(1) A statement of the legal authority and jurisdiction for the institution of the proceedings.

(2) The name and address of each motor carrier against whom relief is sought.

(3) One or more clear, concise, and separately numbered paragraphs stating the facts alleged to constitute a violation of the law.

(4) The relief demanded which, where practical should be in the form of an order for the Administrator's signature.

(5) A statement that the rules in this part require a reply to be filed within 30 days of service of the notice of investigation.

(6) A certificate that the notice of investigation was served in accordance with § 386.15.

(c) Amendment. At any time before the close of the hearing, the notice of investigation may be amended in the discretion of the hearing examiner upon such terms as he approves.

§ 386.12 Complaint.

(a) Filing of complaint. Any person, State board, organization, or body politic may file a written complaint with the Administrator, requesting the issuance of a notice of investigation under § 386.11. Each complaint must contain:

(1) The name and address of the party who files it, and a statement specifying the authority for a party (other than a natural person) to file the complaint;

(2) A statement of the interest of the party in the proceedings;

(3) The name and address of each motor carrier against whom relief is sought;

(4) The reasons why the party believes that a notice of investigation should be issued;

(5) A statement of any prior action which the party has taken to redress the violations of law alleged in the complaint and the results of that action; and

(6) The relief which the party believes the Administration should seek. (b) Action on complaint. Upon the filing of a complaint, the Administrator determines whether it states reasonable grounds for investigation and action by the Administration. If he determines that the complaint states such grounds, the Administrator issues, or authorizes the issuance of, a notice of investigation under § 386.11. If he determines that the complaint does not state reasonable grounds for investigation and action by the Administration, the Administrator dismisses it.

§ 386.13 Reply to notice of investigation.

(a) Time for filing. Each respondent must file a reply to a notice of investigation within 30 days after it is served. The time for filing a reply may be extended by the hearing examiner only upon written motion which specifies good cause for allowance of more time.

(b) Contents. (1) If the allegations of the notice of investigation are contested, the reply must contain a concise statement of the facts constituting each defense and a specific admission, denial or explanation of each allegation in the notice of investigation.

(2) If the respondent elects not to contest the allegations of the notice of investigation, he must so state. In addition to a statement of his election not to contest, the respondent may propose an appropriate order for the Administrator's signature disposing of the proceedings or he may propose that the proceedings be terminated by entry of a consent order under Subpart C. A statement of election not to contest waives a hearing on the facts alleged in the notice of investigation and provides a record basis for the hearing examiner to file an initial decision under § 386.41, in which the facts alleged in the notice of investigation are found as the facts of the case. (3) The reply must contain a certificate that it was served in accordance with § 386.15.

(c) Default. If a reply is not filed in accordance with this section, the respondent has waived his right to appear and contest the allegations of the notice of investigation. The hearing examiner may thereupon, and without further notice to the respondent, find the facts to be as alleged in the notice of investigation and issue his initial decision containing such findings, appropriate conclusions and an order.

§ 386.14 Intervention.

At any time before the date set for the hearing to begin, any person may petition the hearing examiner for leave to intervene. The petition must set forth the reasons why the petitioner alleges he is entitled to intervene. The petition must be served on the parties in accordance with § 386.15. Any party may file a response to the petition within 10 days after it is served. The hearing examiner may deny the petition or may permit intervention to such extent or upon such terms as he deems just. Unless the hearing examiner's order states otherwise, a party who has been granted leave to intervene is a party for the purpose of all subsequent proceedings.

§ 386.15 Filing and service of pleadings and other papers.

Whenever these rules require the filing of a pleading or other document with the Administrator, two copies of it must be sent to the Administrator, Federal Highway Administration, 400 6th Street SW.*, Washington, D.C. 20591. Whenever these rules require the filing of a pleading or other document with the hearing examiner, two copies of it must be sent to him at the address given in the order which appoints him. Two copies of each pleading or brief must be served on each other party in person or by registered or certified mail, first-class postage prepaid. Service of a document is complete when the document is received.

Subpart C-Consent Order Procedure

§ 386.21 Consent order.

When a respondent has filed an election not to contest under § 386.13 (b) (2), or at any time before the hearing is concluded, the parties may execute an appropriate agreement for disposing of the case by consent for the consideration of the Administrator. The agreement is filed with the Administrator who may (a) accept it, (b) reject it and direct that proceedings in the case continue, or (c) take such other action as he deems appropriate. If the Administrator accepts the agreement, he enters an order in accordance with its terms.

§ 386.22 Content of consent order.

(a) Every agreement filed with the Administrator under § 386.21 must contain:

(1) An order for the disposition of case in form suitable for the Administrator's signature.

(2) An admission of all jurisdictional facts.

(3) A waiver of further procedural steps of the requirement that the decision or order must contain findings of fact and conclusions of law, and of all right to seek judicial review or otherwise challenge or contest the validity of the order.

(4) Provisions that the notice of investigation may be used to construe the terms of the order.

(5) Provisions that the order has the same force and effect, becomes final, and may be modified, altered, or set aside in the same manner and within the same time as other orders issued under section 204 (c) of the Interstate Commerce Act (49 U.S.C. 304 (c)).

(6) Provisions that the agreement will not be part of the record in the proceeding unless and until the Administrator executes it.

(b) An agreement filed with the Administrator under § 386.21 may contain: (1) A statement that it is executed for settlement purposes only and does not admit any violations of law alleged in the notice of investigation. (2) Provisions for the compromise of any claim for a civil forfeiture.

Subpart D-Hearing Examiner; Prehearing Conference; Hearings § 386.31 Hearing examiner.

(a) Appointment. Upon the issuance of a notice of investigation, the Administrator appoints a hearing examiner to conduct the proceedings and notifies the parties of his name and address.

(b) Powers and duties. Except as provided in paragraph (c) of this section, the hearing examiner has power to take any action and to make all needful rules and regulations to govern the conduct of the proceedings, to insure a fair and impartial hearing, and to avoid delay in the disposition of the proceedings. His powers include the following:

*Now located at 400 7th Street SW.

(1) To administer oaths and affirmations.

(2) To issue orders permitting inspection and examination of lands, buildings, equipment, and any other physical thing and the copying of any document.

(3) To issue subpenas for the attendance of witnesses and the production of evidence as authorized by law.

(4) To take or cause depositions to be taken.

(5) To rule on offers of proof and receive evidence.

(6) To regulate the course of the hearing and the conduct of participants in it.

(7) To consider and rule upon all procedural and other motions, except motions which, under this Part, are made directly to the Administrator. (8) To hold conferences for settlement, simplification of issues, or any other proper purpose.

(9) To make and file initial decisions.

(10) To take any other action authorized by these rules and permitted by law.

(c) Powers reserved to Administrator. Unless the Administrator specifically directs him to do so, the hearing examiner may not compel testimony of a witness who claims that such testimony may tend to incriminate him or subject him to penalty or forfeiture nor may he grant immunity from prosecution, penalty, or forfeiture to such a witness.

§ 386.32 Prehearing conferences.

(a) Convening. At any time before the hearing begins, the hearing examiner, on his own motion or on motion by a party, may direct the parties or their counsel to participate with him in a prehearing conference to consider the following:

(1) Simplification and clarification of the issues.

(2) Necessity or desirability of amending pleadings.

(3) Stipulations as to the facts and the contents and authenticity of documents.

(4) Issuance of and responses to subpenas.

(5) Taking of depositions and the use of depositions in the proceeding.

(6) Orders for discovery, inspection, and examination of premises, documents, and other physical objects and responses to such orders.

(7) Disclosure of the names and addresses of witnesses and the exchange of documents intended to be offered in evidence.

(8) Any other matter that will tend to simplify the issues or expedite the proceedings.

(b) Order. The hearing examiner issues an order which recites the matters discussed, the agreements reached, and the rulings made at the prehearing conference. The order is served on the parties and is filed in the record of the proceedings.

§ 386.33 Hearings.

(a) Notice of hearing. As soon as practicable after his appointment, the hearing examiner issues an order setting the date, time, and place for the hearing. The order is served on the parties and becomes part of the record of the proceedings. The hearing examiner may amend the order for good cause shown.

(b) Conduct of hearing. The hearing examiner presides over the hearing. Hearings are open to the public unless the hearing examiner orders otherwise. (c) Evidence. Except as provided in paragraph (d) of this section, the rules of evidence and trial procedure in non-jury civil trials in the United States District Court for the District of Columbia apply in hearings held under these rules.

(d) Information obtained by investigation. Any document, physical exhibit, or other material obtained by the Administration in an investigation under the Interstate Commerce Act may be disclosed by the Administration during the proceeding and may be offered in evidence by counsel for the Administration.

(e) Record. The hearing is stenographically transcribed and reported. The transcript, exhibits, and other documents filed in the proceedings constitute the official record of the proceedings. The record is in the custody of the hearing examiner until he certifies it to the Administrator in accordance with § 386.41. A copy of the transcript and exhibits is available to any person upon payment of prescribed costs.

§ 386.34 Proposed findings of fact, conclusions of law, and orders.

Within 30 days after the hearing examiner notifies the parties that he has received the transcript, or within such other time as the hearing examiner may fix, each party may file with the hearing examiner proposed findings of fact, conclusions of law, and a proposed order, together with a supporting brief stating the reasons for each proposal. Each proposed finding of fact must include a citation to the specific portion of the record relied upon to support it, otherwise the hearing examiner may refuse to consider it.

§ 386.41 Initial decision.

Subpart E-Decision

As soon as practicable after he receives the transcript and the time allowed for the filing of proposed findings of fact, conclusions of law, orders, and briefs has expired, the hearing examiner renders an initial decision and certifies the record in the proceedings to the Administrator. The initial decision contains the hearing examiner's findings of fact, his conclusions of law, and an order disposing of the proceedings. The initial decision is served on the parties. The initial decision of the hearing examiner becomes the decision of the Administrator 30 days after it is issued, unless within that time

(a) A petition for review under § 386.42 (a) is filed; or

(b) The Administrator elects to review the decision on his own motion under § 386.42(b).

§ 386.42 Review of initial decision.

(a) On petition. Within 30 days after an initial decision is issued, any party may petition the Administrator for review of the hearing examiner's initial decision. The petition is filed with the Administrator. The petition may be accompanied by exceptions to the hearing examiner's findings of fact and a brief.

(b) On motion of the Administrator. Within 30 days after an initial decision is issued, the Administrator may issue an order notifying the parties of his intention to review it on his own motion, specifying the scope of review and the issues he will consider. The order may also provide for the filing of briefs on those issues by the parties.

§ 386.43 Decision on review.

Upon review of an initial decision, the Administrator may adopt, modify, or set aside the hearing examiner's findings of fact and conclusions of law. He may also remand proceedings to the hearing examiner with instructions for such further proceedings as he deems appropriate. The Administrator issues a final order disposing of the proceedings. The Administrator's order is served on the parties.

§ 386.44 Reconsideration.

Within 20 days after the Administrator's final order is issued, any party may petition the Administrator for reconsideration of his findings of fact, conclusions of law, or final order. The filing of a petition for reconsideration does not stay the effectiveness of the final order unless the Administrator so orders.

[F.R. Doc. 69-791; Filed, Jan. 21, 1969; 8:48 a.m.]

* Published in the Federal Register, 33 F.R. 19725, Dec. 25, 1968.

Sec.

388.7 Joint administrative activities related to enforcement of safety and hazardous materals laws and regulations.

388.8 Supplemental agreements.

AUTHORITY: The provisions of this Part 388 issued under sec. 1, 49 Stat. 546, as amended; 49 U.S.C. 304. Interpret or apply sec. 1, 49 Stat. 550, as amended; 49 U.S.C. 305.

§ 388.1 Eligibility.

Any State may agree with the Federal Highway Administration to enforce the safety laws and regulations of said State and the United States concerning motor carrier transportation by filing with the Administrator at Washington, D.C. 20591, a written acceptance of the terms herein.

§ 388.2 Extent of acceptance.

The written acceptance may be in letter form, signed by competent authority of said State charged with regulation of motor carrier safety and hazardous materials transportation and shall specify the terms herein pertaining to the obligations of a State in which said State will participate. To the extent that a State agrees to participate in the terms herein, officials of the Federal Highway Administration will reciprocate.

§ 388.3 Cancellation.

Cancellation or withdrawal, in whole or in part, from any agreement made under this chapter may be effected by written notice from either party indicating the effective date of said cancellation or withdrawal.

§ 388.4 Exchange of information.

(a) Federal Highway Administration furnishing information to State. Information that comes to the attention of an employee of the Federal Highway Administration in the course of his official duties of investigation, inspection, or examination of the property, equipment, and records of a motor carrier or others, pursuant to section 220 (d) of the Interstate Commerce Act, and that is believed to be a violation of any law or regulation of the State pertaining to unsafe motor carrier operations and practices, shall be communicated to the appropriate State authority by an official of the Federal Highway Administration.

(b) State furnishing information to Federal Highway Administration. Information that comes to the attention of a duly authorized agent of the State in the course of his official duties of investigation, inspection, or examination of the property, equipment, and records of a motor carrier or others, and that is believed to be a violation of any provision of the safety of hazardous materials laws of the United States concerning highway transportation or the regulations of the Federal Highway Administration prescribed thereunder, shall be communicated to the Regional Federal Highway Administrator of the Federal Highway Administration or his designee for that State.

§ 388.5 Requests for assistance.

(a) State request for Federal Highway Administration assistance. Upon written request of the appropriate State authority, the Bureau of Motor Carrier Safety officials of the Federal Highway Administration for that State shall, as time, personnel, and funds permit, obtain evidence for use by said State in the enforcement of its laws and regulations concerning unsafe motor carrier operations. Evidence obtained in this manner shall be transmitted to the appropriate State authority together with the name and address of an agent or employee, if any, having knowledge of the facts, who shall be made available when necessary to testify as a witness in an enforcement proceeding or other action.

(b) Federal Highway Administration request for State assistance. Upon written request from a Regional Administrator of the Federal Highway Administration or his designee the appropriate State authority, shall, as time, personnel, and funds permit, obtain evidence in the State for use by the Federal Highway Administration in its enforcement of the safety and hazardous materials laws and regultions of the United States concerning highway transportation. Evidence obtained in this manner shall be transmitted to the Regional Administrator of the Federal Highway Administration or his