[Federal Register: January 11, 2005 (Volume 70, Number 7)]
[Rules and Regulations]
[Page 1812-1815]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11ja05-3]
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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
[[Page 1815]]
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