Rule2022-24982
Expunction Policy for Certain Civil Penalty Actions, Military Referrals, and Foreign Referrals
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 21, 2022
Effective
December 1, 2022
Issuing agencies
Transportation DepartmentFederal Aviation Administration
Abstract
The FAA will expunge records of civil penalty actions against individuals settled with no finding of violation, referrals of apparent violations by U.S. service members to the U.S. Armed Forces, and referrals of apparent violations by individual foreign certificate users to foreign aviation authorities.
Full Text
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<title>Federal Register, Volume 87 Issue 223 (Monday, November 21, 2022)</title>
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[Federal Register Volume 87, Number 223 (Monday, November 21, 2022)]
[Rules and Regulations]
[Pages 70707-70708]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-24982]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 11, 91, and 111
[Docket No. FAA-2022-1546]
Expunction Policy for Certain Civil Penalty Actions, Military
Referrals, and Foreign Referrals
AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).
ACTION: Policy statement.
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SUMMARY: The FAA will expunge records of civil penalty actions against
individuals settled with no finding of violation, referrals of apparent
violations by U.S. service members to the U.S. Armed Forces, and
referrals of apparent violations by individual foreign certificate
users to foreign aviation authorities.
DATES: This notification of enforcement policy is effective December 1,
2022.
FOR FURTHER INFORMATION CONTACT: Cole R. Milliard, Attorney,
Enforcement Division, AGC-300, Office of the Chief Counsel, Federal
Aviation Administration, 800 Independence Avenue SW, Washington, DC
20591; telephone (202) 267-3452; <a href="/cdn-cgi/l/email-protection#01426e6d642f4c686d6d68607365416760602f666e77"><span class="__cf_email__" data-cfemail="60230f0c054e2d090c0c09011204200601014e070f16">[email protected]</span></a>; or James Barry,
Manager, Policy/Audit/Evaluation, AGC-300, Office of the Chief Counsel,
Federal Aviation Administration, 800 Independence Avenue SW,
Washington, DC 20591; telephone (202) 267-8198; <a href="/cdn-cgi/l/email-protection#4208232f27316c002330303b022423236c252d34"><span class="__cf_email__" data-cfemail="b3f9d2ded6c09df1d2c1c1caf3d5d2d29dd4dcc5">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Background
In 1991, the FAA adopted a policy of expunging records of certain
closed legal enforcement actions against individuals.\1\ The policy
provided for the expunction of certain legal enforcement action records
for individuals who hold airman certificates and those who do not, such
as passengers. In 2011, the FAA suspended the expunction policy \2\
based on the Airline Safety and Federal Aviation Administration
Extension Act of 2010 (``Act'').\3\ The Act amended the Pilot Records
Improvement Act by requiring the FAA to create a pilot records database
(``PRD'') for air carriers to use for pilot background checks. The Act
further required the FAA to
[[Page 70708]]
maintain in the PRD ``summaries of legal enforcement actions resulting
in a finding by the Administrator of a violation of this title or a
regulation prescribed or order issued under this title that was not
subsequently overturned.'' \4\ The FAA is required to retain these
records until the individual is deceased.\5\ The FAA, therefore,
determined that continuing its expunction policy was inconsistent with
the Act and proceeded to implement the PRD through rulemaking.\6\
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\1\ See FAA Enforcement Records; Expunction Policy, 56 FR 55788
(Oct. 29, 1991).
\2\ See FAA Policy Statement on Expungement of Certain
Enforcement Actions, 76 FR 7893 (Feb. 11, 2011).
\3\ Public Law 111-216, 124 Stat. 2348 (2010).
\4\ 49 U.S.C. 44703(i)(2)(A)(iii).
\5\ 49 U.S.C. 44703(i)(5).
\6\ 76 FR 7894.
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On June 10, 2021, the FAA published the final rule for the PRD in
the Federal Register.\7\ As stated in the final rule preamble, the Act
``requires the FAA to maintain records in the PRD for the life of the
pilot and does not provide the FAA with discretion to expunge records
outside of that timeframe.'' \8\ However, records without a finding of
violation are not included in the PRD.\9\ When the FAA suspended the
expunction policy in 2011, it stated it would determine the full effect
of the PRD on the expunction policy and amend the policy
accordingly.\10\ The FAA has therefore reviewed all types of legal
enforcement actions it issues to determine which records the FAA may
expunge consistent with the Act and the PRD final rule.
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\7\ 86 FR 31006. The PRD notice of proposed rulemaking
(``NPRM'') is at 85 FR 17660 (Mar. 30, 2020).
\8\ 86 FR 31017. Consistent with the Act's requirement, the FAA
will expunge records when a pilot reaches ninety-nine years of age
or upon receiving a notification of death. Id.; see also 14 CFR
111.40.
\9\ See 49 U.S.C. 44703(i)(2)(A)(iii).
\10\ 76 FR 7894.
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Under 49 U.S.C. 46101(b), the Administrator must refer a complaint
involving an apparent violation of a statute or regulation the FAA
administers by a member of the U.S. Armed Forces while performing
official duties to the secretary of the department concerned for
action. The FAA calls these ``military referrals.'' In addition, the
FAA refers an apparent violation of a statute or regulation it
administers by an individual while exercising a foreign certificate or
license (or other approval or authorization) to the appropriate foreign
aviation authority for action. The FAA calls these ``foreign
referrals.'' The FAA does not make a finding of violation as part of
the military or foreign referral process. The FAA also may issue
compromise orders, which involve no finding of violation, in settlement
of civil penalty assessment actions and may compromise civil penalties
of amounts greater than $50,000 against individuals without a finding
of violation.\11\
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\11\ See 14 CFR 13.16(n)(2) & 13.18(i)(2); FAA Order 2150.3C,
ch. 8, para. 20.f.(2). The provision in Sec. 13.16(n) is not used
in hazmat cases as a matter of policy. FAA Order 2150.3C, ch. 8,
para. 19.g.(2).
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Policy Statement
The FAA will begin expunging records of military and foreign
referrals two years after the FAA closes those actions in the
Enforcement Information System (``EIS'').\12\ The FAA will close
records of military and foreign referrals in EIS after (1) the FAA
receives a response stating the action taken; or (2) 180 days from the
date of the referral, whichever comes first. A two-year period before
expunging military and foreign referrals comports with Privacy Act
requirements that the agency maintain in its records only such
information about an individual as is relevant and necessary to
accomplish a statutory purpose of an agency.\13\ The FAA will also
expunge records of civil penalty actions against individuals settled
with no finding of violation from EIS. Specifically, the FAA will
expunge no-finding civil penalty actions five years after the date an
individual subject to the civil penalty action or his or her
representative: (1) pays the civil penalty; or (2) provides a
promissory note for payment of the civil penalty to the FAA. If, at the
time a record of a civil penalty action is due to be expunged, a
subsequent enforcement action against the individual has been opened,
the first civil penalty action record will be expunged if and when the
subsequent enforcement action is expunged. This is consistent with the
1991 FAA expunction policy. If an individual who owes a civil penalty
cannot be located, the FAA will maintain the record of the civil
penalty action indefinitely unless or until the individual is located
and the criteria in this policy statement for expunging the civil
penalty action are satisfied. If a civil penalty is deemed
``uncollectable,'' the record will not be expunged until the civil
penalty is satisfied.
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\12\ If conduct underlying the referral also gives rise to a
legal enforcement action with a finding of violation, the record of
that separate action will be maintained in accordance with 49 U.S.C.
44703(i)(2)(A)(iii) and 14 CFR part 111. See, e.g., FAA Order
2150.3C, ch. 8, para. 29.b. (FAA is authorized to take legal
enforcement action against any foreign person who violates U.S.
statutes or regulations and may do so in the exercise of
prosecutorial discretion); ch. 9, para. 10 (FAA may take action
against a member of the U.S. Armed Forces if circumstances of the
military referral demonstrate or raise a question as to a lack of
qualification to hold an FAA-issued certificate).
\13\ 5 U.S.C. 552a(e)(1).
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The FAA will apply this expunction policy both prospectively and
retrospectively, allowing for the expunction of EIS records of past
actions that meet the criteria in this policy statement.
Issued in Washington, DC, on November 10, 2022.
Cynthia A. Dominik,
Assistant Chief Counsel for Enforcement.
[FR Doc. 2022-24982 Filed 11-18-22; 8:45 am]
BILLING CODE 4910-13-P
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