59490 Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 

1On December 12, 2003, Public Law 108–176, 

‘‘Vision 100—Century of Aviation Reauthorization 

Act,’’ (Vision 100) was signed into law. Among 

other things, Vision 100 modified the maximum 

amount of civil monetary penalties the FAA can 

administratively assess under 49 U.S.C. 46301(d). 

For violations occurring on or after December 12, 

2003, the FAA now has authority to assess 

administratively a maximum civil penalty of 

$400,000 against persons other than individuals or 

small business concerns. For individuals and small 

business concerns, the maximum civil penalty the 

FAA can assess administratively remains $50,000.

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration 

14 CFR Part 13

[Docket No. 27854; Amendment No. 13–32] 

RIN 2120–AE84

Civil Penalty Assessment Procedures

AGENCY: Federal Aviation 

Administration, DOT.

ACTION: Final rule.

SUMMARY: The Federal Aviation 

Administration (FAA) is adopting 

procedures for administratively 

assessing civil penalties for violations of 

the laws and regulations the agency 

enforces. These procedures pertain to 

initiating and adjudicating a civil 

penalty against an individual acting as 

a pilot, flight engineer, mechanic, or 

repairman. These procedures are needed 

because the National Transportation 

Safety Board now reviews these civil 

penalty actions and the FAA’s existing 

rules for civil penalty actions are not 

sufficiently flexible to adequately 

address the procedural differences that 

review in a different forum entails. This 

final rule also makes other minor 

modifications to the FAA’s procedures 

for assessing civil penalties against 

persons other than individuals acting as 

pilots, flight engineers, mechanics, or 

repairmen.

DATES: Effective Date: This rule is 

effective on November 3, 2004.

FOR FURTHER INFORMATION CONTACT:

Joyce Redos, Attorney, Enforcement 

Division (AGC–300), Federal Aviation 

Administration, 800 Independence 

Ave., SW., Washington, DC 20591; 

telephone (202) 267–3137.

SUPPLEMENTARY INFORMATION: 

Availability of This Action 

You can get an electronic copy of this 

action using the Internet by: 

(1) Searching the Department of 

Transportation’s electronic Docket 

Management System (DMS) Web page at 

http://dms.dot.gov/search;

(2) Visiting the Office of Rulemaking’s 

Web page at http://www.faa.gov/avr/

arm/index.cfm; or 

(3) Accessing the Government 

Printing Office’s Web page at http://

www.access.gpo.gov/su_docs/aces/

aces140.html.

You can also get a copy of this action 

if you submit a request to the Federal 

Aviation Administration, Office of 

Rulemaking, ARM–1, 800 Independence 

Avenue, SW., Washington, DC 20591, or 

by calling (202) 267–9680. Make sure to 

identify the docket number, notice 

number, or amendment number of this 

rulemaking. 

Anyone is able to search the 

electronic form of all comments 

received into any of our dockets by the 

name of the individual submitting the 

comment (or signing the comment, if 

submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register

published on April 11, 2000 (volume 65, 

number 70: pages 19477–78), or you 

may visit http://dms.dot.gov.

Small Business Regulatory Enforcement 

Fairness Act 

The Small Business Enforcement 

Fairness Act (SBREFA) of 1996 requires 

FAA to comply with small entity 

requests for information or advice about 

compliance with statutes and 

regulations within its jurisdiction. If you 

are a small entity and you have a 

question regarding this document, you 

may contact a local FAA official or the 

person listed under FOR FURTHER

INFORMATION CONTACT. You can find out 

more about SBREFA on the Internet at 

http://www.faa.gov/avr/arm/sbrefa.cfm

or by e-mailing us at AWA–

SBREFA@faa.gov.

Background 1

The FAA has authority to assess civil 

penalties for certain violations of the 

FAA’s governing statute and regulations 

or orders issued under that statute as 

well as other statutes, regulations, or 

orders the agency enforces. This 

authority formerly covered all civil 

penalty actions involving a civil penalty 

of $50,000 or less. 

In 49 U.S.C. 46301(d)(5), Congress 

transferred the authority to review the 

FAA’s administrative civil penalty 

actions against individuals acting as 

pilots, flight engineers, mechanics, or 

repairmen to the National 

Transportation Safety Board (NTSB). 

Proceedings against individuals acting 

as pilots, flight engineers, mechanics 

and repairmen, therefore, are 

adjudicated under the NTSB’s Rules of 

Practice in Air Safety Proceedings, 

located in 49 CFR part 821. 

This rulemaking adopts procedures 

under a new section of the FAA’s 

regulations, 14 CFR 13.18, for initiating 

civil penalty actions adjudicated by the 

NTSB. It amends existing 14 CFR 13.16 

to exclude actions covered under new 

§ 13.18. It adds a new section, 14 CFR 

13.14, that lists those provisions that, if 

violated, may result in a civil penalty 

being sought or assessed 

administratively. Section 13.14(c) also 

states that the amounts of civil penalties 

are periodically adjusted for inflation 

under the formula set by Congress in 28 

U.S.C. 2461 note. We implemented this 

formula in 14 CFR part 13, subpart H. 

This regulation also makes other 

clarifying changes to part 13. 

Although the FAA published the 

notice of proposed rulemaking (NPRM) 

almost 10 years ago, the final rule 

adopts procedural rules and publishes 

informational regulations. Therefore, 

another opportunity for notice and 

comment is not warranted. 

Disposition of Comments 

Three commenters responded to the 

NPRM, which the FAA issued on July 

29, 1994 (59 FR 40192, Aug. 5, 1994). 

The first commenter questioned two 

aspects of the NPRM. Those aspects 

related to (1) which forum has 

jurisdiction of security screening cases 

involving pilots and (2) why the penalty 

for disrupting a flight crewmember’s 

duties is less than the penalty for 

tampering with a smoke alarm device. 

The first comment is moot because 

Congress transferred responsibility for 

aviation security to the Department of 

Homeland Security. The second 

comment is beyond the scope of the 

NPRM because Congress set the penalty 

amounts in question, not the agency. In 

any event, in 49 U.S.C. 46318, Congress 

set a maximum penalty of $25,000 for 

certain violations involving interference 

with a crewmember. 

The second commenter raised a 

number of concerns about the fairness of 

the proposed rule and the FAA’s 

authority to assess civil penalties. All 

but one of this commenter’s concerns 

were unresponsive to, or otherwise 

beyond the scope of, the rulemaking. 

The remaining comment was ‘‘[t]he way 

the system looks now, the first a person 

hears of a problem is when the 

government sends him/her a notice 

specifying a violation of the FARs with 

the amount they owe the gov[ernmen]t. 

That just is [not] fair and is not right.’’ 

The commenter seemingly 

misunderstood the intent of the notice 

of proposed assessment. Contrary to the 

comment, the notice of proposed 

assessment does not constitute a finding 

of a violation. Nor does the notice 

impose a civil penalty. The notice of 

proposed assessment gives an alleged 

Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 59491

violator notice of a violation being 

charged and the proposed sanction for 

that violation. Following the notice of 

proposed assessment, an alleged 

violator has an opportunity to speak 

with the agency informally and present 

evidence on the alleged violator’s behalf 

before the FAA issues an order of 

assessment. 

The third commenter raised the issue 

of stale complaint, arguing that the 

NTSB’s 6-month stale complaint rule for 

certificate actions should apply to civil 

penalty actions against pilots, flight 

engineers, mechanics and repairmen. 

This comment is moot because the 

NTSB has adopted a rule extending its 

6-month stale complaint rule to civil 

penalty actions against pilots, flight 

engineers, mechanics and repairmen. 59 

FR 59050, 59051–59052 (Nov. 24, 1994). 

Discussion of the Rule 

Interpretation of ‘‘Individual Acting as a 

Pilot, Flight Engineer, Mechanic, or 

Repairman’’

In the NPRM, the FAA proposed an 

interpretation of the phrase ‘‘a person 

acting in the capacity of a pilot, flight 

engineer, mechanic or repairman.’’

When Congress recodified the FAA’s 

statute, it changed this phrase to ‘‘an 

individual acting as a pilot, flight 

engineer, mechanic or repairman’’. 

Congress intended no substantive 

change. The only comment directed at 

the definition outlined in the NPRM 

was the objection that the proposed 

definition would allow the FAA 

decisionmaker to review security 

screening violations involving pilots. As 

stated above, that objection is moot due 

to the transfer of aviation security 

functions to the Department of 

Homeland Security. 

The FAA interprets the phrase ‘‘an 

individual acting as a pilot, flight 

engineer, mechanic, or repairman’’ to 

refer to an individual who has engaged 

in conduct that involves the exercise of 

the privileges and duties of these 

certificates, regardless of whether that 

individual holds a valid pilot, flight 

engineer, mechanic, or repairman 

certificate.

In adopting this interpretation, the 

FAA considered whether an individual 

must hold a relevant certificate to obtain 

NTSB review under 49 U.S.C. 

46301(d)(5). The FAA concluded that 

holding one of these certificates is not 

determinative because the phrase 

‘‘acting as’’ describes the alleged 

violator in terms of the activities he or 

she performs, not the alleged violator’s 

legal status. Therefore, it is the nature of 

the activity involved in the violation 

that determines whether the case falls 

within the scope of 49 U.S.C. 

46301(d)(5). 

Furthermore, if the Congress had 

intended to limit NTSB review of civil 

penalty actions to those against 

certificate holders, it would have 

drafted section 46301(d)(5)(A) 

differently. For example, section 

46301(a)(5) distinguishes between civil 

penalty liability of an ‘‘individual’’ and 

of an ‘‘airman serving as an airman.’’

The Congress’ failure to use more 

specific language is evidence of its 

intent that ‘‘individual acting as a pilot, 

flight engineer, mechanic, or 

repairman’’ be given a noticeably 

broader construction than ‘‘holder.’’

The term ‘‘acting’’ may include the 

failure to act. For example, acting as a 

pilot, flight engineer, mechanic, or 

repairman includes failing to surrender 

a pilot, flight engineer, mechanic, or 

repairman certificate when it has been 

revoked, as required by 14 CFR 61.19(f), 

63.15(c), or 65.15(c). As this example 

shows, the privileges and duties under 

the FAA’s regulations extend beyond 

actually flying an aircraft or performing 

maintenance on an aircraft. Therefore, 

the NTSB also reviews these cases. 

In the NPRM, the FAA proposed that 

‘‘* * * any civil penalty action for 

violations by a person acting in the 

capacity of a flight instructor would be 

heard under the NTSB procedures.’’ (59 

FR 40193.) Even though the FAA 

specifically welcomed comments on the 

interpretation of ‘‘person acting in the 

capacity of a pilot * * *,’’ the FAA 

received no comments on the flight 

instructor aspect of the interpretation. 

On further review, the statement in the 

NPRM would be, in some instances, 

inconsistent with the proposition that 

‘‘* * * [i]t is the nature of the activity 

that triggers the applicability of’’ NTSB 

review. For example, a flight instructor 

usually is not exercising the privileges 

of a pilot certificate when the flight 

instructor gives ground training or 

executes or maintains pilot records. (See

14 CFR part 61, subpart H.) In addition, 

49 U.S.C. 46301(d) does not refer to 

‘‘acting as flight instructor.’’ Therefore, 

NTSB review in cases involving a flight 

instructor certificate will arise only 

when the violation involves his or her 

exercise of pilot privileges. 

An inspection authorization differs 

from a flight instructor certificate in that 

it is more like a rating on a mechanic 

certificate than a separate certificate. 

Both the NTSB and its predecessor, the 

Civil Aeronautics Board, have 

recognized the inspection authorization 

as a rating on the mechanic certificate. 

Administrator v. Luster, NTSB Order 

No. EA–3974, pp. 3–4 (Aug. 24, 1993); 

Gene Rawdon, 31 CAB 1167, 1168 (Sep. 

9, 1960). The NTSB therefore reviews 

civil penalty actions involving an 

inspection authorization not because 

one must hold a mechanic certificate to 

obtain an inspection authorization, but 

because exercising the privileges and 

duties of the inspection authorization 

results in one exercising the privileges 

and duties of the mechanic certificate. 

The mere fact that an individual holds 

a pilot, flight engineer, mechanic, or 

repairman certificate is not sufficient to 

vest jurisdiction in the NTSB to review 

a case. If an alleged violator is not 

exercising the privileges associated with 

one of these certificates in connection 

with the alleged violation, then the case 

will be reviewed by the FAA 

decisionmaker under section 

46301(d)(7) even though the alleged 

violator happens to hold one or more of 

these certificates. For example, the FAA 

decisionmaker would review a case 

involving a passenger who interferes 

with a cabin or flight crewmember even 

if the passenger holds a pilot certificate 

because the passenger’s conduct did not 

involve the exercise of the privileges of 

the passenger’s pilot certificate. 

Procedures 

New 14 CFR 13.18 implements the 

statutory requirements for initiating 

cases that the NTSB reviews. Section 

46301(d)(5)(A) of the FAA’s statute 

provides that the Administrator may 

issue an order imposing a civil penalty 

against an individual acting as a pilot, 

flight engineer, mechanic, or repairman 

only after (1) advising the individual of 

the charges or any reason relied on by 

the FAA for the proposed action, and (2) 

providing the individual with an 

opportunity to answer the charges. Once 

the Administrator has issued an order, 

section 46301(d)(5)(B) authorizes the 

individual against whom it was issued 

to appeal the order to the NTSB. In 

addition, section 46301(d)(5)(D) 

provides that filing an appeal to the 

NTSB stays the Administrator’s order. 

These procedural requirements are 

substantially similar to the procedural 

requirements set forth in 49 U.S.C. 

44709(c) through (e) of the FAA’s statute 

for non-emergency certificate actions. 

In preparing the final rule, we have 

reorganized the subsections of new 

§ 13.18 to reflect as closely as possible 

the actual step-by-step processing of a 

civil penalty action. 

Applicability 

New 14 CFR 13.18(a)(1) states the 

statutory authority for administratively 

assessing a civil penalty against an 

individual acting as a pilot, flight 

engineer, mechanic, or repairman. 

Under 49 U.S.C. 46301(d)(5)(B), the 

59492 Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 

NTSB reviews cases falling within the 

scope of 14 CFR 13.18. Section 

13.18(a)(2) states when a United States 

district court has exclusive jurisdiction 

of a civil penalty action against a pilot, 

flight engineer, mechanic, or repairman. 

Definitions and Delegations 

The FAA did not receive any 

comments on proposed § 13.18 (b) and 

(d), which contained definitions and 

delegations of authority, respectively. 

With some minor changes to paragraph 

(d) to improve clarity, including 

separating the delegations into 

numbered subparagraphs, these sections 

are adopted as § 13.18(b) and (c), 

respectively. 

Notice and Informal Process 

Under new § 13.18(d), the FAA 

initiates a civil penalty action against an 

individual acting as a pilot, flight 

engineer, mechanic, or repairman by 

issuing a notice of proposed assessment. 

The notice contains a statement of the 

charges and the amount of the proposed 

civil penalty. The notice also sets forth 

the procedures for responding to the 

notice. Subsections 13.18(d)(1)–(4) state 

the specific options for responding to 

the notice. The options are (1) 

submitting the amount of proposed civil 

penalty, (2) answering the charges in 

writing, (3) submitting a written request 

for an informal conference with an 

agency attorney and submitting relevant 

information or documents, or (4) 

requesting that an order be issued in 

accordance with the notice of proposed 

assessment so that the individual 

charged may appeal to the NTSB. The 

notice of proposed assessment and the 

opportunity to respond using informal 

procedures satisfy the statutory 

requirement in section 46301(d)(5)(A) of 

the FAA’s statute to advise alleged 

violators of the charges and give them 

an opportunity to answer. 

Order of Assessment

After the informal response 

procedures outlined above are 

completed, the FAA considers all 

information the alleged violator has 

supplied. If the parties have not agreed 

to resolve the case, the FAA will issue 

an order of assessment under new 

§ 13.18(f). Before issuing the order of 

assessment, the FAA considers all the 

information available in the record at 

that point. The individual charged may 

then appeal the order of assessment to 

the NTSB, as provided in 14 CFR 

13.18(g). These procedures satisfy the 

requirements of 49 U.S.C. 

46301(d)(5)(B). As stated previously, 

once the individual charged has filed a 

notice of appeal with the NTSB, the case 

is subject to the NTSB’s Rules of 

Practice in Air Safety Proceedings, 

located in 49 CFR part 821. 

Under new § 13.18(e), the FAA may 

also issue an order of assessment if the 

individual charged does not respond to 

the notice of proposed assessment 

within 15 days. Furthermore, if the 

individual does not file a notice of 

appeal with the NTSB within the time 

provided by the NTSB’s rules of 

practice, the order of assessment 

becomes final. 

Appeal to the NTSB 

Under 14 CFR 13.18(g), the alleged 

violator may file an appeal from an 

order of assessment with the NTSB. A 

timely appeal to the NTSB stays the 

effectiveness of the order of assessment 

until the NTSB issues a final decision in 

the matter, as required by 49 U.S.C. 

46301(d)(5)(D). 

Exhaustion of Administrative Remedies 

Section 13.18(h) states the provision 

for judicial review of a final decision of 

the NTSB provided for in 49 U.S.C. 

46301(d)(6). Appeal is to a United States 

court of appeals for the circuit in which 

the individual charged resides or has his 

or her principal place of business or to 

the United States Court of Appeals for 

the District of Columbia Circuit. Section 

13.18(h) also specifies, based on 49 

U.S.C. 46110(d), that the 

Administrator’s order of assessment is 

not a final order for the purpose of 

judicial review unless it has first been 

appealed to the NTSB. 

Compromise Orders 

Section 46301(i)(1) of the FAA’s 

statute authorizes the Secretary of 

Transportation to compromise the 

amount of a civil penalty. The Secretary 

has delegated this authority to the 

Administrator in 49 CFR 1.47. New 

§ 13.18(i)(1) provides agency attorneys 

with the authority to compromise civil 

penalty assessment actions initiated 

under 49 U.S.C. 46301(d)(5) against an 

individual acting as a pilot, flight 

engineer, mechanic, or repairman with 

no finding of a violation. New 

§ 13.18(i)(2) authorizes agency attorneys 

to compromise the amount of a civil 

penalty proposed or assessed in an 

order with a finding of a violation as 

well. 

Existing § 13.16(l)(1), on which 

§ 13.18(i) is modeled, does not 

specifically require the alleged violator 

either to pay the civil penalty or sign a 

promissory note before a compromise 

order is issued. As stated in the NPRM, 

the FAA has experienced problems with 

this approach. In some cases, when the 

FAA did not receive payment before it 

issued the compromise order, the 

alleged violator has subsequently failed 

to pay the civil penalty. Also, if the 

person has not signed a promissory note 

agreeing to the amount of the penalty 

and a payment schedule, a risk exists 

that the person will dispute whether the 

amount in the compromise order is the 

amount the parties agreed on, 

complicating collection procedures. 

Debt collection procedures often are 

time-consuming and costly, and may 

not result in recovery of the full amount 

of the debt. 

To avoid these problems, the FAA 

proposed in the NPRM that it will not 

issue a compromise order under new 

§ 13.18(i) unless the alleged violator has 

prepaid the civil penalty or has signed 

a promissory note providing for 

installment payments. The FAA did not 

receive any comments on this issue. We 

are therefore adopting these changes as 

proposed. The FAA also amends current 

§ 13.16(l) to incorporate these changes; 

it is redesignated as § 13.16(n). 

Payment of Civil Penalties 

Under 14 CFR 13.18(j), the individual 

charged must pay the civil penalty 

assessed in an order of assessment 

within 30 days, unless the individual 

has filed a timely notice of appeal with 

the NTSB. In cases that have been 

appealed, § 13.18(j) further requires the 

individual charged to pay the civil 

penalty within 30 days after a final 

order of the Board or the Court of 

Appeals affirms the order of assessment 

in whole or in part. 

Debt Collection 

The NPRM included a provision, now 

located in new § 13.18(k), for collection 

of civil penalties. That proposed 

subsection was copied nearly verbatim 

from current 14 CFR 13.16(j). The 

provision was not discussed in the 

preamble to the NPRM. In reviewing the 

FAA’s actual debt collection 

procedures, however, it appears that 

§ 13.16(j), and therefore proposed 

§ 13.18(i), do not reflect all methods the 

FAA may use to collect a delinquent 

debt. Following the enactment of the 

Debt Collection Act of 1996, the FAA 

generally transfers delinquent debts to 

the Department of the Treasury for 

collection. In addition, we have deleted 

reference to failure to pay within 60 

days. The timeframe for payment after 

which a debt becomes delinquent is 

subject to change. In addition, an order 

of assessment, like an order assessing 

civil penalty, states when the debt 

imposed by the order may become 

delinquent and, if a delinquency notice 

is issued, it states what actions to 

recover the debt may be taken and 

Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 59493

timeframe for taking them. Therefore, 

the FAA has determined that both 

current §§ 13.16(j) and 13.18(k) should 

be revised to reflect more generally the 

agency’s practice to use all methods 

under the law to collect delinquent 

debts, which includes referring a case to 

the United States Attorney General for 

collection. Current § 13.16(j) is 

redesignated as § 13.16(l). 

Changes to 14 CFR Part 13, Subpart G

The preamble to the NPRM proposed 

amending certain sections of the Rules 

of Practice in FAA Civil Penalty 

Actions. The FAA did not receive any 

comments on the proposed 

amendments. The FAA therefore adopts 

these amendments as proposed in the 

NPRM. 

Civil Penalties Other Than 

Administrative Assessment 

The FAA did not receive any 

comments on the proposed revision of 

the heading for 14 CFR 13.15. We are 

therefore adopting it as proposed. 

Conforming Changes in the Final Rule 

That Were Not Proposed in the NPRM 

Since the NPRM was issued, Congress 

has recodified the Federal 

transportation law, increased the 

amounts of civil penalties available for 

certain violations, provided a 

requirement for agencies to periodically 

adjust for inflation the amount of the 

minimum and maximum civil penalties 

for statutes the agencies enforce, and 

added provisions to the FAA’s statute 

that include new authority to seek or 

administratively assess civil penalties. 

The FAA’s Office of the Chief Counsel 

has also undergone certain 

organizational changes, including the 

creation of a new Deputy Chief Counsel 

for Operations position. We are 

conforming §§ 13.15, 13.16, and 13.18 to 

these changes. As discussed elsewhere, 

we are also adopting a new § 13.14, 

which among other things, lists in one 

place the statutory provisions for which 

the FAA has authority to seek or 

administratively assess civil penalties. 

Civil Penalty Assessments Against 

Persons Other Than Individuals Acting 

as Pilots, Flight Engineers, Mechanics, 

and Repairmen 

Applicability 

Existing § 13.16(a) contains an 

obsolete list of the statutory provisions 

authorizing the FAA to assess civil 

penalties. In the NPRM, the FAA 

proposed to update the list to provide 

more information. Proposed 

§ 13.16(a)(1) would have set forth a new 

list of the statutory provisions 

authorizing the FAA to assess civil 

penalties. Proposed § 13.16(a)(2) would 

have set forth the maximum amount of 

civil penalties that could be assessed. 

Because of recent changes in the FAA’s 

governing statute and our adoption of 

regulations governing the periodic 

adjustment for inflation of civil 

monetary penalties, in compliance with 

28 U.S.C. 2461 note, we have concluded 

that proposed § 13.16(a)(2) would be 

redundant. Accordingly, we are deleting 

proposed § 13.16(a)(2) from the final 

rule. Because we are adopting a new 14 

CFR 13.14, discussed below, we are 

revising the remainder of § 13.16(a) to 

state that the FAA uses the procedures 

in § 13.16 when it assess a civil penalty 

against a person other than an 

individual acting as a pilot, flight 

engineer, mechanic or repairman for a 

violation cited in 49 U.S.C. 46301(d)(2) 

or 47531. We are adding a new 

paragraph (b) indicating when the 

United States district courts have 

exclusive jurisdiction. We are adding a 

new § 13.16(c) for violations of 49 

U.S.C. chapter 51, the Federal 

hazardous materials transportation law. 

We are revising current § 13.16(d) to 

delete references to the statutes the FAA 

enforces and redesignating it as 

§ 13.16(f). We are also redesignating the 

remaining paragraphs of current § 13.16 

to accommodate the addition of new 

§§ 13.16(b) and 13.16(c). These actions 

are simply informational or editorial in 

nature. The agency has, therefore, 

determined that prior notice and 

opportunity for comment is unnecessary 

under section 553 of the Administrative 

Procedure Act. 

Change to § 13.16(k). Judicial Review—

Jurisdiction in Actions for Violations of 

the Federal Hazardous Materials 

Transportation Law 

Under 49 U.S.C. 46110, exclusive 

jurisdiction for judicial review of final 

orders of the Administrator issued 

under the FAA’s statute is in the United 

States courts of appeals. Current 

§ 13.16(k) incorporates that statutory 

review provision. 

Current § 13.16(k) makes no 

distinction between cases involving the 

FAA’s governing statute and the Federal 

hazardous materials transportation law, 

49 U.S.C. chapter 51, for purposes of 

judicial review. The Federal hazardous 

materials transportation law itself, 

however, is silent on the issue of 

judicial review. That statute’s silence on 

the issue of judicial review results in 

judicial review in an appropriate United 

States district court under 5 U.S.C. 701 

et seq. and 28 U.S.C. 1331. Section 702 

of title 5, United States Code, states that 

‘‘[a] person suffering legal wrong 

because of agency action, or adversely 

affected or aggrieved by agency action 

with the meaning of a relevant statute, 

is entitled to judicial review.’’ Section 

1331 of title 28, United States Code, 

states that ‘‘[t]he district courts shall 

have original jurisdiction of all civil 

actions arising under the Constitution, 

laws, or treaties of the United States.’’

Because we pursue hazardous materials 

violations under the Federal hazardous 

materials transportation law in 49 

U.S.C. chapter 51, we are amending 

current § 13.16(k) to add a separate 

judicial review provision for such 

actions. We are also redesignating 

§ 13.16(k) as § 13.16(m). Existing 

§ 13.16(k) will become § 13.16(m)(1), 

and new § 13.16(m)(2) will state that 

judicial review of final agency orders 

under 49 U.S.C. chapter 51 is available 

in an appropriate district court of the 

United States, in accordance with 5 

U.S.C. 701 et seq. and 28 U.S.C. 1331. 

Although this change was not included 

in the NPRM, the FAA finds good cause 

for not conducting notice-and-comment 

rulemaking on it based on the need to 

conform our rules to the law. 

References to the FAA’s Governing 

Statute and the Federal Hazardous 

Materials Transportation Law in 

§§ 13.15 and 13.16 

The FAA published a final rule on 

December 28, 1995 (60 FR 67254), 

revising the authority citations for its 

regulations in Chapter I of Title 14 of 

the Code of Federal Regulations (14 CFR 

parts 1–199), including the authority 

citation for part 13. In adopting the 

revised authority citations, the FAA 

stated:

In July 1994, the Federal Aviation Act of 

1958 and numerous other pieces of 

legislation affecting transportation in general 

were recodified. The statutory material 

became ‘‘positive law’’ and was recodified at 

49 U.S.C. 1101 et seq.

The Federal Aviation Administration is 

amending the authority citations for its 

regulations in Chapter I of 14 CFR to reflect 

the recodification of its statutory authority. 

No substantive change was intended to any 

statutory authority by the recodification, and 

no substantive change is introduced to any 

regulation by this change.

* * * * *

Because of the editorial nature of this 

change, it has been determined that prior 

notice is unnecessary under the 

Administrative Procedure Act. * * *

In line with that revision to the 

authority citation to part 13, we are 

amending current §§ 13.15 and 13.16 to 

bring the statutory citations they contain 

into conformity with the recodification 

and the revised authority citation. The 

statutory citations in new § 13.18 also 

conform to the recodification and the 

revised authority citation. This action, 

59494 Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 

like the revision to the authority 

citations, is editorial in nature. The 

agency has, therefore, determined that 

prior notice and opportunity for 

comment is unnecessary under section 

553 of the Administrative Procedure 

Act. 

Changes in Position Titles in §§ 13.15, 

13.16 and 13.18

The NPRM had proposed amending 

part 13 with respect to delegations of 

authority to reflect the reorganization of 

the former Regulations and Enforcement 

Division into two separate divisions. 

The proposed amendments are no 

longer necessary as the FAA published 

a final rule reflecting organizational 

changes and delegations of authority in 

various parts of the FAA’s regulations 

on September 4, 1997 (62 FR 46864). 

On March 3, 2004, however, the FAA 

published Notice 1100.290. Notice 

1100.290 announces the realignment of 

functions and responsibilities within 

the Office of the Chief Counsel. Among 

other things, the new organizational 

structure created the position of Deputy 

Chief Counsel for Operations. Based on 

Notice 1100.290, we are revising 

§§ 13.15(b), (c)(1), (c)(3), 13.16(e)(1–4), 

and 13.18(d)(1–3) to replace references 

to the Deputy Chief Counsel with 

references to the Deputy Chief Counsel 

for Operations. 

Other Changes 

In preparing the final rule, we 

concluded that it would be helpful to 

list in one place those provisions of the 

statutes the FAA enforces, and rules, 

regulations, or orders issued under 

those statutes, for which civil penalties 

may be sought or administratively 

assessed. We also concluded that it 

would be helpful to include a statement 

indicating that the maximum amounts 

of civil penalties are subject to periodic 

adjustment for inflation under the 

formula established by Congress. 

Therefore, we are adopting a new 

section, 14 CFR 13.14. We have 

concluded that notice and comment are 

unnecessary because this new section 

does no more than list the applicable 

statutory provisions and states that 

Congress has established a formula for 

periodically adjusting the maximum 

amounts of civil penalties. That formula 

is implemented in 14 CFR part 13, 

subpart H. 

Economic Assessment, Regulatory 

Flexibility Determination, International 

Trade Impact Assessment, and 

Unfunded Mandates Assessment 

Proposed changes to Federal 

regulations must undergo several 

economic analyses. First, Executive 

Order 12866 directs that each Federal 

agency may propose or adopt a 

regulation only upon a reasoned 

determination that the benefits of the 

intended regulation justify its costs. 

Second, the Regulatory Flexibility Act 

of 1980 requires agencies to analyze the 

economic impact of regulatory changes 

on small entities. Third, the Trade 

Agreements Act (19 U.S.C. 2531–2533) 

prohibits agencies from setting 

standards that create unnecessary 

obstacles to the foreign commerce of the 

United States. In developing U.S. 

standards, this Trade Act requires 

agencies to consider international 

standards and, where appropriate, that 

they be the basis for U.S. standards. 

Fourth, the Unfunded Mandates Reform 

Act of 1995 (Pub. L. 104–4) requires 

agencies to prepare a written assessment 

of the costs, benefits, and other effects 

of proposed or final rules that include 

a Federal mandate likely to result in the 

expenditure by State, local, or tribal 

governments, in the aggregate, or by the 

private sector, of $120.7 million or more 

annually, adjusted for inflation. 

Regulatory Evaluation Summary 

The FAA believes that the procedural 

changes adopted in this rule conform 

the existing procedural rules to 

amendments made in the FAA’s statute, 

and clarify existing rules where 

necessary. 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 amendments to part 

13. 

Benefits 

The potential benefits of this rule 

include clarifying the rule and 

explaining in detail how portions of the 

Administrator’s administrative civil 

penalty assessment authority are 

implemented. These changes will 

provide potentially affected 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 rule are zero 

because it consists only of procedural 

and clarifying changes to part 13. The 

procedural changes do no more than 

explain how the requirements of the 

Administrator’s administrative civil 

penalty assessment authority under the 

FAA’s statute and other statutes are 

implemented. The changes do not 

impose new economic requirements on 

potentially affected parties. The 

clarifying changes will enhance the 

public’s comprehension of the civil 

penalty assessment process.

International Trade Impact Assessment 

The rule represents procedural and 

clarifying changes only. These changes 

do not impose any costs on either U.S. 

or foreign operators. Therefore, a 

competitive trade disadvantage will not 

be incurred by U.S. operators abroad or 

foreign operators in the United States. 

Regulatory Flexibility Determination 

Under the Regulatory Flexibility Act 

of 1980, the FAA certifies that the rule 

will not have a significant economic 

impact, positive or negative, on a 

substantial number of small entities 

because the rule addresses procedures 

for initiating civil penalty actions 

against persons who have violated the 

statutes the FAA enforces, or rules, 

regulations, or orders issued under 

those statutes. Such changes do not 

impose any cost burdens or result in any 

cost savings. 

Unfunded Mandates Assessment 

The Unfunded Mandates Reform Act 

of 1995 (the Act) is intended, among 

other things to curb the practice of 

imposing unfunded Federal mandates 

on State, local, and tribal governments. 

Title II of the Act requires each Federal 

agency to prepare a written statement 

assessing the effects of any Federal 

Mandate in a proposed or final agency 

rule that may result in an expenditure 

of $100 million or more (adjusted 

annually for inflation) in any 1 year by 

State, local, and tribal governments, in 

the aggregate, or by the private sector. 

Such a mandate is deemed to be a 

‘‘significant regulatory action.’’ The 

FAA currently uses an inflationadjusted value of $120.7 million in lieu 

of $100 million. 

This final rule does not contain such 

a mandate. The requirements of Title II 

do not apply. 

Federalism Implications 

This amendment does 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 new procedures are 

private persons, not state governments. 

Therefore, under Executive Order 

12612, preparation of a federalism 

assessment is not warranted. 

Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 59495

Paperwork Reduction Act 

This rule does not contain any 

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 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 

regulation is not economically 

significant under Executive Order 

12866. Although there has been 

significant public interest in the FAA’s 

rules of practice in civil penalty 

assessment actions in the past, the FAA 

has determined that this regulation is a 

nonsignificant regulatory action under 

the Executive Order. This regulation is 

considered nonsignificant under DOT 

Regulatory Policies and Procedures (44 

FR 11034; February 26, 1979). In 

addition, the FAA certifies that this 

regulation 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. In view of the minimal 

economic impact of this final rule, a full 

regulatory evaluation is unnecessary.

List of Subjects in 14 CFR Part 13

Administrative practice and 

procedure, Air transportation, 

Hazardous materials transportation, 

Investigations, Law enforcement, 

Penalties.

The Amendments

■ Therefore, the Federal Aviation 

Administration amends part 13 of the 

Federal Aviation Regulations, as follows:

PART 13—INVESTIGATIVE AND 

ENFORCEMENT PROCEDURES

■ 1. Revise the authority citation for part 

13 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.

■ 2. Add § 13.14 to part 13 to read as 

follows:

§ 13.14 Civil penalties: General. 

(a) Any person who violates chapter 

401 (except sections 40103(a) and (d), 

40105, 40116, and 40117), chapter 441 

(except section 44109), section 44502(b) 

or (c), chapter 447 (except section 44717 

and 44719–44723), chapter 451, 

46301(b), 46302–46303, 46318, 46319, 

47528–47530 of Title 49 of the United 

States Code, or any rule, regulation, or 

order issued thereunder, is subject to a 

civil penalty. 

(b) Any person who violates any of 

the following statutory provisions, or 

any rule, regulation, or order issued 

thereunder, is subject to a civil penalty 

of not more than the amount specified 

in 49 U.S.C. chapter 463 for each 

violation: 

(1) Chapter 401 (except sections 

40103(a) and (d), 40105, 40116, and 

40117); 

(2) Chapter 441 (except section 

44109); 

(3) Section 44502(b) or (c); 

(4) Chapter 447 (except sections 

44717 and 44719–44723); 

(5) Chapter 451;

(6) Sections 46301(b), 46302, 46303, 

46318, or 46319; or 

(7) Sections 47528 through 47530. 

(c) 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, is 

subject to a civil penalty under 49 

U.S.C. 5123. 

(d) The minimum and maximum 

amounts of civil penalties for violations 

of the statutory provisions specified in 

paragraphs (a) and (b) of this section, or 

rules, regulations, or orders issued 

thereunder, are periodically adjusted for 

inflation in accordance with the formula 

established in 28 U.S.C. 2461 note and 

implemented in 14 CFR part 13, subpart 

H.

■ 3. In § 13.15 revise the section heading, 

paragraphs (a), (b), (c) introductory text, 

(c)(1), (c)(3), and (c)(5), to read as 

follows:

§ 13.15 Civil penalties: Other than by 

administrative assessment. 

(a) The FAA uses the procedures in 

this section when it seeks a civil penalty 

other than by the administrative 

assessment procedures in §§ 13.16 or 

13.18. 

(b) The authority of the 

Administrator, under 49 U.S.C. chapter 

463, to seek a civil penalty for a 

violation cited in § 13.14(a), and the 

ability to refer cases to the United States 

Attorney General, or the delegate of the 

Attorney General, for prosecution of 

civil penalty actions sought by the 

Administrator is delegated to the Chief 

Counsel; 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. This 

delegation applies to cases involving: 

(1) An amount in controversy in 

excess of: 

(i) $50,000, if the violation was 

committed by any person before 

December 12, 2003; 

(ii) $400,000, if the violation was 

committed by a person other than an 

individual or small business concern on 

or after December 12, 2003; 

(iii) $50,000, if the violation was 

committed by an individual or small 

business concern on or after December 

12, 2003; or 

(2) An in rem action, seizure of 

aircraft subject to lien, suit for 

injunctive relief, or for collection of an 

assessed civil penalty. 

(c) The Administrator may 

compromise any civil penalty proposed 

under this section, before referral to the 

United States Attorney General, or the 

delegate of the Attorney General, for 

prosecution. 

(1) The Administrator, through the 

Chief Counsel; 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; or the Technical Center 

Counsel sends a civil penalty letter to 

the person charged with a violation 

cited in § 13.14(a). The civil penalty 

letter contains a statement of the 

charges, the applicable law, rule, 

regulation, or order, the amount of civil 

penalty that the Administrator will 

accept in full settlement of the action or 

an offer to compromise the civil penalty.

* * * * *

(3) If the person charged with the 

violation offers to compromise for a 

specific amount, that person must send 

to the agency attorney a certified check 

or money order for that amount, payable 

to the Federal Aviation Administration. 

The Chief Counsel; 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; Aeronautical Center 

Counsel; or the Technical Center 

Counsel may accept the certified check 

or money order or may refuse and return 

the certified check or money order.

* * * * *

(5) If the parties cannot agree to 

compromise the civil penalty action or 

the offer to compromise is rejected and 

the certified check or money order 

submitted in compromise is returned, 

the Administrator may refer the civil 

penalty action to the United States 

Attorney General, or the delegate of the 

59496 Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 

Attorney General, to begin proceedings 

in a United States district court, 

pursuant to the authority in 49 U.S.C. 

46305, to prosecute and collect the civil 

penalty.

* * * * *

■ 4. Amend § 13.16 as follows:

■ a. Revise the section heading and 

paragraph (a);

■ b. Redesignate paragraphs (j) through 

(l) as (l) through (n) and revise newly 

designated paragraphs (l), (m), and (n) 

introductory text, (n)(1) introductory 

text, and (n)(1)(i);

■ c. Redesignate paragraphs (e) through 

(i) as (g) through (k);

■ d. Redesignate paragraphs (c) and (d) 

as (e) and (f), and revise newly 

redesignated paragraph (e) and the first 

sentence of paragraph (f) introductory 

text;

■ e. Redesignate paragraph (b) as 

paragraph (d); and

■ f. Add paragraphs (b) and (c).

■ The revisions and additions read as 

follows:

§ 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 49 

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.

* * * * *

(e) 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; 

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 on the agent for service for 

the person under 49 U.S.C. 46103. 

***

* * * * *

(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 nor order issued 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 

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), 46301(f), 

46302(b), 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 

Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 59497

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.

* * * * *

■ 5. Add § 13.18 to Part 13 to read as 

follows:

§ 13.18 Civil penalties: Administrative 

assessment against an individual acting as 

a pilot, flight engineer, mechanic, or 

repairman. 

(a) General. (1) This section applies to 

each action in which the FAA seeks to 

assess a civil penalty by administrative 

procedures against an individual acting 

as a pilot, flight engineer, mechanic, or 

repairman, under 49 U.S.C. 46301(d)(5), 

for a violation listed in 49 U.S.C. 

46301(d)(2). This section does not apply 

to a civil penalty assessed for violation 

of 49 U.S.C. chapter 51, or a rule, 

regulation, or order issued thereunder. 

(2) District court jurisdiction.

Notwithstanding the provisions of 

paragraph (a)(1) of this section, the 

United States district courts have 

exclusive jurisdiction of any civil 

penalty action involving an individual 

acting as a pilot, flight engineer, 

mechanic, or repairman for violations 

described in that paragraph, under 49 

U.S.C. 46301(d)(4), if: 

(i) The amount in controversy is more 

than $50,000. 

(ii) The action involves an aircraft 

subject to a lien that has been seized by 

the Government; or 

(iii) Another action has been brought 

for an injunction based on the same 

violation. 

(b) Definitions. As used in this part, 

the following definitions apply: 

(1) Flight engineer means an 

individual who holds a flight engineer 

certificate issued under part 63 of this 

chapter. 

(2) Individual acting as a pilot, flight 

engineer, mechanic, or repairman

means an individual acting in such 

capacity, whether or not that individual 

holds the respective airman certificate 

issued by the FAA. 

(3) Mechanic means an individual 

who holds a mechanic certificate issued 

under part 65 of this chapter. 

(4) Pilot means an individual who 

holds a pilot certificate issued under 

part 61 of this chapter. 

(5) Repairman means an individual 

who holds a repairman certificate issued 

under part 65 of this chapter. 

(c) Delegation of authority. (1) The 

authority of the Administrator under 49 

U.S.C. 46301(d)(5), to initiate and assess 

civil penalties is delegated to the Chief 

Counsel; 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. 

(2) 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 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 

to compromise the amount of a civil 

penalty under 49 U.S.C. 46301(f) is 

delegated to the Chief Counsel; 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. 

(d) Notice of proposed assessment. A 

civil penalty action is initiated by 

sending a notice of proposed assessment 

to the individual 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 individual charged 

with a violation may do the following: 

(1) Submit the amount of the 

proposed civil penalty or an agreed-on 

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 individual 

charged may appeal to the National 

Transportation Safety Board. 

(e) Failure to respond to notice of 

proposed assessment. An order of 

assessment may be issued if the 

individual charged with a violation fails 

to respond to the notice of proposed 

assessment within 15 days after receipt 

of that notice. 

(f) 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. 

(g) Appeal. Any individual 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. 

(h) Exhaustion of administrative 

remedies. An individual substantially 

affected by an order of the NTSB or the 

Administrator may petition for review 

only of a final decision and order of the 

National Transportation Safety Board to 

a court 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 and 46301(d)(6). Neither 

an order of assessment that has not been 

appealed to the National Transportation 

Board, nor an order compromising a 

civil penalty action, may be appealed 

under those sections. 

(i) Compromise. The FAA may 

compromise any civil penalty action 

initiated under this section, in 

accordance with 49 U.S.C. 46301(f). 

(1) An agency attorney may 

compromise any civil penalty action 

where an individual 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-on amount or 

the signing of a promissory note. The 

compromise order states the following: 

(i) The individual 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. 

(j) Payment. (1) An individual must 

pay a civil penalty by: 

(i) Sending a certified check or money 

order, payable to the Federal Aviation 

Administration, to the FAA office 

identified in the order of assessment, or 

(ii) Making an electronic funds 

transfer according to the directions 

specified in the order of assessment. 

(2) 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. The civil penalty must be paid 

within 30 days after a final order of the 

59498 Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 

Board or the Court of Appeals affirms 

the order of assessment in whole or in 

part. 

(k) Collection of civil penalties. If an 

individual does not pay a civil penalty 

imposed by an order of assessment or 

other final order, the Administrator may 

take action provided under the law to 

collect the penalty.

■ 6. In § 13.201 remove paragraph (c) and 

revise paragraph (a) to read as follows:

§ 13.201 Applicability. 

(a) This subpart applies to all civil 

penalty actions initiated under § 13.16 

of this part in which a hearing has been 

requested.

* * * * *

■ 7. In § 13.233 revise paragraphs (b) 

introductory text, (1) and (3), and the 

first sentence of paragraph (j) 

introductory text to read as follows:

§ 13.233 Appeal from initial decision.

* * * * *

(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;

* * * * *

(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. * * *

* * * * *

Issued in Washington, DC, on September 

19, 2004. 

Marion C. Blakey, 

Administrator.

[FR Doc. 04–22276 Filed 10–1–04; 8:45 am] 

BILLING CODE 4910–13–P