Injunctions and imminent hazards
§386.72 Imminent hazard.
(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.
Editor''s Note: Paragraphs 386.72(b)(1) - (b)(4) below are effective until June 17, 2009.
(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, the Director of the Office of
Enforcement and Compliance or a State Director, or his or her delegate, shall
order a vehicle or employee operating such vehicle out of service, or order an
employer to cease all or part of the employer’s commercial motor vehicle
operations, as provided by 49 U.S.C. 521(b)(5). In making any such order, no
restrictions shall be imposed on any employee or employer beyond that required
to abate the hazard. In this paragraph, “imminent hazard” means any condition
of vehicle, employee, or commercial motor vehicle operations which
substantially increases the likelihood of serious injury or death if not
discontinued immediately.
(2) Upon the issuance of an order under
paragraph (b)(1) of this section, the motor carrier employer or driver employee
shall comply immediately with such order. Opportunity for review shall be
provided in accordance with 5 U.S.C. 554, except that such review shall occur
not later than 10 days after issuance of such order, as provided by section
213(b) of the Motor Carrier Safety Act of 1984 (49 U.S.C. 521(b)(5)). An order
to an employer to cease all or part of its operations shall not prevent
vehicles in transit at the time the order is served from proceeding to their
immediate destinations, unless any such vehicle or its driver is specifically
ordered out of service forthwith. However, vehicles and drivers proceeding to
their immediate destination shall be subject to compliance upon
arrival.
(3) For purposes of this section the
term “immediate destination” is the next scheduled stop of the vehicle already
in motion where the cargo on board can be safely secured.
(4) Failure to comply immediately with
an order issued under this section shall subject the motor carrier employer or
driver to penalties prescribed in subpart G of this part.[Change Notice][New Text]
[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]