« PrécédentContinuer »
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.
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
Administrator v. Pittock, 2 NTSB 2075, 2076 (1976)(footnotes omitted).
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
of the Act which is proposed by Section 3 of the bill would also
bring into play another application of the constitutional right
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
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
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.
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.
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
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.
SECTION 3--CHANGES IN THE SEVERITY .AND NATURE OF CRIMINAL
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
In spite of the significance of this change,
the analysis of the bill provides no explanation whatsoever.
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
In spite of the significance of this change, the
analysis of the bill again contains no rationale whatsoever.