ATTACHMENT TWO Review of FAA's Enforcement Options The Federal Aviation Administration is now engaged in an enhanced enforcement program. This stems partially from the Airline Deregulation Act which directed the Administrator to impose requirements on commuter air carriers to assure that their level of safety is, to the maximum feasible extent, equivalent to the level of safety provided by certificated air carriers. The industry, of course, shares this goal. The increased emphasis on enforcement also results from the increased role of commuter air carriers in the air transportation system. In his order dated April 26, 1979, the Administrator set forth the FAA's enforcement policy. Under it, the Administrator ordered special attention for new entrants and commuters. ment. This policy emphasizes vigorous enforce Enforcement sanctions must be imposed in a manner and in an amount to assure future compliance by the violator as well as others similarly situated. Once a violation has occurred, the Administrator directed that education and counseling should not be viewed as a replacement of more direct enforcement actions. Once the FAA finds a violation, it has considerable discretion as to which enforcement option to utilize. It may pursue either a legal enforcement action or an administrative action. Legal Enforcement Actions Legal enforcement actions available to the FAA can consist of civil penalties, certificate actions, and other actions such as aircraft seizures, cease and desist orders, injunctive relief, and criminal prosecution. The FAA is empowered to impose civil penalties for violation of its regulations in the amount of $1,000 for each civil violation. Since each day of the offense can constitute a separate violation, it is possible for the FAA to pyramid these civil penalties into very large sums. When an emergency involving air safety is declared by the Administrator, immediate corrective action may be taken without regard to traditional due process considerations, including revoking a certificate. The Administrator has broad discretion in determining what constitutes an emergency. The FAA handbook on compliance and enforcement establishes general guidelines for selecting the appropriate enforcement action. It identifies the following considerations to be considered in the process. (1) Was the violation minor and unintentional? The handbook directs that administrative enforcement action is inappropriate where the violation is willful or deliberate. (2) What is the certificate holder's level of experience and responsbility? The handbook indicates that legal enforcement action becomes more appropriate as experience and responsbility increases. (3) What is the attitude of the person involved? The handbook directs that administrative action should be taken against (4) What hazard or lack of safety of others was created which should have been foreseen? The rule is that the greater the hazard, the more severe the penalty. Violations which produce an "inherent and totally unnecessary hazard'' are considered "'aggravated" and may properly result in imposition of stringent penalties. (5) What action was taken by the employer or other government authority? Action taken by a company such as grounding an airman for violation of company rules will be taken into account but only to the extent that it serves as an adequate sanction. Certificate holders may be re-inspected or re-examined, and their certificates amended, suspended, or revoked, if the Administrator determines that such action is requried by safety in air commerce or air transportation and is in the public interest. Administrative Actions If the violation does not warrent legal enforcement, the FAA can pursue an administrative remedy. The standards enunciated by the FAA For taking an administrative action are as follows: (1) No significant unsafe condition existed; (2) Lack of competency or qualification was not involved. (3) The violation was not deliberate; and (4) The alleged violator has a constructive attitude toward complying with the regulations. The decision on whether to take administrative action is made by the district office of Flight Standards based on the above criteria. Two different administrative actions are available. The FAA may issue a "warning notice," which recites available facts and information about the alleged incident or condition and indicates that it may have been a violation. warning notice may include a reprimand to the violator. If appropriate, a The other administra tive remedy is a "letter of correction," which confirms discussions and corrective action agreed upon as acceptable to the FAA. If the corrective action is not fully completed, legal enforcement action may be taken at a later time. TESTIMONY OF DUANE H. EKEDAHL, PRESIDENT, COMMUTER AIRLINE ASSOCIATION OF AMERICA (CAAA), ACCOMPANIED BY ALAN STEPHEN, VICE PRESIDENT, COMMUTER AIRLINE ASSOCIATION OF AMERICA; CALVIN DAVISON, GENERAL COUNSEL, COMMUTER AIRLINE ASSOCIATION OF AMERICA Mr. EKEDAHL. Mr. Chairman, I will summarize our statement. Mr. Chairman, the Commuter Airline Association of AmericaCAAA must strongly oppose this bill. Present statutory authority granted to the Federal Aviation Administration-FAA-to impose penalties is adequate for an effective enforcement program. Further, several provisions of this legislation raise fundamental legal questions and have a reach far beyond the safety area. The provisions of the legislation are discussed in our attachment which points out matters not covered by the FAA's explanation of the legislation. Of greatest concern, we believe this legislation would undermine the proper balance of the FAA between its surveillance and enforcement orientations. This legislation might impair the communication channels between the FAA and commuter carriers at a time when they are most needed and cast a chilling effect on the reporting of safety problems internally detected and corrected by a carrier. The fundamental question thus is whether H.R. 7488 actually enhances the role of the FAA in aviation safety. We do not see why the present FAA statutory authority is not sufficient since it provides a formidable deterrent to violators of the Federal Aviation regulations. The penalties for infraction of FAA regulations can be and are, on occasion, sudden and drastic. For example, the FAA now has the power to summarily suspend the license of any airman, ground any unairworthy aircraft, or revoke the operating certificate of any air carrier for violation of the rules. In less severe cases, the FAA can initiate substantial fines and other penalties against persons and carriers that violate FAA regulations. For small commuter carriers, the revocation of its certificate or a severe fine can be the equivalent of a death sentence. If serious consideration is to be given to increasing the FAA's penalty powers, concomitant consideration must also be given to the FAA's present practice of pyramiding fines to levels reaching more than $1 million. A further discussion of the FAA's enforcement options is provided in our second attachment. Further, the power granted to the FAA Administrator is so pervasive that he has no liability for decisions to ground made on available information that subsequently may be proven incorrect. Since the Administrator in turn delegates to a large field surveillance and enforcement organization, the potential for undue impact is already great, even without enactment of H. R. 7488. During the past 2 years, since the passage of the Airline Deregulation Act, the FAA has implemented and our industry has met all the provisions of a substantially upgraded part 135 operating rule, the most massive regulatory change, in FAA's estimation, ever undertaken by the agency. In addition, commuter airlines have generally endorsed FAA's stepped-up surveillance programs. We have implemented a far-reaching industry program that includes a review of pilot training and proficiency standards and the establishment of aircraft technical committees for every major model in commuter service to improve airline maintenance practices. Increased penalty provisions are not necessary to enhance these ongoing safety initiatives. I would be happy to answer any questions that you have at this time. Mr. ANDERSON. Thank you very much, Mr. Ekedahl, for your presentation. You state that the present power to revoke certificates and impose fines can be a death sentence to a commuter airline. Yet, you also state that increasing the civil penalties would have a chilling effect on the spirit of cooperation between the FAA and commuters on safety. I don't quite follow how increasing penalties can have a chilling effect when the FAA now already has the power to, as you put it, impose a death sentence. Can you elaborate on how the spirit of cooperation works under present circumstances and how it would be harmed under the FAA's proposals? Mr. EKEDAHL. Yes, we are particularly concerned about the criminal sanctions of the bill as they would affect the very important communication between the FAA and the commuters. After some 12 days of hearing on commuter safety in the early part of this year, the question with respect to the FAA's ability to enforce its regulations was never raised. The real question centered around the very important communication that exists between the industry and the FAA. The voluntary reporting of malfunctions is a part of the ongoing assessment of the airworthiness of the aircraft. The preparation of manuals is all done by the carriers and then reviewed and approved by the FAA. If any violation can be considered a criminal penalty, we expect that this would lead to serious questions as to whether a carrier can really afford to be forthright on minor matters where he might not be able to interpret how serious the FAA might see that violation. The voluntary reporting now is an important keystone to the entire system and we think that would be lost with criminal sanctions. As to the question of higher penalties, the $1,000 penalty you see is already a severe penalty for a commuter carrier. The FAA seems to have made its case based on Boeing-747 with $65,000 revenue. The average revenue for a commuter flight is about $400. So from our perspective there really isn't a need to raise the fine. Further, we think that criminal sanction part of it could be a particular setback for the safety of the system. Mr. ANDERSON. Have there been FAA actions (certificate actions or fines) against members of your association that you believe were too harsh or were beyond what was justified? Mr. EKEDAHL. No, we are not saying that. We feel that generally the FAA's enforcement has been fair. We are simply pointing out the awesome power that exists. The authority that exists from the standpoint of the commuter carrier, is enormous. |