Rules of Practice in FAA Civil Penalty Actions, 8236-8238 [05-3113]

Agencies

• Federal Aviation Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 70, Number 33 (Friday, February 18, 2005)]
[Rules and Regulations]
[Pages 8236-8238]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-3113]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 13 and 14


Rules of Practice in FAA Civil Penalty Actions

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule; technical amendment.

-----------------------------------------------------------------------

SUMMARY: The FAA is amending the procedural regulations governing the 
assessment of civil penalties against persons other than individuals 
acting as pilots, flight engineers, mechanics or repairmen. The rules 
establish a clear separation of functions between those agency 
employees who prosecute civil penalty actions and those who advise the 
Administrator, acting as FAA decisionmaker, about appeals of decisions 
by Department of Transportation (DOT) administrative law judges (ALJs). 
Recent organizational changes in the Office of the Chief Counsel 
necessitate updating these regulations so they accurately reflect the 
Office's current structure and division of functions. We are also 
amending the rules to provide the FAA Civil Penalty Hearing Docket's 
new address, new instructions on filing of documents, and information 
about the availability of documents and FAA decisions via the Internet. 
We are amending the procedural rule governing appeals from initial 
decisions regarding applications for fees under the Equal Access to 
Justice Act (EAJA) to reinsert language that was inadvertently omitted 
during a previous revision.

DATES: This rule is effective on February 18, 2005.

FOR FURTHER INFORMATION CONTACT: Vicki Leemon, Office of the Chief 
Counsel, Adjudication Branch, 800 Independence Avenue, SW., Washington, 
DC 20591; telephone 202/385-8227.

SUPPLEMENTARY INFORMATION:

Background

    The Administrator may impose a civil penalty against a person other 
than an individual acting as a pilot, flight engineer, mechanic, or 
repairman, after notice and an opportunity for a hearing on the record, 
for violations cited in 49 U.S.C. 46301(d)(2) or 47531. 49 U.S.C. 
46301(d)(7)(A) and 47531. These violations, in general, involve 
aviation safety issues. Also, under 49 U.S.C. 5123 and 49 CFR 1.47(k), 
the Administrator may, after notice and an opportunity for a hearing, 
assess a civil penalty against any person who knowingly violates the 
Federal hazardous materials transportation law, 49 U.S.C. chapter 51, 
or any of its implementing regulations.
    The rules governing proceedings in these civil penalty cases are 
set forth in 14 CFR 13.16 and 14 CFR part 13, subpart G. Briefly, under 
these rules, these proceedings are conducted ``in-house'' as follows: 
(1) An ``agency attorney'' prosecutes a civil penalty case (14 CFR 
13.203(a)); (2) a DOT ALJ conducts the hearing and issues an initial 
decision (14 CFR 13.205); and (3) the Administrator, acting as the FAA 
decisionmaker, issues a decision resolving any appeal from an initial 
decision (14 CFR 13.233).
    To ensure that this process operates fairly and in accordance with 
the Administrative Procedure Act (APA), 5 U.S.C. 554(d), the FAA has 
issued rules requiring a separation of the functions performed by (1) 
``agency attorneys,'' who prosecute civil penalty actions, and (2) 
attorneys who advise the Administrator on appeals from initial 
decisions. Separating these functions insulates the Administrator from 
any advice or influence by an FAA employee engaged in the investigation 
or prosecution of civil penalty actions. It also insulates the 
prosecutors from possible influence by the advisers to the 
Administrator on appeals.

Changes in Position Titles in the Separation of Functions Rules

    On March 3, 2004, the FAA published Notice 1100.290, announcing the 
creation of two Deputy Chief Counsel positions: the Deputy Chief 
Counsel for Policy and Adjudication, and the Deputy Chief Counsel for 
Operations. As a result, it s no longer accurate to refer only to the 
``Deputy Chief Counsel'' in the rules that provide for the separation 
of functions in the Chief Counsel's Office, 14 CFR 13.202 (Definition 
of agency attorney) and 13.203.
    To describe accurately the current division of functions within the 
Chief Counsel's Office, we are revising the rules to add: (1) The 
Deputy Chief Counsel for Operations to the list of attorneys who 
prosecute civil penalty actions as specified in 14 CFR 13.202's 
definition of ``agency attorney,'' and (2) the Deputy Chief Counsel for 
Policy and Adjudication to 14 CFR 13.203(c)'s list of lawyers who 
advise the Administrator regarding the resolution of appeals. We are 
also revising 14 CFR 13.202 to add the Deputy Chief Counsel for Policy 
and Adjudication to the list of attorneys who may not prosecute civil 
penalty actions.
    Under the current organization of the Chief Counsel's Office, the 
Deputy Chief Counsel for Policy and Adjudication supervises the 
Assistant Chief Counsel for Regulations. The Assistant Chief Counsel 
for Regulations and members of her staff occasionally provide advice to 
agency attorneys, but are otherwise uninvolved in prosecuting civil 
penalty cases. The Deputy Chief Counsel for Policy and Adjudication 
does not and will not supervise the Assistant Chief Counsel for 
Regulations or any member of her staff in connection with providing 
advice to an agency attorney engaged in the prosecution of any civil 
penalty case. The Assistant Chief Counsel for

[[Page 8237]]

Regulations and the members of her staff do not and shall not consult 
or discuss with the Deputy Chief Counsel for Policy and Adjudication 
any issue on which their advice is sought by an agency attorney. Thus, 
the Deputy Chief Counsel for Policy and Adjudication will be kept ``out 
of the loop'' when either the Assistant Chief Counsel for Regulations 
or an attorney on her staff is consulted by agency attorneys 
prosecuting a civil penalty action. As a result, this division of 
functions within the Office of the Chief Counsel does not, and will 
not, contravene 14 CFR 13.202(3), which provides that an attorney 
supervised in a civil penalty action by an adviser to the Administrator 
in that civil penalty (or a factually related) action shall not 
prosecute that action.
    Also, to ensure that the Assistant Chief Counsel for Regulations 
and her staff do not prosecute civil penalty cases but limit their role 
to that of occasional advisors to agency attorneys, we are revising the 
definition of ``agency attorney'' in Section 13.202 to omit the 
Assistant Chief Counsel for Regulations, as well as attorneys in the 
Regulations Division. This revision will make the rule consistent with 
the current practice within the Office of the Chief Counsel. Also, this 
revision will make 14 CFR 13.202's list of attorneys who may prosecute 
civil penalty actions consistent with the Administrator's current 
delegation of authority in civil penalty actions in 14 CFR 13.16(e) to 
certain FAA attorneys. The Assistant Chief Counsel for Regulations and 
members of her staff are not included in the list of attorneys to whom 
the Administrator has delegated the authority to (1) Initiate actions 
and assess civil penalties; (2) refer cases to the United States 
Attorney General or a delegate of the Attorney General for collecting 
civil penalties; and (3) compromise the amount of a civil penalty.
    The position of the Special Counsel and Director of Civil Penalty 
Adjudications was eliminated several years ago. As a result, we are 
removing all references to this position in 14 CFR 13.202 and 13.203.

The Hearing Docket

    The FAA Civil Penalty Hearing Docket is now located in Room 2014 of 
the Wilbur Wright Building, 600 Independence Avenue, SW., Washington, 
DC 20591. Anyone hand-delivering a document for filing--or wishing to 
review any docket materials in person--should go to the Wilbur Wright 
Building at the above address. Packages sent by expedited courier to 
the Hearing Docket should be addressed as follows: Hearing Docket, 
Federal Aviation Administration, 600 Independence Avenue, SW., Wilbur 
Wright Building--Room 2014, Washington, DC 20591; Att: Hearing Docket 
Clerk, AGC-430.
    All envelopes and packages sent by U.S. Mail to individuals in the 
Wilbur Wright Building are processed by the FAA Headquarters' mail room 
staff located at 800 Independence Avenue, SW., Washington, DC 20591. 
Consequently, anyone using U.S. Mail to file a document should use the 
following address: Hearing Docket, Federal Aviation Administration, 800 
Independence Avenue, SW., Washington, DC 20591; Att: Hearing Docket 
Clerk, AGC-430, Wilbur Wright Building--Room 2014.
    Accordingly, this amendment revises the following regulations: 14 
CFR 13.16(h) (filing a request for hearing); 14 CFR 13.209 (filing an 
answer); 14 CFR 13.210 (filing documents, generally); 14 CFR 13.230(b) 
(examination and copying of the record); and 14 CFR 13.233 (filing 
appeals from initial decisions).

On-Line Accessibility of Documents Filed in the Hearing Docket

    The Secretary of Transportation directed the Office of the 
Secretary and eight of the DOT operating administrations, including the 
FAA, to consolidate their separate paper-based docket facilities into a 
single centralized facility and convert to an electronic image-based 
system. 61 FR 29282, June 10, 1996. Documents in non-security civil 
penalty cases (governed by the procedural rules in 14 CFR part 13, 
subpart G) in which the complaint was filed on or after December 1, 
1997, have been scanned into the Docket Management System (DMS). 63 FR 
19559, 19570-19571, April 20, 1998. (The Hearing Docket remains the 
official docket, and continues to retain the original documents.) The 
documents in these civil penalty cases are available on the Internet at 
https://dms.dot.gov. While the availability of these documents on the 
Internet was announced in the Federal Register on April 20, 1998, 14 
CFR part 13, subpart G was not amended to reflect the availability of 
documents on the DMS website. The FAA is adding a new 14 CFR 13.210(e) 
to inform the parties about the availability of documents through the 
DMS website. Also, we are revising 14 CFR 13.230 to notify members of 
the public that they may review and copy the documents in the record at 
the Docket Management Facility, located on the Plaza Level of the 
Nassif Building at the U.S. Department of Transportation, 400 Seventh 
Street, SW., Room PL-401, Washington, DC 20590.
    The decisions of the Administrator, indexes of the decisions, and 
other useful information are available on the FAA civil penalty 
adjudication Web site at https://www.faa.gov/agc/cpwebsite. The new 
Section 13.210(e) also describes the FAA civil penalty adjudication Web 
site.

Review by FAA Decisionmaker of an Initial Decision in an EAJA Action

    Part 14 of Title 14 of the Code of Federal Regulations applies to 
actions under the EAJA. Originally 14 CFR 14.28 provided that either 
the applicant or the FAA counsel may appeal from the initial decision 
issued by an ALJ regarding an application for fees under the EAJA in a 
civil penalty proceeding under subpart G of part 13 of the Federal 
Aviation Regulations. When 14 CFR 14.28 was revised in 1999, creating 
paragraphs (a) and (b), the phrase ``in accordance with subpart G of 
part 13 of the Federal Aviation Regulations, specifically 14 CFR 
13.233'' was inadvertently omitted from the new paragraph (a). 64 FR 
32936, June 18, 1999. This amendment reinserts the language. By 
reinserting this phrase, it will be clear to the parties that the 
procedural rules in 14 CFR part 13, subpart G, govern any appeal from 
an initial decision concerning a fee application under the EAJA when 
the underlying action was governed by 14 CFR part 13, subpart G.

Procedural Matters

    In general, under the APA, 5 U.S.C. 553, agencies must publish 
regulations for public comment and give the public at least 30 days 
notice before adopting regulations. There is an exception to these 
requirements if the agency for good cause finds that notice and public 
procedure are impracticable, unnecessary, or contrary to the public 
interest. In this case, the FAA finds that notice and comment 
requirements are unnecessary due to the administrative nature of the 
changes. The revisions simply update 14 CFR 13.202 and 13.203 regarding 
recent office changes. It is in the public interest that these 
revisions take effect promptly so that members of the public will 
understand how the FAA does business. Also, it is in the public 
interest that the revisions to 14 CFR 13.16, 13.209, 13.210, 13.230 and 
13.233 take effect promptly so that members of the public know how to 
file documents and how to gain access to the Hearing Docket. The 
revision to 14 CFR 14.28(a) merely reinserts language that was 
inadvertently omitted during a

[[Page 8238]]

previous revision. The amendments set forth in this notice do not 
affect the rights or duties of any regulated entity.

List of Subjects

14 CFR Part 13

    Administrative practice and procedure, Air transportation, Aviation 
safety, Hazardous materials transportation, Investigations, Law 
enforcement, Penalties.

14 CFR Part 14

    Claims, Equal access to justice, Lawyers, Reporting and 
recordkeeping requirements.

The Amendments

0
Accordingly, the Federal Aviation Administration amends parts 13 and 
14, chapter 1 of title 14, Code of Federal Regulations 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, 47112, 47122, 47306, 47531-47532; 49 CFR 1.47.


0
2. Amend Sec.  13.16 by revising the second sentence of paragraph (h) 
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.
* * * * *
    (h) * * * A person requesting a hearing shall file a written 
request for a hearing with the hearing docket clerk, using the 
appropriate address set forth in Sec.  13.210(a) of this part, and 
shall mail a copy of the request to the agency attorney. * * *
* * * * *

0
3. Amend the definition of ``Agency attorney'' in Sec.  13.202 by 
revising the introductory text and paragraphs (1) and (2) to read as 
follows:


Sec.  13.202  Definitions.

* * * * *
    Agency attorney means the Deputy Chief Counsel for Operations, the 
Assistant Chief Counsel, Enforcement, the Assistant Chief Counsel, 
Europe, Africa, and Middle East Area Office, each Regional Counsel, the 
Aeronautical Center Counsel, or the Technical Center Counsel, or an 
attorney on the staff of the Assistant Chief Counsel, Enforcement, the 
Assistant Chief Counsel, Europe, Africa, and Middle East Area Office, 
each Regional Counsel, the Aeronautical Center Counsel, or the 
Technical Center Counsel who prosecutes a civil penalty action. An 
agency attorney shall not include:
    (1) The Chief Counsel, the Deputy Chief Counsel for Policy and 
Adjudication, or the Assistant Chief Counsel for Litigation;
    (2) Any attorney on the staff of the Assistant Chief Counsel for 
Litigation;
* * * * *

0
4. Amend Sec.  13.203 by revising paragraph (c) to read as follows:


Sec.  13.203  Separation of functions.

* * * * *
    (c) The Chief Counsel, the Deputy Chief Counsel for Policy and 
Adjudication, and the Assistant Chief Counsel for Litigation, or an 
attorney on the staff of the Assistant Chief Counsel for Litigation 
will advise the FAA decisionmaker regarding an initial decision or any 
appeal of a civil penalty action to the FAA decisionmaker.

0
5. Amend Sec.  13.209 by revising the first sentence of paragraph (b) 
to read as follows:


Sec.  13.209  Answer.

* * * * *
    (b) Filing and address. A person filing an answer shall personally 
deliver or mail the original and one copy of the answer for filing with 
the hearing docket clerk, not later than 30 days after service of the 
complaint to the Hearing Docket at the appropriate address set forth in 
Sec.  13.210(a) of this subpart. * * *
* * * * *
0
6. Amend Sec.  13.210 by revising paragraph (a) and adding paragraph 
(e) to read as follows:


Sec.  13.210  Filing of documents.

    (a) Address and method of filing. A person tendering a document for 
filing shall personally deliver or mail the signed original and one 
copy of each document to the Hearing Docket using the appropriate 
address:
    (1) If delivery is in person, or via expedited courier service: 
Federal Aviation Administration, 600 Independence Avenue, SW., Wilbur 
Wright Building--Room 2014, Washington, DC 20591; Att: Hearing Docket 
Clerk, AGC-430.
    (2) If delivery is via U.S. Mail: Federal Aviation Administration, 
800 Independence Avenue, SW., Washington, DC 20591; Att: Hearing Docket 
Clerk, AGC-430, Wilbur Wright Building--Room 2014.
* * * * *
    (e) Internet accessibility of documents filed in the Hearing 
Docket. (1) Unless protected from public disclosure by an order of the 
ALJ under Sec.  13.226, all documents filed in the Hearing Docket are 
accessible through the DOT's Docket Management System (DMS): https://
dms.dot.gov. To access a particular case file, use the DMS number 
assigned to the case.
    (2) Decisions and orders issued by the Administrator in civil 
penalty cases, as well as indexes of decisions and other pertinent 
information are available through the FAA civil penalty adjudication 
Web site at https://www.faa.gov/agc/website.
0
7. Amend Sec.  13.230 by removing the first sentence of paragraph (b) 
and adding two sentences in its place to read as follows:


Sec.  13.230  Record.

* * * * *
    (b) Examination and copying of record. Any person may examine the 
record at the Hearing Docket, Federal Aviation Administration, 600 
Independence Avenue, SW., Wilbur Wright Building--Room 2014, 
Washington, DC 20591. Documents may also be examined and copied at the 
Docket Management Facility, Department of Transportation, 400 Seventh 
Street, SW., Room PL-401, Washington, DC 20590. * * *

PART 14--RULES IMPLEMENTING THE EQUAL ACCESS TO JUSTICE ACT OF 1980

0
1. The authority citation for part 14 continues to read as follows:

    Authority: 5 U.S.C. 504; 49 U.S.C. 106(f), 40113, 46104 and 
47122.


0
2. Amend Sec.  14.28(a) by revising the first sentence to read as 
follows:


Sec.  14.28  Review by FAA decisionmaker.

    (a) In proceedings other than those under part 17 of this chapter 
and the AMS, either the applicant or the FAA counsel may seek review of 
the initial decision on the fee application in accordance with subpart 
G of part 13 of this chapter, specifically Sec.  13.233. * * *
* * * * *

    Issued in Washington, DC on February 10, 2005.
Rebecca MacPherson,
Assistant Chief Counsel for Regulations
[FR Doc. 05-3113 Filed 2-17-05; 8:45 am]
BILLING CODE 4910-13-M