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UNITED STATES v. UNITED STATES TRUCKING CORP.

September 24, 1970

United States of America, Plaintiff
v.
United States Trucking Corporation, Defendant


Bonsal, D.J.


The opinion of the court was delivered by: BONSAL

BONSAL, D.J.:

The defendant, United States Trucking Corporation, moves, pursuant to Rules 12(b)(1) and 12(b)(6), F.R. Civ. P., for an order dismissing the complaint which charges violations of the Federal Highway Administration (FHWA) regulations regarding the reporting of accidents by motor carriers (49 C.F.R. Part 394). The Government cross moves, pursuant to Rule 56(a), F.R. Civ. P., for summary judgment.

 The Government instituted this action to recover civil forfeitures for nineteen alleged violations of these regulations in 1968.

 The pertinent regulations require the filing of reports of "recordable accidents" with the FHWA within fifteen days after the accident occurs. 49 C.F.R. 394.4 and 394.5. A "recordable accident" is one involving a personal injury or damage to property in excess of $250. Section 322(h) of 49 U.S.C. provides for a maximum penalty of $500 for each failure to file a report and an additional penalty of an amount not to exceed $250 for each day such failure to file continues. The Government seeks judgment in the sum of $9500 ($500 for each alleged failure to file) and additional penalties for each day such failure continued.

 The defendant is a Class I Motor Carrier and Contract Carrier and engages in interstate transportation, principally in the metropolitan areas of New York and New Jersey. The defendant is subject to the reporting regulations of the FHWA, a branch of the Department of Transportation (DOT).

 In December, 1968, the Bureau of Motor Carrier Safety, of the FHWA, conducted a safety compliance survey of the defendant's operations to determine whether the defendant had maintained a satisfactory degree of compliance with the FHWA's Motor Carrier Safety Regulations, 49 C.F.R. 390, et seq. The Bureau examined the defendant's accident register, accident reports, accident appraisal records, statements of drivers, and interviewed certain of defendant's personnel who had responsibility to report accidents.

 The FHWA concluded that in 1968 the defendant had failed to report at least nineteen accidents involving personal injury or property damage of at least $250.

 FHWA mailed a Notice of Claim to the defendant in the amount of $9500 with an invitation to discuss the terms of payment, pursuant to 49 C.F.R. Part 385. No agreement having been reached, the Government instituted this action.

 DEFENDANT'S MOTION TO DISMISS

 The defendant contends that the FHWA's accident reporting regulations were not binding in 1968 because, when the FHWA was established as a branch of DOT, the regulations here involved were not published pursuant to the Administrative Procedure Act, 5 U.S.C. 553(b), and no notice was given to interested persons to participate in the rule-making process, pursuant to 5 U.S.C. 553(c). The Government contends that the Department of Transportation Act, 49 U.S.C. 1651, et seq., which became effective on April 1, 1967, specifically carried over, in full force and effect, the accident reporting regulations previously issued by the Interstate Commerce Commission (ICC) after compliance with the Administrative Procedure Act.

 In order to resolve the issue, it is necessary to trace the history of the regulations through the enactment of the Department of Transportation Act. The regulations were promulgated in 1947 by the ICC in compliance with the rule-making procedure of the Administrative Procedure Act, 5 U.S.C. 553. In 1962, the regulations were revised in accordance with the Administrative Procedure Act. The revised regulations appear at 49 C.F.R. Part 194 (1964).

 The Department of Transportation Act became effective on April 1, 1967. The purpose of the new executive department was "to bring together major Federal agencies and activities involving transportation promotion and safety, but not economic regulation which would remain with the appropriate regulatory agencies." House Report No. 1701, U.S. Code and Adm. News, p. 3362 (1966). Section 6(e) of the Department of Transportation Act, 49 U.S.C. 1655(e), provided for the transfer of the ICC's safety functions to the DOT. The DOT delegated to the FHWA the power and duty to regulate motor carrier safety. 49 U.S.C. 1655(f)(3)(B).

 The Department of Transportation Act included a "Savings Provision," 80 Stat. 949, which provided in relevant part as follows:

 
"(a) All orders, determinations, rules, regulations, permits, contracts, certificates, ...

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