[Federal Register Volume 71, Number 233 (Tuesday, December 5, 2006)]
[Rules and Regulations]
[Pages 70460-70465]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-9508]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 13
[Docket No. FAA-2006-26477]
Rules of Practice in FAA Civil Penalty Actions
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule; technical amendment.
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SUMMARY: We are amending the procedural regulations governing the FAA's
administrative assessment of civil penalties for violations of certain
provisions of the Federal aviation statute and the Federal hazardous
materials. We are also amending the FAA's procedural regulations
governing non-civil penalty enforcement matters. These change are
necessary to update the regulations and to reflect statutory changes.
The intended effect of these changes is to ensure that regulated
parties have current and correct procedural information.
DATES: This rule is effective on December 5, 2006.
FOR FURTHER INFORMATION CONTACT: Vicki Sherman Leemon, Office of the
Chief Counsel, Adjudication Branch, AGC-439, 800 Independence Avenue,
SW., Washington, DC 20591; telephone 202/385-8227.
SUPPLEMENTARY INFORMATION:
Background
The Administrator of the FAA may impose a civil penalty not
exceeding specified amounts on a person, other than an individual
acting as a pilot, flight engineer, mechanic or repairman, only after
notice and an opportunity for hearing on the record under 49 U.S.C.
46301(d)(7)(A). The Administrator's authority to assess civil penalties
under 49 U.S.C. 46301(d) extends only to civil penalties that do not
exceed the maximum amounts specified in 49 U.S.C. 46301(d)(8) as
follows:
(a) $50,000, if the violation was committed by a person before
December 12, 2003 (the date of enactment of Vision 100--Century of
Aviation Reauthorization Act);
(b) $400,000 if the violation was committed by a person other than
an individual or small business concern on or after December 12, 2003;
(c) $50,000, if the violation was committed by an individual or
small business concern on or after December 12, 2003.
To implement this civil penalty assessment authority, we issued
procedural rules published at 14 CFR 13,16 and 14 CFR Part 13, subpart
G (14 CFR 13.201-13.235). Section 13.16 of Part 13 includes the
procedures we follow when notifying a person, other than an individual
acting as a pilot, flight engineer, mechanic or repairman, about
alleged violations and proposed civil penalties, and for that person to
use to request a hearing before a Department of Transportation (DOT)
administrative law judge. The hearing process is governed by the
regulations included in 14 CFR 13.16 and 14 CFR part 13, subpart G.
Under these rules, the Administrator, acting in her capacity as the FAA
decisionmaker, resolves any appeals of initial decisions rendered by an
administrative law judge. See 14 CFR 13.16(j), 13.202 (definition of
FAA decisionmaker), and 13.233(j).
We use 14 CFR 13.16 and 14 CFR Part 13, subpart G when assessing
civil penalties not exceeding 49 U.S.C. 46301(d)(8)'s limits for
violations arising from many different provisions of the Federal
aviation statute. Specifically, we use these regulations when assessing
civil penalties for violations of statutory provisions listed in the
first sentence of 49 U.S.C. 46301(d)(2) or any of their implementing
regulations. Under the first sentence of 49 U.S.C. 46301(d)(2), the
Administrator may impose a civil penalty for violations of the
following statutory provisions of any regulations implementing those
provisions:
(a) Chapter 401 (except sections 40103(a) and (d), 40105, 40106(b),
40116, and 40117) of Title 49;
(b) Chapter 441 (except section 44109) of Title 49;
(c) Sections 44502(b) and (c) of Title 49;
(d) Chapter 447 (except sections 44717 and 44719-44723) of Title
49;
(e) Section 46301(b) of Title 49;
(f) Section 46302 (for a violation relating to section 46504) of
Title 49;
(g) Section 46318 of Title 49;
(h) Section 47107(b) of Title 49.
Many of the statutory provisions listed in the first sentence of 49
U.S.C. 56301(d)(2) are aviation safety-related. See e.g., 49 U.S.C.
chapter 447, entitled ``Safety Regulation,'' and 49 U.S.C. 46301(b)
prohibiting tampering with smoke detectors; but see e.g., 49 U.S.C.
47107(b) conditioning the approval of airport development grant
applications upon the receipt by the FAA of written assurances that
local taxes on aviation fuel and public airport revenues will only be
expended for certain purposes.
The procedural rules in 14 CFR 13.16 and 14 CFR part 13, subpart G,
also apply when we asses a civil penalty not exceeding 49 U.S.C.
46301(d)(8)s' limits for violations of certain statutory provisions of
the Federal aviation statute, or their implementing regulations, not
listed in the first sentence of 49 U.S.C. 46301(d)(2). Persons who
violate 49 U.S.C. 47528, 47529 or 47530, or any regulation issued under
those sections, are subject to a civil penalty. Sections 47528 through
47530 of Title 49 prohibit the operation of certain aircraft when those
aircraft do not comply with the Stage 3 noise levels (see 14 CFR part
91, subpart I). Section 47531 of Title 49 provides that a person
violating one of those statutory provisions or implementing regulations
is subject to the same civil penalty amounts and procedures under
chapter
[[Page 70461]]
463 as a person violating section 44701(a) or (b) or any of sections
44702-44716 (which are listed in 49 U.S.C. 46301(D)(2)). When assessing
civil penalties that do not exceed 49 U.S.C. 46301(d)(8)'s limitations,
for violations of 49 U.S.C. 47528, 47529 or 47530, we use the
procedures for notice and opportunity for a hearing on the record
provided in 14 CFR 13.16 and 14 CFR part 13, subpart G.
In addition, under the Federal hazardous materials transportation
statute, 49 U.S.C. 5123, and 49 CFR 1.47(k), the Administrator may
assess a civil penalty against any person who knowingly violates the
Federal hazardous materials transportation statute, 49 U.S.C. chapter
51, or any of its implementing regulations. Section 5123 of Title 49
does not limit the total civil penalty that the Administrator may
assess for violations of the Federal hazardous materials transportation
statute or its implementing regulations. The limitations set forth in
49 U.S.C. 46301(d)(8) do not apply in hazardous materials cases when
the Administrator initiates civil penalty actions under the Federal
hazardous materials transportation statute, 49 U.S.C. 5123, and 14 CFR
1.47(k). We use 14 CFR 13.16 and 14 CFR part 13, subpart G, when
assessing civil penalties in cases involving the transportation of
hazardous materials by air.
The FAA also issues enforcement orders that do not assess civil
penalties. For example, we issue cease and desist orders under 14 CFR
13.20, and orders of compliance under 14 CFR 13.71-13.87. Requests for
hearing from these proposed orders are filed in the Hearing Docket. The
procedural rules in 14 CFR part 13, subpart D govern proceedings in
these cases, in which requests for hearing are filed under 14 CFR
13.19(c)(5), 13.20(c), 13.20(d), 13.75(a)(2), 13.75(b) or 13.81(e).
This Rulemaking
1. We are updating 14 CFR 13.16 and 14 CFR part 13, subpart G in
this rulemaking as follows.
a. The Applicability of 14 CFR 13.16 and 14 CFR part 13, subpart G.
In October 2004, we amended the civil penalty assessment procedure
in 14 CFR part 13, including 14 CFR 13.16 and 14 CFR part 13, subpart
G. 69 FR 59490, October 4, 2004. We explained in the preamble that we
were amending section 13.16 to update the list of statutory provisions
authorizing the FAA to assess civil penalties. 69 FR at 59493. We
revised section 13.16 when assessing ``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.''
69 FR at 59493 and 59496. We added a new section 13.16(c) for the
administrative assessment of civil penalties against all persons for
violations of 49 U.S.C. chapter 51, the Federal hazardous materials
transportation statute. Further, we amended 14 CFR 13.201(a) to explain
that 14 CFR part 13, subpart G applies to all civil penalty actions
initiated under 14 CFR 13.16 in which a person requests a hearing.
The revision of section 13.16(a)--regarding the use of 14 CFR
13.16's procedures in civil penalty actions for violations cited in 49
U.S.C. 46301(d)(2) or 47531--appeared in the 2005 volume of the Code of
Federal Regulations. However, the phrase ``or 47531'' did not appear in
section 13.16(a) when the 2006 volume of the Code of Federal
Regulations was printed. We reiterate here that we use the procedures
in 14 CFR 13.16 (and 14 CFR part 13, subpart G when a hearing is
requested) when assessing civil penalties for violations of the
statutory provisions cited in 49 U.S.C. 47531 or of any implementing
rules, regulations or orders.
We are also amending section 13.16(a), as well as certain
regulations in subpart G, to clarify that we use the procedures set
forth in section 14 CFR 13.16 and part 13, subpart G, for violations of
provisions of the Federal aviation statute listed in the first sentence
of 49 U.S.C. 46301(d). The first sentence of 49 U.S.C. 46301(d)(2)
authorizes the FAA Administrator to assess civil penalties for
violations offering provisions of the Federal aviation statute. The
second sentence sets forth the civil penalty assessment authority of
the Secretary of Homeland Security.
b. Judicial review of final agency orders assessing a civil penalty
for violations of the Federal aviation statute, the Federal hazardous
materials transportation law, or any implementing rules, regulations or
orders.
Judicial review of final agency orders assessing civil penalties
for violations of the Federal aviation statute and its implementing
regulations is available in the appropriate Federal court of appeals
under 49 U.S.C. 46110. Under 49 U.S.C. 46110, a person affected by an
order issued by the Administrator of the FAA under part A or part B, or
section 114(l) or (s) of the Federal aviation statute, may file a
petition for review of that order in the United States Court of Appeals
for the District of Columbia Circuit or in the United States court of
appeals for the circuit in which the person resides or has that
person's principal place of business. Under 49 U.S.C. 46110(a), the
petition for review must be filed not later than 60 days after the
issuance of the order, unless a Federal court finds that reasonable
grounds exist for the late-filing.
Judicial review of civil penalty orders issued under the Federal
aviation statute is also provided under the following:
49 U.S.C. 46301(d)(7)(D)(iii) providing that judicial
review of any order assessing a civil penalty for a violation of 49
U.S.C. 47107(b) or any grant assurance under that section for misuse of
public airport revenues may be obtained only under 49 U.S.C. 46110;
49 U.S.C. 46301(g) providing that ``[a]n order of the * *
* Administrator imposing a civil penalty may be reviewed judicially
only under section 46110 of this title.''
49 U.S.C. 47532 (and 49 CFR 1.47(s)) providing that an
action taken by the Administrator under 49 U.S.C. 47528, 47529 or 47530
regarding the operation of certain aircraft not in compliance with
stage 3 noise levels is subject to judicial review as provided under 49
U.S.C. 46110.
Before the enactment of the Safe, Accountable, Flexible, Efficient
Transportation Act: A Legacy for Users (SAFETEA-LU) in 2005, the
Federal hazardous materials transportation law, 49 U.S.C. chapter 51,
was silent on the issue of judicial review of an order assessing a
civil penalty. As a result, final agency orders assessing civil
penalties in cases involving the transportation by air of hazardous
materials were subject to review in the appropriate United States
district court under 5 U.S.C. 701, et seq., and 28 U.S.C. 1331.
SAFETEA-LU added a new section 5127 to the Federal hazardous
materials transportation statute, 49 U.S.C. 5127, pertaining
specifically to judicial review of final orders. Section 5127 of Title
49 now provides that a person aggrieved by a final agency action
involving the transportation of hazardous materials may file a petition
for review in the United States Court of Appeals for the District of
Columbia Circuit or in the court of appeals of the United States in the
circuit which the party resides or has the party's principal place of
business. Thus, under SAFETEA-LU, persons aggrieved by a final order
issued by the Administrator arising from the transportation by air of a
hazardous materials may petition the appropriate Federal court of
appeals for review.
Under the new 49 U.S.C. 5127, a petitioner must file the petition
for review no later than 60 days after the action ``becomes final.'' 49
U.S.C. 5127 (emphasis added.) Decisions and orders
[[Page 70462]]
in hazardous materials cases issued by the Administrator under 14 CFR
13.233(j)(2) (on appeal to the Administrator from a decision of an
administrative law judge) and under 14 CFR 13.234(g) (on petition for
reconsideration, rehearing or modification), are final when they are
served. Therefore, a person filing a petition for review of an order
issued under 14 CFR 13.233(j)(2) or 13.234(g) in a civil penalty case
involving the transportation of hazardous materials must do so no later
than 60 days after the Administration's decision is served. (See 14 CFR
13.235.)
Judicial review in civil penalty cases is discussed in the Federal
Aviation Regulations at 14 CFR 13.16 and 13.235. Currently, section
13.16(m)(1) provides that a party may file a petition for review of a
final agency order in cases under the Federal aviation statute in the
appropriate United States court of appeals under 49 U.S.C. 46110(a),
46301(d)(6) and 46301(g). Section 13.16(m)(2) provides that in cases
under the Federal hazardous materials transportation law, a party may
seek judicial review of a final agency order in an appropriate United
States district court under 5 U.S.C. 703 and 704 and 28 U.S.C. 1331.
Section 13.235 of the Federal Aviation Regulations also deals with
the issue of judicial review of a final agency decision in civil
penalty cases. Unlike 14 CFR 13.16(m), section 13.235 does not
distinguish between cases arising under the Federal aviation statute
and cases arising under the Federal hazardous materials transportation
statute. It is stated in 14 CFR 13.235: ``A person may seek judicial
review of a final decision and order of the Administrator as provided
in section 1006 of the Federal Aviation Act of 1958, as amended
[currently 49 U.S.C. 46110].'' Currently, section 13.235 does not
include references to sections 5127, 46301(d)(7)(D)(iii), 46301(g), or
47532 of Title 49, which also provide for judicial review of final
agency orders involving certain violations of the Federal hazardous
materials transportation statute and the Federal aviation statute.
We are amending 14 CFR 13.16(m) and 14 CFR 13.235 to incorporate
SAFETEA-LU's changes regarding judicial review of final agency
decisions in hazardous materials cases, as now set forth in 49 U.S.C.
5127, as well as to include references to other statutory provisions
for judicial review. In this rulemaking, we are dividing section 13.235
into four paragraphs for the sake of clarity. New paragraph (a)
provides that in cases under the Federal aviation statute, a party may
seek judicial review of a final decision and order of the
Administrator, as provided in 49 U.S.C. 46110(a), and as applicable, in
49 U.S.C. 46301(d)(7)(D)(iii), 46301(g), or 47532. New paragraph (b)
explains that judicial review in cases under the Federal hazardous
materials transportation statute is under 49 U.S.C. 5127. New paragraph
(c) provides that parties seeking review of a final agency order may
file a petition for review in the United States Court of Appeals for
the District of Columbia Circuit or in the United States court of
appeals for the circuit in which the party resides or has its principal
place of business. New paragraph (d) explains that the party seeking
review must file the petition for review no later than 60 days after
service of the Administrator's final decision and order.
Since the passage of SAFETEA-LU, there is no need to divide 14 CFR
13.16(m) into paragraphs (1) and (2) because review is now available in
the appropriate Federal court of appeals for civil penalty orders
arising from violations of the Federal aviation statute and the Federal
hazardous materials transportation law. The new section 13.16(m)
provides that a party may seek judicial review of a final decision and
order of the Administrator involving a violation of the Federal
aviation statute or the Federal hazardous materials transportation law.
It explains that review is in the United Court of Appeals for the
District of Columbia Circuit or the courts of appeals of the United
States for the circuit in which the party resides or has the party's
principal place of business. It refers the reader to 14 CFR 13.235 for
references to the provisions in Title 49 of the United States Code for
judicial review.
Currently, section 13.16(m)(1) cites 49 U.S.C. 46301(d)(6), as well
as 49 U.S.C. 46110 and 46301(g), as authority for the availability of
judicial review in an appropriate Federal court of appeals. Section
46301(d)(6) of Title 49 provides for judicial review of orders of the
National Transportation Safety Board in civil penalty cases under 49
U.S.C. 46301(d)(5) against individuals acting as pilots, flight
engineers, mechanics or repairment. (See 14 CFR 13.18(h)). Section
13.16, however, deals with orders of the FAA Administrator in civil
penalty proceedings against persons other than individuals acting as
pilots, mechanics, flight engineers or repairmen. Consequently, we are
not including a reference to 49 U.S.C. 46301(d)(6) in the new 14 CFR
13.16(m) or in the amended section 13.235.
We are amending the authority section of 14 CFR part 13 to include
the statutory provisions added to Title 49 regarding the transportation
of hazardous materials by SAFETEA-LU.
c. Current Hearing Docket Address. Last year, we amended 14 CFR,
part 13, subpart G, to provide the new address of the FAA Hearing
Docket. 70 FR 8236, February 18, 2005. Since publishing that notice,
the offices in the Wilbur Wright Building, in which the Hearing Docket
is now located, have been re-numbered. Under the current room number
system, the Hearing Docket is located in Suite 2W1000. We are updating
the suite number for the Hearing Docket in this rulemaking.
d. FAA Civil Penalty Adjudication Web site. Also, by notice
published on February 18, 2005, we amended section 13.210 by adding
paragraph (e), which included information about the FAA civil penalty
adjudication Web site. The FAA's Web site recently has been revised.
The FAA civil penalty adjucation Web site is now located at the
following address: http://faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/AGC400/Civil_Penalty. This technical
amendment provides the current Internet address for the FAA civil
penalty adjudication Web site, as well as more complete description of
the information available on the Web site.
e. Definition of Complaint. As defined in 14 CFR 13.202, a
``complaint'' is a document that is filed by the agency attorney after
a hearing is requested under 14 CFR 13.16. In 2004, we redesignated the
paragraphs in 14 CFR 13.16 about requests for hearing as 14 CFR
13.16(f)(3) and (g)(2)(ii). 69 FR at 59496. Now, we are amending the
definition of ``complaint'' in section 13.202 to replace references to
the former paragraph numbers about requests for hearing with the
current citations, 14 CFR 13.16(f)(3) and (g)(2)(ii).
f. Recodification of the FAA;s Governing Statute and the Hazardous
Materials Transportation Act. In 1994, Congress recodified into
positive law the Federal Aviation Act of 1958, as amended, the
Hazardous Materials Transportation Act, and other pieces of
transportation law. We amended the authority sections for the Federal
Aviation Regulations, including Part 13, to reflect the recodification,
by final rule published on December 28, 1995 (60 FR 67254). Now, we are
amending 14 CFR 13.202 (definitions of ``complaint'' and ``order
assessing civil penalty''), 13.218(f)(1), 13.219(a), 13.228(c), and
13.235 to replace out-of-date statutory references with citations to
the Federal aviation statute, and to the Federal hazardous materials
transportation statute.
[[Page 70463]]
2. We are updating other sections of Part 13 of the Federal
Aviation Regulations, as follows:
a. Civil penalties, generally, under 14 CFR 13.14.
Section 13.14(a) of the Federal Aviation Regulations, 14 CFR
13.14(a) explains that a person who violates certain provisions of the
Federal aviation statute or any implementing rule, regulation, or
order, is subject to a civil penalty not exceeding the amount specified
in 49 U.S.C. chapter 463 for each violation. Section 13.14(a) should
include those sections listed in the first sentence of 49 U.S.C.
46301(d)(2) and in 49 U.S.C. 47531.
Currently, 14 CFR 13.14(a)(6) provides that a person is subject to
a civil penalty for a violation of 49 U.S.C. 46301(b), 46302, 46303,
46318 or 46319. Section 13.14(a)(6) needs revision in three respects.
First, under 49 U.S.C. 46301(d)(2), the Secretary of Homeland
Security--not the Administrator of the FAA--has the authority to assess
civil penalties for violations of 49 U.S.C. 46303. Consequently, a
reference to 49 U.S.C. 46303 does not belong in 14 CFR 13.14(a)(6).
Second, under 49 U.S.C. 46319(c), a public agency is liable for a
civil penalty of $10,000 for each day that an airport remains closed
without having given the FAA the notice required under 49 U.S.C.
46319(a). Congress, however, failed to specify in 49 U.S.C. 46301(d)(2)
or anywhere else in the Federal aviation statute, that the
Administrator has the authority to assess a penalty for violations of
49 U.S.C. 46319. As a result, a reference to 49 U.S.C. 46319 should not
be included in 14 CFR 13.14(a)(6). In this rulemaking, we are deleting
the reference to 49 U.S.C. 46319.
Third, the Administrator of the FAA has the authority to assess
civil penalties for violations of 49 U.S.C. 46302 for a violation
relating to 49 U.S.C. 46504, and the Secretary of Homeland Security has
the authority to assess civil penalties for other violations of 49
U.S.C. 46302. For this reason, we are adding a parenthetical after
``section 46302'' in 14 CFR 13.14(a)(6) as follows: ``(For a violation
relating to 49 U.S.C. 46504.)'' As a result of these changes, 14 CFR
13.14(a)(6), as amended by this rulemaking, will read: ``Any person who
violated any of the following statutory provisions, or any rule,
regulation or order issued thereunder is subject to a civil penalty * *
* (6) Sections 46301(b), 46302 (for a violation relating to 49 U.S.C.
46504), or 46318.'' We are also adding the parenthetical ``(for a
violation relating to 49 U.S.C. 46504)'' after ``49 U.S.C. 46302'' in
the statutory authority section of Part 13.
The Administrator may assess a civil penalty for a violation of 49
U.S.C. 47107(b) under the first sentence of 49 U.S.C. 46301(d)(2). We
inadvertently omitted 49 U.S.C. 47107(b) when we drafted 14 CFR 13.14.
We are correcting that omission in this rulemaking by adding a new
section 13.14(a)(7), regarding a violation of 49 U.S.C. 47017(b). We
are redesignating the current section 13.14(a)(7) as section
13.14(a)(8).
We also did not include 49 U.S.C. 47107 in the authority section of
Part 13. We are correcting that oversight in this rulemaking.
b. Providing the correct address for the Hearing Docket in the
procedural rules in 14 CFR part 13, subpart D.
Under Part 13 of the Federal Aviation Regulations, we also issue
enforcement orders not involving the assessment of civil penalties. For
example, under 14 CFR 13.20, we issue cease and desist orders and
orders of denial, and under 14 CFR 13.71-13.87, we issue orders of
compliance and orders of immediate compliance involving the
transportation of hazardous materials by air. If a recipient of a
proposed order (or an order of immediate compliance) requests a hearing
under 14 CFR 13.19(c)(5), 13.20(c), 13.20(d), 13.75(a)(2), 13.75(b) or
13.81(e), the proceedings are governed by the rules contained in 14 CFR
part 13, subpart D (14 CFR 13.31-13.63).
In proceedings conducted under 14 CFR part 13, subpart D, the
parties should file documents, including the request for hearing and
the pleadings, in the Hearing Docket. See 14 CFR 13.35 and 13.43. The
address of the Hearing Docket is provided in 14 CFR 13.35, which is the
rule pertaining to requests for hearing. Section 13.35 sets forth the
Hearing Docket's old address. The Hearing Docket's current street
address is as follows: Federal Aviation Administration, 600
Independence Avenue, SW., Wilbur Wright Building--Suite 2W1000,
Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430. When a
party hand-delivers or sends documents by commercial expedited courier
(e.g., Federal Express or United Parcel Service), the party should use
the street address.
The Wilbur Wright Building, in which the Hearing Docket is located,
does not have a mailroom. Documents delivered by the U.S. Postal System
must be sent to, and processed by, the mailroom located in the FAA
headquarters building, at 800 Independence Avenue, SW. When sending
documents to the Hearing Docket by U.S. mail or U.S. certified mail,
the following mailing address should be used (instead of the street
address): Federal Aviation Administration, 800 Independence Avenue,
SW., Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430,
Wilbur Wright Building--Suite 2W1000. We are amending 14 CFR 13.35 to
include the correct street and mailing addresses for the Hearing
Docket.
Procedure Matters
In general, under the Administrative Procedure Act, 5 U.S.C. 553,
agencies must publish regulations for public comment and give the
public at least 30 days notice before adopting regulations. There is an
exception to these requirements if the agency for good cause finds that
notice and public procedure are impracticable, unnecessary, or contrary
to the public interest. In this case, the FAA finds that notice and
comment requirements are unnecessary due to the administrative nature
of the changes. The public interest is served by revising section 13.16
and section 13.235 immediately to inform parties in hazardous materials
civil penalty cases of the availability of judicial review in the
appropriate Federal court of appeals under SAFETEA-LU. It is in the
public interest that the revisions to 14 CFR 13.35 and 13.210 take
effect promptly so that parties filing documents in proceedings under
either subpart D or subpart G of part 13 of the Federal Aviation
Regulations use the Hearing Docket's correct street or mailing address.
Also, it is in he public interest that the Rules of Practice correctly
state the Internet address for the FAA civil penalty adjudication Web
site. The editorial amendments to bring the citations to the Federal
Aviation Act of 1958, as amended, and to the Hazardous Materials
Transportation Act into conformity with the recodification of the
transportation laws and Part 13's revised authority citation will be
helpful to the public and do not warrant notice and comment. The
amendments set forth in this notice do not affect the rights or duties
of any regulated entity.
List of Subjects in 14 CFR Part 13
Administrative practice and procedure, Air transportation, Aviation
safety, Hazardous materials transportation, Investigations, Law
enforcement, Penalties.
The Amendments
0
Accordingly, the Federal Aviation Administration amends part 13 of the
Federal Aviation Regulations as follows:
[[Page 70464]]
PART 13--INVESTIGATIVE AND ENFORCEMENT PROCEDURES
0
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), 5121-5128, 40113-40114, 44103-44106, 44702-44703, 44709-
44710, 44713, 46101-46111, 46301, 46302 (for a violation of 49
U.S.C. 46504), 46304-46316, 46318, 46501-46502, 46504-46507, 47106,
47107, 47111, 47122, 47306, 47531-47532; 49 CFR 1.47.
0
2. Amend Sec. 13.14 by revising Sec. 13.14(a)(6), redesignating the
current Sec. 13.14(a)(7) as new Sec. 13.14(a)(8), and adding a new
Sec. 13.14(a)(7), to read as follows:
Sec. 13.14 Civil penalties: General.
(a) * * *
(6) Sections 46301(b), 46302 (for a violation of 49 U.S.C. 46504),
or 46318;
(7) Section 47107(b); or
* * * * *
0
3. Revise Sec. 13.16(a) and Sec. 13.16(m) to read as follows:
Sec. 13.16 Civil Penalties: Administrative assessment against a
person other than an individual acting as a pilot, flight engineer,
mechanic, or repairman. Administrative assessment against all persons
for hazardous materials violations.
(a) The FAA uses these procedures when it assesses a civil penalty
against a person other than an individual acting as a pilot, flight
engineer, mechanic, or repairman for a violation cited in the first
sentence of 49 U.S.C. 46301(d)(2) or in 49 U.S.C. 47531, or any
implementing rule, regulation or order.
* * * * *
(m) A party may seek review only of a final decision and order of
the FAA decisionmaker involving a violation of the Federal aviation
statute or the Federal hazardous materials transportation law. Judicial
review is in the United States Court of Appeals for the District of
Columbia Circuit or the United States court of appeals for the circuit
in which the party resides or has the party's principal place of
business as provided in Sec. 13.235 of this part. Neither an initial
decision or an 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 any of those sections.
* * * * *
0
4. Amend Sec. 13.35 by revising paragraph (a), redesignating current
paragraphs (b) and (c) as (c) and (d), and adding a new paragraph (b),
to read as follows:
Sec. 13.35 Request for hearing.
(a) A request for hearing must be made in writing and filed in the
Hearing Docket.
(1) If delivery is in person, or by expedited courier service. A
person delivering the request for hearing in person or sending the
request for hearing by commercial expedited courier (for example,
Federal Express or United Parcel Service), should use the following
address: Federal Aviation Administration, 600 Independence Avenue, SW.,
Wilbur Wright Building--Suite 2W1000, Washington, DC 20591; Attention:
Hearing Docket Clerk, AGC-430.
(2) If delivery is by U.S. Mail: If the request for hearing is sent
by U.S. Mail, then it should be addressed as follows: Federal Aviation
Administration, 800 Independence Avenue, SW., Washington, DC 20591:
Attention: Hearing Docket Clerk, AGC-430, Wilbur Wright Building--Suite
2W1000.
(b) The request for hearing must describe the action proposed by
the FAA, and must contain a statement that a hearing is requested. A
copy of the request for hearing and a copy of the answer required by
paragraph (c) of this section must be served on the official who issued
the notice of proposed action.
* * * * *
0
5. Amend Sec. 13.202 by revising the definition of ``complaint'' and
the first sentence of the definition of ``order assessing civil
penalty'' to read as follows:
Sec. 13.202 Definitions
* * * * *
Complaint means a document issued by an agency attorney alleging a
violation of a provision of the Federal aviation statute listed in the
first sentence of 49 U.S.C. 46301(d)(2) or in 49 U.S.C. 47531, or of
the Federal hazardous materials transportation statute, 49 U.S.C. 5121-
5128, or a rule, regulation, or order issued under those statutes, that
has been filed with the Hearing Docket after a hearing has been
requested under Sec. 13.16(f)(3) or (g)(2)(ii) of this part.
* * * * *
Order assessing civil penalty means a document that contains a
finding of a violation of a provision of the Federal aviation statute
listed in the first sentence of 49 U.S.C. 46301(d)(2) or in 49 U.S.C.
47531, or of the Federal hazardous materials transportation statute, 49
U.S.C. 5121-5128, or a rule, regulation or order issued under those
statutes, and may direct payment of a civil penalty. * * *
* * * * *
0
6. Amend Sec. 13.210 by revising paragraphs (a)(1) and (2) and (e)(2)
to read as follows:
Sec. 13.210 Filing of documents.
(a) * * *
(1) If delivery is in person, or via expedited courier service:
Federal Aviation Administration, 600 Independence Avenue, SW., Wilbur
Wright Building--Suite 2W1000, Washington, DC 20591; Attention: Hearing
Docket Clerk, AGC-430.
(2) If delivery is via U.S. Mail: Federal Aviation Administration,
800 Independence Avenue, SW., Washington, DC 20591; Attention: Hearing
Docket Clerk, AGC-430, Wilbur Wright Building--Suite 2W1000.
* * * * *
(e) * * *
(2) Decisions and orders issued by the Administrator in civil
penalty cases, indexes of decisions, contact information for the FAA
Hearing Docket, and the administrative law judges, the rules of
practice, and other information is available on the FAA civil penalty
adjudication Web site at: http://faa.gov/about/office_org/
headquarters-- offices/agc/ pol--adjudication/AGC400/Civil--Penalty.
0
7. Amend Sec. 13.218 by revising the third sentence of paragraph
(f)(1) to read as follows:
Sec. 13.218 Motions.
* * * * *
(f) * * *
(1) * * * A motion to dismiss the complaint for insufficiency must
show that the complaint fails to state a violation of a provision of
the Federal aviation statute listed in the first sentence in 49 U.S.C.
46301(d)(2) or in 49 U.S.C. 47531, or any implementing rule,
regulation, or order, or a violation of the Federal hazardous materials
transportation statute, 49 U.S.C. 5121-5128, or any implementing rule,
regulation or order.
0
8. Amend Sec. 13.219 by revising the second sentence of paragraph (a)
to read as follows:
Sec. 13.219 Interlocutory appeals.
(a) * * * A decision or order of the FAA decisionmaker on the
interlocutory appeal does not constitute a final order of the
Administrator for the purposes of judicial appellate review as provided
in Sec. 13.235 of this subpart.
* * * * *
[[Page 70465]]
0
9. Revise Sec. 13.228(c) to read as follows:
Sec. 13.228 Subpoenas.
* * * * *
(c) Enforcement of subpoena. Upon a showing that a person has
failed or refused to comply with a subpoena, a party may apply to the
local federal district court to seek judicial enforcement of the
subpoena in accordance with 49 U.S.C. 46104 in cases under the Federal
aviation statute.
0
10. Revise Sec. 13.235 to read as follows:
Sec. 13.235 Judicial review of a final decision and order.
(a) In cases under the Federal aviation statute, a party may seek
judicial review of a final decision and order of the Administrator, as
provided in 49 U.S.C. 46110(a), and, as applicable, in 49 U.S.C.
46301(d)(7)(D)(iii), 46301(g), or 47532.
(b) In cases under the Federal hazardous materials transportation
statute, a party may seek judicial review of a final decision and order
of the Administrator, as provided in 49 U.S.C. 5127.
(c) A party seeking judicial review of a final order issued by the
Administrator may file a petition for review in the United States Court
of Appeals for the District of Columbia Circuit or in the United States
Court of Appeals for the circuit in which the party resides or has its
principal place of business.
(d) The party must file the petition for review no later than 60
days after service of the Administrator's final decision and order.
Issued in Washington, DC, on November 28, 2006.
Rebecca MacPherson,
Assistant Chief Counsel for Regulations.
[FR Doc. 06-9508 Filed 12-4-06; 8:45 am]
BILLING CODE 4910-13-M