Oklahoma Administrative Code
Title 595 - Department of Public Safety
Chapter 35 - Enforcement of Oklahoma Motor Carrier Safety and Hazardous Materials Transportation Act
Section 595:35-1-10 - Administrative penalty assessment guidelines

(1) These guidelines are not meant to be used to determine when enforcement action will be taken, nor are they meant to be a rigid requirement. Instead, they are meant to assist the Commissioner or the representative in assessing each administrative penalty based on the seriousness of the underlying offense. For example, the fine for violations such as stop light violations or horn or other similar equipment failure violations would not exceed that authorized by statue if adjudged in a court of competent jurisdiction. However, repeated violations of this nature would evidence a pattern of safety violations which would fall within one of the categories set forth in (b) of this Section.

(2) If a hearing is necessary, the hearing officer may eventually assess an administrative penalty which is different than the original administrative penalty imposed in the Notice of Claim.

(3) Because of the volume of violations, the examples in this section are not all inclusive; they are only intended to serve as a guide for the types of violation categories. OAC 595:35-1-4 contains a complete listing of all violations that may be enforced through an administrative penalty assessment issued pursuant to 47 O.S. §§ 230.6 and 230.9.

(1) Record keeping violations. See 47 O.S. § 230.9(B)(1). These are violations of the administrative requirements of the Act, including failure to make, require, or keep records, or the falsification of entries in the records required by the Department of Transportation regulations pertaining to motor carrier safety as adopted and contained in Title 49 of the Code of Federal Regulations (CFR).

(2) Serious pattern of safety violations. See 47 O.S. § 230.9(B)(2). The Act provides for a fine of Two Hundred Dollars ($200.00) for each offense not to exceed One Thousand Dollars ($1,000.00) for each serious pattern of safety violation. The Commissioner or the representative may find a serious pattern of safety violations exists if the respondent has repeatedly violated equipment and operational requirements of the Act, and such violations are of a nature which indicates they are not the result of isolated human error but are of a tolerated pattern which the respondent could have detected and corrected if he or she wanted to meet his or her full safety responsibility to the public. Although any single violation may not by itself have a high probability of causing an accident, the violations taken as a whole may collectively demonstrate the respondent's unwillingness to exercise proper safety supervision or control which will eventually lead to accidents. Examples of some violations which may be included in a serious pattern of safety violations are:

(3) Substantial health or safety violations. See 47 O.S. § 230.9(B)(3). The Act provides for a penalty not to exceed One Thousand Dollars ($1,000.00) per offense. This category includes any act or acts which evidences that a substantial health or safety violation exists or has occurred which could reasonably lead to or has resulted in serious personal injury or death. Substantial health or safety violations are listed in the Commercial Vehicle Safety Alliance North American Standard Out-of-Service Criteria such that they have been found to be of sufficient magnitude that they require taking the driver, vehicle or container out of service. Examples include but are not limited to the following:

(4) Gross negligence or reckless disregard. See 47 O.S. § 230.9(D). The Act provides that, except for record keeping violations, an employee shall not be liable for a violation of the Act unless the Commissioner determines that such actions of the employee constituted gross negligence or reckless disregard for safety, in which case such employee shall be liable for an administrative penalty not to exceed One Thousand Dollars ($1,000.00). Gross negligence exists where the employee acts in such a way which indicates complete disregard or indifference to the safety of other people's property or welfare.

(5) Certain misuses of vehicles or containers. See 47 O.S. § 230.6. The Act provides for a civil penalty assessed to an employee of not less than Two Thousand Five Hundred Dollars ($2,500.00) nor more than Five Thousand Dollars ($5,000.00). The Act also provides for a civil penalty assessed to an employer of not less than Two Thousand Seven Hundred and Fifty Dollars ($2,750.00) nor more than Twenty-Five Thousand Dollars ($25,000.00). Some examples of certain misuses of vehicles or containers are:

(1) Nature of the violation. A consideration of the appropriate category of the violation.

(2) Circumstances of the violation. A broad consideration which includes both aggravating as well as mitigating factors known to the Commissioner or the representative at the time of the assessment.

(3) Extent of the violation. Requires the Commissioner or the representative to consider the magnitude, scope, frequency, and range of a violation. This is a major factor where there are numerous violations involving a large number of vehicles or employees of the respondent. It indicates that the respondent has a greater magnitude, frequency, and range of violations.

(4) Gravity of the violation. An evaluation of the seriousness of the violation. The seriousness is to be measured by the likelihood of the occurrence of the event, and the severity of the event if it occurred or were to occur. The gravity is not to be measured abstractly, but on a case-by-case basis taking into account all relevant factors.

(5) Culpability. The quality of the respondent's awareness of his or her actions, and the degree to which he or she was responsible for averting such violations. In determining the culpability of a respondent, ignorance is no excuse. Instead, culpability will be determined on the basis of whether the respondent knew or should have known of the violation, and to what extent the respondent had control of the violation.

(6) History of prior offenses. The Commissioner or representative will consider the respondent's performance record in terms of prior Notices of Claim, prior warnings, citations, and prior compliance efforts of the respondent. Both similar violations and different types of violations in the past should be taken into account, but the similar past violations should be given more weight.

(7) Ability to pay and ability to do business. The Commissioner or the representative may consider the respondent's inability to pay or whether the payment of such a penalty would affect the respondent's ability to do business.

(8) Such other matters as justice and public safety may require. These are other matters, not specifically covered by one of the other factors, which can be either aggravating or mitigating factors and may be taken into account by the Commissioner or the representative in setting the penalty if, in the interests of justice and public safety, a reduction or an increase in the amount of the assessment is required in order to achieve the purposes of the Act. Other matters might be either positive or negative, such as: cooperation or lack of cooperation; general attitude towards compliance; equities; institution or revision of a safety director or safety consultant; comprehensiveness of corrective action, such as whether the action is focused narrowly to the specific violation or broadly to the general area of concern; compliance or noncompliance by the date set in the notice of claim; speed of compliance; and other matters. These matters, both negative and positive, are to be considered together, and they may cancel out one another.