Supplemental Policy on Assessing Maximum Fines under the Motor Carrier Safety Improvement Act of 1999 (MCSIA) Section 222, 14184-14185 [E9-7057]
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Federal Register / Vol. 74, No. 59 / Monday, March 30, 2009 / Notices
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
RTCA Government/Industry Air Traffic
Management Advisory Committee;
Correction
AGENCY: Federal Aviation
Administration (FAA), DOT.
ACTION: Correction; Notice of RTCA
Government/Industry Air Traffic
Management Advisory Committee.
sroberts on PROD1PC70 with NOTICES
VerDate Nov<24>2008
18:33 Mar 27, 2009
Jkt 217001
Issued in Washington, DC, on March 20,
2009.
Meredith Gibbs,
RTCA Advisory Committee.
[FR Doc. E9–6991 Filed 3–27–09; 8:45 am]
BILLING CODE 4910–13–P
The FAA is correcting a
notice of a meeting that was published
on March 20, 2009 (72 FR 11987; FR
Doc. E9–6176]. In that notice the FAA
advised the public of a meeting of the
RTCA Government/Industry Air Traffic
Management Advisory Committee.
Inadvertently the notice was published
with an incorrect meeting date of March
16, 2009. The correct date of the RTCA
Government/Industry Air Traffic
Management Advisory Committee
meeting is May 27, 2009.
DATES: The meeting will be held May
27, 2009, from 1 p.m. to 4 p.m.
ADDRESSES: The meeting will be held at
FAA Headquarters, 800 Independence
Avenue, SW., Bessie Coleman
Conference Center (2nd Floor),
Washington, DC 20591.
FOR FURTHER INFORMATION CONTACT:
RTCA Secretariat, 1828 L Street, NW.,
Suite 805, Washington, DC 20036;
telephone (202) 833–9339; fax (202)
833–9434; Web site https://www.rtca.org.
METRO: L’Enfant Plaza Station (Use 7th
& Maryland Exit).
SUPPLEMENTARY INFORMATION:
Correction: In the Federal Register of
March 20, 2009 (FR Doc. E9–6176) in
the third column in the DATES section
change the date of the meeting from
‘‘March 16, 2009’’ to ‘‘May 27, 2009’’.
Pursuant to section 10(a)(2) of the
Federal Advisory Committee Act (Pub.
L. 92–463, 5 U.S.C., Appendix 2), notice
is hereby given for the Air Traffic
Management Advisory Committee
meeting. The agenda will include:
• Opening Plenary (Welcome and
Introductions);
• Report from RTCA Task Force on
NextGen Mid-Term Implementation
(NextGen TF);
• ATMAC Member Discussion and
Recommendations;
• Closing Plenary (Other Business,
Member Discussion, Adjourn).
Attendance is open to the interested
public but limited to space availability.
With the approval of the chairmen,
members of the public may present oral
statements at the meeting. Persons
wishing to present statements or obtain
information should contact the person
SUMMARY:
listed in the FOR FURTHER INFORMATION
CONTACT section. Members of the public
may present a written statement to the
committee at any time.
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
Supplemental Policy on Assessing
Maximum Fines under the Motor
Carrier Safety Improvement Act of
1999 (MCSIA) Section 222
AGENCY: Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Notice of policy change.
SUMMARY: The Federal Motor Carrier
Safety Administration (FMCSA)
provides notice to the motor carrier
industry of policy changes regarding the
assessment of maximum fines under
section 222 of the Motor Carrier Safety
Improvement Act of 1999 (MCSIA).
Section 222 requires the Agency to
assess maximum statutory penalties if a
person is found to have committed a
pattern of violations of critical or acute
regulations, or previously committed
the same or a related violation of critical
or acute regulations.
DATES: Effective Date: This change in
policy is effective April 1, 2009.
FOR FURTHER INFORMATION CONTACT: Mr.
David Mancl, Acting Chief, Enforcement
and Compliance Division, MC–ECE,
Federal Motor Carrier Safety
Administration, 1200 New Jersey
Avenue, SE., Washington, DC 20590.
Telephone: 202–366–6830. Office hours
are from 7:45–4:45 p.m., e.t., Monday
through Friday, except Federal holidays.
Web site address: https://
www.fmcsa.dot.gov.
SUPPLEMENTARY INFORMATION
Background
Section 222 of MCSIA directs the
Secretary of Transportation to ‘‘assess
the maximum civil penalty for each
violation by any person who is found to
have committed a pattern of violations
of critical or acute regulations, or to
have previously committed the same or
a related violation of critical or acute
regulations.’’ [Pub. L. 106–159, 113 Stat.
1748, 1769, Dec. 9, 1999; codified in 49
U.S.C. 521 note.]
On September 8, 2000, FMCSA issued
a policy memorandum that changed its
PO 00000
Frm 00080
Fmt 4703
Sfmt 4703
fine assessment policy to meet the
requirements of section 222 of MCSIA.
On December 28, 2004, FMCSA
published a clarification of its
September 8, 2000, policy statement
implementing section 222 of MCSIA (69
FR. 77828). The memorandum and
subsequent Federal Register notice
defined both a ‘‘pattern of violations’’
and ‘‘previously committed the same or
related violation’’ as three cases closed
with findings of violation occurring
within the last six years. The three
cases—also known as ‘‘three strikes’’—
consist of two cases that have been
closed with findings of violations,
followed by a third case, in which the
discovery of violations during an on-site
compliance review, shipper review or
terminal review involved the same part
of the Federal Motor Carrier Safety
Regulations (FMCSR) and/or Federal
Hazardous Materials Regulations (HMR)
in Title 49 of the Code of Federal
Regulations.
In an August 2007 report,1 the
Government Accountability Office
(GAO) concluded that FMCSA’s ‘‘threestrikes’’ policy failed to assess
maximum penalties against all serious
violators and achieve MCSIA’s statutory
intent that maximum penalties be
imposed in two distinct situations for a
pattern of violations, and for repeat
violations of the same or related
regulations. The GAO recommended
that FMCSA revise its policy to include
(1) a definition for a pattern of
violations that is distinct from a
repeated violation of the same or related
regulations and (2) a two-strike, rather
than a three-strike, policy. In an earlier
2006 report,2 the Department of
Transportation’s Office of Inspector
General (OIG) similarly recommended
that FMCSA develop procedures to
implement the section 222 ‘‘pattern of
violations’’ provision and additionally
to count for section 222 purposes all
acute and critical violations discovered
during a compliance review. Based on
these recommendations, FMCSA reexamined its policy and adopts the
revisions contained in this notice.
Policy
This policy supplements FMCSA’s
existing policy and continues its
implementation of section 222 of
MCSIA consistent with the statutory
language and in response to the GAO
1 ‘‘Federal Safety Agency Identifies Many HighRisk Carriers but Does Not Assess Maximum Fines
as Often as Required by Law’’ (GAO–07–584,
August 2007).
2 ‘‘Significant Improvements for Motor Carrier
Safety Program since 1999 Act but Loopholes for
Repeat Violators Need Closing’’ (OIG Report No.
MH–2006–046, April 21, 2006).
E:\FR\FM\30MRN1.SGM
30MRN1
Federal Register / Vol. 74, No. 59 / Monday, March 30, 2009 / Notices
and OIG recommendations. In order to
ensure adequate notice to the regulated
industry, only those investigations and
cases initiated on or after the effective
date of this notice will be used to
support imposition of maximum
penalties under the ‘‘two-strikes’’
policy. Investigations and cases initiated
prior to the effective date of this notice
will continue to be considered for
maximum penalty assessment under the
‘‘three-strikes’’ policy.
sroberts on PROD1PC70 with NOTICES
’’Pattern of Violations’’
Effective with this policy, FMCSA is
separately defining a ‘‘pattern of
violations’’ as occurring when the
Agency discovers two or more critical
and/or acute violations 3 in each of three
or more different regulatory parts (i.e., a
minimum of six acute and/or critical
violations). A ‘‘pattern of violations’’
does not require previous enforcement
and can be found even during a firsttime investigation. A motor carrier will
be subject to maximum fines when a
‘‘pattern’’ of critical or acute violations
is discovered after having previous
contact with FMCSA, a State motor
carrier safety enforcement agency, or
other FMCSA-designated representative
acting on behalf of FMCSA. This contact
may have been through a previous New
Entrant Safety Audit, Pre-Authorization
Safety Audit, Expedited Action Letter,
Compliance Review, Notice of
Violation, Notice of Claim, Warning
Letter or other significant documented
contact reasonably likely to have alerted
the motor carrier to FMCSA’s regulatory
and enforcement jurisdiction. The
previous contact may have occurred
prior to the effective date of this notice.
A roadside inspection, alone, however,
is not a previous contact for the purpose
of subjecting a motor carrier to a section
222 pattern of violations finding.
Notices of Claim that allege the requisite
pattern of violations described herein
will include a proposed civil penalty in
the maximum amount authorized by
statute for each qualifying violation.
‘‘Two Strikes’’
Effective with this policy, FMCSA
expands its interpretation of
‘‘previously committed the same or
related violation’’ and adopts a ‘‘twostrikes’’ policy that is similar to the
Agency’s existing ‘‘three-strikes’’ policy.
Under this supplemental policy,
maximum penalties will be applied in
cases where an acute violation is
discovered during an investigation
3 Critical and acute regulations are listed in 49
CFR Part 385, Appendix B. ‘‘Critical violations’’ are
violations of a critical regulation discovered at or
above a 10% violation rate; they involve more than
one discovered violation.
VerDate Nov<24>2008
18:33 Mar 27, 2009
Jkt 217001
within six years of a previously closed
case that contained a finding of
violation of a critical or acute regulation
in the same FMCSR and/or HMR part.
The same standards applied by FMCSA
under the three-strikes policy will apply
to cases being used as a previous strike
under the two-strikes policy. The
previous case must have been closed
within six years prior to the completion
of the investigation in which the second
strike is discovered (but no earlier than
the effective date of this two-strikes
policy); it must contain one or more
violations of critical or acute regulations
in the same regulatory part(s); and those
violations must have been admitted or
adjudicated with a finding of violation.
FMCSA will continue to measure the
six-year period from the date the
previous enforcement case was closed to
the date the investigation is completed.
The revision of the definition of
‘‘previously committed the same or
related violation’’ in this supplemental
policy is consistent with the emphasis
FMCSA places on violations of acute
regulations.
Categories of Investigations
Effective with this supplemental
policy, FMCSA also expands the
category of investigations during which
violations of acute and/or critical
regulations discovered may be subject to
assessment of section 222 maximum
penalties to include rated and unrated
compliance reviews, terminal reviews,
shipper reviews, focused reviews, onand off-site assessment investigations,
and on- and off-site investigations
arising under the Agency’s
Comprehensive Safety Analysis 2010
program or successor programs.
Settlement Policy
The Agency’s December 28, 2004,
policy clarification stated that in order
to ensure uniformity in implementing
section 222 of MCSIA, FMCSA Service
Centers would not be permitted to settle
section 222 cases for less than the
maximum penalty assessed. The policy
permitted settlement agreements
establishing a payment plan and noted
that the settlement limitation would be
re-evaluated as the Agency gained more
experience in applying the statutory
requirement. The Agency has reviewed
this settlement limitation in light of its
experience since the issuance of its
section 222 policy. The Agency now
lifts this settlement restriction and will
allow FMCSA Service Centers to
evaluate on a case-by-case basis whether
section 222 penalty matters are
appropriate for approved settlement
options. The Agency will continue to
monitor its settlement policy on section
PO 00000
Frm 00081
Fmt 4703
Sfmt 4703
14185
222 cases to ensure uniformity and
appropriate use of settlement options.
Issued on: March 24, 2009.
Rose A. McMurray,
Acting Deputy Administrator.
[FR Doc. E9–7057 Filed 3–27–09; 8:45 am]
BILLING CODE 4910–EX–P
DEPARTMENT OF TRANSPORTATION
Maritime Administration
[Docket No. MARAD–2009–0028]
Requested Administrative Waiver of
the Coastwise Trade Laws
AGENCY: Maritime Administration,
Department of Transportation.
ACTION: Invitation for public comments
on a requested administrative waiver of
the Coastwise Trade Laws for the vessel
Stewardship.
SUMMARY: As authorized by 46 U.S.C.
12121, the Secretary of Transportation,
as represented by the Maritime
Administration (MARAD), is authorized
to grant waivers of the U.S.-build
requirement of the coastwise laws under
certain circumstances. A request for
such a waiver has been received by
MARAD. The vessel, and a brief
description of the proposed service, is
listed below. The complete application
is given in DOT docket MARAD–2009–
0028 at https://www.regulations.gov.
Interested parties may comment on the
effect this action may have on U.S.
vessel builders or businesses in the U.S.
that use U.S.-flag vessels. If MARAD
determines, in accordance with 46
U.S.C. 12121 and MARAD’s regulations
at 46 CFR part 388 (68 FR 23084; April
30, 2003), that the issuance of the
waiver will have an unduly adverse
effect on a U.S.-vessel builder or a
business that uses U.S.-flag vessels in
that business, a waiver will not be
granted. Comments should refer to the
docket number of this notice and the
vessel name in order for MARAD to
properly consider the comments.
Comments should also state the
commenter’s interest in the waiver
application, and address the waiver
criteria given in section 388.4 of
MARAD’s regulations at 46 CFR part
388.
DATES: Submit comments on or before
April 29, 2009.
ADDRESSES: Comments should refer to
docket number MARAD–2009–0028.
Written comments may be submitted by
hand or by mail to the Docket Clerk,
U.S. Department of Transportation,
Docket Operations, M–30, West
Building Ground Floor, Room W12–140,
E:\FR\FM\30MRN1.SGM
30MRN1
Agencies
[Federal Register Volume 74, Number 59 (Monday, March 30, 2009)]
[Notices]
[Pages 14184-14185]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-7057]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
Supplemental Policy on Assessing Maximum Fines under the Motor
Carrier Safety Improvement Act of 1999 (MCSIA) Section 222
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of policy change.
-----------------------------------------------------------------------
SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA)
provides notice to the motor carrier industry of policy changes
regarding the assessment of maximum fines under section 222 of the
Motor Carrier Safety Improvement Act of 1999 (MCSIA). Section 222
requires the Agency to assess maximum statutory penalties if a person
is found to have committed a pattern of violations of critical or acute
regulations, or previously committed the same or a related violation of
critical or acute regulations.
DATES: Effective Date: This change in policy is effective April 1,
2009.
FOR FURTHER INFORMATION CONTACT: Mr. David Mancl, Acting Chief,
Enforcement and Compliance Division, MC-ECE, Federal Motor Carrier
Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC
20590. Telephone: 202-366-6830. Office hours are from 7:45-4:45 p.m.,
e.t., Monday through Friday, except Federal holidays. Web site address:
https://www.fmcsa.dot.gov.
SUPPLEMENTARY INFORMATION
Background
Section 222 of MCSIA directs the Secretary of Transportation to
``assess the maximum civil penalty for each violation by any person who
is found to have committed a pattern of violations of critical or acute
regulations, or to have previously committed the same or a related
violation of critical or acute regulations.'' [Pub. L. 106-159, 113
Stat. 1748, 1769, Dec. 9, 1999; codified in 49 U.S.C. 521 note.]
On September 8, 2000, FMCSA issued a policy memorandum that changed
its fine assessment policy to meet the requirements of section 222 of
MCSIA. On December 28, 2004, FMCSA published a clarification of its
September 8, 2000, policy statement implementing section 222 of MCSIA
(69 FR. 77828). The memorandum and subsequent Federal Register notice
defined both a ``pattern of violations'' and ``previously committed the
same or related violation'' as three cases closed with findings of
violation occurring within the last six years. The three cases--also
known as ``three strikes''--consist of two cases that have been closed
with findings of violations, followed by a third case, in which the
discovery of violations during an on-site compliance review, shipper
review or terminal review involved the same part of the Federal Motor
Carrier Safety Regulations (FMCSR) and/or Federal Hazardous Materials
Regulations (HMR) in Title 49 of the Code of Federal Regulations.
In an August 2007 report,\1\ the Government Accountability Office
(GAO) concluded that FMCSA's ``three-strikes'' policy failed to assess
maximum penalties against all serious violators and achieve MCSIA's
statutory intent that maximum penalties be imposed in two distinct
situations for a pattern of violations, and for repeat violations of
the same or related regulations. The GAO recommended that FMCSA revise
its policy to include (1) a definition for a pattern of violations that
is distinct from a repeated violation of the same or related
regulations and (2) a two-strike, rather than a three-strike, policy.
In an earlier 2006 report,\2\ the Department of Transportation's Office
of Inspector General (OIG) similarly recommended that FMCSA develop
procedures to implement the section 222 ``pattern of violations''
provision and additionally to count for section 222 purposes all acute
and critical violations discovered during a compliance review. Based on
these recommendations, FMCSA re-examined its policy and adopts the
revisions contained in this notice.
---------------------------------------------------------------------------
\1\ ``Federal Safety Agency Identifies Many High-Risk Carriers
but Does Not Assess Maximum Fines as Often as Required by Law''
(GAO-07-584, August 2007).
\2\ ``Significant Improvements for Motor Carrier Safety Program
since 1999 Act but Loopholes for Repeat Violators Need Closing''
(OIG Report No. MH-2006-046, April 21, 2006).
---------------------------------------------------------------------------
Policy
This policy supplements FMCSA's existing policy and continues its
implementation of section 222 of MCSIA consistent with the statutory
language and in response to the GAO
[[Page 14185]]
and OIG recommendations. In order to ensure adequate notice to the
regulated industry, only those investigations and cases initiated on or
after the effective date of this notice will be used to support
imposition of maximum penalties under the ``two-strikes'' policy.
Investigations and cases initiated prior to the effective date of this
notice will continue to be considered for maximum penalty assessment
under the ``three-strikes'' policy.
''Pattern of Violations''
Effective with this policy, FMCSA is separately defining a
``pattern of violations'' as occurring when the Agency discovers two or
more critical and/or acute violations \3\ in each of three or more
different regulatory parts (i.e., a minimum of six acute and/or
critical violations). A ``pattern of violations'' does not require
previous enforcement and can be found even during a first-time
investigation. A motor carrier will be subject to maximum fines when a
``pattern'' of critical or acute violations is discovered after having
previous contact with FMCSA, a State motor carrier safety enforcement
agency, or other FMCSA-designated representative acting on behalf of
FMCSA. This contact may have been through a previous New Entrant Safety
Audit, Pre-Authorization Safety Audit, Expedited Action Letter,
Compliance Review, Notice of Violation, Notice of Claim, Warning Letter
or other significant documented contact reasonably likely to have
alerted the motor carrier to FMCSA's regulatory and enforcement
jurisdiction. The previous contact may have occurred prior to the
effective date of this notice. A roadside inspection, alone, however,
is not a previous contact for the purpose of subjecting a motor carrier
to a section 222 pattern of violations finding. Notices of Claim that
allege the requisite pattern of violations described herein will
include a proposed civil penalty in the maximum amount authorized by
statute for each qualifying violation.
---------------------------------------------------------------------------
\3\ Critical and acute regulations are listed in 49 CFR Part
385, Appendix B. ``Critical violations'' are violations of a
critical regulation discovered at or above a 10% violation rate;
they involve more than one discovered violation.
---------------------------------------------------------------------------
``Two Strikes''
Effective with this policy, FMCSA expands its interpretation of
``previously committed the same or related violation'' and adopts a
``two-strikes'' policy that is similar to the Agency's existing
``three-strikes'' policy. Under this supplemental policy, maximum
penalties will be applied in cases where an acute violation is
discovered during an investigation within six years of a previously
closed case that contained a finding of violation of a critical or
acute regulation in the same FMCSR and/or HMR part. The same standards
applied by FMCSA under the three-strikes policy will apply to cases
being used as a previous strike under the two-strikes policy. The
previous case must have been closed within six years prior to the
completion of the investigation in which the second strike is
discovered (but no earlier than the effective date of this two-strikes
policy); it must contain one or more violations of critical or acute
regulations in the same regulatory part(s); and those violations must
have been admitted or adjudicated with a finding of violation. FMCSA
will continue to measure the six-year period from the date the previous
enforcement case was closed to the date the investigation is completed.
The revision of the definition of ``previously committed the same or
related violation'' in this supplemental policy is consistent with the
emphasis FMCSA places on violations of acute regulations.
Categories of Investigations
Effective with this supplemental policy, FMCSA also expands the
category of investigations during which violations of acute and/or
critical regulations discovered may be subject to assessment of section
222 maximum penalties to include rated and unrated compliance reviews,
terminal reviews, shipper reviews, focused reviews, on- and off-site
assessment investigations, and on- and off-site investigations arising
under the Agency's Comprehensive Safety Analysis 2010 program or
successor programs.
Settlement Policy
The Agency's December 28, 2004, policy clarification stated that in
order to ensure uniformity in implementing section 222 of MCSIA, FMCSA
Service Centers would not be permitted to settle section 222 cases for
less than the maximum penalty assessed. The policy permitted settlement
agreements establishing a payment plan and noted that the settlement
limitation would be re-evaluated as the Agency gained more experience
in applying the statutory requirement. The Agency has reviewed this
settlement limitation in light of its experience since the issuance of
its section 222 policy. The Agency now lifts this settlement
restriction and will allow FMCSA Service Centers to evaluate on a case-
by-case basis whether section 222 penalty matters are appropriate for
approved settlement options. The Agency will continue to monitor its
settlement policy on section 222 cases to ensure uniformity and
appropriate use of settlement options.
Issued on: March 24, 2009.
Rose A. McMurray,
Acting Deputy Administrator.
[FR Doc. E9-7057 Filed 3-27-09; 8:45 am]
BILLING CODE 4910-EX-P