# ..
JEFFREY HARPER FAA OFFICE OF REGIONAL COUNSEL 1601 LIND AVENUE SOUTHWEST RENTON, WASHINGTON 98057 TELEPHONE: (425) 227-2161 FACSIMILE: (425) 227-1007 '/1117**(~** t: t 1,.. 

# 21 1: 2b

UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C. 

# At!CEIVED SEP**~'I** 

# 'Di2 

# H.!JAA,NJO DOCKET

FAA Case No. 2011NM060011 DMS No.: FAA-2011-0485
Inthe Matters of: SkyWest Airlines, Inc. FAA Case No. 2011NM060010 DMS No.: FAA-2011-0486 FAA Case No. 2011NM060033 DMS No. FAA-2011-0779 FAADocketNo. CPllSWOOOO Honorable Richard C. Goodwin



### MOTION. TO TAKE JUDICIAL NOTICE Complainantmoves pursuant to 14 C.F.R. § 13.218 and Federal Rule ofEvidence 201 that you takejudicial notice ofthe following contents ofthe following publications:
1. 

### FAA Weight & 

### Balance Handbook, FAA-H-8038-1A, Chapter 1, Pages 1-4. 2. Advisory Circular 120-27E, Pages ii, 1, 5 and Appendix 1, Page 1. 3. FAA Order 2150.3B, Chapter 7. 4. FAA Order 2150.3B, Appendix B, Pages B-1 to B-3 and B-12. Copies ofthe relevantpages ofthesepublications are attached. Respectfully submitted this 20th day ofSeptember, 2012.

# ~(~,~ J.)?.'Harper FAA Attorney JMH/ds

### CERTIFICATE OF SERVICE
I hereby certify that the foregoingMotion to Take Judicial Notice has been served via facsimile and Certified Mail- Return Receipt Requested this date, to the following:

The Honorable Richard C. Goodwin Office ofHearings, M-20 1200 NewJersey Avenue, S.E. East Building Ground Floor, 

### Rm E12-320 Washington, D.C. 20590 TEL: (202) 366-2139 FAX: (202) 366-7536 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2W1 000 Federal Aviation Administration 800 Independence Ave. SW. Washington, DC 20591 FAX: (202) 493-5142 Todd Emerson, Esq. SkyWest Airlines 444 S. River Road St. George, UT 84790 TEL: (435) 634-3530 FAX: (435) 634-3505 Michael Dworkin, Esq. Michael 

### L. Dworkin and Associates 465 California Street San Francisco, CA 94104 TEL: (415) 421-2500 FAX: (435) 421-2560 DATED this 20th day ofSeptember, 2012.

MOTION TO TAKE JUDICIAL NOTICE SkyWest Airlines

# ~~ iSana Stephenson

- Office ofRegional Counsel (ANM-7) Federal Aviation Administration 1601 Lind Ave. SW Renton, W A 98057 (425) 227-2164

JEFFREYM. HARPER, FAA ATTORNEY TEL: 425.227.1417; FAX: 425.227.1007 DMS Nos. FAA-2011-0485, FAA-2011-0486, FAA-2011-0779 Page 2 of2

# Weight and Balance Control Chapter

# 0

There are many factors that lead to efficient and safe operation ofaircraft. Among these vital factors is proper weight andbalance control. The weight and balance system commonly employed among aircraft consists of three equallyimportant elements: the weighing ofthe aircraft, the maintaining ofthe weight and balancerecords, andthe proper loading ofthe aircraft. An inaccuracy in any one ofthese elements nullifies the purpose ofthewhole system. The final loading calculations will be meaningless ifeither the aircraft has been improperly weighed or the records contain an error. Improper loading cuts down the efficiency ofan aircraft from the standpoint ofaltitude, maneuverability, rate ofclimb, and speed. Itmay even be the cause offailure to complete the flight, orfor that matter, failure to start the flight. Because ofabnormal stresses placed upon the structure ofan improperly loaded aircraft, orbecause of changed flying characteristics ofthe aircraft, loss oflife and destruction ofvaluable equipment may result. The responsibility for proper weight and balance control begins with the engineers and designers, and extends to the aircraft mechanics that maintain the aircraft and the pilots who operatethem. Modem aircraft are engineered utilizing state-of-the-art technology and materials to achieve maximumreliability and performance for the intended category. As much care and expertise mustbe exercised in operating and maintaining these efficient aircraft as was taken intheir design and manufacturing. The designers ofan aircraft have set the maximum weight, based on the amount ofliftthe wings orrotors can provide underthe operation conditions for which.the aircraft is designed. The structural strength ofthe aircraft also limits the maximum weight the aircraft can safely carry. The ideal location ofthe center ofgravity (CG) was very carefully determined by the designers, and the maximum deviation allowed from this specific location has been calculated. The manufacturerprovides the aircraft operator with the empty weight ofthe aircraft and the location ofits emptyweight center ofgravity (EWCG) at the time the certified aircraft leaves thefactory. Amateur-built aircraft musthave this information determined and available at the time of certification. The airframe and powerplant (A&P) mechanic or repairman who maintains the aircraft keeps the weight and balancerecords current, recording any changes that have beenmadebecause ofrepairs or alterations. The pilotin command ofthe aircraft has the responsibility on every flight to know the maximum allowable weight ofthe aircraft and its CG limits. This allows the pilot to determine on the preflight inspection that the aircraft is loaded in such a way that the CGis within the allowable limits. 

### Weight Control Weight is a major factor in airplane construction and operation, and it demands respect from all pilots and particular diligence by all A&P mechanics and repairmen. Excessive weight reduces the efficiency ofan aircraft and the safetymargin available ifan emergency condition should arise. When an aircraft is designed, itis made as light as the required structural strength will allow, and the wings or rotors are designed to support the maximum allowable weight. Whenthe weight ofan aircraft is increased, the wings orrotors must produce additional liftand the structure must support not only the additional static loads, but also the dynamic loads imposed by flight maneuvers. For example, the wings ofa 3,000-pound airplane must support 3,000 pounds in level flight, but when the airplane is turned smoothly and sharply using a bank angle of60°, the dynamic load requires the wings to support twice this, or 6,000pounds. Severe uncoordinated maneuvers orflight into turbulence canimpose dynamic loads on the structure great enough

1-1to cause failure. Inaccordance with Title 14 ofthe Code ofFederal Regulations (14 CPR) part 23, the structure ofa normal category airplane mustbe strong enough to sustain a load factor of3.8 times its weight. Thatis, every pound ofweight added to an aircraftrequires that the structure be strong enoughto support an additional3.8 pounds. An aircraft operated in the utility category must sustain a load factor of4.4, and acrobatic category aircraft mustbe strong enough to withstand 6.0 times their weight. The liftproducedby a wing is determined byits airfoil shape, angle ofattack, speed through the air, and the air density. When an aircraft takes offfrom an airport with a high density altitude, itmust accelerate to a speed faster than would berequired at sealevel to produce enough liftto allow takeoff; therefore, a longertakeoffrun is necessary. The distance neededmay be longer than the available runway. When operatingfrom a high-density altitude airport, the Pilot's Operatiilg Handbook.(POH) or Airplane FlightManual (AFM) mustbe consulted to determine the maximum weight allowed for the aircraft under the conditions ofaltitude, temperature, wind, and runway conditions. 

### Effects 

### ofWeight Mostmodem aircraft are so designed that ifall seats are occupied, all baggage allowed by the baggage compartmentis carried, and all ofthe fuel tanks are full, the aircraft will be grossly overloaded. This type of design requires the pilot to give great consideration to the requirements ofthe trip. Ifmaximumrange is required, occupants orbaggage mustbe left behind, or ifthe maximum load mustbe carried, the range, dictated by the amount offuel on board, must bereduced. Some ofthe problems caused by overloading an aircraft are:

• the aircraft will need a higher takeoff speed, which results in a longer takeoffrun.

• both the rate and angle ofclimb will bereduced.

• the service ceiling will be lowered.

• the cruising speed will bereduced.

• the cruisingrange will be shortened.

• maneuverabilitywill be decreased.

• a longer landingroll will berequired because the landing speed will behigher.

• excessive loads will be imposed on the structure, especially thelanding gear.

1-2 ThePOH orAFM includes tables orcharts that give the pilot anindication oftheperformance expected for any weight. An importantpart ofcareful preflightplanning includes a check ofthese charts to determine the aircraft is loaded so the proposed flight can be safely made. 

### Weight Changes Themaximum allowable weight for an aircraft is determinedby design considerations. However, the maximum operational weight may be less than the maximum allowable weight due to such considerations as high-density altitude orhigh-drag field conditions caused by wet grass or water on the runway. The maximum operational weight may also be limited by the departure or arrival airport's runway length. Oneimportantpreflight consideration is the distribution ofthe load inthe aircraft. Loading the aircraft so the gross weight is less thanthe maximum allowable is not enough. This weight mustbe distributedto keep the CG within the limits specified in the POH or AFM. Ifthe CGis too far forward, a heavy passenger can be moved to one ofthe rear seats orbaggage canbe shifted from a forward baggage compartment to a rear compartment. Ifthe CG is too far aft, passenger weight or baggage canbe shifted forward. The fuel load shouldbe balanced laterally: thepilot should pay special attention to the POH or AFM regarding the operation ofthe fuel system, in order to keep the aircraftbalanced in flight. Weight and balance ofa helicopteris far more critical than for an airplane. With somehelicopters, they may be properly loaded for takeoff, butnear the end ofa long flight when thefuel tanks are almost empty, the CG may have shifted enough for the helicopter to be out ofbalance laterally or longitudinally. Beforemaking any long flight, the CG with the fuel available for landing must be checked to ensure it will be within the allowable range. Airplanes with tandem seating normally have a limitation requiring solo flight to bemade from the front seatin some airplanes or the rear seatin others. Some ofthe

· smallerhelicopters also require solo flight bemade from a

specific seat, eitherthe right, left, or center. These seating limitations will benoted by a placard, usually on the instrumentpanel, and they should be strictly adhered to. AB an aircraft ages, its weight usually increases due to trash and dirt collecting in hard-to-reach locations, and moisture absorbed in the cabininsulation. This growth in weightis normally small, but it can only be determined by accurately weighing the aircraft.Changes offixed equipmentmay have a majoreffectupon the weight ofthe aircraft. Many aircraft are overloaded by the installation ofextraradios or instruments. Fortunately, the replacement ofolder, heavy electronic equipment with newer, lighter types results in a weightreduction. This weight change, however helpful, will probably causethe CG to shift and this must be computed and annotated in the weight and balancerecord. Repairs and alteration are the major sources ofweight changes, anditis the responsibility ofthe A&P mechanic orrepairman making any repair or alteration to know the weight and location ofthese changes, and to compute the CG andrecord the new empty weight and EWCGin the aircraft weight and balance record. If.the newly calculatedEWCG should happen to fall outside the EWCGrange, it will be necessary to perform adverse loading check. This will require a forward and rearward**adverse~**loading check, and a maximumweight check. These weight and balance extreme conditions represent the maximumforward andrearward CGposition for the aircraft. Adverse loading checks are a deliberate attemptto load an aircraft in a mannerthat will create the most critical balance condition and still remain within the design CG limits ofthe aircraft. Ifany ofthe checks fall outside the loaded CGrange, the aircraft mustbe reconfigured orplacarded to prevent the pilot from loading the aircraft improperly. Itis sometimes possible to install fixed ballastin orderfor the aircraft to again operate within the normal CGrange. The A&P mechanic orrepairman conducting an annual or condition inspectionmust ensure the weight and balance datain the aircraftrecords is current and accurate. It is the responsibility ofthe pilotin commandto use the most current weight and balance data when operating the aircraft. hands offthe controls. Longitudinal stability is maintained by ensuringthe CG is slightly ahead ofthe center oflift. This produces a fixed nose-down force independent of the airspeed. This is balancedby a variable nose-up force, which is produced by a downward aerodynamic force on thehorizontal tail surfaces that varies directly with the airspeed. [Figure 1-1] Lift

Fixed nose-down force

independent of airspeed Variable nose-upforce dependent upon airspeed Figure 1-1. Longitudinal forces acting on an airplane inflight. Ifa rising air current should cause the nose to pitch up, the airplane will slow down and the downward force on the tail will decrease. The weight concentrated at the CG will pull the nose back down. Ifthe nose should drop in flight, the airspeed will increase andthe increased downward tail load will bring the nosebackup to level flight. As long as the CG is maintained within the allowable limits for its weight, the airplane will have adequate longitudinal stability and control. Ifthe CG is too far aft, it will be too near the center oflift and the airplane will be unstable, and difficult to recover from a stall. [Figure 1-2] Ifthe unstable airplane should ever enter a spin, the spin couldbecome flat and recovery would be difficult or impossible. Lift

,,

### ............. 

# . ' 

# . 

# . Stability-and-Balance- Gontrol-

-···- - -----**--~--­** · lnsufficie'nt-

-- : elr'iator / Balancecontrol refers to the location ofthe CG ofan aircraft. This is ofprimary importance to aircraft stability, which determines safety in flight. The CGis the point at which the total weight ofthe aircraft is assumed to be concentrated, andthe CG mustbe located within specific limits for safe flight. Both lateral and longitudinal balance are important, butthe prime concern is longitudinal balance; that is, the location ofthe CG , along the longitudinal or lengthwise axis. An airplane is designed to have stability that allows it to be trimmed so it will maintain straight andlevel flight with 

### ...................;'.....

Nose-down force Figure 1-2.lfthe CG is toofar aftat the low stall airspeed, there mightnot be enough elevatornose-down authority to get the nose downfor recovery. Ifthe CG is too far forward, the downward tail load will havetobeincreased to maintain level flight. This increased tail load has the same effect as carrying additional weight;

1-3the aircraft will have to fly at a higher angle ofattack, and drag will increase.
A more serious problem caused by the CGbeingtoo far forward is the lack ofsufficient elevator authority. At slow takeoffspeeds, the elevatormight notproduce enough nose-up force to rotate andon landing there may notbe enough elevatorforce to flare the airplane. [Figure 1-3] Bothtakeoff and landing runs will be lengthened ifthe CG is too far forward.

Lift

nose-up CG too far force

forward**fu!~~ik·+£~~~~~4fi#iii&•~~iAiaii~~** Figure 1-3.lfthe CG is too far forward, there willnotbe enough elevator nose-up force. toflare the airplane for landing. Thebasic aircraft design assumes that lateral symmetry exists. For each item ofweight added to the left ofthe centerline ofthe aircraft (also known as buttock line zero, orBL-0),'there is generally an equal weight at a corresponding location on the right. Thelateral balance canbeupsetby uneven fuel loading orbnrnoff. Theposition ofthe lateral CG is not normally computed for an airplane, butthepilotmustbe aware ofthe adverse effects that will result from a laterally unbalanced condition. [Figure 1-4] This is corrected by using the ailerontrim tab until enough fuel has been used from the tank on the heavy side to balance the airplane. The deflected trim tab deflects the aileron to produce
additional drag, and the airplane flies inefficiently.

1-4 Empty

Additional weight Additional lift and drag 

## t

Figure 1-4. Lateral imbalance causes wing heaviness, which may be corrected bydeflecting the aileron. The additional lift causes additional drag and the airplane flies inefficiently. Helicopters are affected by lateral imbalance more than airplanes. Ifa helicopteris loaded with heavy occupants andfuel onthe same side, it could be outofbalance enough to make itunsafe to fly. Itis also possiblethat if external loads are carried in such a position to requite large lateral displacement ofthe cyclic control to maintain level flight, the fore-and-aft cyclic control effectiveness will be limited. Sweptwing airplanes are more critical due to fuel imbalance because as the fuel is used from the outboard tanks, the CG shifts forward, and as itis used from the inboard tanks, the CG shifts aft. [Figure 1-5] For this reason, fuel-use scheduling in sweptwing airplanes operation is critical.

Inboard fuel: nose heavy Outboard fuel: tail heavy

Figure 1-5. Fuel in the tanks of a sweptwing airplane affects both .lateraland longitudinal balance.As fuel is used from an outboard tank; the CG shifts forward.AC 120-27E 6/10/05

3. What documents does this AC cancel? 

# I This AC cancels AC 120-27D,Aircraft Weight andBalance Control, dated August 11, 2004. 4. What should an operator considerwhile reading this AC?

a. Accurately calculating an aircraft's weight and CG before flight is essential to comply with the certification limits established for the aircraft. These limits include both weight and CG limits. By complying withthese limits and operating undertheprocedures established by the manufacturer, an operator is able to meetthe weight and balance requirements specified in the aircraft flight manual (AFM). Typically, an operator calculates takeoffweightby adding the 

## 1 operational empty weight (OEW) ofthe aircraft, the weight ofthe passenger, cargo payload, and the weight offuel. The objective is to calculate the takeoffweight and CG ofan aircraft as accurately as possible.



# I



# I b. When·using average weights for passengers and bags, the operator mustbe vigilant to ensure thatthe weight andbalance control programreflects the reality ofaircraft loading. The 

### FAAwill periodically review the guidance inthis AC and update this AC ifaverage weights of the traveling public should change or ifregulatory requirements for carry-on bags orpersonal items should change. Ultimately, the operator is responsible for determining ifthe procedures described in this AC are appropriate for use in its type ofoperation. 5. Who should use this AC?

a. This documentprovides guidance to bothpassenger and cargo operators that are either required to have an approved weight andbalance control program underparts 121 and 125, or choose to use actual or average aircraft, passenger, or baggage weights when operating under part 91, subpart K ofpart 91, orpart 135. The guidance in this AC is useful for anyone involved in developing or implementing a weight and balance control program. b. As shown in Table 1, the FAA has divided aircraft into three categories for this AC to provide guidance appropriate to the size ofthe aircraft. 

## TABLEt. AIRCRAFTCABINSIZE ··-For-this-AG,-an-aircr-aft-origina-lly-type-certificat.ed-with---Is-considered--------

71 ormore passenger seats A large-cabin aircraft. 30to 70 passenger seats A medium-cabin aircraft. 5 to 29 passenger seats A small-cabin aircraft.



## NOTE: Aircraftwith fewer than five passenger seats must use actual passenger and baggage weights. 6. Who can use standard average or segmented weights?

a. Standard Average Weights. Use ofstandard average weights is limitedto operators of multiengineturbine-powered aircraft originally type-certificatedfor five ormore passenger seats

Page ii

# I

I

I 6/10/05 AC 120-27E


### CHAPTER!. AIRCRAFT WEIGHTS AND LOADING SCHEDULES Section 

### 1. Establishing AircraftWeight 

### 100. How does an operator establish the initial weight ofan aircraft? Priorto being placed into service, each aircraft should be weighed and the empty weight and CG location established. New aircraft are normally weighed at the factory and are eligible to be placed into operation without reweighing ifthe weight and balance records were adjusted for alterations and modifications to the aircraft unless some other modification to the aircraft warrants thatthe aircraft be weighed (e.g., paragraph 1 03c). Aircraft transferred from one operator thathas an approved weight and balance program, to another operator with an approved program, does notneed to be weighedpriorto use by the receiving operator unless more than 36 calendar-months have elapsed since last individual orfleet weighing, orunless some other modification to the aircraft warrants that the aircraft be weighed (e.g., paragraph 1 03c). Aircraft transferred, purchased, or leased from an operatorwithout an approved weight and balance program, andthathave been unmodified or only minimally modified, can be placed into service without being reweighed ifthe last weighing was accomplished by an acceptable method (for example, manufacturer's instructions or AC 43.13-1, Acceptable Methods, Techniques, and Practices-AircraftInspection and Repair, current edition) within the last 12 calendar-months and a weight and balance change record was maintained by the operator. See paragraph 103c for a discussion ofwhen itmay bepotentially unsafe to fail to reweigh an aircraft after it has been modified. 

### 101. How does an operator document changes to an aircraft's weight and balance? The weight andbalance system should include methods, such as a log, ledger, or other equivalent electronic means, by which the operator will maintain a complete, current, and continuous record ofthe weight and CG ofeach aircraft. Alterations and changes affecting either the weight and/or balance ofthe aircraft should be recorded in this log. Changes in the amount ofweight or in the location ofweight in or on the aircraft should be recorded whenever the weight change is at or exceeds the weights listed inTable 1-1. 

### TABLE 1-1. INCREMENTAL WEIGHT CHANGES THAT SHOULD BE RECORDED IN A WEIGHT AND BALANCE CHANGE RECORD

- --- - ·-- -- ·-- ----------- - ·------ - --·-·-. --"---·-·-·

---- -------**~·.** -· - 

### In the weight change record of An operator should record anyweight changes a- ofLarge-cabin aircraft +/- 10 lb or greater. Medium-cabin aircraft +/- 5 lb or greater. Small-cabin aircraft +I- 

### 1 lb or greater.


### 102. How does the operator maintain the OEW? The loading schedule may utilize the individual weight ofthe aircraft in computing operational weight andbalance, or the operator may choose to establish fleet empty weights for a fleet or group ofaircraft.

Par 100 Page 16/10/05 AC 120-27E

Section 2. Aircraft Loading Schedules 105. What is a loading schedule?

a. The loading schedule is used to document compliance with the certificated weight and balance limitations contained inthe manufacturer'sAFM and weight andbalance manual. b. The loading schedule is developed bythe operatorbased on its specific loading calculation procedures andprovides the operational limits for use withthe operator's weight and balance program approved underthis AC. These approved operational limits are typically more restrictive but may not exceedthe manufacturer's certificated limits. This is because the loading schedule is generally designed to check only specific conditions (e.g., takeoffand zero fuel) known priorto takeoff, and must account for variations in weight and balance in flight. 

### Itmust also account for factors selected to be excluded, for ease ofuse, from the calculationprocess. Loading the aircraft so thatthe calculated weight and balance is withinthe approved limits will maintain the actual weight and balance withinthe certificated limits throughoutthe flight.

c. Developmentofa loading schedule represents a trade-offbetween ease ofuse and loading flexibility. A schedule canprovide more loading flexibility by requiring more detailed inputs, or it can be made easier to use by further limiting the operational limits to account for the uncertainty caused by the less detailed inputs. d. Several types ofloading schedules are commonlyused, including computerprograms as well as "paper" schedules, which can be either graphical, such as an alignment ("chase around chart") system, slide rule, or numerical, such as an adjusted weight or index system.



### e. Itis often more convenientto compute thebalance effects ofcombined loads and to display the results by using "balance units" or "indexunits." This is done by adding the respective moments (weighttimes arm) ofeach item. Graphing the moments results in a "fan grid" where lines ofconstantbalance arms (BA) orpercent MAC are closer together at lower weights and further apart athigherweights. Direct graphical or numerical addition ofthe balance effects are possible using these moment values. f. To make the magnitude ofthe numbers more manageable, moments canbe converted to an indexunit. For example:

• A • 

### weightx 

### (BA- datum) K muexunzt= 

### + M
NOTE: Where

### datum is the reference BA that will plot 

### as a vertical line on the fan grid,

### M and

### K are constants that are selected by the operator.

### M is used to scale the indexvalues, and

### K is used to set the index value ofthe reference BA. 106. How should an operator determine the weight ofeach fluid used aboard the aircraft? An operator should use one ofthe following:

Par 105 Page 56/10/05 AC 120-27E Appendix 1 APPENDIX 

### 1. DEFINITIONS 

### 1. Basic empty weight. The aircraft emptyweight, adjusted for variations in standard items. 2. Cargo. As used inthis advisory circular (AC), cargo refers to everything carried inthe cargo compartments ofthe aircraft. This includes bags, mail, freight, express, and company material. It also includes live animals, dangerous goods, and hazardous materials as subcategories ofthe above. 3. Carry-on bag. A bag that the operator allows the passenger to carry onboard. It shouldbe of a size and shape that will allow it to be stowed under thepassenger seat or in a storage compartment. The operator establishes the exact dimensional limits based onthe particular aircraft stowage limits. 4.·. Certificated weight and CG limits. Weight and center ofgravity (CG) limits are established atthe time ofaircraft certification. They are specified in the applicable aircraft flight manual 

### (AFM). 5. Checked bags. Checked bags are those bagsplaced in the cargo compartment ofthe aircraft. This includes bags that are too large to be placed in the cabin ofthe aircraft orthose bags that are required to be carried inthe cargo compartmentby regulation, security program, or company policy. Forbags checked plane-side, see the definition for plane-side loaded bags. 6. Curtailment. Creating an operational loading envelope that is more restrictive thanthe manufacturers' CGenvelope, to assure the aircraft will be operated within limits during all phases offlight. Curtailmenttypically accounts for, but is not limited to, in-flight movement, gear and flap movement, cargo variation, fuel density, fuel bum-off, and seating variation. 

# I 7. Fleet operational emptyweight (FOEW). Average operational empty weight (OEW) used for a fleet or group ofaircraft ofthe same model and configuration. 8. Freight. Cargo carried for hire in the cargo compartmentthat is not mail orpassenger bags. 9. Heavy bags. Heavy bags are considered any bag thatweighs more than 50 pounds but less than 100 pounds. Bags that are 100 pounds or more are considered freight. 

# I 10. Large cabin aircraft. Aircraft originally type-certificated with a maximum seating capacity of71 or more passenger seats. 11. Loading envelope. Weight and CG envelope used in a loading schedule. Loading the aircraftwithinthe loading envelope will maintain the aircraft weight and CGwithin the manufacturer's type-certificated limits throughoutthe flight. 12. Loading schedule. Method for calculating and documenting aircraft weight and balance priorto taxiing, to ensure the aircraft will remain within all required weight and balance limitations throughout the flight.

Page 1

### 10/01/07 2150.38 Chapter 7. Sanction Guidance Policies

1. Purpose. This chapterprovides the FAA's policies for determining an appropriate sanction once FAA enforcement personnel decide that legal enforcement action is appropriate. This chapter contains the generalpolicy the FAA intends to apply in selecting the types ofsanctions, ranges of sanctions within those types, and specific sanction amounts-to impose in legal enforcement actions for typical violations ofthe FAA's statute and regulations. This guidance covers the parameters both for selecting sanctions and for modifying sanctions during the informal procedures. The guidance in this chapter is applied in adjudications under 49 U.S.C. §§ 44106,44709, 44710, 44726, 44924, 46111, 46301, and 70115. Hazardous materials sanction guidance and policies are addressed in Appendix C. 2. General Guidelines.

a: Certificate Suspension Action and Civil Penalty Action: Sanctions for Punitive and DeterrentPurposes. (1) General. Ifa certificate holder improperly exercises the privileges ofa certificate, a natural consequence ofthat act is to lose the privileges for a period oftime commensurate with the violation. Balanced againstthis principle, however,'the FAA considers the adverse impact that a certificate suspension could have onthe public. Thus, the agency generally suspends the certificates ofindividual certificate holders for violations. However, the FAA usually takes civil penalty action against air carriers and airports because such actions do not disrupt service, which may adversely affect the public. Nevertheless, whenthe FAA determines that safety · considerations warrant it, the agency will suspendthe certificate ofany type ofcertificate holder. In no case will the FAAtake civil penalty action alone when remedial legal action is necessary or appropriate. (2) Use ofbothpunitive certificate action and civil penalty action for the same violations. The FAA generally does not take civilpenalty action and punitive certificate action (that is, certificate suspension for a fixed period oftime) against a certificate holder for the same conduct. Ifunusual circumstances warrant deviation from this practice, legal counsel consult with the Assistant ChiefCounsel for Enforcement (AGC-300) before initiating the actions. (3) Change intype ofproposed sanction. The initial enforcement action reflects the agency's best assessment ofthe appropriate sanction for the violations alleged. After initiating the action, legal counsel ordinarily does not change the type ofsanction unless additional facts or circumstances are presentedto the FAAthatwarrant a change. Ifthe action was coordinated under chapter 6, paragraph 3, with AGC-300 before initiation, then legal counsel coordinates any change in the type ofsanction with AGC-300 before making the change. b. Legal Sanctions for Remedial Purposes. (1) Indefmite certificate suspension pending compliance or demonstration of qualification. Suspension action is appropriate where there is a need temporarily to


### 7-1

### 10/01/07 2150.38 suspend the privileges ofthe certificate orrating pending demonstration ofqualification or compliance with statutory orregulatory requirements. FAA generally uses remedial suspension when an individual does notvoluntarily surrenderhis orher certificate pending reexamination. 

### See chapter 5. (2) Certificate revocation

- general. The FAA revokes a certificate when a certificate holder lacks the qualifications to hold the certificate. The certificate holder's continued exercise ofthe privileges ofthe certificate in such circumstances would be contrary to safety in air commerce or air transportation andthe public interest. Revocation is appropriate whenever a certificate holder's conduct demonstrates a lack ofthe technical proficiency or a lack ofthe degree ofcare,judgment, orresponsibility, required ofthe holder ofsuch a certificate. Orders of revocation are issued on an emergency basis whenthe certificate holder lacks qualification and is reasonably able as a**pra~tical** matter to exercise theprivileges ofthe certificate. Legal counsel does not allege a lack ofqualifications to avoid dismissal ofcharges under 49 C.P.R. 

### § 821.33, the NTSB's stale complaint rule. (3) Certificate revocation- individuals. The FAA generally revokes an individual's certificate orrating whenever he or she demonstrates a lack ofwillingness or ability to comply consistently with statutory orregulatory requirements. A lack ofwillingness or ability to comply may be demonstrated by such things as repeated or deliberate violations orby violations that involye grossly careless orreckless conduct. Even a single violation may be sufficientto warrant a conclusion an individual lacks qualifications. The FAA ordinarily revokes all certificates ofa person who commits a violation involving intentional falsification. 

### ( 4) Certificate revocation

- entities. Revocation is normally appropriate when a certificate-holding entity deliberately or flagrantly violates the statute orregulations or falsifies records. Revocation also is generally appropriate when the certificate holder has committed the same or similar violations in the recentpast demonstrating a lack ofqualification, orwhen the certificate holder no longerhas, and does not obtain in a reasonable time, thepersonnel or equipmentto conduct its operationin 

### full compliance with statutory andregulatoryrequirements. (5) Mandatory certificate revocation. Under 49 U.S.C. 

### § 44710, the FAA is required to revoke the certificates ofany airman who has been convicted ofviolating certain federal or state statutes relating to a controlled substance when an airplane was used inthe commission ofthe

·---· -- ---o-ff-ens-e-and

### the-airman--served--as- an-ai-FFFJ:an,-er-w-as-abea-ffi-the--aife-raft-,-in-eeooeet-ie-n-with------------------·

------ commission ofthe offense or the facilitation ofthe commission ofthe offense. Even when there has beenno conviction, revocation is required when an airman has knowingly carried out an activitypunishable under these criminal statutes. The Administrator may waive the revocation if a law enforcement officer requests the waiver andthe Administrator decides the waiverwill facilitate law enforcementpurposes. 

### See 49 U.S.C. 

### § 44710(f). Under 49 U.S.C. 

### § 44106, the FAA also must revoke the registration certificate ofanyairplane used in the commission ofsuch an offense when the use was permitted by the owner ofthe aircraftwithknowledge that it would be used for such purpose. Under 49 U.S.C. 

### § 44726, the FAAmust revoke the certificates ofany certificate holder or an individual who has a controlling or ownership interest inthe holder who was convicted ofa violation offederal law relating to the installation, production, repair, or sale ofa counterfeit or fraudulently-represented aviation part or material orknowingly, and with the


### 7-2

### 10/01/07 2150.38

intentto defraud, carried out or facilitated an activity punishable under such a law. The Administrator maywaive that sanction to facilitate law enforcementpurposes or amend, rather thanrevoke, a certificate under certain circumstances. See 49 U.S.C. §§ 44726(f) and (g). (6) Mandatory certificate action for security concerns. Under49 U.S.C. § 46111, the Administrator is required to issue an order amending, modifying, suspending, or revoking any PAA-issued certificate ifthe Administrator is notified by the Under Secretary ofBorder and Transportation Security (BTS) ofthe Department ofHomeland Security (DHS) that the certificate holderposes, or is suspected ofposing, a risk ofairpiracy orterrorism or a threatto airline orpassenger safety. Under49 U.S.C. 

### § 44924, the Administrator is required, atthe request ofthe Under Secretary ofBTS, to suspend or revoke foreign repair station certificates in connection with security audits.**~.** Applicability and Exclusions. The sanction guidance table (table) in Appendix B provides types ofsanctions and general ranges ofsanction amounts for violations of49 U.S.C. subtitle VII and 14 C.P.R. parts 1-199 and 49 U.S.C. subtitle 

### IX, chapter 701 and 14 C.P.R. chapter 

### Ill. Once the agency has determined that legal enforcement action is warranted for a violation, PAA enforcementpersonnel use the table andparagraph 4 ofthis chapter, as well as any other sanction guidance in this order, to determine a proposed sanction. The matters described in chapter 7, subparagraphs 3a.-d. are some types ofagency action that fall outside the scope of paragraph 3 andthe table.

a. Decisions to TakeAdministrative Action (Warning Notices orLetters of Correction). 

### An administrative action does not constitute either a formal adjudication ofthe incident or a fmding ofviolation. Porthat reason, PAA investigative personnel do notpropose a sanction using the table. b. The FAA's Exercise ofProsecutorial Discretion. The decision whether to prosecute a particular case is based on a review ofthe evidence and relevantpolicy and litigation considerations. The agency exercises broad discretion in both the initial decision to bring a legal enforcement action, and in any later determination to compromise or settle a case based on various considerations. The PAA's discretion inthese areas is absolute andpresumed to be immune from review. Heckler v. Cheney, 470 U.S. 821, 831 (1985).

--·--**-------~Raz.a-Fdeus-M-ate-:Fials-¥ielatiens.** Actions itwolving**v:io.latio.IlS-Gf.~~-hazafd.ou&s**------ materials transportation law, 49 U.S.C. chapter 51, orthe Department ofTransportation's Hazardous Materials Regulations, 49 C.P.R. parts 106 through 185. Enforcement sanction guidance for these violations is found in Appendix C. d. Violations by Members ofthe U.S. Armed Forces. The FAA is required to forward reports ofthese violations to the Secretary ofthe department concerned under 49 U.S.C. 

### § 46101(b), whenever the violator is acting in the performance ofofficial duties. The FAA, however, takes remedial action in addition to referring a report whenthe violator, whether or not



### 7-3

### 10/01/07 2150.38 acting in the performance ofofficial military duties, holds an FAA certificate, and the violator's qualifications are at issue. The FAA may take punitive action against a member ofthe U.S. Armed Forces for a violation committed when the member is notperforming official duties. 

### 4. Mitigating orAggravating Factors and Elements. The factors in chapter 7, subparagraphs 4.a. through m. have been developed overyears ofpolicymaking and case adjudication. They have proven useful and appropriate for determining the seriousness ofa violation and for selecting an appropriate sanction. Elements for evaluating and weighing each factor are also described. These factors and elements provide a framework for determining sanctions for violations specifically listed inthe table as well as those not specifically listed. All the factors and elements, however, may not apply to each violation. Onlythose factors and elements that are relevant to a violation are considered in determining a sanction for the violation. This list of factors and elements is not intended to be exhaustive; other factors may be relevant as well.



### a. Nature ofthe Violation. Three elements defme the nature ofa violation: first, whether the violationwas operational ornon-operational; second, whether the violation involved careless orreckless conduct; andthird,whetherthe violation involved any special aggravating or mitigating factors. (1) Individuals. When an individual who holds a certificate improperly exercises the privileges ofthat certificate, the natural consequence ofthat act should be loss ofprivileges for a period oftime commensurate with the violation. The FAA, therefore, primarily uses certificate actions to enforce operational regulations against individuals who hold certificates. The potential adverse impact that certificate action may have on an individual's livelihood does not alterthis principle. Non-operational violations may warrant a differenttype ofsanction. (2) Entities. The FAA ordinarily takes civil penalty action against a certificate-holding entity (for example, an air carrier) when it determines there would be a substantial adverse impact onthe public interest from disrupted service by that certificate holder and the impact is not outweighed by safety considerations. Even when a substantial adverse impact would occur, when there is a need to prevent continuing violations or other egregious conductby any certificate holder, when any certificate holder lacks qualification, or there is a reasonable basis to question the qualifications ofany certificate holder, the FAAtakes remedial action, for example, revocation or indefmite suspension, as necessary. (3) Careless orreckless conduct. Violations that involve careless orreckless conduct in violation of 14 C.P.R. § 91.13 may warrant more severe sanctions. Carelessness connotes conduct thatfalls belowthe standard ofcare or prudence expected ofa reasonable person, or holder ofthe relevant certificate, acting under the same or similar circumstances. Recklessness connotes conductthat demonstrates a gross, or even callous or flagrant, disregard for safety. Aircraft operations that do not otherwise result in a violation ofa specific regulation should be evaluated in light ofthese standards to determine whether they constitute careless orreckless operations in violation of 14 C.F.R. 

### § 91.13. When a person operates an aircraft in violation ofa specific regulation otherthan 14 C.F.R. 

### § 91.13, however, thatviolation constitutes a careless or reckless operation in and ofitself. 

### In these cases, the misconduct may also result in a violation of 14 C.F.R. 

### § 91.13 ifit actually orpotentially endangers the lives orproperty ofothers.


### 7-410/01/07 2150.3B

Whencalculatingthe amount ofsanction baselonthis factor, a distinction generally is drawn between instances where 14 C.F.R. 

### § 91.13 is an independent violation and those where it is residual to anotherviolation. When a 14 C.F.R. § 91.13 violation is residual only, a higher sanction generally is notwarranted unlessthe conduct is also reckless. b. Whether the Violation was Inadvertent and NotDeliberate. Ifa violation is deliberate or not inadvertent, a sanction atthe upper end ofthe range or exceeding the range for that type ofviolation generally is appropriate. A deliberate violation generally warrants a sanction that is more severe than one that isjustnot inadvertent. 

### (1) Not deliberate. This element means a lack ofthe degree ofdeliberation found in intentional misconduct. Deliberate or intentional misconduct is an aggravating circumstance and includes deliberate conduct that leads to a violation as well as circumstances indicating intentto commit a violation. (2) Inadvertence. An act is inadvertentwhen it 

## is the result ofboth inattention and lack ofpurposeful choice. For example, an inadvertent act occurs when a pilot flies at an incorrect altitude because he or she misread the aircraft's instruments; however, itis notan inadvertent act when a pilot flies at an incorrect altitude as a result ofchoosing notto consultthe aircraft's instruments or choosing notto use other available means to verifY altitude. The testto be applied is whetherthe conduct, notthe factual or legal consequences, is inadvertent and unintended. Ferguson v. National Transportation Safety Board, 678 F.2d 821, 828-829 (9th Cir. 1982).

c. Certificate Holder's Level ofExperience. (1) Level ofexperience refers primarily to the type ofcertificate and ratings held (for example, student, private, commercial, airline transport pilot, or certified flight instructor), and the number ofhours flown, bythe certificate holder. Certificate holders with greater levels of experience may be held to a higher standard. Thus, for example, commercial pilots may be held to a higher standard thanprivate pilots and airline transportpilots may be held to an even higher standard tl;lan commercial pilots. (2) 

### In determining an appropriate sanction, the FAA may consider the extent to which the certificate holder's action deviated from the degree ofcare and diligence normally expected ofa person with:the certificate hotder'rl-evel ofexperience. A significant deviation ftom the degree ofcare and diligence expected ofthe holder ofthat certificate may warrant a more aggravated sanction. d. Attitude ofthe Violator. (1) A good compliance attitude is the norm and does notwarrant a reduction in sanction. A priorviolationhistory may suggestthat a person has a poor compliance disposition, which is an aggravating factor. Furthermore, a person who commits an act or omission contrary to statutory or regulatory requirements after receiving notice through a prior administrative action or counseling that such conduct is in violation ofthose requirements mightwell be regarded as having a poor compliance disposition. In evaluating compliance disposition, the FAAdoes not
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### 10/01/07 2150.38

view an alleged violator as having a poor attitude because the alleged violator fails to respond to a letter ofinvestigation, chooses to be represented by counsel, or contests the violation. (2) In assessing the attitude ofan alleged violator, the FAA may consider the declaration ofan emergency to airtraffic control. When an emergency is genuine and not ofthe person's ownmaking, the emergency is exculpatory under 14 C.P.R.§ 91.3(b). However, this situation is distinct from the situation where a declaration ofemergency is not exculpatory but is a factor that mightbe appropriate to consider in determining sanction. In emergency situations, the FAA views declaring an emergency to air traffic control as a sign ofgoodjudgment and a constructive attitude. When an emergency is ofa person's own making, thatperson's declaration ofan emergency may be considered mitigating in determining the sanction to be imposed for any violations committed, in much the same way it is considered mitigating ifa personvoluntarily reports a violation.



### e. Degree ofHazard. (1) The degree ofhazard may be increased as a result ofthe interplay ofthe operational environment(for example, weather conditions, congested vs. sparsely populated areas) and the nature ofthe threat to safety (to the life orproperty ofanother, including those in the aircraft being operated, to other aircraft, or to persons or property onthe surface) that the misconduct presents. The safety threat is based onthe reasonably foreseeable consequences ofthe misconduct. For example, operating 500 feet belowthe minimum altitude poses a greater hazard than operating 100 feet below. Similarly, ifan aircraft operator fails to comply with an airworthiness directive by operating 10 hours past a required inspection, the degree ofhazard is probably not as great as when the aircraft is operated 100 hours beyond the required. And it is notmitigating when a violation does not result in actual harm; that is simply fortuitous. (2) The sanction ranges reflect the degree ofdanger normally inherent in an average violation ofa regulation, without aggravating circumstances. As discussed in chapter 7, subparagraph S.b., an increase in the degree ofhazard may form the basis for exceeding the sanction ranges. For example, the range for an unauthorized low flight does not assume extreme departures from required altitudes, for example, flying an airplane over a crowded assembly of persons at 50 feet f. 

### Action Taken by Employer or OtherAuthority. This factor ordinarily involves the following elements: whether the alleged violator's employer has taken disciplinary action and whether criminal prosecution is involved. 

### (1) Employment discipline. Where the violation would normally call for a certain type ofenforcement action, the FAA takes that action regardless ofany actiontaken by the violator's employer. Generally, the FAA does not credit an employer's disciplinary action toward a period ofsuspension the FAA imposes against the violator's certificate because ofthe different purposes ofgovernment-ordered, as contrasted with employer-ordered, actions. (2) Criminal prosecution. When arising out ofthe same conduct, local, state, or federal prosecution does notpreclude the FAA from taking appropriate remedial enforcement action; nor


### 7-610/01/07 2150.3B

does itpreclude the FAA from taking appropriate punitive enforcement action. For cases where federal, state, or local authorities prosecute criminally, the FAA generally does take remedial enforcement action ifthat is warranted despite the criminal prosecution. However, the FAA does not generally take punitive legal enforcement action for the same conduct, unless itbelieves the criminal sanctions are not sufficient to provide an adequate deterrent for future violations by the violator and others similarly situated, orwhenthe FAAwants to establish a violation history record. Ifthe FAA decides to proceed with a punitive civil enforcement action in addition to the criminal prosecution, it generally considers the criminal penalties incurred inthose proceedings in determining the appropriate amount ofsanctionto be sought in the FAA'spunitive enforcement action.
g. Use ofa Certificate. This factor relates to the nature orkind ofactivity oroperation involved at the time the violation was committed. Whetherthe certificate holder was engaged in student, private, commercial, or airline activity bears onthe severity ofthe sanction. Air carriers are held to the highest standard ofcare. Likewise, personnel engaged in air transportation are heldto the highest safety standard. h. Violation History. (1) A violation-free history is the expected norm, notthe exception and, therefore, is not a mitigating factor. Sanction ranges in the table generally representthe normalrange ofsanction for a single, first-time, inadvertentviolation. Given the expected norm, a prior violation record canbe evidence ofa poor compliance disposition or ofa pattern ofdisregard for the FAA's regulations, which are aggravating factors. As a result, a violation history canjustify imposing a sanction atthe higher end ofthe normal range or a sanction beyond the normal range. It might alsojustify revocation rather than suspension ifthe pattern ofviolation reflects a lack of qualification. In addition, a violation history mightjustify a certificate suspension ifpreviously issued civil penalties have not produced the desired deterrent effect. In deciding whether a violation historyjustifies aggravating the sanction or changing the usual type ofsanction, the FAA considers the length oftime thathas elapsedbetweenviolations, whether the violations involved the same or similar regulations, and whether the violations are factually similar. (2) The following actions constitute violation history when they involve regulatory violations and become fmal: orders ofamendment, modification, suspension, or revocation ofan FAA certificate; orders assessing a civil

### penalty; findings ofviolation contah1ed in a consent order, order ofcompliance or denial; and findings ofviolation made by a federal court. In addition, a party may agree as part ofa settlement that the FAAmay consider alleged violations as findings ofviolation for future sanction determinations. 

### i. Decisional**Law~** Decisions ofthe FAA decisionmaker represent the FAA Administrator'sposition on issues arising in civil penalty assessment actions, including issues regarding sanctions. The policy in this order also represents the Administrator's position on sanctions in legal enforcement actions. To the extent that this document conflicts with FAA decisionmaker decisions published before this document's issuance, the sanction guidance policy inthis order supersedesthose decisions. However, FAA decisionmaker decisions published after

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### 10/01/07 2150.38

the issuance ofthis document that conflictwiththe policy inthis order supersede this document and are controlling. j. Ability to Absorb Sanction. Sanctions should be deterrent. While punitive sanctions should notbe unduly harsh, they should be substantial enoughto preventviolators from profiting from their violations, that is, the sanction should be high enough to remove any profit incentive for violations. Penalties should never be permitted to be a cost ofdoing business. Air carriers, inparticular, are required by lawto have the financial wherewithal to operate according to established safety standards. While theFAA does not allow financial circumstances to excuse any violation, it does consider a carrier's size and fmancial strength in choosing the appropriate sanction amount. The difference inthe penalties fixed in the law for large and small business concerns recognizes this fact. A civil penalty that may be a mere 

### costof doing businessto a major air carrier might compel a small air carrierto go out ofbusiness. Therefore, the FAAuses air carrier size as one means ofensuring a relatively equivalent deterrent effect on each air carrierthatviolates the same FAAregulation. The resulting classification ofair carriers by size andranges ofcivil penalties are set forth inpart one ofthe table. For all entities and individuals, theFAA considers ability to pay a civil penalty and the effect a civil penalty will have on a person's ability to continue in business to the extent it knows such information. k. Consistency ofSanction. One ofthe agency's goals is to achieve relative consistency in imposing similar sanctions for similar violations. The FAApursues this objective to assure fairness and so the sanction's impact has an equivalent degree ofdeterrent or disciplinary value to others similarly situated. This goal may not always be achieved, however, because ofthe inherently subjective nature ofthe exercise of judgmentin setting sanctions. I. Whether the Violation was Reported Voluntarily. (1) The FAAhas programs that allow persons to report voluntarily apparent violations and receive lesser enforcement action provided certain criteria are met. These programs include the aviation safety reporting program, the voluntary disclosure reporting program, and the aviation safety actionprogram. Besides these programs, the FAA may grant special enforcement consideration under certain circumstances to a person who, incidentto his orher report of another's violations, voluntarily discloses his or her ownparticipation in the same orrelated violations. This special enforcement consideration may range from mitigating the sanction to determining that no enfmcernent action is requited. (2) Ifa person is not covered under one ofthese programs but nonetheless voluntarily reports an apparent violation to the FAA before the FAA discovers it, takes immediate action to correct the noncompliance, and works with theFAA on steps to preclude recurrence ofthe apparent violation, the FAA may consider such actions in mitigating the sanction for the violation.

m. Corrective Action. The FAA considers corrective action a mitigating factor in determining sanction provided the corrective action exceeds the minimum regulatory or statutory requirements. The amount ofcredit given in setting a sanction depends onthe extent and timing ofthe corrective action, that is, how extensive was the corrective action and how quickly was it taken. Implementing new procedures that are above those required under the FAA's regulations 

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to preventfuture violations ordinarily is considered a mitigating factor in determining an appropriate sanction. Corrective action taken after the alleged violator first becomes aware ofa deficiency but before FAA discovery ofthe violation ordinarily warrants greatermitigation than corrective action that is taken only afterthe alleged violator receives notice ofthe FAA's enforcement action. Corrective action taken by an alleged violatorthat simply brings that person into compliance with the statutory orregulatory requirements is not considered in mitigation of sanction. To mitigate a sanction based on such corrective action wouldput at an economic disadvantage competitors who have expended the resources necessary to maintain compliance. 5. Use ofthe Table ofSanctions.

a. General. Sanction determinations are not accomplished through a strict mathematical formula; rather, sanction determinations result from ajudgmentofwhere a case lies along a spectrum ofgravity. Ultimately, the circumstances ofeach case are evaluated in terms ofthe needs ofsafety and the public interest. b. Single, First-time, Inadvertent Violations. (1) Part II ofthe table specifies both the normal types ofsanction (certificate action, civil penalty action, or othertype) and the normal ranges within those types the FAA ordinarily seeks to impose in a legal enforcement action for a single, first-time violation that is generally inadvertent (the table includes ranges ofsanctions for several violations that usually are intentional, for example, interference with a crewmember, smoking on an aircraft). In addition, the table generally reflects a presumption that the alleged violator wants to comply with the law and to remedy anynoncompliance and that the alleged violator, therefore, has a constructive attitude. (2) For factors b, d, or h ofparagraph 4 (that is, inadvertent and not deliberate conduct, attitude, and violation history), the FAA does not normally deviate from the ranges listed inthe table solely based on the inadvertence ofthe violation or on the alleged violator's good reputation, pastpublic service, violation-free history, or constructive attitude. Any mitigating circumstances are to be found in the facts and circumstances ofthe violation itself. (3) Applying ranges within a sanction type. In determining where, within each range, a sanction should be imposed, the FAA generally considers factors a, c, e, 

### f, g, 

### i,

### j, k, and m of paragraph 4 (that is, nature ofthe violation, level ofexperience, degree ofhazard, action by employer or other authority, use ofcertificate, decisional law, ability to absorb sanction, consistency ofthe sanction with similar cases, corrective action), to the extentthey are applicable orrelevant. When determining a specific sanction amount within a range, FAA enforcement personnel begin with an amount inthe middle ofthe range and increase that amount toward the higher end ofthe range for aggravating factors or decrease that amount toward the lower end of the range for mitigating factors. (4) Deviating from ranges within a sanction type. The FAA might impose sanctions belowthe normal ranges based onjustifiable mitigation under factorsj, I, and m ofparagraph 4 (that is, the ability to absorb the sanction, voluntary reporting, corrective action). The FAA may 

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### 10/01/07 2150.38 impose sanctions above the normal ranges when the following circumstances, relating to factors b, d, e, and h ofparagraph4 are present: the violation is other than inadvertent\ the violator has a violation history, the violation involves a significant degree ofhazard, or the violatorhas a poor compliance disposition. The ranges also may be exceededwhen the case involves multiple violations. 

### (See chapter 7, paragraphs 6 and 7).



### · c. Types ofSanction. (1) General. The FAA ordinarily does not initiate punitive civil penalty and punitive certificate actions (that is, fixed-period certificate suspensions) against a certificate holder for the same offense. While electing to impose one sanction is not a legal bar to a concurrent proceedingto impose another, pursuing both actions solely for punitive purposes usually is not necessary. The FAA takes remedial andpunitive actions inthe same case, however, when warranted. (2) Selectingtypes ofsanctions. Except in exceptional circumstances, the FAA uses the type ofsanction recommended in the table. The FAA must impose any sanction mandated by statute (for example, revocationunder 49 U.S.C. 

### §§ 44106(b), 44710(b), and 44726(b) unless waived by the Administrator). 

### 6. General Guidance on Multiple Acts or Multiple Violations.

a. Description ofMultiple Violations. Enforcement actions often involve multiple violations: multiple violations ofa single regulation; a single violation ofmultiple regulations; or multiple violations ofmultiple regulations. 

### In addition, under 49 U.S.C. 

### §4630l(a)(2), ifa violation is a continuing one, each day the violation continues, or each flight for which the violation was committed, constitutes a separate offense. 

### b. General Sanction Guidance. Multiple violations ordinarily result in high sanction amounts. Such sanction amounts ordinarily are not determined by simply adding up the individual penalties for multiple violations set forth in the table, however. Simply adding up the individual penalties for eachviolation could result in compounding a sanction in a disproportionately harsh manner for the conduct involved. Conversely, multiple violations may be so serious in their consequences for safety and the public interest as to require a penalty greater than the sum ofthe recommended amoum ofpenaltyprovided for 

### in the table for eaeh violation.



### c. Single Act ofNoncompliance Resulting in Multiple Violations. When a single instanceofnoncompliance results in multiple violations ofgeneral and specific regulations involving the same or similar conduct, the FAA ordinarily does not compound the sanction to reflectthe amount ofsanction recommended inthe table for each regulatory violation. In calculating the amount ofsanction for multiple violations, FAA enforcementpersonnel consider

4 When the violation is one that is generally inherently deliberate (e.g., interference with crewmember or smoking violations), factor b. is not considered in determining whether the sanction should be above the range in the table. The ranges in the table for such violationsalready have taken into consideration the inherently deliberate nature of the violation. 

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the totality ofcircumstances relating to the multiple violations, including the alleged violator's degree ofculpability, and whether the alleged violator had taken steps, although unsuccessful, to preventthe violations. d. Type ofLegal Enforcement Action. Where this guidance designates the type oflegal enforcement action for a single violation, the FAA ordinarily selects the same type ofsanction for multiple violations ofa similar nature. The seriousness ofmultiple violations, however, may require changing what is normally a civil penalty action to a certificate action or, sometimes, a punitive certificate suspension to a remedial revocation action. 

### 7. Special Considerations for Numerous Multiple Violations Resulting From an Initial Act or Omission. To determine penalties for numerous multiple violations that result from an initial act or omission, the FAA applies the special considerations and guidance in chapter 7, subparagraphs 7.a. through e. These cases involve such a high number ofmultiple violations that ifF AA enforcementpersonnel were simply to add the recommended amounts ofpenalty for each flight or day''that constitutes a separate violation, the resulting sanction amount could be disproportionately harsh for the misconduct involved, in an average case.

a. Determining Proposed Penalty. To determine an appropriate civil penalty in a case involving numerous multiple violations resulting from an initial act or omission (for example, an aircraft operated on a dozen ormore flights afterbeing improperly returned to service), FAA enforcementpersonnel: (1) Identify each initial act or omission that caused orresulted inthe multiple violations (for example, improper maintenance plus improper return to service; failure to maintain a quality control system). (2) Consultthe table in Appendix B andthe general guidance in chapter 7, paragraph 4, on aggravating and mitigating factors to determine the amount ofpenalty appropriate for each initial act or omission that caused orresulted in the multiple violations (for example, in airworthiness cases, a penalty for the act ofimproper maintenance or inspection; in manufacturing cases, a penalty for the act offailing to maintain a quality control system). (3) Determine the amount ofpenalty for the numerous multiple violations by applying the guidance m chapter 7, subparagraphs 7.b. through d. Ofparticular importance hr determining an appropriate sanction for numerous multiple violations is the degree ofthe alleged violator's culpability for the multiple violations. A lower degree ofculpability is presentwhen the alleged violator neitherknew norwas likely to discover the continuingviolations. For example, once improper maintenance was done there were no signs ofit from such things as discrepancies reported by the crew, and no inspections that would have led to its discovery were scheduled. A more significant degree ofculpability is presentwhen factors such as the following are present:

• the initial act or omission was entered in records that should have led to immediate detection and correction; • the initial act or omission remained undetected and continuedthrough required inspections or checks designed to reveal such discrepancies;


### 7-1110/01/07 2150.38

• the alleged violator was not following maintenance or inspectionprocedures the FAA had approved or accepted; • the level ofthe alleged violator's organization that was aware of, or involved in the noncompliance included management (for example, management implementedpolicies that contributedto the violations), although an alleged violator's culpability does not require management involvement; • the alleged violator has a history ofsimilar violations or a history ofsystemic deficiencies. Knowing and willful violations connote the highest degree ofculpability. (4) Add the penalties arrived atfor the initial violation to the penalty for the multiple violations. b. Limitations on Total Civil Penalty Amounts for Numerous Multiple Violations. (1) In an average case involving numerous inadvertent, multiple violations resulting from a single act or omission, that is, not onethat is covered by chapter 7, subparagraphs 7.c. or 7.d., the total civil penalty for the multiple violations ordinarily falls within the ranges provided in either Figure 7-1 or 7-2. The group classifications are defmed inpartI ofAppendix B. (2) The term isolatedin Figures 7-1 and 7-2 typically describes a single instance ofan employee's failure to follow a statutory orregulatory requirement, contrary to the company's own practice orprocedure. A case may involve a number ofisolated and unrelated violations. Each group ofthe multiple violations resulting from each isolated violation ordinarily is subject to the isolated, inadvertent ranges in Figures 7-1 or 7-2. (3) Inadvertent failures are considered systemic ifthey are repetitive or otherwise demonstrate an underlying deficiency in the alleged violator's system, practices, orprocedures. Systemic failures generally warrant more substantial penalties and indicate a need for corrective action. (4) The aggravating ormitigating factors and elements in chapter 7, paragraph 4. are considered to determine an appropriate civil penalty within the applicable range inFigure 7-1 or 7-2, for the multiple violations resulting from the initial act or omission. Ofparticular importance is an evaluation ofthe seriousness ofthe potential hazard caused by the violation and the degree ofculpability ofthe alleged violator for the multiple violations.

7-1210/01/07 2150.38 Figure 7-1. Ranges ofPenalties for Air Carriers, Commercial Operators, Part 125 Operators Type of Group I Group I Group II Group II or Group III Group 

### IV Violations Large Small orPart Part 125 Business Business 125 Large Small Business Business Inadvertent, $200,000- $100,000- $150,000- $100,000- $75,000- $50,000- Isolated $400,000 $300,000 $300,000 $200,000 $150,000 $100,000 Violations Inadvertent, $300,000- $200,000- $250,000- $150,000- $100,000- $75,000- Systemic $500,000 $400,000 $400,000 $300,000 $200,000 $150,000 Violations
Figure 7-2. Ranges ofPenalties for AirAgencies, Airports, Manufacturers Type of Air Air Airport Airport Manufacturing Manufacturing Violations Agency Agency Operator Operator Large Business Small Business Large Small Large Small Business Business Business Business Inadvertent, $150,000- $100,000- $200,000- $100,000- $200,000- $100,000- Isolated $300,000 $200,000 $400,000 $300,000 $400,000 $300,000 Violations Inadvertent, $250,000- $150,000- $300,000- $200,000- $300,000- $200,000- Systemic $400,000 $300,000 $500,000 $400,000 $500,000 $400,000 Violations

c. Penalties Outside the Ranges. (1) Penalties lower than the ranges. Itmaybe appropriate to select a civil penalty amount belowthe ranges in Figures 7-1 or 7-2 ifthe degree ofculpability is minimal, the degree of potential hazard is extremely low, and there are no other aggravating circumstances. (2) Penalties higherthan the ranges. Itmay be appropriate to select a civil penalty higher thanthe ranges, up to the statutory maximums:

• Ifthe alleged violator was significantly culpable in permitting the initial act or omission; • Ifthe violations involve significant safety risks; • Ifthere was an absence ofcorrective action by the alleged violator over an extended period oftime; • Where it is necessary ·to provide an economic disincentive for regulatory noncompliance; or. • Ifthe alleged violator has a poor compliance disposition orhistory. d. IntentionalViolations. When there is substantial and reliable evidence thatthe alleged violator knew ofthe violations resulting from the initial act or omission and allowed them to 7-13 Individual

$50,000- $100,000 $75,000- $150,000

### 10/01/07 2150.38

occur, the ranges set forth in Figures 7-1 and 7-2 do not apply. Forexample, operation ofan aircraft when there is evidence the operator knewthe aircraft orflight was not in compliance with statutory or regulatory requirements, yetdeliberately operated it anyway, is most serious, and apart from civil penalties, requires consideration ofremedial certificate action. Formultiple violations in these circumstances, any civil penalties sought may be up to the statutory maximum penalty for each violation, regardless ofthe number ofviolations.



### e. Civil Complaints. The guidance in chapter 7, paragraph 7 does not limitthe amount of civil penalties that may be sought in a civil complaintfiled in U.S. district court. 

### 8. Modification.

a. Type ofSanction. Exceptwhen the FAA exercises its prosecutorial discretion to settle an enforcement action, the FAA generally does notmodify orders suspending or revoking a

. certificate toprovide for a civil penalty. The FAA also generally does not modify orders assessing a civil penalty to provide for a certificate action. The FAA modifies the type of ·sanction only in those cases involving extraordinary circumstances (beyond the normal aggravating or mitigating factors and elements listed in chapter 7, paragraph 4). New facts discovered after the original order has been issued may provide a basis for modifying the amount ofsanction, but would not ordinarily provide a basis for modifying the type ofsanction. However, ifnewly discovered facts raisenew issues, such as the alleged violator's qualifications to hold a certificate, or ifthey implicate a statutorily-mandatedpenalty, the FAA modifies the type ofsanction. 

### b. Amount ofSanction. The FAA does not apply the factors listed in chapter 7, paragraph 4. in a manner that would double their effect. Once the FAA has fairly considered the relevant mitigating and aggravating circumstances, it generally does not modify the amount ofsanction. The FAA modifies the amount ofsanction normally only when new information indicates the factors or elements were not fairly applied, orwhen other clear and compelling reasons are articulated. 

### 9. Special Emphasis Enforcement Programs. Attimes special situations arise that dictate the need for more effective enforcement action through increased sanctions or other measures in a particularregulated area or segment ofindustry. When these circumstances arise, the FAA may set up a special emphasis enforcementprogram, designedto focus on a partiCular area of noncompliance on a national or local geographical basis. 

### 10. Small Entities.

a. General. (1) Under the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), the FAA is required to have a policy orprogramto provide for the reduction, and under appropriate circumstances waiver, ofcivil penalties for statutory orregulatory violations by small entities. Underthe law, such a policy is to contain certain conditions. Those suggested by Congress are: requiring the small entity to correct the violation within a reasonable correction period; limiting the applicability to violations discovered through participation in a compliance 

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assistance or auditprogram operated or supported bythe agency; excluding small entities that have been subject

### to multiple enforcement actions by the agency; excluding violations involving willful or criminal conduct; excluding violations thatpose serious health, safety or environmental threats; and requiring a good faith effort to comply with the law. The SBREFA also provides thatunder appropriate circumstances, the FAAmay consider ability to pay in determining the penalty to assess a small entity. (2) Congress intended that agencies havethe discretion to develop the limits oftheir enforcementpolicies for small entities and the specific circumstances under which penalty reductions or waivers would be granted. Because the statute requires an agency, subjectto the requirements and limitations ofother statutes, to place conditions orexclusions on its enforcementpolicyunder SBREFA, itdoes not appear Congress intended agencies to reduce or waivepenalties solely because an alleged violator is a small entity. Rather, the statute contemplateS that certain criteria be metbefore an agencyreduces orwaives a penalty against a small entity. Althoughthe SBREF A imposes a requirement on agencies to establish penalty reduction and waiverprograms for small entities, Congress recognized that some agencies already have formal or informal policies orprograms that would meetthis requirement.


### b. FAA's Policy under the 

### SBREFA. (1) The FAA's compliance and enforcementprogram includes several policies that meet the requirements of, and are consistent with the intent of, SBREF A. Taken together, these policies constitute the FAA's policymandated by SBREFA. (2) Underthe FAA's compliance and enforcement program, for example, FAA investigative personnel have the discretion to address alleged violations by any person, including small entities, with lesser enforcement action than a civil penalty, that is, administrative action, provided the criteria in chapter 5 are met. There are two forms of administrative action: a warning notice and a letter ofcorrection. A warning notice brings to the attention ofthe regulatedperson or entity the facts and circumstances that indicate that a violation has occurred, identifies the regulatory provision at issue, and requests future compliance. A letter ofcorrection is similar but is intended for use when there is an agreement

. withthe regulatedparty that corrective action acceptable to the FAA has, or within a reasonable period will be, taken. Administrative actions are less onerous than a waiver ofpenalty in that they neither carry a sanction nor result in a finding of\liolation. (3) Underthe agency's voluntary disclosure reporting program, the FAAtakes administrative action instead ofcivil penalty action against most regulated entities, including small entities thatvoluntarily report certain apparentviolations to the FAA, complete corrective action satisfactory to the FAAto preventtheir recurrence, and meet certain other criteria. (4) The FAA's sanction policies have historically provided for reductions ofcivil penalties in appropriate cases based on the mitigating factors listed in chapter 7, subparagraph 4., which include ability to pay and whether a penalty wouldpreventthe entity from continuing in business.



### 7-15

### 10/01/07 2150.38
(5) For air carriers and commercial operators, the FAA also takes company size into consideration in determining the appropriate amount ofcivil penalty. The sanction ranges in Part 

### I. Definitions and Abbreviations ofthe table for single, inadvertent, first-time violations byU.S. air carriers and U.S. commercial operators differentiate among various sizes ofsuch entities as a means ofproviding a relatively equivalent deterrent for the same violation against each air carrier and commercial operator. While the FAAhas not specified such sanction ranges for other certificate holding entities, it is the FAA's policyto seekpenalties generally relative to the size and revenue ofthe operation for repair stations, manufacturers, airports, and other entities holding certificates. (6) Although the FAA does notreduce orwaive the penalty ofan alleged violator solely because it is a small entity, the FAA appropriately reduces a civil penalty, or elects to take administrative action rather than legal enforcement action, against a small entity ifappropriate underthe policies described in chapter 7, subparagraphs 10.b.(1)-(5).



### c. The Small Business Ombudsman. (1) The Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were established to receive comments from small businesses about federal agency enforcement actions. The Ombudsman annually evaluates the enforcement activities and rates each agency's responsiveness to small business. (2) Each FAA employee who conducts an inspection ofa small business concern that is regulated by the FAAprovides the small business concern with an information sheet. The information sheet informs that entity that it may submit complaints or comments regarding unfair FAAregulatory enforcement to the National Ombudsman. The information sheet contains the following language: Our objective is to ensure a fair regulatory enforcement environment. Ifyou feel that you have beentreated unfairly orunprofessionally, you may contact the FAA by calling the FAA's Office ofRulemaking at (202)-267-3404 or by mailing your comments or complaints to the Federal Aviation Administration, Office ofRulemaking, 800 Independence Avenue, S.W., Room 808, Washington, D.C., 20591. You also have a right to contact the Small Business Administration's National Ombudsman at 1- 888- REG-FAJR (1-888-734-3247), orwww.sba.gov/ombudsman regarding the fairness ofthe compliance and enforcement activity ofthe FAA. The FAA strictly forbids retaliatory acts by its employees. As such, you should feel confident that you will notbepenalized for expressing your concerns aboutthe FAA's compliance and enforcement activities. 

### 11. Remedial Sanction Guidance Policy.

a. General. ( 1) The FAA statute requires the Administratorto promote "safe flight ofcivil aircraft in air commerce ...." 49 U.S.C. § 4470l(e). As one means ofachievingthis goal, the statute specifically authorizes the Ac4ninistrator to issue various certificates. These certificates include


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### 10/01/07 2150.38

airman certificates, type certificates, production certificates, airworthiness certificates, air carrier operating certificates, airport operating certificates, air agency certificates, and air navigation facility certificates. 49 U.S.C. 

### § 44702(a). Formost ofthese certificates, the statute requires the Administrator to investigate and make appropriate findings regarding qualifications to hold the certificate applied for before the certificate is issued. For example, the Administrator is required to investigate andmake fmdings thatpersons applying for airman certificates are qualifiedto holdthose certificates; that aircraft and aircraft engine parts are properly designed and manufactured, performproperly, and meetthe regulations and minimum standards prescribed before issuing a type certificate, and so forth. 49 U.S.C. §§ 44702-44706. Once the Administrator fmds the applicant is qualified for the certificate applied for, the Administrator is required to issue the certificate in question. (2). Because the Administrator's responsibility to promote safety in air commerce and air transportation is constant, the Administrator must also take appropriate action when the Administrator finds, orhas reason to believe, the certificate holder no longerpossesses the qualifications required to hold a certificate. Thus, the statute provides thatthe Administrator "may·reinspect at any time a civil aircraft, aircraft engine, propeller, appliance, air navigation facility, ot air agency orreexamine an airman holding a certificate issued under section 44703 of this title," and thatthe Administrator "may issue an order amending, modifying, suspending or revoking

... any part ofa certificate issued under [chapter 447 ofthe statute] if

... the Administrator decides after conducting a reinspection, reexamination, or other investigation that safety in air commerce or 

### air transportation requires that action." 49 U.S.C. 

### §§ 44709(a) and (b) 

### (1) (A).(3) Revocation is the appropriate remedy for conductthat' demonstrates that a certificate holder lacks either the technical proficiency orthe degree ofcare,judgment, and responsibility, required for the certificate and ratings held. The proper standard for revocation is not whether specific violations demonstrate a failure to exercise the necessary qualifications ofa certificate holder, butrather whether the violations demonstrate thatthe holder has neverpossessed orno longer possesses such qualifications. Similarly, suspension until demonstration ofqualification is appropriate whenthe agency has reason to believe the certificate holder may lackthe required competence to hold a certificate and generally when the certificate holder fails orrefuses to be reexamined. In either case, using the factors normally applied to select a sanction inpunitive suspension cases is neither required nor appropriate. 

### b. Misconduct Generally Warranting Revocation. (1) The FAA has concluded thatbytheir nature, some acts ofmisconduct are so egregious as to demonstrate the certificate holder neverpossessed or no longer possesses the qualifications required to hold any airman certificate and other certificates. Therefore, such acts ofmisconduct warrant revocation ofall airman certificates and other certificates held by the certificate holder. Such acts include: making a fraudulent or intentionally false statement; operating an aircraft while under the influence ofalcohol or drugs, or with an alcohol concentration of.04 percent or above, orwithin 8 hours ofconsuming alcohol, in violation of 14 C.P.R. 

### § 91.17(a); operating a civil aircraft within the United States withknowledge that narcotic drugs, marijuana, and depressant or stimulant drugs or substances as defined in federal


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### 10/01/07 2150.38

or state statutes are carried in the aircraft, in violation of 14 C.F.R. 

### § 91.19(a); refusing to submit to a drug or alcohol test; and conviction for the violation ofany federal or state statute relating to the growing, processing, manufacture, sale, disposition, possession, transportation, or importation ofnarcotic drugs, marijuana, depressant or stimulant drugs or substances involving the use ofan aircraft, the exercise oftheprivileges ofthe alleged violator's airman certificate to further the prohibited conduct, or more than one drug conviction ofany kind within the scope of 14 C.F.R. 

### §§ 61.15(a), 63.12(a), or 65.12(a). 5 (2) Except for cases under 49 U.S.C. 

### §§ 44106,44710,44726, and 46111, there may be unique circumstances for which a sanction otherthan revocation is warranted. Because ofthe serious implications for aviation safety raised bythese cases, however, FAA legal counsel coordinates any decision to seek a sanction otherthan revocation withthe Assistant Chief Counsel for Enforcement. In addition, legal counsel documents the basis for that decision in the case file.



### c. Intentionally False orFraudulent Statements. (1) 

### In general, the FAA considers the making ofintentionally false or fraudulent statements so serious an offense that itresults in revocation ofall certificates held by the certificate holder. 

### See, for example, 

### Administrator v. Twomey, 5 NTSB 1258 (1986), 

### aff'd 821 F.2d 63 (1st Cir. 1987) (violation of 14 C.F.R. 

### § 67.20(a)). Falsificationhas a serious effect on the integrity ofthe records on whichthe FAA's safety oversight depends. Ifthe reliability of these records is undermined, the FAA's ability to promote aviation safety is compromised. (2) The FAA has handled differently one area ofintentional falsification

- omitting information relatedto alcohol- or drug-related convictions, and other similar convictions, from applications for airman medical certification. InFAA Order 2150.3A, Compliance and Enforcement (C & E) Bulletin No. 90-2, issued on February 6, 1990, the agency's policy called for the following sanctions: revoking the alleged violator's current medical certificate, ifany, and suspending any airman or ground instructor certificates for 60 days when the falsification involved omitting from the application for medical certification information on a single driving while intoxicated or driving under the influence (DUI) conviction; revoking any current medical certificate and suspending any airman or ground instructor certificates for 180 days when the· falsification involved omitting information on a single drug conviction for simple possession from the application for medical certification; and revoking any currentmedical andany ainna:n or ground instructor certificates when the falsification involved omitting information on more than one DUI conviction, or a conviction for more than simple possession, or more than two drug convictions ofany type. (3) The FAA has reevaluated the sanction guidance contained inC & E Bulletin

5 A drug conviction within the scope of 14 C.P.R.§§ 61.15(a), 63.12(a), or 65.12(a) that does not involve theuse of an aircraft orthe exercise ofthe privileges ofthe alleged violator's certificate also can warrant revocation in some circumstances. Revocation is appropriate where the totality ofthe circumstances underlying the conviction indicates that the alleged violator lacks thejudgment, responsibility, and compliance attitude required ofan airman. This determination must be made on a case-by-case basis. 

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### 10/01/07 2150.38

No. 90-2, and has concluded thatthe sanction guidance for fraudulent or intentional falsification should be the same regardless ofthe type ofcase involved. The FAAhas determined that falsification inthe cases described inC& E BulletinNo. 90-2 has the same potentially adverse consequences for aviation safety as does falsification ofany other record. In essence, a person who fraudulently or intentionally falsifies these records demonstrates the same lack ofcare, judgment, and responsibility as a personwho falsifies any other aviation safety-related records. To correct the anomaly created by C & E Bulletin No. 90-2, the FAA rescinds the sanction guidance regarding intentionally false or fraudulent statements in thatbulletin and withdraws the Notice ofEnforcementPolicy found at 54 Fed. Reg. 15144 (1989). 

### 12. General Guidance for Using the Sanction Guidance Table for Unruly Passenger Conduct Under 49 U.S.C. 

### § 46318.

a. General Purpose and Policy. (1) The table atAppendix B, part II, Figure B-3-p provides the suggested sanction ranges for a single act ofunruly conduct by a passenger subject to the provisions of49 U.S.C. § 46318. 

### See also CrewInterference (Unruly Passengers), chapter 4, paragraph 14. Theyprovide general guidance only about howto apply the agency's civil penalty authority under 49 U.S.C. § 46318. The sanction guidance tables do not supplantthe agency'sjudgment or its prosecutorial discretion in evaluating a particular case for enforcement action. (2) Whether a particularpassenger's unruly act warrants a sanction within or outside the sanction range, or in the exercise ofprosecutorial discretion a decision not to proceed with enforcement action depends on the totality ofthe circumstances ina particular case. Where the mitigating and aggravating factors described in chapter 7, paragraph 4 are also present in a 49 U.S.C. § 46318 case, FAA enforcementpersonnel applying the sanction ranges atAppendix B, part II, Figure B-3-p consider those factors in selecting an appropriate sanction within or outside the range. The variety ofconduct subject to 49 U.S.C. 

### § 46318 and the varied facts and circumstances within which unruly conduct may occur, may also warrant consideration ofother mitigating and aggravating factors uniqueto unruly passenger conduct. Some ofthese additional factors are set forth in chapter 7, subparagraphs 12.b. and c. b. AdditionalAggravating Factors to Consider. In addition to the factors described in chapter '/, paragraph 4, FAA enforcementpersonnel consider otherpotentially aggravating factors in chapter 7, subparagraphs 12.b.(l)-(7) inthe selection ofan appropriate sanction within or outside the**sancti~:m** range. (1) The severity ofthe unruly conduct. The severity ofthe conduct may be indicated by several factors, including:

• The physical characteristics ofthe individual committing the unruly conduct contrasted with those ofthe victim. • The nature ofthe conduct itself. • The extent ofany injury inflicted.



### 7-1910/01/07 2150.38 (2) Whetherthe unruly conduct occurredwhen the aircraft was in flight orwhile passengers were boarding or deplaning. Certain unruly conductthat occurs during flight or on a crowded boarded flight may be more aggravatingthan the same conduct that occurs while passengers are deplaning. (3) Whetherthe unruly conductwas directed at a crewmember or a passenger. Because a crewmember has safety duties to perform on a flight, unruly conduct against a crewmember may be more aggravating than the same unruly conduct directed at an individual wb,o does not have any safety duties to perform on the flight. ( 4) Whether the unruly passengerprovokedthe situation thatresulted inthe unruly conduct. Forinstance, a passenger who instigates a confrontation, or a passengerwho mixes alcohol with prescribed or over-the-counter drugs that the passenger claims precipitated the unruly conduct. (5) Whether the unruly conductnecessitated thatthe flight be diverted from its intended destination. (6) Whetherthe unruly conduct necessitatedthatthe flight crew call ahead for law enforcementto meet the flight on arrival. (7) Whether the unruly conduct was inflicted with malice or in anger.

c. Additional Mitigating Factors to Consider. The factors listed in chapter 7, subparagraphs 12.c.(l)-(3) mayjustify a sanction below the sanction range, or in the agency's prosecutorial discretion, mayjustify a decision notto prosecute a passenger's unruly conduct. (1) Whether the unruly passenger has already served a criminal sentence for the same conduct or has already made monetary restitution in the context ofa criminal prosecution for the same conduct. (2) Whetherthe passenger's unruly conduct was caused by a diagnosed medical or

.mental condition for whichthe passenger was receivingmedical treatment

..... (3) Whether the umuly conduct was a reasonable response to a provocation 

### by another. However, a passenger's use ofunreasonable force inresponse to a provocation by another individual onthe aircraft would not constitute a mitigating factor. d. When to Apply the Sanction Range for Acts Posing an "Imminent Threat" to Safety ofthe Aircraft or Others on Board the Aircraft. (1) The sanction range atAppendix B, partII, Figure B-3-p for an act that poses an imminent threat to safety ofaircraft or other individuals on the aircraft applies when there is an 

### imminentthreatto the safety ofthe aircraft orto the 

### collective safety ofothers on board the aircraft. For example, a passenger attempting to open an emergency exitdoor would be an imminentthreat to the safety ofthe aircraft. Ifthe imminent threatto safety is directed to
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### 10/01/07 2150.38 specific individuals on the aircraft, then the sanction range for physical assault or threatened physical atAppendix B, part II, Figure B-3-p applies. (2) In selecting an appropriate sanction within oroutside the sanction range for an act posing an imminent safety threat, FAA enforcementpersonnel consider whetherthe resultant imminent threat was the unintended consequence ofthe passenger's careless orreckless act or whether the passenger intendedthe consequences. The former wouldjustify a sanction toward the low end ofthe range, while the latter wouldjustify a sanction toward the maximum range.

e. Applicable Sanction Ranges for Security Officers or Others Assigned a Law Enforcement Function on a Flight (for example, Federal Air Marshals Assigned to the Flight). ·FAA enforcementpersonnel apply the sanction range applicable to physical assaults or threatenedphysical assaults on crewmembers (Appendix B, part II, Figure B-3-p).

,: f. Applying Unruly Passenger Sanction Guidance Tables to Multiple Acts. When applying the table to multiple acts by an unruly passenger, FAA enforcementpersonnel considernot onlythe individual unruly acts committed, but also the collective consequences of all the unruly behavior. FAA enforcementpersonnel do not.approach the sanction determination for multiple acts as a mechanical exercise ofmultiplyingthe number ofseparate acts ofunruly behaviorby a sanction amount in the range for a single act. Instead, they use the guidance inthe table and exercise theirjudgment as to the seriousness ofthe conduct, given the totality of circumstances, to determine an appropriate sanction amount that will deter future violations by the unruly passenger and others similarly situated.



### 7-2110/01/07 

### AppendixB Table ofSanctions All Enforcement Programs Except Hazardous Materials Part One - Abbreviations and Definitions 2150.38

1. Applicability. This table ofsanctions applies to violations that occurred on or after October 1, 2007. For violations occurring before October 1, 2007, FAA enforcement personnel apply the sanction guidance principles inFAA Order 2150.3A using upto the statutory maximum sanction amount in effect at the time ofthe violation. 2. Abbreviations. The following abbreviations are used in this Table: 

### AP IS means approved production inspection system 

### AIW means airworthiness 

### AWC means airworthiness certificate BTSmeans Under Secretary for Border and Transportation Security IA means inspection authorization LEmeans law enforcement PCmeans production certificate STCmeans supplemental type certificate TCmeans type certificate TFR means Temporary Flight Restriction TSA means Transportation Security Administration 3. Definitions:

a. A continuingviolation arises when a specific violation occurs over more than one day or overmore than one flight. It also may involve a violation that is ongoing,jorexample, an ongoing refusal to provide required records to the FAA for inspection. Punitive sanctions are

.. appropriate-for·coritiritiirig violations thafare.riot currently ongoing. Sanction guidance for

these violations is set forth in paragraphs 6 and 7 (multiple acts or multiple violations) of chapter 7. A combination ofpunitive andremedial sanctions is appropriate when continuing violations are ongoing. b. Violation committed by a small business concern. Section 503 ofVision 100---Century ofAviation Reauthorization Act (CARA) amended 49U.S.C. 

### §46301 to change the civil penalty amounts the FAAmay seekfor violations that occur on or afterDecember 12, 2003; the law sets different limits onthe civil penalties the FAAmay seek for violations by small business concerns, as opposedto violations by other entities. Vision 100 CARA gives small business concern the same meaning as inthe Small Business Act (15 U.S.C. § 632). Section 632 defines small business concern as an enterprise "which is independently owned and operated and which is not dominant 

### in its field ofoperation." The Small Business Administrationregulations implementthe Small Business Act and define business concern as


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### 10/01/07 2150.38

"abusiness entity organized for profit, with a place ofbusiness located in the U.S., and which operates primarily within the U.S. or which makes a significant contribution to the U.S. economy throughpayment oftaxes or use ofAmerican products, materials or labor." 13 C.F.R. § 121.105. The SBA regulations further define 

### small business concern in tables, describing each kind ofentity by its economic activity or industry, and listing the limit for 

### smallby annual receipts or, more commonly, number ofemployees. (The size limits generally are established under the North American Industry Classification System (NAICS).) For the complete list, see 13 C.P.R. § 121.201 orthe SBA's website at www.sba.gov. Thus, ifa person meets the defmition of

### business concern andhas annual receipts orthe number ofemployees withinthe applicable SBA limit, it is a 

### small business concern, and the FAA will determine the civil penalty using the applicable range. Limits for common aviation entities follow (in numbers ofemployees, unless otherwise noted). Manufacturing Aircraft- 1,500 employees Aircraft engine andpart- 1,000 employees Other aircraft part and equipment- 1,000 employees Air transportation Scheduledpassenger- 1,500 employees Scheduled freight- 1,500 employees Nonscheduled passenger- 1,500 employees Nonscheduled offshore marine passenger- $25.5 million annual receipts Nonscheduled freight-1,500 employees Nonscheduled offshore marine freight- $25.5 million annual receipts Other nonscheduled

- $6.5 million annual receipts Support activities

- $6.5 million annual receipts FlightTraining- $23.5 million annual receipts Airport operations Airport operator, organized for profit- $6.5 million annual receipts Other openitioris, exdudiri.gair traffic control

- $6.5 million annual receipts Note thatthe following guidance uses 

### large business concern for some civil penalty ranges. That is not a statutory or regulatory term for purposes ofF AA enforcement. 

### Itincludes each business concern that exceeds the maximum limit for small business concern, as well as any other entity that does notmeet the definition of"small business concern."

c. Civil Penalty Ranges. Forthe purpose ofthis table, when civil penalty action is recommended and described as 

### Minimum, Moderate, or

### Maximum, the penalty ranges are defined in subparagraphs (1) through (9) ofthis paragraph. Note thatthe middle ofeach recommended sanction range would be for a single violation without aggravating or mitigating factors.



### B-210/01/07 2150.38 

### (1) VIOLATION COM:MITTED BYU.S. AIR CARRIERS ORU.S. COMMERCIAL OPERATOR. CLASSIFICATION OF AIR CARRIER AND OPERATOR GROUP I- Each air carrier operating underpart 121 orpart 135, with an annual operating revenue of$100,000,000 ormore. Operating revenue is determined by reference to DOT's "Air Carrier Industry Scheduled Service Traffic Statistics Quarterly." 

### See http://ostpxweb.dot.gov/aviation/index.html, and click on "Airline Financial Review." GROUP II- Each air carrier or commercial operator operating underpart 121 with an annual operating revenue ofless than $100,000,000, or under part 135 with an annual operating revenue ofless than $100,000,000, ifthe 135 operator has 50 or more pilots and 25 ormore aircraft on its operations specifications. Operating revenue is determined by reference to DOT's "AirCarrierIndustry Scheduled Service Traffic Statistics Quarterly." GROUP III- Each air carrier or commercial operator operating underpart 135 with 6 to 49 pilots or 6 to 24 aircraft. GROUP IV- Each air carrier or commercial operator operating under part 135 with no more than 5 pilots and no more than 5 aircraft.

GROUP I 

### -large business concern Maximum Moderate Minimum $18,750-$25,000 $10,000-$18,749 $2,000-$9,999 GROUP I- small business concern (for violations covered under 49 U.S.C. 

### § 46301(a)(5)(A)): Maximllin Moderate Minimum . $8,250-$11,000 $4,400-$8,249 $1,100-$4,399 GROUP I- small business concern (for violations covered under 49 U.S.C. § 46301(a)(l)(A) or 

### (B) but notunder 49 U.S.C. 

### § 46301(a)(5)(A)): Maximum Moderate Minimum $850-$1,100 $650-$849 $500$649

GROUP II- 

### large business concern:



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### 10/01/07 2150.38



### 11. All individuals and entities: Failureto Surrender Certificate, Authorization, or Other Approval. Fig. B-11. 1. U.S. AIR CARRIERS, U.S. COMMERCIAL OPERATORS, PART 125 OPERATORS, AND PART 129 OPERATORS. Fig. B-1-a. Maintenance Manual CivilPenalty Certificate Action (1) Failure to maintain current manual Minimum Up to 7-day suspension (2) Failure to provide adequate Moderate to Maximum instructions and procedures in manual _{_3) Failure to distribute manual to appropriatepersonnel Minimum to Moderate (4) Release ofaircraft without required equipment Moderate to Maximum Up to 7-day**s~ension** Fig. B-1-b. AJW Directive Civil Penalty Certificate Action (1) Failure to comply Moderate to Maximum Fig. B-1-c. Operations Specifications CivilPenalty Certificate Action (1) Exceed inspection or overhaul time limitation Moderate Up to 7-day suspension (2) Operation contrary to ops specs- technical Minimum noncompliance (3) Operation contrary to ops specs -likely potential or actual Moderate to Maximum adverse effect on safe operation

Fig.**B-1:-d~ Facilit~es**  a.ild**F:q~ipnient** ..**Civi!~~J1alty** .. Certificate

.. .. . .. ...,--. '"'"'·'- ·- ·-**--~···** -·--· . .- ----- Action (l) Failure to provide adequatelyfor proper seniicing, Maximum Indefinite maintenance, repair, or inspection offacilities and equipment Suspension until proper servicing, maintenance, repair and inspection of facilities and equipment is provided to Revocation



### B-12 .... ... ...