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safety regulation of civil aeronautics.

Pursuant to that Title,

the FAA has promulgated a mass of regulations prohibiting certain

aces which are deemed to be incompatibie with aviation safety.

Traditionally, the safety regulations have been primarily enforced by

the FAA through the use of civil penalty actions and actions to

suspend, modify or revoke a certificate held by an alleged violator.

While there is presently no provision in the Act which would prevent

the FAA from taking both a civil penalty action and a certificate

action as a result of the same violation, the FAA's policy has always

been not to impose both types of penalties for the same violation.

If criminal penalties are made available for violations of

the safety regulations, then there will be nothing in the Act to

prevent the FAA from initiating a civil penalty, a certificate action

and a criminal prosecution as a result of the same violation.

Presumably, the FAA will continue to adhere to its policy of not

imposing more than one type of penalty for the same violation.

However, there is nothing in the statute which would prevent the FAA

from deviating from this policy.

Since under the proposed amendment to Section 902(a) there

is nothing to protect an alleged violator from being subjected to criminal prosecution in addition to an administrative enforcement

action for the same violation, the FAA's enforcement authority will

be hampered rather than aided.

In the past, the NTSB has consistently

held that it is not necessary for the FAA to give Miranda warnings in

the course of questioning during a violation investigation.

The

basis for this holding has been the rationale that aviation enforcement

proceedings are basically cívil or remedial in nature and that their

overriding purpose is aviation safety.

In the Board's own words

Judicial decision requiring that
preinterrogation warnings be given
to suspects during criminal investi-
gations do not apply to aviation
enforcement proceedings, which are
basically čivil or remedial in
nature and whose overriding purpose
is aviation safety. Consequently,
the F. A. A. representative was under
no legal or constitutional "obligation
to give a Miranda warning to respondent,
and the absence of such a warning does
not render inadmissible the former's
account of what he was told by respon-
dent.

Administrator v. Pittock, 2 NTSB 2075, 2076 (1976)(footnotes omitted).

See also

Administrator v. Ivie, 2 NTSB 1248, 1249 (1975), aff'd, 534

F.2d 333 (9th Cir. 1976); Administrator v. Harrison, 2 NTSB 504,

505-06 (1973); Administrator v. Everett, 1 NTSB 1018, 1019 (1970).

Since the proposed amendment to Section 902(a) of the Act would render

aviation safety enforcement proceedings no longer basically civil or

remedial in nature, it would presumably now be necessary for FAA

representatives to give preinterrogation warnings to alleged violators

in the course of investigations.

While a requirement for Miranda warnings during the course

of an investigation in connection with an aviation enforcement

proceeding would not appear to be overly burdensome, closer scrutiny

reveals that such a requirement along with the other safeguards which

customarily attach' to a criminal investigation would completely

change the tenor of the FAA's investigations.

For example, search

and seizure safeguards, special procedures for handling evidence, the

right to counsel, and the duty to disclose exculpatory evidence would

all apply to FAA investigations.

FAA investigators untrained to

deal with these requirements and such requirements would

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of the Act which is proposed by Section 3 of the bill would also

bring into play another application of the constitutional right

against self-incrimination.

In addition to the right to be given

Miranda warnings prior to questioning in the course of a criminal

Investigation, the right against self-incrimination also protects an

individual against being compelled to give testimony in the course of

a judicial proceeding when such testimony may constitute a basis for

criminal liability on the part of the individual who is testifying.

Consequently, if the Act is amended as proposed by this bill, it can

be presumed that individuals called to testify in the course of

aviation safety enforcement proceedings before the NTSB will frequently

refuse to testify based upon their Fifth Amendment right against self

incrimination.

Since there is nothing in the Act to prevent administrative

enforcement action as well as a criminal prosecution, many individuals

will be faced with the risk that testimony given during the course of

a hearing before the NTSB could be used against them in a subsequent

criminal prosecution.

This is particularly true since the test set

out in Section 902(a) for determining whether or not a particular

violation gives rise to criminal liability is based upon a determination

as to whether or not the violation was committed "knowingly and willfully." .

Such a test would create a fine line between what is criminal and

what is not criminal in the context of .aviation safety regulations.

Consequently the amendment proposed by Section 3 of the bill would

hinder rather than aid the FAA and the NTSB in carrying our their

duty to enforce the safety regulations.

In addition to the problems presented in the course of

aviation safety enforcement proceedings, the possibility of criminal 11ability for violation of the operational safety regulations would

also create a hazard to the actual conduct of air navigation.

Pilots

who are faced with the potential of criminal liability, would be far

less prone to attempt to cooperate in the identification of an elimi

nation of safety hazards which exist.

For example, 14 C.F.R. 991.3(b)

provides that in an emergency requiring immediate action, the pilot

in command may deviate from any operational rule to the extent required

to meet the emergency.

14 C.F.R. $91.3(c) provides that the pilot

who has declared an emergency shall send a written report of the

deviation to the FAA.

When a pilot declares an emergency and deviates

from an operational regulation, that pilot knows that he is deviating

from the regulations or he would not have found it necessary to

declare an emergency.

Since the pilot is aware that he is deviating

from the regulations, his actions are knowing and willful.

It is

common in cases involving $91.3(c) for the FAA to find that the

emergency was of the pilot's own making, and therefore not a justifiable

emergency. Today, such a finding by the FAA might lead to the suspension

of the pilot's certificate or to the imposition of a civil penalty.

Under the proposed legislation, since the deviation from the regulations

would be knowing and willful, the hapless pilot may well be prosecuted

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circumstances, pilots will be far less prone to declare an emergency.

The chilling results of the proposed amendment, would thus inhibit

rather than enhance safety.

Much worse, the result might lead to an

increased loss of life.

VIII.

SECTION 3--CHANGES IN THE SEVERITY .AND NATURE OF CRIMINAL
PENALTIES WHICH ARE AVAILABLE

Section 3 of the proposed bill would also amend Section

902(a) of the Act, 49 U.S.C. $1472(a), to provide for changes in the

nature and the severity of the criminal penalties which are available.

The FAA's analysis of the bill on this point is misleading since

the analysis does not point out that the penalties provided present

a drastic change from the previous penalties.

As it presently exists,

Section 902(a) does not provide for imprisonment.

In addition, the

present section provides that a first offender is subject to a fine

of not more than $500 and that a subsequent offender is subject to a

fine of not more than $2,000.

As amended, Section 902(a) would

provide for imprisonment not to exceed one year and for a fine not to

exceed $25,000 regardless of whether the offense is a first offense

or a subsequent offense.

The inclusion of possible imprisonment is quite a

significant change.

In spite of the significance of this change,

the analysis of the bill provides no explanation whatsoever.

In

regard to the change in the monetary penalty, an increase in the

maximum from $500 to $25,000 for a first offender is also a signifi

cant change.

In spite of the significance of this change, the

analysis of the bill again contains no rationale whatsoever.

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