Daily Rules, Proposed Rules, and Notices of the Federal Government
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
In an August 2007 report,
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
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
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.
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.
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.