---
kind: "range"
citation: "49 C.F.R. §§ 190.207–190.213"
title: "49"
from: "190.207"
to: "190.213"
count: 7
url: "https://uscodex.org/cfr/49/190.207..190.213"
---

# §190.207. Notice of probable violation.

- (a) Except as otherwise provided by this subpart, a Regional Director begins an enforcement proceeding by serving a notice of probable violation on a person charging that person with a probable violation of [49 U.S.C. 60101](/usc/49/60101.md) et seq., [33 U.S.C. 1321(j)](/usc/33/1321.md?p=j), or any regulation or order issued thereunder.
- (b) A notice of probable violation issued under this section shall include:
  - (1) Statement of the provisions of the laws, regulations or orders which the respondent is alleged to have violated and a statement of the evidence upon which the allegations are based;
  - (2) Notice of response options available to the respondent under [§ 190.208](/cfr/49/190.208.md);
  - (3) If a civil penalty is proposed under [§ 190.221](/cfr/49/190.221.md), the amount of the proposed civil penalty and the maximum civil penalty for which respondent is liable under law; and
  - (4) If a compliance order is proposed under [§ 190.217](/cfr/49/190.217.md), a statement of the remedial action being sought in the form of a proposed compliance order.
- (c) The Regional Director may amend a notice of probable violation at any time prior to issuance of a final order under [§ 190.213](/cfr/49/190.213.md). If an amendment includes any new material allegations of fact, proposes an increased civil penalty amount, or proposes new or additional remedial action under [§ 190.217](/cfr/49/190.217.md), the respondent will have the opportunity to respond under [§ 190.208](/cfr/49/190.208.md).

# §190.208. Response options.


Within 30 days of receipt of a notice of probable violation, the respondent must answer the Regional Director who issued the notice in the following manner:

- (a) **When the notice contains a proposed civil penalty—**
  - (1) If the respondent is not contesting an allegation of probable violation, pay the proposed civil penalty as provided in [§ 190.227](/cfr/49/190.227.md) and advise the Regional Director of the payment. The payment authorizes the Associate Administrator to make a finding of violation and to issue a final order under [§ 190.213](/cfr/49/190.213.md);
  - (2) If the respondent is not contesting an allegation of probable violation but wishes to submit a written explanation, information, or other materials the respondent believes may warrant mitigation or elimination of the proposed civil penalty, the respondent may submit such materials. This authorizes the Associate Administrator to make a finding of violation and to issue a final order under [§ 190.213](/cfr/49/190.213.md);
  - (3) Request the execution of a consent order under [§ 190.219](/cfr/49/190.219.md).
  - (4) If the respondent is contesting one or more allegations of probable violation but is not requesting a hearing under [§ 190.211](/cfr/49/190.211.md), the respondent may submit a written response in answer to the allegations; or
  - (5) The respondent may request a hearing under [§ 190.211](/cfr/49/190.211.md).
- (b) **When the notice contains a proposed compliance order—**
  - (1) If the respondent is not contesting an allegation of probable violation, agree to the proposed compliance order. This authorizes the Associate Administrator to make a finding of violation and to issue a final order under [§ 190.213](/cfr/49/190.213.md);
  - (2) Request the execution of a consent order under [§ 190.219](/cfr/49/190.219.md);
  - (3) If the respondent is contesting one or more of the allegations of probable violation or compliance terms, but is not requesting a hearing under [§ 190.211](/cfr/49/190.211.md), the respondent may object to the proposed compliance order and submit written explanations, information, or other materials in answer to the allegations in the notice of probable violation; or
  - (4) The respondent may request a hearing under [§ 190.211](/cfr/49/190.211.md).
- (c) Before or after responding in accordance with [paragraph (a)](#a) of this section or, when applicable [paragraph (b)](#b) of this section, the respondent may request a copy of the violation report from the Regional Director as set forth in [§ 190.209](/cfr/49/190.209.md). The Regional Director will provide the violation report to the respondent within five business days of receiving a request.
- (d) Failure to respond in accordance with [paragraph (a)](#a) of this section or, when applicable [paragraph (b)](#b) of this section, constitutes a waiver of the right to contest the allegations in the notice of probable violation and authorizes the Associate Administrator, without further notice to the respondent, to find the facts as alleged in the notice of probable violation and to issue a final order under [§ 190.213](/cfr/49/190.213.md).
- (e) All materials submitted by operators in response to enforcement actions may be placed on publicly accessible Web sites. A respondent seeking confidential treatment under [5 U.S.C. 552(b)](/usc/5/552.md?p=b) for any portion of its responsive materials must provide a second copy of such materials along with the complete original document. A respondent may redact the portions it believes qualify for confidential treatment in the second copy but must provide a written explanation for each redaction.

# §190.209. Case file.

- (a) The case file, as defined in this section, is available to the respondent in all enforcement proceedings conducted under this subpart.
- (b) **The case file of an enforcement proceeding consists of the following—**
  - (1) In cases commenced under [§ 190.206](/cfr/49/190.206.md), the notice of amendment and the relevant procedures;
  - (2) In cases commenced under [§ 190.207](/cfr/49/190.207.md), the notice of probable violation and the violation report;
  - (3) In cases commenced under [§ 190.233](/cfr/49/190.233.md), the corrective action order or notice of proposed corrective action order and the data report, if one is prepared;
  - (4) In cases commenced under [§ 190.239](/cfr/49/190.239.md), the notice of proposed safety order;
  - (5) Any documents and other material submitted by the respondent in response to the enforcement action;
  - (6) In cases involving a hearing, any material submitted during and after the hearing as set forth in [§ 190.211](/cfr/49/190.211.md); and
  - (7) The Regional Director's written evaluation of response material submitted by the respondent and recommendation for final action, if one is prepared.

# §190.210. Separation of functions.

- (a) **General.** An agency employee who assists in the investigation or prosecution of an enforcement case may not participate in the decision of that case or a factually related one, but may participate as a witness or counsel at a hearing as set forth in this subpart. Likewise, an agency employee who prepares a decision in an enforcement case may not have served in an investigative or prosecutorial capacity in that case or a factually related one.
- (b) **Prohibition on—** ex parte communications. A party to an enforcement proceeding, including the respondent, its representative, or an agency employee having served in an investigative or prosecutorial capacity in the proceeding, may not communicate privately with the Associate Administrator, Presiding Official, or attorney drafting the recommended decision concerning information that is relevant to the questions to be decided in the proceeding. A party may communicate with the Presiding Official regarding administrative or procedural issues, such as for scheduling a hearing.

# §190.211. Hearing.

- (a) **General.** This section applies to hearings conducted under this part relating to civil penalty assessments, compliance orders, orders directing amendment, safety orders, and corrective action orders. The Presiding Official will convene hearings conducted under this section.
- (b) **Hearing request and statement of issues.** A request for a hearing must be accompanied by a statement of the issues that the respondent intends to raise at the hearing. The issues may relate to the allegations in the notice, the proposed corrective action, or the proposed civil penalty amount. A respondent's failure to specify an issue may result in waiver of the respondent's right to raise that issue at the hearing. The respondent's request must also indicate whether or not the respondent will be represented by counsel at the hearing. The respondent may withdraw a request for a hearing in writing and provide a written response.
- (c) **Telephonic and in-person hearings.** A telephone hearing will be held if the amount of the proposed civil penalty or the cost of the proposed corrective action is less than $25,000, unless the respondent or OPS submits a written request for an in-person hearing. In-person hearings will normally be held at the office of the appropriate OPS Region. Hearings may be held by video teleconference if the necessary equipment is available to all parties.
- (d) **Pre-hearing submissions.** If OPS or the respondent intends to introduce material, including records, documents, and other exhibits not already in the case file, the material must be submitted to the Presiding Official and the other party at least 10 days prior to the date of the hearing, unless the Presiding Official sets a different deadline or waives the deadline for good cause.
- (e) **Conduct of the hearing.** The hearing is conducted informally without strict adherence to rules of evidence. The Presiding Official regulates the course of the hearing and gives each party an opportunity to offer facts, statements, explanations, documents, testimony or other evidence that is relevant and material to the issues under consideration. The parties may call witnesses on their own behalf and examine the evidence and witnesses presented by the other party. After the evidence in the case has been presented, the Presiding Official will permit reasonable discussion of the issues under consideration.
- (f) **Written transcripts.** If a respondent elects to transcribe a hearing, the respondent must make arrangements with a court reporter at cost to the respondent and submit a complete copy of the transcript for the case file. The respondent must notify the Presiding Official in advance if it intends to transcribe a hearing.
- (g) **Post-hearing submission.** The respondent and OPS may request an opportunity to submit further written material after the hearing for inclusion in the record. The Presiding Official will allow a reasonable time for the submission of the material and will specify the submission date. If the material is not submitted within the time prescribed, the case will proceed to final action without the material.
- (h) **Preparation of decision.** After consideration of the case file, the Presiding Official prepares a recommended decision in the case, which is then forwarded to the Associate Administrator for issuance of a final order.

# §190.212. Presiding official, powers, and duties.

- (a) **General.** The Presiding Official for a hearing conducted under [§ 190.211](/cfr/49/190.211.md) is an attorney on the staff of the Deputy Chief Counsel who is not engaged in any investigative or prosecutorial functions, such as the issuance of notices under this subpart. If the designated Presiding Official is unavailable, the Deputy Chief Counsel may delegate the powers and duties specified in this section to another attorney in the Office of Chief Counsel who is not engaged in any investigative or prosecutorial functions under this subpart.
- (b) **Time and place of the hearing.** The Presiding Official will set the date, time and location of the hearing. To the extent practicable, the Presiding Official will accommodate the parties' schedules when setting the hearing. Reasonable notice of the hearing will be provided to all parties.
- (c) **Powers and duties of Presiding Official.** The Presiding Official will conduct a fair and impartial hearing and take all action necessary to avoid delay in the disposition of the proceeding and maintain order. The Presiding Official has all powers necessary to achieve those ends, including, but not limited to the power to:
  - (1) Regulate the course of the hearing and conduct of the parties and their counsel;
  - (2) Receive evidence and inquire into the relevant and material facts;
  - (3) Require the submission of documents and other information;
  - (4) Direct that documents or briefs relate to issues raised during the course of the hearing;
  - (5) Set the date for filing documents, briefs, and other items;
  - (6) Prepare a recommended decision; and
  - (7) Exercise the authority necessary to carry out the responsibilities of the Presiding Official under this subpart.

# §190.213. Final order.

- (a) In an enforcement proceeding commenced under [§ 190.207](/cfr/49/190.207.md), an attorney from the Office of Chief Counsel prepares a recommended decision after expiration of the 30-day response period prescribed in [§ 190.208](/cfr/49/190.208.md). If a hearing is held, the Presiding Official prepares the recommended decision as set forth in [§ 190.211](/cfr/49/190.211.md). The recommended decision is forwarded to the Associate Administrator who considers the case file and issues a final order. The final order includes—
  - (1) A statement of findings and determinations on all material issues, including a determination as to whether each alleged violation has been proved;
  - (2) If a civil penalty is assessed, the amount of the penalty and the procedures for payment of the penalty, provided that the assessed civil penalty may not exceed the penalty proposed in the notice of probable violation; and
  - (3) If a compliance order is issued, a statement of the actions required to be taken by the respondent and the time by which such actions must be accomplished.
- (b) In cases where a substantial delay is expected in the issuance of a final order, notice of that fact and the date by which it is expected that action will be taken is provided to the respondent upon request and whenever practicable.