PETITION TO AMEND FAR 13.19 (1991)

Comment -- When I saw FAA lawyers were going to do nothing with the comprehensive rule, in August 1991 I filed on behalf of three pilots here in Tucson a petition to amend FAR 13.19 by inserting a sentence that spells out exactly what they claim they are authorized to do. After a series of four or five letters from some clerk saying the matter was being given consideration, and who obviously knew the lawyers were stalling, the matter died. I don't know, but doubt if the lawyers ever published the summary. Like the comprehensive rule petition, this also still sits in the docket, rather sent to the Administrator with a memorandum explaining why it should be denied. My biggest regret is that I did not bring appropriate legal action to force the Chief Counsel to do that, but by this time I was heavily involved in litigation. More in the Coverup section.

You don't need to read the entire rule, once you're past the amendment I suggest you look at the backup material. It shows how easily FAA lawyers discuss violations and certificate actions in their own materials but deliberately avoid telling you about it their FARs.

* * * * *

[FAA Reg. Dkt. 26642] PETITION FOR RULEMAKING

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

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

From petitioners: Marvin Borodkin, S. Jon Trachta, Stephen C. Parkman.

Prepared by: Lawrence B. Smith, Attorney at Law, 3938 E. Grant Rd., #191, Tucson AZ 85712; Tel: 602/326-0283, Fax: 602/326-8230. (Direct all correspondence here.)

Authority: Administrative Procedure Act (APA), 5 USC § 553(e), 14 CFR § 11.25.

Purpose: To amend FAR § 13.19 to include an explicit statement that the Administrator claims and exercises the authority to suspend or revoke airmen and operator certificates as an alternative and/or concurrent penalty to that of a civil-money fine for the violation of safety rules.

PROPOSED AMENDMENT

[The brief amendment is shown in bold and underscored.]

14 CFR § 13.19 Certificate Action

(a) Under section 609 of the Federal Aviation Act of 1958 (49 U.S.C. 1429), the Administrator may reinspect any civil aircraft, aircraft engine, propeller, appliance, air navigation facility, or air agency, and may re-examine any civil airman. Under section 501(e) of the FA Act, any Certificate of Aircraft Registration may be suspended or revoked by the Administrator for any cause that renders the aircraft ineligible for registration.

(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 [if] 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 or in conjunction with a civil-money penalty imposed pursuant to section 901(a)(1) of the FA Act, 49 U.S.C. § 1471(a)(1), may also issue an order suspending or revoking any airman, air-carrier operating certificate, or air agency certificate as a penalty for the violation of any air-safety rule, regulation or order issued by the Administrator. This authority may be exercised for remedial purposes in cases involving the Hazardous Materials Transportation Act (49 U.S.C. 1801 et seq.) or regulations issued under that act. This authority is also exercised by the Chief Counsel, Assistant Chief Counsel for Regulations and Enforcement, and the Regional Counsel concerned. If the Administrator finds that any aircraft registered under Part 47 of this chapter is ineligible for registration or if the holder of a Certificate of Aircraft Registration has refused or failed to submit AC Form 8050-73, as required by § 47.51 of this chapter, the Administrator issues an order suspending or revoking that certificate. This authority as to aircraft found inelegible for registration is also exercised by the Aeronautical Center Counsel.

(c) Before issuing an order under paragraph (b) of this section, the Chief Counsel, the Assistant Chief Counsel for Regulations and Enforcement, the Regional Counsel concerned, or the Aeronautical Center Counsel (as to matters under Title V of the FA Act) advises the certificate holder of the charges or other reason upon which the Administrator bases the proposed action and, except in an emergency, allows the holder to answer any charges and to be heard as to why the certificate should not be amended, suspended, or revoked. The holder may, by checking the appropriate box on the form that is sent to the holder with the notice of proposed certificate action, elect to --

(1) Admit the charges and surrender his or her certificate;

(2) Answer the charges in writing;

(3) Request that an order be issued in accordance with the notice of proposed certificate action so that the certificate holder may appeal to the National Transportation Safety Board, if the charges concern a matter under Title VI of the FA Act;

(4) Request an opportunity to be heard in an informal conference with the FAA counsel; or

(5) Request a hearing in accordance with subpart D of this part if the charges concern a matter under Title V of the FA Act. Except as provided in § 13.35(b), unless the certificate holder returns the form and, where required, an answer or motion, with a postmark of not later than 15 days after the date of receipt of the notice, the order of the Administrator is issued as proposed. If the certificate holder has requested an informal conference with the FAA counsel and the charges concern a matter under Title V of the FA Act, the holder may after that conference also request a formal hearing in writing with a postmark of not later than 10 days after the close of the conference. After considering any information submitted by the certificate holder, the Chief Counsel, the Assistant Chief Counsel for Regulations and Enforcement, the Regional Counsel concerned, or the Aeronautical Center Counsel (as to matters under Title V of the FA Act) issues the order of the Administrator, except that if the holder has made a valid request for a formal hearing on a matter under Title V of the FA Act initially or after an informal conference, Subpart D of this part governs further proceedings.

(d) Any person whose certificate is affected by an order issued under this section may appeal to the National Transportation Safety Board. If the certificate holder files an appeal with the Board, the Administrator's order is stayed unless the Administrator advises the Board that an emergency exists and safety in air commerce requires that the order become effective immediately. If the Board is so advised, the order remains effective and the Board shall finally dispose of the appeal within 60 days after the date of the advice. This paragraph does not apply to any person whose Certificate of Aircraft Registration is affected by an order issued under this section.

* * * * *

Petitioners' interest: Marvin Borodkin is an attorney practicing law in the State of Arizona; he holds a commercial pilot certificate and owns a twin-engine Beechcraft Baron. S. Jon Trachta is also a practicing attorney in Arizona; he holds a commercial pilot certificate and owns a Cessna C-182. Stephen C. Parkman owns his own computer repair and consulting business; he holds a private pilot certificate and is a homebuilder constructing a Quickie-2. As active pilots, petitioners are subject to suspension or revocation for the violation of a multitude of air-traffic and other flight and safety rules.

Comment and argument: FAA officials interpret section 609 to authorize the Administrator to suspend or revoke certificates strictly as punishment for safety violations, and as an alternative penalty to or in conjunction with a civil-money fine. Yet no rule exists in the Federal Aviation Regulations which supports such a penalty. FAR § 13.19 should state this clearly so airmen may understand that their licenses are at risk for such behavior. Fairness dictates that the public be told in plain terms how they will be punished for safety rules 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 (for the first time) to comment on the circumstances they believe should trigger use of a license penalty as opposed to a simple 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.

Nothing in the proposed amendment adds to or changes any FAA enforcement policy; it simply codifies the agency's basic punitive certificate sanction policy as it has existed for sixty-five (65) years.

**. The license-penalty policy ("rule") is adverted to repeatedly in FAA manuals:

"[V]iolation 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, Enforcement Authority (1960). Again:

"d. Certificate Action - Revocation. 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").

One of the clearest explanations of the section 609 dichotomy--qualifications/punishment--is this:

"200. GENERAL Although the reexamination of certificated airmen and reinspection of certified aircraft, aircraft components and appliances, air navigation facilities and air agencies do not involve enforcement in the strict sense of "punishment of offenses," they are considered in this handbook because the objective and the procedures are identical with those applicable to enforcement matters.

"201. AUTHORITY Under Section 609 of the Federal Aviation Act of 1958, the Administrator is authorized to "reinspect any aircraft, aircraft engine, propeller, appliance, air navigation facility or agency," and "to reexamine any airman" at any time. . . .

Compliance and Enforcement, FAA Order 8030.7A, ¶¶ 200 & 201 (1970) (Consolidated Reprint 1977) [Inspector's Handbook].

Since 1980 the FAA has had a single, consolidated enforcement procedures manual; an earlier edition, Compliance and Enforcement Program, FAA Order 2150.3 (1980) (Reprinted Oct. 1983) (emphasis added), provided:

[Note: Later editions made no substantive change in the license penalty policy; this edition happens to contain the most detailed and explicit explanation of it and the claimed authority to be able to choose between civil penalty action and punitive certificate action.]

[p. 12] 203. ENFORCEMENT PROGRAM. The objectives of the enforcement program as set forth in Order 1000.9C, Enforcement Policy, are achieved through surveillance and detection, investigation, and enforcement processing. . . . .

[p. 13] c. Enforcement Processing. When violations occur, firm action must be taken. A vigorous enforcement policy is necessary to achieve compliance with the regulations and we must forcefully respond to violations. Firmness should be balanced with fairness.

(1) Policy. Compliance with the regulations is promoted through both administrative and formal legal actions. Administrative actions (warning letters or letters of correction [FAR § 13.11]) are utilized to check potentially unsafe practices in situations where formal actions are unnecessary or inappropriate. Formal legal actions are undertaken to:

(a) Enjoin conduct, before the act, which would violate the regulation (e.g., cease and desist orders [FAR § 13.20], injunctions [FAR § 13.25], aircraft seizures [FAR § 13.17]);

(b) Impose punitive sanctions, after the act, to deter violations (e.g., certificate actions [no FAR for such sanctions], civil penalties [FAR § 13.15]);

(c) Achieve remedial purposes (e.g., certificate suspension pending demonstration of qualifications; revocation for lack of certificate qualifications [FAR § 13.19]).

(2) Judgement in Selecting Appropriate Action. It is difficult, solely by order, to establish guidelines which will correctly categorize all regulatory infractions so as to pin point the appropriate enforcement action. The ultimate decision must be the product of judgement and experience applied to the facts and circumstances of the individual case. Inspectors and field office chiefs must continue to exercise good judgement in handling first offense violations which meet the criteria for [p. 14] administrative action and can be so handled with dispatch. If, however, the violation does not fit that criteria or there is deceit or incompetence involved, take strong action. Use the maximum sanctions appropriate. If monetary sanction against any certificate holder is insufficient to get and keep their attention, do not hesitate to use certificate action. Enforcement and investigative personnel can expect that their diligent efforts will be given full support at all levels of the FAA.

(3) National Uniformity. Each region must make every effort to achieve uniformity of enforcement action. Similar violations under similar circumstances should result in the same type of enforcement action and sanction. . . .

204. ADMINISTRATIVE ACTION. Administrative enforcement action may be taken in lieu of legal enforcement action . . .

205. DETERMINING THE TYPE OF LEGAL ENFORCEMENT ACTION. It is the inspector's responsibility to initially recommend the appropriate enforcement action. All involved elements of the FAA are then responsible for evaluating the seriousness of a violation, defining its impact on safety, and judging the necessary action to obtain compliance. It is the intent of the following guidelines to assure greater national uniformity in enforcement actions.

a. Civil penalty.

(1) Civil penalty action is normally used as the sanction in cases where the violator does not hold any current certificate, in cases where the violator holds a certificate but no question of qualification is involved, or where the facts or circumstances are too serious to handle by administrative type enforcement action. Civil penalties may also be used in lieu

[p. 15] of certificate action where suspension is not necessary to obtain immediate corrective action. For example, where a major air carrier is involved in a maintenance violation and has taken satisfactory corrective action, a substantial civil penalty will serve as an appropriate deterrent without disrupting essential air service to the public. Civil penalties also may be initiated in any case where normally a suspension would be manifestly unfair or create an undue hardship and is not required for aviation safety. However, when there is a serious ongoing safety violation involved, and immediate corrective action cannot be obtained, certificate action should be considered not withstanding hardship to the certificate holder or disruption of public service.

(2) Civil penalty action will not normally be used as an additional sanction to certificate action. It should not be used as a substitute for certificate or restraining action when competence, attitude, or other circumstances are such that the same or similar violation is likely to occur.

b. Certificate action - suspension.

(1) Suspension action should be considered in all cases where safety requires it. . . .

(2) It should be used in all cases where technical proficiency or qualification warrants, as in the case of an unqualified mechanic.

(3) Suspension action is warranted in situations where a certificate holder resists reexamination or reinspection under Section 609 of the Federal Aviation Act, or the reexamination or reinspection is not satisfactorily accomplished within a reasonable length of time (see Chapter 8).

(4) Suspension may be used for punitive purposes where the nature of the violation warrants it, except in cases where over six months have elapsed since the date of alleged violation. (See 49 CFR 821.33, NTSB Rules of Practice). The withdrawal of the privileges of certificate is a natural, equitable, and just consequence of the abuse of such privileges. . . .

* * * * *

Dated: August 15, 1991

PETITIONERS: