Civil Penalty Assessment Procedures; Correction, 1812-1815 [05-528]

Agencies

• Federal Aviation Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 70, Number 7 (Tuesday, January 11, 2005)]
[Rules and Regulations]
[Pages 1812-1815]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-528]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 13

[Docket No. 27854; Amendment No. 13-32]
RIN 2120-AE84


Civil Penalty Assessment Procedures; Correction

AGENCY: Federal Aviation Administration (FAA) DOT.

ACTION: Final rule; correction and technical amendment.

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SUMMARY: This action makes minor editorial corrections to the final 
rule published in the Federal Register on October 4, 2004 (69 FR 59490) 
and technical corrections to one of the regulations it amended. That 
final rule adopted changed procedures concerning initiating and 
adjudicating an administratively assessed civil penalty against an 
individual acting as a pilot, flight engineer, mechanic, or repairman. 
Corrections include a quote and reference in the preamble, the removal 
of a redundant paragraph in the rule language, and several cross 
references to, and a typographical error in, redesignated paragraphs.

DATES: Effective January 11, 2005.

FOR FURTHER INFORMATION CONTACT: Joyce Redos, Attorney, telephone (202) 
267-3137.

SUPPLEMENTARY INFORMATION: The final rule, published on October 4, 2004 
(69 FR 59490), codified in Part 13 procedures relating to FAA civil 
penalty actions against a pilot, flight engineer, mechanic, or 
repairman, which are subject to review by the National Transportation 
Safety Board under 49 U.S.C. 46301(d)(5). The rule also made other 
minor modifications to the FAA's procedures for assessing civil 
penalties against persons other than pilots, flight engineers, 
mechanics or repairmen.
    This publication corrects a quote and a reference in the preamble 
and removes a redundant section in 14 CFR 13.14. In Sec.  13.14, 
paragraphs (a) and (b) are substantively identical, only set out 
differently. Paragraph (a) is, therefore, removed, and the paragraphs 
renumbered.
    This publication also corrects several cross references to, and one 
typographical error in, redesignated paragraphs in Sec.  13.16. The 
entire text of Sec.  13.16 is republished for clarity. The first 
sentence in paragraph (d) is changed to add a cross reference to 
paragraph (c). In paragraph (d)(2), the cross reference to paragraph 
(e)(2)(ii) is changed to paragraph (g)(2)(ii). In

[[Page 1813]]

paragraphs (g) and (g)(1)(ii), the cross references to paragraph (d)(2) 
are changed to paragraph (f)(2). In paragraph (h), the cross references 
to paragraph (d)(3) and paragraph (e)(2)(ii) are changed to paragraph 
(f)(3) and paragraph (g)(2)(ii), respectively. In paragraph (i), the 
cross references to paragraph (d)(3) and paragraph (e)(2)(ii) are also 
changed to paragraph (f)(3) and paragraph (g)(2)(ii), respectively. In 
the second sentence of program (m)(1), the word ``nor'' is changed to 
``or''

Corrections to Preamble

0
In final rule Federal Register Doc. 04-22276, published on October 4, 
2004 (69 FR 58490), make the following corrections.
0
1. On page 59492, in the second column, in the first sentence under 
Compromise Order remove the words ``Section 46301(i)(1)'' and correct 
to read ``Section 46301(f)(1)''.
0
2. On page 59493, in the third column, in the second line from the top, 
remove the word ``with'' and correct to read ``within''.

List of Subjects in 14 CFR Part 13

    Administrative practice and procedure, Air transportation, 
Investigations, Law enforcement, Penalties.

The Amendment

0
The Federal Aviation Administration corrects Part 13 of Title 14 of the 
Code of Federal Regulations to read as follows:

PART 13--INVESTIGATIVE AND ENFORCEMENT PROCEDURES

0
1. The authority citation for part 13 continues to read as follows:


    Authority:  18 U.S.C. 6002; 28 U.S.C. 2461 (note); 49 U.S.C. 
106(g), 5121-5124, 40113-40114, 44103-44106, 44702-44703, 44709-
44710, 44713, 46101-46110, 46301-46316, 46318, 46501-46502, 46504-
46507, 47106, 47111, 47122, 47306, 47531-47532; 49 CFR 1.47


Sec.  13.14  [Corrected]

0
2. In Sec.  13.14, remove paragraph (a) and redesignate paragraphs (b) 
through (d) as paragraphs (a) through (c).

0
3. Sec.  13.16 is revised to read as follows:


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

    (a) The FAA uses these procedures when it assesses a civil penalty 
against a person other than an individual acting as a pilot, flight 
engineer, mechanic, or repairman for a violation cited in 40 U.S.C. 
46301(d)(2) or 47531.
    (b) District court jurisdiction. Notwithstanding the provisions of 
paragraph (a) of this section, the United States district courts have 
exclusive jurisdiction of any civil penalty action initiated by the FAA 
for violations described in those paragraphs, under 49 U.S.C. 
46301(d)(4), if--
    (1) The amount in controversy is more than $50,000 for a violation 
committed by any person before December 12, 2003;
    (2) The amount in controversy is more than $400,000 for a violation 
committed by a person other than an individual or small business 
concern on or after December 12, 2003;
    (3) The amount in controversy is more than $50,000 for a violation 
committed by an individual or a small business concern on or after 
December 12, 2003;
    (4) The action is in rem or another action in rem based on the same 
violation has been brought;
    (5) The action involves an aircraft subject to a lien that has been 
seized by the Government; or
    (6) Another action has been brought for an injunction based on the 
same violation.
    (c) Hazardous materials violations. The FAA may assess a civil 
penalty against any person who knowingly commits an act in violation of 
49 U.S.C. chapter 51 or a regulation prescribed or order issued under 
that chapter, under 49 U.S.C. 5123 and 49 CFR 1.47(k). An order 
assessing a civil penalty for a violation under 49 U.S.C. chapter 51, 
or a rule, regulation, or order issued thereunder, is issued only after 
the following factors have been considered:
    (1) The nature, circumstances, extent, and gravity of the 
violation;
    (2) With respect to the violator, the degree of culpability, any 
history of prior violations, the ability to pay, and any effect on the 
ability to continue to do business; and
    (3) Such other matters as justice may require.
    (d) Order assessing civil penalty. An order assessing civil penalty 
may be issued for a violation described in paragraphs (a) or (c) of 
this section, or as otherwise provided by statute, after notice and 
opportunity for a hearing. A person charged with a violation may be 
subject to an order assessing civil penalty in the following 
circumstances:
    (1) An order assessing civil penalty may be issued if a person 
charged with a violation submits or agrees to submit a civil penalty 
for a violation.
    (2) An order assessing civil penalty may be issued if a person 
charged with a violation does not request a hearing under paragraph 
(g)(2)(ii) of this section within 15 days after receipt of a final 
notice of proposed civil penalty.
    (3) Unless an appeal is filed with the FAA decisionmaker in a 
timely manner, an initial decision or order of an administrative law 
judge shall be considered an order assessing civil penalty if an 
administrative law judge finds that an alleged violation occurred and 
determines that a civil penalty, in an amount found appropriate by the 
administrative law judge, is warranted.
    (4) Unless a petition for review is filed with a U.S. Court of 
Appeals in a timely manner, a final decision and order of the 
Administrator shall be considered an order assessing civil penalty if 
the FAA decisionmaker finds that an alleged violation occurred and a 
civil penalty is warranted.
    (3) Delegation of authority. (1) The authority of the Administrator 
under 49 U.S.C. 46301(d), 47531, and 5123, and 49 CFR 1.47(k) to 
initiate and assess civil penalties for a violation of those statutes 
or a rule, regulation, or order issued thereunder, is delegated to the 
Deputy Chief Counsel for Operations; the Assistant Chief Counsel for 
Enforcement; the Assistant Chief Counsel, Europe, Africa, and Middle 
East Area Office; the Regional Counsel; the Aeronautical Center 
Counsel; and the Technical Center Counsel.
    (2) The authority of the Administrator under 49 U.S.C. 5123, 49 CFR 
1.47(k), 49 U.S.C. 46301(d), and 49 U.S.C. 46305 to refer cases to the 
Attorney General of the United States, or the delegate of the Attorney 
General, for collection of civil penalties is delegated to the Deputy 
Chief Counsel for Operations; the Assistant Chief Counsel for 
Enforcement; Assistant Chief Counsel, Europe, Africa, and Middle East 
Area Office; the Regional Counsel; the Aeronautical Center Counsel; and 
the Technical Center Counsel.
    (3) The authority of the Administrator under 49 U.S.C. 46301(f) to 
compromise the amount of a civil penalty imposed is delegated to the 
Deputy Chief Counsel for Operations; the Assistant Chief Counsel for 
Enforcement; Assistant Chief Counsel, Europe, Africa, and Middle East 
Area Office; the Regional Counsel; the Aeronautical Center Counsel; and 
the Technical Center Counsel.
    (4) The authority of the Administrator under 49 U.S.C. 5123 (e) and 
(f) and 49 CFR 1.47(k) to compromise the amount of a civil penalty 
imposed is delegated to the Deputy Chief Counsel for Operations; the 
Assistant Chief Counsel for Enforcement; Assistant Chief Counsel, 
Europe, Africa, and Middle East Area Office; the Regional Counsel;

[[Page 1814]]

the Aeronautical Center Counsel; and the Technical Center Counsel.
    (f) Notice of proposed civil penalty. A civil penalty action is 
initiated by sending a notice of proposed civil penalty to the person 
charged with a violation or to the agent for services for the person 
under 49 U.S.C. 46103. A notice of proposed civil penalty will be sent 
to the individual charged with a violation or to the president of the 
corporation or company charged with a violation. In response to a 
notice of proposed civil penalty, a corporation or company may 
designate in writing another person to receive documents in that civil 
penalty action. The notice of proposed civil penalty contains a 
statement of the charges and the amount of the proposed civil penalty. 
Not later than 30 days after receipt of the notice of proposed civil 
penalty, the person charged with a violation shall--
    (1) Submit the amount of the proposed civil penalty or an agreed-
upon amount, in which case either an order assessing civil penalty or 
compromise order shall be issued in that amount;
    (2) Submit to the agency attorney one of the following:
    (i) Written information, including documents and witness 
statements, demonstrating that a violation of the regulations did not 
occur or that a penalty or the amount of the penalty is not warranted 
by the circumstances.
    (ii) A written request to reduce the proposed civil penalty, 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.
    (iii) A written request for an informal conference to discuss the 
matter with the agency attorney and to submit relevant information or 
documents; or
    (3) Request a hearing, in which case a complaint shall be filed 
with the hearing docket clerk.
    (g) Final notice of proposed civil penalty. A final notice of 
proposed civil penalty may be issued after participation in informal 
procedures provided in paragraph(f)(2) of this section or failure to 
respond in a timely manner to a notice of proposed civil penalty. A 
final notice of proposed civil penalty will be sent to the individual 
charged with a violation, to the president of the corporation or 
company charged with a violation, or a person previously designated in 
writing by the individual, corporation, or company to receive documents 
in that civil penalty action. If not previously done in response to a 
notice of proposed civil penalty, a corporation or company may 
designate in writing another person to receive documents in that civil 
penalty action. The final notice of proposed civil penalty contains a 
statement of the charges and the amount of the proposed civil penalty 
and, as a result of information submitted to the agency attorney during 
informal procedures, may modify an allegation or a proposed civil 
penalty contained in a notice of proposed civil penalty.
    (1) A final notice of proposed civil penalty may be issued--
    (i) If the person charged with a violation fails to respond to the 
notice of proposed civil penalty within 30 days after receipt of that 
notice; or
    (ii) If the parties participated in any informal procedures under 
paragraph (f)(2) of this section and the parties have not agreed to 
compromise the action or the agency attorney has not agreed to withdraw 
the notice of proposed civil penalty.
    (2) Not later than 15 days after receipt of the final notice of 
proposed civil penalty, the person charged with a violation shall do 
one of the following--
    (i) Submit the amount of the proposed civil penalty or an agreed-
upon amount, in which case either an order assessing civil penalty or a 
compromise order shall be issued in that amount; or
    (ii) Request a hearing, in which case a complaint shall be filed 
with the hearing docket clerk.
    (h) Request for a hearing. Any person charged with a violation may 
request a hearing, pursuant to paragraph (f)(3) or paragraph (g)(2)(ii) 
of this section, to be conducted in accordance with the procedures in 
subpart G of this part. A person requesting a hearing shall file a 
written request for a hearing with the hearing docket clerk (Hearing 
Docket, Federal Aviation Administration, 800, Independence Avenue, SW., 
Room 924A, Washington, DC 20591, Attention: Hearing Docket Clerk) and 
shall mail a copy of the request to the agency attorney. The request 
for a hearing may be in the form of a letter but must be dated and 
signed by the person requesting a hearing. The request for a hearing 
may be typewritten or may be legibly handwritten.
    (i) Hearing. If the person charged with a violation requests a 
hearing pursuant to paragraph (f)(3) or paragraph (g)(2)(ii) of this 
section, the original complaint shall be filed with the hearing docket 
clerk and a copy shall be sent to the person requesting the hearing. 
The procedural rules in subpart G of this part apply to the hearing and 
any appeal. At the close of the hearing, the administrative law judge 
shall issue, either orally on the record or in writing, an initial 
decision, including the reasons for the decision, that contains 
findings or conclusions on the allegations contained, and the civil 
penalty sought, in the complaint.
    (j) Appeal. Either party may appeal the administrative law judge's 
initial decision to the FAA decisionmaker pursuant to the procedures in 
subpart G of this part. If a party files a notice of appeal pursuant to 
Sec.  13.233 of subpart G, the effectiveness of the initial decision is 
stayed until a final decision and order of the Administrator have been 
entered on the record. The FAA decisionmaker shall review the record 
and issue a final decision and order of the Administrator that affirm, 
modify, or reverse the initial decision. The FAA decisionmaker may 
assess a civil penalty but shall not assess a civil penalty in an 
amount greater than that sought in the complaint.
    (k) Payment. A person shall pay a civil penalty by sending a 
certified check or money order, payable to the Federal Aviation 
Administration, to the agency attorney.
    (l) Collection of civil penalties. If an individual does not pay a 
civil penalty imposed by an order assessing civil penalty or other 
final order, the Administrator may take action provided under the law 
to collect the penalty.
    (m) Exhaustion of administrative remedies and judicial review. (1) 
Cases under the FAA statute. A party may petition for review only of a 
final decision and order of the FAA decisionmaker to the courts of 
appeals of the United States for the circuit in which the individual 
charged resides or has his or her principal place of business or the 
United States Court of Appeals for the District of Columbia Circuit, 
under 49 U.S.C. 46110, 46301(d)(6), and 46301(g). Neither an initial 
decision or order issues by an administrative law judge that has not 
been appealed to the FAA decisionmaker, nor an order compromising a 
civil penalty action, may be appealed under those sections.
    (2) Cases under the Federal hazardous materials transportation law. 
A party may seek judicial review only of a final decision and order of 
the FAA decisionmaker involving a violation of the Federal hazardous 
materials transportation law or a regulation or order issued thereunder 
to an appropriate district court of the United States, under 5 U.S.C. 
703 and 704 and 28 U.S.C. 1331. Neither an initial decision or order 
issued by an administrative law judge that has not been appealed to the 
FAA

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decisionmaker, nor an order compromising a civil penalty action, may be 
appealed under these sections.
    (n) Compromise. The FAA may compromise the amount of any civil 
penalty imposed under this section, under 49 U.S.C. 5123(e), 46031(f), 
46303(b), or 46318 at any time before referring the action to the 
United States Attorney General, or the delegate of the Attorney 
General, for collection.
    (1) An agency attorney may compromise any civil penalty action 
where a person charged with a violation agrees to pay a civil penalty 
and the FAA agrees not to make a finding of violation. Under such 
agreement, a compromise order is issued following the payment of the 
agreed-on amount or the signing of a promissory note. The compromise 
order states the following:
    (i) The person has paid a civil penalty or has signed a promissory 
note providing for installment payments.
    (ii) The FAA makes no finding of a violation.
    (iii) The compromise order shall 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 an civil 
penalty proposed in a notice, assessed in an order, or imposed in a 
compromise order.

    Issued in Washington, DC, on December 23, 2004.
Rebecca MacPherson,
Assistant Chief Counsel for Regulations.
[FR Doc. 05-528 Filed 1-10-05; 8:45 am]
BILLING CODE 4910-13-M