§ 13.16 - Civil penalties: Administrative assessment against a person other than an individual acting as a pilot, flight engineer, mechanic, or repairman; administrative assessment against all persons for hazardous materials violations.

§ 13.16 Civil Penaltiespenalties: Administrative assessment against a person other than an individual acting as a pilot, flight engineer, mechanic, or repairman. Administrative ; administrative assessment against all persons for hazardous materials violations.

(a) General. The FAA uses these the procedures in this section when it assesses a civil penalty against a person other than an individual acting as a pilot, flight engineer, mechanic, or repairman for a violation cited in the first sentence of 49 U.S.C. 46301(d)(2), or in 49 U.S.C. 47531, or any implementing rule, regulation, or order, except when the U.S. district courts have exclusive jurisdiction.

(b) District court jurisdiction. Notwithstanding the provisions of paragraph (a) of this section, the United States The U.S. district courts have exclusive jurisdiction of any civil penalty action initiated by the FAA for violations described in those paragraphs, under 49 U.S.C. 46301(d)(4), paragraph (a) of this section if -

(1) The amount in controversy is more than $50,000 for a violation committed by any person before December 12, 2003;

(2) The amount in controversy is more than

$400,000 for a violation committed by a person other than an individual or small business concern

on or after December 12, 2003

;

(

3

2) The amount in controversy is more than $50,000 for a violation committed by an individual or a small business concern

on or after December 12, 2003

;

(

4

3) The action is in rem or another action in rem based on the same violation has been brought;

(

5

4) The action involves an aircraft subject to a lien that has been seized by the Government; or

(

6

5) Another action has been brought for an injunction based on the same violation.

(c) Hazardous materials violations. The FAA may assess An order assessing a civil penalty against any person who knowingly commits an act in violation of for a violation under 49 U.S.C. chapter 51, or a rule, regulation prescribed , or order issued under that chapter, under 49 U.S.C. 5123 and 49 CFR 1.47(k). An order assessing a civil penalty for a violation under 49 U.S.C. chapter 51, or a rule, regulation, or order issued thereunder, is issued only after the following factors have been considered:

(1) The nature, circumstances, extent, and gravity of the violation;

(2) With respect to the violator, the degree of culpability, any history of prior violations, the ability to pay, and any effect on the ability to continue to do business; and

(3) Such other Other matters as that justice may requirerequires.

(d) Order assessing civil penalty. An order assessing civil penalty may be issued for a violation described in paragraphs (a) or (c) of this section, or as otherwise provided by statute, after notice and opportunity for a hearing. A person charged with a violation may be subject to an order assessing civil penalty in the following circumstances:

(1) An order assessing civil penalty may be issued if a person charged with a violation submits or agrees to submit a civil penalty for a violation.

(2) An order assessing civil penalty may be issued if a person charged with a violation does not request a hearing under paragraph (g)(2)(ii) of this section within 15 days after receipt of a final notice of proposed civil penalty.

(3) Unless an appeal is filed with the FAA decisionmaker in a timely manner, an initial decision or order of an administrative law judge shall be considered an order assessing civil penalty if an administrative law judge finds that an alleged violation occurred and determines that a civil penalty, in an amount found appropriate by the administrative law judge, is warranted.

(4) Unless a petition for review is filed with a U.S. Court of Appeals in a timely manner, a final decision and order of the Administrator shall be considered an order assessing civil penalty if the FAA decisionmaker finds that an alleged violation occurred and a civil penalty is warranted.

(e) Delegation of authority.

(1) The authority of the Administrator under

Delegation of authority. The authority of the Administrator is delegated to each Deputy Chief Counsel and the Assistant Chief Counsel for Enforcement, as follows:

(1) Under 49 U.S.C. 46301(d), 47531, and 5123, and 49 CFR 1.

47(k)

83, to initiate and assess civil penalties for a violation of those statutes or a rule, regulation, or order issued

thereunder, is delegated to the Deputy Chief Counsel for Operations; the Assistant Chief Counsel for Enforcement; the Assistant Chief Counsel, Europe, Africa, and Middle East Area Office; the Regional Counsel; the Aeronautical Center Counsel; and the Technical Center Counsel. (2) The authority of the Administrator under

under those provisions;

(2) Under 49 U.S.C. 5123, 49 CFR 1.

47(k)

83, 49 U.S.C. 46301(d), and 49 U.S.C. 46305, to refer cases to the Attorney General of the United States

,

or

the

a delegate of the Attorney General

,

for collection of civil penalties

is delegated to the Deputy Chief Counsel for Operations

;

the Assistant Chief Counsel for Enforcement; Assistant Chief Counsel, Europe, Africa, and Middle East Area Office; the Regional Counsel; the Aeronautical Center Counsel; and the Technical Center Counsel.

(3)

The authority of the Administrator under

Under 49 U.S.C. 46301(f), to compromise the amount of a civil penalty imposed

is delegated to the Deputy Chief Counsel for Operations

;

the Assistant Chief Counsel for Enforcement; Assistant Chief Counsel, Europe, Africa,

and

Middle East Area Office; the Regional Counsel; the Aeronautical Center Counsel; and the Technical Center Counsel.

(4)

The authority of the Administrator under

Under 49 U.S.C. 5123(e) and (f) and 49 CFR 1.

47(k)

83, to compromise the amount of a civil penalty imposed

is delegated to the Deputy Chief Counsel for Operations; the Assistant Chief Counsel for Enforcement; Assistant Chief Counsel, Europe, Africa, and Middle East Area Office; the Regional Counsel; the Aeronautical Center Counsel; and the Technical Center Counsel. (

.

(e) Order assessing civil penalty.

(1) An order assessing civil penalty may be issued for a violation described in paragraph (a) or (c) of this section, or as otherwise provided by statute, after notice and opportunity for a hearing, when:

(i) A person charged with a violation agrees to pay a civil penalty for a violation; or

(ii) A person charged with a violation does not request a hearing under paragraph (g)(2)(ii) of this section within 15 days after receipt of a final notice of proposed civil penalty.

(2) The following also serve as an order assessing civil penalty:

(i) An initial decision or order issued by an administrative law judge as described in § 13.232(e).

(ii) A decision or order issued by the FAA decisionmaker as described in § 13.233(j).

(f) Notice of proposed civil penalty. A civil penalty action is initiated by sending a notice of proposed civil penalty to the person charged with a violation or to , the designated agent for services for the person under 49 U.S.C. 46103. A notice of proposed civil penalty will be sent to the individual charged with a violation or to the person, or if there is no such designated agent, the president of the corporation or company charged with a violation. In response to a notice of proposed civil penalty, a corporation or company may designate in writing another person to receive documents in that civil penalty action. The notice of proposed civil penalty contains a statement of the charges and the amount of the proposed civil penalty. Not later than 30 days after receipt of the notice of proposed civil penalty, the person charged with a violation shall may -

(1) Submit the amount of the proposed civil penalty or an agreed-upon amount, in which case either an order assessing civil penalty or compromise order shall under paragraph (n) of this section may be issued in that amount;

(2) Submit to the agency attorney one of the following:

(i) Written information, including documents and witness statements, demonstrating that a violation of the regulations did not occur or that a penalty or the amount of the penalty is not warranted by the circumstances.

(ii) A written request to reduce the proposed civil penalty, stating the amount of reduction , and the reasons and providing any documents supporting a reduction of the proposed civil penalty, including records indicating a financial inability to pay or records showing that payment of the proposed civil penalty would prevent the person from continuing in business.

(iii) A written request for an informal conference to discuss the matter with the agency attorney and to submit relevant information or documents; or

(3) Request a hearing , in which case a complaint shall be filed with the hearing docket clerkconducted in accordance with subpart G of this part.

(g) Final notice of proposed civil penalty. A final notice of proposed civil penalty may be issued after participation in informal procedures provided in will be sent to the person charged with a violation, the designated agent for the person, the designated agent named in accordance with paragraph (f)(2) of this section or failure to respond in a timely manner to a notice of proposed civil penalty. A final notice of proposed civil penalty will be sent to the individual charged with a violation, to the , or the president of the corporation or company charged with a violation, or a person previously designated in writing by the individual, corporation, or company to receive documents in that civil penalty action. If not previously done in response to a notice of proposed civil penalty, a corporation or company may designate in writing another person to receive documents in that civil penalty action. The final notice of proposed civil penalty contains a statement of the charges and the amount of the proposed civil penalty and, as a result of information submitted to the agency attorney during informal procedures, may modify an allegation or a proposed civil penalty contained in a notice of proposed civil penalty.

(1) A final notice of proposed civil penalty may be issued -

(i) If the person charged with a violation fails to respond to the notice of proposed civil penalty within 30 days after receipt of that notice; or

(ii) If the parties participated in any informal procedures under paragraph (f)(2) of this section and the parties have not agreed to compromise the action or the agency attorney has not agreed to withdraw the notice of proposed civil penalty.

(2) Not later than 15 days after receipt of the final notice of proposed civil penalty, the person charged with a violation shall may do one of the following - :

(i) Submit the amount of the proposed civil penalty or an agreed-upon amount, in which case either an order assessing civil penalty or a compromise order shall under paragraph (n) of this section may be issued in that amount; or

(ii) Request a hearing , in which case a complaint shall be filed with the hearing docket clerkconducted in accordance with subpart G of this part.

(h) Request for a hearing. Any person charged with a violation may request a requesting a hearing, pursuant to under paragraph (f)(3) or paragraph (g)(2)(ii) of this section , to be conducted in accordance with the procedures in subpart G of this part. A person requesting a hearing shall file a written request for a hearing with the hearing docket clerk, using the appropriate address set forth in § 13.210(a) of this part, and shall mail a copy of the request to the agency attorney. The request for a hearing may be in the form of a letter but must be dated and signed by the person requesting a hearing. The request for a hearing may be typewritten or may be legibly handwritten.

(i) Hearing. If the person charged with a violation requests a hearing pursuant to paragraph (f)(3) or paragraph (g)(2)(ii) of this section, the original complaint shall be filed with the hearing docket clerk and a copy shall be sent to the person requesting the hearing.

must file the request with the FAA Hearing Docket Clerk and serve the request on the agency attorney in accordance with the requirements in subpart G of this part.

(i) Hearing. The procedural rules in subpart G of this part apply to the hearing and any appeal. At the close of the hearing, the administrative law judge shall issue, either orally on the record or in writing, an initial decision, including the reasons for the decision, that contains findings or conclusions on the allegations contained, and the civil penalty sought, in the complaint.

(j) Appeal. Either party may appeal the administrative law judge's initial decision to the FAA decisionmaker pursuant to under the procedures in subpart G of this part. If a party files a notice of appeal pursuant to § 13.233 of subpart G, the effectiveness of the initial decision is stayed until a final decision and order of the Administrator have been entered on the record. The FAA decisionmaker shall review the record and issue The procedural rules in subpart G of this part apply to the appeal.

(k) Judicial review. A person may seek judicial review only of a final decision and order of the

Administrator that affirm, modify, or reverse the initial decision. The

FAA decisionmaker

may assess a civil penalty but shall not assess a civil penalty in an amount greater than that sought in the complaint.

(k) Payment. A person shall in accordance with § 13.235.

(l) Payment.

(1) A person must pay a civil penalty by

sending

:

(i) Sending a certified check or money order, payable to the Federal Aviation Administration, to the

agency attorney.

(l) Collection of civil penalties. If an individual does not pay a civil penalty imposed by an

FAA office identified in the notice of proposed civil penalty, the final notice of proposed civil penalty, or the order assessing civil penalty

or other final order, the Administrator may take action provided under the law to collect the penalty.

(m) A party may seek review only of a final decision and order of the FAA decisionmaker involving a violation of the Federal aviation statute or the Federal hazardous materials transportation law. Judicial review is in the United States Court of Appeals for the District of Columbia Circuit or the United States court of appeals for the circuit in which the party resides or has the party's principal place of business as provided in § 13.235 of this part. Neither an initial decision or an order issued by an administrative law judge that has not been appealed to the FAA decisionmaker, nor an order compromising a civil penalty action, may be appealed under any of those sections

; or

(ii) Making an electronic payment according to the directions specified in the notice of proposed civil penalty, the final notice of proposed civil penalty, or the order assessing civil penalty.

(2) The civil penalty must be paid within 30 days after service of the order assessing civil penalty, unless otherwise agreed to by the parties. In cases where a hearing is requested, an appeal to the FAA decisionmaker is filed, or a petition for review of the FAA decisionmaker's decision is filed in a U.S. court of appeals, the civil penalty must be paid within 30 days after all litigation in the matter is completed and the civil penalty is affirmed in whole or in part.

(m) Collection of civil penalties. If an individual does not pay a civil penalty imposed by an order assessing civil penalty or other final order, the Administrator may take action to collect the penalty.

(n) Compromise. The FAA may compromise the amount of any civil penalty imposed under this section , under 49 U.S.C. 5123(e), 46031 46301(f), 46303(b), or 46318 at any time before referring the action to the United States Attorney General, or the delegate of the Attorney General, for collection.

(1) An agency attorney may compromise any civil penalty action where a person charged with a violation agrees to pay a civil penalty and the FAA agrees not to make When a civil penalty is compromised with a finding of violation, an agency attorney issues an order assessing civil penalty.

(2) When a civil penalty is compromised without a finding of violation

. Under such agreement

,

a compromise order is issued following the payment of the agreed-on amount or the signing of a promissory note. The compromise order

the agency attorney issues a compromise order that states the following:

(i) The person has paid a civil penalty or has signed a promissory note providing for installment payments.

(ii) The FAA makes no finding of a violation.

(iii) The compromise order

shall

will not be used as evidence of a prior violation in any subsequent civil penalty proceeding or certificate action proceeding.

(2) An agency attorney may compromise the amount of a civil penalty proposed in a notice, assessed in an order, or imposed in a compromise order.

[Amdt. 13-32; 70 FR 1813, Jan. 11, 2005; 70 FR 2925, Jan. 18, 2005, as amended at 70 FR 8238, Feb. 18, 2005; 71 FR 70464, Dec. 5, 2006]