Title:92 Part:386

AUTHORITY: Implementing, and authorized by, Sections 18b-102 and 18b-105 of, the Illinois Motor Carrier Safety Law [625 ILCS 5/Ch. 18B] and Section 3-704(b) of the Illinois Vehicle Code [625 ILCS 5/3-704(b)].

SOURCE: Adopted at 14 Ill. Reg. 15542, effective September 10, 1990; amended at 18 Ill. Reg. 778, effective January 11, 1994; amended at 19 Ill. Reg. 13073, effective August 30, 1995; amended at 23 Ill. Reg. 5128, effective March 31, 1999; amended at 24 Ill. Reg. 1980, effective January 19, 2000; amended at 25 Ill. Reg. 2121, effective January 17, 2001; amended at 26 Ill. Reg. 8972, effective June 5, 2002; amended at 32 Ill. Reg. 10382, effective June 25, 2008; amended at 37 Ill. Reg. 18316, effective November 4, 2013; amended at 40 Ill. Reg. 1992, effective January 8, 2016.

SUBPART A: GENERAL PROVISIONS

Section 386.1000 Scope

This Part defines certain terms and prescribes procedures that are applicable to each proceeding described in this Part that are utilized by the Department in carrying out its duties under the Illinois Motor Carrier Safety Law (the Law) [625 ILCS 5/18b-100 through 111] and describes the various enforcement authorities exercised by the Department and the associated sanctions, prescribes the procedures governing the exercise of those authorities and the imposing of those sanctions.

(Source: Amended at 19 Ill. Reg. 13073, effective August 30, 1995)

Section 386.1010 Definitions

As used in this Part:

"Applicant" means a public utility that submits an application.

"Department" means the Illinois Department of Transportation.

"Director" means the Director of the Division of Traffic Safety whose office is located at:

Illinois Department of Transportation

P.O. Box 19212

1340 N. 9^th St.

Springfield, Illinois 62794-9212

"Division" means the Division of Traffic Safety of the Illinois Department of Transportation.

"Exemption" means a document issued under the authority of the Division that authorizes a person to perform a function that is not otherwise authorized under the Illinois Motor Carrier Safety Regulations (IMCSR).

"Illinois State Police" means any individual officer of the Illinois State Police.

"Material" or "Materially" means anything that relates to any substantive issue that is of consequence to the determination of a proceeding.

"Officer" means an authorized employee of the Illinois Department of Transportation.

"Public Utility" means a firm lawfully licensed and engaged in any of the following: telephone, and television cable or community antenna service; the production, storage, transmission, distribution, sale, delivery or furnishing of heat, cold, light, power, electricity, gas, water or sanitary sewer; or the installation or repair of facilities for any of these activities.

"Relevant" means having any tendency to make the existence of any fact that is of consequence to the determination of the proceeding more probable or less probable than it would be without that information.

"Respondent" means a person upon whom the Department has served a Notice of Intent to Assess Civil Monetary Penalty or a Notice of Probable Violation.

"Secretary" means the Secretary of the Illinois Department of Transportation.

"Undue Delay" means delay that is unwarranted, unjustified or improper.

(Source: Amended at 37 Ill. Reg. 18316, effective November 4, 2013)

Section 386.1020 Service

a) General

All documents must be served upon the party or the party's designated agent for service of process. (See 49 CFR 386.6(a).)

b) Type of Service

The Department will serve documents by personal (hand) delivery utilizing governmental or commercial entities, U.S. mail, commercial mail delivery, and, upon prior written consent of the parties, facsimile. Written consent for facsimile service must specify the facsimile number where service will be accepted. When service is made by facsimile, a copy will also be served by any other method permitted by this Section. Facsimile service occurs when transmission is complete. (See 49 CFR 386.6(b).)

c) Certificate of Service

A certificate of service will accompany all documents served in a proceeding under this Part, including an out-of-service order, as prescribed in 92 Ill. Adm. Code 385. The certificate must show the date and manner of service; must be signed by the person making service; and must list the persons being served. (See 49 CFR 386.6(c).)

d) Date of Service

A document will be considered served on the date of personal delivery. If the document is mailed, it will be considered served on the mailing date shown on the certificate of service; or on the date shown on the postmark if there is no certificate of service; or on the mailing date shown by other evidence if there is no certificate of service or postmark. (See 49 CFR 386.6(d).)

e) Valid Service

A properly addressed document, sent in accordance with this Section, that was returned, unclaimed, or refused, is deemed to have been served in accordance with this Section. The service will be considered valid as of the date and the time the document was mailed, or the date personal delivery of the document was refused. Service by delivery after 5 p.m. is deemed to have been made on the next day that is not a Saturday, Sunday, or legal holiday. (See 49 CFR 386.6(e).)

f) Presumption of Service

There shall be a presumption of service if the document is served where a party or a person customarily receives mail or at the address designated in the entry of appearance. (49 CFR 386.6(f))

(Source: Amended at 32 Ill. Reg. 10382, effective June 25, 2008)

Section 386.1030 Subpoenas

a) The presiding officer, designated to preside over a hearing convened in accordance with Section 386.1150(b), shall issue subpoenas on his own initiative, or upon the request of any person participating in that proceeding. The presiding officer shall issue subpoenas on his own initiative when the presiding officer believes that the production of relevant documents or the appearance of a particular witness shall materially advance the proceeding and those documents or witnesses have not been subpoenaed by any other party to the proceeding. (Section 18b-102(b) of the Law)

b) A subpoena may require the attendance of a witness, or the production of relevant documentary or other tangible evidence in the possession or under the control of the person served, or both.

c) Service of a subpoena upon the person named therein shall be made by:

1) delivering a copy of the subpoena to such person;

2) delivering a copy of a subpoena to a natural person by handing it to that person, leaving it at his or her office with the person in charge, leaving it at his dwelling place or usual place of abode with some competent adult person of legal age who resides therein; or

3) mailing it by certified mail to the person at the person's last known address.

d) When the person to be served is not a natural person, delivery of a copy of the subpoena shall be effected by:

1) handing it to a registered agent for service, or to any officer, director, or agent in charge of any office of the person; or

2) mailing it by certified mail to that representative at his last known address.

e) The original subpoena bearing a certificate of service shall be filed with the Department official having responsibility for the proceeding in connection with which the subpoena was issued.

f) Any person to whom a subpoena is directed may, prior to the time specified therein for compliance, but in no event more than 10 days after the date of service of such subpoena, send a written request to the presiding officer who issued the subpoena, to quash or modify the subpoena. The written request shall contain a brief statement of the reasons relied upon in support of the action sought therein. The presiding officer (as designated under Section 386.1160(a)) shall:

1) deny the written request;

2) quash or modify the subpoena if it is unreasonable, immaterial, irrelevant, or to prevent delay, expense, harassment or oppression; or

3) condition denial of the written request to quash or modify the subpoena upon the satisfaction of certain just and reasonable requirements to avoid delay, expense, harassment or oppression. The denial may be summary.

g) If there is a refusal to obey a subpoena served upon any person under the provisions of this Section, the Department may request the Attorney General to seek the aid of the Circuit Court or any court of competent jurisdiction in which the person is found, to compel that person, after notice, to appear and give testimony, or to appear and produce the subpoenaed documents before the Department, or both.

Section 386.1035 Incorporation by Reference

a) The Department incorporates by reference 49 CFR 386, appendix B, Penalty Schedule; Violations and Monetary Penalties, as that appendix was in effect on October 1, 2014, as amended at 80 FR 18146, April 3, 2015, subject only to the exceptions in subsection (b). No later amendments to or additions of 49 CFR 386, appendix B are incorporated. Copies of the appropriate material are available from the Division of Traffic Safety, 1340 N. 9^thStreet, Springfield, Illinois 62702 or by calling 217/785-1181. The Federal Motor Carrier Safety Regulations (FMCSR) are available on the National Archives and Records Administration's website at http://ecfr.gpoaccess.gov. The Division of Traffic Safety's rules are available on the Department's website at http://www.dot.il.gov/safety.html.

b) The following interpretations of 49 CFR 386, appendix B shall apply for purposes of this Part:

1) Any reference to "this part" in the incorporated material shall mean 92 Ill. Adm. Code 386.

2) Any reference to "this chapter" or "this subchapter" in the incorporated material shall mean 92 Ill. Adm. Code: Chapter I, Subchapter d.

3) Any reference to a section in the incorporated material shall be read to refer to that Section in the IMCSR.

(Source: Amended at 40 Ill. Reg. 1992, effective January 8, 2016)

Section 386.1040 Responsibility for Enforcement

Responsibility for enforcement of this Part is exercised by:

a) The Illinois Department of Transportation; and

b) The Illinois State Police (the State Police) (Section 18b-102 of the Law).

Section 386.1050 Investigations

a) General

The Department may conduct investigations (Section 18b-102(b) of the Law) relating to compliance by any person with any provision of the IMCSR (92 Ill. Adm. Code 340, 380, 382, 383, 385, 386, 387, 390, 391, 392, 393, 395, 396 and 397) and any order issued under, or any court decree relating to, those regulations.

b) Confidentiality

Information received in an investigation under this Section, including the identity of the person investigated and any other person who provides information during the investigation, shall remain confidential, but only to the extent that disclosure would:

1) interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement agency;

2) interfere with pending administrative enforcement proceedings conducted by the Department;

3) deprive a person of a fair trial or an impartial hearing;

4) unavoidably disclose the identity of a confidential source or confidential information furnished only by the confidential source;

5) disclose unique or specialized investigative techniques other than those generally used and known;

6) endanger the life or physical safety of law enforcement personnel or any other person; or

7) obstruct an ongoing criminal investigation.

(Source: Amended at 40 Ill. Reg. 1992, effective January 8, 2016)

Section 386.1060 Inspection of Records and Motor Vehicles

a) Authorized representatives of the Department and the State Police, upon presenting credentials, may enter a motor carrier's established place of business without undue delay, inspect and examine records of motor carriers required to be maintained under the MCSR to determine compliance with the MCSR and may enter a motor carrier's established place of business to inspect and examine the motor vehicles or motor carriers subject to these MCSR to determine compliance with the MCSR. (Section 18b-102(c) of the Law)

b) The motor carrier or a representative of the motor carrier shall be entitled to be present during an inspection conducted pursuant to this Section, however, the presence of the motor carrier or an authorized representative of the motor carrier is not a condition precedent to such an inspection.

c) Inspection conducted, pursuant to this Section, may be initiated at any time that business is being conducted or work is being performed, whether or not open to the public or when the motor carrier or a representative of the motor carrier other than a custodian or watchman, is present. The fact that a motor carrier or representative of the motor carrier leaves the premises after an inspection has been initiated shall not require the termination of the inspection.

d) Any inspection conducted pursuant to this Section shall not continue for more than 24 clock hours after initiation, without the consent of the company, but in no event shall the inspection continue for more than 72 hours after initiation.

e) In the event information comes to the attention of the individuals conducting an inspection that may give rise to the necessity of obtaining a search warrant, and in the event steps are initiated for the procurement of a search warrant, the individuals conducting such inspection may take all necessary steps to secure the premises under inspection until the warrant application is acted upon by a judicial officer.

f) No more than three inspections of a motor carrier shall be conducted pursuant to this Section within any six month period except pursuant to a search warrant.

g) Notwithstanding this limitation, nothing is this Section shall be construed to limit the authority of the State Police or the Department to respond to public complaints of violations of the MCSR or to inspect a commercial motor vehicle, and records thereon, operating on the highways of Illinois. For the purpose of this Section, a public complaint is one in which the complainant identifies himself or herself and sets forth, in writing, the specific basis for their complaint against the motor carrier.

h) Nothing in this Section shall be construed to limit the authority of individuals, pursuant to this Section, to conduct searches of motor carriers pursuant to an issued and authorized search warrant.

i) Whenever any motor carrier who, having been informed by a person authorized to make inspections and examine records under this Section that that person desires to inspect records and the motor carrier's motor vehicles as authorized by this Section, refuses either to produce for that person records required to be kept by the MCSR or to permit such authorized person to make an inspection of motor vehicles in accordance with this Section, and having been advised of his right to refuse to produce records or to permit an inspection of motor vehicles at the time of inspection, the inspection shall be terminated or the inspection confined to areas concerning which no objection is raised. The representative shall endeavor to ascertain the reason for such refusal and shall immediately report the matter to the Director. If the Director desires to have an inspection and examination conducted, the Director may refer the matter to the Department's Office of Chief Counsel to take appropriate action, including issuance of a search warrant, if necessary. (Section 18b-102(c) of the Law)

Section 386.1070 Out of Service

a) Whenever it is determined that a motor vehicle is in such a condition as to likely cause an accident or a breakdown of the vehicle, the Illinois State Police shall order a vehicle or employee operating such vehicle out of service. On making such an order, no restrictions shall be imposed on the employee beyond that required to abate the hazard.

b) Upon the issuance of an order under subsection (a), the driver or employee shall comply immediately with such order.

c) On placing a vehicle out of service, the Illinois State Police shall prevent the further movement of the vehicle and shall tag the vehicle so as to place the vehicle out of service until such time as the imminent danger observed is abated.

d) Whenever the State Police stops a vehicle and the driver or operator of the vehicle is able to properly abate the existing hazard, the vehicle shall be permitted to continue in service.

Section 386.1080 Record of Inspection

When any authorized representative of the Department or the Illinois State Police, responsible for enforcing the MCSR pursuant to Section 386.1040, has inspected driver records or a motor vehicle, the inspector shall provide to the driver or other representative of the carrier, a record of the inspection.

Section 386.1090 Warning Letter

a) When the Department has reason to believe that a person is engaging in conduct which involves a violation of any provision of the MCSR, the Department may issue a warning letter which shall:

1) advise the person of the time, place and circumstances of the apparent violation;

2) advise the person that a subsequent inspection may be conducted to ascertain whether the violation has been corrected; and

3) warn the person not to repeat the violation in the future.

b) The warning letter shall be served in the manner prescribed in Section 386.1020.

Section 386.1110 Maximum Penalties

A person who commits an act that is a violation of any of the IMCSR is liable for a civil penalty as prescribed by 49 CFR 386, appendix B, Penalty Schedule; Violations and Monetary Penalties, and incorporated by reference in Section 386.1035. (See Section 18b-107 of the Law.) When the violation is a continuing one, each day of the violation constitutes a separate offense.

(Source: Amended at 37 Ill. Reg. 18316, effective November 4, 2013)

Section 386.1120 Commencement of Civil Penalty Proceeding

a) When the Department has reason to believe that a person has committed an act which is a violation of any provision of the MCSR or a settlement agreement, and having considered the nature, circumstances, extent and gravity of the violation, and with respect to a person believed to have committed such a violation, the degree of culpability and history of prior offenses or warning letters, the Department, by the Director or his authorized representative, shall begin a civil penalty proceeding by serving a Notice of Intent to Assess Civil Monetary Penalty, in accordance with Section 386.1020, on a person charging that person with having committed an act which is a violation of one or more provisions of these regulations or a settlement agreement.

b) A Notice of Intent to Assess Civil Monetary Penalty issued under this Section shall include:

1) notice of the provision(s) of the MCSR or settlement agreement which the respondent is believed to have violated;

2) a brief description of the manner in which the respondent is believed to have violated the MCSR or settlement agreement;

3) notice of the maximum amount of civil penalty for which the respondent may be liable;

4) notice of the amount of the civil penalty sought to be assessed by the Department;

5) a description of the manner in which the respondent shall make payment in accordance with Section 386.1140 of any money to the State;

6) a statement that the respondent may request a conference with the Department, by verbal or written request to the Director, to review and discuss the alleged violation and civil penalty, and of the procedures for requesting a conference;

7) a statement that if a settlement cannot be reached within 90 days, a Notice of Probable Violation will be served upon the respondent, and the respondent will have an opportunity for a hearing as provided by Section 18b-107(b) of the Law and Section 386.1160;

8) a statement that if the respondent does not reply to the Notice of Intent to Assess Civil Monetary Penalty within 30 days after its service upon the respondent, the failure of the respondent to reply constitutes a waiver of its right to appear and contest the allegations, without further notice to the respondent, and authorizes the Secretary, without further notice to the respondent, to find the facts to be as alleged in the Notice of Intent to Assess Civil Monetary Penalty and order the assessment of the civil penalty stated in the Notice; and

9) a statement that respondent's failure to pay a civil monetary penalty as ordered by the Secretary may result in revocation or suspension by the Illinois Secretary of State of the registration of vehicles owned by respondent or, regardless of ownership, were the subject of violations by respondent of the IMCSR, pursuant to 625 ILCS 5/3-704(b).

c) In the event that the Department and the respondent do not enter a settlement agreement following service of a Notice of Intent to Assess Civil Monetary Penalty, the Department by the Director shall serve a Notice of Probable Violation on the respondent.

d) A Notice of Probable Violation issued under this Section includes:

1) a statement of the provision(s) of the MCSR or of a settlement agreement which the respondent is believed to have violated;

2) a statement of the factual allegations upon which the proposed civil penalty is being sought;

3) notice of the maximum amount of civil penalty for which the respondent may be liable;

4) notice of the amount of the civil penalty sought to be assessed by the Department;

5) a description of the manner in which the respondent shall make payment of any money to the State in accordance with Section 386.1140;

6) a statement of respondent's right to request a hearing and the procedures for requesting a hearing in accordance with Section 386.1150; and

7) a statement of respondent's right to appear at the hearing and to present relevant written or oral explanations, information and materials in answer to the allegations or in mitigation of the penalty.

e) A settlement of a civil penalty proceeding may be effectuated at any time upon agreement of the parties, shall be reduced to writing by the Department and signed by the parties. Terms of the settlement may include a reduction in the amount of the proposed civil penalty, and may include training and procedural requirements agreed upon by the respondent and Department. Training and procedural requirements may be agreed upon to increase awareness of and compliance with the MCSR.

(Source: Amended at 26 Ill. Reg. 8972, effective June 5, 2002)

Section 386.1130 Reply

a) Within 30 days of the service of a Notice of Probable Violation issued under Section 386.1020, the respondent may:

1) pay the preliminary assessment as provided in Section 386.1140 and thereby close the case; or

2) request a hearing as provided in Section 386.1150.

b) The Director shall extend the 30-day period, for a maximum of 30 days, upon a request to do so by the respondent within the 30-day period.

c) Failure of the respondent to reply by taking one of the two actions described in subsection (a) within the period provided constitutes a waiver of his right to appear and contest the allegations, and authorizes the Secretary, without further notice to the respondent, to find the facts to be as alleged in the Notice of Probable Violation and order the assessment of an appropriate civil penalty. The assessment shall be the same as the assessment stated in the Notice when the respondent fails to reply.

d) An order entered against a respondent who fails to reply shall be vacated by the Secretary upon good cause shown in a written motion filed within 30 days of service of the order. A motion to vacate must be accompanied by a request for hearing meeting the requirements of Section 386.1150. No further extension of this time for filing shall be granted.

(Source: Amended at 40 Ill. Reg. 1992, effective January 8, 2016)

Section 386.1140 Payment of Penalty

a) Payment of a civil penalty should be made by certified check or money order payable to the "Treasurer of the State of Illinois" and sent to:

Director, Division of Traffic Safety

Illinois Department of Transportation

P.O. Box 19212

Springfield, Illinois 62794-9212.

b) At any time after an order assessing a civil penalty is referred to the Attorney General for collection, the respondent may offer a compromise, for example, by offering a specific amount or a payment plan to the Director who, with the consent of the Attorney General, may accept or reject it. If it is accepted, the respondent is notified in writing by the Director that the acceptance is in full settlement of the civil penalty for the violation.

(Source: Amended at 18 Ill. Reg. 778, effective January 11, 1994)

Section 386.1150 Request for Hearing

a) If a respondent elects to request a hearing, he shall submit a written request to the Director. The request shall:

1) state the name and address of the respondent and of the person signing the request, if different from the respondent;

2) state with respect to each allegation whether it is admitted or denied; and

3) state the issues to be raised by the respondent at the hearing.

b) After receiving a request for hearing which complies with the requirements of subsection (a), the Director shall request the Secretary to appoint a presiding officer. The designated presiding officer schedules a hearing for the earliest practicable date.

c) The presiding officer shall grant extensions of the time of the commencement of the hearing for good cause shown.

Section 386.1160 Hearing

a) When a hearing is requested under Section 386.1150 the Secretary shall appoint a presiding officer to convene and preside over the hearing. To the extent practicable, the hearing will be held near the place where the alleged violation occurred or at a place convenient to the respondent, provided that all such hearings shall be in Illinois. Testimony by witness shall be given under oath and the hearing shall be recorded verbatim.

b) The presiding officer may:

1) administer oaths and affirmations;

2) issue subpoenas as provided by Section 386.1030;

3) adopt procedures, including the submission of evidence in written form;

4) take or cause depositions to be taken;

5) rule on offers of proof and receive relevant evidence;

6) examine witnesses at the hearing;

7) convene, recess, reconvene, adjourn and otherwise regulate the course of the hearing;

8) hold conferences for settlement, simplification of the issues or any other proper purpose; and

9) take any other action authorized by or consistent with the provisions of this Part pertaining to civil penalties and which may expedite the hearing or aid in the disposition of an issue raised therein.

c) The Director, or his representative, has the burden of proving the facts alleged in the Notice of Probable Violation as may be necessary to fully inform the presiding officer as to the matter concerned.

d) The respondent may appear and be heard on his own behalf or through counsel of his choice. The respondent or his counsel may offer relevant information including testimony which he believes should be considered in defense of the allegations or which may bear on the penalty to be assessed and conduct such cross-examination as may be required for a full disclosure of the facts.

Section 386.1170 Presiding Officer's Decision

a) After consideration of the evidence of record, the presiding officer may dismiss the Notice of Probable Violation in whole or in part. If he does not dismiss it in whole, he will issue and serve on the respondent an order assessing a civil penalty. The order will include a statement of findings and conclusions as well as the reasons therefor on all material issues of fact, law, and discretion.

b) If, within 20 days after service of an order assessing a civil penalty, the respondent does not pay the civil penalty or file an appeal as provided in Section 386.1190, the case shall be referred to the Illinois Attorney General with a request that an action to collect the penalty be brought in the appropriate Circuit Court.

Section 386.1180 Assessment Considerations

a) In assessing a civil penalty under the provisions of this Part, the assessment is made only after considering:

1) the nature and circumstances of the violation;

2) the extent and gravity of the violation;

3) the degree of the respondent's culpability;

4) the respondent's history of prior offenses;

5) the respondent's ability to pay; and

6) the effect on the respondent's ability to continue in business (Section 18b-107(b) of the Law).

b) The manner in which these factors are considered by the Department is that the facts gathered by the Department, as well as the facts and arguments obtained from the respondent during the informal conference process, are weighed and considered by the Department in determining or revising the assessed penalty in light of the factors stated in subsections (a)(1) through (6). The respondent may request a formal hearing, in accordance with Section 386.1150, to present evidence to the presiding officer, who shall weigh all of the relevant evidence presented in light of the factors stated in this Section.

Section 386.1190 Appeal

a) Orders of dismissal and orders assessing civil penalties may be appealed to the Secretary. An appeal must be filed within 20 days of service of the presiding officer's order.

b) The decision of the Secretary on appeal shall be made on the record of the hearing, including all pleadings and the decision of the officer who presided at the hearing. No new or additional evidence shall be considered by the Secretary without a positive showing by the party presenting such evidence that the evidence was not available or, through due diligence, could not have been made available at the hearing. At the discretion of the Secretary, for clarification purposes, and upon reasonable notice of the parties, oral argument may be had on appeal. Any party requesting oral argument must detail in his petition for appeal the reasons for the request for argument.

c) If the Secretary affirms the assessment and the respondent does not pay the civil penalty within 35 days after service of the Secretary's decision on appeal and no complaint for administrative review has been filed, the case shall be referred to the Attorney General with a request that an action to collect the penalty be brought in the appropriate Circuit Court.

d) Petition for appeal shall detail the assailed findings and be confined to factual and legal issues which are essential to the ultimate and just determination of the proceeding. Petitions shall not exceed 10 pages in length, excluding a separate preface and summary of argument which shall not exceed three pages. A reply to the petition, if any, shall be filed within 20 days of receipt of the petition for appeal and shall meet requirements as to length and format.

e) The filing of the petition shall stay the effect of the prior decision, order or requirement pending the determination of the appeal.

Section 386.1200 Willful Violations

Whenever it appears to the Department that a person has engaged or is engaged in any act or practice constituting a willful violation of any provision of the MCSR or of any settlement agreement or order issued thereunder, the Secretary shall request the Illinois Attorney General or State's Attorney to bring an action in the appropriate Circuit Court for such relief as is authorized by the Law. (Section 18b-108 of the Law).

Section 386.1210 Failure to Pay Civil Penalty

a) Failure of the respondent to pay all or a portion of a civil penalty under Section 386.1120(b)(8), Section 386.1130(c) or Section 386.1170 or a settlement agreement under Section 386.1120(e) or Section 386.1140(b) will result in the Department, without further notice to respondent, notifying the Illinois Secretary of State in writing or by electronic communication, no sooner than 30 days and no more than 40 days after that failure to pay, that respondent has not paid a civil penalty or a settlement agreement arising from a violation of the IMCSR. The Illinois Secretary of State may then suspend or revoke the registration of vehicles that are owned by the respondent or, regardless of ownership, that were the subject of violations of the IMCSR for which a civil penalty or settlement agreement remains unpaid.

b) An order to pay a civil penalty or a settlement agreement will include a provision that failure to pay all or a portion of the civil monetary penalty or settlement agreement will result in the Department, without further notice to respondent, notifying the Illinois Secretary of State that the respondent has not paid a civil penalty or a settlement agreement arising from a violation of the IMCSR and that the Illinois Secretary of State may then suspend or revoke the registration of vehicles that are owned by respondent or, regardless of ownership, that were the subject of violations of the IMCSR for which a civil penalty or settlement agreement remains unpaid.

c) Within three business days after the respondent paying a civil penalty or settlement agreement that was the subject of a notice to the Illinois Secretary of State under subsection (a) of this Section, the Department will notify the Secretary of State that the civil penalty or settlement agreement has been paid.

(Source: Added at 26 Ill. Reg. 8972, effective June 5, 2002)

SUBPART C: PUBLIC UTILITY EXEMPTIONS

Section 386.1300 Purpose and Scope

a) This Subpart C applies to vehicles that are not subject to 92 Ill. Adm. Code 383 (i.e., operators required to obtain a commercial driver's license cannot qualify for this public utility exemption).

b) Drivers who operate utility service vehicles, as defined in 92 Ill. Adm. Code 390.1020, are exempt from the provisions of 92 Ill. Adm. Code 395. (See 92 Ill. Adm. Code 395.1000(b).) (See 49 CFR 395.1(n).) Drivers of utility service vehicles seeking relief from the hours of service requirements in 92 Ill. Adm. Code 395 are not required to follow the procedures contained in this Subpart C.

c) This Subpart C prescribes procedures by which a public utility, as defined in Section 386.1010 and that is not subject to the FMCSR, may obtain administrative relief from 92 Ill. Adm. Code 390, 392, 393, 396 and 397 in the form of an exemption. Exemptions provided for in this Subpart C will be granted only when they insure levels of safety consistent with the public interest, with the IMCSR, and with the tolerance guidelines established in 49 CFR 350, appendix C.

(Source: Amended at 37 Ill. Reg. 18316, effective November 4, 2013)

Section 386.1310 Exemptions for a Public Utility

a) Only those intrastate public utility commercial motor vehicles and their drivers that meet the requirements of this Subpart C are eligible for an exemption.

b) Upon application, public utility commercial motor vehicles operated solely in intrastate commerce as defined in 92 Ill. Adm. Code 390.1020 with a gross vehicle weight rating (GVWR) or gross combination weight rating (GCWR) of 26,000 pounds or less and that are not either designed to transport more than 15 passengers, including the driver, or used to transport hazardous materials in an amount requiring placarding, will be considered for an exemption from the Illinois Motor Carrier Safety Regulations with the exception of 92 Ill. Adm. Code 391 − Qualification of Drivers.

(Source: Amended at 32 Ill. Reg. 10382, effective June 25, 2008)

Section 386.1320 Initial Exemptions: Application and Review

a) A public utility may apply to the Director for an exemption from the IMCSR as described in Section 386.1310(b) and (c).

b) Each application filed under this Section for an exemption must:

1) Be submitted to:

Director, Division of Traffic Safety

Illinois Department of Transportation

P.O. Box 19212

1340 N. 9^th St.

Springfield, Illinois 62794-9212;

2) Reference the exemption being sought under Section 386.1310;

3) State the name, address and telephone number of the applicant;

4) Certify that the vehicles for which an exemption is sought are used for the delivery of essential utility services to the public;

5) Certify that the public utility systematically inspects, repairs and maintains all commercial motor vehicles operating under the exemption as incorporated by reference in 92 Ill. Adm. Code 396. Parts and accessories shall be in safe and proper operating condition at all times. This Subpart C does not provide for exemption from the semi-annual inspection required by the Illinois Vehicle Inspection Law [625 ILCS 5/13-101 and 13-109];

6) For vehicles controlled by the public utility for 30 consecutive days or more, the utility must maintain or cause to be maintained records as incorporated by reference in 92 Ill. Adm. Code 396. If requested, the public utility must make these records available for inspection by an officer of the Department;

7) Certify that the firm's drivers of the commercial motor vehicles fully comply with the driver qualification standards outlined in 92 Ill. Adm. Code 391;

8) Submit the number of commercial motor vehicles owned or leased by the firm having a GVWR or GCWR of 26,000 pounds or less for which an exemption is requested;

9) Submit the number of commercial motor vehicles owned or leased by the firm having a GVWR or GCWR greater than 26,000 pounds for which hours of service relief is requested;

10) Make available for inspection by an officer of the Department comprehensive fleet accident information for the previous two years and annual total fleet mileage (See 92 Ill. Adm. Code 390.1020 for definition of accident.);

11) Identify any increased risks that are likely to result if an exemption is granted, and specify the safety control measures that the applicant considers necessary or appropriate to compensate for those increased risks;

12) State the reasons why the applicant believes the requested exemption, including any safety control measures specified by the applicant, will achieve a level of safety that:

A) Is at least equal to that specified in the IMCSR from which the exemption is sought; or

B) If the IMCSR do not contain a specified level of safety, will be consistent with the public interest and will protect against the risks of life and property;

13) Certify that the transportation described in the requested exemption is not governed by the FMCSR.

c) If the applicant seeks to have the application processed on a priority basis, the applicant must set forth the supporting facts and reasons. If the Director, or his/her designated officer, determines that the request warrants priority consideration because of an emergency as defined in 92 Ill. Adm. Code 390.1020, the application will be processed as timely as practicable.

d) To permit timely consideration, an application should be submitted at least 60 days before the requested effective date.

e) If the applicant states that the information contained in the application constitutes trade secrets or commercial or financial information, the applicant must include a statement as to why the information is privileged or confidential.

f) Upon receipt by the Division, the application will be date and time-stamped. The Division will determine whether the application is complete and in conformance with this Subpart C. Incomplete applications will be returned along with a letter containing the reasons the application is incomplete. In that case, the applicant will be requested to supply additional information or documentation. An applicant that does not supply such additional information or documentation will not be approved.

g) When the Division determines that the application is complete, an on-site visit will be conducted within 60 calendar days after receipt of that determination to verify that, for example, driver qualification requirements are being met and that the required vehicle repair, inspection and maintenance records are being maintained.

h) A decision regarding the granting of an exemption will be based upon the application and record assembled by the Division.

i) A letter of approval will be mailed by the Director, or his/her designated officer, to the applicant granting the exemption. The exemption is effective for a two year period from the date of the approval letter.

j) A letter of denial containing a statement of the reasons why the applicant has not been granted an exemption and the provisions of Subpart C that support the denial will be mailed to applicants denied exemptions. Applicants denied an exemption may:

1) Correct deficiencies listed in the letter of denial and reapply if the application can be modified to meet the Department's objections as specified in the letter of denial; or

2) Appeal the decision (see Section 386.1350 for appeal procedures).

k) At any time there is a material change in the application or in any information relevant to the exemption, the applicant shall promptly notify the Division. Failure to notify the Division will result in termination of the exemption.

(Source: Amended at 37 Ill. Reg. 18316, effective November 4, 2013)

Section 386.1330 Renewals

a) Each application for the renewal of an exemption issued under this Subpart C must be filed prior to the expiration of the exemption. To permit timely consideration, an application for renewal should be submitted at least 60 calendar days before the expiration of the exemption. An exemption that is allowed to lapse will not be considered a renewal. Initial application procedures as outlined in Section 386.1320 will apply in the case of lapsed exemptions. The exemption of an applicant that has timely filed an application for renewal will continue pending the consideration of the renewal.

b) Each application for the renewal of an exemption issued under this Subpart C must:

1) Be submitted to:

Director, Division of Traffic Safety

Illinois Department of Transportation

P.O. Box 19212

1340 N. 9^th St.

Springfield, Illinois 62794-9212;

2) Identify the exemption for which a renewal is requested;

3) State the name, address and telephone number of the applicant;

4) Include:

A) A certification by the applicant that the information submitted in the original application, or as may have been updated by any subsequent application for renewal, is accurate and correct; or

B) Such amendments to the previously submitted information as is necessary to update it and assure its accuracy and correctness;

5) Include a statement describing all accident experience that has occurred in connection with the exemption since its issuance or most recent renewal, or, if no accidents have occurred, a certification to that effect. (See 92 Ill. Adm. Code 390.1020 for the definition of accident.)

c) Upon receipt by the Division, the Division will date and time-stamp the application for renewal. The Division will determine whether the application is complete and in conformance with this Subpart C. The applicant will be requested to supply missing information or attachments.

d) When the Division determines that the application for renewal is complete, an on-site visit will be conducted within 60 calendar days after the determination to verify that, for example, driver qualification requirements are being met and that the required vehicle repair, inspection and maintenance records are being maintained.

e) A decision regarding the renewal of an exemption will be based upon the application and record assembled by the Division. Exemptions will not be renewed unless the record establishes that the applicant meets the requirements of this Subpart C.

f) A letter of approval will be mailed by the Director granting the renewal of the exemption. The renewal is effective for a two year period from the date of the approval letter.

g) A letter of denial containing a statement of the reasons why the exemption has not been renewed and the provisions of Subpart C that support the denial will be mailed to an applicant denied renewal.

h) Applicants denied a renewal may correct deficiencies listed in the letter of denial and reapply if the application for renewal can be modified to meet the Department's objections as specified in the letter of denial, or applicants may appeal the decision as provided for in Section 386.1350.

i) At any time there is a material change in the application for renewal or in any information relevant to the exemption, the applicant shall promptly notify the Division. Failure to notify the Division will result in termination of the exemption.

(Source: Amended at 37 Ill. Reg. 18316, effective November 4, 2013)

Section 386.1340 Expiration and Termination of an Exemption

a) An exemption and any renewal expires according to its terms but not later than two years after the date of issuance unless terminated sooner pursuant to subsection (b) of this Section.

b) The Director, or his/her designated officer, may terminate an exemption if the Director, or his/her designated officer, obtains any information evidencing that:

1) Any activity under the exemption is not being performed in accordance with the terms of the exemption or this Subpart C; or

2) On the basis of information not available at the time the exemption was granted, a termination of the exemption is necessary to adequately protect against risks to life and property; or

3) The exemption is no longer consistent with the public interest; or

4) The exemption is no longer necessary because of an amendment to the Illinois Motor Carrier Safety Regulations; or

5) The exemption was granted on the basis of false, fraudulent, or misleading representations or information by the applicant in an application.

c) Unless the Director, or his/her designated officer, believes that immediate termination is necessary to abate the risk of an imminent hazard, the Director, or his/her designated officer, will notify the firm in writing within 30 calendar days of the Director's, or his/her designated officer's, intent to terminate and the reasons for the termination.

d) A letter of termination will be sent to the firm by certified mail, return receipt requested. The letter, mailed by the Division, will include:

1) a statement of the reasons for termination of the exemption;

2) the provisions of this Subpart C and the IMCSR that support termination; and

3) a statement that the letter of termination is final unless an appeal is filed in accordance with Section 386.1350.

e) The filing of an appeal will stay the effect of the notice of termination pending determination of the review of the appeal.

f) If a firm does not file an appeal, it may reapply for an exemption one calendar year after the date of the letter of termination.

(Source: Added at 24 Ill. Reg. 1980, effective January 19, 2000)

Section 386.1350 Appeal

a) Any applicant for an exemption or renewal of an exemption believing that it has wrongly been denied or a firm holding an exemption that has been terminated may, within 30 calendar days after receiving the written letter advising it of that decision from the Division, file a written appeal with the Secretary stating areas of disagreement and providing evidence, if possible, to rebut the Department's decision.

b) This appeal shall be directed to:

Secretary

Illinois Department of Transportation

2300 South Dirksen Parkway, Room 300

Springfield, Illinois 62764

c) The Secretary will affirm or revise, in writing, the initial determination within 30 calendar days after having received the appeal. Once the Secretary has made a final decision, that decision goes into effect immediately.

d) The firm will be notified in writing of the Secretary's decision.

(Source: Added at 24 Ill. Reg. 1980, effective January 19, 2000)