HELP STOP LICENSE PENALTIES

Here's how -- What follows are two forms you can download or copy, then finish off as indicated. And, if necessary, you can write them by hand. Any citizen has the right to petition the Federal Government, thanks to the First Amendment to the U.S. Constitution, the Administrative Procedure Act, and FAR 11.25.

Petition for rule making -- The petition you'll be sending is a simplified version of the one I filed in 1991. Hopefully, you've already read that one, so you'll know it asked for an amendment to FAR 13.19 that states in plain English, "commit a violation, lose your license." FAA lawyers, as you know, are still sitting on both of mine because if either were sent to the Administrator, he or she would read it, and ask the lawyers, "Since that is our policy, why on earth would we not tell airmen in the FARs they can lose their license for a safety violation? Is this not required by the Administrative Procedure Act?" Believe me, these are questions FAA lawyers cannot provide a straight answer to.

Why, some of you may ask, do you want to authorize such penalties? Understand, promulgating a rule does not confer authority. To be lawful, it must be authorized in the first place by legislation. Congress is the only branch of government that can create penalties, or benefits, e.g, food stamps. Someone has to introduce a bill. That guarantees public participation through committee hearings. Such hearings would assure that, like automobile penalties, license suspensions or revocations would be limited to the most serious violations, like DUI, reckless driving, etc. Remember, it was Congress that authorized civil penalties. Why are license penalties not in some law? You know the answer. They were made up of whole cloth in 1926. Read Emperor for the detailed story.

The whole point of your efforts, same as was my petition, is to get the issue out in the open, and to stop license penalties until Congress can act. If you ever wanted to put FAA lawyers and officials on the spot, send in this petition. And the letter to the Administrator. If a few dozen, a hundred, or a thousand of you, do so, it will be difficult for the Office of Chief Counsel to keep the Administrator ignorant of the matter, as they have with my petitions, as you should have read in The Coverup section.

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PETITION FOR RULEMAKING

Subject: Amendment of Federal Aviation Regulation section 13.19 (14 CFR § 13.19).

To: Rules Docket (AGC-10), Federal Aviation Administration, 800 Independence Avenue SW, Washington DC 20591.

Petitioner: [Your name]

Petitioner's address:

Authority: FAR 11.25.

Purpose: To amend FAR 13.19 to include an explicit statement that the Administrator claims authority to suspend or revoke airmen and operator certificates as a sanction or penalty for the violation of safety rules.

SUMMARY

General nature of the proposed rule: To amend FAR 13.19 to include a clear and specific warning to airmen who hold FAA certificates that those certificates can be suspended or revoked as a sanction or penalty for the violation of an air-safety rule.

Reasons for the petition: The use of punitive suspensions and revocations of pilot, mechanic, and other airmen certificates issued by the FAA and predecessor agencies has been policy since 1926. Although there were specific rules on the subject from 1926 through 1939, no such rule has appeared in the Code of Federal Regulations since that year. Not only should the policy be evident in plain language in the FARs, but a Notice of Proposed Rule Making (NPRM) would provide an opportunity for the public to comment as to when and under what circumstances a license penalty should be used, rather than a civil money fine. Nothing in the petition adds to or changes any policy of the Administrator not already in use.

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PROPOSED AMENDMENT

Note: The amendment is shown in bold. Only the portions of FAR 13.19 relevant to the amendment, basically the first few paragraphs, are reproduced here.

14 CFR § 13.19 Certificate Action

(a) Under section 609 of the Federal Aviation Act of 1958 the Administrator may reinspect any civil aircraft, aircraft engine, propeller, appliance, air navigation facility, or air agency, and may re-examine any civil airman. . . .

(b) If, as a result of such a reinspection, re-examination, or other investigation made by the Administrator under section 609 of the FA Act, the Administrator determines that the public interest and safety in air commerce requires it, the Administrator may issue an order amending, suspending, or revoking, all or part of any type certificate, production certificate, airworthiness certificate, airman certificate, air carrier operating certificate, air navigation facility certificate, or air agency certificate. The Administrator, as an alternative to a civil-money penalty imposed pursuant to section 901(a)(1) of the FA Act may also issue an order suspending or revoking any of the certificates named above as a sanction or penalty for the violation of any air-safety rule, regulation or order issued by the Administrator. . . .

Petitioners' interest: Petitioner is a [pilot, mechanic, etc.] and holds a [private, commercial, ATP, etc., including any type ratings, your job if a professional, whatever] And his certificate is at risk because of the license-penalty policy. If you have no certificate, just say you are a citizen who is interested in having federal agencies comply with the law.

Comment and argument: FAA officials interpret section 609 of the Federal Aviation Act to authorize the Administrator to suspend or revoke certificates as a sanction or penalty for safety violations. Yet they have placed no rule in the Federal Aviation Regulations concerning such a penalty. FAR 13.19 should state this clearly so airmen may understand that their licenses are at risk for such behavior. Any concept of Justice dictates that the public be told in plain terms how they will be punished for safety infractions; common sense dictates that doing so will promote air-safety.

Moreover, publishing this amendment as a Notice of Proposed Rule Making will allow the public to comment on the circumstances they believe should trigger the use of a license penalty, as opposed to a money fine. The former frequently puts the professional airman out of work for one, two, or more months, if not cause loss of his job entirely. The latter allows him or her to continue working, or the pilot-businessman to continue to utilize his aircraft.

Nothing in the proposed amendment adds to or changes any FAA enforcement policy, but simply places in the FARs a clear statement of the agency's basic punitive certificate sanction policy as it has existed since 1926.

The license-penalty policy is adverted to repeatedly in FAA manuals, it should be in a formal rule. These are samples:

"Violation of any rule, regulation or order issued by the Administrator is punishable either by certificate or civil penalty action." Manual of Procedures 22, Bureau of Flight Standards, Federal Aviation Agency at 0 (1960).

"Revocation of a certificate or a rating should be sought in all cases where there is a lack of capacity . . . Revocation should also be used for punitive purposes where the nature of the violation warrants it." Handbook for Handling Legal Aspects of FAA Enforcement Program, FAA Order 2150.2, ¶ 9.d. at page 10 (1968) ("Lawyers Handbook").

"Compliance with the regulations is promoted through both administrative and formal legal actions. . . . Formal legal actions are undertaken to: (b) Impose punitive sanctions, after the act, to deter violations (e.g., certificate actions, civil penalties); . . ."Compliance and Enforcement Program, FAA Order 2150.3, par. 203 (1980) (Reprinted Oct. 1983).

(Later editions make no substantive change in the license penalty policy, even if worded differently. If would make no difference in any event since manuals are not official federal publications: presenting agency policies and rules is the function of the Code of Federal Regulations. This manual was designed to consolidate all agency enforcement procedures for the convenience of the public, by order of then Administrator Langhorn Bond.)

Previous rule from 1926 to 1939: Dept. of Commerce, Air Commerce Regulations (1926): Sec. 74. Suspension or revocation of licenses.

Pilot's and mechanic's licenses will be suspended or revoked for- (A) Violating any provision of the air commerce act of 1926 or these regulations . . . . (F) Violating air traffic rules.

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Dated: ________________

PETITIONER: ________________________Sign here:

[Don't forget, for the FAA, be sure to include the signed original and two photo copies showing your signature. Make one for your own file; another to include in your letter to the Administrator; then send one to me: Lawrence B. Smith, P.O. Box 13543, Tucson, AZ 85711. If you do your job, I'll have a bundle at some point to send to the DOT Inspector General, and to Sen. John McCain, with whom I've talked and communicated about this FAA problem several times. Think about sending a copy to your representative and two senators. So make an original and seven copies altogether. You might include a personal letter asking them to request Administrator Garvey to keep them advised on the fate of the petition.

______________Letter head, or name and address

Hon. Jane Garvey

Administrator

Federal Aviation Administration

800 Independence Avenue, S.W.

Washington, D.C. 20591

Dear Madam Administrator:

Enclosed please find a copy of a petition for rule making I have just filed with your Regulatory Docket in the Office of Chief Counsel. My purpose in writing is to bring to your attention a serious problem with FAA enforcement policies, a problem that requires your personal attention.

FAA lawyers, over many decades, in the name of the Administrator, have suspended tens of thousands of pilot and mechanic licenses, and those of many operators, for the alleged violation of air-safety rules, rather than using civil-money fines. Yet I can find no language in the FARs that even hints such a sanction or penalty exists.

With all due respect, it seems to me that you have the duty, pursuant to the Administrative Procedure Act, to promulgate a Notice of Proposed Rule Making that incorporates the existing policy. That is the purpose of my petition for rule making.

In 1991 a similar petition was filed, Reg. Docket No. 26642. I understand that now , ten years later, it still sits in limbo in the Office of Chief Counsel's files and no memorandum has ever been sent by that office to the Administrator recommending a letter of denial. This appears to be in violation of FAR 11.51.

In January 1989 a petition for rule making (Reg. Docket No. 25784) proposed a comprehensive rule that explains how the entire enforcement program for air-safety violations works. Thirteen years later, it also remains in the Office of Chief Counsel.

I respectfully suggest that you have a responsibility to airmen and citizens like myself to find out why these two petitions were never published as NPRMs, or forwarded to the Administrator for denial.

May I suggest, if you are not already aware of it, that you take a close look at the Web site, www.faajustice.com. Recently a second segment has been added and it reproduces both petitions of which I speak, as well a section entitled, 75 Years of Coverup. I urge you also to read sections, FAA Consultant and Marsh Statement, in the first segment.

I will be grateful if, after your investigation, you will inform me of what you find, and whether you intend to publish my petition as an NPRM.

Very truly yours,

s/

Encl Copy of petition