[Federal Register: September 19, 2000 (Volume 65, Number 182)]
[Proposed Rules]
[Page 56521-56530]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19se00-23]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 385 and 386
[Docket No. FMCSA-00-7332]
RIN 2126-AA54
Sanctions Against Motor Carriers, Brokers, and Freight Forwarders
for Failure to Pay Civil Penalties
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of proposed rulemaking (NPRM); request for comments.
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SUMMARY: The FMCSA proposes to implement section 206 of the Motor
Carrier Safety Improvement Act of 1999 (MCSIA) by amending the penalty
provisions of the rules of practice of the Federal Motor Carrier Safety
Regulations (FMCSRs). This action would prohibit a motor carrier that
does not pay civil penalties assessed by the FMCSA, or that does not
arrange and abide by its payment agreements, from operating in
interstate commerce. Furthermore, the registration of a broker, freight
forwarder, or for-hire motor carrier that fails to pay a civil penalty
would be suspended. The prohibition would begin on the 91st day after
the payment date specified in the final agency order or on the 91st day
after the due date of a missed payment arranged in a payment plan.
Motor carriers that continue to operate would be subject to additional
penalties, including revocation of their registrations. However, the
prohibition would not apply to anyone who is unable to pay a civil
penalty because the person is a debtor in a case under chapter 11 of
the Bankruptcy Code.
DATES: Comments must be received on or before October 19, 2000.
ADDRESSES: Your signed, written comments must refer to the docket
number appearing at the top of this document and you must submit the
comments to the Docket Clerk, U.S. DOT Dockets, Room PL-401, 400
Seventh Street, SW., Washington, DC 20590-0001.
All comments received will be available for examination at the
above address between 9 a.m. and 5 p.m., e.t., Monday through Friday,
except Federal holidays. Those desiring notification of receipt of
comments must include a self-addressed, stamped envelope or postcard.
All comments will be available for examination using the docket
number appearing at the top of this document in the docket room at the
above address. The FMCSA will file comments received after the comment
closing date in the docket and will consider late comments to the
extent practicable. The FMCSA may, however, issue a final rule at any
time after the close of the comment period. In addition to late
comments, the FMCSA will also continue to file, in the docket, relevant
information becoming available after the comment closing date, and
interested persons should continue to examine the docket for new
material.
FOR FURTHER INFORMATION CONTACT: Ms. Deborah M. Freund, Office of Bus
and Truck Standards and Operations, (202) 366-4009, Federal Motor
Carrier Safety Administration, 400 Seventh Street, SW., Washington, DC
20590-0001; or Mr. Charles Medalen, Office of the Chief Counsel, HCC-
20, (202) 366-1354, Federal Highway Administration, 400 Seventh Street,
SW., Washington, DC 20590-0001. Office hours are from 7:45 a.m. to 4:15
p.m., e.t., Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
Internet users may access all comments received by the U.S. DOT
Dockets, Room PL-401, by using the universal resource locator (URL):
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dms.dot.gov. It is available 24 hours each day, 365 days each
year. Please follow the instructions online for more information and
help.
An electronic copy of this document may be downloaded using a modem
and suitable communications software from the Government Printing
Office's Electronic Bulletin Board Service at (202) 512-1661. Internet
users may reach the Office of the Federal Register's home page at
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.nara.gov/fedreg and the Government Printing Office's
database at http://www.access.gpo.gov/nara.
Background
Section 206 of the Motor Carrier Safety Improvement Act of 1999
(MCSIA)(Public Law 106-159, 113 Stat.
[[Page 56522]]
1748, at 1763) addresses two issues related to delinquent payment of
penalties. Section 206(a) amends 49 U.S.C. 13905(c) by authorizing the
Secretary of Transportation (Secretary) to suspend, amend, or revoke
any part of the registration of a motor carrier, broker, or freight
forwarder if that entity has not paid a civil penalty within 90 days of
the time specified by official order for payment, or has not arranged
and abided by a payment plan. However, the Secretary may not revoke the
registration of a person unable to pay penalties because the person is
a debtor in a case under chapter 11 of the Bankruptcy Code (11 U.S.C.
362 et seq.)
The term ``registration'' applies to for-hire motor carriers,
freight forwarders, and brokers that register with the FMCSA to provide
transportation under 49 U.S.C. chapter 139. This includes entities that
held operating authority from the Interstate Commerce Commission as of
the effective date of the ICC Termination Act of 1995 (ICCTA) (Public
Law 104-88, 109 Stat. 803), as well as entities registered by the
Federal Highway Administration (FHWA) after January 1, 1996 and by the
Federal Motor Carrier Safety Administration on or after January 1,
2000.
Section 206(b) amends 49 U.S.C. 521(b) to prohibit operations in
interstate commerce by an owner or operator of a commercial motor
vehicle (CMV) who fails to pay a civil penalty, or to arrange and abide
by an acceptable payment plan. A CMV owner or operator must cease its
interstate operations if it has not paid its fine within 90 days of the
time specified by the Secretary's order for payment, or has not
arranged and abided by a payment plan. Similar to the exception
contained in section 206(a), the Secretary may not apply this
prohibition to anyone unable to pay penalties because the person is a
debtor in a case under chapter 11 of the Bankruptcy Code.
Sections of U.S. Code and Implementing Regulations Affected
Section 206(a) of the MCSIA authorizes the Secretary to suspend,
amend, or revoke any part of the registration of a motor carrier,
broker, or freight forwarder that fails to pay, or fails to abide by a
payment plan, for civil penalties imposed under several chapters of
title 49 of the United States Code: Chapter 5, Special Authority;
Chapter 51, Transportation of Hazardous Materials; Chapter 149, Civil
and Criminal Penalties; and Chapter 311, Commercial Motor Vehicle
Safety. The subject matter included is quite broad. Chapter 149
encompasses violations of the ICCTA and the commercial regulations.
Chapter 311 includes a broad range of safety regulations, most of which
are also covered in Chapter 5.
Recommendations of DOT Office of Inspector General
Section 216 of the MCSIA requires the Secretary to implement all of
the recommendations contained in the April 26, 1999, report of the
Office of the DOT Inspector General (IG) (``Motor Carrier Safety
Program,'' Report TR-1999-091, available at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.oig.dot.gov/hywauds.htm) assessing the effectiveness of the DOT's motor carrier
safety programs, ``except to the extent to which such recommendations
are specifically addressed in sections 206, 208, 217, and 222 of this
Act.'' One of those recommendations was to ``[i]mplement a procedure
that removes the operating authority from motor carriers that fail to
pay civil penalties within 90 days after final orders are issued or
settlement agreements completed,'' which is specifically addressed in
section 206 of the MCSIA.
The IG report provided the background for its recommendation in the
following narrative:
Standards for administrative collection of penalties, cited in
Code of Federal Regulations, Title 4, Volume 1, Section 102.9, allow
agencies to suspend or revoke licenses or operating authority for
nonpayment of fines. However, OMC [the FHWA's former Office of Motor
Carriers, now the FMCSA] has not exercised these sanctions. For
example, one motor carrier has had $126,653 in outstanding fines
since October 1995 and continues normal operations. Another motor
carrier has a penalty in excess of $22,000, which has been
outstanding for more than four years. OMC's records indicate a
settlement was reached between this motor carrier and the Department
of Justice; however, OMC has not received payment. In addition,
OMC's records indicate the motor carrier had a more recent penalty
assessment in excess of $17,000. The continued practice of
permitting motor carriers with outstanding fines or repetitive
penalties to continue normal operations limits the effectiveness of
OMC's enforcement program.
The subject matter of this NPRM is limited to the sanctions
provided in section 206 of the MCSIA for failure to pay civil penalties
imposed under the procedures of 49 CFR part 386.
The following table summarizes the recent history of the FHWA and
the FMCSA civil fines and forfeitures. The number of new cases has
fluctuated considerably from year to year. Following the decision in
the MST Express v. Federal Highway Administration, 108 F. 3d 401 (D.C.
Cir. 1997) case, which held that the FHWA's safety fitness rating
methodology was invalid because it was not published in accordance with
the notice-and-comment requirements of the Administrative Procedure Act
(5 U.S.C. 553), the FHWA published an interim final rule reestablishing
the rating system for motor carriers of passengers and hazardous
materials and later issued a final rule establishing a new safety
rating system (62 FR 60035, November 6, 1997). Although the decision in
MST Express did not prohibit the FHWA from bringing new civil penalty
actions, which are independent of the rating process, it had the effect
of reducing the number of compliance reviews, which are a primary
generator of enforcement actions. In addition, some motor carriers that
would have requested compliance reviews to upgrade a conditional or an
unsatisfactory safety rating, and some unrated carriers, probably did
not request compliance reviews during the time the decision in MST
Express was in force, because the agency would not have been able to
change a rating of record or to issue a new rating during this time.
The following table provides a summary history of civil fines and
forfeitures assessed and collected by the FMCSA and its predecessor
agencies. The data in this table reflect fiscal records (accounts
receivables) that cover enforcement actions that cross fiscal years.
Table 1.--FMCSA Civil Fines and Forfeitures
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FY 1996 FY 1997 FY 1998 FY 1999
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New Penalties Assessed........ No. of cases.... 2,339 2032 2445 2987
Amount.......... $8,099,961 $5,209,833 $6,835,647 $8,749,408
Collections................... No. of cases.... 2,128 1,101 2,027 3,748
Amount paid..... $8,437,434 $4,438,350 $6,009,032 $7,027,544
Written Off................... No. of cases.... 86 84 112 34
[[Page 56523]]
Amount.......... $394,015 $387,021 $510,478 $114,579
Delinquent Claims with Agency. No. of cases.... 1,237 1,080 968 1,436
Amount due...... $3,711,317 $4,002,140 $3,665,392 $5,118,361
Outstanding Claims with DOJ... No. of cases.... 99 88 50 28
Amount due...... $713,898 $431,940 $406,379 $296,746
Total Outstanding Claims with No. of cases.... 1,336 1,168 1,018 1,464
Agency and DOJ. Amount due...... $4,425,215 $4,434,080 $4,071,771 $5,415,107
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Cases were written off for the following reasons:
Table 2.--Reasons for Writing-Off Cases
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Reason FY 1996 FY 1997 FY 1998 FY 1999
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Carrier out of business......................... $201,773 $228,258 $74,475 $8,785
Bankruptcy...................................... 100,178 58,028 369,172 75,382
Closed by Regional Counsel...................... 43,554 30,848 10,373 2,400
Closed by U.S. Attorney......................... 0 25,450 0 0
Statute of limitations expired.................. 10,901 7,876 0 0
Principal incarcerated.......................... 11,260 0 1,555 0
Principal deceased.............................. 2,665 8,548 20,286 0
Not cost effective to pursue.................... 23,684 21,035 856 0
Foreign debtor (no collection means)............ 0 4,678 33,761 36,797
Files destroyed in OK City bombing.............. 0 2,300 0 0
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Total....................................... $394,015 $387,021 $510,478 $114,579
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The amounts written off varied considerably from year to year. The
largest reductions in write-offs are due to a motor carrier's
bankruptcy and motor carriers that had gone out of business.
Penalty Procedure
The rules of practice for motor carrier proceedings are contained
in 49 CFR part 386. They were recently amended (65 FR 7753, February
16, 2000) to include proceedings concerning violations of the
commercial regulations that were formerly implemented and administered
by the Interstate Commerce Commission. The purpose of the amendment was
to ensure that all civil forfeiture and investigation proceedings
instituted by the FMCSA are governed by uniform and consistent
procedures.
A Notice of Claim (NOC) is the official charging document used by
the agency to initiate an enforcement action for violations of
applicable provisions of the FMCSRs (49 CFR parts 350-399, including
the commercial regulations (49 CFR parts 360-379)) and the Hazardous
Materials Regulations (HMRs, 49 CFR parts 171-180). The NOC lays the
foundation for the claim. Among other things, it lists the violations
discovered during the compliance review conducted at a specified
location on certain date(s), that the agency intends to prosecute;
provides a statement of the provisions of the regulations or law
alleged to have been violated; and a brief statement of facts regarding
the violations. The NOC also specifies the amount being claimed for
each violation and the maximum amount authorized to be claimed under
the statute. The rules for commencement of proceedings and for
pleadings are described at 49 CFR part 386, subpart B.
An NOC is issued by the appropriate FMCSA State Director within 20
business days of the completion of the compliance review or
investigation. To establish a record of delivery, it is mailed
certified/return receipt requested to U.S. respondents and sent
registered/return receipt requested by commercial express courier
service to foreign respondents.
The NOC provides specific instructions to motor carriers on their
response options. A motor carrier may pay its penalty in full--the
agency advises the motor carrier to do so within 25 business days. The
motor carrier may also request a monthly payment schedule to settle the
claim. This request must be made within 25 days of service of the NOC.
Finally, the motor carrier may contest the NOC and request a hearing on
the record on any material issues of fact in dispute--the motor carrier
must file a written request for a hearing within 15 days of service of
the NOC. If the motor carrier does not file such a request, it waives
its right to a hearing.
If the motor carrier does not respond to the FMCSA, the NOC becomes
the Final Agency Order (FAO) by default 25 days after the NOC was
served and the carrier is so notified.
The FAO is a notice of the outstanding debt the motor carrier owes
the Federal government. It may be issued following a proceeding before
the Chief Safety Officer \1\ or an Administrative Law Judge, or it may
follow a carrier's default as discussed above. An order issued by the
Chief Safety Officer is final on the day it is served and specifies a
payment due date. An order issued by an Administrative Law Judge is
final 45 days after it is served (unless it is modified by the Chief
Safety Officer); it will also specify a payment due date.
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\1\ The Chief Safety Officer is also the Assistant Administrator
of the FMCSA (Title 1, Sec. 101 of the Motor Carrier Safety
Improvement Act of 1999 (Public Law 106-159, 113 Stat. 1750,
December 9, 1999).
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If the motor carrier appeals the FAO to a Federal Circuit Court of
Appeals, the terms and payment due date of the FAO are not stayed
unless the Court so specifies.
The FAO advises the motor carrier that, in addition to the amount
of the penalty assessed, the motor carrier may be liable for interest
and administrative penalties based upon the outstanding balance. The
respondent must pay the fine within 30 days of receipt of the FAO. The
respondent may petition the
[[Page 56524]]
FMCSA for reconsideration of the FAO within 20 days after it is served.
If the motor carrier has not paid its fine in full, or if it has
not executed an agreement with the appropriate FMCSA Service Center for
a payment schedule for its fine, an accounts receivable memorandum is
issued by the FMCSA to the FHWA Finance Division which will pursue
collection through administrative channels. (The FHWA is providing
certain administrative support for the FMCSA under an interagency
agreement until the FMCSA is authorized to fully staff its
administrative offices.) If the agency has not received payment 30 days
after the FAO is served on a motor carrier, the FHWA will send a letter
to the motor carrier by certified mail, return receipt requested. The
agency sends additional letters if it has still not received payment by
60 days and 90 days after service of the order. After 180 days, the
FHWA refers the case to the Department of Treasury for collection of
the fine in accordance with the Debt Collection Improvement Act of
1996, Pub. L. 104-134, 110 Stat. 1321-358.
This NPRM would add one additional step to the penalty procedure.
If the FMCSA has not received payment 45 days after service of the FAO,
the agency will send the motor carrier a letter by certified mail,
return receipt requested. This 45-day letter would provide the motor
carrier one additional notice that its operations in interstate
commerce (in the case of private and for-hire motor carriers) and its
operating authority (in the case of authorized for-hire motor carriers,
brokers, and freight forwarders) may be suspended on the 91st day after
service of the FAO. Section 206 of the MCSIA specifically states that
the cessation of operations and suspension of operating authority
provisions do not apply to motor carriers unable to pay civil penalties
because they are debtors in bankruptcy proceedings under chapter 11 of
the Bankruptcy Code. Therefore, those carriers must provide the
following information: (1) The chapter of the Bankruptcy Code under
which the bankruptcy proceeding is filed (i.e., Chapter 7 or 11); (2)
the bankruptcy case number; (3) the court in which the bankruptcy
proceeding was filed; and (4) any other information requested by the
agency to determine a debtor's bankruptcy status. This written response
by the debtor will enable the FMCSA to verify debtor status and to
assess the debtor's ability to pay penalties.
Motor carriers, freight forwarders, and brokers are cautioned,
however, not to construe the 45-day letter as an opportunity to reargue
the merits of the penalty assessment, or put into issue their ability
to pay. They will have had several opportunities to address these
concerns with the FMCSA at earlier stages in the penalty procedure. The
only written response from a carrier, broker, or freight forwarder
sufficient to prevent suspension of operations and operating authority,
would be proof of payment, or proof of bankruptcy debtor status.
Brokers, freight forwarders, and for-hire motor carriers that
continue to operate in interstate commerce in violation of the
suspension of their operating authority may have that authority revoked
after notice and opportunity for a proceeding in accordance with 49
U.S.C. 13905(c). Additional sanctions may be imposed under paragraph IV
(h) of Appendix A to part 386 on all carriers, freight forwarders, and
brokers that operate during a period of suspension.
Motor Carriers Subject to Penalties
Part 386 defines a motor carrier as a [for-hire] motor carrier,
motor private carrier, or motor carrier of migrant workers as defined
in 49 U.S.C. 13102 and 31501 (65 FR 7753 at 7756, February 16, 2000).
There are currently two categories of motor carriers of passengers
warranting special mention: (1) Non-business private motor carriers of
passengers, such as, churches or social groups, and (2) owners and
operators of vehicles designed to transport fewer than 16 passengers,
including the driver, for compensation.
Non-business private motor carriers of passengers are not required
to maintain most of the records otherwise mandated by the FMCSRs and do
not receive safety ratings from the FMCSA. However, they are still
subject to many of the substantive regulations and to safety
enforcement at roadside. Violations of the FMCSRs, HMRs, or the
commercial regulations discovered during the course of a compliance
review or at roadside could subject these motor carriers to enforcement
action and other sanctions. In addition, if a motor carrier in this
category were found to have such unsafe operational practices and/or to
have committed such severe safety violations as to make it an imminent
hazard to public health, the FMCSA may issue an imminent hazard out-of-
service order under 49 CFR 386.72.
The second category of passenger motor carrier of interest is
comprised of for-hire operators of limousines and vans that are
designed to transport between 9 and 15 passengers, including the
driver. These for-hire motor carriers were required to register and
obtain operating authority from the former Interstate Commerce
Commission. Since 1996, they have been required to register with the
FHWA's former Office of Motor Carriers, now the FMCSA. They were not
subject to most provisions of the FMCSRs because their vehicles were
not considered ``commercial motor vehicles'' under 49 CFR 390.5--the
definition covered only passenger vehicles designed to transport 16 or
more passengers, including the driver.
In 1998, section 4008 of the Transportation Equity Act for the 21st
Century (TEA-21) (Public Law 105-178, 112 Stat. 107, at 405, June 9,
1998) changed the statutory definition of ``commercial motor vehicle''
to include those designed or used to transport ``more than 8 passengers
(including the driver) for compensation'' (49 U.S.C. 31132(1)(B)). Most
of the FMCSRs (except parts 382, 383, and a few other requirements)
became applicable to these smaller passenger vehicles on June 9, 1999;
subpart B of part 387, minimum levels of financial responsibility for
for-hire motor carriers of passengers, already was applicable to those
carriers subject to the registration requirements.
Section 212 of the MCSIA subsequently required the FMCSA to amend
the FMCSRs to cover certain commercial motor vehicles designed or used
to transport between 9 and 15 passengers (including the driver) for
compensation. At a minimum, the Congress indicated that the rulemaking
shall apply the FMCSRs to ``camionetas,'' commercial vans operating in
the area of the U.S.-Mexico border, as well as those commercial vans
operating in interstate commerce that have been determined to pose
serious safety risks. A rulemaking on this topic is under development.
As this class of carriers becomes subject to the FMCSRs, they will also
be subject to the consequences proposed in today's NPRM--namely,
revocation of operating authority and prohibition against operating in
interstate commerce, if they fail to pay civil penalties assessed by
the FMCSA.
Motor Carriers With Penalties Outstanding
This rulemaking will not be retroactive. The provisions of this
proposed action would apply only to penalties included in FAOs issued
on or after the effective date of a final rule issued in this matter.
There is nothing in the language of section 206 of the MCSIA that
suggests that the Congress intended it to apply retroactively. As the
FMCSA noted in the preamble to the final rule concerning the
application of
[[Page 56525]]
the provisions of section 4009 of the TEA-21 (Safety Fitness), the
Supreme Court's discussion of retroactive and prospective application
of laws in Landgraf v. USI Film Products, 511 U.S. 244 (1994), was
carefully nuanced. It said, among other things:
When a case implicates a federal statute enacted after the
events in suit, the court's first task is to determine whether
Congress has expressly prescribed the statute's proper reach. If
Congress has done so, of course, there is no need to resort to
judicial default rules. When, however, the statute contains no such
express command, the court must determine whether the new statute
would have retroactive effect, i.e., whether it would * * * increase
a party's liability for past conduct * * * If the statute would
operate retroactively, our traditional presumption teaches that it
does not govern absent clear congressional intent favoring such a
result.
Id., at 280.
We find that section 206 of the MCSIA includes no ``express
command'' to shut down motor carriers based on non-payment of penalties
assessed before the provision was enacted. Therefore, the presumption
against retroactive application of laws applies.
Exclusion of Chapter 11 Debtors
The final paragraphs of MCSIA sections 206(a) and (b) note that the
suspension or revocation of registration and the prohibition on
operation in interstate commerce after nonpayment of penalties ``shall
not apply to any person who is unable to pay a civil penalty because
such person is a debtor in a case under Chapter 11 of title 11, United
States Code.''
The FMCSA believes that the Congress, in creating the bankruptcy
exemption, did not intend to exempt all Chapter 11 debtors from the
license suspension/revocation provision and the requirement to cease
operations in interstate commerce. The express language of the
statutory exemption applies not to all Chapter 11 debtors, but to any
person who is unable to pay a civil penalty by reason of being in
Chapter 11. Congress recognized that the determination of whether a
Chapter 11 debtor is able to pay certain debts is within the
jurisdiction of the bankruptcy court. The FMCSA interprets the
statutory language as requiring the agency to seek a determination from
the bankruptcy court that a motor carrier is able to pay a civil
penalty claim prior to imposing a suspension of its operating authority
or ordering it to cease its interstate operations.
Under the automatic stay provisions of the Bankruptcy Code, a
petition filed in bankruptcy ``operates as a stay, applicable to all
entities of--(1) the commencement or continuation * * * of a judicial,
administrative, or other action or proceeding against the debtor that
was or could have been commenced before the commencement of the
bankruptcy case. * * *'' 11 U.S.C. 362(a). However, ``the filing of a
petition * * * does not operate as a stay--(4) * * * of the
commencement or continuation of an action or proceeding by a
governmental unit to enforce such governmental unit's police or
regulatory power * * * and (5) * * * Of the enforcement of a judgment,
other than a monetary judgment, obtained in an action or proceeding by
a governmental unit to enforce such unit's police or regulatory
power.'' 11 U.S.C 362(b).
In determining whether an agency action fits within the exemption
of section 362(b)(4), the courts have developed the ``public policy''
test which distinguishes between governmental proceedings aimed at
effectuating public policy and those aimed at protecting the
government's pecuniary interest in the debtor's property. See Eddleman
v. U.S. Department of Labor, 923 F. 2d 782 (10th Cir. 1991); and NLRB
v. Edward Cooper Painting, Inc., 804 F. 2d 934 (6th Cir. 1986). Agency
proceedings under section 206 of the MCSIA are clearly designed to
bring about the public policy of encouraging compliance with the
FMCSRs, HMRs, and commercial regulations. As a result, filing for
bankruptcy protection under Chapter 11 or any other chapter does not
automatically relieve a motor carrier, broker, or freight forwarder
from its regulatory obligations.
Relationship of Penalty Provision to Safety Rating
As a result of section 15(b) of the Motor Carrier Safety Act of
1990 (Public Law 101-500, 104 Stat. 1218), motor carriers receiving an
unsatisfactory safety rating from the FHWA/FMCSA have been prohibited
from using CMVs to transport more than 15 passengers, including the
driver, or placardable quantities of hazardous materials, in interstate
commerce. Furthermore, those motor carriers could not be used by
Federal agencies. These prohibitions and the procedures for applying
them are contained in 49 CFR 385.13. Section 4009 of the TEA-21
extended a similar prohibition to all other motor carriers,
irrespective of their cargo, which are found by the FMCSA to be unfit.
These owners and operators may not operate CMVs in interstate commerce
beginning on the 61st day after such fitness determination. Regulations
have been issued to implement this provision (65 FR 50919, August 22,
2000).
There are circumstances when the FMCSA assesses penalties against a
motor carrier but does not assign that motor carrier an unsatisfactory
safety rating. However, under the rules proposed today, the impact of
an unpaid fine on a motor carrier's operations would be the same--the
motor carrier would be prohibited from operating CMVs in interstate
commerce. Those motor carriers that do not pay civil penalties or abide
by payment plans as required will be in violation of the law.
Discussion of Proposal
The proposed changes to 49 CFR part 386 are a straightforward
implementation of the amendments to 49 U.S.C. 521(b) and 13905(c) made
by section 206 of the MCSIA. The regulatory changes prohibit interstate
operations by motor carriers delinquent in payment of penalties
assessed by the FMCSA, unless the motor carrier is unable to pay
because it is a debtor in a case under Chapter 11, title 11, United
States Code. Brokers, freight forwarders, and for-hire motor carriers
may also have their registrations suspended, amended, or revoked for
failure to pay civil penalties in a timely manner.
The proposed rule would apply prospectively. It would only apply to
FAOs issued on or after the effective date of the final rule. FAOs
issued before that date would not be subject to the provisions of the
rule.
The FMCSA is providing a comment period of 30 days on this proposed
rule. While E.O. 12866 and DOT policy generally favor at least a 60-day
period, FMCSA is setting an earlier deadline in order to meet the
statutory deadline for issuing the final rule.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FMCSA has determined that this proposed regulatory action is
not significant within the meaning of Executive Order 12866 nor under
the regulatory policies and procedures of the DOT. This proposed rule
would require any motor carrier in interstate commerce that had not
paid a penalty assessed by the FMCSA within 90 days of the final agency
order, or had not abided by a payment plan that it had arranged with
the FMCSA, from providing interstate transportation.
As of May 25, 2000, the FMCSA's MCMIS and Enforcement Tracking
Systems and the FHWA's DAFIS fiscal accounting system contained the
[[Page 56526]]
following information concerning motor carrier enforcement cases that
resulted in fines being assessed:
Table 3.--Enforcement Cases Involving Fines, U.S. Motor Carriers
--------------------------------------------------------------------------------------------------------------------------------------------------------
1-6 7-20 21-100 101-400 401-1000 1001+ Total Percent
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FY 1998 Total cases............................. 255 269 167 36 6 3 736 100.0
Paid immediately............................ 154 177 128 31 6 3 499 67.8
Billings current............................ 21 17 9 2 0 0 49 6.7
Billings outstanding \1\.................... 80 75 30 3 0 0 188 25.5
FY 1999 Total cases............................. 799 760 419 66 11 7 2062 100.0
Paid immediately............................ 487 538 336 54 11 7 1433 69.5
Billings current............................ 106 82 52 9 0 0 249 12.1
Billings outstanding \1\.................... 206 140 31 3 0 0 380 18.4
FY 2000 \1\ Total cases......................... 295 300 160 18 2 1 776 100.0
Paid immediately \1\........................ 112 153 85 12 1 1 364 46.9
Billings current \1\........................ 66 69 38 1 0 0 174 22.4
Billings outstanding \1\.................... 117 78 37 5 1 0 238 30.7
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Year-to-date.
Note: ``Billings Outstanding'' in this and the following two tables (tables No. 4 and 5) refers to motor carriers that are more than 30 days delinquent
in their payments.
Table 4.--Fines Against U.S. Motor Carriers, Dollars
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fines 1-6 7-20 21-100 101-400 401-1000 1001+ Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
FY 1998 Total fine........................................... $637,446 $1,071,130 $1,220,525 $425,220 $52,030 $72,500 $3,478,851
Paid immediately......................................... 307,464 646,025 882,435 348,460 51,670 72,500 2,308,554
Billings current......................................... 13,076 56,814 65,246 16,296 0 0 151,432
Billings outstanding..................................... 235,955 338,937 201,035 49,310 0 0 825,237
FY 1999 Total fine........................................... 1,934,845 3,241,918 3,257,668 768,359 70,290 88,000 9,361,080
Paid immediately......................................... 1,078,740 1,939,570 2,271,852 561,684 64,790 88,000 6,004,636
Billings current......................................... 201,975 235,982 342,877 90,372 0 0 871,206
Billings outstanding..................................... 614,914 939,860 405,880 126,630 0 0 2,087,284
FY 2000 \1\ Total fine....................................... 587,477 1,197,055 1,260,461 144,340 18,670 43,510 3,251,513
Paid immediately......................................... 270,204 613,232 526,369 141,040 4,800 43,510 1,599,155
Billings current......................................... 68,813 156,473 68,813 156,473 187,424 13,800 651,796
Billings outstanding..................................... 302,946 429,825 455,043 74,550 13,870 0 1,276,234
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Year-to-date.
Table 5.--Average Fines per Case Against U.S. Motor Carriers, Dollars
--------------------------------------------------------------------------------------------------------------------------------------------------------
1-6 7-20 21-100 101-400 401-1000 1001+ Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
FY 1998 Total fine........................................... $2,500 $3,982 $7,309 $11,812 $8,672 $24,167 $4,727
Paid immediately......................................... 1,997 3,650 6,894 11,241 8,612 24,167 4,626
Billings current......................................... 623 3,342 7,250 8,148 n/a n/a 3,090
Billings outstanding..................................... 2,949 4,519 6,701 16,437 0 0 4,390
FY 1999 Total fine........................................... 2,422 4,266 7,775 11,642 6,390 12,571 4,540
Paid immediately......................................... 2,215 3,605 6,761 10,402 5,890 12,571 4,190
Billings current......................................... 1,905 2,878 6,594 10,041 n/a n/a 3,499
Billings outstanding..................................... 2,985 6,713 13,093 42,210 0 0 5,493
FY 2000 \1\ Total fine....................................... 1,991 3,990 7,878 8,019 9,335 43,510 4,190
Paid immediately......................................... 2,413 4,008 6,193 11,753 4,800 43,510 4,393
Billings current......................................... 1,043 2,268 1,811 156,473 0 0 3,746
Billings outstanding..................................... 2,589 5,511 12,298 14,910 13,870 0 5,362
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Year-to-date.
The number of motor carriers with fines outstanding is a minute
fraction of the motor carriers in the FMCSA's MCMIS. For example, in
fiscal year 1999, 380 motor carriers had not paid their fines, or were
more than 30 days overdue in their payment plans. In that year, there
were approximately 500,000 motor carriers listed as active. However,
the dollar value of the outstanding claims is substantial (see Tables 1
and 4), and has remained relatively constant over time.
Table 6 expands upon the information contained in Table 2 and
illustrates the payment records from motor carriers of different size
categories for Federal fiscal year 1999, the most recent year for which
a full year's worth of data is available.
[[Page 56527]]
Table 6.--Fiscal Year 1999 Payment Patterns of U.S. Motor Carriers, by Power Units Operated
--------------------------------------------------------------------------------------------------------------------------------------------------------
1-6 7-20 21-100 101-400 401-1000 1001+ Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Rated carriers............................................... 88,825 25,617 11,824 2,135 360 178 128,939
Unrated carriers............................................. 298,350 17,381 4,149 490 80 37 320,487
Total carriers............................................... 387,175 42,998 15,973 2,625 440 215 449,426
Total cases.................................................. 799 760 419 66 11 7 2,062
Paid immediately............................................. 487 538 336 54 11 7 1433
(Percent cases).............................................. 61.0% 70.8% 80.2% 81.8% 100.0% 100.0% 69.5%
Billings current............................................. 106 82 52 9 0 0 249
(Percent cases).............................................. 13.3% 10.8% 12.4% 13.6% 0.0% 0.0% 12.1%
Billings outstanding......................................... 206 140 31 3 0 0 380
(Percent cases).............................................. 25.8% 18.4% 7.4% 4.5% 0.0% 0.0% 18.4%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Finally, the data from a recent FHWA report of accounts receivable
(as of April 30, 2000, and covering accounts for the prior 12 month
period) provides a snapshot of motor carriers' progress in adhering to
their payment plans. Because of the particular reporting period, the
data in Table 7 is not directly comparable to the other tables.
However, the average principal per account is comparable to the
``Billings outstanding'' figures in Table 5.
Table 7.--Payment Plans Accounts, May 1999-April 2000
----------------------------------------------------------------------------------------------------------------
Status Number Principal Avg/acct
----------------------------------------------------------------------------------------------------------------
Current......................................................... 177 $947,313 $5,352
1-30 days....................................................... 155 887,981 5,729
31-60 days...................................................... 196 795,232 4,057
61-90 days...................................................... 142 507,839 3,576
91-180 days..................................................... 226 998,224 4,417
896 4,136,589 4,617
----------------------------------------------------------------------------------------------------------------
Out of the 896 cases, 670 (75 percent) of the motor carriers would
be able to continue operating in interstate commerce under the
provisions of the NPRM, provided that no other sanctions (such as a
determination of unfitness) had been issued. (Because of the accounting
case coding method used, there is no readily available breakdown by the
size categories of motor carriers, nor could we determine readily how
these cases were divided among U.S., Canadian, or Mexican motor
carriers.) Not shown in the table are an additional 1,539 cases that
were delinquent over 181 days--these had been referred to the
Department of Treasury for collection, and include cases referred prior
to May 1999.
Based upon the data presented here, the FMCSA anticipates that this
rulemaking will have minimal economic impact on the interstate motor
carrier industry. Statistics on enforcement actions taken during each
of Federal fiscal years 1996 through 1999 indicate that approximately
300 to 500 motor carriers per year did not pay their assessed penalties
within 90 days after receiving a final agency order. Under the proposed
regulations, these motor carriers would be required to cease their
operations in interstate commerce until they paid their penalties. That
sanction may induce most such motor carriers to pay the civil penalty
within 90 days or to abide by their agreed-upon payment plans. It is
assumed that the costs of paying the fines, which have historically
averaged between 3,500 and 5,500, would be less than the potential
significantly higher cost of not paying, and facing the shutdown of
interstate operations. Thus, the entities involved would take steps to
achieve compliance with the lower cost alternative. For the purpose of
this analysis, the FMCSA estimates that between 50 and 75 percent of
these motor carriers would pay their fines within 90 days rather than
face additional sanctions. Therefore, approximately 75 to 250 motor
carriers annually might not pay their assessed fines and would face the
penalties attached to this proposed rule. This estimate is conservative
because it does not account for those motor carriers in Chapter 11
bankruptcy proceedings that would not be subject to this proposed rule.
As noted above, the data presented also show that the average fines
assessed on the motor carriers range between 3,500 and 5,500. The
majority of fines that are paid under payment plans arranged with the
FMCSA --75 percent--are not more than 90 days in arrears. However, this
analysis is limited to the subject of this NPRM, namely, timely payment
of fines. It does not take into consideration the final rule concerning
``unfit'' motor carriers that the agency published in the Federal
Register on August 22, 2000 (65 FR 50919). That rulemaking implements
the provisions of section 4009 of TEA-21 (Pub. L. 105-178, Title, IV,
section 4009(a), 112 Stat. 405, (June 9, 1998)). Some carriers may be
forced to halt operations both because they have an unsatisfactory
safety rating and because they have not paid outstanding penalties.
Although this number may be small, it complicates the task of
separately determining the impact of this rule. The agency is
interested in any information that will help to determine the economic
impact of this proposed rule on motor carrier transportation and any
additional impacts on industry customers.
Based upon its analysis of statistical information concerning motor
carriers' improvement in their safety ratings, the FMCSA believes that
the vast majority of motor carriers interested in continuing their
operations would be able to do so. The adverse impact that this rule
would have on those few motor carriers not involved in bankruptcy
proceedings which fail to pay their penalties in a timely manner, is
exactly the effect intended by Congress.
This proposed rule would only affect the operations of the small
number of motor carriers that do not pay civil penalties assessed as
part of enforcement actions. The number of motor carriers involved is
expected to continue to be extremely small--fewer than one-tenth of one
percent of motor
[[Page 56528]]
carriers per year listed as active in the MCMIS. The FMCSA believes the
number of motor carriers potentially subject to this level of impact is
much smaller than the number of motor carriers that cease operations as
a result of normal economic fluctuations. This rulemaking reinforces
the importance of complying with the safety regulations by putting into
place a mechanism to require motor carriers to pay penalties assessed,
unless they are unable to pay because they are debtors in Chapter 11
bankruptcy proceedings.
This rulemaking imposes no requirements that would generate new
costs for motor carriers, brokers, and freight forwarders. Those
entities would see no change to their operations, provided they pay
assessed monetary penalties within the time frames that they arrange
with the FMCSA. Based upon the extremely small number of motor carriers
projected to be affected, the agency believes that the overall adverse
economic effects of this rulemaking would be minimal. This rulemaking,
if adopted, would allow the FMCSA to require those very few motor
carriers that do not pay civil penalties, or abide by payment
agreements, to cease their operations in interstate commerce. Brokers,
freight forwarders, and for-hire motor carriers operating in interstate
commerce would also lose their operating authority until they paid
their overdue civil penalties. This proposed rule would provide the
FMCSA with an essential tool to take prompt and effective action
against these motor carriers.
This rulemaking would not result in inconsistency or interference
with another agency's actions or plans. The FMCSA believes that the
rights and obligations of recipients of Federal grants will not be
materially affected by this regulatory action.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612) the FMCSA has evaluated the effects of this proposed rulemaking on
small entities. The motor carriers that would be economically impacted
by this rulemaking would be those who do not pay their civil penalties
by the 90th day after the FMCSA's final agency order or that have
failed to arrange and abide by a payment plan.
Motor carriers can avoid the consequences of this proposed rule
simply by paying their civil penalties. The FMCSA does not assess fines
at a level that would cause a motor carrier to shortchange its safety
and soundness of operations in order to pay its fine. In determining
the level of penalties, the FMCSA takes into account, among other
things, a motor carrier's ability to pay. The FMCSA also allows motor
carriers to arrange a payment plan with the agency. Both of these
considerations are tailored to the financial needs of small motor
carriers and are part of the agency's current procedures. Therefore,
the FMCSA hereby certifies that this regulatory action would not have a
significant economic impact on a substantial number of small entities.
The FMCSA invites public comment on this determination.
Unfunded Mandates Reform Act of 1995
This proposed rule would not impose a Federal mandate resulting in
the expenditure by State, local, or tribal governments, in the
aggregate, or by the private sector, of $100 million or more in any one
year (2 U.S.C 1531 et seq.).
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
We have analyzed this proposal under Executive Order 13045,
``Protection of Children from Environmental Health Risks and Safety
Risks.'' This proposed rule is not economically significant and does
not concern an environmental risk to health or safety that would
disproportionately affect children.
Executive Order 12630 (Taking of Private Property)
This proposed rule would implement a statutory mandate to prohibit
motor carriers that do not pay assessed penalties from operating in
interstate commerce. Motor carriers can avoid all of the implications
of this mandate by complying with the FMCSRs, thereby avoiding adverse
enforcement actions. Failing that, the motor carrier can avoid the new
sanctions this NPRM would attach by paying penalties assessed within 90
days of the final agency order. If the motor carrier arranges a payment
plan with the FMCSA, it can avoid the new sanctions by abiding by its
payment plans. The FMCSA therefore certifies that this rule has no
takings implications under the Fifth Amendment or Executive Order
12630, Governmental Actions and Interference with Constitutionally
Protected Property Rights.
Executive Order 13132 (Federalism)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132, dated August 4, 1999. The
FMCSA has determined this proposed rule does not have a substantial
direct effect on, or sufficient federalism implications for, the
States, nor would it limit the policymaking discretion of the States.
These proposed changes to the FMCSRs would not directly preempt any
State law or regulation. They would not impose additional costs or
burdens on the States. Although the FMCSA is revising part 386 of the
FMCSRs, States are not required to adopt part 386 as a condition for
receiving Motor Carrier Safety Assistance Program grants. Also, this
action would not have a significant effect on the States' ability to
execute traditional State governmental functions.
Executive Order 12372 (Intergovernmental Review)
Catalog of Domestic Assistance Program Number 20.217, Motor Carrier
Safety. The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this program.
Paperwork Reduction Act
This proposed action would not involve an information collection
that is subject to the requirements of the Paperwork Reduction Act of
1995, 44 U.S.C. 3501-3520.
National Environmental Policy Act
The agency has analyzed this proposal for the purpose of the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
has determined that this action would not have an adverse effect on the
quality of the environment.
Regulatory Identification Number
A regulatory identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects
49 CFR Part 385
Highway safety, Motor carriers.
[[Page 56529]]
49 CFR Part 386
Highway safety, Motor carriers, Rules of practice.
Issued on: September 14, 2000.
Clyde J. Hart, Jr.,
Acting Deputy Administrator.
In consideration of the foregoing, the FMCSA proposes to amend
title 49, Code of Federal Regulations, Chapter III, parts 385 and 386
as set forth below:
PART 385--SAFETY FITNESS PROCEDURES
1. Revise the authority citation for part 385 to read as follows:
Authority: 49 U.S.C. 113, 504, 521(b)(5)(A) and (b)(8), 5113,
31136, 31144, 31502; and 49 CFR 1.73.
2. Add Sec. 385.14 to read as follows:
Sec. 385.14 Motor carriers, brokers, and freight forwarders delinquent
in paying civil penalties: prohibition on transportation.
(a) A motor carrier that has failed to pay civil penalties imposed
by the FMCSA, or has failed to abide by a payment plan, may be
prohibited from operating CMVs in interstate commerce under 49 CFR
386.83.
(b) A broker, freight forwarder, or for-hire motor carrier that has
failed to pay civil penalties imposed by the FMCSA, or has failed to
abide by a payment plan, may be prohibited from operating in interstate
commerce, and its registration may be suspended under the provisions of
49 CFR 386.84.
PART 386--RULES OF PRACTICE FOR MOTOR CARRIER PROCEEDINGS
3. Revise the authority citation for part 386 to read as follows:
Authority: 49 U.S.C. 113, Chapters 5, 51, 59, 131-141, 145-149,
311, 313, and 315; sec. 206, Pub. L. 106-159; and 49 CFR 1.45 and
1.73.
4. Revise Sec. 386.1 to read as follows:
Sec. 386.1 Scope of rules in this part.
The rules in this part govern proceedings before the Assistant
Administrator, who also acts as the Chief Safety Officer of the Federal
Motor Carrier Safety Administration (FMCSA), 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).
The purpose of the proceedings is to enable the Assistant Administrator
to determine whether motor carriers, property brokers, freight
forwarders, or their agents, employees, or any other person subject to
the jurisdiction of the FMCSA, have failed to comply with the
provisions or requirements of applicable statutes and the corresponding
regulations and, if such violations are found, to issue an appropriate
order to compel compliance with the statute or regulation, assess a
civil penalty, or both.
5. In Sec. 386.2, remove ``Federal Highway Administration'' and add
``Federal Motor Carrier Safety Administration'' each place it appears;
and add the new definitions of Assistant Administrator, Broker, Final
agency order, and Freight forwarder, in alphabetical order, to read as
follows:
Sec. 386.2 Definitions.
* * * * *
Assistant Administrator means the Assistant Administrator of the
Federal Motor Carrier Safety Administration. The Assistant
Administrator is the Chief Safety Officer of the agency pursuant to 49
U.S.C.113(d), and the final agency decisionmaker in motor carrier
safety and hazardous materials proceedings under this part.
* * * * *
Broker means a person who, for compensation, arranges or offers to
arrange the transportation of property by an authorized motor carrier.
Motor carriers, or persons who are employees or bona fide agents of
carriers, are not brokers within the meaning of this section when they
arrange or offer to arrange the transportation of shipments which they
are authorized to transport and which they themselves have accepted and
legally bound themselves to transport.
* * * * *
Final agency order means a notice of final agency action issued
pursuant to this part by either the appropriate FMCSA Field
Administrator (for default judgements under Sec. 386.14(e)), the FMCSA
Chief Safety Officer, or an Administrative Law Judge (ALJ), typically
requiring payment of a civil penalty by a broker, freight forwarder, or
motor carrier.
Freight forwarder means a person holding itself out to the general
public (other than as an express, pipeline, rail, sleeping car, motor,
or water carrier) to provide transportation of property for
compensation in interstate commerce, and in the ordinary course of its
business:
(1) Performs or provides for assembling, consolidating, break-bulk,
and distribution of shipments;
(2) Assumes responsibility for transportation from place of receipt
to destination; and
(3) Uses for any part of the transportation a carrier subject to
FMCSA jurisdiction.
* * * * *
6. Add Secs. 386.83 and 386.84 to read as follows:
Sec. 386.83 Sanction for failure to pay civil penalties or abide by
payment plan; operation in interstate commerce prohibited.
(a)(1) General rule. A motor carrier that fails to pay a civil
penalty in full within 90 days after the date specified for payment by
the FMCSA's Final Agency Order is prohibited from operating in
interstate commerce starting on the next (i.e., the 91st) day. The
prohibition continues until the FMCSA has received full payment of the
penalty.
(2) Civil penalties paid in installments. The FMCSA Service Center
may allow a motor carrier to pay a civil penalty in installments. If
the motor carrier fails to make an installment payment on schedule, the
payment plan is void and the entire debt is payable immediately. A
motor carrier that fails to pay the full outstanding balance of its
civil penalty within 90 days after the date of the missed installment
payment, is prohibited from operating in interstate commerce on the
next (i.e., the 91st) day. The prohibition continues until the FMCSA
has received full payment of the entire penalty.
(3) Appeals to Federal Court. If the motor carrier appeals the
final agency order to a Federal Circuit Court of Appeals, the terms and
payment due date of the final agency order are not stayed unless the
Court so specifies.
(b)(1) Notification of delinquent payment. The FMCSA will notify
the motor carrier in writing if it has not received payment within 45
days after the date specified for payment by the final agency order or
the date of a missed installment payment. The notice will include a
warning that failure to pay the entire penalty within 90 days after
payment was due, will result in the motor carrier being prohibited from
operating in interstate commerce.
(2) The notice will be delivered by certified mail or commercial
express service. If a motor carrier's principal place of business is in
a foreign country, it will be delivered to the motor carrier's
designated agent.
(c) Motor carriers that continue to operate in interstate commerce
in violation of this section may be subject to additional sanctions
under paragraph IV (h) of Appendix A to part 386.
(d) This section does not apply to any person who is unable to pay
a civil penalty because the person is a debtor
[[Page 56530]]
in a case under chapter 11, title 11, United States Code. Motor
carriers in bankruptcy proceedings under chapter 11 must provide the
following information in their response to the FMCSA:
(1) The chapter of the Bankruptcy Code under which the bankruptcy
proceeding is filed (i.e., Chapter 7 or 11);
(2) The bankruptcy case number;
(3) The court in which the bankruptcy proceeding was filed; and
(4) Any other information requested by the agency to determine a
debtor's bankruptcy status.
Sec. 386.84 Sanction for failure to pay civil penalties or abide by
payment plan; suspension or revocation of registration.
(a)(1) General rule. The registration of a broker, freight
forwarder, or for-hire motor carrier that fails to pay a civil penalty
in full within 90 days after the date specified for payment by the
FMCSA's final agency order, will be suspended starting on the next
(i.e., the 91st) day. The suspension continues until the FMCSA has
received full payment of the penalty.
(2) Civil penalties paid in installments. TheFMCSA Service Center
may allow a respondent broker, freight forwarder, or for-hire motor
carrier to pay a civil penalty in installments. If the respondent fails
to make an installment payment on schedule, the payment plan is void
and the entire debt is payable immediately. The registration of a
respondent that fails to pay the remainder of its civil penalty in full
within 90 days after the date of the missed installment payment, is
suspended on the next (i.e., the 91st) day. The suspension continues
until the FMCSA has received full payment of entire penalty.
(3) Appeals to Federal Court. If the motor carrier appeals the
final agency order to a Federal Circuit Court of Appeals, the terms and
payment due date of the final agency order are not stayed unless the
Court so specifies.
(b)(1) Notification of delinquent payment. The FMCSA will notify a
respondent broker, freight forwarder, or for-hire motor carrier in
writing if it has not received payment within 45 days after the date
specified for payment by the final agency order or the date of a missed
installment payment. The notice will include a warning that failure to
pay the entire penalty within 90 days after payment was due, will
result in the suspension of the respondent's registration.
(2) The notice will be delivered by certified mail or commercial
express service. If a respondent's principal place of business is in a
foreign country, it will be delivered to the respondent's designated
agent.
(c) The registration of a broker, freight forwarder or for-hire
motor carrier that continues to operate in interstate commerce in
violation of this section may be revoked after notice and opportunity
for a proceeding in accordance with 49 U.S.C. 13905(c). Additional
sanctions may be imposed under paragraph IV (h) of Appendix A to part
386.
(d) This section does not apply to any person who is unable to pay
a civil penalty because the person is a debtor in a case under chapter
11, title 11, United States Code. Brokers, freight forwarders, or for-
hire motor carriers in bankruptcy proceedings under chapter 11 must
provide the following information in their response to the FMCSA:
(1) The chapter of the Bankruptcy Code under which the bankruptcy
proceeding is filed (i.e., Chapter 7 or 11);
(2) The bankruptcy case number;
(3) The court in which the bankruptcy proceeding was filed; and
(4) Any other information requested by the agency to determine a
debtor's bankruptcy status.
* * * * *
Appendix A to Part 386 [Amended]
7. Add paragraph h to part IV of Appendix A to part 386 to read as
follows:
* * * * *
h. Violation--conducting operations during a period of suspension
under Sec. 386.83 or Sec. 386.84 for failure to pay penalties.
Penalty--Up to $10,000 for each day that operations are conducted
during the suspension period.
[FR Doc. 00-24105 Filed 9-18-00; 8:45 am]
BILLING CODE 4910-22-P