[Federal Register Volume 61, Number 204 (Monday, October 21, 1996)]
[Proposed Rules]
[Pages 54601-54606]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-26671]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Parts 361, 362, 363, and 364

[FHWA Docket No. MC-96-18]
RIN 2125-AD64


Rules of Practice for Motor Carrier Proceedings; Investigations; 
Disqualifications and Penalties

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Supplemental notice of proposed rulemaking (SNPRM); extension 
of comment period.

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SUMMARY: On April 29, 1996, the FHWA published notice of its proposal 
to amend its rules of practice for motor carrier administrative 
proceedings. (61 FR 18866). The FHWA now proposes to supplement that 
notice of proposed rulemaking to make the rules applicable to 
proceedings arising under section 103 of the ICC Termination Act of 
1995 (ICCTA) as well. Before the ICCTA became effective on January 1, 
1996, these proceedings fell under the jurisdiction of the Interstate 
Commerce Commission (ICC) and were implemented and administered 
pursuant to ICC regulations. But the ICCTA abolished the ICC and gave 
the Secretary of Transportation responsibility for carrying out the 
provisions of section 103. The Secretary has delegated that 
responsibility to the FHWA. By broadening the scope of the proposed 
rules of practice to include proceedings arising under the ICCTA, the 
FHWA proposes to adopt uniform and consistent procedures to govern all 
investigation and civil forfeiture proceedings which it institutes.

DATES: Comments must be received on or before November 20, 1996.

ADDRESSES: Submit written, signed comments to FHWA Docket No. MC-96-18, 
FHWA, Office of the Chief Counsel, HCC-10, Room 4232, 400 Seventh 
Street SW., Washington, DC 20590. All comments received will be 
available for examination at the above address from 8:30 a.m. to 3:30 
p.m., e.t., Monday through Friday, except Federal holidays. Those 
desiring notification of receipt of comments must include a self- 
addressed, stamped postcard/envelope.

FOR FURTHER INFORMATION CONTACT: Judy Rutledge, Office of the Chief 
Counsel, (202) 366-0834, Federal Highway Administration, 400 Seventh 
Street, SW., Washington, DC 20590. Office hours are from 7:45 a.m. to 
4:15 p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: This supplemental notice of proposed 
rulemaking addresses procedural changes that will facilitate 
implementation of the ICCTA, Pub.L. No. 104-88, 109 Stat. 803. 
Effective January 1, 1996, the ICCTA abolished the Interstate Commerce 
Commission (ICC) but reenacted various statutory provisions that the 
ICC previously administered. Among the statutes reenacted are civil and 
criminal penalty provisions that apply to violations of Part B of 
Subtitle IV, Title 49, United States Code (49 U.S.C. 13101 et seq.). 
Those provisions appear in Chapter 149 of Part B.
    The ICCTA charges the Secretary of Transportation with 
responsibility for carrying out Part B, including the civil penalty 
provisions in Chapter 149. The Secretary has delegated that 
responsibility to the Federal Highway Administration (FHWA). Thus, the 
FHWA now oversees compliance with Part B of the ICCTA and is authorized 
to conduct investigations and implement enforcement proceedings to 
obtain compliance.
    Currently, investigation and enforcement proceedings relating to 
violations of Part B are governed by procedures in former ICC 
regulations, which the FHWA adopted as an interim measure. (61 FR 
14372, April 1, 1996). Those procedures differ from FHWA's procedures 
that apply to investigations and enforcement proceedings for violations 
of the safety regulations. For example, civil forfeiture proceedings 
arising from violations of the motor carrier safety regulations are 
governed by 49 CFR Part 386, whereas, similar proceedings for 
violations of Part B of the ICCTA are governed by 49 CFR Part 1021. 
Although civil forfeiture claims under Part 386 and Part 1021 are 
asserted the same way--by letter containing prescribed information--
only Part 386 requires the respondent to reply to the claim letter in a 
specified time with prescribed information in order to administratively 
resolve the claim. (49 CFR 386.14). In contrast, Part 1021 does not 
require a response to the claim letter and does not establish

[[Page 54602]]

administrative procedures for resolving the claims.
    While the ICC existed, these procedural differences were 
inconsequential because the regulations were applied by separate 
agencies to different violations. The ICC applied Part 1021 procedures 
to civil penalties it assessed under Subtitle IV, Title 49, U.S. Code, 
while the FHWA applied Part 386 procedures to civil penalties it 
assessed under Subtitle VI of Title 49. But now that the FHWA oversees 
the statutes previously administered by the ICC, having one set of 
procedures will eliminate confusion and duplicative regulatory 
provisions.
    To establish uniform and consistent procedures for all proceedings, 
the FHWA intends to adopt new rules of practice. An extensive revision 
of its rules of practice has already been proposed in a notice of 
proposed rulemaking (NPRM). (61 FR 18866, April 29, 1996). This 
supplemental notice of proposed rulemaking contains the amendments that 
the FHWA considers necessary to unite the separate procedures that now 
exist.
    In this supplemental proposal, the FHWA is adopting the term 
``Commercial Regulations'' to refer to the requirements imposed on 
motor carriers as a result of the transfer of functions from the former 
Interstate Commerce Commission in the ICCTA. The procedures to be 
followed by the FHWA in carrying out the transferred functions are 
integrated into the proposed procedures published in the April 29 
Federal Register. Therefore, it would be helpful for commenters to read 
the two proposals together. No substantive changes are being proposed 
in this notice.

Part 361--Administrative Enforcement

    The changes offered in this proposed Part are principally limited 
to the insertion of references to the statutory authority for the 
functions transferred from the ICC. A definition of ``Commercial 
Regulations'' is included and that term is inserted in the various 
sections along with the new statutory authority for those regulations.

Part 362--Safety Ratings

    No changes are being made to proposed Part 362.

Part 363--Enforcement Proceedings

    A reference to enforcement of the commercial regulations is 
inserted in the authority note and the section headed Nature of the 
Proceedings.

Part 364--Violations, Penalties and Collections

    Substantial additions are made to this proposed part, primarily 
incorporating the various violations and penalties included in chapter 
149 of Title 49, added by the ICCTA. Comments are particularly invited 
on this Part as it relates to the determinative factors in assessing 
civil penalties.
    In order to provide ample notice and opportunity for comment to the 
public, the comment period on the April 29, 1996 NPRM was extended 45 
days (61 FR ______, August 6, 1996), by which time comments on both the 
NPRM and this SNPRM must be received.

Rulemaking Analyses and Notices

Executive Order 12866 (Federal Regulation) and DOT Regulatory Policies 
and Procedures

    The FHWA has determined that this action is not a significant 
regulatory action within the meaning of Executive Order 12866 or 
significant within the meaning of Department of Transportation 
regulatory policies and procedures. The proposal contained in this 
document would not result in an annual effect on the economy of $100 
million or more, lead to a major increase in costs or prices, or have 
significant adverse effects on the United States economy. This proposal 
would amend provisions in the proposed Rules of Practice for Motor 
Carrier Proceedings, Investigations, Disqualifications and Penalties, 
published at 61 FR 18866, April 29, 1996, to make them applicable to 
proceedings arising under the ICC Termination Act of 1995. Because the 
FHWA acquired new statutory responsibilities under the Act, this action 
will establish one set of procedures that apply to all FHWA proceedings 
and thereby reduce duplicative regulation. Any economic consequences 
flowing from the procedures in the proposal are primarily mandated by 
statute. A regulatory evaluation is not required because of the 
ministerial nature of this action.

Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the agency has evaluated the effects of this Supplemental NPRM on 
small entities. No economic impacts of this rulemaking are foreseen as 
the rule would impose no additional substantive burdens that are not 
already required by the statutes and regulations to which these 
procedural rules apply. Therefore, the FHWA certifies that this 
proposed action would not have a significant economic impact on a 
substantial number of small entities.

Executive Order 12612 (Federalism Assessment)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 12612. The rules proposed herein 
do not preempt State authority or jurisdiction beyond the preemption 
established by Federal statute, nor do they establish any conflicts 
with existing State roles in regulating carriers and brokers operating 
in interstate commerce. It has, therefore, been determined that the 
SNPRM does not have sufficient federalism implications to warrant the 
preparation of a federalism assessment.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.217, Motor 
Carrier Safety. The regulations implementing Executive Order 12372 
regarding intergovernmental consultation of Federal programs and 
activities do not apply to this program.

Paperwork Reduction Act

    This proposed rule does not require a collection of information for 
purposes of the Paperwork Reduction Act of 1980. (44 U.S.C. 3501 et 
seq.)

National Environment Policy Act

    The agency has analyzed this action for purposes of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and has 
determined that the proposed rules would not have any effect on the 
quality of the environment.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN contained in the heading of 
this document can be used to cross reference this action with the 
Unified Agenda.

List of Subjects in 49 CFR 361, 362, 363, and 364

    Administrative procedures, Commercial motor vehicle safety, 
Highways and roads, Highway safety, Motor carriers.

    Issued on: October 8, 1996.
Rodney E. Slater,
Federal Highway Administrator.

    In consideration of the foregoing, the FHWA proposes to amend the 
notice of

[[Page 54603]]

proposed rulemaking, 61 FR 18866, April 29, 1996, in the manner set 
forth below:

PART 361--ADMINISTRATIVE ENFORCEMENT

    1. The authority citation for Part 361 is revised to read as 
follows:

    Authority: 49 U.S.C. 104, 307, Chapters 5, 51, 59, 131-141, 145-
149, 311, 313, and 315.

    2. In proposed Section 361.101, the introductory text is 
republished and the section is amended by revising paragraphs (a) and 
(c) to read as follows:


Sec. 361.101   Purpose

    This part:
    (a) Restates the authority of the Department of Transportation 
(DOT) to regulate and investigate persons, property, equipment, and 
records relating to commercial motor vehicle transportation, intermodal 
safe container transportation, the highway transportation of hazardous 
materials, and carriers and brokers performing, or arranging, 
transportation subject to the jurisdiction of the Secretary;
    (b) * * *
    (c) Identifies the DOT officials authorized to enforce motor 
carrier, broker, freight forwarder, water carrier, and hazardous 
materials regulations.
    3. Section 361.102 is amended by revising the first sentence of 
paragraph (a) and adding a new second sentence and by revisng paragraph 
(b) to read as follows:


Sec. 361.102   Authority and delegation.

    (a) The authority of the Secretary of Transportation to regulate 
and investigate commercial motor vehicle safety, including motor 
carriers, commercial motor vehicles and drivers, and the highway 
transportation of hazardous materials, is codified in 49 U.S.C. 
Chapters 5, 51, 311, 313, and 315, and 42 U.S.C. 4917. The authority of 
the Secretary to regulate and investigate motor carriers, brokers, 
freight forwarders, and water carriers is codified in 49 U.S.C. 
Chapters 131-141 and 145-149. * * *.
    (b) The authority of the Secretary listed in paragraph (a) of this 
section has been delegated to the Federal Highway Administrator (49 
U.S.C. 104(c); 49 CFR 1.48), and is codified in 49 CFR part 325 (Noise 
Control), the Federal Motor Carrier Safety Regulations (FMCSRs) (49 CFR 
Parts 350-399), relevant portions of the Hazardous Materials 
Regulations (HMRs) (primarily 49 CFR Parts 171-173, 177-178, and 180), 
and the Commercial Regulations (CRs) (49 CFR Parts 370-379). The 
Federal Highway Administrator has delegated the authority to enforce 
the FMCSRs, the HMRs, and the CRs to the Associate Administrator for 
Motor Carriers.
 * * * * *
    4. In Sec. 361.103, the introductory text of the section and of 
paragraph (a)(2) is republished and paragraphs (a) introductory text, 
(a)(1), (a)(2)(i), and (a)(2)(ii) are revised to read as follows:


Sec. 361.103   Inspection and investigation.

    The FHWA may begin an investigation on its own initiative or on a 
complaint.
    (a) Upon a display of official DOT credentials, special agents may 
enter without delay at reasonable times any place of business, lands, 
buildings, property, equipment, or commercial motor vehicle of a person 
subject to the provisions of 49 U.S.C. Chapters 5, 51, 59, 131-141, 
145-149, and 42 U.S.C. 4917. Special agents may take the following 
actions:
    (1) Inspect the equipment, land, buildings, and property of a motor 
carrier, broker, freight forwarder, water carrier, or other person on 
the premises of the motor carrier, or the equipment of the carrier at 
any other location, and inspect any commercial motor vehicle of the 
motor carrier whether or not in operation; and
    (2) Inspect and copy any record of--
    (i) A carrier, broker, lessor, association, or other person subject 
to the provisions of 49 U.S.C. Chapters 5, 51, 59, 131-141, 145-149, 
311, 313, and 315, and 42 U.S.C. 4917; and
    (ii) A person controlling, controlled by, or under common control 
with a carrier or broker if the agent considers inspection relevant to 
that person's relation to, or transaction with, that carrier.
 * * * * *
    5. Section 361.104 is amended by revising the introductory 
paragraph and by adding a definition for ``Commercial Regulations'' in 
alphabetical order, to read as follows:


Sec. 361.104   Definitions.

    Words or phrases defined in 49 U.S.C. 13102 and in 49 CFR 383.5 and 
390.5 of this subchapter apply in parts 361-364. In addition--
 * * * * *
    Commercial Regulations (CRs) means statutes and regulations that 
apply to persons providing or arranging transportation for compensation 
subject to the Secretary's jurisdiction under 49 U.S.C. Chapter 135. 
The statutes are codified in Part B of Subtitle IV, Title 49, U.S. Code 
(49 U.S.C. 13101 through 14913). The regulations include those issued 
by the Federal Highway Administration or its predecessor under 
authority provided in 49 U.S.C. 13301 or a predecessor statute.
 * * * * *
    6. Section 361.105 is amended by revising paragraph (d)(3) to read 
as follows:


Sec. 361.105   Employer obligations.

 * * * * *
    (d) * * *
    (3) Any equipment, land, buildings, or property used in the 
transportation of persons or property or to ensure compliance with the 
Federal Motor Carrier Safety Regulations, the Hazardous Materials 
Regulations, and the Commercial Regulations.
 * * * * *
    7. Section 361.109 is amended by adding paragraph (g) to read as 
follows:


Sec. 361.109   Depositions and production of records.

 * * * * *
    (g) A party to a proceeding pending under Part B of Subtitle IV, 
Title 49, U.S. Code, may take the testimony of a witness by deposition 
and may require the witness to produce records at any time after a 
proceeding is at issue on petition and waiver. If a witness fails to be 
deposed or to produce records the Associate Administrator may subpoena 
the witness to take a deposition, produce the records, or both.

PART 363--ENFORCEMENT PROCEEDINGS

    8. The authority citation for Part 363 is added as follows:

    Authority: 49 U.S.C. Chapters 5, 51, 133, 147, 149, 311, 313, 
and 315.

    9. In Sec. 363.101 the first sentence of the introductory paragraph 
is revised to read as follows:


Sec. 363.101   Nature of Proceeding.

    Civil penalty proceedings are proceedings pursuant to 5 U.S.C. 554 
in which the agency makes a monetary claim or seeks an order against 
the respondent, based on violation of the FMCSRs, HMRs, or CRs. * * *.
 * * * * *

PART 364--VIOLATIONS, PENALTIES, AND COLLECTIONS

    10. The authority citation for Part 364 is revised to read as 
follows:

    Authority: 49 U.S.C. Chapters 5, 51, 133, 149, 311, 313, and 
315.

    11. Section 364.101 is revised to read as follows:


Sec. 364.101   Purpose.

    The purposes of this part are to define the various types of 
violations of the

[[Page 54604]]

Federal Motor Carrier Safety Regulations (FMCSRs), the Hazardous 
Materials Regulations (HMRs), the Commercial Regulations (CRs), and 
orders authorized to be issued thereunder; to describe the range of 
penalties that may be imposed for such violations and how those 
penalties are assessed; and to identify the means that may be employed 
to collect those penalties once it has been finally decided by the 
agency that they are due.
    12. Section 364.102 is amended by revising paragraphs (a), (b), and 
(d) to read as follows:


Sec. 364.102   Policy.

    (a) Penalties are assessed administratively by the agency for 
violations of the FMCSRs, HMRs, CRs, and administrative orders at 
levels sufficient to bring about satisfactory compliance. Criminal 
penalties are also authorized to be sought in U.S. District Court under 
certain circumstances. The civil and criminal penalties authorized for 
violations of the ERs are not exclusive remedies and may be pursued 
along with a civil action for injunctive relief that is authorized by 
49 U.S.C. 14702.
    (b) The amounts of civil penalties that can be assessed for 
regulatory violations subject to the proceedings in this subchapter are 
established in the statutes granting enforcement powers. The 
determination of the actual civil penalties assessed in each proceeding 
is based on those defined limits and consideration of information 
available at the time the claim is made concerning the nature, 
circumstances, extent and gravity of the violation and, with respect to 
the violator, the degree of culpability, history of prior offenses, 
ability to pay, effect on ability to continue to do business, and such 
other matters as justice and public safety may require. In addition to 
those factors, a civil penalty assessed under 49 U.S.C. 14901 (a) and 
(d) concerning the transportation of household goods is also based on 
the degree of harm caused to a shipper and whether the shipper has been 
adequately compensated before institution of the civil penalty 
proceeding. In adjudicating the claims and orders under the 
administrative procedures in this subchapter, additional information 
may be developed regarding these factors that may affect the final 
amount of the claim.
    (c) * * *
    (d) Criminal penalties for violating the FMCSRs, HMRs, and 
administrative orders may be sought against a motor carrier, its 
officers or agents, a driver, or other persons when it can be 
established that violations were deliberate or resulted from a willful 
disregard for the regulations. Criminal penalties may be sought against 
an employee only when a causative link can be established between a 
knowing and willful violation and an accident or hazardous materials 
incident or the risk thereof. Criminal penalties for violating the ERs 
may be sought against a person when it can be established that the 
person acted with the criminal intent specified in the statute 
governing the violation.
 * * * * *
    13. Section 364.201 is amended by revising the first sentence of 
paragraph (a)(4)(i) and by adding paragraph (f) to read as follows:


Sec. 364.201   Types of violations and maximum monetary penalties.

    (a) * * *
    (4) * * *
    (i) Owner operators. For purposes of Sec. 364.201(a) which applies 
to violations of the FMCSRs, an owner operator while in the course of 
personally operating a commercial motor vehicle is considered an 
employee. * * *
* * * * *
    (f) Violations of the Commercial Regulations (CRs). Penalties for 
violations of the CRs are specified in 49 U.S.C. Chapter 149. These 
penalties relate to transportation subject to the Secretary's 
jurisdiction under 49 U.S.C. Chapter 135. Unless otherwise noted, a 
separate violation occurs for each day the violation continues.
    (1) A person who fails to make a report, to specifically, 
completely, and truthfully answer a question, or to make, prepare, or 
preserve a record in the form and manner prescribed is liable for a 
minimum penalty of $500 per violation.
    (2) A person who operates as a carrier or broker for the 
transportation of property in violation of the registration 
requirements of 49 U.S.C. 13901 is liable for a minimum penalty of $500 
per violation.
    (3) A person who operates as a motor carrier of passengers in 
violation of the registration requirements of 49 U.S.C. 13901 is liable 
for a minimum penalty of $2,000 per violation.
    (4) A person who operates as a foreign motor carrier or foreign 
motor private carrier in violation of the provisions of 49 U.S.C. 
13902(c) is liable for a minimum penalty of $500 per violation.
    (5) A person who operates as a motor carrier or broker for the 
transportation of hazardous wastes in violation of the registration 
provisions 49 U.S.C. 13901 is liable for a maximum penalty of $20,000 
per violation.
    (6) A motor carrier or freight forwarder of household goods, or 
their receiver or trustee, that does not comply with any regulation 
relating to the protection of individual shippers is liable for a 
minimum penalty of $1,000 per violation.
    (7) A person
    (i) That falsifies, or authorizes an agent or other person to 
falsify, documents used in the transportation of household goods by 
motor carrier or freight forwarder to evidence the weight of a shipment 
or
    (ii) That charges for services which are not performed or are not 
reasonably necessary in the safe and adequate movement of the shipment 
is liable for a minimum penalty of $2,000 for the first violation and 
$5,000 for each subsequent violation.
    (8) A person who knowingly accepts or receives from a carrier a 
rebate or offset against the rate specified in a tariff required under 
49 U.S.C. 13702 for the transportation of property delivered to the 
carrier commits a violation for which the penalty is equal to 3 times 
the amount accepted as a rebate or offset and 3 times the value of 
other consideration accepted or received as a rebate or offset for the 
6-year period before the action is begun.
    (9) A person that offers, gives, solicits, or receives 
transportation of property by a carrier at a different rate than the 
rate in effect under 49 U.S.C. 13702 is liable for a maximum penalty of 
$100,000 per violation. When acting in the scope of his/her employment, 
the acts or omissions of a person acting for or employed by a carrier 
or shipper are considered to be the acts and omissions of that carrier 
or shipper, as well as that person.
    (10) Any person that offers, gives, solicits, or receives a rebate 
or concession related to motor carrier transportation subject to 
jurisdiction under subchapter I of 49 U.S.C. Chapter 135, or who 
assists or permits another person to get that transportation at less 
than the rate in effect under 49 U.S.C. 13702, commits a violation for 
which the penalty is $200 for the first violation and $250 for each 
subsequent violation.
    (11) A freight forwarder, its officer, agent, or employee, that 
assists or willingly permits a person to get service under 49 U.S.C. 
13531 at less than the rate in effect under 49 U.S.C. 13702 commits a 
violation for which the penalty is up to $500 for the first violation 
and up to $2,000 for each subsequent violation.
    (12) A person that gets or attempts to get service from a freight 
forwarder under 49 U.S.C. 13531 at less than the rate in effect under 
49 U.S.C. 13702 commits a violation for which the penalty is up to $500 
for the first

[[Page 54605]]

violation and up to $2,000 for each subsequent violation.
    (13) A person who knowingly authorizes, consents to, or permits a 
violation of 49 U.S.C. 14103 relating to loading and unloading motor 
vehicles or who knowingly violates subsection (a) of 49 U.S.C. 14103 is 
liable for a penalty of not more than $10,000 per violation.
    (14) A person, or an officer, employee, or agent of that person, 
who tries to evade regulation under Part B of Subtitle IV, Title 49, 
U.S. Code, for carriers or brokers is liable for a penalty of $200 for 
the first violation and at least $250 for a subsequent violation.
    (15) A person required to make a report to the Secretary, answer a 
question, or make, prepare, or preserve a record under Part B of 
Subtitle IV, Title 49, U.S. CODE, or an officer, agent, or employee of 
that person, commits a violation if it does not make the report, does 
not completely and truthfully answer the question within 30 days from 
the date the Secretary requires the answer, does not make or preserve 
the record in the form and manner prescribed, falsifies, destroys, or 
changes the report or record, files a false report or record, makes a 
false or incomplete entry in the record about a business related fact, 
or prepares or preserves a record in violation of a regulation or order 
of the Secretary. Maximum penalty: $5,000 per violation.
    (16) A motor carrier, water carrier, freight forwarder, or broker, 
or their officer, receiver, trustee, lessee, employee, or other person 
authorized to receive information from them, commits a violation if 
they disclose information identified in 49 U.S.C. 14908 without the 
permission of the shipper or consignee. Maximum penalty: $2,000.
    (17) A person who violates a provision of Part B, Subtitle IV, 
Title 49, U.S. Code, or a regulation or order under Part B, or who 
violates a condition of registration related to transportation that is 
subject to jurisdiction under subchapter I or III or chapter 135, or 
who violates a condition of registration of a foreign motor carrier or 
foreign motor private carrier under Sec. 13902, is liable for a penalty 
of $500 for each violation if another penalty is not provided in 49 
U.S.C. Chapter 149.
    (18) A violation of Part B committed by a director, officer, 
receiver, trustee, lessee, agent, or employee of a carrier that is a 
corporation is also a violation by the corporation to which the 
penalties of Chapter 149 apply. Acts and omissions of individuals 
acting in the scope of their employment with a carrier are considered 
to be the actions and omissions of the carrier as well as the 
individual.
    (19) In a proceeding begun under 49 U.S.C. 14902 or 14903, the rate 
that a carrier publishes, files, or participates in under Sec. 13702 is 
conclusive proof against the carrier, its officers, and agents that it 
is the legal rate for the transportation or service. Departing, or 
offering to depart, from that published or filed rate is a violation of 
49 U.S.C. 14902 and 14903.
    14. Section 364.202 is amended by revising the sixth sentence of 
paragraph (a), by revising paragraphs (b)(1), (b)(2), (b)(4), and 
(b)(5), and by redesignating paragraph (c) as paragraph (d) and adding 
a new paragraph (c), to read as follows:


Sec. 364.202  Civil penalty assessment factors.

    (a) * * * Similarly, when the circumstances in which violations 
occur are so obvious that any responsible person could easily correct 
them, the continuation of such violations is an aggravating factor to 
be considered in assessing the level of civil penalty.
* * * * *
    (b) * * *
    (1) Degree of culpability. This factor requires an evaluation of 
blameworthiness on the part of the violator. It will range from the low 
end, where a person may have had various knowledge of violations but 
little actual involvement, to the high end, where the person had actual 
knowledge and disregarded or even promoted noncompliance.
    (2) History of prior offenses. This factor reflects a person's 
commitment to compliance with both economic and safety regulations. 
Persistent noncompliance with safety regulations reflects a disregard 
for safety which, in turn, increases the prospect for imminently 
hazardous conditions leading to accidents. Timely correction of 
violation patterns should prevent imminent hazards from developing and 
reduce the likelihood of accidents. Similarly, repeated violations of 
the economic regulations reflect indifference to the adverse financial 
impact that noncompliance has on the public and other entities in the 
transportation industry.
    (3) * * *
    (4) Effect on ability to continue to do business. Insofar as this 
factor is distinguishable from paragraph (b)(3) of this section, it 
relates to the timeliness of payment and abatement of violations. 
Evidence that immediate payment of even a mitigated civil penalty will 
effectively terminate a person's business will be considered in 
determining whether to defer payment or to allow installment payments 
of the civil penalty assessed.
    (5) Other matters as justice and public safety may require. Matters 
other than those specifically included in the factors listed in this 
section may also be either aggravating or mitigating in the interest of 
justice or public safety. These may include such factors as cooperation 
or lack thereof; general attitude toward compliance; institution or 
revision of a safety program; hiring or assignment of personnel with 
specifically defined compliance and safety responsibilities; 
comprehensiveness of corrective actions; and effectiveness and speed of 
compliance.
    (c) Additional violator factors applying to household goods 
shipments. In assessing a civil penalty under 49 U.S.C. 14901 (a) or 
(d) concerning the transportation of household goods, the factors 
listed in paragraph (b) of this section are considered along with the 
following factors:
    (1) Degree of harm to shipper. A violation of regulations governing 
the transportation of household goods will be evaluated to determine 
its effect on shippers. The level of penalty assessed will likely be 
higher if the violation resulted in direct harm to a shipper. It will 
range from the low end, where the violation did not harm a shipper, to 
the high end where the violation caused harm to multiple shippers.
    (2) Whether the shipper has been adequately compensated before 
institution of the civil penalty proceeding. This factor enables a 
carrier or broker to mitigate the penalty by fairly compensating a 
shipper for harm caused by a violation before enforcement action is 
instituted. A carrier or broker that, on its own initiative, accepts 
responsibility for damage caused by its violations demonstrates a 
commitment to comply with the economic regulations governing household 
goods transportation. Consequently, the civil penalty assessed for the 
violations will likely be lower if the carrier or broker adequately 
compensates the shipper before the civil penalty proceeding is begun.
    (d) * * *
    15. Section 364.301 is amended by redesignating paragraphs (d) and 
(e) as paragraphs (h) and (i), respectively, and by adding new 
paragraphs (d), (e), (f), and (g), to read as follows:


Sec. 364.301  Criminal Penalties.

* * * * *
    (d) Any person who violates 49 U.S.C. 14903(b) shall be fined under 
title 18 of the United States Code, imprisoned not more than 2 years, 
or both.

[[Page 54606]]

    (e) A person who violates 49 U.S.C.14905 shall be fined under title 
18 of the United States Code, imprisoned not more than 2 years, or 
both.
    (f) A person who violates 49 U.S.C. 14909 shall be fined under 
title 18 of the United States Code, imprisoned not more than 1 year, or 
both.
    (g) Any person who violates 49 U.S.C. 14912 shall be fined under 
title 18 of the United States Code, imprisoned not more than 2 years, 
or both.
    (h) * * *
    (i) * * *
    16. Section 364.302 is amended by revising the first sentence in 
paragraph (a) to read as follows:


Sec. 364.302  Injunctions.

    (a) The Associate Administrator may file a civil action to enforce 
or redress a violation of a commercial motor vehicle safety regulation, 
an economic regulation, or an order of the FHWA under 49 U.S.C. 
Chapters 5, 51, 131-141, 145-149, 311 (except Secs. 31138 and 31139), 
and 315, in an appropriate District Court of the United States. * * *.
* * * * *
[FR Doc. 96-26671 Filed 10-18-96; 8:45 am]
BILLING CODE 4910-22-P