Rules of Practice, 28467-28486 [05-9898]

Agencies

• Federal Motor Carrier Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 70, Number 95 (Wednesday, May 18, 2005)]
[Rules and Regulations]
[Pages 28467-28486]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-9898]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 386

[FMCSA Docket No. FMCSA-1997-2299]
RIN 2126-AA15


Rules of Practice

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department 
of Transportation (DOT).

ACTION: Final rule.

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SUMMARY: FMCSA amends its Rules of Practice for Motor Carrier, Broker, 
Freight Forwarder, and Hazardous Materials Proceedings. These rules 
increase the efficiency of the procedures, enhance due process and 
awareness of the public and regulated community, and accommodate recent 
programmatic changes. The changes in these rules apply to all motor 
carriers, other business entities, and individuals involved in motor 
carrier safety and hazardous materials administrative actions and 
proceedings with FMCSA.

DATES: Effective Date: November 14, 2005. Petitions for Reconsideration 
must be received by the Agency no later than June 17, 2005. Docket: 
Background documents or comments received on the proposed rules may be 
accessed electronically at https://dms.dot.gov at any time or in person 
at Room PL-401 on the Plaza level of the Nassif Building, 400 Seventh 
Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Jackie K. Cho, Office of Chief 
Counsel, (202) 366-0834, Federal Motor Carrier Safety Administration, 
400 Seventh Street SW., Washington, DC 20590. Office hours are from 8 
a.m. to 5:30 p.m., E.T., Monday through Friday, except Federal 
holidays. Privacy Act:

[[Page 28468]]

Anyone is able to search the electronic form of all comments received 
into any of DOT's dockets by the name of the individual submitting the 
comment (or signing the comment, if submitted on behalf of an 
association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (65 FR 19477). This statement is also available at 
https://dms.dot.gov. FMCSA may not post copyrighted material on the 
electronic docket absent express permission by the copyright holder. 
All such material will be made part of the official docket and is 
accessible in person as outlined above. Anyone submitting comments to 
the docket is responsible for ensuring compliance with all applicable 
copyright laws.

SUPPLEMENTARY INFORMATION:

Legal Basis for the Rulemaking

    Congress delegated certain powers to regulate interstate commerce 
to DOT in numerous pieces of legislation, most notably in section 6 of 
the Department of Transportation Act (DOT Act) (Pub. L. 85-670, 80 
Stat. 931 (1966)). Section 55 of the DOT Act transferred to DOT the 
authority of the Interstate Commerce Commission (ICC) to regulate the 
qualifications and maximum hours-of-service of employees, the safety of 
operations, and the equipment of motor carriers in interstate commerce. 
See 49 U.S.C. 104 (1983). This authority, first granted to the ICC in 
the Motor Carrier Act of 1935 (Pub. L. 74-255, 49 Stat. 543), now 
appears in chapter 315 of title 49 of the U.S. Code. The regulations 
issued under this authority became known as the Federal Motor Carrier 
Safety Regulations (FMCSRs), appearing generally at 49 CFR parts 390-
99, including the Federal Motor Carrier Commercial Regulations (FMCCRs) 
(49 CFR parts 360-379) and the Hazardous Materials Regulations (HMRs) 
(49 CFR parts 171-180). The administrative powers to enforce chapter 
315 were also transferred from the ICC to the DOT in 1966, and appear 
in chapter 5 of title 49 of the U.S. Code. The Secretary of DOT 
delegated oversight of these provisions to the Federal Highway 
Administration (FHWA), the predecessor Agency to FMCSA.
    Between 1966 and 1999, a number of statutes were added to FHWA's 
authority. For a more detailed statutory background, see the preamble 
to the 1996 Notice of Proposed Rule Making (1996 NPRM) (61 FR 18866-67 
(April 26, 1996)). The various statutes authorize the enforcement of 
the FMCSRs and HMRs and provide both civil and criminal penalties for 
violations. In practice, when circumstances dictate an enforcement 
action be instituted, civil penalties are more commonly sought than 
criminal sanctions. The administrative rules in this rulemaking apply, 
among other things, to the administrative adjudication of civil 
penalties assessed for violations of the FMCSRs, FMCCRs and HMRs.
    The Motor Carrier Safety Improvement Act of 1999 (MCSIA) (Pub. L. 
106-159, 113 Stat. 1748) established FMCSA as a new operating 
administration within DOT, effective January 1, 2000. The staff and 
responsibilities previously assigned to FHWA, and reassigned to a new 
Office of Motor Carrier Safety within the Department, are now assigned 
to FMCSA.
    On April 29, 1996, FHWA published the 1996 NPRM for Rules of 
Practice for Motor Carrier Proceedings; Investigations; 
Disqualifications and Penalties (61 FR 18865). In the 1996 NPRM, FHWA 
proposed eliminating the rules of practice contained in part 386 and 
replacing them with new rules of practice in a new part 363.
    The 1996 NPRM was the first effort by FHWA to rewrite 
comprehensively its rules of practice for motor carrier administrative 
proceedings since 1985. The 1996 NPRM was intended to be the forerunner 
of a revision of the FMCSRs following the completion of a zero-based 
review of those regulations then underway in the Agency. The proposal 
would have placed the new regulations in previously unused parts of 
chapter III of title 49 of the Code of Federal Regulations (CFR) 
reserved for the FMCSRs. The proposed rulemaking was intended to make 
administrative actions and proceedings more efficient while enhancing 
the guarantee of due process to carriers, individuals, and other 
entities by substantially increasing awareness of the consequences of 
noncompliance with commercial motor vehicle safety and hazardous 
materials regulations.
    On October 21, 1996, FHWA published a Supplemental Notice of 
Proposed Rulemaking (SNPRM) (61 FR 54601) to broaden the scope of the 
1996 NPRM to include proceedings arising under section 103 of the 
Interstate Commerce Commission Termination Act of 1995 (ICCTA) (Pub. L. 
104-88, 109 Stat. 803, 852). In the SNPRM, FHWA proposed to adopt the 
term ``Commercial Regulations'' to refer to requirements transferred 
from the former ICC. The SNPRM also extended the comment period of the 
previous 1996 NPRM to November 20, 1996. FHWA received 127 comments in 
response to the 1996 NPRM. No comments were received in response to the 
SNPRM. Comments relevant to those portions of the 1996 NPRM addressed 
in the recent SNPRM were considered in the Discussion of Comments in 
FMCSA's October 29, 2004 SNPRM (October 2004 SNPRM).
    On February 16, 2000, FMCSA issued technical amendments to part 386 
and incorporated enforcement proceedings for Commercial Regulations 
into part 386 (65 FR 7753). This final rule was intended to ensure all 
civil forfeiture and investigation proceedings instituted by FMCSA were 
governed by consistent procedures. In addition, FMCSA adopted some 
technical amendments which reflected organizational changes, removed 
obsolete statutory citations, and incorporated statutory changes which 
affected the civil penalty schedule.
    On October 20, 2004, FMCSA published a SNPRM requesting comments 
proposed to further revise the rules of practice (69 FR 61617). The 
effective date of this final rule is 180 days following the date of 
publication in the Federal Register. Therefore, the revised rules of 
practice will apply to all matters where a Notice of Claim or Notice of 
Violation is served on or after the effective date.

Discussion of Public Comments

    In response to the October 20, 2004 SNPRM, five comments were 
submitted to the docket. Commenting were James P. Lamb (Mr. Lamb), a 
non-attorney practitioner representing motor carriers; the American 
Trucking Associations (ATA); Mary Helen Delgado (Ms. Delgado), an 
attorney practicing motor carrier law; the Association for 
Transportation Law, Logistics and Policy (ATLLP); and the Scapellato 
Group, Inc. (SGI), a law firm practicing motor carrier law. The 
comments are addressed below, together with FMCSA's responses on the 
issues addressed.

Section 386.3--Separation of Functions

    Ms. Delgado questioned whether attorneys in the Office of Chief 
Counsel act as both enforcement counsel and advisory counsel to the 
Agency decisionmaker. SGI commented that because the Assistant 
Administrator also serves as the Chief Safety Officer, serious 
questions arise regarding whether the Assistant Administrator can 
render an impartial decision over issues arising from the very policy 
and standards the Chief Safety Officer has established.

[[Page 28469]]

    FMCSA Response. We have added Sec.  386.3 to clarify how functions 
are separated within the Agency, as well as within the Office of Chief 
Counsel. This added text makes the Agency's current practice more 
transparent as to how the Agency complies with the Administrative 
Procedure Act (APA) regarding the separation of functions. The new text 
states that prosecutorial functions are performed by attorneys in the 
Enforcement and Litigation Division under oversight of the Assistant 
Chief Counsel of the Division and the Deputy Chief Counsel. These 
attorneys do not advise Agency decisionmakers. Rather, the Chief 
Counsel and the Chief Counsel's immediate staff, including Agency 
Adjudications Counsel, advise the Assistant Administrator in 
enforcement actions. This separation of functions is consistent with 
the APA and mirrors practices in effect at other federal agencies.
    The Agency decisionmaker determines whether the Agency is fairly 
and impartially carrying out the policies and procedures established. 
As such, knowledge of those procedures and policies is well served. 
Since all field enforcement personnel report to the Associate 
Administrator for Enforcement and the Assistant Administrator is not 
involved in the enforcement process directly, the arrangement preserves 
the integrity of the proceeding and complies with the APA. 
Additionally, parties may always raise case-specific conflict issues.

Section 386.4 Appearances and Rights of Witnesses--an FMCSA ``Bar''

    Both Mr. Lamb and ATLLP recommended that FMCSA adopt standards for 
non-attorney practitioners and certify individuals who meet those 
standards. Mr. Lamb commented that doing so would ``protect the public 
from unqualified representation, spare FMCSA unnecessary administrative 
problems, and protect the interests of qualified professionals who are 
operating in the industry.''
    ATLLP commented that all respondents should be represented in all 
formal proceedings by an attorney or FMCSA practitioner. Thus, ATLLP 
continued, certification of motor carrier safety practitioners would 
assure the industry it is receiving advice from a knowledgeable source, 
which will also foster efficient prosecution of enforcement actions 
within the standards of due process. To implement such a 
recommendation, ATLLP offered its resources to set up and administer a 
program for the certification and continuing education of FMCSA 
practitioners.
    FMCSA Response. Carriers may select the representative of their 
choice in FMCSA proceedings. Creating an FMCSA practitioner ``bar'' 
would limit a carrier's option and perhaps impose additional economic 
expense. The Agency believes the potential benefit to the carrier or 
Agency does not currently justify the resources and expenses associated 
with developing and managing such a system.

Proposed Sec.  386.6(b)--Service

    The ATA commented that the Agency should include e-mail as an 
acceptable form of service.
    FMCSA Response. Although the Agency notes the wider acceptability 
of e-mail, after consulting with information technology staff, it has 
been determined that the infrastructure necessary to ensure an adequate 
level of security measures and technical support are not currently 
available. Moreover, the costs associated with implementing such a 
system currently outweigh the potential benefits. As technological 
capabilities evolve, the issue may be revisited.
Section 386.14(c)--Reply
    Ms. Delgado commented on the lack of clarity in this provision, 
especially with regard to when a default is found and a Notice of Final 
Agency Order is issued for failure to file a timely reply.
    FMCSA Response. This provision has been revised to clearly convey 
the effect of a default and when a Final Agency Order will be issued as 
a result of a respondent's failure to reply to the Notice of Claim. 
Please see the detailed discussion in the Section-by-Section Analysis 
for Sec.  386.14.
Section 386.14(c)(1)--Default
    Ms. Delgado commented that the regulation states the Assistant 
Administrator can review a default only where the respondent first 
demonstrates excusable neglect, a meritorious defense, or due 
diligence. This procedure permits the Agency to default a respondent, 
then decide whether the default may be reviewed. Ms. Delgado expressed 
concern this would allow Agency Counsel to have both prosecutorial and 
decision-making functions and that the lifting of the default should be 
separated from the initial decision as to whether the default should be 
reviewed. Instead, Ms. Delgado suggested where there is excusable 
neglect, a meritorious defense, or due diligence, the Assistant 
Administrator should be able to review a default under any 
circumstances, and the default will be vacated only where a respondent 
can show excusable neglect, a meritorious defense, or due diligence.
    FMCSA Response. The section has been revised to clarify the 
original intent of the Agency which is in fact to allow, upon petition, 
the review of default by the Assistant Administrator under any 
circumstances and only those demonstrating excusable neglect, a 
meritorious defense, or due diligence will be vacated.

Informal Hearings--Proposed Sec.  386.16

    The ATA commented that the Agency should appoint a neutral third-
party mediator to preside over informal hearings and delete the waiver 
of formal hearing requirement when a carrier opts for informal hearing.
    FMCSA Response. The purpose of the informal hearing option is to 
provide respondents with an opportunity to contest alleged violations 
in an efficient, often less costly proceeding. The use of a neutral 
third party mediator in an informal hearing would not serve this 
purpose effectively. While a mediator may facilitate negotiations in a 
matter, the goal of an informal hearing is to more quickly resolve a 
matter based on the arguments submitted in person by both parties.
    As to ATA's comment regarding the waiver of a formal hearing, 
please see the detailed discussion in the Section-by-Section Analysis 
for Sec.  386.16. The Agency believes the option for requesting an 
informal hearing versus a formal hearing is best left to the discretion 
of individual respondents based upon which option best suits their 
needs.

Proposed Sec.  386.16(c)(4)(i)(B)--Informal Hearing Denied

    Ms. Delgado commented that the section is confusing and needs to be 
clarified, citing the difficulty in tracking the time periods for 
response and differentiating which document is due at what time.
    FMCSA Response. In response to comments, the Agency has revised 
this provision, finalized as Sec.  386.16(b)(4)(A)(i), to clarify the 
procedural requirements of all parties in the event an informal hearing 
is denied. Please see the detailed discussion of Sec.  386.16 in the 
Section-by-Section Analysis.

Section 386.31 Service--Official Notice

    Ms. Delgado commented that there is no provision for the Agency 
decisionmaker to notify the parties that she/he intends to take 
official notice.
    FMCSA Response. The provision has been re-inserted into the final 
rule.

[[Page 28470]]

Section 386.37--Discovery

    SGI recommended that Sec.  386.46 (Depositions) be revised to 
require the Agency to designate a headquarters official to testify on 
behalf of the Agency on matters regarding FMCSA policies, procedures, 
practices, and other relevant matters similar to the designation 
provided in Rule 30(b)(6) of the Federal Rules of Civil Procedure. This 
commenter also recommended FMCSA institute administrative procedures to 
enforce subpoenas or resolve other discovery requests.
    FMCSA Response. Given FMCSA is a large agency with almost 1,200 
employees, coupled with the acknowledgement that the facts and issues 
in each case differ, no single Agency official could possibly have the 
knowledge to address every possible policy, procedure, and practice 
issue which might arise in enforcement actions. The Agency therefore 
believes the better practice is to let parties seek the testimony of 
Agency officials as appropriate based upon the issues involved in the 
matter.
    With regard to SGI's suggestions for delineating procedures for 
resolving discovery disputes, including enforcement of subpoenas, the 
Agency does not believe it appropriate for inclusion in the rules of 
practice. Because discovery does not begin until a matter is pending 
before the Assistant Administrator or referred to the Office of 
Hearings, the resolution of discovery disputes are within the 
discretion of the presiding decisionmaker and thus, a mechanism to 
resolve discovery disputes is at all times available to the parties.

Section 386.42--Written Interrogatories to Parties and Sec.  386.43--
Production of Documents and Other Evidence

    SGI recommended the Agency create a legal ombudsman position to 
resolve costly issues of discovery. This individual should be given 
full power and authority to effectively resolve delay.
    FMCSA Response. Creating such provisions in the regulations is not 
appropriate, as each civil penalty proceeding is different. SGI's 
recommendations are essentially seeking intervention and oversight by a 
Court Master. As stated in the previous response, discovery disputes 
are within the purview of the presiding decisionmaker and the level of 
detail that SGI seeks in the regulations lie beyond the scope of the 
rules of practice.
Section 386.42(c)--Written Interrogatories to Parties
    Ms. Delgado commented the following provision needed clarification, 
as it appears to state the Agency will serve written interrogatories 
with the notice of claim: ``The party to whom the interrogatories are 
directed shall serve the answers and any objections within 30 days 
after the service of the interrogatories, except that a respondent may 
serve upon claimant its answers or objections within 45 days after 
service of the notice of claim.''
    FMCSA Response. The Agency agrees and the phrase ``except that a 
respondent may serve upon claimant its answers or objections within 45 
days after service of the notice of claim'' has been eliminated from 
the final rule.

Section 386.46--Depositions

    Ms. Delgado commented that limiting discovery to commence upon 
referral of the matter to the Office of Hearings misinterprets 49 
U.S.C. Sec.  502(e)(1), as it provides, ``In a proceeding or 
investigation, the Secretary may take testimony of a witness by 
deposition and may order the witness to produce records. A party to a 
proceeding or investigation pending before the Secretary may take the 
testimony of a witness by deposition and may require the witness to 
produce records at any time after a proceeding or investigation is at 
issue on petition and answer.'' Ms. Delgado posits that civil penalty 
proceedings are commenced by the issuance of a notice of claim and 
parties must be allowed to take a deposition of a witness ``at any 
time'' after the issuance of the notice of claim, and not subsequent to 
the appointment of an Administrative Law Judge.
    FMCSA Response. The Agency interprets the language of Sec.  
502(e)(1), ``at any time after a proceeding or investigation is at 
issue on petition and answer,'' (emphasis added) to mean that discovery 
commences after issuance of a Notice of Claim, service of the reply, 
and when the matter is pending before the Assistant Administrator or 
referred to the Office of Hearings. The issuance of a Notice of Claim 
alone is premature for the commencement of discovery, and cannot 
constitute a period of petition and answer, as there has been no 
opportunity for a respondent to answer the Notice of Claim. The term 
``at issue'' is generally accepted in the legal community to be the 
point in litigation where initial and responsive pleadings such as 
claims and responses thereto have been served.

Section 386.54--Administrative Law Judge

    Ms. Delgado commented on the changes proposed in this section, 
especially the deletion of language in current Sec.  386.54(b). Ms. 
Delgado suggested the regulation provide an Administrative Law Judge 
with the powers provided under the APA to regulate the conduct of the 
proceedings.
    FMCSA Response. The substance of the provision has been reinserted 
into the final rule. For a detailed discussion, please refer to the 
Section-by-Analysis under Sec.  386.54, infra.

Section 386.64--Petitions for Reconsideration

    ATA commented the Agency should permit a complete stay of a Final 
Agency Order while a petition for reconsideration is pending.
    FMCSA Response. This change has been incorporated into the final 
rule.

Section-by-Section Analysis

    The majority of the proposed changes to this SNPRM are discussed in 
detail in the Section-by-Section Analysis portion of this preamble. 
Minor revisions have been made throughout the final rule for clarity, 
readability, or consistency, and such changes will not be discussed.
    This Section-by-Section Analysis describes the changes to current 
Part 386 as implemented by this final rule, and provides justification 
for the changes made.

Subpart A--Scope of Rules; Definitions and General Provisions

    The title of Subpart A is revised to Scope of Rules; Definitions, 
and General Provisions to reflect the inclusion of several preliminary 
procedural rules.

Section 386.1 Scope of Rules in This Part

    FMCSA makes no changes to the language in current Sec.  386.1.

Section 386.2 Definitions

    Based on internal Agency considerations, and to provide clarity in 
the use of terms throughout this Part, FMCSA finalizes Sec.  386.2 with 
the following revisions. The term Civil forfeiture proceedings is 
revised as Civil penalty proceedings to make the use of the term 
consistent throughout revised Part 386. In addition, the statutory 
citations provided in the definition of Civil penalty proceedings have 
been removed, thus avoiding administrative updates to Part 386 each 
time new legislation is passed. The term Dockets has been added to this 
section because it is used throughout this Part, and the definition 
reads as all documents filed

[[Page 28471]]

before an Agency decisionmaker must be submitted to the Department's 
docket management system. The term Commercial regulations has been 
revised to Federal Motor Carrier Commercial Regulations (FMCCRs) to 
conform to usage in other parts of the regulations. The definitions of 
Interstate commerce and State were removed from this section as 
unnecessary because the terms are not used in Part 386.
    The revised definition of Default now accurately reflects all 
possible instances in which a default may occur. The SNPRM proposed 
definition only provided for a failure to reply or provide an adequate 
reply in the time required; however, a default can also be found where 
a carrier has omitted or failed to perform a legal duty within a 
specified period. Whether or not a reply is adequate is a determination 
for the Assistant Administrator, and thus, a default issued by the 
service centers will not be based on an evaluation of the adequacy of a 
reply.
    The definition of Field Administrator is added to this section 
because the Field Administrator of each regional service center is 
responsible for prosecuting civil penalty proceedings before the Agency 
decisionmaker.
    The revised definition of Final agency order now more accurately 
provides for all possible instances in which a final agency order would 
apply. The final agency order is a crucial benchmark in administrative 
adjudication, as it constitutes the final agency action of which a 
petitioner may seek review. The existing definition in current Sec.  
386.2 does not fully capture the situations in which a final agency 
order will result. Moreover, the definition of final agency order is 
updated to reflect revisions to other sections in this Part.
    The substantive definition of Formal hearing has not changed; 
however, the language was reworked for greater readability. The 
definition of Informal hearing is revised to include more specificity 
to the process. For example, discovery is not permitted and the 
informal hearing will not have a transcribed record. The Hearing 
Officer's written report and recommendations will serve as the record 
of the proceedings. Therefore, the revised definition highlights the 
procedural difference in informal hearings.
    The definition of Notice of Claim (NOC) was modified to reflect 
that it is the initial document issued by the Agency to propose a civil 
penalty for alleged violations. The Agency wanted to emphasize the 
stage in the proceedings in which an NOC is issued and fine-tune the 
language to reflect the revisions made throughout this Part.
    The definition of Notice of Violation was revised to reflect the 
current reference to the FMCCRs. The definition of Service was removed 
because its definition is implicit in Sec.  386.6 and need not be 
defined separately in this section.
    The definition of Submission of written evidence without hearing 
was modified to reflect the change in terminology from ``formal oral 
hearing'' and ``informal oral hearing'' as proposed in the October 2004 
SNPRM, in favor of ``formal hearing'' and ``informal hearing.'' The 
definition was also revised to read as a submission, rather than as a 
``right of a respondent to present,'' because both the Field 
Administrator and the respondent may submit written evidence without a 
hearing.

Section 386.3 Separation of Functions

    FMCSA adds Sec.  386.3 to delineate the separation of functions 
within the Office of Chief Counsel. Attorneys in the Enforcement and 
Litigation Division serve as enforcement counsel in the prosecution of 
all cases brought under Part 386, and report to the Assistant Chief 
Counsel for Enforcement and Litigation and the Deputy Chief Counsel. 
Attorneys serving as Adjudications Counsel as well as the Special 
Counsel to the Chief Counsel, advise the Agency decisionmaker regarding 
cases brought under Part 386, and report to the Chief Counsel. The 
inclusion of such a provision in the regulations ensures fairness to 
the motor carrier, by clearly defining the relevant functions of the 
divisions within the Office of Chief Counsel. By separating the 
attorneys prosecuting enforcement actions from the attorneys advising 
the Agency decisionmaker, a motor carrier is assured that those who 
prosecute civil penalty cases are separate from those who advise the 
Agency decisionmaker. References to the ``staff of the Chief Counsel'' 
are deleted as vague, and more specific terms for the separation of 
functions by division were added to clarify Sec.  386.3(c) and (d).

Section 386.4 Appearances and Rights of Parties

    FMCSA adds Sec.  386.4, which incorporates part of existing Sec.  
386.50(a) in its entirety and the additional procedural requirement for 
representatives to file a notice of appearance in the action before 
participating in the proceedings. Including such a requirement will 
promote administrative efficiency, as all parties will be uniformly 
notified of representation, and thus ensure that all documents are 
served on the correct parties in a timely fashion. In addition, an 
attorney or representative must file a timely notice of all changes in 
contact information, as outdated information prevents the proper 
service of all documents, including Orders, in a proceeding.
    A new paragraph (c) has been added to this section. It is an 
administrative provision to clarify that a separate notice of 
appearance must be filed in each case, thus preventing a representative 
from filing a single appearance to apply to numerous cases.

Section 386.5 Form of Filings and Extensions of Time

    FMCSA adds Sec.  386.5, which incorporates current Sec.  386.33, 
Extension of time, and also establishes length and content limits, and 
other administrative requirements for filing documents. Based on 
internal Agency feedback, and in an effort to facilitate the processing 
of all documents filed, a new paragraph (a) is added to specify all 
filings must be typed or legibly handwritten.
    A new paragraph (b) is added, requiring a short factual statement 
and the relief requested in each document filed. This provision will 
also enable the Agency to process enforcement cases more efficiently 
because the issues involved and the relief sought will be known from 
the outset, thus less time will be spent managing documents lacking 
clarification. This paragraph also places parties on notice that all 
documents filed in the proceedings will be publicly available in the 
Docket, unless otherwise ordered.
    Paragraph (f) has been modified for greater readability and 
clarity, and now includes a reference requiring all documents be filed 
and served in accordance with Sec. Sec.  386.6 and 386.7, with a copy 
served on the presiding decisionmaker over the proceeding at the time 
of the filing. A general reference to the presiding decisionmaker 
conveys the intent of the regulation, without need to specify in 
separate paragraphs, every procedural scenario before each Agency 
decisionmaker in which a copy of motion for extension of time must be 
provided.

Section 386.6 Service

    FMCSA adds Sec.  386.6 as proposed in the October 2004 SNPRM, with 
minor revisions. Paragraph (a) has been revised to reflect more 
accurate terminology by replacing ``registered agent'' with 
``designated agent for service of process,'' because the term 
registered agent carries independent legal

[[Page 28472]]

significance which does not apply to these rules. Therefore, the term 
``designated agent for service of process'' was inserted in order to 
describe a party's attorney of record or representative as reflected in 
a Sec.  386.4 filing or a BOC-3 licensing filing to receive service. 
Section 386.6 incorporates the substance of Sec.  386.31(b), and adds 
the following elements: (1) Specifies that the Agency must ensure 
service of the notice of claim; (2) includes commercial delivery 
services and facsimile (with consent of the parties) as additional 
options for effecting service; and (3) specifies other administrative 
provisions regarding service.

Section 386.7 Filing of Documents

    FMCSA adds Sec.  386.7 as proposed in the October 2004 SNPRM, with 
some minor revisions. After internal Agency consideration, the need to 
specify clearly when and how to tender a document for filing with U.S. 
DOT Dockets was recognized for inclusion in the final rule. It is also 
important to distinguish the difference between filing and serving a 
document. To be recognized on the record, and officially filed before 
the Agency decisionmaker, a document must be filed with the Docket 
Management System. The same document must then be sent to all parties 
listed on the certificate of service, which constitutes service.

Section 386.8 Computation of Time

    FMCSA adds Sec.  386.8 as proposed in the October 2004 SNPRM. The 
provision contains current Sec.  386.32 in its entirety, which has been 
moved to Subpart A to locate it with other preliminary procedural 
requirements.

Section 386.11 Commencement of Proceedings

    FMCSA adds Sec.  386.11 as proposed in the October 2004 SNPRM with 
one minor revision and one clarification. Driver qualification 
proceedings under Sec.  386.11(a) remain unchanged. The Notice of 
Investigation has been eliminated, and paragraph (b) now adopts the 
Notice of Violation (NOV). FMCSA will use the NOV as a means of 
notifying any person subject to the rules in this part that the Agency 
has received information indicating violations of the FMCSRs, HMRs, or 
FMCCRs, without initiating a civil penalty proceeding. This information 
may come from investigations, audits, complaints, or any other source 
of information.
    The NOV will not be used to propose civil penalties. Rather, the 
goal of utilizing the NOV, in keeping with the overall mission of the 
Agency, is to gain compliance. The NOV offers a motor carrier an 
opportunity to take corrective action or cure other alleged violations 
before the Notice of Claim (NOC) stage is reached. If such deficiencies 
have not been addressed to the satisfaction of the Agency, then the 
matter may proceed to the issuance of a NOC. In the final provision the 
Agency clarified that a NOV is not a prerequisite to the issuance of a 
NOC. The use of the NOV is solely within the discretion of the Agency. 
Therefore, a NOV need not be issued prior to a NOC.
    The content of current Sec.  386.11(b) is redesignated as paragraph 
(c) of this section. Minor revisions have been made for simplicity and 
clarity. Instead of the term ``amount being claimed,'' of existing 
386.11(b)(1)(iii), has been rephrased as ``proposed civil penalty'' in 
386.11(c)(1)(iii) to more accurately capture the legal status of a 
civil penalty when referenced in a NOC.

Section 386.12 Complaint

    FMCSA removes paragraphs (a) and (b) of the existing section, and 
redesignates paragraphs (c)-(e) as (a)-(c). This change is adopted to 
make it consistent with the elimination of the notice of investigation 
of Sec.  386.11. With the elimination of the notice of investigation, 
existing Sec.  386.12(a) and (b) are no longer necessary, as they 
govern the process for initiating and acting on a notice of 
investigation. With this change, the newly redesignated paragraph (b) 
was updated to reflect the correct internal citations. An existing 
error in the spelling of ``frivolous'' in paragraph (b) was also 
corrected for the final version of this section.

Section 386.13 Petition to Review and Request for Hearing: Driver 
Qualification Proceedings

    FMCSA makes no changes to the language in current Sec.  386.13.

Section 386.14 Reply

    The title of this section is revised to Reply. This section is 
finalized with some revisions. The title of paragraph (b), which 
provides the choices for action once a motor carrier is served with a 
NOC, is now called ``Options for reply'' as opposed to ``Contents of 
reply,'' because this is a more accurate description of the provision.
    FMCSA is finalizing Sec.  386.14(a) which changes the time period 
for a reply from 15 days to 30 days, as proposed in the October 2004 
SNPRM. Comment was sought from the public regarding this departure in 
the interpretation of 49 U.S.C. Sec.  521(b)(1)(A), which states: ``The 
notice shall indicate that the violator may, within 15 days of service, 
notify the Secretary of the violator's intention to contest the 
matter.'' No comments in response to this request were received.
    Upon re-examination of this section for the October 2004 SNPRM, the 
Agency determined the permissive nature of the word ``may'' in the 
statute allows the Agency to expand the time period for a respondent to 
contest a claim, and therefore, the 15-day period may be expanded to 30 
days to allow for sufficient time to reply.
    Paragraph (b) provides the contents of a reply to a NOC. Respondent 
may choose to pay the civil penalty, request administrative 
adjudication, or seek binding arbitration. The notable revision in this 
paragraph since the proposal is the removal of settlement negotiations 
as a formal option to a reply to the NOC. Settlement may occur at any 
time during the civil penalty proceeding at the discretion of the 
parties. Moreover, because negotiations may be conducted simultaneously 
with the other options for a reply, it was decided the stand-alone 
option to proceed was not necessary. Should settlement negotiations 
reach a stalemate, it is vital to the efficiency of the proceeding to 
utilize other options for contesting the claim during the same period 
so as not to delay the resolution of a NOC.
    Paragraph (c) provides for what occurs in the event of a 
respondent's failure to reply within the 30-day period. In such a case, 
the Field Administrator may issue a document called a ``Notice of 
Default and Final Agency Order.'' The introduction of the Notice of 
Default and Final Agency Order is a new revision in the final rule. 
Upon consideration of how best to notify respondents of their failure 
to reply, in conjunction with the administrative need to note a default 
for subsequent stages of a civil penalty proceeding, FMCSA has devised 
the Notice of Default and Final Agency Order to specify when a NOC will 
become the Final Agency Order. The date on which a Final Agency Order 
is effective dictates the timing of subsequent action by both the 
Agency and the respondent. Therefore, Sec.  386.14(c)(1) specifies that 
in the event of a default, the Final Agency Order becomes effective 
five days after the service of the Notice of Default and Final Agency 
Order. This document conveys the legal effect of a failure to reply 
clearly to the respondent, and provides a date certain from which a 
petition for reconsideration or an appeal of final agency action may be 
tracked.
    In the past, often when a respondent failed to reply, the NOC 
became the Final Agency Order, but the respondent

[[Page 28473]]

then filed a petition for reconsideration under Sec.  386.64. As a 
result, the substantive reply is submitted for the first time as a 
basis for reconsideration. Paragraph (c)(2), and Sec.  386.64(b) 
clearly define what may be considered in a petition for reconsideration 
when a respondent has failed to reply to the NOC in the time allotted. 
This provision puts respondents on notice that if they fail to reply 
during the 30-day period, a petition for reconsideration does not serve 
as a second opportunity to respond to the alleged violations.
    Lastly, under Sec.  386.14(c), paragraph (c)(3) notifies 
respondents that failure to pay the civil penalty as directed in the 
Final Agency Order will trigger an additional civil penalty under 
Subpart G of Part 386.
    FMCSA is finalizing Sec.  386.14(d), Request for administrative 
adjudication, with some minor modifications from the proposed language. 
A request for administrative adjudication is the means by which a 
respondent may contest the alleged violations in a NOC. The final 
provision now includes a statement clarifying that once an 
administrative adjudication option is elected, it is binding on the 
respondent to promote the efficiency and predictability of the 
enforcement process. We also included a requirement that the reply be 
in writing. This change was made to prevent respondents from assuming 
that oral communications with the service centers or other FMCSA staff 
constitute a reply within the meaning of the regulation. In order to 
avoid a default, a respondent must submit a timely written reply 
stating the grounds for disputing the claim.
    A reply must contain certain elements. The first requirement for a 
reply requesting administrative adjudication is a statement in which 
respondent must admit or deny each and every allegation in the NOC. Any 
allegation that is not specifically denied will be considered admitted. 
A one-sentence denial in response to all allegations, e.g., ``I deny 
all allegations'' or ``I am not guilty,'' or other blanket denial of 
the NOC, without addressing each of the alleged violations one by one 
will not be accepted as a proper reply, and may be considered a default 
by the Assistant Administrator if the Field Administrator makes such a 
motion. For clarity, the term ``Claimant,'' as proposed in the October 
2004 SNPRM, is replaced throughout the final rule with the term ``Field 
Administrator,'' because claimant is a confusing term in the 
regulation.
    The second requirement for a reply requesting administrative 
adjudication is a statement of all known affirmative defenses, under 
Sec.  386.14(d)(1)(ii). Affirmative defenses are different from 
admitting or denying the truth of the alleged violation. Rather, 
affirmative defenses are responses attacking the legal right of the 
Agency to bring the civil penalty proceeding. Therefore, attacks on the 
jurisdiction, limitations, or procedure of the civil penalty 
proceedings are affirmative defenses. Any such defenses must be stated 
at the outset in the reply.
    The last requirement for a reply requesting administrative 
adjudication, Sec.  386.14(d)(1)(iii), has been revised from the 
proposed provision to clarify that respondents may choose only one of 
the three administrative adjudications options provided. Thus, a 
sufficient reply requesting administrative adjudication must offer 
three basic points of information: (1) Admit or deny the substance of 
the allegations; (2) list any known affirmative defenses; and (3) 
choose between an informal hearing, formal hearing, or proceed on the 
papers and submit written evidence.

Section 386.16 Action on Replies to the Notice of Claim

    The title of this section is revised from ``Action on petitions or 
replies'' to ``Action on replies to the notice of claim.'' Upon further 
consideration of the functionality of this provision, certain portions 
of this provision have been revised from the proposed version to 
provide all parties with sufficient time to respond.
    As discussed in the analysis of Sec.  386.14, the stand-alone 
option of settlement negotiations has been eliminated from the reply 
process. Although parties are free to discuss settlement throughout a 
civil penalty proceeding, a separate time period in which only 
settlement negotiations will occur will no longer serve as an option 
for a reply. Accordingly, the procedures set forth in proposed Sec.  
386.16(a) are deleted.
    Submission of written evidence without a hearing: First, in 
requests to submit written evidence without a hearing, now under 
finalized Sec.  386.16(a), Agency Counsel is given 60 days to serve all 
written evidence following service of the respondent's reply, as 
opposed to the proposed 40 days. The period for submission of evidence 
has been extended to accommodate the variety of complexity in civil 
penalty proceedings, thus ensuring all submissions have sufficient time 
to be thoroughly researched, investigated, and prepared. This extra 
time also allows for settlement negotiations to continue should the 
parties choose. Accordingly, Sec.  386.16(b) extends the period for 
respondent's submission of written evidence and argument to 45 days, 
instead of the proposed 30 days. Parties are also reminded all written 
evidence must be served on the Assistant Administrator in accordance 
with Sec. Sec.  386.6 and 386.7. Agency Counsel will then have 20 days 
to reply to respondent's submission, an extension from the proposed 15-
day time period.
    Requests for hearing: The final version of Sec.  386.16(b) provides 
for hearings generally. The Assistant Administrator will determine 
whether a dispute of material fact is at issue in the matter, and if 
so, the matter will be referred to the Office of Hearings. If a dispute 
of a material fact is not at issue, the Assistant Administrator may 
issue a decision based on the written record.
    The final version of Sec.  386.16(b)(2) changes the time period for 
the Field Administrator to consent or object to a hearing request from 
the proposed 20-day period to 60 days. In addition, the Field 
Administrator must either consent or object with basis to a hearing 
request. An objection with basis means an objection qualified by a 
simple summary of the basis of the objection. Thus, the time period in 
which to respond to a hearing request has been extended to allow 
sufficient time to provide a basis of objection. Also included in the 
final Sec.  386.16(b)(2) is a provision notifying the parties that 
failure to serve an objection within the 60-day period may result in 
automatic referral to the Office of Hearings. This provision was 
included to provide all parties with a reliable indicator of timely 
proceedings, and prevent cases from falling through the cracks due to 
lags in procedural responses.
    Requests for formal hearing: Specific provisions governing requests 
for a formal hearing, or referral to the Office of Hearings for 
assignment to an administrative law judge, have been modified to 
simplify the process, The proposed version of 386.16(b)(2) and (3) had 
provided 20 days for the Field Administrator to serve a notice of 
consent or objection, in effect a yes-no response, and then an 
additional 60 days to file a motion for final agency order. Respondent 
was then given 30 days to respond to the motion. In the finalized 
version of Sec.  386.16(b)(3), the 60-day period for the Field 
Administrator to file a motion for final agency order is removed. The 
Agency believes the introduction of an objection with basis will serve 
as a reasonable indicator of the Agency's relevant issues in the 
matter, and thus, the need for the imposition of a strict time period 
to file such a motion is not warranted.

[[Page 28474]]

Moreover, if a motion for final agency order is delayed for an 
inordinate amount of time after service of the objection with basis, 
respondent may file an appropriate motion before the Assistant 
Administrator.
    Requests for informal hearing: FMCSA adds Sec.  386.16(b)(4) with 
some revisions for clarity, and another change in time periods. An 
informal hearing may serve as a speedier alternative to the formal 
hearing process, as it requires less in the way of written submissions 
independent of the NOC and the respondent's reply. Section 
386.16(b)(4)(A) is finalized as proposed, with the exception of 
redesignating Sec.  386.16(b)(4)(i) to Sec.  386.16(b)(4)(A)(i) for 
clerical consistency. In this streamlined process, a Field 
Administrator may object to a request for an informal hearing by 
serving an objection with basis, the NOC, and respondent's reply on the 
Assistant Administrator, who will grant or deny the request.
    As provided in finalized Sec.  386.16(b)(4)(A)(i), if an informal 
hearing request is granted, a hearing officer will be assigned to the 
matter. No discovery will be conducted, nor will further motions be 
considered. All parties may present written and oral evidence, and the 
hearing officer will issue a report of the findings of fact and a 
recommended disposition in the case to the Assistant Administrator. The 
report will serve as the sole written record of the hearing. After 
consideration of the hearing officer's report, the Assistant 
Administrator will issue a Final Agency Order or other such order as 
deemed appropriate. Although participating in an informal hearing 
waives a respondent's right to a formal hearing, this option may serve 
the needs and interests of respondents to participate in an adversarial 
process that may offer a quicker resolution, a minimum of additional 
written submissions, in an informal, simplified proceeding. Respondents 
are not obligated to choose the informal hearing; the availability of 
such an option, however, may be beneficial to a respondent's interest.
    In the event an informal hearing is denied, the Field Administrator 
must serve a motion for final agency order, unless otherwise directed. 
As finalized, Sec.  386.16(b)(4)(A)(ii) differs from the proposed 
version by eliminating the period during which the Field Administrator 
must file a motion for final agency order. However, once the Field 
Administrator files such a motion, respondent's response period has 
been increased to 45 days. The time periods were revised to bring 
uniformity to the time periods established throughout this part. 
Moreover, the mere fact that an informal hearing is denied does not 
indicate the complexity of a particular case, and pleadings in such 
cases should not be given less preparation time.
    The finalized Sec.  386.16(b)(4)(A)(iii), which remains unchanged 
from the proposed version, provides the Assistant Administrator with 
the discretion to refer any matter for formal or informal hearing, even 
in cases where respondent may seek only an informal hearing. This 
provision is important because it allows flexibility of procedures for 
the agency decisionmaker to resolve a matter based on the changing 
needs of each case.

Section 386.17 Intervention

    FMCSA makes no changes to the language in current Sec.  386.17.

Section 386.18 Payment of the Claim

    Current part 386 does not specifically address payment of claims. 
Therefore, FMCSA is finalizing Sec.  386.18 with a few important 
clarifications which were not present in the proposed provision.
    As per Sec.  386.18(a), payment of the full amount proposed before 
a Final Agency Order is issued will resolve the claim. The agency has 
clarified Sec.  386.18(b) in order to reflect no written reply is 
necessary if a respondent chooses to pay the full amount proposed 
within the 30-day period for replies. The finalized provision also 
specifies that payment must be served on the Field Administrator, i.e., 
by any of the means listed in Sec.  386.6, and not ``postmarked.'' If, 
however, a respondent has submitted in writing that it intends to pay 
the civil penalty, but fails to do so within the 30-day period, failure 
to serve payment will constitute a default and may result in the NOC 
becoming the Final Agency Order.
    Finally, because payment is presumed to constitute admission, 
respondents have an opportunity to note their objections for the 
record. Therefore, Sec.  386.18(c) has been revised since proposed, to 
specify that if a respondent objects to the admission of all facts 
alleged in the NOC upon payment, such objection must be submitted at 
the time of payment, or is otherwise waived.
    Section 386.18(c) is also important because future Agency 
enforcement actions may be based on, and certain consequences may flow 
from, prior and continued violations of the safety regulations. 
Therefore, compliance with paragraph (c) will identify the implications 
of prior enforcement actions as related to maximum civil penalty cases 
under section 222 of the MCSIA. See 49 U.S.C. 521, note.

Subpart C--Consent Orders

    The title of Subpart C is revised to Settlement Agreements.

Section 386.21 Compliance Order

    Current Sec.  386.21 is deleted in its entirety, as it pertains to 
the notice of investigation, which has been eliminated from the 
regulation.

Section 386.22 Settlement Agreements and Their Contents

    The title of this section is revised to ``Settlement agreements and 
their contents'' because it is a more accurate description of the 
provision. This provision is finalized with revisions from the proposed 
version. The parties to a settlement agreement are the respondent motor 
carrier, and the Field Administrator of the service center from which 
the NOC originated. Therefore, Sec.  386.22(a)(1) has been corrected to 
reflect that the Field Administrator or his/her designee is the proper 
Agency representative to execute settlement agreements. The contents of 
a settlement agreement are set forth in Sec.  386.22(1)(i)-(vii), with 
the revision of Sec.  386.22(a)(1)(vi) to include a provision regarding 
non-monetary terms of an agreement, such as holding a civil penalty in 
abeyance while compliance is achieved, or maintaining a satisfactory 
rating for a specified period of time. If a respondent fails to pay or 
comply with the terms of the agreement, the civil penalty may be 
reinstated and any deductions in the original amount proposed will 
become due immediately. Finally, the Agency finalizes Sec.  
386.22(a)(1)(vii) as proposed, and the settlement agreement becomes the 
Final Agency Order in the proceeding.
    As noted above, settlement agreement may also contain conditions, 
actions or provisions to redress the violations alleged in the NOC. 
Therefore, the parties are free to include any such terms in the 
agreement. Accordingly, Sec.  386.22(a)(2) is finalized as proposed. 
Section 386.22(a)(3) is finalized with revisions to clarify that 
settlement agreements must be approved by the Agency decisionmaker, and 
thereafter, the settlement agreement becomes a Final Agency Order. To 
preserve the integrity of an agreement while pending approval by a 
decisionmaker, this provision also includes that consent to a 
settlement agreement may not be withdrawn for a 30-day period.
    Section 386.22(b) through (e) are all finalized with the same 
revision from the proposed version which specifies when a settlement 
agreement becomes

[[Page 28475]]

the Final Agency Order. The date on which a Final Agency Order becomes 
effective is important in subsequent proceedings, such as tracking due 
dates for payment, instituting out-of-service orders, and filing 
petitions for reconsideration. Thus, in proceedings not before an 
Agency decisionmaker, i.e., still handled at the service center, a 
settlement agreement becomes the Final Agency Order upon the date of 
execution by the Field Administrator or his/her designee. In 
proceedings before an Agency decisionmaker, a settlement agreement 
becomes the Final Agency Order as of the date the decisionmaker enters 
an order accepting the agreement.

Section 386.23 Content of Consent Order

    This section is deleted in its entirety, as it pertains to the 
notice of investigation, which has been eliminated from the regulation.

Subpart D--General Rules and Hearings

Section 386.31 Service

    This section is deleted in its entirety as superseded by Sec.  
386.6.

Section 386.32 Computation of Time

    This section is deleted in its entirety as superseded by Sec.  
386.8.

Section 386.33 Extension of Time

    This section is deleted in its entirety as superseded by Sec.  
386.5.

Section 386.31 Official Notice

    This section has been revised since proposed to properly capture 
the procedure for when an Agency decisionmaker takes official notice of 
both facts and documents. The proposed provision did not require notice 
to all parties when a decisionmaker takes official notice. Such a 
provision has now been added, as well as the inclusion of a 10-day 
period for objections.
    The Agency has also modified the language to state that if a Final 
Agency Order has been issued, and the decision rests on a material fact 
of which the Agency decisionmaker took official notice, a party may 
challenge the official notice under Sec.  386.64 petitions for 
reconsideration. This revision prevents the disruption of proceedings 
before an Administrative Law Judge or Assistant Administrator for 
taking of official notice. A party must be able to assert that the 
decision rests on a material and disputable fact of which the Agency 
decisionmaker has taken official notice.

Section 386.34 Motions

    Current Sec.  386.35 is redesignated Sec.  386.34, and finalized as 
proposed. Parties are now given 20 days, rather than seven days, for a 
reply to a motion that is applying for an order or ruling not otherwise 
covered in Part 386, i.e., not a motion for Final Agency Order under 
Sec.  386.36, a motion for rehearing or modification under Sec.  
386.66. This is to allow sufficient time for all replies to motion, as 
seven days appeared too short in light of the revised time periods for 
other filings.

Section 386.35 Motions To Dismiss and Motions for a More Definite 
Statement

    This section is redesignated as Sec.  386.35.

Section 386.36 Motions for Final Agency Order

    The Agency finalizes Sec.  386.36 Motions for final agency order, 
which has been revised since proposed. This provision governs all 
aspects of a motion for final agency order, including who may file, 
what must be included, and the period for an answer. Any party may file 
a motion for final agency order. If the matter is still handled in the 
service center, then the filing of a motion for final agency order will 
trigger the transfer of the case to the Agency decisionmaker because 
motions for final order cannot be decided on by the Field 
Administrator, as s/he is a party to the proceeding. The form and 
content provision which were previously proposed under Sec.  386.36(a) 
have been moved to Sec.  386.36(b), and requires a motion and 
memorandum of law, and all responsive pleadings and documents in the 
case. The agency also requires all motions for final agency order be 
accompanied by written evidence under Sec.  386.49. Respondents have 
often overlooked the written evidence requirement, or otherwise failed 
to include an affidavit stating personal knowledge of the facts 
alleged, or exhibits with an affidavit identifying the exhibits and 
providing its source. Therefore, the reference to Sec.  386.49 was 
included to ensure all parties are on notice to submit written 
evidence.
    Analogous to a summary judgment standard, the Agency decisionmaker 
may issue a Final Agency Order if after reviewing the record in the 
light most favorable to the non-moving party, there are no genuine 
issues of material fact. Lastly, a non-moving party is given 45 days, 
as opposed to 30 days as proposed, to serve a response to the motion 
for final agency order. The time period was extended to 45 days to make 
most time periods consistent and predictable throughout this Part.

Section 386.37 Discovery

    The title of this section is revised to ``Discovery.'' This 
provision incorporates the discovery methods listed in existing Sec.  
386.37: depositions, interrogatories, production of documents or other 
evidence for inspection, physical and mental examinations and requests 
for admissions. The Agency added a new provision since the regulation 
was proposed, Sec.  386.37(b), which states discovery may commence only 
when a matter is pending before the Assistant Administrator or referred 
to the Office of Hearings.
    The idea of discovery commencing after a matter has been referred 
to the Office of Hearings was introduced in the October 2004 SNPRM, 
under Sec.  386.46 for depositions. It has now been added to the 
general discovery provision of this section. By allowing discovery to 
commence only after the matter is before the Assistant Administrator or 
an Administrative Law Judge, any discovery dispute may be resolved 
properly by the decisionmaker, and thus prevent further delay of the 
proceedings. If discovery begins immediately upon issuance of the NOC, 
discovery disputes may arise while a matter is still pending in the 
service center, and thus delay or unduly complicate the proceeding with 
premature discovery issues. Moreover, the case it technically not at 
issue until the initial pleadings, including the notice and any 
response have been served.
    Finally, upon re-examination, a revised 386.37(c) now states that 
where a procedural matter is not addressed in the Agency's rules, the 
Federal Rules of Civil Procedure may serve as guidance for the 
decisionmaker, not the Federal Rules of Evidence as previously 
proposed. The prior text incorrectly referred to the Federal Rules of 
Evidence when it should have cited the Federal Rules of Civil 
Procedure.

Section 386.38 Scope of Discovery

    FMCSA makes no changes to the language in current Sec.  386.38.

Section 386.39 Protective Orders

    FMCSA makes no changes to the language in current Sec.  386.39.

Section 386.40 Supplementation of Responses

    FMCSA makes no changes to the language in current Sec.  386.40.

Section 386.41 Stipulations Regarding Discovery

    FMCSA makes no changes to the language in current Sec.  386.41.

[[Page 28476]]

Section 386.42 Written Interrogatories to Parties

    FMCSA is finalizing this section, which has been revised since 
proposed. The substance of current Sec.  386.42 is incorporated into 
the section, while adding page limits and time periods in which to 
exchange interrogatories. Consistent with the definition of 
commencement of discovery to begin when a matter is pending before the 
Assistant Administrator or Administrative Law Judge, Sec.  386.42(a) 
has been so modified.
    Section 386.42(e) had proposed a copy of interrogatories, answers 
and related pleadings be served on the Assistant Administrator or 
Administrative Law Judge. However, upon reconsideration, the Agency has 
decided to eliminate this requirement, as it could unnecessarily 
increase the volume of documents to be included in the docket. 
Accordingly, a simple procedure has been created to state for the 
record the parties have commenced discovery. As per revised Sec.  
386.42(e), all parties must file a notice of discovery, and are 
obligated to serve a copy of interrogatories, answers, and pleading to 
all parties in the proceeding. This provision will advise the 
decisionmaker as to the procedural status of the matter without unduly 
burdening the administrative record, and the parties' obligations, 
while facilitating discovery.

Section 386.43 Production of Documents and Other Evidence

    FMCSA makes no changes to the language in current Sec.  386.43.

Section 386.44 Request for Admissions

    FMCSA makes no changes to the language in current Sec.  386.44.

Section 386.45 Motion to Compel Discovery

    FMCSA makes no changes to the language in current Sec.  386.45.

Section 386.46 Depositions

    FMCSA finalizes this section to provide procedures for depositions. 
Three notable provisions have been added to facilitate the process: 
Sec.  386.46(a)(3) through (5) give the parties discretion to take 
depositions by telephone or other remote methods; provides that a 
notice of deposition may include a subpoena duces tecum, which should 
specify materials to be produced at the deposition; and if depositions 
are to be taken by videotape or audiotape, the method of recording must 
be so noticed.
    As noted in previous discussions, discovery commences once a matter 
is pending before the Assistant Administrator or an Administrative Law 
Judge. Prior to this stage, under Sec.  386.46(c), which is finalized 
as proposed, either party may petition the Assistant Administrator to 
conduct depositions on a showing of good cause.
    Based on further consideration to improve the discovery process, 
paragraph (d) has been removed and a new paragraph (d) has been added 
to the final rule, which provides for written depositions. A notice and 
written questions may be served to a deponent. Within 14 days, cross-
questions may be served on all other parties. Seven days after service 
of cross-questions, redirect questions may be served, followed by re-
cross within seven days. The written deposition is an alternative to an 
oral deposition, which may save parties costs incurred discovery. The 
remainder of this section is finalized as proposed, with minor edits 
for accuracy.

Section 386.47 Use of Deposition at Hearings

    FMCSA makes no changes to the language in current Sec.  386.47.

Section 386.48 Medical Records and Physicians' Reports

    FMCSA makes no changes to the language in current Sec.  386.48.

Section 386.49 Form of Written Evidence

    Although this revision was not proposed in the October 2004 SNPRM, 
the Agency believed it necessary to modify this section to reflect the 
practical implications of the written evidence requirement. Instead of 
requiring an affidavit, a written statement must now accompany all 
written evidence. A written statement is a more accurate assessment of 
the submissions typically provided by respondents, and while an 
affidavit holds legal significance, such significance would serve no 
further purpose. The written statement is less a matter of verification 
than that of identification and description. With that in mind, it is 
sufficient for parties to provide a written statement and thus, a 
requirement of form over substance is not essential to this provision.

Section 386.50 Appearances and Rights of Witnesses

    This section is deleted in its entirety as superseded by Sec.  
386.4.

Section 386.51 Amendment and Withdrawal of Proceedings

    FMCSA is finalizing Sec.  386.51(b), which has been revised sinc