[Federal Register Volume 59, Number 165 (Friday, August 26, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-21135]
[[Page Unknown]]
[Federal Register: August 26, 1994]
_______________________________________________________________________
Part V
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Part 13
Civil Penalties: Streamlined Enforcement Test and Evaluation Program;
Final Rule
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 13
[Docket No. 27873; Amdt. No. 94-13-25]
RIN 2120-AF36
Civil Penalties: Streamlined Enforcement Test and Evaluation
Program
AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).
ACTION: Final rule; request for comments.
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SUMMARY: This Special Federal Aviation Regulation (SFAR) establishes a
test and evaluation program designed to streamline the procedures used
to process certain civil penalty enforcement actions. The program is
being tested as a result of recommendations made by the Vice
President's National Performance Review. If successful, the procedures
and delegation of authority outlined in this SFAR may be made
permanent.
DATES: This SFAR is effective August 26, 1994 through August 26, 1996.
Comments must be submitted on or before October 25, 1994.
ADDRESSES: Comments on this SFAR may be delivered or mailed, in
triplicate, to the Federal Aviation Administration, Office of the Chief
Counsel, Attention: Rules Docket (AGC-200), Docket No. 27873, 800
Independence Avenue, SW., Room 915G, Washington, DC 20591. Comments
submitted must be marked: ``Docket No. 27873.'' Comments may be
inspected in Room 915G between 8:30 a.m. and 5 p.m. on weekdays, except
Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Brian R. Reed, Attorney, Enforcement Division (AGC-320), Federal
Aviation Administration, 800 Independence Ave., SW., Washington, DC
20591; telephone (202) 267-7158.
SUPPLEMENTARY INFORMATION:
Comments Invited
The changes in this rule are temporary and involve matters of
agency organization, procedure, and practice only. Accordingly, the
rule changes are being adopted without notice and prior public comment.
The FAA, however, recognizes that the participation of the public may
add significantly to the rulemaking process. Interested persons are,
therefore, invited to comment by submitting such written data, views,
or arguments as they may desire. Comments relating to environmental,
energy, federalism, or economic impacts that might result from adopting
this rule are also invited. Substantive comments should be accompanied
by cost estimates. Comments must include the regulatory docket number
and be submitted in triplicate to the address above. All comments
received, as well as a report summarizing each substantive public
contact with FAA personnel on this rulemaking, will be filed in the
docket. The docket is available for public inspection before and after
the comment closing date.
All comments received on or before the close of the comment period
will be considered by the Administrator. This rule may be changed in
light of the comments received.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this rule must submit a pre-addressed, stamped
postcard with those comments on which the following statement is made:
``Comments to Docket No. 27873.'' The postcard will be date-stamped by
the FAA and returned to the commenter.
Availability of SFAR
Any person may obtain a copy of this SFAR by submitting a request
to the Federal Aviation Administration, Office of Public Affairs,
Attention: Public Inquiry Center (APA-200), 800 Independence Avenue,
SW., Washington, DC 20591, or by calling (202) 267-3484. Requests must
include the amendment or docket number.
Persons interested in being placed on a mailing list for future
rulemaking actions should request a copy of Advisory Circular 11-2A,
Notice of Proposed Rulemaking Distribution System, which describes the
application procedure.
Background
The FAA has authority to assess civil penalties not to exceed
$50,000 for certain violations of the Federal Aviation Act of 1958 (49
U.S.C. App. 1301 et seq.), the FAA's regulations (14 CFR parts 1-199),
and certain other statutes and orders. (49 U.S.C. App. 1471(a)(3)). In
the case of persons other than those acting in the capacity of a pilot,
flight engineer, mechanic, or repairman, the procedures for civil
penalty assessment actions are those contained in Sec. 13.16 and part
13, subpart G of the FAA's regulations. The current civil penalty
assessment process for these actions is outlined below.
During the investigation phase, FAA investigative personnel
ordinarily notify alleged violators of an agency investigation by
issuing a letter of investigation. This notification is described in
FAA Order 2150.3A, the FAA's Compliance and Enforcement Program, but is
not required by statute, regulation, or that order. Following an
investigation, a civil penalty may be assessed only after notice of the
proposed charges and an opportunity for a hearing. This process is
begun by issuing a notice of proposed civil penalty to an alleged
violator (respondent). Section 13.16(c) delegates the authority to the
FAA's Deputy Chief Counsel and certain Assistant Chief Counsel in the
regions, centers, and headquarters to issue such notices.
Respondents have several options to respond to the notice of
proposed civil penalty. The person charged with a violation is required
to do one of the following:
(1) Submit the amount of the proposed civil penalty or an agreed-
upon lower amount.
(2) Submit written information demonstrating that the violation did
not occur, or that a penalty or the penalty amount is not warranted
under the circumstances.
(3) Submit a request for a reduction of the proposed civil penalty,
including the amount of reduction along with supporting reasons and
documentation, such as records indicating a financial inability to pay
the proposed penalty.
(4) Submit a written request for an informal conference to discuss
the matter with an agency attorney and submit relevant information or
documents.
(5) Request a hearing before an administrative law judge (ALJ) of
the Department of Transportation (DOT) Office of Hearings.
If a respondent does not respond to the notice of proposed civil
penalty, or chooses to proceed informally in response to a notice of
proposed civil penalty, and the matter is not resolved, the FAA
attorney then serves a final notice of proposed civil penalty. The
respondent must either request a hearing before an ALJ or pay the
amount of the proposed civil penalty, or an agreed-upon amount, within
15 days of receipt of the final notice. If neither a penalty is paid
nor a hearing is requested during the 15-day period, the FAA attorney
serves an order assessing civil penalty, which contains a finding of
violation and assesses a civil penalty. That order is final and not
appealable.
On September 7, 1993, the Vice President's National Performance
Review published a report entitled ``From Red Tape to Results: Creating
a Government that Works Better and Costs Less.'' That report included a
recommendation that the FAA streamline its civil penalty enforcement
program by eliminating several of the procedural steps it takes to
issue civil penalties in certain minor, uncontested cases. The FAA has
determined that streamlined procedures would be most appropriately
applied to those legal enforcement actions that facially appear to be
simple and factually straightforward. The SFAR adopts interim changes
to the existing rules governing procedures and delegation of authority
that are designed to enhance the efficiency and effectiveness of the
processing of civil penalty assessment actions in these types of cases.
The National Performance Review indicates that a streamlined
enforcement process may reduce costs, improve efficiency, and enhance
safety by notifying individuals of certain violations and processing
these actions within reduced time frames.
In addition to shortening the time for initiating certain cases, it
is expected that this test program also will encourage prompt
settlement of proposed civil penalties in these cases. The program will
not eliminate an individual's opportunity to request a hearing or
otherwise contest a proposed civil penalty. This SFAR will be effective
for two years, unless sooner canceled.
Discussion of Rule
Scope
These regulatory changes initially will be tested in certain civil
penalty assessment actions resulting from violations occurring in two
FAA regions (Great Lakes and Southwest) at three airports (Dallas/Forth
Worth International Airport, O'Hare International Airport, and
Indianapolis International Airport). The program may be extended to
violations at other airports or regions during the duration of the test
program.
In addition, the test program will apply only to alleged violations
by individuals presenting dangerous or deadly weapons for screening at
airports or in checked baggage, for which a civil penalty less than
$5,000 is proposed. While the FAA considers these violations to be
serious, the initial evaluation and processing of these cases tends to
be uncomplicated. Violations of weapons prohibitions, on the other
hand, for which a penalty of $5,000 or more is sought ordinarily are
more factually complex and involve evidence of several aggravating
factors. As a result, these cases tend to be more difficult to process,
and, therefore, would not be appropriate for handling under the test
program. The FAA does not intend to apply this program to complex civil
penalty actions, including factually complicated cases under $5,000.
If the program is successful in streamlining the civil penalty
enforcement process for the cases described above, the FAA will
consider amending this rule to extend the program to include other
relatively simple violations warranting civil penalty action.
Procedures and Delegations
The test program will involve several changes to current
enforcement practice. The test program dispenses with the FAA's current
practice of ordinarily issuing to the alleged violator a letter of
investigation seeking information about the alleged violation.
Experience has indicated that in the majority of factually clear,
uncomplicated cases, the respondent often does not provide additional
relevant information that is not already known to the FAA. The
information received by the FAA from local law enforcement offices
regarding weapons violations at airport screening checkpoints tends to
be complete and beyond serious dispute. A respondent, however, will
continue to have an opportunity to make any statements and submit any
evidence regarding the alleged violation following notification of the
alleged violation.
FAA Office of Civil Aviation Security Division Managers and Deputy
Division Managers, instead of FAA attorneys, will initiate a legal
enforcement action by issuing a notice of violation (NOV) to the
respondent. The NOV will cite the relevant facts and circumstances
pertaining to the alleged infraction and will include a proposed civil
penalty amount. The authority to issue NOVs will not be delegated below
the division level. By delegating to the Office of Civil Aviation
Security the authority to send the initial notification to a respondent
of an alleged violation, the FAA believes that it can reduce
significantly the time currently expended before a respondent is given
this notification. The name and phone number of a security agent
involved in the investigation will be included in the NOV in case the
respondent has any questions about the action being proposed.
The NOV will serve the same purpose that the notice of proposed
civil penalty now serves under current procedures. The NOV, however,
will include the following specific information:
(1) A description of the alleged violation;
(2) The proposed amount of civil penalty;
(3) An offer of settlement of the case, if appropriate, as
described below;
(4) The name and phone number of an FAA security special agent
involved in the investigation of the violation;
(5) Information regarding informal procedures; and
(6) Information on how to request a formal hearing before a DOT
ALJ.
In appropriate cases, the agency may extend to the respondent a
settlement offer to resolve the case immediately with a reduction of
the proposed civil penalty, on the condition that the penalty is paid
or a commitment to pay is made within 30 days. In conjunction with the
publication of this rule, the FAA will issue guidance on the exercise
of its discretionary settlement authority in these cases as well as
other similar cases not covered by the test and evaluation program.
This guidance will be published in Appendix 1 of FAA Order 2150.3A,
Compliance and Enforcement Program, and may be changed during the test
program.
The FAA believes that swifter notification of a violation, coupled,
in most cases, with an immediate offer of settlement, may encourage
quick resolution of simple cases while, at the same time, having no
negative impact on the effectiveness of the enforcement process. The
National Performance Review studied a similar program offered by the
Federal Highway Administration and found that approximately 40 percent
of proposed civil penalties were paid in this manner within 30 days.
The provisions of this SFAR will not limit the respondent's rights
in any way. An individual may choose to proceed under the current
informal and formal procedures, including requesting an informal
conference with an FAA attorney or formal hearing before a DOT ALJ. If
the FAA and respondent are unable to resolve the case informally, or if
the respondent fails to respond to the NOV within 30 days after
receiving it, a final notice of violation and civil penalty assessment
order (``final notice and order'') will be issued to the respondent.
This document serves two purposes:
(1) It provides a second opportunity for the respondent to request
a hearing on the record before a DOT ALJ; and
(2) It becomes an order assessing a civil penalty if the respondent
pays the civil penalty proposed in the final notice and order, or the
respondent does not request a hearing in accordance with the final
notice and order and fails to pay the amount of the proposed civil
penalty.
This streamlined process dispenses with the current procedure
requiring a separate order assessing civil penalty to be sent to the
respondent when the respondent pays the amount of the civil penalty
reflected in the final notice of proposed civil penalty, or when the
respondent fails to request a hearing in accordance with the final
notice of proposed civil penalty and fails to pay the amount of the
proposed civil penalty. The final disposition of the assessment action
results from the respondent's act or failure to act upon receipt of the
final notice. Issuance of a separate document entitled ``order
assessing civil penalty'' under the current procedures provides no
additional rights or notice to the respondent that is not otherwise
given in the final notice and order under these procedures.
Accordingly, elimination of the issuance of a separate order assessing
civil penalty under these circumstances will not alter the procedural
protections afforded respondents.
The final notice and order will be issued by an appropriate
Assistant Chief Counsel. The final notice and order will result in
either a civil penalty assessment or a formal hearing.
Regulatory Evaluation Summary
Changes to Federal regulations are required to undergo several
economic analyses. First, Executive Order 12866 directs each Federal
agency to propose or adopt a regulation only upon a reasoned
determination that the benefits of the intended regulation justify its
costs. Second, the Regulatory Flexibility Act of 1980 requires agencies
to analyze the economic effect of regulatory changes on small entities.
Third, the Office of Management and Budget directs agencies to assess
the effect of regulatory changes on international trade. With respect
to this rule, the FAA has determined that it: (1) is not ``a
significant regulatory action'' as defined in the Executive Order; (2)
is not significant as defined in the Department of Transportation's
Regulatory Policies and Procedures; (3) will not have a significant
impact on a substantial number of small entities; and (4) will not
constitute a barrier to international trade. Therefore, a full
regulatory analysis, which includes the identification and evaluation
of cost-reducing alternatives to this rule, has not been prepared.
Instead, the agency has prepared a more concise analysis of this rule
which is presented in the following paragraphs.
The rule establishes a test program at three airports. The program
covers certain civil penalty cases against individuals submitting
dangerous or deadly weapons for screening at airport checkpoints or in
checked baggage. The rule will apply only to those cases that facially
appear to be simple and are factually straightforward, and that are
uncomplicated to process. During the test period, the rule delegates
authority to program office managers to initiate legal enforcement
actions and reduces the number of documents issued in this action. The
rule is intended to streamline the agency's civil penalty enforcement
process of notifying individuals of certain violations by processing
these actions within reduced time frames.
Costs
There will be no costs associated with this rule because it
consists only of changes to agency rules of procedure or practice in
part 13 of the FAA's regulations. The changes do not impose any new
economic requirements on the affected parties.
Benefits
The streamlined procedures will reduce the number of documents to
be served upon individuals. Additionally, this rule will likely reduce
the time between the violation and the processing of the enforcement
action.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) was enacted by
Congress to ensure that small entities are not unnecessarily and
disproportionately burdened by Federal regulations. The RFA requires a
Regulatory Flexibility Analysis if a rule will have ``a significant
economic impact on a substantial number of small entities.'' FAA Order
2100.14A outlines FAA's procedures and criteria for implementing the
RFA. Small entities are defined as independently owned and operated
small businesses and small not-for-profit organizations. Because this
rule will directly affect certain individuals (who are not defined as
entities), the rule will not have a significant economic impact on a
substantial number of small entities.
International Trade Impact Assessment
Because the rule only will affect certain individuals, it will not
constitute a barrier to international trade, including the export of
American goods and services to foreign countries and the import of
foreign goods and services to the United States.
Federalism Implications
The rule will not have substantial direct effects on the states, on
the relationship between the national government and that of any state,
or on the distribution of power and responsibilities among the various
levels of government. The respondents affected by the amendments are
private citizens, not state governments. Therefore, in accordance with
Executive Order 12612, it is determined that this regulation will not
have federalism implications to warrant the preparation of a Federalism
Assessment.
Paperwork Reduction Act
This rule contains no information collection requests requiring
approval of the Office of Management and Budget pursuant to the
Paperwork Reduction Act of 1980 (44 U.S.C. 3507 et seq.).
Conclusion
For the reasons discussed in the preamble, and based on the
findings in the Regulatory Flexibility Determination and the
International Trade Impact Analysis, the FAA has determined that this
regulation is not a significant regulatory action under Executive Order
12866. This rule is not considered significant under DOT Regulatory
Policies and Procedures (44 FR 11034; February 26, 1979). In addition,
this rule will not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 13
Administrative practice and procedure, Air transportation, Federal
Aviation Administration, Investigations, Law enforcement, Penalties.
The Amendments
Accordingly, the Federal Aviation Administration amends part 13 of
Title 14, Code of Federal Regulations, by adding Special Federal
Aviation Regulation No. 72, as follows:
Special Federal Aviation Regulation No. 72--Civil Penalties:
Streamlined Enforcement Test and Evaluation Program
1. The authority citation for part 13 is amended to read as
follows:
Authority: 49 U.S.C. 106(g) and 322; 49 U.S.C. App. 1354(a) and
(c), 1374(d), 1401-1406, 1421-1432, 1471-1473, 1481, 1482, 1484-
1489, 1523, 1655(c), 1808-1810, 2157 (e) and (f), 2218, 2219; 18
U.S.C. 6002, 6004; 49 CFR 1.47.
2. Special Federal Aviation Regulation No. 72 is added to read as
follows:
Civil Penalties: Streamlined Enforcement Test and Evaluation Program.
This SFAR may be used, at the agency's discretion, in enforcement
actions involving individuals presenting dangerous or deadly weapons
for screening at airports or in checked baggage where the amount of the
proposed civil penalty is less than $5,000. In these cases,
Secs. 13.16(a), 13.16(c), and 13.16(f) through (l) of this chapter are
used, as well as sections (A) through (D) below:
(A) Delegation of authority. The authority of the Administrator,
under section 901 of the Federal Aviation Act of 1958, as amended, to
initiate the assessment of civil penalties for a violation of the Act,
or a rule, regulation, or order issued thereunder, is delegated to the
regional Office of Civil Aviation Security Division Manager and the
regional Office of Civil Aviation Security Deputy Division Manager for
the purpose of issuing notices of violation in cases involving
violations of the Federal Aviation Act and the FAA's regulations by
individuals presenting dangerous or deadly weapons for screening at
airport checkpoints or in checked baggage. This authority may not be
delegated below the level of the Office of Civil Aviation Security
Deputy Division Manager.
(B) Notice of violation. A civil penalty action is initiated by
sending a notice of violation to the person charged with the violation.
The notice of violation 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 violation, the person charged with a violation
shall:
(1) Submit the amount of the proposed civil penalty or an agreed-
upon amount, in which case either an order assessing a civil penalty or
a compromise order shall be issued in that amount;
(2) Submit to the regional Office of the Assistant Chief Counsel
any 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 penalty amount is not warranted by the
circumstances;
(ii) A written request to reduce the proposed civil penalty, the
amount of reduction, and the reasons and 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; or
(iii) A written request for an informal conference to discuss the
matter with an agency attorney and submit relevant information or
documents; or
(3) Request a hearing in which case a complaint shall be filed with
the hearing docket clerk.
(C) Final notice of violation and civil penalty assessment order. A
final notice of violation and civil penalty assessment order (``final
notice and order'') may be issued after participation in any informal
proceedings as provided in paragraph (B)(2) of this section, or after
failure of the respondent to respond in a timely manner to a notice of
violation. A final notice and order will be sent to the individual
charged with a violation. The final notice and order will contain 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
any informal procedures, may modify an allegation or a proposed civil
penalty contained in the notice of violation.
A final notice and order may be issued--
(1) If the person charged with a violation fails to respond to the
notice of violation within 30 days after receipt of that notice; or
(2) If the parties participated in any informal procedures under
paragraph (B)(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 violation.
(D) Order assessing civil penalty. An order assessing civil penalty
may be issued 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, the amount of
civil penalty proposed in the notice of violation.
(2) An order assessing civil penalty may be issued if a person
charged with a violation submits, or agrees to submit, an agreed-upon
amount of civil penalty that is not reflected in either the notice of
violation or the final notice and order.
(3) The final notice and order becomes (and contains a statement so
indicating) an order assessing a civil penalty when the person charged
with a violation submits the amount of the proposed civil penalty that
is reflected in the final notice and order.
(4) The final notice and order becomes (and contains a statement so
indicating) an order assessing a civil penalty 16 days after receipt of
the final notice and order, unless not later than 15 days after receipt
of the final notice and order, the person charged with a violation does
one of the following--
(i) Submits an agreed-upon amount of civil penalty that is not
reflected in the final notice and order, in which case an order
assessing civil penalty or a compromise order shall be issued in that
amount; or
(ii) Requests a hearing in which case a complaint shall be filed
with the hearing docket clerk.
(5) 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 to be appropriate
by the administrative law judge, is warranted.
(6) 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.
Issued in Washington, DC, on August 19, 1994.
David R. Hinson,
Administrator.
[FR Doc. 94-21135 Filed 8-25-94; 8:45 am]
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