386.17 Photographs for news, advertising, or commercial purposes. | FMC | Such photographs for news, advertising or commercial purposes may be taken on Academy premises only with the written consent of the Office of External Affairs at the Academy. Except where national security regulations apply or a Federal Court Order or rule prohibits, photographs for news purposes may be taken in entrances, lobbies, foyers or corridors, or in auditoriums in which public meetings are being held. Photographs for advertising and commercial purposes may be taken only with the written permission of and in locations specified by the Office of External Affairs. | ||||||
| 49:49:5.1.1.2.28.1.11.1 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | A | Subpart A—Scope of Rules; Definitions and General Provisions | § 386.1 Scope of the rules in this part. | FHWA | [73 FR 76819, Dec. 17, 2008, as amended at 80 FR 74709, Nov. 30, 2015; 81 FR 78381, Dec. 16, 2015; 81 FR 68347, Oct. 4, 2016; 88 FR 80182, Nov. 17, 2023] | (a) Except as provided in paragraph (c) of this section, the rules in this part govern proceedings before the Agency Decisionmaker under applicable provisions of the Federal Motor Carrier Safety Regulations (49 CFR parts 350-399), including the commercial regulations (49 CFR parts 360-379), and the Hazardous Materials Regulations (49 CFR parts 171-180). (b) The purpose of the proceedings is to enable the Assistant Administrator: (1) To determine whether a motor carrier, intermodal equipment provider (as defined in § 390.5 of this chapter), property broker, freight forwarder, or its agents, employees, or any other person subject to the jurisdiction of FMCSA, has failed to comply with the provisions or requirements of applicable statutes and the corresponding regulations; and (2) To issue an appropriate order to compel compliance with the statute or regulation, assess a civil penalty, or both, if such violations are found. (c)(1) The rules in § 386.12(a) govern the filing of a complaint of a substantial violation and the handling of the complaint by the appropriate Division Administrator. (2) The rules in § 386.12(b) govern the filing by a driver and the handling by the appropriate Division Administrator of a complaint of harassment in violation of § 390.36 of this subchapter. (3) The rules in § 386.12(c) govern the filing by a driver and the handling by the appropriate Division Administrator of a complaint of coercion in violation of § 390.6 of this subchapter. | |||
| 49:49:5.1.1.2.28.1.11.2 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | A | Subpart A—Scope of Rules; Definitions and General Provisions | § 386.2 Definitions. | FHWA | [50 FR 40306, Oct. 2, 1985, as amended at 53 FR 2036, Jan. 26, 1988; 56 FR 10182, Mar. 11, 1991; 65 FR 7755, Feb. 16, 2000; 65 FR 78427, Dec. 15, 2000; 67 FR 61821, Oct. 2, 2002; 70 FR 28748, May 18, 2005; 72 FR 55701, Oct. 1, 2007; 78 FR 58481, Sept. 24, 2013; 86 FR 57071, Oct. 14, 2021; 88 FR 80182, Nov. 17, 2023] | Abate or abatement means to discontinue regulatory violations by refraining from or taking actions identified in a notice to correct noncompliance. Administration means the Federal Motor Carrier Safety Administration. Administrative adjudication means a process or proceeding to resolve contested claims in conformity with the Administrative Procedure Act, 5 U.S.C. 554-558. Administrative law judge means an administrative law judge appointed pursuant to the provisions of 5 U.S.C. 3105. Agency means the Federal Motor Carrier Safety Administration. Agency Counsel means the attorney who prosecutes a civil penalty matter on behalf of the Field Administrator. Agency Decisionmaker means the FMCSA official authorized to issue a final decision and order of the Agency in an administrative proceeding under this part. The Agency Decisionmaker is an FMCSA official appointed by the President or otherwise duly authorized. Broker means a person who, for compensation, arranges or offers to arrange the transportation of property by an authorized motor carrier. A motor carrier, or person who is an employee or bona fide agent of a carrier, is not a broker within the meaning of this section when it arranges or offers to arrange the transportation of shipments which it is authorized to transport and which it has accepted and legally bound itself to transport. Civil forfeiture proceedings means proceedings to collect civil penalties for violations under the Commercial Motor Vehicle Safety Act of 1986 (49 U.S.C. Chapter 313); the Hazardous Materials Transportation Act of 1975, as amended (49 U.S.C. Chapter 51); the Motor Carrier Safety Act of 1984 (49 U.S.C. Chapter 311, Subchapter III); section 18 of the Bus Regulatory Reform Act of 1982 (49 U.S.C. 31138); section 30 of the Motor Carrier Act of 1980 (49 U.S.C. 31139); and the ICC Termination Act of 1995 (49 U.S.C. Chapters 131-149). Civil penalty proceedings means proceedings to collect civil penalties for violations of regulations and statutes within the jurisdiction… | |||
| 49:49:5.1.1.2.28.1.11.3 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | A | Subpart A—Scope of Rules; Definitions and General Provisions | § 386.3 Separation of functions. | FHWA | [70 FR 28479, May 18, 2005, as amended at 86 FR 57071, Oct. 14, 2021] | (a) Civil penalty proceedings will be prosecuted by Agency Counsel who represent the Field Administrator. In Notices of Violation, the Field Administrator will be represented by Agency Counsel. (b) An Agency employee, including those listed in paragraph (c) of this section, engaged in the performance of investigative or prosecutorial functions in a civil penalty proceeding or in a proceeding under § 386.11, § 386.72, or § 386.73 may not, in that case or a factually related case, discuss or communicate the facts or issues involved with the Agency Decisionmaker, Administrative Law Judge, Hearing Officer, or others listed in paragraph (d) of this section, except as counsel or a witness in the public proceedings. The prohibition in this paragraph (b) also includes the staff of those covered by this section. (c) The Deputy Chief Counsel, Assistant Chief Counsel for Enforcement and Litigation, and attorneys in the Enforcement and Litigation Division serve as enforcement counsel in the prosecution of all cases brought under this part. (d) The Chief Counsel, the Special Counsel to the Chief Counsel, and attorneys serving as Adjudications Counsel advise the Agency Decisionmaker regarding all cases brought under this Part. (e) Nothing in this part shall preclude Agency Decisionmakers or anyone advising an Agency Decisionmaker from taking part in a determination to launch an investigation or issue a complaint, or similar preliminary decision. | |||
| 49:49:5.1.1.2.28.1.11.4 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | A | Subpart A—Scope of Rules; Definitions and General Provisions | § 386.4 Appearances and rights of parties. | FHWA | [70 FR 28479, May 18, 2005] | (a) A party may appear in person, by counsel, or by other representative, as the party elects, in a proceeding under this subpart. (b) A person representing a party must file a notice of appearance in the proceeding, in the manner provided in § 386.7 of this subpart. The notice of appearance must list the name, address, telephone number, and facsimile number of the person designated to represent the party. A copy of the notice of appearance must be served on each party, in the manner provided in § 386.6 of this subpart. The notice of appearance must be filed and served before the representative can participate in the proceeding. Any changes in an attorney or representative's contact information must be served and filed according to §§ 386.6 and 386.7 in a timely manner. (c) A separate notice of appearance must be filed by a representative in each case. Blanket appearances on behalf of a party will not be accepted. | |||
| 49:49:5.1.1.2.28.1.11.5 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | A | Subpart A—Scope of Rules; Definitions and General Provisions | § 386.5 Form of filings and extensions of time. | FHWA | [70 FR 28479, May 18, 2005, as amended at 77 FR 59826, Oct. 1, 2012] | (a) Form. Each document must be typewritten or legibly handwritten. (b) Contents. Unless otherwise specified in this part, each document must contain a short, plain statement of the facts on which the person's case rests and a brief statement of the action requested in the document. Except by prior order, all contents will be made publicly available. (c) Length. Except for the Notice of Claim and reply, motions, briefs, and other filings may not exceed 20 pages except as permitted by Order following a motion to exceed the page limitation based upon good cause shown. Exhibits or attachments in support of the relevant filing are not included in the page limit. (d) Paper and margins. Filed documents must be printed on 8 1/2 ″ by 11″ paper with a one-inch margin on all four sides of text, to include pagination and footnotes. (e) Spacing, and font size for typewritten documents. Typewritten documents will use the following line format: single-spacing for the caption and footnotes, and double-spacing for the main text. All printed matter must appear in at least 12-point font, including footnotes. (f) Extensions of time. Only those requests showing good cause will be granted. No motion for continuance or postponement of a hearing date filed within 15 days of the date set for a hearing will be granted unless accompanied by an affidavit showing extraordinary circumstances warrant a continuance. Unless directed otherwise by the Agency Decisionmaker before whom a matter is pending, the parties may stipulate to reasonable extensions of time by filing the stipulation in the official docket and serving copies on all parties on the certificate of service. Motions for extensions of time must be filed in accordance with § 386.7 and served in accordance with § 386.6. A copy must also be served upon the person presiding over the proceeding at the time of the filing. | |||
| 49:49:5.1.1.2.28.1.11.6 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | A | Subpart A—Scope of Rules; Definitions and General Provisions | § 386.6 Service. | FHWA | [70 FR 28480, May 18, 2005] | (a) General. All documents must be served upon the party or the party's designated agent for service of process. If a notice of appearance has been filed in the specific case in question in accordance with § 386.4, service is to be made on the party's attorney of record or its designated representative. (b) Type of service. A person may serve documents by personal delivery utilizing governmental or commercial entities, U.S. mail, commercial mail delivery, and upon prior written consent of the parties, facsimile. Written consent for facsimile service must specify the facsimile number where service will be accepted. When service is made by facsimile, a copy will also be served by any other method permitted by this section. Facsimile service occurs when transmission is complete. (c) Certificate of service. A certificate of service will accompany all documents served in a proceeding under this Part. The certificate must show the date and manner of service, be signed by the person making service, and list the persons served in accordance with § 386.7. (d) Date of service. A document will be considered served on the date of personal delivery; or if mailed, the mailing date shown on the certificate of service, the date shown on the postmark if there is no certificate of service, or other mailing date shown by other evidence if there is no certificate of service or postmark. (e) Valid service. A properly addressed document, sent in accordance with this subpart, which was returned, unclaimed, or refused, is deemed to have been served in accordance with this subpart. The service will be considered valid as of the date and the time the document was mailed, or the date personal delivery of the document was refused. Service by delivery after 5 p.m. in the time zone in which the recipient will receive delivery is deemed to have been made on the next day that is not a Saturday, Sunday, or legal holiday. (f) Presumption of service. There shall be a presumption of service if the document is served where a party o… | |||
| 49:49:5.1.1.2.28.1.11.7 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | A | Subpart A—Scope of Rules; Definitions and General Provisions | § 386.7 Filing of documents. | FHWA | [70 FR 28480, May 18, 2005, as amended at 72 FR 55701, Oct. 1, 2007; 78 FR 58481, Sept. 24, 2013] | Address and method of filing. A person serving or tendering a document for filing must personally deliver or mail one copy of each document to all parties and counsel or their designated representative of record if represented. A signed original and one copy of each document submitted for the consideration of the Agency Decisionmaker, an Administrative Law Judge, or Hearing Officer must be personally delivered or mailed to: Department of Transportation Docket Operations, 1200 New Jersey Ave., SE., Washington, DC 20590-0001. A person will serve a copy of each document on each party in accordance with § 386.6 of this subpart. | |||
| 49:49:5.1.1.2.28.1.11.8 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | A | Subpart A—Scope of Rules; Definitions and General Provisions | § 386.8 Computation of time. | FHWA | [70 FR 28480, May 18, 2005, as amended at 78 FR 58481, Sept. 24, 2013] | (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 will 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 will 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 is the date the order is served. (c) Computation of time for delivery by mail. (1) Service of all documents is deemed effected at the time of mailing. (2) Documents are not deemed filed until received by Docket Operations. (3) Whenever a party has a right or a duty to act or to make any response within a prescribed period after service by mail, or on a date certain after service by mail, 5 days will be added to the prescribed period. | |||
| 49:49:5.1.1.2.28.2.11.1 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | B | Subpart B—Commencement of Proceedings, Pleadings | § 386.11 Commencement of proceedings. | FHWA | [50 FR 40306, Oct. 2, 1985, as amended at 53 FR 2036, Jan. 26, 1988; 56 FR 10182, Mar. 11, 1991; 65 FR 7756, Feb. 16, 2000; 70 FR 28480, May 18, 2005; 78 FR 58481, Sept. 24, 2013; 86 FR 57071, Oct. 14, 2021] | (a) Driver qualification proceedings. These proceedings are commenced by the issuance of a determination by FMCSA, in a case arising under § 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 Agency Decisionmaker 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 § 391.47 of this chapter. (2) At any time before the close of hearing, upon application of a party, the letter or determination may be amended at the discretion of the administrative law judge upon such terms as he/she approves. (b) Notice of Violation. The Agency may issue a Notice of Violation as a means of notifying any person subject to the rules in this part that it has received information ( i.e. , from an investigation, audit, or any other source) wherein it has been alleged the person has violated provisions of the FMCSRs, HMRs, or FMCCRs. The Notice of Violation serves as an informal mechanism to address compliance deficiencies. If the alleged deficiency is not addressed to the satisfaction of the Agency, formal enforcement action may be taken in accordance with paragraph (c) of this section. A Notice of Violation is not a prerequisite to the issuance of a Notice of Claim. The Notice of Violation will address the following issues, as appropriate: (1) The specific alleged violations. (2) Any specific actions the Agency determines are appropriate to remed… | |||
| 49:49:5.1.1.2.28.2.11.2 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | B | Subpart B—Commencement of Proceedings, Pleadings | § 386.12 Complaints. | FHWA | [80 FR 78381, Dec. 16, 2015, as amended at 88 FR 80182, Nov. 17, 2023] | (a) Complaint of substantial violation. (1) Any person alleging that a substantial violation of any regulation issued under the Motor Carrier Safety Act of 1984 is occurring or has occurred must file a written complaint with FMCSA stating the substance of the alleged substantial violation no later than 90 days after the event. The written complaint, including the information below, must be filed with the National Consumer Complaint Database at http://nccdb.fmcsa.dot.gov or any FMCSA Division Administrator. The Agency will refer the complaint to the Division Administrator who the Agency believes is best able to handle the complaint. Information on filing a written complaint may be obtained by calling 1-888-DOT-SAFT (1-888-368-7238). 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: (i) The name, address, and telephone number of the person who files it; (ii) 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 (iii) A concise but complete statement of the facts relied upon to substantiate each allegation, including the date of each alleged violation. (2) Upon the filing of a complaint of a substantial violation under paragraph (a)(1) of this section, the Division Administrator shall determine whether the complaint is non-frivolous and meets the requirements of paragraph (a)(1) of this section. If the Division Administrator determines the complaint is non-frivolous and meets the requirements of paragraph (a)(1), the Division Administrator shall investigate the complaint. The complainant shall be timely notified of findings resulting from the investigation. The Division Administrator shall not be required to conduct separate investigations of duplicative complaints. If the Division Administrator determines the complaint is frivolous or does not meet t… | |||
| 49:49:5.1.1.2.28.2.11.3 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | B | Subpart B—Commencement of Proceedings, Pleadings | § 386.13 Petitions to review and request for hearing: Driver qualification proceedings. | FHWA | [50 FR 40306, Oct. 2, 1985, as amended at 78 FR 58481, Sept. 24, 2013] | (a) Within 60 days after service of the determination under § 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 Agency Decisionmaker 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 § 386.49; (3) All legal and other arguments which the petitioner wishes to make in support of his/her 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 petition has been filed in accordance with § 386.6(c); 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 Agency Decisionmaker 30 days after the time to submit the reply or petition to review has expired, unless the Agency Decisionmaker orders otherwise. (c) If the petition does not request a hearing, the Agency Decisionmaker may issue a final decision and order based on the evidence and arguments submitted. | |||
| 49:49:5.1.1.2.28.2.11.4 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | B | Subpart B—Commencement of Proceedings, Pleadings | § 386.14 Reply. | FHWA | [70 FR 28481, May 18, 2005, as amended at 88 FR 80182, Nov. 17, 2023] | (a) Time for reply to the Notice of Claim. Respondent must serve a reply to the Notice of Claim in writing within 30 days following service of the Notice of Claim. The reply is to be served in accordance with § 386.6 upon the Service Center indicated in the Notice of Claim. (b) Options for reply. The respondent must reply to the Notice of Claim within the time allotted by choosing one of the following: (1) Paying the full amount asserted in the Notice of Claim in accordance with § 386.18 of this part; (2) Contesting the claim by requesting administrative adjudication pursuant to paragraph (d) of this section; or (3) Seeking binding arbitration in accordance with the Agency's program. Although the amount of the proposed penalty may be disputed, referral to binding arbitration is contingent upon an admission of liability that the violations occurred. (c) Failure to answer the Notice of Claim. (1) Respondent's failure to answer the Notice of Claim in accordance with paragraph (a) of this section may result in the issuance of a Notice of Default and Final Order by the Field Administrator. The Notice of Default and Final Order will declare respondent to be in default and further declare the Notice of Claim, including the civil penalty proposed in the Notice of Claim, to be the Final Order in the proceeding. The Final Order will be effective five days following service of the Notice of Default and Final Order. (2) The default constitutes an admission of all facts alleged in the Notice of Claim and a waiver of respondent's opportunity to contest the claim. The default will be reviewed by the Agency Decisionmaker in accordance with § 386.64(b), and the Final Order may be vacated where a respondent demonstrates excusable neglect, a meritorious defense, or due diligence in seeking relief. (3) Failure to pay the civil penalty as directed in a Final Order that has become a Final Agency Order constitutes a violation of that order, subjecting the respondent to an additional penalty as prescribed in subpart G of th… | |||
| 49:49:5.1.1.2.28.2.11.5 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | B | Subpart B—Commencement of Proceedings, Pleadings | § 386.15 [Reserved] | FHWA | |||||
| 49:49:5.1.1.2.28.2.11.6 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | B | Subpart B—Commencement of Proceedings, Pleadings | § 386.16 Action on replies to the Notice of Claim. | FHWA | [70 FR 28481, May 18, 2005, as amended at 88 FR 80182, Nov. 17, 2023] | (a) Requests to submit written evidence without a hearing. Where respondent has elected to submit written evidence in accordance with § 386.14(d)(1)(iii)(A): (1) Agency Counsel must serve all written evidence and argument in support of the Notice of Claim no later than 60 days following service of respondent's reply. The written evidence and argument must be served on the Agency Decisionmaker in accordance with §§ 386.6 and 386.7. The submission must include all pleadings, notices, and other filings in the case to date. (2) Respondent will, not later than 45 days following service of Agency Counsel's written evidence and argument, serve its written evidence and argument on the Agency Decisionmaker in accordance with §§ 386.6 and 386.7. (3) Agency Counsel may file a written response to respondent's submission. Any such submission must be filed within 20 days of service of respondent's submission. (4) All written evidence submitted by the parties must conform to the requirements of § 386.49. (5) Following submission of evidence and argument as outlined in this section, the Agency Decisionmaker may issue a Final Order based on the evidence and arguments submitted, or may issue any other order as may be necessary to adjudicate the matter. (b) Requests for hearing. (1) If a request for a formal or informal hearing has been filed, the Agency Decisionmaker will determine whether there exists a dispute of a material fact at issue in the matter. If so, the matter will be set for hearing in accordance with respondent's reply. If it is determined that there does not exist a dispute of a material fact at issue in the matter, the Agency Decisionmaker may issue a decision based on the written record, or may request the submission of further evidence or argument. (2) If a respondent requests a formal or informal hearing in its reply, the Field Administrator must serve upon the Agency Decisionmaker and respondent a notice of consent or objection with a basis to the request within 60 days of service of respondent's rep… | |||
| 49:49:5.1.1.2.28.2.11.7 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | B | Subpart B—Commencement of Proceedings, Pleadings | § 386.17 Intervention. | FHWA | 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 § 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. | ||||
| 49:49:5.1.1.2.28.2.11.8 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | B | Subpart B—Commencement of Proceedings, Pleadings | § 386.18 Payment of the claim. | FHWA | [70 FR 28482, May 18, 2005, as amended at 77 FR 24870, Apr. 26, 2012] | (a) Payment of the full amount claimed may be made at any time before issuance of a Final Agency Order and will constitute an admission of liability by the respondent of all facts alleged in the Notice of Claim, unless the parties agree in writing that payment shall not be treated as an admission. After the issuance of a Final Agency Order, claims are subject to interest, penalties, and administrative charges, in accordance with 31 U.S.C. 3717; 49 CFR part 89; and 31 CFR 901.9. (b) If respondent elects to pay the full amount as its response to the Notice of Claim, payment must be served upon the Field Administrator at the Service Center designated in the Notice of Claim within 30 days following service of the Notice of Claim. No written reply is necessary if respondent elects the payment option during the 30-day reply period. Failure to serve full payment within 30 days of service of the Notice of Claim when this option has been chosen may constitute a default and may result in the Notice of Claim, including the civil penalty assessed by the Notice of Claim, becoming the Final Agency Order in the proceeding pursuant to § 386.14(c). (c) Unless otherwise agreed in writing by the parties, payment of the full amount in response to the Notice of Claim constitutes an admission of liability by the respondent of all facts alleged in the Notice of Claim. Payment waives respondent's opportunity to further contest the claim and will result in the Notice of Claim becoming the Final Agency Order. | |||
| 49:49:5.1.1.2.28.3.11.1 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | C | Subpart C—Settlement Agreements | § 386.22 Settlement agreements and their contents. | FHWA | [70 FR 28482, May 18, 2005, as amended at 78 FR 58481, Sept. 24, 2013] | (a) Settlement agreements. (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 Field Administrator or his/her designee. 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 Field Administrator or his/her designee; (vi) A statement that failure to pay in accordance with the terms of the agreement or to comply with the terms of the agreement may result in the reinstatement of any penalties held in abeyance and may also result in the loss of any reductions in civil penalties asserted in the Notice of Claim, in which case the original amount asserted will be due immediately; and (vii) A statement that the agreement is the Final Agency Order. (2) A settlement agreement may contain any conditions, actions, or provisions agreed by the parties to redress the violations cited in the Notice of Claim or notice of violation. (3) A settlement agreement accepted and approved by the Agency Decisionmaker or Administrative Law Judge is a Final Agency Order which is binding on all parties according to its terms. Consent to a settlement agreement which has not yet been approved by the Agency Decisionmaker or Administrative Law Judge may not be withdrawn for a period of 30 days. (b) Civil penalty proceedings not before Agency Decisionmaker. When the parties have agreed to a settlement at any time prior to the case coming before the Agency Decisionmaker, the parties may execute an appropriate agreement for disposing of the case. The agreement does not require approval by the Agency Decisionmaker. The agreement becomes the Final Agency Order upon execution by the Field Administrator or his/her designe… | |||
| 49:49:5.1.1.2.28.4.11.1 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | D | Subpart D—General Rules and Hearings | § 386.30 Enforcement proceedings under part 395. | FHWA | [80 FR 78382, Dec. 16, 2015] | (a) General. A motor carrier is liable for any act or failure to act by an employee, as defined in § 390.5 of this subchapter, that violates any provision of part 395 of this subchapter if the act or failure to act is within the course of the motor carrier's operations. The fact that an employee may be liable for a violation in a proceeding under this subchapter, based on the employee's act or failure to act, does not affect the liability of the motor carrier. (b) Burden of proof. Notwithstanding any other provision of this subchapter, the burden is on a motor carrier to prove that the employee was acting outside the scope of the motor carrier's operations when committing an act or failing to act in a manner that violates any provision of part 395 of this subchapter. (c) Imputed knowledge of documents. A motor carrier shall be deemed to have knowledge of any document in its possession and any document that is available to the motor carrier and that the motor carrier could use in ensuring compliance with part 395 of this subchapter. “Knowledge of any document” means knowledge of the fact that a document exists and the contents of the document. | |||
| 49:49:5.1.1.2.28.4.11.10 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | D | Subpart D—General Rules and Hearings | § 386.41 Stipulations regarding discovery. | FHWA | Unless otherwise ordered, a written stipulation entered into by all the parties and filed with the Agency Decisionmaker 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, and when so taken may be used like other depositions, and (b) Modify the procedures provided by these rules for other methods of discovery. | ||||
| 49:49:5.1.1.2.28.4.11.11 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | D | Subpart D—General Rules and Hearings | § 386.42 Written interrogatories to parties. | FHWA | [70 FR 28483, May 18, 2005] | (a) Without leave, any party may serve upon any other party written interrogatories to be answered by the party to whom the interrogatories are directed; or, if that party is a public or private corporation or partnership or association or governmental agency, by any officer or agent, who will furnish the information available to that party. (b) The maximum number of interrogatories served will not exceed 30, including all subparts, unless the Agency Decisionmaker or Administrative Law Judge permits a larger number on motion and for good cause shown. Other interrogatories may be added without leave, so long as the total number of approved and additional interrogatories does not exceed 30. (c) Each interrogatory shall be answered separately and fully in writing under oath unless it is objected to, in which event the grounds for objection shall be stated and signed by the party, or counsel for the party, if represented, making the response. The party to whom the interrogatories are directed shall serve the answers and any objections within 30 days after the service of the interrogatories, or within such shortened or longer period as the Agency Decisionmaker or the Administrative Law Judge may allow. (d) Motions to compel may be made in accordance with § 386.45. (e) A notice of discovery must be served on the Agency Decisionmaker or, in cases that have been referred to the Office of Hearings, on the Administrative Law Judge. A copy of the interrogatories, answers, and all related pleadings must be served on all parties to the proceeding. (f) 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 Agency Decisionmaker 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. | |||
| 49:49:5.1.1.2.28.4.11.12 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | D | Subpart D—General Rules and Hearings | § 386.43 Production of documents and other evidence; entry upon land for inspection and other purposes; and physical and mental examination. | FHWA | (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) of 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 Agency Decisionmaker 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 Agency Decisionmaker or the administrative law judge, if one has been appointed. | ||||
| 49:49:5.1.1.2.28.4.11.13 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | D | Subpart D—General Rules and Hearings | § 386.44 Request for admissions. | FHWA | (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 the 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 Agency Decisionmaker. 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 Agency Decisionmaker 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 g… | ||||
| 49:49:5.1.1.2.28.4.11.14 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | D | Subpart D—General Rules and Hearings | § 386.45 Motion to compel discovery. | FHWA | (a) If a deponent fails to answer a question propounded or a party upon whom a request is made pursuant to §§ 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 Agency Decisionmaker 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 (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 Agency Decisionmaker 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 § 386.39(a). | ||||
| 49:49:5.1.1.2.28.4.11.15 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | D | Subpart D—General Rules and Hearings | § 386.46 Depositions. | FHWA | [70 FR 28484, May 18, 2005] | (a) When, how, and by whom taken. (1) The deposition of any witness may be taken at reasonable times subsequent to the appointment of an Administrative Law Judge. Prior to referral to the Office of Hearings, a party may petition the Agency Decisionmaker, in accordance with § 386.37, for leave to conduct a deposition based on good cause shown. (2) Depositions may be taken by oral examination or upon written interrogatories before any person having power to administer oaths. (3) The parties may stipulate in writing or the Administrative Law Judge may upon motion order that a deposition be taken by telephone or other remote electronic means. (4) If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to, or included in, the notice. (5) If the deposition is to be recorded by videotape or audiotape, the notice shall specify the method of recording. (b) Application. Any party desiring to take the deposition of a witness must 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. A party desiring to take a deposition must give notice to the witness and all other parties. Notice must be in writing. Notice of the deposition must be given not less than 20 days from when the deposition is to be taken if the deposition is to be held within the continental United States and not less than 30 days from when the deposition is to be taken if the deposition is to be held elsewhere, unless a shorter time is agreed to by the parties or by leave of the Agency Decisionmaker or Administrative Law Judge by motion for good cause shown. (d) Depositions upon written questions. Within 14 days after the notice and written questions are served, a party may serve cross-questi… | |||
| 49:49:5.1.1.2.28.4.11.16 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | D | Subpart D—General Rules and Hearings | § 386.47 Use of deposition at hearings. | FHWA | (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 Agency Decisionmaker 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 by 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) Objecti… | ||||
| 49:49:5.1.1.2.28.4.11.17 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | D | Subpart D—General Rules and Hearings | § 386.48 Medical records and physicians' reports. | FHWA | [50 FR 40306, Oct. 2, 1985, as amended at 53 FR 2036, Jan. 26, 1988; 65 FR 7756, Feb. 16, 2000; 78 FR 58481, Sept. 24, 2013; 86 FR 57071, Oct. 14, 2021] | 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 FMCSA, reports, test results and medical records not served under this rule shall be excluded from evidence at any hearing. | |||
| 49:49:5.1.1.2.28.4.11.18 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | D | Subpart D—General Rules and Hearings | § 386.49 Form of written evidence. | FHWA | [70 FR 28484, May 18, 2005] | All written evidence should be submitted in the following forms: (a) A written statement of a person having personal knowledge of the facts alleged, or (b) Documentary evidence in the form of exhibits attached to a written statement identifying the exhibit and giving its source. | |||
| 49:49:5.1.1.2.28.4.11.19 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | D | Subpart D—General Rules and Hearings | § 386.51 Amendment and withdrawal of pleadings. | FHWA | [50 FR 40306, Oct. 2, 1985, as amended at 70 FR 28484, May 18, 2005; 78 FR 58481, Sept. 24, 2013] | (a) Except in instances covered by other rules, any time more than 15 days prior to the hearing, a party may amend his/her pleadings by serving the amended pleading on the Agency Decisionmaker 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 any time more than 15 days prior to the hearing by serving a notice of withdrawal on the Agency Decisionmaker or the Administrative Law Judge. Within 15 days prior to the hearing a withdrawal may be made only at the discretion of the Agency Decisionmaker or the Administrative Law Judge. The withdrawal will be granted absent a finding that the withdrawal will result in injustice, prejudice, or irreparable harm to the non-moving party, or is otherwise contrary to the public interest. | |||
| 49:49:5.1.1.2.28.4.11.2 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | D | Subpart D—General Rules and Hearings | § 386.31 Official notice. | FHWA | [70 FR 28483, May 18, 2005, as amended at 88 FR 80183, Nov. 17, 2023] | Upon notification to all parties, the Agency Decisionmaker or Administrative Law Judge may take official notice of any fact or document not appearing in evidence in the record. Any party objecting to the official notice must file an objection within 10 days after service of the notice. If a Final Order has been issued, and the decision rests on a material and disputable fact of which the Agency Decisionmaker has taken official notice, a party may challenge the action of official notice in accordance with § 386.64. | |||
| 49:49:5.1.1.2.28.4.11.20 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | D | Subpart D—General Rules and Hearings | § 386.52 Appeals from interlocutory rulings. | FHWA | [70 FR 28484, May 18, 2005] | (a) General. Unless otherwise provided in this subpart, a party may not appeal a ruling or decision of the Administrative Law Judge to the Agency Decisionmaker until the Administrative Law Judge's decision has been entered on the record. A decision or order of the Agency Decisionmaker on the interlocutory appeal does not constitute a Final Agency Order for the purposes of judicial review under § 386.67. (b) Interlocutory appeal for cause. If a party files a written request for an interlocutory appeal for cause with the Administrative Law Judge, or orally requests an interlocutory appeal for cause, the proceedings are stayed until the Administrative Law Judge issues a decision on the request. If the Administrative Law Judge grants the request, the proceedings are stayed until the Agency Decisionmaker issues a decision on the interlocutory appeal. The Administrative Law Judge must grant an interlocutory appeal for cause if a party shows that delay of the appeal would be detrimental to the public interest or would result in undue prejudice to any party. (c) [Reserved] (d) Procedure. A party must file a notice of interlocutory appeal, with any supporting documents, with the Agency Decisionmaker, and serve copies on each party and the Administrative Law Judge, not later than 10 days after the Administrative Law Judge's oral decision has been issued, or a written decision has been served. A party must file a reply brief, if any, with the Agency Decisionmaker and serve a copy of the reply brief on each party, not later than 10 days after service of the appeal brief. The Agency Decisionmaker will render a decision on the interlocutory appeal, within a reasonable time after receipt of the interlocutory appeal. (e) The Agency Decisionmaker may reject frivolous, repetitive, or dilatory appeals, and may issue an order precluding one or more parties from making further interlocutory appeals, and may order such further relief as required. | |||
| 49:49:5.1.1.2.28.4.11.21 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | D | Subpart D—General Rules and Hearings | § 386.53 Subpoenas, witness fees. | FHWA | (a) Applications for the issuance of subpoenas must be submitted to the Agency Decisionmaker, 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 FMCSA 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 Agency Decisionmaker or administrative law judge, if one is appointed, and shall set forth the need for such evidence and its relevancy. | ||||
| 49:49:5.1.1.2.28.4.11.22 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | D | Subpart D—General Rules and Hearings | § 386.54 Administrative Law Judge. | FHWA | [70 FR 28485, May 18, 2005] | (a) Powers of an Administrative Law Judge. The Administrative Law Judge may take any action and may prescribe all necessary 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. In accordance with the rules in this subchapter, an Administrative Law Judge may do the following: (1) Give notice of and hold prehearing conferences and hearings. (2) Administer oaths and affirmations. (3) Issue subpoenas authorized by law. (4) Rule on offers of proof. (5) Receive relevant and material evidence. (6) Regulate the course of the administrative adjudication in accordance with the rules of this subchapter and the Administrative Procedure Act. (7) Hold conferences to settle or simplify the issues by consent of the parties. (8) Dispose of procedural motions and requests, except motions that under this part are made directly to the Agency Decisionmaker. (9) Issue orders permitting inspection and examination of lands, buildings, equipment, and any other physical thing and the copying of any document. (10) Make findings of fact and conclusions of law, and issue decisions. (11) To take any other action authorized by these rules and permitted by law. (b) Limitations on the power of the Administrative Law Judge. The Administrative Law Judge is bound by the procedural requirements of this part and the precedent opinions of the Agency. This section does not preclude an Administrative Law Judge from barring a person from a specific proceeding based on a finding of obstreperous or disruptive behavior in that proceeding. (c) Disqualification. The Administrative Law Judge may disqualify himself or herself at any time, either at the request of any party or upon his or her own initiative. Assignments of Administrative Law Judges are made by the Chief Administrative Law Judge upon the request of the Agency Decisionmaker. Any request for a change in such assignment, including disqualification, will be considered only fo… | |||
| 49:49:5.1.1.2.28.4.11.23 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | D | Subpart D—General Rules and Hearings | § 386.55 Prehearing conferences. | FHWA | (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. | ||||
| 49:49:5.1.1.2.28.4.11.24 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | D | Subpart D—General Rules and Hearings | § 386.56 Hearings. | FHWA | (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. The 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. | ||||
| 49:49:5.1.1.2.28.4.11.25 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | D | Subpart D—General Rules and Hearings | § 386.57 Proposed findings of fact, conclusions of law. | FHWA | The administrative law judge shall afford the parties reasonable opportunity to submit proposed findings of fact, conclusions of law, and supporting 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. | ||||
| 49:49:5.1.1.2.28.4.11.26 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | D | Subpart D—General Rules and Hearings | § 386.58 Burden of proof. | FHWA | (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 § 391.47 of this chapter shall be on the party petitioning for review under § 386.13(a). | ||||
| 49:49:5.1.1.2.28.4.11.3 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | D | Subpart D—General Rules and Hearings | § 386.34 Motions. | FHWA | [50 FR 40306, Oct. 2, 1985. Redesignated and amended at 70 FR 28483, May 18, 2005] | (a) General. An application for an order or ruling not otherwise covered by these rules shall be by motion. All motions filed prior to the calling of the matter for a hearing shall be to the Agency Decisionmaker. 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 20 days after the motion is served or within such other time as the Agency Decisionmaker or administrative law judge may set. (d) Argument. Oral argument or briefs on a motion may be ordered by the Agency Decisionmaker 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 Agency Decisionmaker. (f) Suspension of time. The pendency of a motion shall not affect any time limits set in these rules unless expressly ordered by the Agency Decisionmaker or administrative law judge. | |||
| 49:49:5.1.1.2.28.4.11.4 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | D | Subpart D—General Rules and Hearings | § 386.35 Motions to dismiss and motions for a more definite statement. | FHWA | [50 FR 40306, Oct. 2, 1985. Redesignated at 70 FR 28483, May 18, 2005] | (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/her pleading within 10 days after the denial. | |||
| 49:49:5.1.1.2.28.4.11.5 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | D | Subpart D—General Rules and Hearings | § 386.36 Motions for Final Order. | FHWA | [70 FR 28483, May 18, 2005, as amended at 88 FR 80183, Nov. 17, 2023] | (a) Generally. Unless otherwise provided in this section, the motion and answer will be governed by § 386.34. Either party may file a motion for final order. The motion must be served in accordance with §§ 386.6 and 386.7. If the matter is still pending before the service center, upon filing, the matter is officially transferred from the service center to the Agency Decisionmaker, who will then preside over the matter. (b) Form and content. (1) Movant's filing must contain a motion and memorandum of law, which may be separate or combined and must include all responsive pleadings, notices, and other filings in the case to date. (2) The motion for final order must be accompanied by written evidence in accordance with § 386.49. (3) The motion will state with particularity the grounds upon which it is based and the substantial matters of law to be argued. A Final Order may be issued if, after reviewing the record in a light most favorable to the non-moving party, the Agency Decisionmaker determines no genuine issue exists as to any material fact. (c) Answer to Motion. The non-moving party will, within 45 days of service of the motion for final order, submit and serve a response to rebut movant's motion. | |||
| 49:49:5.1.1.2.28.4.11.6 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | D | Subpart D—General Rules and Hearings | § 386.37 Discovery. | FHWA | [70 FR 28483, May 18, 2005] | (a) Parties may obtain discovery by one or more of the following methods: Depositions upon oral examination or written questions; written interrogatories; request for production of documents or other evidence for inspection and other purposes; physical and mental examinations; and requests for admission. (b) Discovery may not commence until the matter is pending before the Agency Decisionmaker or referred to the Office of Hearings. (c) Except as otherwise provided in these rules, in the Administrative Procedure Act, 5 U.S.C. 551 et seq., or by the Agency Decisionmaker or Administrative Law Judge, in the absence of specific Agency provisions or regulations, the Federal Rules of Civil Procedure may serve as guidance in administrative adjudications. | |||
| 49:49:5.1.1.2.28.4.11.7 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | D | Subpart D—General Rules and Hearings | § 386.38 Scope of discovery. | FHWA | (a) Unless otherwise limited by order of the Agency Decisionmaker 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 Agency Decisionmaker 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. | ||||
| 49:49:5.1.1.2.28.4.11.8 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | D | Subpart D—General Rules and Hearings | § 386.39 Protective orders. | FHWA | Upon motion by a party or other person from whom discovery is sought, and for good cause shown, the Agency Decisionmaker 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, or that the scope of discovery be limited to certain matters; (e) Discovery be conducted with no one present except persons designated by the Agency Decisionmaker 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. | ||||
| 49:49:5.1.1.2.28.4.11.9 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | D | Subpart D—General Rules and Hearings | § 386.40 Supplementation of responses. | FHWA | 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/her 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 Agency Decisionmaker or the administrative law judge or agreement of the parties. | ||||
| 49:49:5.1.1.2.28.5.11.1 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | E | Subpart E—Decision | § 386.61 Decision. | FHWA | [50 FR 40306, Oct. 2, 1985, as amended at 70 FR 28485, May 18, 2005; 88 FR 80183, Nov. 17, 2023] | (a) Administrative Law Judge 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, 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 Agency Decisionmaker 45 days after it is served unless a petition or motion for review is filed under § 386.62. The decision shall be served on all parties and on the Agency Decisionmaker. (b) Hearing Officer. The Hearing Officer will prepare a report to the Agency Decisionmaker containing findings of fact and recommended disposition of the matter within 45 days after the conclusion of the hearing. The Agency Decisionmaker will issue a Final Order adopting the report, or may make other such determinations as appropriate. The Agency Decisionmaker's decision to adopt a Hearing Officer's report may be reviewed in accordance with § 386.64. | |||
| 49:49:5.1.1.2.28.5.11.2 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | E | Subpart E—Decision | § 386.62 Review of administrative law judge's decision. | FHWA | (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 Agency Decisionmaker. (d) Copies of all briefs must be served on all parties. (e) No oral argument will be permitted except on order of the Agency Decisionmaker. | ||||
| 49:49:5.1.1.2.28.5.11.3 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | E | Subpart E—Decision | § 386.63 Decision on review. | FHWA | Upon review of a decision, the Agency Decisionmaker 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 Agency Decisionmaker shall issue a final order disposing of the proceedings, and serve it on all parties. | ||||
| 49:49:5.1.1.2.28.5.11.4 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | E | Subpart E—Decision | § 386.64 Reconsideration. | FHWA | [70 FR 28485, May 18, 2005, as amended at 88 FR 80183, Nov. 17, 2023; 89 FR 713, Jan. 5, 2024] | (a) Within 20 days following service of the Final Order, any party may petition the Agency Decisionmaker for reconsideration of the order. If a civil penalty was imposed, the filing of a petition for reconsideration stays the entire action, unless the Agency Decisionmaker orders otherwise. (b) In the event a Notice of Default and Final Order is issued by the Field Administrator as a result of the respondent's failure to reply in accordance with § 386.14(a), the only issue that will be considered upon reconsideration is whether a default has occurred under § 386.14(c). The Final Order may be vacated where a respondent can demonstrate excusable neglect, a meritorious defense, or due diligence in seeking relief. (c) Either party may serve an answer to a petition for reconsideration within 30 days of the service date of the petition. (d) Following the close of the 30-day period, the Agency Decisionmaker will rule on the petition. (e) The ruling on the petition will be the Final Agency Order. A petition for reconsideration of the Agency Decisionmaker's ruling will not be permitted. | |||
| 49:49:5.1.1.2.28.5.11.5 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | E | Subpart E—Decision | § 386.65 Failure to comply with final order. | FHWA | If, within 30 days of receipt of a final agency order 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 § 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. | ||||
| 49:49:5.1.1.2.28.5.11.6 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | E | Subpart E—Decision | § 386.66 Motions for rehearing or for modification. | FHWA | [70 FR 28485, May 18, 2005, as amended at 89 FR 713, Jan. 5, 2024] | (a) No motion for rehearing or for modification of an order shall be entertained for 1 year following the date the Agency Decisionmaker's order goes into effect. After 1 year, any party may file a motion with the Agency Decisionmaker 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 Agency Decisionmaker 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. | |||
| 49:49:5.1.1.2.28.5.11.7 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | E | Subpart E—Decision | § 386.67 Judicial review. | FHWA | [70 FR 28485, May 18, 2005] | (a) Any party to the underlying proceeding, who, after an administrative adjudication, is adversely affected by a Final Agency Order issued under 49 U.S.C. 521 may, within 30 days of service of the Final Agency Order, petition for review of the order in the United States Court of Appeals in the circuit where the violation is alleged to have occurred, or where the violator has its principal place of business or residence, or in the United States Court of Appeals for the District of Columbia Circuit. (b) Judicial review will be based on a determination of whether the findings and conclusions in the Final Agency Order were supported by substantial evidence or were otherwise not in accordance with law. No objection that has not been raised before the Agency will be considered by the court, unless reasonable grounds existed for failure or neglect to do so. The commencement of proceedings under this section will not, unless ordered by the court, operate as a stay of the Final Agency Order of the Agency. | |||
| 49:49:5.1.1.2.28.6.11.1 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | F | Subpart F—Injunctions and Imminent Hazards | § 386.71 Injunctions. | FHWA | [70 FR 28485, May 18, 2005, as amended at 86 FR 57071, Oct. 14, 2021] | Whenever it is determined that a person has engaged, or is about to engage, in any act or practice constituting a violation of section 31502 of title 49, United States Code; of the Motor Carrier Safety Act of 1984; the Hazardous Materials Transportation Act; or any regulation or order issued under that section or those Acts for which the Federal Motor Carrier Safety Administrator exercises enforcement responsibility, FMCSA 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) 5122). | |||
| 49:49:5.1.1.2.28.6.11.2 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | F | Subpart F—Injunctions and Imminent Hazards | § 386.72 Imminent hazard. | FHWA | [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; 65 FR 7756, Feb. 16, 2000; 65 FR 58664, Oct. 2, 2000; 73 FR 76819, Dec. 17, 2008; 78 FR 58481, Sept. 24, 2013; 86 FR 57071, Oct. 14, 2021] | (a) Whenever it is determined that an imminent hazard exists as a result of the transportation by motor vehicle of a particular hazardous material, the Chief Counsel or Deputy Chief Counsel of the FMCSA 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 49 U.S.C. 5122. In this paragraph, “imminent hazard” means the existence of a condition that presents a substantial likelihood that death, serious illness, severe personal injury, or a substantial endangerment to health, property, or the environment may occur before a notice of investigation proceeding, or other administrative hearing or formal proceeding, to abate the risk of harm can be completed. (b)(1) Whenever it is determined that a violation of 49 U.S.C. 31502 or the Motor Carrier Safety Act of 1984, as amended, or the Commercial Motor Vehicle Safety Act of 1986, as amended, or a regulation issued under such section or Acts, or a combination of such violations, poses an imminent hazard to safety, FMCSA, shall order: (i) A commercial motor 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 49 U.S.C. 521(b)(5); (ii) An intermodal equipment provider's specific vehicle or equipment out-of-service, or order an intermodal equipment provider to cease all or part of its operations, as provided by 49 U.S.C. 521(b)(5) and 49 U.S.C. 31151(a)(3)(I). (2) In making any such order, no restrictions shall be imposed on any vehicle, terminal or facility, employee, employer or intermodal equipment provider beyond that required to abate the hazard. (3) In this paragraph (b), imminent hazard means any condition of vehicle, intermodal equipment, employee, or commercial motor vehicl… | |||
| 49:49:5.1.1.2.28.6.11.3 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | F | Subpart F—Injunctions and Imminent Hazards | § 386.73 Operations out of service and record consolidation proceedings (reincarnated carriers). | FHWA | [77 FR 24870, Apr. 26, 2012, as amended at 78 FR 58481, Sept. 24, 2013; 86 FR 57071, Oct. 14, 2021; 89 FR 713, Jan. 5, 2024] | (a) Out-of-service order. FMCSA may issue an out-of-service order to prohibit a motor carrier, intermodal equipment provider, broker, or freight forwarder from conducting operations subject to FMCSA jurisdiction upon a determination by FMCSA that the motor carrier, intermodal equipment provider, broker, or freight forwarder or an officer, employee, agent, or authorized representative of such an entity, operated or attempted to operate a motor carrier, intermodal equipment provider, broker, or freight forwarder under a new identity or as an affiliated entity to: (1) Avoid complying with an FMCSA order; (2) Avoid complying with a statutory or regulatory requirement; (3) Avoid paying a civil penalty; (4) Avoid responding to an enforcement action; or (5) Avoid being linked with a negative compliance history. (b) Record consolidation order. In addition to, or in lieu of, an out-of-service order issued under this section, FMCSA may issue an order consolidating the records maintained by FMCSA concerning the current motor carrier, intermodal equipment provider, broker, and freight forwarder and its affiliated motor carrier, intermodal equipment provider, broker, or freight forwarder or its previous incarnation, for all purposes, upon a determination that the motor carrier, intermodal equipment provider, broker, and freight forwarder or officer, employee, agent, or authorized representative of the same, operated or attempted to operate a motor carrier, intermodal equipment provider, broker, or freight forwarder under a new identity or as an affiliated entity to: (1) Avoid complying with an FMCSA order; (2) Avoid complying with a statutory or regulatory requirement; (3) Avoid paying a civil penalty; (4) Avoid responding to an enforcement action; or (5) Avoid being linked with a negative compliance history. (c) Standard. FMCSA may determine that a motor carrier, intermodal equipment provider, broker, or freight forwarder is reincarnated if there is substantial continuity between the entities such that one … | |||
| 49:49:5.1.1.2.28.7.11.1 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | G | Subpart G—Penalties | § 386.81 General. | FHWA | [56 FR 10184, Mar. 11, 1991, as amended at 65 FR 7756, Feb. 16, 2000; 78 FR 60232, Oct. 1, 2013] | (a) 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 or minimums and consideration of information available at the time the claim is made concerning the nature, gravity of the violation and, with respect to the violator, the degree of culpability, history of prior offenses, effect on ability to continue to do business, and such other matters as justice and public safety may require. In addition to these factors, a civil penalty assessed under 49 U.S.C. 14901(a) and (d) concerning 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 herein, additional information may be developed regarding these 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, consideration will be given to good faith efforts to achieve compliance with the terms of the notices and orders. | |||
| 49:49:5.1.1.2.28.7.11.2 | 49 | Transportation | III | B | 386 | PART 386—RULES OF PRACTICE FOR FMCSA PROCEEDINGS | G | Subpart G—Penalties | § 386.82 Civil penalties for violations of notices and orders. | FHWA | [56 FR 10184, Mar. 11, 1991, as amended at 67 FR 61821, Oct. 2, 2002; 70 FR 28486, May 18, 2005; 77 FR 59826, Oct. 1, 2012] | (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—§ 386.11 (b)(2) and (c)(1)(iv); (2) Notice to post—§ 386.11(c)(3); (3) Final order—§ 386.14, § 386.17, § 386.22, and § 386.61; and (4) Out-of-service order—§ 386.72(b)(1). (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. |
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chapter TEXT,
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