SECTION 595:35-1-10. Administrative penalty assessment guidelines

(a)   General. The Act does not recommend or suggest specific penalties for violation of the Act or any rules adopted to carry out the Act. Instead, the Act lists certain elements which the Commissioner or the Commissioner's representative may take into account in assessing penalties and establishes the maximum penalty for categories of violations. These guidelines serve to ensure the public and the respondent that assessment decisions will be made rationally and objectively on the merits of each case. [47 O.S. §§ 230.6 and 230.9]

(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. The Code of Federal Regulations incorporated by reference contains the complete listing of all violations covered by this Act.

(b)   Categories of violations. The Act separates the types of violations into the following four categories:

(1)   Record keeping violations. [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).

(A)   The Act provides for a penalty not to exceed one hundred dollars ($100.00) for each record keeping offense.

(B)   The Act further provides that each day of a violation shall constitute a separate offense against any respondent, provided that the total penalties for all offenses relating to any single violation shall not exceed five hundred dollars ($500.00).

(C)   Some examples of record keeping violations include:

(i)   Failure to properly maintain complete driver qualification files on each driver employed [49 CFR § 391.51].

(ii)   Record of duty status violations [49 CFR § 395.8].

(iii)   Failure to keep maintenance and inspection records [49 CFR § 396.3].

(iv)   Failure to prepare or retain driver's vehicle inspection reports. [49 CFR § 396.11].

(2)   Serious pattern of safety violations. [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:

(A)   Scheduling a run which would necessitate the vehicle being operated at speeds in excess of those prescribed [49 CFR § 392.6].

(B)   Light violations [49 CFR § 393.11].

(C)   Failure to cover a battery [49 CFR § 393.30].

(D)   Failure to protect or support electrical wiring [49 CFR § 393.28].

(E)   Making detachable wiring connections by twisting together wires [49 CFR § 393.32].

(F)   Failure to maintain a motor vehicle windshield free of prohibited damage, or using prohibited vision reducing matter upon windshield or windows [49 CFR § 393.60].

(G)   Failure to mark push out or escape windows [49 CFR § 393.63].

(H)   Sleeper berth violations [49 CFR § 393.76].

(I)   Heater violations [49 CFR § 393.77].

(J)   Failure to maintain a motor vehicle with:

(i)   a defroster [49 CFR § 393.79],

(ii)   two rear vision mirrors [49 CFR § 393.80].

(iii)   an operative horn [49 CFR § 393.81], or

(iv)   an operable speedometer [49 CFR § 393.82].

(K)   Failure to mark bus emergency exits [49 CFR § 393.92].

(L)   Violations of the driver's requirements including:

(i)   hours of service violations [49 CFR § 395.3], or

(ii)   failure to maintain a log book [49 CFR § 395.8].

(M)   Inspection violations as per 49 CFR 396.3(A)(2), § 396.9.

(3)   Substantial health or safety violations. [47 O.S. § 230.9(B)(3)] The Act provides for a penalty not to exceed One Thousand Dollars ($1,000.00) per violation. This category includes any violation which, if allowed to continue, would result in accidents, deaths, injuries, and public property damage. Acts which are substantial health or safety violations are of a nature so blatant that no carriers or drivers could have operated vehicles on the public highway without knowing the defects existed, and therefore chose to disregard public safety. Substantial health or safety violations are listed in the Commercial Vehicle Safety Alliance North American Standard Out-of-Service Criteria and include but are not limited to the following:

(A)   Using a driver lacking training or experience to determine if the cargo or baggage has been properly located or secured [49 CFR § 391.11(b)(4) or (5)], or a physically unqualified or disqualified driver [49 CFR § 391.11(b)(6) and (9)].

(B)   Brake violations:

(i)   failure to maintain motor vehicle with adequate parking brake [49 CFR § 393.41],

(ii)   brake hose or tubing violation [49 CFR § 393.45; § 393.46],

(iii)   failure to maintain motor vehicle with operative brakes [49 CFR § 393.48],

(iv)   failure to maintain motor vehicle with adequate brake linings [49 CFR § 393.47], or

(v)   failure to securely attach air or vacuum reservoir to motor vehicle [49 CFR § 393.50].

(C)   Fuel tank violations: Failure to securely attach fuel tank to motor vehicle [49 CFR § 393.65].

(D)   Violations and defects of lower and upper fifth wheels and certain safety devices [49 CFR § 393.70].

(E)   Violations of coupling devices and tow away methods [49 CFR § 393.71].

(F)   Tire violations [49 CFR § 393.75].

(G)   Exhaust system violations [49 CFR § 393.83].

(H)   Failure to load or equip vehicle so as to prevent shifting or falling of cargo [49 CFR § 393.100].

(I)   Failure to maintain vehicle with a header board or similar structure to prevent load shifting [49 CFR § 393.106].

(J)   Failure to obey any hazardous material regulation [49 CFR § 397.2].

(K)   Violations which would normally fall within the "serious pattern" category but which may be of such a severe nature that they constitute a substantial health or safety violation.

(4)   Gross negligence or reckless disregard. [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. [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:

(A)   Operating, or requiring or permitting the operation of, a motor vehicle or container declared out of service before all required corrections are made [49 CFR § 396.9 (c)(2)].

(B)   For a driver who is declared out of service, operating, or requiring or permitting the driver to operate, a motor vehicle before prescribed off duty or sleeper berth time has been accumulated [49 CFR § 395.13(c)].

(c)   Factors. The Act requires that the Commissioner or the representative take into account the following factors [47 O.S. § 230.9(E)]:

(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 should 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.

[Source: Amended at 9 Ok Reg 2581, eff 6-26-92; Amended at 16 Ok Reg 3171, eff 7-12-99; Amended at 17 Ok Reg 3044, eff 7-15-00; Amended at 19 Ok Reg 2715, eff 7-15-02; Amended at 29 Ok Reg 1394, eff 7-1-12; Amended at 30 Ok Reg 2033, eff 7-25-13; Amended at 36 Ok Reg 1058, eff 7-25-19]