UNDERSTANDING THE NOT-SO-LEGAL
PROCESS OF AN FAA VIOLATION
Remember the infamous cockpit joke, "I'm from the FAA; trust me."
Highly sardonic humor.
Just as the 'church' used to conduct their mass in Latin, the FAA has
effectively employed the same technique. By keeping the masses in a
state of ignorance and bewilderment, they have their way. The first
barrier a pilot runs into is that of 'data impairment,' quite similar
to the old cliché, "sensory overload."
The effective part of this method is that it works not just on pilots
and their attorneys, but also on the judges who preside in the
appropriate courts. With their 'esteemed' position, an excess of time,
resources and verbiage on their side, the FAA can outlast the
opposition. It's just about that simple - but not quite.
There's another methodology -
In their history, pilots have earned a reputation for being overpaid,
over-glorified, under-worked and just plain 'spoiled.' Don't think that
flight attendants are far behind. To the uninformed, a shock is in
waiting.
To simplify the issue, go back to the terrible United Airlines 232
accident. Ask any of the survivors or their families if they think
Captain Haynes and his crew were overpaid. On his best day, Captain
Haynes didn't come anywhere close to the salary of a professional
football player of comparable prominence. Ask the same about the flight
attendants who helped the surviving passengers get out of the wreckage.
Resentment doesn't authorize blatant discrimination. CEOs of major
corporations dwarf pilots for image, salary and privilege. They don't
risk life and limb with every day of duty. Are they to be segregated? Then
why would pilots be treated differently?
Because pilots blindly allow it as the price for their self-image. The
wound is self-inflicted with denial, apathy and cowardice. Unpleasant
to the pilot, but true. Never have so few fought so little to abandon
their own needs. The phenomenon is a psychiatrist's dream come true.
As a consequence of myth and associated image-resentment, pilots, in
particular, have been segmented from the mainstream of cultural and
judicial normalcy. Pilots have fewer rights than a bus driver, in every
regard. Something is very wrong in that picture - WHY?
An elementary but powerful indicator is warranted at this point.
Consider that for all the infamous "Gestapo" efforts of the FAA, they
have, in turn, refused law, regulation and the Congress to enforce
their own "flight crew rest" regulations. A long list of FAA Legal
Interpretations have resolved any doubts as to the requirements of
those regulations. Yet, the FAA enforces those regulations on an
extremely selective basis.
Pay close attention to that fact, as it is the most powerful indicator
of what you are about to read. Note also the all-too-frequent media
illustrations that fatal crashes have happened and will probably
continue to happen, as a direct consequence of the FAA's refusal. Focus
your attention also on the bureaucratic excuses and outright lies,
which are so thinly veiled, to avoid that enforcement. Above all, try
to imagine the magnitude of corporate profits being enhanced and
protected - at the constant price of safety. The victims (passengers)
aren't given any warnings or options.
Despite all, the FAA maintains it's deadly and nefarious course.
Mysteriously, no one opposes them. Amazingly, despite all their
huff-and-puff and the submissiveness of their following, they have no
actual power. Tragically they routinely abandon their primary mission
of effecting safety, indulging in every, procedure, delay and possible
excuse as to why they cannot do their own job. In the same time frame,
they selectively attack pilots and carriers, often with felonious
accusations for allegedly not doing their job.
The FAA has fought a long hard battle to effect what can be
appropriately termed, "Civil Non-judicial Punishment," a forbidden term
for all obvious reasons. Military veterans will instantly recognize the
concept.
For the moment, disregard motive. How does this work in modern America?
To be brief, the courts have mysteriously allowed the pilots to be
culled from normal society into what is termed the "regulatory
environment." However the process worked, the pilots (and even the
airlines themselves) have been segregated from the Constitutional
umbrella which even protects illegal aliens to a large extent.
Consider the New York Trade Center bombing as an appropriate contrast.
The U.S. Government opened our borders to terrorists (probably
facilitated by the CIA for their Afghan war assistance). When they
nearly completed an intended murder of hundreds, also nearly
crippling of our economic system, they were then entitled to the 'due
process' of a jury trial - paid for by the U.S. They would have been
entitled to the same trial if they'd been totally successful - they
came close.
Compare -
Laws were crafted which gave the FAA the power to suspend or revoke a
pilot's license. All familiar know that suspensions and revocations can
totally ruin a pilot's career and life. It's no accident that the term,
"punishment" isn't mentioned in any associated text. The term is
avoided with nefarious methodology; make no mistake about it. Any
judicial recourse has been made so detail-intensive, time consuming and
prohibitively expensive that the pilots are effectively locked out of
the judicial system.
For the FAA to resort to felonies in the process of a violation is not
uncommon. When they knowingly lie (extremely common) that qualifies as
fraud and a felony under a variety of federal laws.
Guess what -
1. They never get seriously investigated.
2. If they did 'get caught,'  they would have the benefit
of 'due process'  and a jury trial.
3. They continue with impunity; amplifying their own power.
When the FAA employs the violation process, they have their own
'hearing.' If a pilot loses, he/she may appeal to the NTSB for another
'hearing.'
With extremes of convoluted rationalization, the FAA rarely loses. The
NTSB is a devoted kangaroo court. The labyrinth has no entrance or exit
for the pilot - it get's converted into an impossible maze.
To the serious researcher the statements above seem totally absurd, as
there are so many laws, regulations and an Executive Order from an
earlier President to prevent or correct such matters.
As unpopular as it is to say, the issue may as well be case 1936,
Steinberg v. Hitler; Judge Himmler presiding. Anyone who has witnessed
or experienced the 'process' will quickly tell you that the statement
is no prostitution of demagoguery nor a leap of credibility. It's
'city hall'  on a much grander scale.
In an NTSB hearing, the 'prosecutor' arbitrarily interprets ambiguous
regulations. In worst case scenarios, he brings a trained witness to
assert a narrow scope of testimony. The defense can't ask the same
witness for expansion. Evidence is often hidden or not allowed. Often
critical evidence is only turned over to the defense within days or
hours of the 'hearing.' Inconsistent testimony isn't 'thrown out.'
Mitigating circumstances are not allowed. Complicity is not permitted
to be argued. Authority goes unchallenged. Defense arguments are
unreasonably denied. 'Prosecution' cannot be stopped by any 'poison
pills' such as felonious conduct by the 'plaintiff.' Ethics are often a
sick joke. Hearsay is deemed credible if it serves the 'prosecutor.'
Exposed new violations go un-enforced.
Impossible! You say. Ask 'Hoot' Gibson. He had one of the first rudder
'hard-over'  incidents. No, you're not supposed to know
that. 'Hoot' had two abrupt yawing motions before 'dutch-roll' took him
over the top. Only the dual rudder of the B-727 delayed the final roll.
At the time, the airline industry was crippled by fuel prices, the
grounded Braniff fleet was begging for bargain hunters. New aircraft
were not an ideal option. Boeing was in no position to analyze and/or
re-design & retrofit the military and civilian aircraft equipped
with the suspected or actually flawed actuators. The truth may never be
known.
Still impossible? Imagine the purported version you heard about -
The flight engineer comes back from delivering the food trays, first
passing through a 20-minute time-delay warp. Being psychic, he knows
the captain pulled the Leading Edge Device circuit breaker and extended
the trailing edge flaps. When he enters the cockpit, he immediately
turns on the lights, moves the uniform coats aside and 'instinctively'
sees the culprit circuit breaker pulled. Without saying a word, he
pushes it back in. Knowing that he just condemned a planeload of people
to die (including himself), he rushed to get into his seat belt before
he can be hurt by being battered all over the cockpit by the tumbling
aircraft. Again, he was psychic; he knew 'Hoot' would save the day.
Clever fella.
The "erased" CVR tape? Strangely, the tape did contain nine minutes of
maintenance worker voices; recorded longer than thirty minutes after
the pilots had left the cockpit. It had been erased, but not by the
pilots. With the landing gear 'squat'  switch destroyed
in the tumble from altitude, the missing "on-the-ground"
 electrical logic wouldn't permit the tape erasure without an
extrodinary knowledge of the aircraft systems.
Rubbish! You say? Go to the record and drag up a single piece of
testimony by the crew. They were allowed to testify that the flight
engineer had taken the food trays back - hardly more.
 See - "Emergency - Crisis in the Cockpit" by
Stanley Stewart.
It didn't stop with 'Hoot' Gibson.
In the current time frame is the uproar over the FAA's "Intrepretive
Rule," regarding FAR 91.123 (following ATC clearances) In a sentence,
the FAA has stated that it has arbitrarily and unilaterally siezed the
power to overturn the NTSB! While the current issue regards the
perfect-performance on the part of pilots listening to congested radio
frequencies, the "Intrepretive Rule" becomes a rule-within-a-rule. If
permitted, the FAA has set a self-serving precedent which usurps the
very function of the NTSB, as adversarial as the NTSB already is to the
pilots and carriers!
Anyone who has been to an FAA/NTSB hearing knows that the issue is
quickly narrowed down to, "Did it happen, yes-or-no?" The NTSB does not
(typically) indulge mitigating circumstances.
Thus, in the instant case, the NTSB is forced to rule on the "embedded"
rule, which essentially states that mitigating circumstances don't
exist, therefore, the NTSB has been denied the actual judgement call;
guilty - case closed.
Consider the paradox -
The FAA will not enforce the crew rest regulations which would provide
for the FAA-required attentiveness. The FAA has also refused the NTSB's
plea to implement Crew Resource Management at the cockpit level. Both
of these issues have the only possible chance of preventing the very
problem the "Intrepretive Rule" seeks to enforce!
Above Jane Garvey's signature, "....this interpertive rule merely
provides the correct interpretation of a regulation as the FAA has
enforced it...." Did she really say, "merely?"
It's called "Power Intoxication." ("Corruption," if
you prefer)
"....one nation, under God, with liberty and
justice for all."
Makes you proud to be an American!
IT GETS WORSE!
In the enforcement arena, more and more often, the FAA is resorting to
their "emergency authority" to accomplish their ends.
It's interesting to see how the FAA achieves its ends. The 'system'
would have you believe that the FAA has the legal [statutory] power to
exercise an emergency revocation an pilot's or a carrier's certificate.
Legally, the FAA has the power, only under certain conditions.
As you read this, make sure that you are clear as to the distinction
between a normal certificate suspension (violation) process and an emergency
suspension / revocation.
Interestingly, there is an unlimited number of people (including
attorneys and judges) who believe in the FAA's right to arbitrarily
wield its power and go along with the FAA whim, out of understandable
ignorance. Here's how it works:
First of all is the unchallenged myth held by attorneys, judges and
certainly pilots that the FAA is uniquely empowered. History certainly
suggests that the FAA does have the power of God, as so many have gone
along with the agency out of fear and ignorance. The belief is as
absurd as the theme behind the 'Wizard,' in "The Wizard of OZ."
In a sentence, the blind faith renders a self-inflicted wound.
History continues to teach us that a passionately expressed lie is
easily perceived as truth. Thereafter, it becomes myth, but often
enough accepted as gospel.
To illustrate the statements above, remember the source of the
statement, "All men are created equal." Popular myth aside, it
is NOT contained in the U.S. Constitution and has no power of law!
Granted, there are laws which appropriately attempt to effect exactly
that statement.
The point being that a tremendous percentage of Americans will swear
the 'equality' statement originates in the Constitution - purely a
powerful myth. The statement IS known from the American Declaration of
Independence and Lincoln's "Gettysburg Address." Idealism aside, there
are practical limits - the blind will not pilot airliners; nor will
short people be picked for the NBA teams.
Thus, it is necessary to look through the myth to the facts. It is
totally sensless that in modern America, lives should be ruined without
benefit of a speedy jury trial.
There is an interesting issue, in that a legal problem seems to have
been overlooked. That being that the FAA is governed by the the
Administrative Procedures Act (law), specifically 5 USC 558.
Going to the language of that section, 5 USC 558(c), we find
the obligation of the FAA to enact their emergency authority ONLY if
safety is actually at risk, as opposed to an extreme of rationalization
of safety.
5 USC Sec. 558. Imposition of
sanctions; determination of applications for licenses;
 suspension,
revocation, and expiration of licenses
(a) This section applies, according to the provisions thereof, to the
exercise of a power or authority.
(b) A sanction may not be imposed or a substantive rule or order issued
except within jurisdiction delegated to the agency and as authorized by
law.
(c) When application is made for a license required by law, the agency,
with due regard for the rights and privileges of all the interested
parties or adversely affected persons and within a reasonable time,
shall set and complete proceedings required to be conducted in
accordance with sections 556 and 557 of this title or other proceedings
required by law and shall make its decision. Except in cases of
willfulness or those in which public health, interest, or safety
requires otherwise, the withdrawal, suspension, revocation, or
annulment of a license is lawful only if, before the
institution of agency proceedings therefor, the licensee has been given
-
(1) notice by the agency in writing of the facts or conduct which may
warrant the action; and
(2) opportunity to demonstrate or achieve compliance with all lawful
requirements. When the licensee has made timely and sufficient
application for a renewal or a new license in accordance with agency
rules, a license with reference to an activity of a continuing nature
does not expire until the application has been finally determined by
the agency.
NOTE THE LANGUAGE:
"Except in cases of willfulness or those in which
public health, interest, or safety requires ....."
" .....is lawful only if ..."
While the FAA can't be faulted for filing an appropriate normal
violation, their current and increasing abuse of the emergency
authority is without excuse. There are extremely few cases where safety
actually requires emergency authority.
For the FAA to identify a mistake which doesn't pose an ongoing threat
is normally sufficient and prudent. A violation proceeding is often
enough appropriate. However, if a reasonable person would agree that
the situation will in all probability continue or repeat, then clearly
an emergency action is indicated. ONLY in such a circumstance.
That being true, let's go to to the heart of the issue, being the
question, "Then, how does the FAA pull it off???" The answer is
relatively simple, but it's not going to be popular to describe it.
The following statements are not intended to be insulting or unkind to
pilots; only to describe the violation process as requiring a
mysterious element of 'permission' from the pilots involved. It
stings like hell, but there is one fact of history which stares every
pilot in the face -
Despite the admirable education, achievements, skills and bravado in
the cockpit, pilots are otherwise a pack of highly resented 'wooses.'
Again, pilots are the only group of people in the United States who are
not availed a day in court in the same fashion as a bus driver – but,
they lack the intestinal fortitude to fight for their own rights which
should be a function of the U.S. Constitution. Amazingly, a high
percentage of airline pilots are former military combat veterans who
risked their very lives to protect that sacred document and all that it
represents.
It's appropriate to recall the circus elephant tethered by an
insignificant piece of rope. It's called, "conditioning" - it works!
As the TV show, "Sixty Minutes" recently pointed out, pilots won't even
fight for a decent night's sleep with their lives at stake! Fact; not
fiction. The FAA passionately pretends to care. Can you imagine the
arrogance, nigh unto idiocy, of the FAA stating that they have not, but
intend to (maybe) enforce their own safety regulation??
There is an explanation as to how this comes about. To be brief, it is
necessary to understand that the psychology which dominates a pilots
thinking (or lack thereof) is two-fold:
1. For mostly common reasons, a pilot first wants a bigger-than-life
image (wings on his chest, 'scrambled eggs' on his uniform hat or a
bank account, etc.) badly enough that he/she is typically willing to
risk death before sacrificing that image. In actual incidents and
accidents, the mental/emotional psychological mechanism of 'denial' is
all too obvious, just prior to the crisis / crash, itself. Popular or
not, the numerical dominance of the male population rules the cockpit
environment, especially on the global scale - psychology included.
2. With a highly controlling economic system in place, a pilot (and
flight attendants) fall victim to the psychological mechanisms which
effect the (hostage) behavior known as the "Stockholm Syndrome." In
American history, the Patty Hearst kidnapping is one of the best
examples. For survival itself, and the illusion of 'control (safety),'
the victim mentally and emotionally swings over to the perpetrator's
side. In a temporary situation, most can understand such. In the long
term, there is no valid excuse for this to continue. Hence, pilots pose
an incredible enigma. Perhaps the appropriate term is "Cultural /
Corporate Stockholm Syndrome." There can be no doubt that a similar
mechanism worked for Hitler.
To be brief as to the history, flying was initially regarded as a
deadly fad. Flying was extremely slow to be recognized as a valuable
part of the industrial culture. As a consequence, flying got put into
an administrative environment and was trapped there, long after flying
became a mainstay of global transportation. Time and tradition created
blind acceptance.
The driving force behind the issue is obviously money, nothing new.
When you examine the billions of dollars of cash-flow in the airline
industry, raking off a small percentage gives the recipients an
enviable fortune. Beyond immoral-but-not-illegal cash manipulations,
risking safety significantly adds to that pile. On the subject of
money, it is naive to ignore the associated issue of stock price
'creativity.' As the perverse side of human nature goes, the volume of
money is worth killing for.
Enter the FAA -
From 1926 onward, various government offices from the Commerce
Department to the CAA, and the FAA/NTSB have been charged with
facilitating aeronautical safety with a secondary mission of promoting
commerce. At one point, the safety mission was extremely successful;
then things changed. Since 1993 and the enactment of Public Law 103-272
The previous provisions of the Federal Aviation Act of 1958 was entered
into statute. The FA act of 1958 (609) was rendered as a historical
reference, as an appendix (1429) to Title 49 of the USC.
From a pilot's perspective, how does the legal battle he/she faces work?
Let start with the fact that the career / life of a pilot is contained
in a system of "rationalization" laws which deny the pilot the avenue
of Constitutional legal justice; otherwise sacred to any American.
For the moment, disregard history; just know that it's true. If anyone
has any doubt, ask a pilot who has been subjected to a full violation
proceeding - a nasty, painful, humiliating and bewildering experience!
The bad news is the far-reaching popularity of the myth, "It's okay." Until
the Constitution of the United States is abolished; it's NOT "okay."
Only the sanctity of the American Constitution and the courage of
pilots can change that.
Let's get to the core of the 'system' workings.
Suffice it to say that the Federal laws are on the books; they mandate
the enforcement of the regulations. The Federal laws also stipulate the
power of the FAA to suspend or revoke a license in the kangaroo court
system (hearings) of the NTSB. Despite regulations to the contrary, the
NTSB system walks away from the legal system with impunity. In the
meantime, the FAA commonly resorts to the commission of felonies under
Title 18 to achieve their ends. Fraudulent representation is the most
common tool.
A classic point is the FAA employment of their emergency authority,
when there is clearly no emergency - that's criminal fraud when they
communicate the falsehood. That's the tip of the criminal (but widely
accepted) iceberg.
Let's go to a classic case, Air Micronesia flight 985 – 24 March, 1997.
With a background of the FAA selectively looking the other way on the
issues of crew rest and maintenance standards, a tired captain ended up
in a bone fide emergency with a broken DC-10 trying to get into Hong
Kong.
The Hong Kong situation evolved into an aircraft with an electrical
problem, two failed ILS receivers, marginal and deteriorating weather,
a captain experiencing the dramatic effects of chronic fatigue, no
support from company operations and the fuel supply getting low.
Using everything he knew, including the science of Crew Resource
Management, the captain asked a highly experienced and well rested
deadheading captain to take the left seat to maximize safety and effect
rule 3 of CRM - 'land as soon as possible.' The image of the United
Airlines flight 232 accident was still fresh in his mind. Continental
had appropriately used it as a safety example. Murphy's law was about
to destroy another DC-10, loaded with passengers. The Hong Kong
airplane landed safely with a precision radar approach - no damage. If
things have to go bad, that's the desired result - a safe landing.
The FAA Response -
The FAA took FAR 121.543 (getting out of the pilot's seat during
flight) severely out of context (criminal fraud – for starters), lied
as to the events themselves and threatened the captain with the
all-time favorite, FAR 91.13 (careless & reckless operation).
Mysteriously (well, considering the financial stakes, maybe
not-so-mysteriously), the union and company facilitated the violation.
[Worth noting also is that the FAA will preferentially resort to FAR
part 91 whenever possible, as FAR 121 gives more defense capability to
pilots. Persecution is their object in this arena; not safety or
justice.]
Knowing the track record of the FAA / NTSB, the captain appropriately
panicked and 'settled' on the nonsensical violation of getting out of
his seat in flight to make a personal appeal to the deadheading
captain, brief the flight attendants & use the lavatory – during a
non-critical phase of flight [above 10,000 feet].
With no previous record, he got a 500% of the maximum penalty; a 150
day suspension of his license.
Selectively, the actual maintenance and scheduling violation issues
were never allowed to be mentioned, nor investigated.
Getting to the nuts 'n bolts of the matter -
Under U.S. law, 49 USC 44709 gives the FAA the power to suspend /
revoke certificates. That happens at an FAA hearing (kangaroo court).
If the FAA decides to flex their power, they can resort to 49 USC
46105, employing their emergency power. With that event, the pilot is
entitled to go directly to the NTSB with an appeal of either the FAA's
abuse of authority and/or later for a full appeal of the revocation.
Remember the REQUIREMENT for safety to actually be compromised, for
this statute to be used.
The NTSB is guided by 49 CFR 800. They are supposed to follow the rules
of ethics and the standards of a courtroom - guess what??
With enough money behind him/her, the pilot can eventually get it into
a courtroom. Strange, the Constitution didn't mention that, "…..the
rich shall have the right…."
Now, look to the Alaska flight 506 pilots and the exercise of the FAA
emergency authority–
While the pilots admitted their mistakes leading to the dropping of the
passenger oxygen masks, nothing happened for two months, until the news
media picked up the story. In the background, there was a strong
indicator that there was an independent problem with the pressurization
controller; the aircraft was a week old.
Approximately 3 1/2 months after the event, the Alaska 506 pilots had
been grounded and fired by the company. They were finished. However,
the FAA exercised their infamous ‘emergency authority’ to revoke the
licenses of the pilots. It’s amazing that no one within the FAA felt
that an emergency existed until approximately 3 1/2 months after the
event, with no changed circumstances and no intervening investigative
fact-finding processes. Clearly there was no threat to the public in
any manner of speaking; no emergency existed. Referring to 5 USC 558,
safety didn't require an emergency action.
By any reasonable standard, all pilots are entitled to be treated
according to responsibly determined facts. Pilots do not deserve such
extreme rationalization. By any standard which is to be considered
reasonable and legitimate, the FAA is compelled to fairly determine
whether or not pilots’ actions are, in fact, so extreme as to create an
event so urgent that an "emergency" existed.
The fact that no one within the FAA felt that an emergency existed
until approximately 3 1/2 months after the event, with no changed
circumstances and no significant investigative fact-finding processes,
is the most powerful indicator of the political reality.
In the context of the FAA's application, there is no pertinent
definition of the term "emergency," other than to associate it to
"safety in air commerce or air transportation," typically as a
semi-clever lie. Any dictionary typically defines the term, emergency,
as " A serious condition or occurrence which happens unexpectedly,
demanding immediate action," or; “A condition of urgent need, requiring
action or assistance."
In the case of Alaska 506, consider that the FAA had to commit criminal
fraud to achieve their ends. Not only did they do it, but the criminal
issue was raised all over Washington D.C.
No response!
Adding insult to injury, the Alaska Flight 506 pilots had legitimately
filed the NASA ASRS reports and had demonstrated their honor by
honestly self-disclosing the events of the flight in a timely fashion.
The self-disclosure (ASAP) procedure should have ended the enforcement
issue. No enforcement action was warranted, as opposed to corrective
action to identified safety problems, which still remains to be
achieved.
So much for trusting the FAA.
The FAA has a long history of being able to engage in totally arbitrary
and capricious actions, prostituting the "emergency" provision in
section 49 USC 44709. The FAA is the only federal regulatory agency
with such draconian powers. Even the IRS has to take you to court!
In the background was the famous “Hoover Bill,” intended to halt those
abuses. It appears that the Hoover Bill is destined to become a virtual
joke in aeronautical history.
The only solution to the blatant FAA power abuse was to grant
certificate holders the right to an immediate review of an emergency
revocation "to determine whether or not a true emergency exists." That
was finally enacted as section 49 USC 44709(e)(3).
However, the permitted time frame of the appeal (two days) for review
of the FAA application of their emergency authority is arbitrarily far
too short to effect universal relief in the application of this right.
It's difficult enough to get an attorney's attention within two days,
let alone file an appeal. With a Friday delivery of the 'emergency
order,' - the pilot is as good as sunk. For the moment, it's the best
relief available.
Lacking jurisdiction, the NTSB has never has defined the term,
"emergency." Where there has been sufficient money made available to
achieve a court date, the courts have historically treated the issue on
a factual basis, individually examining situations alleged to
constitute an "emergency." There is no precedent on the ‘emergency’
issue which serves the pilots.
The emergency authority issue obviously demands that the definition of
"emergency" also has to rely on the element of common sense. Elementary
thought demands the necessity that the ‘emergency’ situation described
in a revocation order be examined to establish that the situation is,
in fact, so immediate and compelling that it warrants overriding 'due
process' for the sake of the REQUIREMENT of safety; not the
rationalization.
Amazingly, the FAA's directions to its inspectors is quite clear:
Emergency certificate actions may be taken only when clearly needed
in the public interest. If anybody cares in the FAA, they are not
politically foolish enough to stand up.
Conversely, the application of the FAA emergency authority must also be
questioned with respect to whether or not the authority application is
a fraudulent method for the FAA to override due process. (Remember the
term, "punishment"  being avoided?) In such cases, legal
precedents and common sense beg to be applied against a history which
often betrays the following:
- The FAA failure to establish any reliable factual basis for the
violation in question.
- The FAA often being complicit in the particular event by virtue of
negligent oversight in the instant case as well as other similar
situations. Such negligent FAA oversight history often betraying a
pattern found in accidents and incidents.
- The FAA failure to initiate ANY action to be legitimately considered
as ‘timely.’
- The FAA failure to take any corrective action to amend notorious and
obvious processes which precipitated the event in question (crew rest
and CRM failures, for example).
- The FAA common reliance upon inconsistent information or statements
which would compel the emergency action; or any enforcement action
against the pilots.
- While the FAA is often placed on notice of the negligible (possibly
false) merits of their allegations, the FAA takes no steps to re-access
their action with respect to diminishing or withdrawing their
complaint.
- With increasingly rare exception, the FAA allegations do not
legitimately identify a violation of the FARs, let alone an
"emergency."
- While the FAA is often on notice of certain safety violations by the
company involved, the FAA often distinguishes itself by taking no
appreciable steps to either investigate or correct the more obvious
background violations of the company.
- The FAA essentially prostitutes their emergency authority, seeking to
revoke the license of the pilots in lieu of more appropriate corrective
or enforcement action against the company involved.
- The FAA's efforts often effect malicious slander and libel, attacking
the integrity of the pilot(s) by asserting that the pilots operated an
aircraft "in a careless or reckless manner."
- The Emergency Order often arbitrarily and capriciously makes the
assertion that the pilots presently lack the qualifications to hold a
certificate. The assertion is often lacking any pre-existing record
supporting the implied ‘instantaneous self-disqualification.’
The most damning fact in so many abuses of the FAA Emergency Authority
is that the allegations against the pilots are often not only
incorrect, they are quite obviously politically driven, in favor of
some other agenda, if not to obviously protect the company the pilots
work for. Often, in the greatest clarity, the allegations are uniquely
regulatory rationalization, bordering on criminal fraud. In no manner
should any such unsupported conclusions be used to rationalize or
justify the existence of an emergency.
Until pilots, as a whole, stand up for their own rights, they are stuck
with a self inflicted wound -
"Dulles Approach Control; Right Bird 471, say spacing on the traffic
ahead."
"Right Bird 471; 2 1/2 miles."
"Dulles Approach Control; say controller's initials."
"Right Bird 471; initials bravo-bravo. Turn right zero-eight-five;
climb and maintain seven thousand. Contact 'approach' on
one-two-six decimal five."
"Right Bird 471: understand 'go around,'  copy
zero-eight-five on the heading; climb and maintain seven thousand.
Verify seven."
"Right Bird 471; I didn't say, "Go Around."
[paperwork] Affirmative; seven thousand."
"Right Bird 471; going over to 'approach'  on one-two-six
decimal five."
------------------------
"Dulles Approach; Right Bird 471, with you on one-two-six decimal five,
out of four-point-five for seven thousand."
"Right Bird 471, roger, seven thousand. Be advised that this spacing
demand and excess radio chatter over the "Intrepretative Rule"
 is CREATING a safety hazard; you guys aren't accomplishing
anything."
"Approach, you don't have your license on the line in a kangaroo court.
Tell Flight Standards to start enforcing the crew rest regs. We're
doing the best we can. They made the rule. We'll explain it to the two
Senators on board. Seems they caught the last plane to make their
meeting on time."
"Right Bird 471; copy."
"Approach; Right Bird 471, we're approaching minimum fuel; requesting
vectors for our alternate airport, Baltimore."
***********************
"Reagan Approach [formerly Washington National]; Straight Arrow 123,
say spacing on the traffic ahead."
"I'm from the FAA; trust me."
The materials
below should give any FAA inspector pause for
 concern that FAA "NORMS" might
just be extremely serious
violations of Federal Law, leaving
the individual inspector
vulnerable at any time.
If the laws and regulations below
are valid and enforceable;
well......
Maybe it's time for pilots to get
their own attorneys involved.
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 96 - RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS
Sec. 1962. Prohibited activities
(c) It shall be unlawful for any person employed by or associated with
any enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct or participate, directly or
indirectly, in the conduct of such enterprise's affairs through a
pattern of racketeering activity or collection of unlawful debt.
(d) It shall be unlawful for any person to conspire to violate any of
the provisions of subsection (a), (b), or (c) of this section.
Pursuant to:
18 USC Sec. 1961
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 96 - RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS
Sec. 1961. Definitions
As used in this chapter - (1) ''racketeering activity'' means:
(B) any act which is indictable under any of the following provisions
of title 18, United States Code:
section 1341 (relating to mail fraud)
section 1343 (relating to wire fraud)
section 1503 (relating to obstruction of justice)
section 1512 (relating to tampering with a witness, victim, or an
informant)
This matter relies on the definitions contained within this title (18
USC Sec. 1961)
(3) ''person'' includes any individual or entity capable of holding a
legal or beneficial interest in property;
(4) ''enterprise'' includes any individual, partnership, corporation,
association, or other legal entity, and any union or group of
individuals associated in fact although not a legal entity;
(5) ''pattern of racketeering activity'' requires at least two acts of
racketeering activity, one of which occurred after the effective date
of this chapter and the last of which occurred within ten years
(excluding any period of imprisonment) after the commission of a prior
act of racketeering activity;
(9) ''documentary material'' includes any book, paper, document,
record, recording, or other material
In reference to 18 USC Sec. 1341:
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 63 - MAIL FRAUD
Sec. 1341. Frauds and swindles
Whoever, having devised or intending to devise any scheme or artifice
to
defraud - as defined in 18 USC Sec. 1346 (listed below):
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 63 - MAIL FRAUD
Sec. 1346. Definition of ''scheme or artifice to defraud''
For the purposes of this chapter, the term ''scheme or artifice to
defraud'' includes a scheme or artifice to deprive another of the
intangible right of honest services.
Referring also to 18 USC Sec. 1341:
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 63 - MAIL FRAUD
Sec. 1341. Frauds and swindles
Whoever, having devised or intending to devise any scheme or artifice
to
defraud..... for the purpose of executing such scheme or artifice or
attempting so to do, places in any post office or authorized depository
for mail matter, any matter or thing whatever to be sent or delivered
by the Postal Service, or deposits or causes to be deposited any matter
or thing whatever to be sent or delivered by any private or commercial
interstate carrier, or takes or receives therefrom, any such matter or
thing, or knowingly causes to be delivered by mail or such carrier
according to the direction thereon, or at the place at which it is
directed to be delivered by the person to whom it is addressed, any
such matter or thing, shall be fined under this title or imprisoned not
more than five years, or both. If the violation affects a financial
institution, such person shall be fined not more than $1,000,000 or
imprisoned not more than 30 years, or both.
Additionally referencing 18 USC Sec. 1343:
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 63 - MAIL FRAUD
Sec. 1343. Fraud by wire, radio, or television
Whoever, having devised or intending to devise any scheme or artifice
to
defraud......for the purpose of executing such scheme or artifice,
shall be fined under this title or imprisoned not more than five years,
or both. If the violation affects a financial institution, such person
shall be fined not more than $1,000,000 or imprisoned not more than 30
years, or both.
Referencing also 18 USC Sec. 1503:
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 73 - OBSTRUCTION OF JUSTICE
Sec. 1503. Influencing or injuring officer or juror generally
(a) Whoever corruptly, or by threats or force, or by any threatening
letter or communication, endeavors to influence, intimidate, or impede
..... or corruptly or by threats or force, or by any threatening letter
or communication, influences, obstructs, or impedes, or endeavors to
influence, obstruct, or impede, the due administration of justice.....
Additionally referencing 18 USC Sec. 1512:
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 73 - OBSTRUCTION OF JUSTICE
Sec. 1512. Tampering with a witness, victim, or an informant
(b) Whoever knowingly uses intimidation .......threatens, or corruptly
persuades another person, or attempts to do so, or engages in
misleading conduct
toward another person, with intent to -
(1) influence, delay, or prevent the testimony of any person in an
official proceeding;
(2) cause or induce any person to -
(A) withhold testimony, or withhold a record, document, or other
object, from an official proceeding;
(C) evade legal process summoning that person to appear as a witness,
or to produce a record, document, or other object, in an official
proceeding; or
(3) hinder, delay, or prevent the communication to a law enforcement
officer or judge of the United States of information relating to the
commission or possible commission of a Federal offense or a violation
of conditions of probation, parole, or release pending judicial
proceedings; shall be fined under this title or imprisoned not more
than ten years, or both.
(c) Whoever intentionally harasses another person and thereby hinders,
delays, prevents, or dissuades any person from -
(2) reporting to a law enforcement officer or judge of the United
States the commission or possible commission of a Federal offense or a
violation of conditions of probation, parole, or release pending
judicial proceedings;
(e) For the purposes of this section -
(1) an official proceeding need not be pending or about to be
instituted at the time of the offense; and
(2) the testimony, or the record, document, or other object need not be
admissible in evidence or free of a claim of privilege.
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 1 - GENERAL PROVISIONS
Sec. 2. Principals
(a) Whoever commits an offense against the United States or aids,
abets, counsels, commands, induces or procures its commission, is
punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly
performed by him or another would be an offense against the United
States, is punishable as a principal.
Sec. 4. Misprision of felony
Whoever, having knowledge of the actual commission of a felony
cognizable by a court of the United States, conceals and does not as
soon as possible make known the same to some judge or other person in
civil or military authority under the United States, shall be fined
under this title or imprisoned not more than three years, or both.
Sec. 7. Special maritime and territorial jurisdiction of the United
States defined
The term ''special maritime and territorial jurisdiction of the United
States'', as used in this title, includes:
(1) The high seas, any other waters within the admiralty and maritime
jurisdiction of the United States and out of the jurisdiction of any
particular State, and any vessel belonging in whole or in part to the
United States or any citizen thereof, or to any corporation created by
or under the laws of the United States, or of any State, Territory,
District, or possession thereof, when such vessel is within the
admiralty and maritime jurisdiction of the United States and out of the
jurisdiction of any particular State.
(2) Any vessel registered, licensed, or enrolled under the laws of the
United States, and being on a voyage upon the waters of any of the
Great Lakes, or any of the waters connecting them, or upon the Saint
Lawrence River where the same constitutes the International Boundary
Line.
(3) Any lands reserved or acquired for the use of the United States,
and under the exclusive or concurrent jurisdiction thereof, or any
place purchased or otherwise acquired by the United States by consent
of the legislature of the State in which the same shall be, for the
erection of a fort, magazine, arsenal, dockyard, or other needful
building.
(4) Any island, rock, or key containing deposits of guano, which may,
at the discretion of the President, be considered as appertaining to
the United States.
(5) Any aircraft belonging in whole or in part to the United
States, or any citizen thereof, or to any corporation created by or
under the laws of the United States, or any State, Territory, district,
or possession thereof, while such aircraft is in flight over the high
seas, or over any other waters within the admiralty and maritime
jurisdiction of the United States and out of the jurisdiction of any
particular State.
(6) Any vehicle used or designed for flight or navigation in space and
on the registry of the United States pursuant to the Treaty on
Principles Governing the Activities of States in the Exploration and
Use of Outer Space, Including the Moon and Other Celestial Bodies and
the Convention on Registration of Objects Launched into Outer Space,
while that vehicle is in flight, which is from the moment when all
external doors are closed on Earth following embarkation until the
moment when one such door is opened on Earth for disembarkation or in
the case of a forced landing, until the competent authorities take over
the responsibility for the vehicle and for persons and property aboard.
(7) Any place outside the jurisdiction of any nation with respect to an
offense by or against a national of the United States.
(8) To the extent permitted by international law, any foreign vessel
during a voyage having a scheduled departure from or arrival in the
United States with respect to an offense committed by or against a
national of the United States.
TITLE 14 - AERONAUTICS AND SPACE
CHAPTER I - FEDERAL AVIATION ADMINISTRATION,DEPARTMENT OF TRANSPORTATION
PART 13 - INVESTIGATIVE AND ENFORCEMENT PROCEDURES
Special Federal Aviation Regulations
SFAR No. 72
Subpart A - Investigative Procedures
Sec. 13.1 Reports of violations.
(a) Any person who knows of a violation of the Federal Aviation Act of
1958, as amended, the Hazardous Materials Transportation Act relating
to the transportation or shipment by air of hazardous materials, the
Airport and Airway Development Act of 1970, the Airport and Airway
Improvement Act of 1982, the Airport and Airway Improvement Act of 1982
as amended by the Airport and Airway Safety and Capacity Expansion Act
of 1987, or any rule, regulation, or order issued thereunder, should
report it to appropriate personnel of any FAA regional or district
office.
(b) Each report made under this section, together with any other
information the FAA may have that is relevant to the matter reported,
will be reviewed by FAA personnel to determine the nature and type of
any additional investigation or enforcement action the FAA will take.
TITLE 14 - AERONAUTICS AND SPACE
CHAPTER I - FEDERAL AVIATION ADMINISTRATION,DEPARTMENT OF TRANSPORTATION
PART 13 - INVESTIGATIVE AND ENFORCEMENT PROCEDURES
Special Federal Aviation Regulations
SFAR No. 72
Subpart C - Legal Enforcement Actions
Sec. 13.23 Criminal penalties.
(a) Sections 902 and 1203 of the Federal Aviation Act of 1958 (49
U.S.C. 1472 and 1523), provide criminal penalties for any person who
knowingly and willfully violates specified provisions of that Act, or
any regulation or order issued under those provisions. Section 110(b)
of
the Hazardous Materials Transportation Act (49 U.S.C. 1809(b)) provides
for a criminal penalty of a fine of not more than $25,000, imprisonment
for not more than five years, or both, for any person who willfully
violates a provision of that Act or a regulation or order issued under
it.
(b) If an inspector or other employee of the FAA becomes aware of a
possible violation of any criminal provision of the Federal Aviation
Act
of 1958 (except a violation of section 902 (i) through (m) which is
reported directly to the Federal Bureau of Investigation), or of the
Hazardous Materials Transportation Act, relating to the transportation
or shipment by air of hazardous materials, he or she shall report it to
the Office of the Chief Counsel or the Regional Counsel or Assistant
Chief Counsel for the region or area concerned. If appropriate, that
office refers the report to the Department of Justice for criminal
prosecution of the offender. If such an inspector or other
employee
becomes aware of a possible violation of a Federal statute that
is
within the investigatory jurisdiction of another Federal agency, he or
she shall immediately report it to that agency according to standard
FAA
practices. (See "Misprision of a Felony" - above)
18 USC Sec. 2071
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 101 - RECORDS AND REPORTS
Sec. 2071. Concealment, removal, or mutilation generally
(a) Whoever willfully and unlawfully conceals, removes, mutilates,
obliterates, or destroys, or attempts to do so, or, with intent to do
so takes and carries away any record, proceeding, map, book, paper,
document, or other thing, filed or deposited with any clerk or officer
of any court of the United States, or in any public office, or with any
judicial or public officer of the United States, shall be fined under
this title or imprisoned not more than three years, or both.
(b) Whoever, having the custody of any such record, proceeding, map,
book, document, paper, or other thing, willfully and unlawfully
conceals, removes, mutilates, obliterates, falsifies, or destroys the
same, shall be fined under this title or imprisoned not more than three
years, or both; and shall forfeit his office and be disqualified from
holding any office under the United States. As used in this subsection,
the term ''office'' does not include the office held by any person as a
retired officer of the Armed Forces of the United States.
CROSS REFERENCES
Disqualification from holding any office of honor, trust, or profit,
additional grounds for, see sections 592, 593, 1901, 2381, 2385, and
2387 of this title.
18 USC Sec. 1001
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 47 - FRAUD AND FALSE STATEMENTS
Sec. 1001. Statements or entries generally
(a) Except as otherwise provided in this section, whoever, in any
matter within the jurisdiction of the executive, legislative, or
judicial branch of the Government of the United States, knowingly and
willfully -
(1) falsifies, conceals, or covers up by any trick, scheme, or device a
material fact;
(2) makes any materially false, fictitious, or fraudulent statement or
representation; or
(3) makes or uses any false writing or document knowing the same to
contain any materially false, fictitious, or fraudulent statement or
entry; shall be fined under this title or imprisoned not more than 5
years, or both.
(b) Subsection (a) does not apply to a party to a judicial proceeding,
or that party's counsel, for statements, representations, writings or
documents submitted by such party or counsel to a judge or magistrate
in that proceeding.
(c) With respect to any matter within the jurisdiction of the
legislative branch, subsection (a) shall apply only to -
(1) administrative matters, including a claim for payment, a matter
related to the procurement of property or services, personnel or
employment practices, or support services, or a document required by
law, rule, or regulation to be submitted to the Congress or any office
or officer within the legislative branch; or
(2) any investigation or review, conducted pursuant to the authority of
any committee, subcommittee, commission or office of the Congress,
consistent with applicable rules of the House or Senate.
CROSS REFERENCES
Conspiracy to defraud Government in regard to false claims, see section
286 of this title.
Conspiracy to defraud United States, see section 371 of this title.
Fraudulent claims, generally, see section 287 of this title.
18 USC Sec. 3
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 1 - GENERAL PROVISIONS
Sec. 3. Accessory after the fact
Whoever, knowing that an offense against the United States has been
committed, receives, relieves, comforts or assists the offender in
order to hinder or prevent his apprehension, trial or punishment, is an
accessory after the fact. Except as otherwise expressly provided by any
Act of Congress, an accessory after the fact shall be imprisoned not
more than one-half the maximum term of imprisonment or (notwithstanding
section 3571) fined not more than one-half the maximum fine prescribed
for the punishment of the principal, or both; or if the principal is
punishable by life imprisonment or death, the accessory shall be
imprisoned not more than 15 years.
18 USC Sec. 1503
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 73 - OBSTRUCTION OF JUSTICE
Sec. 1503. Influencing or injuring officer or juror generally
(a) Whoever corruptly, or by threats or force, or by any threatening
letter or communication, endeavors to influence, intimidate, or impede
any grand or petit juror, or officer in or of any court of the United
States, or officer who may be serving at any examination or other
proceeding before any United States magistrate judge or other
committing magistrate, in the discharge of his duty, or injures any
such grand or petit juror in his person or property on account of any
verdict or indictment assented to by him, or on account of his being or
having been such juror, or injures any such officer, magistrate judge,
or other committing magistrate in his person or property on account of
the performance of his official duties, or corruptly or by threats or
force, or by any threatening letter or communication, influences,
obstructs, or impedes, or endeavors to influence, obstruct, or impede,
the due administration of justice, shall be punished as provided in
subsection (b). If the offense under this section occurs in connection
with a trial of a criminal case, and the act in violation of this
section involves the threat of physical force or physical force, the
maximum term of imprisonment which may be imposed for the offense shall
be the higher of that otherwise provided by law or the maximum term
that could have been imposed for any offense charged in such case.
(b) The punishment for an offense under this section is -
(1) in the case of a killing, the punishment provided in sections 1111
and 1112;
(2) in the case of an attempted killing, or a case in which the offense
was committed against a petit juror and in which a class A or B felony
was charged, imprisonment for not more than 20 years, a fine under this
title, or both; and
(3) in any other case, imprisonment for not more than 10 years, a fine
under this title, or both.
18 USC Sec. 1515
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 73 - OBSTRUCTION OF JUSTICE
Sec. 1515. Definitions for certain provisions; general provision
(a) As used in sections 1512 and 1513 of this title and in this section
-
(1) the term ''official proceeding'' means -
(A) a proceeding before a judge or court of the United States, a United
States magistrate, a bankruptcy judge, a judge of the United States Tax
Court, a special trial judge of the Tax Court, a judge of the United
States Court of Federal Claims, or a Federal grand jury;
(B) a proceeding before the Congress;
(C) a proceeding before a Federal Government agency which is authorized
by law; or
(D) a proceeding involving the business of insurance whose activities
affect interstate commerce before any insurance regulatory official or
agency or any agent or examiner appointed by such official or agency to
examine the affairs of any person engaged in the business of insurance
whose activities affect interstate commerce;
(2) the term ''physical force'' means physical action against another,
and includes confinement;
(3) the term ''misleading conduct'' means -
(A) knowingly making a false statement;
(B) intentionally omitting information from a statement and thereby
causing a portion of such statement to be misleading, or intentionally
concealing a material fact, and thereby creating a false impression by
such statement;
(C) with intent to mislead, knowingly submitting or inviting reliance
on a writing or recording that is false, forged, altered, or otherwise
lacking in authenticity;
(D) with intent to mislead, knowingly submitting or inviting reliance
on a sample, specimen, map, photograph, boundary mark, or other object
that is misleading in a material respect; or
(E) knowingly using a trick, scheme, or device with intent to mislead;
(4) the term ''law enforcement officer'' means an officer or employee
of the Federal Government, or a person authorized to act for or on
behalf of the Federal Government or serving the Federal Government as
an adviser or consultant -
(A) authorized under law to engage in or supervise the prevention,
detection, investigation, or prosecution of an offense; or
(B) serving as a probation or pretrial services officer under this
title;
(5) the term ''bodily injury'' means -
(A) a cut, abrasion, bruise, burn, or disfigurement;
(B) physical pain;
(C) illness;
(D) impairment of the function of a bodily member, organ, or mental
faculty; or
(E) any other injury to the body, no matter how temporary; and
(6) the term ''corruptly persuades'' does not include conduct which
would be misleading conduct but for a lack of a state of mind.
(b) As used in section 1505, the term ''corruptly'' means acting with
an improper purpose, personally or by influencing another, including
making a false or misleading statement, or withholding, concealing,
altering, or destroying a document or other information.
(c) This chapter does not prohibit or punish the providing of lawful,
bona fide, legal representation services in connection with or
anticipation of an official proceeding.
TITLE 14 - AERONAUTICS AND SPACE
CHAPTER II - OFFICE OF THE SECRETARY, DEPARTMENT OF TRANSPORTATION
(AVIATION PROCEEDINGS)
PART 302 - RULES OF PRACTICE IN PROCEEDINGS
Sec. 302.1 Applicability and description of part.
(a) Applicability. This part governs the conduct of all economic
proceedings before DOT whether instituted by order of DOT or by the
filing with DOT of an application, complaint, petition, or a section
412 contract or agreement. This part also contains delegations to
administrative law judges and to the DOT decisionmaker of DOT's
function to render the agency decision in certain cases. The decision
of administrative law judges is subject to review by the DOT
decisionmaker, pursuant to authority delegated by the Secretary.
Decisions of the DOT decisionmaker are subject to review at the
discretion of the Assistant Secretary for Aviation and International
Affairs. In appropriate cases, the Secretary may exercise the
discretionary review authority. The provisions of part 263 of this
chapter of the Economic Regulations are applicable to participation of
air carrier associations in proceedings under this part. Proceedings
involving ``Alaskan air carriers'' are governed by the rules in this
part, except as modified by part 292 of this chapter.
(b) Description. Subpart A of this part sets forth general rules
applicable to all types of proceedings. Each of the other subparts of
this part sets forth special rules applicable to the type of
proceedings described in the title of the subpart. Therefore, for
information as to applicable rules, reference should be made to subpart
A and to the rules in the subpart relating to the particular type of
proceeding, if any. In addition, reference should be made to the
Federal Aviation Act, and to the substantive rules, regulations and
orders of DOT relating to the proceeding.\1\ Wherever there is any
conflict between one of the general rules in subpart A and a special
rule in another subpart applicable to a
particular type of proceeding, the special rule will govern.
Sec. 302.2 Reference to part and method of citing rules.
This part shall be referred to as the ``Rules of Practice''. Each
section, and any paragraph or subparagraph thereof, shall be referred
to as a ``Rule''. The number of each rule shall include only the
numbers and letters at the right of the decimal point. For example,
``302.8 Service of documents'', shall be referred to as ``Rule 8''.
Paragraph (a)(2) of that rule, relating to service documents by the
parties, shall be referred to as ``Rule 8 (a)(2)''.
Sec. 302.4 General requirements as to documents.
(a) Contents. In case there is no rule, regulation, or order of DOT
which prescribes the contents of a formal application, petition,
complaint, motion or other authorized or required document, such
document shall contain a proper identification of the parties
concerned, a concise but complete statement of the facts relied upon
and the relief sought, and, where required by Sec. 312.12 or Sec.
312.14 of this subchapter, such document shall, at the appropriate
time, be accompanied by an Environmental Evaluation, a representation
and explanation with respect to Sec. 312.9(a)(2) of this chapter, or an
Environmental assessment, in conformity with those sections or orders
issued thereunder.
(b) Subscription. Every application, petition, complaint, motion or
other authorized or required document shall be signed by the party
filing the same, or by a duly authorized officer or the attorney-at-law
of record of such party, or by any other person; Provided, That, if
signed by such other person, the reason therefor must be stated and the
power of attorney or other authority authorizing such other person to
subscribe the document must be filed with the document. The signature
of the person signing the document constitutes a certification that he
or she has read the document; that to the best of his or her knowledge,
information and belief every statement contained in the instrument is
true and no such statements are misleading; and that it is not
interposed for delay.
(c) Designation of person to receive service. The initial document
filed by a person shall state on its first page the name and post
office address of the person or persons who may be served with any
documents filed in the proceeding. It is requested, but not required,
that the telephone number of that person also be included.
(d) Prohibition of certain documents. No document which is subject to
the general requirements of this subpart concerning form, filing,
subscription, service or similar matters shall be filed with DOT
unless:
(1) Such document and its filing by the person submitting it has been
expressly authorized or required in the Federal Aviation Act of 1958,
any other law, this part, other Department regulations, or any order or
other document issued by the DOT decisionmaker, the chief
administrative law judge or an administrative law judge assigned to the
proceeding, and
(2) Such document complies with each of the requirements of Secs. 302.3
and 302.8, and is submitted as a formal application, complaint,
petition, motion, answer, pleading, or similar paper rather than as a
letter, telegram, or other informal written communication:
Provided, however, That for good cause shown, pleadings of any public
body or civic organization may be submitted in the form of a letter:
Provided further, That comments concerning tariff agreements, which
have not
been docketed, may be submitted in the form of a letter.2
---------------------------------------------------------------------------
2 See subpart L, Sec. 302.1206 providing for the filing of
comments with respect to undocketed agreements.
---------------------------------------------------------------------------
(e) Documents improperly filed. A document which is filed in violation
of the prohibition imposed by paragraph (d) of this section, or in
violation of a requirement imposed by any other provision of this part,
will not be accepted for filing by DOT and will not be physically
incorporated in the docket of the proceeding. The sender of such
document and all persons who have been served therewith will be
notified informally of DOT's action thereon.
(f) Motions for leave to file otherwise unauthorized documents.
(1) DOT will accept otherwise unauthorized documents for filing only if
leave has previously been obtained, from the administrative law judge
or the DOT decisionmaker, on written motion and for good cause shown.
The written motion may be incorporated into the otherwise unauthorized
document for which admission is sought. In such event, the document
filed shall be titled to describe both the motion and the underlying
documents.
(2) After the assignment of an administrative law judge to a proceeding
and before the issuance of a recommended or initial decision, or the
certification of the record to the DOT decisionmaker, these motions
shall be addressed to the administrative law judge. At all other times,
such motions shall be addressed to the DOT decisionmaker. The
administrative law judge or DOT decisionmaker will promptly pass upon
such motions.
(3) Such motions shall be filed within seven days after service of any
document or order or ruling to which the proposed filing is responsive,
and shall be served on all parties to the proceeding. Answers thereto
may not be filed.
(4) Such motions shall contain a concise statement of the matters
relied upon as good cause and there shall be attached thereto the
pleading or other document for which leave to file is sought.
TITLE 49- TRANSPORTATION
Subtitle A - Office of the Secretary of Transportation
PART 99 - EMPLOYEE RESPONSIBILITIES AND CONDUCT
Subpart A - General
Sec. 99.735-1 Cross-reference to ethical conduct standards and
financial
disclosure
Employees of the Department of Transportation are subject to the
executive
branch-wide Standards of Ethical Conduct at 5 CFR part 2635, the
Department of
Transportation regulations at 5 CFR part 6001 which supplement the
executive
branch-wide standards and the executive branchwide financial disclosure
regulations at 5 CFR part 2634.
Sec. 300.Oa Applicability of 49 CFR part 99.
(a) Except as provided in paragraph (b) of this section, each DOT
employee
involved in matters covered by this chapter shall comply with the rules
on
"Employee Responsibilities and Conduct'' in 49 CFR part 99.
(b) The rules in this part shall be construed as being consistent with
those in 49 CFR part 99. If a rule in this part is more restrictive
than a rule in 49 CFR part 99, the more restrictive rule shall apply.
Sec. 300.1 Judicial standards of practice.
Certain of DOT's functions involving aviation economic and enforcement
proceedings are similar to those of a court, and parties to cases
before DOT and
those who represent such parties are expected - in fact and in
appearance - to
conduct themselves with honor and dignity as they would before a court.
By the
same token, any DOT employee or administrative law judge carrying out
DOT's
quasi-judicial functions and any DOT employee making recommendations or
advising them are expected to conduct themselves with the same fidelity
to
appropriate standards of propriety that characterize a court and its
staff. The
standing and effectiveness of DOT in carrying out its quasi-judicial
functions are in direct relation to the observance by DOT, DOT
employees, and the parties and attorneys appearing before DOT of the
highest standards of judicial and
professional ethics. The rules of conduct set forth in this part are to
be interpreted in light of those standards.
Sec. 300.5 Prohibited conduct.
No person shall: (a) Attempt to influence the judgment of a concerned
DOT
employee by any unlawful means such as deception or the payment of
money or
other consideration; or
(b) Disrupt or interfere with the fair and orderly disposition of a DOT
proceeding.
Sec. 300.6 Practitioners' standards of conduct.
Every person representing a client in matters before DOT in all
contacts with DOT employees, should:
(a) Strictly observe the standards of professional conduct;
(b) Refrain from statements or other actions designed to mislead DOT or
to
cause unwarranted delay;
(c) Avoid offensive or intemperate behavior;
(d) Advise all clients to avoid improprieties and to obey the law as
the
attorney believes it to be; and
(e) Terminate the professional relationship with any client who
persists in
improprieties in proceedings before DOT.