Civil Penalty Assessment Procedures; Proposed Rule DEPARTMENT OF TRANSPORTATION

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