(a) Procedure for assessment of penalty. The Commission may assess a civil penalty or, in addition to or in lieu of a civil penalty, a refund of a charge, only after notice and opportunity for hearing. Civil penalty assessment proceedings, including settlement negotiations, shall be governed by the Commission's Rules of Practice and Procedure in this part. All settlements must be approved by the Presiding Officer. The full text of any settlement must be included in the final order of the Commission.

(b) Determination of amount—(1) Factors for consideration. In determining the amount of a civil penalty assessed pursuant to paragraph (a) of this section, the Federal Maritime Commission shall take into consideration:

(i) The nature, circumstances, extent, and gravity of the violation committed;

(ii) With respect to the violator:

(A) The degree of culpability;

(B) Any history of prior offenses;

(C) The ability to pay; and

(D) Such other matters as justice may require; and

(iii) The amount of any refund of money ordered under 46 U.S.C. 41310.

(2) Commensurate reduction in civil penalty—(i) In general. In any case in which the Federal Maritime Commission orders a refund of money in addition to assessing a civil penalty, the amount of the civil penalty assessed shall be decreased by any additional amounts included in the refund of money in excess of the actual injury (as defined in 46 U.S.C. 41305(a)).

(ii) Treatment of refunds. A refund of money ordered shall be:

(A) Considered to be compensation paid to the applicable claimant; and

(B) Deducted from the total amount of damages awarded to that claimant in a civil action against the violator relating to the applicable violation.

(c) Limitations; relation to compromise. When the Commission, in its discretion, determines that policy, justice or other circumstances warrant, a civil penalty assessment proceeding may be instituted at any time for any violation which occurred within five years prior to the issuance of the order of investigation. Such proceeding may also be instituted at any time after the initiation of informal compromise procedures, except where a compromise agreement for the same violations under the compromise procedures has become effective under § 502.604). [Rule 603.]