STATEMENT OF DUANE EKEDAHL, PRESIDENT, COMMUTER AIRLINE ASSOCIATION OF AMERICA I am Duane H. Ekedahl, President of the Commuter Airline Association of America (CAAA). Our organization represents the nation's short-haul passenger and cargo air carriers. We appreciate the opportunity to present our members' views regarding H.R. 7488, legislation to amend the civil and criminal penalty provisions of the Federal Aviation Act of 1958. Mr. Chairman, the CAAA 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 at time they are most needed and cast a chilling effect on the reporting of safety problems internally detected and corrected by a carrier. Indeed, Section 902 (a) of the Federal Aviation Act specifically excludes the imposition of criminal sanctions for the infraction of safety regulations. The framers of the Act undoubtedly established this specific exclusion to assure that communication between carriers and the FAA would not be inhibited by the threat of criminal penalties. 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 $1,000,000. 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 this delegation the the Administrator is in turn granted 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 two 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 to assure compliance with these new regulatory standards. We have supported FAA rulemaking for light transport aircraft certification and legislation for airport development that will improve those airports served by commuters. We have implemented a farreaching industry program that includes a review of pilot training and proficiency standards and the establishment of aircraft technical committess for every major model in commuter service to improve airline maintenance practices. Increased penalty provisions are not necessary to enhance these on-going safety initiatives. ATTACHMENT ONE Summary of H.R. 7488 Provisions Civil Penalties H. R. 7488 proposes to increase the civil penalty amount in Section 901 of the Federal Aviation Act (the Act) from $1,000 to $25,000 and to transfer violations of Section 1101 (notice of proposed construction) from the criminal category to the civil category. Section 901 applies to economic and postal offenses, as well as safety offenses. The new civil penalty amount would, therefore, be applicable to violations of Civil Aeronautics Board regulations and rules or regulations issued by the Post master General. H.R. 7488 also proposes amendments to Sections 901, 609, and 903 of the Act which would authorize the FAA to assess civil penalties of $10,000 or less.. For such penalties, the proposed procedure is that after the person so assessed is given the opportunity in writing or through an informal conference with the FAA to respond, that person is given the right to appeal to the National Transportation Safety Board and to seek judicial review of that Board's decision in the United States Court of Appeal. Heretofore, this procedure has only been applicable to FAA certificate actions. Under the present law, FAA does not assess civil penalties. It advises the alleged violator of the amount it will accept in settlement of the alleged violation. If a settlement is not reached, the penalty must be assessed through an action in the United States District Courts. H.R. 7488 would retain this procedure for civil penalties, except those for monetary amounts of $10,000 or less. H.R. 7488 proposes the addition of a new paragraph to Section 903 (b) of the Act which would provide with respect to civil penalties assessed "by the Secretary or the Board" pursuant to Section 901, that "the issue of liability or amount of civil penalty shall not be reexamined in any subsequent suit for collection of such civil penalty." "Board" in this context is apparently intended to refer to the NTSB, but since Section 901 also applies to the Civil Aeronautics Board, there is room for confusion. Section 901 (a) provides a different procedure for civil penalties assessed by the CAB. A significant departure from present procedures contained in H.R. 7488 is the proposed amendment to Section 609 of the Act which would give the Secretary of Transportation the right to appeal decisions of the National Transportation Safety Board to the United States Courts of Appeal. At present, only private parties challenging FAA actions before the NTSB have that right. This legislative change would constitute a substantial shift from current practice. Predominantly, only the accused in criminal cases is given the right to appeal, not the Government. Similarly, heretofore, the FAA has not been permitted to appeal adverse decisions of the NTSB. This proposed change would allow the agency which brought the charges, but was unable to prove them before the NTSB, to seek further review. The time and expense for private litigants in being subject to such further appeal procedures, after they won their cases before the NTSB would be enormous. Criminal Penalties Presently, Section 901 (a) of the Act provides criminal penalties of not more than $500 for first offenses and not more than $2,000 for subsequent offenses for violations of various provisions of the Act. H.R. 7488 proposes to change the amount to $25,000, to add the penalty of imprisonment for not more than one year, and to extend the reach of Section 902 (a) to Title VI of the Act (the safety provisions). H.R. 7488 also proposes to amend Section 903(e) of the Act to drastically change the criminal penalties for failure to make reports, for failure to keep proper records, for falsifying records, or for filing false reports. This section applies to economic matters administered by the Civil Aeronautics Board, as well as to safety matters administered by the FAA. Presently, this section appleis only to air carriers and their personnel and provides for penalties of not less than $100 and not more than $5,000. H.R. 7488 would increase the upper limit to $25,000, add the possibility of imprisonment for not more than one year, and make the section applicable to "any person". |