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FAA's Prosecutorial Discretion

by Greg Reigel 1. April 2008 00:00
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When the FAA believes that a regulatory violation has occurred, it has a variety of options for dealing with that violation ranging from issuing a warning or assessing a fine or monetary penalty up to suspension or revocation of an airman's certificate. The FAA has the power to choose which option it feels is appropriate for dealing with a particular regulatory violation. This choice is called "prosecutorial discretion."

In order to assist its inspectors and regional counsel in exercising this prosecutorial discretion, the FAA publishes guidance and policies that, one would hope, will be used and applied in a uniform and consistent manner. But, what about when this doesn't happen? Can the FAA ignore its own published policy and guidance and pursue an enforcement action against an airman even when pursuit of that action contradicts the policy and guidance? According to a recent NTSB opinion, the answer is: yes!

In Administrator v. Murphy and Vernick the FAA alleged that airman Murphy violated FARs 91.13(a) (careless and reckless), 91.123(b) (Compliance with ATC clearance), and 91.111(a) (Operating near other aircraft) and that airman Vernick violated those sections in addition to FARs 91.123(a) (Compliance with ATC clearance) and 91.183(c) (IFR communications), all in connection with a 120 foot computer-detected altitude deviation that resulted in a minimal loss of separation between the airmen's aircraft and another aircraft. After a hearing, the Administrative Law Judge ("ALJ") found that the airmen committed most violations as alleged.

However, the ALJ also found that the airmen met all of the criteria for application of the FAA's policy of handling altitude deviations of less than 500 feet administratively as prescribed in FAA Order 2150.3A, Compliance and Enforcement Program, Compliance/Enforcement Bulletin No. 86-1. He further noted the absence of any aggravating circumstances that would make the airmen ineligible for administrative action, rather than enforcement action. As a result, the ALJ concluded that "[b]y bringing this matter as an enforcement action, and not handling it administratively, the Administrator violated her policy set out in [86-1], and deprived the Respondents of the benefits they were entitled to under that FAA policy." The ALJ then reversed the FAA's order and dismissed the complaints against the airmen.

Not surprisingly, the FAA appealed to the full NTSB Board arguing that the FAA's exercise of prosecutorial discretion is not subject to Board review; that the FAA has the prerogative to issue an order of suspension when the facts support one; and that the Board has no direct authority over the FAA's exercise of prosecutorial discretion. In response, the airmen argued that the FAA was bound by Order 2150.3A to pursue administrative rather than enforcement action. However, the Board agreed with the FAA.

The Board stated that it lacks the jurisdiction to review the FAA's determination to pursue a matter through legal enforcement action. Once a petition for review of an FAA order is filed, the Board's scope of review does not extend to an evaluation of the procedural steps leading to the issuance of that order. According to the Board, "[t]he discretion to pursue one remedy over another or to pursue enforcement action at all is within the Administrator's purview." Although the Board will review prosecutorial discretion in the prosecution of an enforcement action once an order is appealed, that has no bearing on the FAA's right to prosecute an airman for an alleged violation. As a result, the Board rejected the airmen's arguments that Order 2150.3A precluded the FAA from pursuing its enforcement action.

However, fortunately for the airmen, the Board agreed with the ALJ that waiver of sanction was appropriate. First, the Board observed that the FAA did not introduce Order 2150.3A with its Sanction Guidance Table into evidence or request deference to its selection of sanction based upon the Order, as was its burden. Second, the Board agreed that the violations were "less serious" and did not involve mitigating circumstances.

Not sure about you, but it doesn't seem quite right that the FAA can publish its enforcement rule book (presumably so everyone is on notice and aware of how they will be treated - e.g. uniformly and consistently) but then disregard its own policy to pursue an enforcement action for an apparently "less-serious" violation. Interestingly, Order 2150.3B (the successor to 2150.3A released this fall) contains no such recommendations for administrative action. It merely lists the criteria that must be met to qualify for administrative action. However, be forewarned, Order 2150.3B appears to have a distinct preference toward certificate action, rather than administrative action. Imagine that!

What's your opinion?

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Greg Reigel

Stay Competitive: Keep Your Aircraft Flying

by David Wyndham 1. April 2008 00:00
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As we head into spring, we are seeing crude oil prices easily staying above $100 per barrel. Certain sectors of the economy are soft. If your company aircraft operation is being hit twice: high fuel costs and a decline in profits (or increased losses), you may be inclined (or directed) to cut back on flying. This is bad for two reasons.

Reducing your flying hours drives up your average costs. A light jet that has a variable cost per hour of $1,750 will cost $700,000 to fly 400 hours per year (fuel & maintenance reserves). With a typical fixed cost of $400,000 per year, the annual operating budget is $1.1 million, or $2,750 per hour. Reducing your flying 15% to 340 hours annually gives you variable costs of $595,000 plus fixed costs remain a constant $700,000 for a total operating budget of $995,000 - only a 9.5% reduction. Plus your average total hourly costs increase to $2,926 per hour.

Reduced flying may make your operation seem less important to the company's mission. The effects of the reduced flying on the budget are immediate, but the potential loss of business from reduced productivity and reduced contact with customers or vendors won't be direct and won't be noticed for months.

You want to be proactive for your company. Here are three ways to stay competitive by marketing your services even harder than ever.

Remind folks of the time saved. Airline travel delays were lousy last summer and this summer might be worse. Spend six hours on the ground watching thunderstorms rip apart the airline schedule and you'll know what I mean. Longer delays mean even greater time savings for the people who fly on your business aircraft. Put together some metrics from 2007 and 2006 showing the estimated time saved. The US Bureau of Transportation Statistics lists US Airline On-Time Statistics if that is a help.

Remind your executives how much more productive they are. Not only by the time saved, but by how productive they are in the safe, quite, private cabin of your business aircraft. You can do this again by publishing in-house statistics, quoting studies, and by doing an in-house survey asking how much time and how productive your passengers think they are by using the company aircraft.

If the aircraft is reserved for "C-Level" executives only (CEO, COO, CFO, etc), see if you can expand the access to the company aircraft by one-tier lower executives. It's not just the CEO who can use a few quite hours in the aircraft to really work and think. What about your sales teams or new product development teams? If you don't already use the company aircraft for some of these functions, I'd recommend that you seriously consider it. Finding new opportunities isn't easy and the aircraft gets your people out with your customers.

As a possible fourth way to be competitive, evaluate putting your aircraft on someone's charter certificate. If your aircraft is under-utilized or has a predictable schedule, you may be able to offset some of your costs with charter revenue. When not used in-house, your aircraft would be available to a charter company who would sell hours on your aircraft and pay you a portion of the revenue. There are a number of considerations here, not to mention the possible cost of Part 135 conformity, inspections, and increased wear and tear by charter customers. It can and does work for folks, so it may work for you.

There is no easier and more productive time machine than the aircraft, if used wisely. Get out there and market your services harder than ever. Focus on the positive results business aircraft bring, and let them know you are on their side.

Globalair.com would like to ask you a few questions; we would appreciate your commenting.

Are fuel cost cutting into your flying?
What are you doing to keep your aircraft flying?

We all gain by your experiences so please share.

Other related information:
Average fuel cost nationwide (by region): https://www.globalair.com/airport/region.aspx



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