[Federal Register Volume 59, Number 150 (Friday, August 5, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19120]
[[Page Unknown]]
[Federal Register: August 5, 1994]
_______________________________________________________________________
Part IX
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Part 13
Civil Penalty Assessment Procedures; Proposed Rule
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 13
[Docket No. 27854; Notice No. 94-26]
RIN 2120-AE-84
Civil Penalty Assessment Procedures
AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: The FAA proposes to revise the procedures for assessing civil
penalties for violations of the Federal Aviation Regulations and other
provisions. The procedures proposed in this notice implement the
requirements of the FAA Civil Penalty Administrative Assessment Act of
1992, as they modify the procedures for adjudicating a civil penalty
against a person acting in the capacity of a pilot, flight engineer,
mechanic, or repairman. The proposed amendments are intended to inform
the public of the procedures by which the FAA will carry out the
authority in the new Act and to make other clarifying changes to Part
13.
DATE: Comments must be received on or before October 4, 1994.
ADDRESSES: Comments on this notice may be delivered or mailed, in
triplicate, to the Federal Aviation Administration, Office of the Chief
Counsel, Attention: Rules Docket (AGC-10), Docket No. 27854, 800
Independence Avenue, SW., Room 915G, Washington, DC 20591. Comments
submitted must be marked: ``Docket No. 27854.'' 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: Mardi Ruth Thompson, Senior Attorney,
Regulations Division (AGC-200), Federal Aviation Administration, 800
Independence Ave., SW., Washington, DC 20591; telephone (202) 267-3073.
SUPPLEMENTARY INFORMATION:
Comments Invited
Although most of the proposed changes in this notice are purely
procedural, the FAA recognizes that the participation of the public may
add significantly to the rulemaking process. Accordingly, this
rulemaking is being done with notice and opportunity for public
comment.
Interested persons are invited to participate in the rulemaking by
submitting such written data, views, or arguments as they may desire.
Comments relating to environmental, energy, federalism, or
international trade impacts that might result from adopting the
proposals in this notice are also invited. Comments must include the
regulatory docket or notice 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 closing date will be
considered by the Administrator before taking action on this proposed
rulemaking. Late-filed comments will be considered to the extent
practicable. The proposals contained in this notice may be changed in
light of the comments received.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a pre-addressed,
stamped postcard with those comments on which the following statement
is made: ``Comments to Docket No. 27854.'' The postcard will be date-
stamped by the FAA and returned to the commenter.
Availability of NPRM
Any person may obtain a copy of this NPRM 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 notice 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 ad authority, under a demonstration program that has
been extended several times, 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.) (FAAct), the Federal Aviation Regulations (14
CFR Parts 1-199), and other statutes and orders. Before August 26,
1992, the procedures for adjudicating such civil penalties were the
same for all persons charged with violations. This authority, for the
most part, was temporary and finally expired on July 31, 1992. (Section
905 of the FAAct in effect on July 31, 1992, 49 U.S.C. App. 1475.) The
FAA rules adopted to carry out this authority, found in Sec. 13.16 and
Part 13, Subpart G (14 CFR 13.16 and Part 13 Subpart G), provide an
opportunity for a hearing before an administrative law judge (ALJ) of
the Department of Transportation (DOT) and for further appeal to the
FAA Administrator.
On August 26, 1992, the FAA Civil Penalty Administrative Assessment
Act of 1992 (CPAA Act) was enacted (Pub. L. 102-345, 106 Stat. 923),
amending the FAAct. The CPAA Act made permanent the FAA's authority to
assess civil penalties in these cases. For violations of the FAR and
other provisions occurring on or after the date of enactment, the CPAA
Act changed the procedures by which persons acting in the capacity of
pilots, flight engineers, mechanics, and repairmen may seek review of
civil penalties sought by the FAA. These changes include a hearing
before a National Transportation Safety Board (NTSB) ALJ and an appeal
to the full NTSB, in place of hearing before a DOT ALJ and an ultimate
administrative appeal to the Administrator. In addition, some changes
were made to the procedures for assessing civil penalties in cases
against other persons.
A technical amendment to the CPAA Act was enacted on October 31,
1992, by section 208 of the Airport and Airway Safety, Capacity, Noise
Improvement, and Intermodal Transportation Act of 1992 (Pub. L. 102-
581, 106 Stat. 4872). The authority of the FAA to assess civil
penalties for violations of sections 901(c) (relating to imparting or
conveying false information, generally involving alleged aircraft
piracy or other criminal acts) and 901(d) (regarding carriage of
weapons) of the FAAact inadvertently was omitted from the CPAA Act. The
technical amendment returned this authority to the FAA.
At present, the procedures for civil penalty assessment actions are
contained in Sec. 13.16 and Part 13, Subpart G. To carry out the CPAA
Act, a new Sec. 13.18 is proposed. That section would set forth new
procedures for civil penalty actions against persons acting in the
capacity of pilots, flights engineers, mechanics and repairmen. In
addition, the FAA proposes to modify current Sec. 13.16 to exclude the
actions covered under proposed Sec. 13.18, and to make other clarifying
changes to Part 13. Unless otherwise noted below, all references to the
FAAact include the amendments made by the CPAA Act and the technical
amendment noted above.
Although the FAA is initiating civil penalty actions against
persons acting in the capacity of pilots, flights engineers, mechanics,
and repairmen simply by informing the persons charged of the procedures
to be used, this notice informs the public generally of how the FAA
proposes to implement portions of the CPAA Act. This information will
be helpful to the public, particularly to airmen, attorneys who handle
these types of cases, and others who may be affected by the revised
procedures.
DISCUSSION OF PROPOSED RULE
Topic-by-Topic Analysis
Civil Penalty Assessments Against a Person Acting in the Capacity of a
Pilot, Flight Engineer, Mechanic, or Repairman
Applicability
Proposed Sec. 13.18(a) would state the statutory authority for
assessing a civil penalty against a person acting in the capacity of a
pilot, flight engineer, mechanic, or repairman. This authority is
discussed further in this preamble under discussion of proposed
Sec. 13.16(a). Under section 2(c) of the CPAA Act, the revised
procedures apply only to violations occurring on or after the date of
enactment, August 26, 1992.
Interpretation of ``Person Acting in the Capacity''
In reviewing the CPAA Act the question arises, under what
circumstances is a person ``acting in the capacity of a pilot, flight
engineer, mechanic, or repairman''? The CPAA Act could be interpreted
in a number of ways. In developing the interpretation that follows, we
are mindful that it is to the advantage of the FAA, the public, and the
NTSB for the applicability of the CPAA Act to be easy to understand and
use in each case. It is also logical and advantageous for similar cases
to be heard in the same forum, to the extent possible. Further, the
reviewing forum does not affect whether a respondent is afforded full
due process when a civil penalty is assessed: Under both the NTSB and
the FAA procedures, the respondent is given an opportunity for a
hearing before an administrative law judge, an appeal within the
respective agency, a right to petition the court of appeals to review
any final adverse agency decision, and other procedural protections.
The following interpretation was developed considering these factors,
as well as relevant statutory construction principles.
This interpretation applies only to the applicability of the CPAA
Act, and is not intended to affect the application of any other portion
of the FAAct or the regulations administered by the FAA.
Section 901(a)(3)(D) of the FAAct provides a different
administrative forum for adjudication in civil penalty assessment cases
involving violations by a person ``acting in the capacity of a pilot,
flight engineer, mechanic, or repairman * * *.'' We have considered
whether a person in this context must actually hold a pilot certificate
to be ``acting in the capacity of a pilot.'' This phrase, however,
describes the respondent by his or her activities, not by legal status.
The dictionary definition of the word ``acting'' includes both
``holding a temporary rank or position'' and ``simulation.'' Webster's
Third New International Dictionary 20 (1961). A person can simulate the
capacity of a pilot without actually holding a pilot certificate, such
as when operating in control of an aircraft without the appropriate
airman certificates. The same is true for persons acting as flight
engineers, mechanics, and repairmen. In each case a person can function
as an airman (although in violation of the FAAct and the regulations),
without holding an FAA certificate to do so. The FAA, therefore,
interprets the CPAA Act not to require that a person hold a certificate
in order to bring a civil penalty action under FAAct section
901(a)(3)(D). It is the nature of the activity that triggers the
applicability of section 901(a)(3)(D), not the particular certificates
held by the person.
The FAA has considered the type of activities that may constitute
``acting in the capacity of a pilot, flight engineer, mechanic, or
repairman.'' The capacity of a pilot is defined in the FAAct and the
regulations, most notably in Parts 61 and 91, where the privileges and
duties are set forth. The capacity of the other airmen also is defined
in the FAAct and the regulations.
The term ``acting,'' of necessity, includes the failure to act as
legally required. Thus, a pilot who refuses to present his or her pilot
certificate for inspection on request by the Administrator under
Sec. 61.3(h) has acted (although improperly) in the capacity of a
pilot. Acting in the capacity of an airman may also include failure to
surrender an airman certificate when it is suspended or revoked, and
any civil penalty action would be heard under the NTSB review
procedures. See, Secs. 61.19(f), 63.15(c), and 65.15(c). Note from
these samples that the privileges and duties under the FAR extend
beyond actually flying an aircraft or performing maintenance on an
aircraft. The NTSB procedures are not limited to cases involving
``operational'' violations.
The new procedures do not apply to an airman who is not acting in
the capacity of a pilot, flight engineer, mechanic, or repairman. For
instance, a person who holds a pilot certificate, but refuses to submit
to screening before entering a sterile area of an airport under
Sec. 107.20, is not acting in the capacity of a pilot. That rule
applies to any passenger or other person entering a sterile area, not
just pilots or persons operating aircraft. Any civil penalty action
would be under the FAA review procedures in FAAct section 901(a)(3)(E).
Finally, we have considered the extent of the respective airman's
duties and privileges in conjunction with CPAA Act. For example, a
flight instructor certificate is not a pilot certificate. A person must
hold a pilot certificate, however, to obtain and to use a flight
instructor certificate. See, Secs. 61.183(c)(1) and 61.195(b). For
purposes of the CPAA Act, any civil penalty action for violations by a
person acting in the capacity of a flight instructor would be heard
under the NTSB procedures.
Similarly, a person must hold a mechanic certificate to obtain and
to use an inspection authorization. See, Secs. 65.91(c)(1) and
65.92(a). Any civil penalty action for violations by persons acting in
the capacity of an authorized inspector would be heard under the NTSB
review procedures.
Medical certificates are required for pilots and flight engineers,
but also are required for flight navigators and air traffic control
tower operators. Civil penalties for violations relating to medical
certification by persons who are otherwise acting in the capacity of
pilots or flight engineers would be heard under the NTSB review
procedures; violations by other persons would be heard under the FAA
procedures.
The sanction examples in this interpretation are only for purposes
of explaining the interpretation, and do not necessarily reflect agency
sanction policy.
The FAA would welcome comments on this interpretation.
Procedures
Section 901(a)(3)(D)(i) of the FAAct provides that before issuing
an order assessing a civil penalty against a person acting in the
capacity of a pilot, flight engineer, mechanic, or repairman, the FAA
must advise the person of the charges or any reasons relied upon by the
FAA for the proposed action. The FAA must also provide the person with
an opportunity to answer the charges and be heard as to why an order
should not be issued. The person against whom an order assessing a
civil penalty is issued may appeal the order to the NTSB. These
procedures are substantially similar to those provided for by section
609(a) of the FAAct (49 U.S.C. App. 1429(a)) regarding certificate
actions (such as suspension and revocation of airman certificates). The
procedures for taking certificate actions are found in Sec. 13.19.
Proposed Sec. 13.18 would provide procedures for civil penalty actions
in these cases in a manner substantially similar to those now used for
certificate actions.
Proposed Sec. 13.18 procedures are different from those in
Sec. 13.16. Under the statutory authority for cases against persons
acting in the capacity of pilots, flight engineers, mechanics, and
repairman (new section 901(a)(3)(D) of the FAAct), the order that
assesses a civil penalty is issued first, with an opportunity to appeal
to the NTSB. Under the statutory authority for cases against others
(former section 905 and new section 901(a)(3)(E) of the FAAct), the
opportunity for a hearing is given before an order is issued and the
appeal is not to the NTSB, but to DOT administrative law judges and
then to the FAA Administrator.
Under proposed Sec. 13.18(e), the FAA would initiate a civil
penalty action against a person acting in the capacity of a pilot,
flight engineer, mechanic, or repairman by issuing a notice of proposed
assessment. The notice would contain a statement of the charges and the
proposed amount of the penalty. The person charged with the violation
would be given the opportunity to respond using informal procedures,
such as a written response or an informal conference with an agency
attorney. This notice would satisfy the requirement under section
901(a)(3)(D)(i) that the person be advised of the charges and be given
an opportunity to answer them and be heard. This procedure would be
substantially the same as that used for certificate actions.
Under proposed Sec. 13.18(b), an order of assessment may be issued
following the notice and opportunity to respond. Thereafter, the person
has the right to appeal the order to the NTSB under section
901(a)(3)(D)(iv) of the FAAct. Under that section of the FAAct, an
appeal stays the effectiveness of the order.
Under section 1006 of the FAAct, a petition for review of an order
of the NTSB or the Administrator may be filed with the courts of
appeals of the United States or the United States Court of Appeals for
the District of Columbia. Proposed Sec. 13.18(j) would provide that the
Administrator's order of assessment is not a final order of the
Administrator for purposes or judicial appellate review unless it is
appealed first to the NTSB.
Compromise of Civil Penalties
Section 13.16(l)(1) currently provides agency attorneys with the
authority to compromise a civil penalty action with no finding of
violation. Proposed Sec. 13.18(k)(1) would continue to provide this
authority in civil penalty assessment actions against persons acting in
the capacity of pilots, flight engineers, mechanics, and repairmen.
Agency attorneys may issue compromise orders after discussions and
deliberations with the person charged with the violation. Frequently an
agreement is reached verbally and the agency attorney issues the
compromise order that reflects the agreement. The civil penalty amount
agreed upon may be less than that proposed in the notice of proposed
civil penalty. The person charged generally is not required to sign the
compromise order.
Section 13.16(l)(1) does not specifically require the person
charged either to pay the civil penalty or sign a promissory note
before an order is issued. The FAA has experienced problems with this
approach. When no payment is received before the issuance of a
compromise order, in some cases the person fails to pay the civil
penalty and debt collection procedures must be initiated. If the person
has not signed a promissory note agreeing to the amount of the penalty
and a payment schedule, there is a risk than the person will dispute
whether the amount in the compromise order is the amount agreed upon,
complicating collection proceedings. Collection procedures often are
time-consuming and costly, and may not result in recovery of the full
amount of the debt.
The FAA is proposing to require that no compromise order will be
issued under Sec. 13.18 unless the civil penalty is paid or a
promissory note providing for installment payments is signed by the
person charged. In most cases the full amount will be paid before the
compromise order is issued, eliminating the possibility that collection
proceedings will be needed. In those cases in which a payment schedule
is used, the promissory note will show specifically what has been
agreed to, which should simplify collection proceedings if they become
necessary.
Although the current rules do not address issues relating to debt
collection after issuance of a compromise order, the approach described
above has been used successfully by many agency attorneys. Furthermore,
it appears to be well-accepted by the persons who agree to compromise
orders.
Civil Penalty Assessments Against Persons Other Than Those Acting in
the Capacity of Pilots, Flight Engineers, Mechanics, and Repairmen
The general rules for assessing civil penalties for violations
before the enactment of the CPAA Act are found in Sec. 13.16 of the
FAR. These rules remain in effect for all actions arising from
violations that occurred before August 26, 1992. These rules will
remain in effect for all actions arising from violations occurring
after that date, except for violations by persons acting in the
capacity of pilots, flight engineers, mechanics, and repairmen.
When a person charged with a violation under Sec. 13.16 requests a
hearing, the rules of practice in Part 13, Subpart G govern the
proceedings.
Applicability
Section 13.16(a) of the FAA currently contains a partial list of
the statutory provisions authorizing the FAA to assess civil penalties.
The FAA proposes to expand that list to provide more information.
Proposed Sec. 13.16(a)(1) would describe the statutory provisions that
give the FAA authority to assess civil penalties. Proposed
Sec. 13.16(a)(2) would specify the amounts of the penalties that may be
assessed. There may be other civil penalty provisions that may apply on
occasion, and when necessary this authority is used to assess civil
penalties.
Proposed Sec. 13.16(a)(1) describes the FAA's general statutory
authority for assessing civil penalties. Proposed Sec. 13.16(a)(1)(i)
states that under section 905 of the FAAct, in effect on July 31, 1992
(before section 905 expired), the FAA may assess a civil penalty for
violations occurring before August 26, 1992, for violations of the
FAAct. Proposed Sec. 13.16(a)(1)(ii) states that under section
901(a)(3) of the FAAct, in effect on July 31, 1992, the FAA may assess
a civil penalty for a violation of title V of the FAAct (which relates
to the registration of aircraft and recordation of aircraft ownership)
occurring before August 26, 1992. Section 905 of the FAAct was repealed
by section 2(b) of the CPAA Act, and section 901(a)(3) was amended by
section 2(a) of the CPAA Act. Section 2(c) of the CPAA Act, however,
provides that sections 901(a)(3) and 905 of the FAAct as they existed
on July 31, 1992, continue in effect with respect to violations of the
FAAct occurring before August 26, 1992.
Proposed Sec. 13.16(a)(1)(iii) states that under section 901(a)(3)
of the FAAct, the FAA may assess civil penalties against persons other
than those acting in the capacity of pilots, flight engineers,
mechanics, or repairmen, for violations occurring on or after August
26, 1992. This provision applies to violations of title III, V, VI, or
XII or section 1101 of 1115(e)(2)(B) of the FAAct or any rule,
regulation, or order issued thereunder. This is the authority granted
in section 2(a) of the CPAA Act. In addition, this section applies to
violations of section 901(c) and 901(d) of the FAAct occurring on or
after October 31, 1992, the date of the technical amendment cited
above.
Proposed Sec. 13.16(a)(1)(iv) repeats the statutory language of
section 9308(e) of the Airport Noise and Capacity Act of 1990 (ANCA)
(49 U.S.C. App. 2157(e)). As explained in the preamble to the final
rule implementing ANCA (56 FR 48628, 48630; September 25, 1991),
section 9308(e) and the implementing regulations in Part 91 apply to
the operators of Stage 2 aircraft. This section would not change the
penalties or procedures that may apply to aircraft operating rules in
Part 91. The proposed sections also do not change the penalties or
procedures that may apply to airport operators for violations of Part
158 (passenger facility charges) or Part 161 (airport noise or access
restrictions).
Proposed Sec. 13.16(a)(1)(v) describes the statutory limitations on
the authority in Sec. 13.16(a)(1) (i), (ii), (iii), and (iv). In cases
outside this authority (e.g., in which the amount in controversy
exceeds $50,000), the FAA may not assess a civil penalty. It may only
seek a civil penalty under the procedures in Sec. 13.15. These
limitations are statutory, and are found in sections 901(a)(3) and 905
of the FAAct as they existed on July 31, 1992, and in section
901(a)(3)(C) of the FAAct as amended by the CPAA Act.
Proposed Sec. 13.16(a)(1)(vi) states the authority to assess civil
penalties for hazardous materials violations. This authority is granted
to the Secretary of Transportation under section 110 of the Hazardous
Materials Transportation Act (HMT Act), and delegated to the FAA under
49 CFR 1.47(k). Because the authority to assess penalties is not
granted by section 901(a)(3) of the FAAct, these cases are not subject
to the limitations described in proposed Sec. 13.16(a)(1)(v).
Proposed Sec. 13.16(a)(1)(vii) states the authority to assess civil
penalties under section 404(d) of the FAAct, for violations relating to
smoking on scheduled flights and tampering with smoke alarm devices.
This authority is granted to the Secretary of Transportation in section
404(d), and delegated to the FAA in 49 CFR 1.47(q). It is not subject
to the limitations in proposed Sec. 13.16(a)(1)(v).
Proposed Sec. 13.16(a)(2) describes the amounts of civil penalties
authorized by the various statutes for each violation. Proposed
Sec. 13.16(a)(2)(i) states the general authority, found in section
901(a)(1) of the FAAct, for civil penalties of up to $1,000 for each
violation. Proposed Sec. 13.16(a)(2)(ii) states the authority, found in
section 901(a) of the FAAct, to seek civil penalties not exceeding
$10,000 for each violation by a person (other than an airman serving in
the capacity of an airman) who operates aircraft for compensation or
hire. Proposed Sec. 13.16(a)(2)(iii) states the authority, found in
section 901(a)(1) of the FAAct, for civil penalties not exceeding
$10,000 for violations relating to the registration of aircraft and
recordation of aircraft ownership under title V of the FAAct. Proposed
Sec. 13.16(a)(2)(iv) stats the authority, found in section 901(c) of
the FAAct, for civil penalties of not more than $10,000 for imparting
or conveying false information, generally involving alleged aircraft
piracy or other criminal acts. Proposed Sec. 13.16(a)(2)(v) states the
authority, found in section 901(d) of the FAAct, for civil penalties of
not more than $10,000 for certain offenses regarding the carriage of
weapons.
Proposed Sec. 13.16(a)(2)(vi) states the authority to seek civil
penalties of not more than $10,000 for each hazardous materials
violation occurring before November 16, 1990, or a civil penalty of not
more than $25,000 and not less than $250 for each violation occurring
on or after November 16, 1990, in accordance with section 901(a)(1) of
the FAAct and section 110 of the HMT Act. It further states the factors
that must be considered by the agency in determining the amount of the
civil penalty under the HMT Act. Proposed Sec. 13.16(a)(2)(vii) states
the authority, for violations of section 404(d) of the FAAct, to seek a
civil penalty of the amount specified in the FAAct, or an amount not to
exceed $2,000.
Part 13, Subpart G contains the rules of practice for hearings in
cases initiated under Sec. 13.16. Section 13.201 of that subpart
currently provides a partial list of the statutory provisions under
which the FAA may assess civil penalties. The list is not completely
accurate. For instance, reading Sec. 13.201(c) together with
Sec. 13.210(a) may lead someone to conclude that the FAA cannot assess
civil penalties in excess of $50,000 in cases under the HMT Act. This
would be incorrect, as discussed above. The FAA proposes to remove the
discussion of statutory authority from Sec. 13.201, and incorporate all
such information in proposed Sec. 13.16(a) (1) and (2).
Standard of Review
Section 901(a)(3)(E)(ii) of the FAAct, as amended by Sec. 2(a) of
the CPAA Act, enacts the standard by which the Administrator reviews
the decisions of ALJs. That section provides that the only issues the
Administrator will consider on appeal are: (1) Whether each finding of
fact is supported by a preponderance of reliable, probative, and
substantial evidence; (2) whether each conclusion of law is made in
accordance with applicable law, precedent, and public policy; and (3)
whether the ALJ committed any prejudicial errors that support the
appeal. The FAA proposes to incorporate these standards in
Sec. 13.233(b). With the exception of a reference to the ``FAA
decisionmaker'' rather than the ``Administrator,'' the proposed change
in Sec. 13.233(b) mirrors the language of the CPAA Act.
Section 13.233(j), regarding the FAA decisionmaker's decision on
appeal, would be modified to remove the language that touches upon the
standard of review. The existing regulation states that the FAA
decisionmaker will review the record, briefs, and oral argument ``to
determine if the administrative law judge committed prejudicial error
in the proceedings or that the initial decision should be affirmed,
modified, or reversed.'' The proposed change would provide that the FAA
decisionmaker will review the record, briefs, and oral argument ``when
considering the issues on appeal.'' In this way, the proposed rule will
refer back to the standard of review set forth in Sec. 13.233(b). The
FAA decisionmaker retains the authority to affirm, modify, or reverse
an initial decision specified in Sec. 13.233(j); this would not be
changed by these proposed amendments.
In Sec. 13.233(b)(1) there is a typographical error. The word
``filing'' would be corrected to read ``finding.''
Other Amendments
As discussed in the preamble for Sec. 13.18, above, the FAA has
experienced problems with Sec. 13.16(l)(1), regarding compromise
orders. For the reasons explained above, the FAA proposes to amend that
section to provide that no compromise order will be issued unless the
civil penalty is paid or a promissory note providing for installment
payments is signed by the person charged.
Section 13.16(k) indicates when a party may petition for review of
a civil penalty assessment to the United States Courts of Appeals. That
section states that an initial decision or order issued by an ALJ that
has not been appealed to the FAA decisionmaker, and an order
compromising a civil penalty action, do not constitute final orders of
the Administrator for the purposes of judicial review under section
1006 of the FAAct. A petition for review from these orders is not
appropriate, because available administrative remedies were not
exhausted. They are considered to be final orders of the Administrator,
however, for such purposes as closing out the enforcement action in FAA
records and collecting the civil penalty as a debt to the United
States. In the case of an initial decision in which the person has been
found to have violated the FAR, the finding of violation becomes part
of the FAA enforcement history of the person. Accordingly, the FAA
proposes to amend that section to delete the characterization of these
orders as not final.
Limitation Period for Commencing Civil Penalty Assessments
Section 2462 of title 28 of the United States Code prescribes a
general 5-year limit within which the United States must commence an
action for the assessment of a civil penalty. This statute of
limitations recently has been held to be applicable to the entire
federal government in civil penalty cases, unless Congress specifically
provides otherwise. In 1990, the FAA, as the prosecuting and regulating
agency, self-imposed a 2-year regulatory limit on the initiation of its
civil penalty assessment cases, except where good cause exists. See, 55
FR at 27552 to 27557 (July 3, 1990). In adopting this regulatory
limitation period, the FAA attempted to carefully balance the needs of
the agency for sufficient time to investigate, review, and initiate a
case; the interest of respondents in timely notice and adjudication;
and the public interest in promoting compliance with the regulations.
Subsequently, in 1992, the CPAA Act codified the FAA's 2-year limit
for civil penalty assessment cases adjudicated by the FAA, but did not
establish a limitation period for civil penalty assessment cases
appealable to the NTSB. Thus, the law limiting the time in which the
FAA may initiate civil penalty assessment actions against persons
acting in the capacity of pilots, flight engineers, mechanics, or
repairmen continues to be section 2462.
On February 25, 1993, the Board published interim rules to
implement the CPAA Act (58 FR 11379). In requesting public
participation, the NTSB asked particularly for comments on the proposed
applicability of its stale complaint rule, 49 CFR 821.33, to civil
penalty actions. That rule applies, by its terms, to certificate action
cases adjudicated before the NTSB, that is, cases involving the
amendment, modification, suspension, or revocation of certificates
issued by the FAA. It provides, with some exceptions, that a complaint
may be dismissed where an offense occurred more than 6 months before
the Administrator advised the respondent as to the reasons for
proposing certificate action. The Board will now apply the 6-month
stale complaint rule to both certificate action and civil penalty cases
it hears on appeal.
In responding to the Board's request for comments, the FAA stated
that it will continue agency policy to initiate all cases affected by
the new procedures as expeditiously as possible. It is expected that
those cases generally will be initiated within 6 months of the date the
violation occurred. There must, however, be administrative flexibility
within the agency to allocate its resources, for instance, when higher
safety priorities demand. Even in such instances, the FAA is
constrained by the statutory time limits for taking action.
In every case, regardless of the time taken for initiation, the FAA
has been careful to distinguish the inherent authority of the Board, an
adjudicative body, to consider whether delay in a particular case has
unfairly prejudiced the opportunity of a respondent to defend against
charges. The FAA fully supports the adoption by the Board, by rule, of
an adjudicative policy favoring dismissal of a case or other
appropriate action whenever a delay in initiating a particular case is
shown to substantially diminish a respondent's ability to defend.
Civil Penalties Other Than Administrative Assessment
Section 13.15 contains the general procedures by which the FAA may
seek a civil penalty, other than by the administrative assessment
procedures in Secs. 13.16 and 13.18. Under Sec. 13.15, the FAA may
compromise a penalty, but if no agreement is reached the FAA refers the
case to the United States Attorney General to prosecute and collect the
civil penalty.
Section 13.15 requires clarification. For instance, it indicates
that all civil penalties in which the amount in controversy is over
$50,000 must follow the procedures of that section. As discussed above,
however, some civil penalties over $50,000 (such as hazardous materials
violations) can be assessed administratively under Sec. 13.16. The FAA
proposes to clarify that Sec. 13.15 applies to all civil penalty
actions other than those in which the administrative procedures of
Secs. 13.16 and 13.18 are used.
Change in Position Titles
In a number of places in Part 13, authority to carry out various
investigation and enforcement functions is delegated to the Assistant
Chief Counsel for Regulations and Enforcement. The Regulations and
Enforcement Division, however, has been split into two divisions--the
Regulations Division and the Enforcement Division. The Assistant Chief
Counsel for each division has the responsibility and authority to carry
out various investigation and enforcement functions. Therefore, the FAA
proposes to change the authority references in Part 13 to the Assistant
Chief Counsel for Regulations and the Assistant Chief Counsel for
Enforcement.
Initial Regulatory Evaluation Summary
The FAA believes that the proposed procedural changes and minor
clarifications conform the existing procedural rules to amendments made
in the CPAA Act, and clarify existing rules. The changes do not, in
economic terms, alter the basic processes by which civil penalties are
assessed within the agency. For this reason, a full Regulatory
Evaluation is not warranted.
This regulatory evaluation examines the potential costs and
benefits of the proposed rule to amend Part 13.
The objectives of the proposed rule are to make clarifying changes,
and to disclose the procedures that implement the CPAA Act.
Benefits
The potential benefits of this proposed rule include clarifying the
rule and explaining in detail how portions of the CPAA Act would be
implemented. These proposed changes would provide potentially impacted
aviation parties (e.g., pilots, flight engineers, mechanics, and
repairmen) with a better understanding of the civil penalty process.
Costs
The potential costs of the proposed rule would be zero because it
consists only of procedural and clarifying changes to Part 13. The
proposed procedural changes would only explain how the requirements of
the CPAA Act and other statutes are implemented. The changes would not
impose new economic requirements on potentially impacted parties. The
clarification changes would further enhance the public's comprehension
of the civil penalty assessment process.
International Trade Impact Assessment
The proposed rule represents only procedural and clarifying
changes. These proposed changes would not impose any costs on either
U.S. or foreign operators. Therefore, a competitive trade disadvantage
would not be incurred by U.S. operators abroad or foreign operators in
the United States.
Initial Regulatory Flexibility Determination
In accordance with the Regulatory Flexibility Act of 1980, the FAA
certifies that the proposed rule would not have a significant economic
impact, positive or negative, on a substantial number of small entities
because the proposed rule would only address procedural and clarifying
changes. Such changes would not impose any cost burdens or result in
any cost savings.
Federalism Implications
This proposed amendment would not have substantial direct effects
on the States, on the relationship between the national government and
the States, or on the distribution of power and responsibilities among
the various levels of government. The respondents affected by the
proposed new procedures are private citizens, not state governments.
Therefore, in accordance with Executive Order 12612, preparation of a
Federalism Assessment is not warranted.
Paperwork Reduction Act
This proposed rule does contain no information collection requests
requiring approval of the Office of Management and Budget pursuant to
the Paperwork Reduction Act of 1980 (Pub. L. 96-511), there are no
requirements for information collection associated with this proposed
rule.
Conclusion
For the reasons discussed in the preamble, and based on the
findings of the Regulatory Flexibility Determination and the
International Trade Analysis, the FAA has determined that this proposed
regulation is not economically significant under Executive Order 12866.
However, historically there has been significant public interest in the
FAA's rules of practice in civil penalty assessment actions. For this
reason, the FAA has determined that this proposed regulation is a
significant regulatory action under the Executive Order. For the same
reason, this proposal is considered significant under DOT Regulatory
Policies and Procedures (44 FR 11034; February 26, 1979), due to the
public interest in rules of practice for civil penalty proceedings. In
addition, this proposal, the FAA certifies that this proposal, if
adopted, 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, Hazardous materials transportation,
Investigations, Law enforcement, Penalties.
The Proposed Amendments
Accordingly, the Federal Aviation Administration proposes to amend
part 13 of the Federal Aviation Regulations (14 CFR part 13), as
follows:
PART 13--INVESTIGATIVE AND ENFORCEMENT PROCEDURES
1. The authority citation for part 13 continues 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), 2216, 2218, 2219;
Public Law 102-345, 106 Stat. 923; Section 208, Public Law 102-581,
106 Stat. 4872; 18 U.S.C. 6002, 6004; 49 CFR 1.47.
2. Section 13.15 is amended by revising the title and the
introductory text of paragraph (a), removing the text of paragraph
(a)(2), redesignating paragraph (a)(3) as (a)(2), and revising
paragraph (c) introductory text, to read as follows:
Sec. 13.15 Civil penalties other than administrative assessment.
(a) General. This section applies to each action in which the FAA
seeks a civil penalty other than by administrative assessment
procedures under Secs. 13.16 or 13.18. These actions, and the penalties
that apply, include, but are not limited to, the following.
* * * * *
(b) * * *
(c) The Administrator may compromise any civil penalty proposed in
accordance with this section, before referral to the United States
Attorney General, or the delegate of the Attorney General, for
prosecution.
* * * * *
3. Section 13.16 is amended by revising the title and paragraphs
(a), (k), the introductory text of paragraphs (l) and (l)(1), and
paragraph (l)(1)(i), to read as follows:
Sec. 13.16 Civil penalties: Administrative assessment other than
against a person acting in the capacity of a pilot, flight engineer,
mechanic, or repairman.
(a) General. This section applies to each action in which the FAA
seeks to assess a civil penalty by administrative procedures, other
than an action against a person acting in the capacity of a pilot,
flight engineer, mechanic, or repairman under section 901(a)(3)(D) of
the Federal Aviation Act of 1958, as amended (49 U.S.C. App.
1471(a)(3)(D), section 2(a) of the FAA Civil Penalty Administrative
Assessment Act of 1992 (Pub. L. 102-345, 106 Stat. 923), and section
208 of the Airport and Airway Safety, Capacity, Noise Improvement, and
Intermodal Transportation Act of 1992 (Pub. L. 102-581, 106 Stat.
4872)). These actions and the penalties that apply include, but are not
limited to, the following:
(1) Authority to assess civil penalties.
(i) The FAA may assess a civil penalty for a violation occurring
before August 26, 1992, of the Federal Aviation Act of 1958, as
amended, in accordance with section 905 of the Federal Aviation Act of
1958 (49 U.S.C. App. 1475) in effect on July 31, 1992, and section 2(c)
of the FAA Civil Penalty Administrative Assessment Act of 1992 (Pub. L.
102-345, 106 Stat. 923).
(ii) The FAA may assess a civil penalty for a violation of title V
of the Federal Aviation Act of 1958 (which relates to registration of
aircraft and recordation of aircraft ownership) occurring before August
26, 1992, in accordance with section 901(a)(3) of the Federal Aviation
Act of 1958 (49 U.S.C. App. 1471(a)(3)) in effect on July 31, 1992, and
section 2(c) of the FAA Civil Penalty Administrative Assessment Act of
1992 (Pub. L. 102-345, 106 Stat. 923).
(iii) The FAA may assess a civil penalty against any person (other
than a person acting in the capacity of a pilot, flight engineer,
mechanic, or repairman) for a violation of title III, V, VI, or XII or
section 1101 or 1115(e)(2)(B) of the Federal Aviation Act of 1958, as
amended, or any rule, regulation, or order issued thereunder, occurring
on or after August 26, 1992, or section 901(c) or 901(d) of the Federal
Aviation Act of 1958, as amended, or any rule, regulation, or order
issued thereunder, occurring on or after October 31, 1992, in
accordance with section 901(a)(3) of the Federal Aviation Act of 1958,
as amended (49 U.S.C. App. 1471(a)(3), section 2(a) of the FAA Civil
Penalty Administrative Assessment Act of 1992 (Pub. L. 102-345, 106
Stat. 923), and section 208 of the Airport and Airway Safety, Capacity,
Noise Improvement, and Intermodal Transportation Act of 1992 (Pub. L.
102-581, 106 Stat. 4872)).
(iv) Violations of section 9308 or 9309 of the Airport Noise and
Capacity Act of 1990 (49 U.S.C. App. 2157 or 2158) or any regulation
issued to carry out such sections are subject to the same civil
penalties and procedures as are provided by title IX of the Federal
Aviation Act of 1958, as amended, for violations of title VI, in
accordance with section 9308(e) of the Airport Noise and Capacity Act
of 1990 (49 U.S.C. App. 2157(e)).
(v) Notwithstanding the provisions of paragraphs (a)(1)(i),
(a)(1)(ii), (a)(1)(iii), and (a)(1)(iv) of this section, the United
States District Courts have exclusive jurisdiction of any civil penalty
action initiated by the FAA, in accordance with section 901(a)(3)(C) of
the Federal Aviation Act of 1958, as amended (49 U.S.C. App.
1471(a)(3)(C)), and with sections 901(a)(3) and 905 of the Federal
Aviation Act of 1958 (49 U.S.C. App. 1471(a)(3) and 1475) in effect on
July 31, 1992, and section 2(c) of the FAA Civil Penalty Administrative
Assessment Act of 1992 (Pub. L. 102-345, 106 Stat. 923)--
(A) That involves an amount in controversy in excess of $50,000;
(B) That is an in rem action or in which an in rem action based on
the same violation has been brought;
(C) Regarding which an aircraft subject to lien has been seized by
the United States; and
(D) In which a suit for injunction relief based on the violation
giving rise to the civil penalty has also been brought.
(vi) The FAA may assess a civil penalty against any person who
knowingly commits an act in violation of the Hazardous Materials
Transportation Act, as amended, or any rule, regulation, or order
issued thereunder, in accordance with section 901(a)(1) of the Federal
Aviation Act of 1958, as amended, and section 110 of the Hazardous
Materials Transportation Act, as amended (49 U.S.C. App. 1809), and 49
CFR 1.47(k).
(vii) The FAA may assess a civil penalty against any person who
violates section 404(d) of the Federal Aviation Act of 1958, as amended
(relating to the prohibition against smoking on scheduled flights and
tampering with smoke alarm devices), or any rule, regulation, or order
issued thereunder, in accordance with sections 404(d) and 901(a)(1) of
the Federal Aviation Act of 1958, as amended (49 U.S.C. App. 1374(d)
and 1471(a)(1)), and 49 CFR 1.47(q).
(2) Amount of civil penalties.--(i) Except as otherwise provided by
statute, any person who violates any provision of title III, IV, V, VI,
VII, or XII or of section 1101, or 1115(e)(2)(B) of the Federal
Aviation Act of 1958, as amended, or any rule, regulation, or order
issued thereunder, is subject to a civil penalty of not to exceed
$1,000 for each such violation, in accordance with section 901(a)(1) of
the Federal Aviation Act of 1958, as amended (49 U.S.C. App.
1471(a)(1)).
(ii) Any person who operates aircraft for the carriage of persons
or property for compensation or hire (other than an airman serving in
the capacity of an airman) is subject to a civil penalty of not to
exceed $10,000 for each violation of title III, VI, or XII of the
Federal Aviation Act of 1958, as amended, or any rule, regulation, or
order issued thereunder, occurring after December 30, 1987, in
accordance with section 901(a)(1) of the Federal Aviation Act of 1958,
as amended (49 U.S.C. App. 1471(a)(1)).
(iii) Any person is subject to a civil penalty of not to exceed
$10,000 for each violation that relates to registration or recordation
of an aircraft under title V of the Federal Aviation Act of 1958, as
amended, in accordance with section 901(a)(1) of the Federal Aviation
Act of 1958, as amended (49 U.S.C. App. 1471(a)(1)).
(iv) Whoever imparts or conveys or causes to be imparted or
conveyed false information, knowing the information to be false and
under circumstances in which such information may reasonably be
believed, concerning an attempt or alleged attempt being made or to be
made, to do any act which would be a crime prohibited by subsection
(i), (j), (k), or (l) of section 902 of the Federal Aviation Act of
1958, as amended, is subject to a civil penalty of not more than
$10,000, in accordance with section 901(c) of the Federal Aviation Act
of 1958, as amended (49 U.S.C. App. 1471(c)).
(v) Except for certain law enforcement officers and other
authorized persons, whoever while aboard, or while attempting to board,
any aircraft in, or intended for operation in, air transportation or
intrastate air transportation, has on or about the person or the
person's property a concealed deadly or dangerous weapon, which is, or
would be, accessible to such person in flight is subject to a civil
penalty of not more than $10,000, in accordance with section 901(d) of
the Federal Aviation Act of 1958, as amended (49 U.S.C. App. 1471(d)).
(vi) Any person who knowingly commits an act in violation of the
Hazardous Materials Transportation Act, as amended, or any rule,
regulation, or order issued thereunder, is subject to a civil penalty
of not more than $10,000 for each violation occurring before November
16, 1990, or a civil penalty of not more than $25,000 and not less than
$250 for each violation occurring on or after November 16, 1990, in
accordance with section 901(a)(1) of the Federal Aviation Act of 1958,
as amended (49 U.S.C. App. 1471(a)(1)), and section 110 of the
Hazardous Materials Transportation Act, as amended (49 U.S.C. App.
1809). An order assessing a civil penalty for a violation under the
Hazardous Materials Transportation Act, or a rule, regulation, or order
issued thereunder, will be issued only after consideration of--
(A) The nature and circumstances of the violation;
(B) The extent and gravity of the violation;
(C) The person's degree of culpability;
(D) The person's history of prior violations;
(E) The person's ability to pay the civil penalty;
(F) The effect on the person's ability to continue in business; and
(G) Such other matters as justice may require.
(vii) Any person who violates section 404(d) of the Federal
Aviation Act of 1958, as amended, or any rule, regulation, or order
issued thereunder, is subject to a civil penalty of not more than the
amount specified in the Federal Aviation Act of 1958, as amended, for
each violation, in accordance with sections 404(d) and 901 of the
Federal Aviation Act of 1958, as amended (49 U.S.C. App. 1374(d) and
1471). Any passenger who tampers with, disables, or destroys any smoke
alarm device located in any lavatory aboard an aircraft engaged in air
transportation or intrastate air transportation is subject to a civil
penalty in accordance with section 404(d) and 901 of the Federal
Aviation Act of 1058, as amended, except that such civil penalty may be
imposed in an amount up to $2,000.
* * * * *
(k) Exhaustion of administrative remedies. A party may petition for
review only of a final decision and order of the Administrator to the
courts of appeals of the United States or the United States Court of
Appeals for the District of Columbia under section 1006 of the Federal
Aviation Act of 1958, as amended. An initial decision or order issued
by an administrative law judge that has not been appealed to the FAA
decisionmaker and an order compromising a civil penalty action may not
be appealed under section 1006 of the Federal Aviation Act of 1958, as
amended (49 U.S.C. App. 1486).
(l) Compromise. The FAA may compromise any civil penalty action
initiated in accordance with section 901 of the Federal Aviation Act of
1958, as amended, 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 to make no finding of violation. Under such
agreement, a compromise order is issued following the payment of the
agreed-upon amount or the signing of a promissory note. The compromise
order states the following:
(i) The person has paid a civil penalty or has signed a promissory
note providing for installment payments.
* * * * *
4. Part 13 is amended by adding a new Sec. 13.18 to read as
follows:
Sec. 13.18 Civil penalties: Administrative assessment against a person
acting in the capacity of a pilot, flight engineer, mechanic, or
repairman.
(a) General. This section applies to each action in which the FAA
seeks to assess a civil penalty by administrative procedures under
section 901(a)(3)(D) of the Federal Aviation Act of 1958, as amended
(49 U.S.C. App. 1471(a)(3)(D), section 2(a) of the FAA Civil Penalty
Administrative Assessment Act of 1992 (Pub. L. 102-345, 106 Stat. 923),
and section 208 of the Airport and Airway Safety, Capacity, Noise
Improvement, and Intermodal Transportation Act of 1992 (Pub. L. 102-
581, 106 Stat. 4872)) against a person acting in the capacity of a
pilot, flight engineer, mechanic, or repairman. These actions, and the
penalties that apply, include, but are not limited, to the following:
(1) Authority to assess civil penalties.--(i) The FAA may assess a
civil penalty against any person acting in the capacity of a pilot,
flight engineer, mechanic, or repairman for a violation of title III,
V, VI, or XII or section 1101, or 1115(e)(2)(B) of the Federal Aviation
Act of 1958, as amended, or any rule, regulation, or order issued
thereunder, occurring on or after August 26, 1992, in accordance with
section 901(a)(3) of the Federal Aviation Act of 1958, as amended (49
U.S.C. App. 1471(a)(3), section 2(a) of the FAA Civil Penalty
Administrative Assessment Act of 1992 (Pub. L. 102-345, 106 Stat. 923),
and section 208 of the Airport and Airway Safety, Capacity, Noise
Improvement, and Intermodal Transportation Act of 1992 (Pub. L. 102-
581, 106 Stat. 4872)).
(ii) Violations of section 9308 or section 9309 of the Airport
Noise and Capacity Act of 1990 (49 U.S.C. App. 2157 and 2158) or any
regulation issued to carry out such sections are subject to the same
civil penalties and procedures as are provided by title IX of the
Federal Aviation Act of 1958, as amended, for violations of title VI,
in accordance with section 9308(e) of the Airport Noise and Capacity
Act of 1990 (49 U.S.C. App. 2157(e)).
(iii) Notwithstanding the provisions of paragraphs (a)(1)(i) and
(a)(1)(ii) of this section, the United States District Courts have
exclusive jurisdiction of any civil penalty action initiated by the
Administrator, in accordance with section 901(a)(3)(C) of the Federal
Aviation Act of 1958, as amended (49 U.S.C. App. 1471(a)(3)(C))--
(A) That involves an amount in controversy in excess of $50,000;
(B) That is an in rem action or in which an in rem action is based
on the same violation has been brought;
(C) Regarding which an aircraft subject to lien has been seized by
the United States; and
(D) In which a suit for injunctive relief based on the violation
giving rise to the civil penalty has also been brought.
(2) Amount of civil penalties.--(i) Except as otherwise provided by
statute, any person who violates any provision of title III, IV, V, VI,
VII, or XII or of section 1101 or 1115(e)(2)(B) of the Federal Aviation
Act of 1958, as amended, or any rule, regulation, or order issued
thereunder, is subject to a civil penalty of not to exceed $1,000 for
each such violation, in accordance with section 901(a)(1) of the
Federal Aviation Act of 1958, as amended (49 U.S.C. App. 1471(a)(1)).
(ii) Any person is subject to a civil penalty of not to exceed
$10,000 for each violation that relates to registration or recordation
of an aircraft under title V of the Federal Aviation Act of 1958, as
amended, in accordance with section 901(a)(1) of the Federal Aviation
Act of 1958, as amended (49 U.S.C. App. 1471(a)(1)).
(b) Order of assessment. An order of assessment, which assesses a
civil penalty, may be issued for a violation described in paragraph (a)
of this section after notice and an opportunity to answer any charges
and be heard as to why such order should not be issued.
(c) Definitions. As used in this part, the following definitions
apply:
Flight engineer means a person who holds a flight engineer
certificate issued under part 63 of this chapter.
Mechanic means a person who holds a mechanic certificate issued
under part 65 of this chapter.
Person acting in the capacity of a pilot, flight engineer,
mechanic, or repairman means a person acting in such capacity, whether
or not that person holds the respective airman certificate issued by
the FAA.
Pilot means a person who holds a pilot certificate issued under
part 61 of this chapter.
Repairman means a person who holds a repairman certificate issued
under part 65 of this chapter.
(d) Delegation of authority. The authority of the Administrator,
under section 901 of the Federal Aviation Act of 1958, as amended, to
initiate and assess civil penalties for a violation of the Act, or a
rule, regulation, or order issued thereunder, is delegated to the Chief
Counsel, the Deputy Chief Counsel, the Assistant Chief Counsel for
Enforcement, the Assistant Chief Counsel for each region and center.
The authority of the Administrator to refer cases to the Attorney
General of the United States, or the delegate of the Attorney General,
for collection of civil penalties is delegated to the Chief Counsel,
the Deputy Chief Counsel, the Assistant Chief Counsel for Enforcement,
the Assistant Chief Counsel for Regulations, and the Assistant Chief
Counsel for each region and center.
(e) Notice of proposed assessment. A civil penalty action is
initiated by sending a notice of proposed assessment to the person
charged with a violation specified in paragraph (a) of this section.
The notice of proposed assessment contains a statement of the charges
and the amount of the proposed civil penalty. The person charged with a
violation may do the following:
(1) Submit the amount of the proposed civil penalty or an agreed-
upon amount, in which case either an order of assessment or a
compromise order will be issued in that amount.
(2) Answer the charges in writing.
(3) Submit a written request for an informal conference to discuss
the matter with an agency attorney and submit relevant information or
documents.
(4) Request that an order be issued in accordance with the notice
of proposed assessment so that the person charged may appeal to the
National Transportation Safety Board.
(f) Appeal. Any person who receives an order of assessment issued
under this section may appeal the order to the National Transportation
Safety Board. The appeal stays the effectiveness of the Administrator's
order.
(g) Failure to respond to notice of proposed assessment. An order
of assessment may be issued if the person charged with a violation
fails to respond to the notice of proposed assessment within 15 days
after receipt of that notice.
(h) Payment. A person shall pay a civil penalty by sending a
certified check or money order, payable to the Federal Aviation
Administration, to the office identified by the agency attorney. The
civil penalty must be paid within 30 days after service of the order of
assessment, unless an appeal is filed with the National Transportation
Safety Board. In such case, the civil penalty must be paid within 30
days after a final order of the Board or the Court of Appeals that
affirms the order of assessment in whole or in part.
(i) Collection of civil penalties. If a person does not pay a civil
penalty imposed by an order of assessment or a compromise order within
60 days after service of the order, the Administrator may take action
provided under the law to collect the penalty, including referring the
order to the United States Attorney General, or delegate of the
Attorney General, to begin proceedings to collect the civil penalty.
The action is brought in a United States District Court, under the
authority in section 903 of the Federal Aviation Act of 1958, as
amended (49 U.S.C. App. 1473).
(j) Exhaustion of administrative remedies. A party may petition for
review only of a final decision and order of the National
Transportation Safety Board to the courts of appeals of the United
States or the United States Court of Appeals for the District of
Columbia under section 1006 of the Federal Aviation Act of 1958, as
amended. An order of assessment that has not been appealed to the
National Transportation Board and an order compromising a civil penalty
action may not be appealed under section 1006 of the Federal Aviation
Act of 1958, as amended (49 U.S.C. App. 1486).
(k) Compromise. The FAA may compromise any civil penalty action
initiated in accordance with section 901 of the Federal Aviation Act of
1958, as amended, 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 to make no finding of violation. Under such
agreement, a compromise order is issued following the payment of the
agreed-upon amount or the signing of a promissory note. The compromise
order 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 violation; and
(iii) The compromise order 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 any civil
penalty proposed or assessed in an order.
5. Section 13.201 is amended by removing paragraph (c) and revising
paragraph (a) to read as follows:
Sec. 13.201 Applicability.
(a) this subpart applies to all cases in which a hearing has been
requested under Sec. 13.16.
* * * * *
6. Section 13.233 is amended by revising the introductory text of
paragraph (b), paragraphs (b)(1) and (b)(3), and the first sentence of
the introductory text in paragraph (j), to read as follows:
Sec. 13.233 Appeal from initial decision.
(a) * * *
(b) Issues on appeal. In any appeal from a decision of an
administrative law judge, the FAA decisionmaker considers only the
following issues:
(1) Whether each finding of fact is supported by a preponderance of
reliable, probative, and substantial evidence;
(2) * * *
(3) Whether the administrative law judge committed any prejudicial
errors that support the appeal.
* * * * *
(j) FAA decisionmaker's decision on appeal. The FAA decisionmaker
will review the record, the briefs on appeal, and the oral argument, if
any, when considering the issues on appeal. * * *
* * * * *
7. In Part 13 remove the words ``the Assistant Chief Counsel for
Regulations and Enforcement'' and add, in their place, the words ``the
Assistant Chief Counsel for Regulations, the Assistant Chief Counsel
for Enforcement'' in the following places:
(a) Sec. 13.15(b), (c)(1), and (c)(3);
(b) Sec. 13.16(c), first and second sentences;
(c) Sec. 13.19(b), the introductory text of (c), and the closing
text of (c);
(d) Sec. 13.21;
(e) Sec. 13.25(a) and (b);
(f) Sec. 13.71;
(g) Sec. 13.73;
(h) Sec. 13.81(a); and
(i) Sec. 13.202, definition of Agency attorney.
Issued in Washington, DC, on July 29, 1994.
Mark L. Gerchick,
Chief Counsel.
[FR Doc. 94-19120 Filed 8-4-94; 8:45 am]
BILLING CODE 4910-13-M
