[Federal Register Volume 61, Number 168 (Wednesday, August 28, 1996)]
[Rules and Regulations]
[Pages 44152-44156]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22021]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 13
[Docket No. 27873; Amdt. No. 13-26]
RIN 2120-AF36
Civil Penalties: Streamlined Enforcement Procedures for Certain
Security Violations
AGENCY: Federal Aviation Administration (FAA), (DOT).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule establishes streamlined procedures to be used
to process civil penalty enforcement actions resulting from certain
security violations. The procedures were tested as a result of
recommendations made by the Vice President's National Performance
Review. This streamlined enforcement process will reduce costs and
improve efficiency in factually uncomplicated cases.
EFFECTIVE DATE: This final rule is effective August 26, 1996.
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: The changes in this rule involve matters of
agency organization, procedure, and practice only. While notice and
public comment are not required, the rule changes are being adopted
after publishing notice of a temporary Special Federal Aviation
Regulation (SFAR), which was implemented to test the procedures. Public
comment was invited. Two comments were received.
The first commenter recommended that all actions taken against
airmen under the streamlined procedures be appealable to the National
Transportation Safety Board (NTSB). The streamlined procedures
contained in this rule do not, however, address the jurisdiction of the
NTSB. Therefore, the suggestion is beyond the scope of this rule.
The second commenter suggested that the streamlined procedures be
used only in instances where the respondent has admitted the violation
because the procedures do not require legal review before an
enforcement action is initiated. The commenter expressed concern that
those initiating the cases would lack the qualifications to conduct an
appropriate review of an enforcement investigative report in order to
determine whether the FAA's allegations have been substantiated.
In response, the FAA notes that the streamlined procedures only
allow for initiation of factually uncomplicated cases without initial
legal review. Any investigation revealing that an alleged violator
denies the violation occurred would be too factually complicated for
use of the procedures, and the case would be referred to the
appropriate Assistant Chief Counsel's office for review. Additionally,
the evidence used in the cases affected by the streamlined procedures
tends to be uncontroverted evidence contained in police records and
airport documentation, as well as screener and respondent statements.
FAA security agents have been trained to refer any case that contains
contradictory evidence to the legal office for initiation of an
enforcement action.
Availability of Regulation
Any person may obtain a copy of this final rule by submitting a
request to the Federal Aviation Administration, Office or Rulemaking,
ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by
calling (202) 267-9677. Requests must include the amendment or docket
number.
An electronic copy of this document may be downloaded using a modem
and suitable communications software from the Federal Register
electronic bulletin board service (telephone: 202-512-1661) or the
FAA's Aviation Rulemaking Advisory Committee Bulletin Board service, at
the toll-free number 1-800-322-2722 (1-800-FAA-ARAC). Internet users
may reach the Federal Register's web page at:
http://www.access.gpo.gov./su__docs
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
Under 49 U.S.C. 46301(d), the FAA has authority to assess civil
penalties not to exceed $50,000 for certain violations of 49 U.S.C.
Subtitle VIII, the FAA's regulations (14 CFR parts 1-199), and certain
other statutes and orders (see 49 U.S.C. Subtitle III, Chapter 51). In
the case of persons other than those acting as a pilot, flight
engineer, mechanic, or repairman, the procedures for civil penalty
assessment actions are those contained in section 13.16 and part 13,
subpart G of the FAA's regulations. The current civil penalty
assessment process for these actions is outlined as follows:
During the investigation phase of an enforcement action, 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, Compliance and
Enforcement Program, but is not required by statute, regulation, or
that order. Following an investigation, a civil penalty may be assessed
against individuals 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 or more of the following:
[[Page 44153]]
(1) Submit the amount of the proposed civil penalty or an agreed-
upon 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 written 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 the respondent does not respond to the
final notice within 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.
On August 26, 1994, the FAA issued a Special Federal Aviation
Regulation (SFAR) that adopted interim changes to the current rules
governing procedures and delegation of authority that were designed to
enhance the efficiency and effectiveness of the processing of civil
penalty assessment actions in these types of cases. After testing the
procedures for 1 year, the FAA found that the streamlined enforcement
process reduced costs and improved efficiency; the FAA also believes
that safety was enhanced by the swift processing of these enforcement
actions within reduced time frames.
In addition to shortening the time for initiating certain cases,
the test program encouraged prompt settlement of proposed civil
penalties in these cases. The program did not eliminate an individual's
opportunity to request a hearing or otherwise contest a proposed civil
penalty. This SFAR was made effective for two years, and expires on
August 26, 1996 or upon publication of this rule, whichever occurs
first.
Discussion of Rule
Scope: These regulatory changes will affect civil penalty
assessment actions resulting from factually uncomplicated 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 these
procedures. The FAA does not intend to apply these procedures to
complex civil penalty actions, including factually complicated cases
under $5,000.
Procedures and delegations: Current enforcement practice will
undergo internal policy change as well as changes resulting from these
procedures. For example, the FAA's current practice of ordinarily
issuing to the alleged violator a letter of investigation seeking
information about the alleged violation will be dispensed with in cases
subject to this rule. 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.
Under these procedures, FAA regional 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 NOV's
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 question 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 the NOV, 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 either that the penalty is paid within
30 days, or, within 30 days, the respondent agrees to execute a
promissory note for the penalty amount. A reduced penalty settlement
offer will not be extended in cases that involve intentional conduct,
repeated violations, or violations associated with felony conduct
(other than possession of the weapon itself).
The FAA evaluated the test program for a 1-year period, from
December 1, 1994 through December 1, 1995, and discovered that swifter
notification of a violation, coupled, in most cases, with an immediate
offer of settlement, encouraged quick resolution of simple cases and,
at the same time, had no negative impact on the effectiveness of the
enforcement process. As a result, the program was expanded to all
airports in each of the FAA's domestic regions in January, 1996. The
National
[[Page 44154]]
Performance Review studied a similar program offered by the Federal
Highway Administration and found that approximately 40% of proposed
civil penalties were paid in this manner within 30 days. The test
program data evaluated by the FAA indicates that, during the 1-year
evaluation period, approximately 87% of proposed civil penalties
processed under these procedures were paid within 90 days of the
violation date.
The provisions of the Federal Aviation Regulation will not limit a
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 existing procedures provides no
additional rights of 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 new procedures to be implemented nation-wide.
The procedures cover 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. The rule
delegates authority to program office Division and Deputy Division
managers to initiate legal enforcement actions and reduces the number
of documents issued in these actions. The rule in intended to
streamline the agency's civil penalty enforcement process for certain
violations by processing these actions within reduced time frames.
Cost
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 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 rules 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
[[Page 44155]]
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,
Investigations, Law enforcement, Penalties.
The Amendments
Accordingly, the Federal Aviation Administration amends part 13 of
Title 14, Code of Federal Regulations, by adding section 13.29, as
follows:
PART 13--INVESTIGATIVE AND ENFORCEMENT PROCEDURES
1. The authority citation for part 13 continues to read as follows:
Authority: 18 U.S.C. 6002; 49 U.S.C. 106(g), 5121-5124, 40113-
40114, 44103-44106, 44702-44703, 44709-44710, 44713, 46101-46110,
46301-46316, 46501-46502, 46504-46507, 47106, 47111, 47122, 47306,
47531-47532.
2. Section 13.29 is added to read as follows:
Sec. 13.29 Civil penalties: Streamlined enforcement procedures for
certain security violations.
This section 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, sections 13.16(a), 13.16(c), and 13.16 (f) through (l) of this
chapter are used, as well as paragraphs (a) through (d) of this
section:
(a) Delegation of authority. The authority of the Administrator,
under 49 U.S.C. 46301, to initiate the assessment of civil penalties
for a violation of 49 U.S.C. Subtitle VII, or a rule, regulation, or
order issued thereunder, is delegated to the regional Civil Aviation
Security Division Manager and the regional Civil Aviation Security
Deputy Division Manager for the purpose of issuing notices of violation
in cases involving violations of 49 U.S.C. Subtitle VII 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 regional 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; or
(2) Submit to the agency attorney identified in the material
accompanying the notice 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; or
(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 reflect a modified allegation or proposed
civil penalty.
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.
[[Page 44156]]
Issued in Washington, D.C. on August 23, 1996.
David R. Hinson,
Administrator.
[FR Doc. 96-22021 Filed 8-26-96; 8:51 am]
BILLING CODE 4910-13-M
