[Federal Register Volume 59, Number 165 (Friday, August 26, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-21135]


[[Page Unknown]]

[Federal Register: August 26, 1994]


_______________________________________________________________________

Part V





Department of Transportation





_______________________________________________________________________



Federal Aviation Administration



_______________________________________________________________________



14 CFR Part 13




Civil Penalties: Streamlined Enforcement Test and Evaluation Program; 
Final Rule
DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 13

[Docket No. 27873; Amdt. No. 94-13-25]
RIN 2120-AF36

 
Civil Penalties: Streamlined Enforcement Test and Evaluation 
Program

AGENCY: Federal Aviation Administration (FAA), Department of 
Transportation (DOT).

ACTION: Final rule; request for comments.

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SUMMARY: This Special Federal Aviation Regulation (SFAR) establishes a 
test and evaluation program designed to streamline the procedures used 
to process certain civil penalty enforcement actions. The program is 
being tested as a result of recommendations made by the Vice 
President's National Performance Review. If successful, the procedures 
and delegation of authority outlined in this SFAR may be made 
permanent.

DATES: This SFAR is effective August 26, 1994 through August 26, 1996.
    Comments must be submitted on or before October 25, 1994.

ADDRESSES: Comments on this SFAR may be delivered or mailed, in 
triplicate, to the Federal Aviation Administration, Office of the Chief 
Counsel, Attention: Rules Docket (AGC-200), Docket No. 27873, 800 
Independence Avenue, SW., Room 915G, Washington, DC 20591. Comments 
submitted must be marked: ``Docket No. 27873.'' 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:
Brian R. Reed, Attorney, Enforcement Division (AGC-320), Federal 
Aviation Administration, 800 Independence Ave., SW., Washington, DC 
20591; telephone (202) 267-7158.

SUPPLEMENTARY INFORMATION:

Comments Invited

    The changes in this rule are temporary and involve matters of 
agency organization, procedure, and practice only. Accordingly, the 
rule changes are being adopted without notice and prior public comment. 
The FAA, however, recognizes that the participation of the public may 
add significantly to the rulemaking process. Interested persons are, 
therefore, invited to comment by submitting such written data, views, 
or arguments as they may desire. Comments relating to environmental, 
energy, federalism, or economic impacts that might result from adopting 
this rule are also invited. Substantive comments should be accompanied 
by cost estimates. Comments must include the regulatory docket 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 close of the comment period 
will be considered by the Administrator. This rule may be changed in 
light of the comments received.
    Commenters wishing the FAA to acknowledge receipt of their comments 
submitted in response to this rule must submit a pre-addressed, stamped 
postcard with those comments on which the following statement is made: 
``Comments to Docket No. 27873.'' The postcard will be date-stamped by 
the FAA and returned to the commenter.

Availability of SFAR

    Any person may obtain a copy of this SFAR 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 amendment 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 authority 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.), the FAA's regulations (14 CFR parts 1-199), 
and certain other statutes and orders. (49 U.S.C. App. 1471(a)(3)). In 
the case of persons other than those acting in the capacity of a pilot, 
flight engineer, mechanic, or repairman, the procedures for civil 
penalty assessment actions are those contained in Sec. 13.16 and part 
13, subpart G of the FAA's regulations. The current civil penalty 
assessment process for these actions is outlined below.
    During the investigation phase, FAA investigative personnel 
ordinarily notify alleged violators of an agency investigation by 
issuing a letter of investigation. This notification is described in 
FAA Order 2150.3A, the FAA's Compliance and Enforcement Program, but is 
not required by statute, regulation, or that order. Following an 
investigation, a civil penalty may be assessed only after notice of the 
proposed charges and an opportunity for a hearing. This process is 
begun by issuing a notice of proposed civil penalty to an alleged 
violator (respondent). Section 13.16(c) delegates the authority to the 
FAA's Deputy Chief Counsel and certain Assistant Chief Counsel in the 
regions, centers, and headquarters to issue such notices.
    Respondents have several options to respond to the notice of 
proposed civil penalty. The person charged with a violation is required 
to do one of the following:
    (1) Submit the amount of the proposed civil penalty or an agreed-
upon lower amount.
    (2) Submit written information demonstrating that the violation did 
not occur, or that a penalty or the penalty amount is not warranted 
under the circumstances.
    (3) Submit a request for a reduction of the proposed civil penalty, 
including the amount of reduction along with supporting reasons and 
documentation, such as records indicating a financial inability to pay 
the proposed penalty.
    (4) Submit a written request for an informal conference to discuss 
the matter with an agency attorney and submit relevant information or 
documents.
    (5) Request a hearing before an administrative law judge (ALJ) of 
the Department of Transportation (DOT) Office of Hearings.
    If a respondent does not respond to the notice of proposed civil 
penalty, or chooses to proceed informally in response to a notice of 
proposed civil penalty, and the matter is not resolved, the FAA 
attorney then serves a final notice of proposed civil penalty. The 
respondent must either request a hearing before an ALJ or pay the 
amount of the proposed civil penalty, or an agreed-upon amount, within 
15 days of receipt of the final notice. If neither a penalty is paid 
nor a hearing is requested during the 15-day period, the FAA attorney 
serves an order assessing civil penalty, which contains a finding of 
violation and assesses a civil penalty. That order is final and not 
appealable.
    On September 7, 1993, the Vice President's National Performance 
Review published a report entitled ``From Red Tape to Results: Creating 
a Government that Works Better and Costs Less.'' That report included a 
recommendation that the FAA streamline its civil penalty enforcement 
program by eliminating several of the procedural steps it takes to 
issue civil penalties in certain minor, uncontested cases. The FAA has 
determined that streamlined procedures would be most appropriately 
applied to those legal enforcement actions that facially appear to be 
simple and factually straightforward. The SFAR adopts interim changes 
to the existing rules governing procedures and delegation of authority 
that are designed to enhance the efficiency and effectiveness of the 
processing of civil penalty assessment actions in these types of cases. 
The National Performance Review indicates that a streamlined 
enforcement process may reduce costs, improve efficiency, and enhance 
safety by notifying individuals of certain violations and processing 
these actions within reduced time frames.
    In addition to shortening the time for initiating certain cases, it 
is expected that this test program also will encourage prompt 
settlement of proposed civil penalties in these cases. The program will 
not eliminate an individual's opportunity to request a hearing or 
otherwise contest a proposed civil penalty. This SFAR will be effective 
for two years, unless sooner canceled.

Discussion of Rule

Scope

    These regulatory changes initially will be tested in certain civil 
penalty assessment actions resulting from violations occurring in two 
FAA regions (Great Lakes and Southwest) at three airports (Dallas/Forth 
Worth International Airport, O'Hare International Airport, and 
Indianapolis International Airport). The program may be extended to 
violations at other airports or regions during the duration of the test 
program.
    In addition, the test program will apply only to alleged violations 
by individuals presenting dangerous or deadly weapons for screening at 
airports or in checked baggage, for which a civil penalty less than 
$5,000 is proposed. While the FAA considers these violations to be 
serious, the initial evaluation and processing of these cases tends to 
be uncomplicated. Violations of weapons prohibitions, on the other 
hand, for which a penalty of $5,000 or more is sought ordinarily are 
more factually complex and involve evidence of several aggravating 
factors. As a result, these cases tend to be more difficult to process, 
and, therefore, would not be appropriate for handling under the test 
program. The FAA does not intend to apply this program to complex civil 
penalty actions, including factually complicated cases under $5,000.
    If the program is successful in streamlining the civil penalty 
enforcement process for the cases described above, the FAA will 
consider amending this rule to extend the program to include other 
relatively simple violations warranting civil penalty action.

Procedures and Delegations

    The test program will involve several changes to current 
enforcement practice. The test program dispenses with the FAA's current 
practice of ordinarily issuing to the alleged violator a letter of 
investigation seeking information about the alleged violation. 
Experience has indicated that in the majority of factually clear, 
uncomplicated cases, the respondent often does not provide additional 
relevant information that is not already known to the FAA. The 
information received by the FAA from local law enforcement offices 
regarding weapons violations at airport screening checkpoints tends to 
be complete and beyond serious dispute. A respondent, however, will 
continue to have an opportunity to make any statements and submit any 
evidence regarding the alleged violation following notification of the 
alleged violation.
    FAA Office of Civil Aviation Security Division Managers and Deputy 
Division Managers, instead of FAA attorneys, will initiate a legal 
enforcement action by issuing a notice of violation (NOV) to the 
respondent. The NOV will cite the relevant facts and circumstances 
pertaining to the alleged infraction and will include a proposed civil 
penalty amount. The authority to issue NOVs will not be delegated below 
the division level. By delegating to the Office of Civil Aviation 
Security the authority to send the initial notification to a respondent 
of an alleged violation, the FAA believes that it can reduce 
significantly the time currently expended before a respondent is given 
this notification. The name and phone number of a security agent 
involved in the investigation will be included in the NOV in case the 
respondent has any questions about the action being proposed.
    The NOV will serve the same purpose that the notice of proposed 
civil penalty now serves under current procedures. The NOV, however, 
will include the following specific information:
    (1) A description of the alleged violation;
    (2) The proposed amount of civil penalty;
    (3) An offer of settlement of the case, if appropriate, as 
described below;
    (4) The name and phone number of an FAA security special agent 
involved in the investigation of the violation;
    (5) Information regarding informal procedures; and
    (6) Information on how to request a formal hearing before a DOT 
ALJ.
    In appropriate cases, the agency may extend to the respondent a 
settlement offer to resolve the case immediately with a reduction of 
the proposed civil penalty, on the condition that the penalty is paid 
or a commitment to pay is made within 30 days. In conjunction with the 
publication of this rule, the FAA will issue guidance on the exercise 
of its discretionary settlement authority in these cases as well as 
other similar cases not covered by the test and evaluation program. 
This guidance will be published in Appendix 1 of FAA Order 2150.3A, 
Compliance and Enforcement Program, and may be changed during the test 
program.
    The FAA believes that swifter notification of a violation, coupled, 
in most cases, with an immediate offer of settlement, may encourage 
quick resolution of simple cases while, at the same time, having no 
negative impact on the effectiveness of the enforcement process. The 
National Performance Review studied a similar program offered by the 
Federal Highway Administration and found that approximately 40 percent 
of proposed civil penalties were paid in this manner within 30 days.
    The provisions of this SFAR will not limit the respondent's rights 
in any way. An individual may choose to proceed under the current 
informal and formal procedures, including requesting an informal 
conference with an FAA attorney or formal hearing before a DOT ALJ. If 
the FAA and respondent are unable to resolve the case informally, or if 
the respondent fails to respond to the NOV within 30 days after 
receiving it, a final notice of violation and civil penalty assessment 
order (``final notice and order'') will be issued to the respondent. 
This document serves two purposes:
    (1) It provides a second opportunity for the respondent to request 
a hearing on the record before a DOT ALJ; and
    (2) It becomes an order assessing a civil penalty if the respondent 
pays the civil penalty proposed in the final notice and order, or the 
respondent does not request a hearing in accordance with the final 
notice and order and fails to pay the amount of the proposed civil 
penalty.
    This streamlined process dispenses with the current procedure 
requiring a separate order assessing civil penalty to be sent to the 
respondent when the respondent pays the amount of the civil penalty 
reflected in the final notice of proposed civil penalty, or when the 
respondent fails to request a hearing in accordance with the final 
notice of proposed civil penalty and fails to pay the amount of the 
proposed civil penalty. The final disposition of the assessment action 
results from the respondent's act or failure to act upon receipt of the 
final notice. Issuance of a separate document entitled ``order 
assessing civil penalty'' under the current procedures provides no 
additional rights or notice to the respondent that is not otherwise 
given in the final notice and order under these procedures. 
Accordingly, elimination of the issuance of a separate order assessing 
civil penalty under these circumstances will not alter the procedural 
protections afforded respondents.
    The final notice and order will be issued by an appropriate 
Assistant Chief Counsel. The final notice and order will result in 
either a civil penalty assessment or a formal hearing.

Regulatory Evaluation Summary

    Changes to Federal regulations are required to undergo several 
economic analyses. First, Executive Order 12866 directs each Federal 
agency to 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 effect of regulatory changes on small entities. 
Third, the Office of Management and Budget directs agencies to assess 
the effect of regulatory changes on international trade. With respect 
to this rule, the FAA has determined that it: (1) is not ``a 
significant regulatory action'' as defined in the Executive Order; (2) 
is not significant as defined in the Department of Transportation's 
Regulatory Policies and Procedures; (3) will not have a significant 
impact on a substantial number of small entities; and (4) will not 
constitute a barrier to international trade. Therefore, a full 
regulatory analysis, which includes the identification and evaluation 
of cost-reducing alternatives to this rule, has not been prepared. 
Instead, the agency has prepared a more concise analysis of this rule 
which is presented in the following paragraphs.
    The rule establishes a test program at three airports. The program 
covers certain civil penalty cases against individuals submitting 
dangerous or deadly weapons for screening at airport checkpoints or in 
checked baggage. The rule will apply only to those cases that facially 
appear to be simple and are factually straightforward, and that are 
uncomplicated to process. During the test period, the rule delegates 
authority to program office managers to initiate legal enforcement 
actions and reduces the number of documents issued in this action. The 
rule is intended to streamline the agency's civil penalty enforcement 
process of notifying individuals of certain violations by processing 
these actions within reduced time frames.

Costs

    There will be no costs associated with this rule because it 
consists only of changes to agency rules of procedure or practice in 
part 13 of the FAA's regulations. The changes do not impose any new 
economic requirements on the affected parties.

Benefits

    The streamlined procedures will reduce the number of documents to 
be served upon individuals. Additionally, this rule will likely reduce 
the time between the violation and the processing of the enforcement 
action.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (RFA) was enacted by 
Congress to ensure that small entities are not unnecessarily and 
disproportionately burdened by Federal regulations. The RFA requires a 
Regulatory Flexibility Analysis if a rule will have ``a significant 
economic impact on a substantial number of small entities.'' FAA Order 
2100.14A outlines FAA's procedures and criteria for implementing the 
RFA. Small entities are defined as independently owned and operated 
small businesses and small not-for-profit organizations. Because this 
rule will directly affect certain individuals (who are not defined as 
entities), the rule will not have a significant economic impact on a 
substantial number of small entities.

International Trade Impact Assessment

    Because the rule only will affect certain individuals, it will not 
constitute a barrier to international trade, including the export of 
American goods and services to foreign countries and the import of 
foreign goods and services to the United States.

Federalism Implications

    The rule will not have substantial direct effects on the states, on 
the relationship between the national government and that of any state, 
or on the distribution of power and responsibilities among the various 
levels of government. The respondents affected by the amendments are 
private citizens, not state governments. Therefore, in accordance with 
Executive Order 12612, it is determined that this regulation will not 
have federalism implications to warrant the preparation of a Federalism 
Assessment.

Paperwork Reduction Act

    This rule contains no information collection requests requiring 
approval of the Office of Management and Budget pursuant to the 
Paperwork Reduction Act of 1980 (44 U.S.C. 3507 et seq.).

Conclusion

    For the reasons discussed in the preamble, and based on the 
findings in the Regulatory Flexibility Determination and the 
International Trade Impact Analysis, the FAA has determined that this 
regulation is not a significant regulatory action under Executive Order 
12866. This rule is not considered significant under DOT Regulatory 
Policies and Procedures (44 FR 11034; February 26, 1979). In addition, 
this rule 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, Investigations, Law enforcement, Penalties.

The Amendments

    Accordingly, the Federal Aviation Administration amends part 13 of 
Title 14, Code of Federal Regulations, by adding Special Federal 
Aviation Regulation No. 72, as follows:

Special Federal Aviation Regulation No. 72--Civil Penalties: 
Streamlined Enforcement Test and Evaluation Program

    1. The authority citation for part 13 is amended 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), 2218, 2219; 18 
U.S.C. 6002, 6004; 49 CFR 1.47.

    2. Special Federal Aviation Regulation No. 72 is added to read as 
follows:

Civil Penalties: Streamlined Enforcement Test and Evaluation Program.

    This SFAR may be used, at the agency's discretion, in enforcement 
actions involving individuals presenting dangerous or deadly weapons 
for screening at airports or in checked baggage where the amount of the 
proposed civil penalty is less than $5,000. In these cases, 
Secs. 13.16(a), 13.16(c), and 13.16(f) through (l) of this chapter are 
used, as well as sections (A) through (D) below:
    (A) Delegation of authority. The authority of the Administrator, 
under section 901 of the Federal Aviation Act of 1958, as amended, to 
initiate the assessment of civil penalties for a violation of the Act, 
or a rule, regulation, or order issued thereunder, is delegated to the 
regional Office of Civil Aviation Security Division Manager and the 
regional Office of Civil Aviation Security Deputy Division Manager for 
the purpose of issuing notices of violation in cases involving 
violations of the Federal Aviation Act and the FAA's regulations by 
individuals presenting dangerous or deadly weapons for screening at 
airport checkpoints or in checked baggage. This authority may not be 
delegated below the level of the Office of Civil Aviation Security 
Deputy Division Manager.
    (B) Notice of violation. A civil penalty action is initiated by 
sending a notice of violation to the person charged with the violation. 
The notice of violation contains a statement of the charges and the 
amount of the proposed civil penalty. Not later than 30 days after 
receipt of the notice of violation, the person charged with a violation 
shall:
    (1) Submit the amount of the proposed civil penalty or an agreed-
upon amount, in which case either an order assessing a civil penalty or 
a compromise order shall be issued in that amount;
    (2) Submit to the regional Office of the Assistant Chief Counsel 
any of the following:
    (i) Written information, including documents and witness 
statements, demonstrating that a violation of the regulations did not 
occur or that a penalty or the penalty amount is not warranted by the 
circumstances;
    (ii) A written request to reduce the proposed civil penalty, the 
amount of reduction, and the reasons and any documents supporting a 
reduction of the proposed civil penalty, including records indicating a 
financial inability to pay or records showing that payment of the 
proposed civil penalty would prevent the person from continuing in 
business; or
    (iii) A written request for an informal conference to discuss the 
matter with an agency attorney and submit relevant information or 
documents; or
    (3) Request a hearing in which case a complaint shall be filed with 
the hearing docket clerk.
    (C) Final notice of violation and civil penalty assessment order. A 
final notice of violation and civil penalty assessment order (``final 
notice and order'') may be issued after participation in any informal 
proceedings as provided in paragraph (B)(2) of this section, or after 
failure of the respondent to respond in a timely manner to a notice of 
violation. A final notice and order will be sent to the individual 
charged with a violation. The final notice and order will contain a 
statement of the charges and the amount of the proposed civil penalty 
and, as a result of information submitted to the agency attorney during 
any informal procedures, may modify an allegation or a proposed civil 
penalty contained in the notice of violation.
    A final notice and order may be issued--
    (1) If the person charged with a violation fails to respond to the 
notice of violation within 30 days after receipt of that notice; or
    (2) If the parties participated in any informal procedures under 
paragraph (B)(2) of this section and the parties have not agreed to 
compromise the action or the agency attorney has not agreed to withdraw 
the notice of violation.
    (D) Order assessing civil penalty. An order assessing civil penalty 
may be issued after notice and opportunity for a hearing. A person 
charged with a violation may be subject to an order assessing civil 
penalty in the following circumstances:
    (1) An order assessing civil penalty may be issued if a person 
charged with a violation submits, or agrees to submit, the amount of 
civil penalty proposed in the notice of violation.
    (2) An order assessing civil penalty may be issued if a person 
charged with a violation submits, or agrees to submit, an agreed-upon 
amount of civil penalty that is not reflected in either the notice of 
violation or the final notice and order.
    (3) The final notice and order becomes (and contains a statement so 
indicating) an order assessing a civil penalty when the person charged 
with a violation submits the amount of the proposed civil penalty that 
is reflected in the final notice and order.
    (4) The final notice and order becomes (and contains a statement so 
indicating) an order assessing a civil penalty 16 days after receipt of 
the final notice and order, unless not later than 15 days after receipt 
of the final notice and order, the person charged with a violation does 
one of the following--
    (i) Submits an agreed-upon amount of civil penalty that is not 
reflected in the final notice and order, in which case an order 
assessing civil penalty or a compromise order shall be issued in that 
amount; or
    (ii) Requests a hearing in which case a complaint shall be filed 
with the hearing docket clerk.
    (5) Unless an appeal is filed with the FAA decisionmaker in a 
timely manner, an initial decision or order of an administrative law 
judge shall be considered an order assessing civil penalty if an 
administrative law judge finds that an alleged violation occurred and 
determines that a civil penalty, in an amount found to be appropriate 
by the administrative law judge, is warranted.
    (6) Unless a petition for review is filed with a U.S. Court of 
Appeals in a timely manner, a final decision and order of the 
Administrator shall be considered an order assessing civil penalty if 
the FAA decisionmaker finds that an alleged violation occurred and a 
civil penalty is warranted.

    Issued in Washington, DC, on August 19, 1994.
David R. Hinson,
Administrator.
[FR Doc. 94-21135 Filed 8-25-94; 8:45 am]
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