[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 [www.gpo.gov]
[FR Doc No: 2022-24982]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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; [email protected]; 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; [email protected].

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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


