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(a) General. The Agency Official may issue an order to suspend a motor carrier’s registration based on a determination made in accordance with §385.905(b).
(b) Commencement of proceedings. The Agency Official commences a proceeding under this section by serving an order to show cause to the motor carrier and, if the proceeding is based on the conduct of another person, by also serving a copy on the person alleged to have engaged in the pattern or practice that resulted in a proceeding instituted under this section, which:
(1) Provides notice that the Agency is considering whether to suspend the motor carrier’s registration;
(2) Provides notice of the factual and legal basis for the order;
(3) Directs the motor carrier to show good cause within 30 days of service of the order to show cause why its registration should not be suspended;
(4) Informs the motor carrier that its response to the order to show cause must be in writing, state the factual and legal basis for its response, and include all documentation, if any, the motor carrier wants considered;
(5) Informs the motor carrier of the address and name of the person to whom the response should be directed and served;
(6) Provides notice to the person(s) alleged to have engaged in the pattern or practice that resulted in the proceeding instituted under this section, if any, of their right to intervene in the proceeding; and
(7) Informs the motor carrier that its registration will be suspended on the 35th day after service of the order, if the motor carrier or an intervening person does not respond to the order.
(c) Right of individual person(s) to intervene. A person(s) alleged to have engaged in the pattern or practice that resulted in a proceeding under this section may intervene in the proceeding. The person(s) may—but are not required to—serve a separate response and supporting documentation to an order served under paragraph (b) of this section, within 30 days of being served with the order. Failure to timely serve a response constitutes waiver of the right to intervene.
(d) Review of response. The Agency Official will review the responses to the order to show cause and determine whether the motor carrier’s registration should be suspended.
(1) The Agency Official may take the following actions:
(i) If the Agency Official determines that the motor carrier’s registration should be suspended, he or she will enter an order suspending the registration;
(ii) If the Agency Official determines that it is not appropriate to suspend the motor carrier’s registration, he or she may enter an order directing the motor carrier to correct compliance deficiencies; or
(iii) If the Agency Official determines the motor carrier’s registration should not be suspended and a compliance order is not warranted, he or she will enter an order terminating the proceeding.
(2) If the Agency Official issues an order to suspend the motor carrier’s registration, the order will:
(i) Provide notice to the motor carrier and any intervening person(s) of the right to petition for administrative review of the order within 15 days of service of the order suspending registration, and provide notice of the procedures in paragraph (e) of this section;
(ii) Provide notice that a timely petition for administrative review will stay the effective date of the order unless the Assistant Administrator orders otherwise for good cause; and
(iii) Provide notice that failure to timely serve a petition for administrative review constitutes waiver of the right to contest the order suspending the registration and will result in the order becoming a Final Agency Order 20 days after it is served.
(e) Administrative review. The motor carrier or the intervening person(s) may petition the Assistant Administrator for review of an order issued under paragraph (d)(1)(i) of this section. The petition must be in writing and served on the Assistant Administrator. Service on the Assistant Administrator is effected by delivering a copy to USDOT Dockets, Docket Operations, 1200 New Jersey Avenue, West Building Ground Floor, Room 12-140, SE., Washington, DC 20590-0001 or by submitting the documents electronically to www.regulations.gov. The petition must also be served on all parties to the proceedings and on Adjudications Counsel, Federal Motor Carrier Safety Administration, 1200 New Jersey Ave. SE., Washington, DC 20590-0001.
(1) A petition for review must be served within 15 days of the service date of the order for which review is requested. Failure to timely serve a request for review waives the right to request review.
(2) A petition for review must include:
(i) A copy of the order in dispute;
(ii) A copy of the petitioner’s response to the order in dispute, with supporting documents if any;
(iii) A statement of all legal, factual and procedural issues in dispute; and
(iv) Written argument in support of the petitioner’s position regarding the legal, factual or procedural issues in dispute.
(3) The Agency Official must serve a response to the petition for review no later than 15 days following receipt of the petition. The Agency Official must address each assignment of error by producing evidence or legal argument which supports the Agency Official’s determination on that issue. The Agency Official’s determination may be supported by circumstantial or direct evidence and the reasonable inferences drawn therefrom.
(4) The Assistant Administrator’s review is limited to the legal, factual and procedural issues identified in the petition for review. The Assistant Administrator may, however, ask the parties to submit additional information. If the petitioner does not provide the information requested, the Assistant Administrator may dismiss the petition for review.
(5) The Assistant Administrator will serve a written decision on the petition for review within 60 days of the close of the time period for serving a response to the petition for review or the date of service of the response served under paragraph (e)(3), whichever is later.
(6) If a petition for review is timely served in accordance with this section, the disputed order is stayed, pending the Assistant Administrator’s review. The Assistant Administrator may enter an order vacating the automatic stay in accordance with the following procedures:
(i) The Agency Official may file a motion to vacate the automatic stay demonstrating good cause why the order should not be stayed. The Agency Official’s motion must be in writing, state the factual and legal basis for the motion, be accompanied by affidavits or other evidence relied on, and be served on all parties.
(ii) Within 10 days of service of the motion to vacate the automatic stay, the petitioner may serve an answer in opposition, accompanied by affidavits or other evidence relied on.
(iii) The Assistant Administrator will issue a decision on the motion to vacate within 10 days of the close of the time period for serving the answer to the motion. The 60-day period for a decision on the petition for review in paragraph (e)(5) of this section does not begin until the Assistant Administrator issues a decision on the motion to vacate the stay.
(7) The Assistant Administrator’s decision on a petition for review of an order issued under this section constitutes the Final Agency Order.
[79 FR 3538, Jan. 22, 2014]