William A. Curtright Respondent PO Box 1350 Jefferson, OR 97352 Telephone: (503) 209-7388 Fax: (503) 485-0812

InThe Matter Of: 

### UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C. 

# RECEIVED NOV 

## 1 52016 HEARING DOCKET

Docket No. FAA-2015-1319 WILLIAM A. CURTRIGHT, DBA Case No. 2014NM090046 Respondent Judge J.E. Sullivan
RESPONDENTS' REPLY MEMORANDUM IN SUPPORT OF MOTION AND MEMORANDUM FOR SUMMARY JUDGMENT COMES NOW Respondent, William A. Curtright, DBA respectfully files and submits this Reply to clarify the issues before this court and to focus on the issues in this matter. Complainant's Response to Respondent's Motion for Summary Judgment was filed on November 3, 2016. Contrary to Complaint's characterization, of the Motion for Summary Judgment. Complaint's response was filed pursuant to § 13.218 (f) (2) stating that it was the

same as bringing a Motion for Summary Judgment under FRCP56, when it clearly is not the

same as a Motion for Summary Judgment because §13.218(£)(2) is for a specific Motion to Dismiss. This is just another example of Complainant's Attorney being non-responsive, and trickery on Respondent. Respondent brought Motion and Memorandum for Summary Judgment against Complaint FAA Administrator Michael P. Huerta, Administrator, Federal Aviation Administration (the "Administrator" or Complainant") and moves for summaryjudgment on all
RESPONDENT'S REPLY MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Docket No. FAA-201S-1319 Case No. 2014NM0046 Page 1 William A. Curtright,DBA Respondent Telephone: (503) 209-7388 Fax (S03)48S-0812ofthe claims in the Complaint pursuant to Federal Rule of Civil Procedure 56 (Fed. R. Civ. P. 56), Respondent, respectfully moves this Court for entry of an Order granting summary judgment inhis favor. Complainant has not met his burden in overcommg Complainant's motion for summary judgment. Not only has complainant failed to establish the law applicable to his claims, he has failed to come forward with admissible evidence of material facts to support the essential elements ofhis claims against Respondent. In his response, Complainant has done nothing more than attempt to create a metaphysical doubt as to the material facts and has merely recited sound bites oflaw in his attempt to persuade this Court that he should prevail. This Court must not be

so persuaded.
In re Anderson v. Libertv Lobby, 477 U.S. 242 (1986) Complainant "must present affirmative evidence in order to defeat a properly supported motion for summaryjudgment." 1 Respondent replies that the Complaint has not met the standard ofevidentiary conflict and that mere denials

or conclusory statements are insufficient." 2" SRI Int'l v. Matsushita Elec. Corp ofAm., 775 F. 2d 1107,1116 (Fed. Cir. 1985) (en bane) citing Barmag Barmer Machinenfabrik AG v. Murata Mach., Ltd., 731 F. 2d Complaint bears the burden ofproving each element ofhis claims. Celotex Com. v. Catrett, 477 U.S. 317, 323-24 (1986i Inhis response, Complainant fails to identify specific facts, material to the elements of his claims, that are in dispute. Rather, he asserts conclusions he believes the

1 Anderson v. Liberty Lobby. 477 U.S. 242 (1986) 2 SRI Int'1 v. Matsushita E1ec. Corp ofAm., 775 F. 2d 1107,1116 (Fed. Cir. 1985) (en bane) citing BannagBanner Machinenfubrik AG v. Murata Mach., Ltd., 731 F. 2d
3 Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986) RESPONDENT'S REPLY MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Docket No. FAA·201S-1319 Case No. 2014NM0046 Page 2 William A. Curtright,DBA Respondent Telephone: (503) 209-7388 Fax (503)485-0812court should reach based upon his twist ofthe facts. Complaint's twist, however, misrepresents the facts, takes them out ofcontext or only provides half ofthe facts. Additionally, he attempts to present conclusory statements and immaterial matters that do not support the elements ofhis Complaint. Respondent replies that Respondent's Motion for Summary Judgment should be granted based

on the evidence supporting Respondents Motion for Summary Judgment. In addition, Respondent would further show the court that during discovery it has been discovered by Respondent that Complainant has not disclosed section B or C ofthe EIR which will show the court what recommendations came from the Oregon NTSB office oftheir the written statements. Which according to the FAA 2150.3B Order Evidence section a. The Complainant would need to produce Sections B and C ofthe EIR in order to enter it into Evidence. Rather than claiming that Section B & C are privilege, has not given respondent any case law in support of such a claim and tries to hide the fact from the court and respondent that it is merely the interview and recommendations from the local NTSB office. Further, Respondent would reply that according to FAA 2150.3B Types of Evidence. Section C (8) "interviews are to interview mainly the alleged violator to 

### give them an opportunity to tell their side of the story and to help establish allpertinent facts and circumstance." Respondent again would state that the FAA attorney David Shayne 

### ignored when documents

wereproduced to him for compliance of production of Respondents log books. FAA attorney, David Shayne 

### has ignored when local authorities in Oregon told him that Respondent was in compliance. Respondent replies that the Complainant has not followed their own Rules and

RESPONDENT'S REPLY MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Docket No. FAA-2015-1319 Case No. 2014NM0046 Page 3 William A. Curtright,DBA Respondent Telephone: (503) 209·7388 Fax (503)485-0812Regulations that have been established with ORDER 2150.3B. Respondent replies that pursuant to ORDER 2150.3B page 2-3g. Fairness states the following:
"To be effective, the agency's compliance and enforcementprogram must be fair and reasonable and should beperceived asfair by those subject to regulations..... It also requires goodfaith efforts to understand the apparent violator's position and take it into account, as well as to apprise the apparent violatorof the agency'sposition in a timely manner." (Herein attached as Exhibit 1) Respondent further replies that Complainant is in violation oftheir own Rules and Regulations ORDER 2150.3B because Complainant failed to giveproper notice to Respondent in 2014. The notice sent by Complainant was notsigned by any one and is therefore not proper notice of an alleged violation. Further, the alleged violation was not signed by an attorney and no bar number
was used in the Complaint filed with the United States ofAmerica Department ofTransportation Office of Hearing in Washington, D.C., which is in violation of the FAA ORDER 2150.3B section 15 Legal Enforcement Actions. (Herein attached as Exhibit 2).
A. Respondent hereby incorporates it's Motion for Summary Judgment , reqmres the Complainant to establish, by a preponderance ofthe evidences, aprimafacie case that: (I) respondent did not produce or make the Log Books available for inspection by the Administrator or any authorized representative ofthe National Transportation Safety Board (NTSB). Respondent would state that the FAA has not identified grounds that will show a genuine issue ofmaterial fact 4

4 Celotex Com. v. Catrett. 477 U.S. 317,323-24 (1986) RESPONDENT'S REPLY MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Docket No. FAA-2015-1319 Case No. 2014NM0046 Page4 William A. Curtright,DBA Respondent Telephone: (503) 209-7388 Fax(503)485-0812B. Respondent replies to the conrt that the records themselves were produced to the National Transportation Safety Board (NTSB) and that the records themselves do not need to, and arguably should not be, stored on the aircraft, but must be producedfor inspection in a reasonable amount of time when requested by the FAA, NTSB or law enforcement. (RM&MSJ page 4 item B). I. Elements that cannot be proven by the Complainant The Federal Aviation Administration Complaint cannot demonstrate a tribal issue of fact as to Sections 4630l(a) and (d) of Title 49 ofthe United States Code (U.S.C.) (Transportation) (49 U.S.C. Sections 46301 (a) and (d)), alleging that Respondent is liable for a civil penalty of $11,000.00 as being appropriate for the alleged violation ofSection 14. C.F.R. 91.417(c). 5
A. Respondent moves for summary judgment on his claim that the Federal Aviation Administration complaint alleging that respondent is in violation of Section 14 C.F.R. 91.417(c) and charging under Sections 46301 (a) and (d) ofTitle 49 ofthe United States code (U.S.C. (Transportation) (49 U.S.C. Sections 46301(a) and (d) a civil penalty in the amount of $11,000.00 violates his rights under the Eight Amendment. In addition, Respondent vindicating his Eight Amendment rights of the United States Constitution which is the part ofthe United States Bill of Rights prohibiting the federal government from imposing excessive bail, excessive fines, or cruel and unusual punishment. (RM&MSJ page 6 items 2 & 2A.) B. Respondent moves for summary judgment on his claim that the Federal Aviation Administration failed to disclose the entire letter ofinvestigation, dated September 4, 2014

5Celotex Corp. v. Catrett. 477 U.S. 317 323-24 (1986) RESPONDENT'S REPLY MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Docket No. FAA-2015-1319 Case No. 2014NM0046 Page 5 William A. Curtright,DBA Respondent Telephone: (503) 209-7388 Fax (503)485-0812to William Ames Curtright in its entirety. The FAA letter of Investigation has no signature page, or page 2. The document is page 1 and 3. The document is not an official letter, and is not authentic without a signature, or served and is not an entire document either served or produced by the FAA without the signature6 which the door was opened by Complainant to bring to the attention ofthis court that FAA ORDER 2150.3B has not been followed by Complainant. (Herein attached as Exhibit 3 is ORDER 2150.3B section 9. Letter ofInvestigation)
C. Respondent would argue and reply that because the FAA letter of investigation was unsigned and incomplete and was not produced or served in its entirety and therefor is not
an authentic document. The FAA cannot rely on it for filing their initial Complaint and the entire Complaint filed by the FAA should be dismissed and Summary Judgment relief be granted to Respondent.

D. In addition, Respondent would argue that the FAA Letter, dated September 4, 2014 is for
.... "documentation ofyour compliance with the flight review requirement of 14 C.F.R. DOT 61.56(c);" However, in the FAA's complaint that was filed with the Department of Transportation Office of Hearings in Washington, D.C. on or about May 191 h 2015 the FAA alleges that Respondent was in violation of 14 CFR Section 91.417 (c) and does not include any allegations that Respondent was in violation of Section 14 C.F.R. DOT 61.56 (c), which has nothing to do with 14 CFR 91.417(c). Section 14 C.F.R. DOT 61.56(c) states the following:
...

6 FAA's Rules of Practice, 14 C.F.R.§13.207(b) RESPONDENT'S REPLY MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Docket No. FAA-2015-1319 Case No. 2014NM0046 Page 6 William A. Curtright,DBA Respondent Telephone: (503) 209-7388 Fax (503)485-0812"Except asprovided inparagraphs (d), (e) and (g) of this section, noperson may act aspilot in commandof an aircraft unless, since the beginning of the 24'h calendar month before the month in which thatpilotacts aspilot in command, thatperson has
..... " (RM&MFSJ page 8 item C)
On or about January 14, 2015 the FAA through its attorney David J. Shayne sent a letter to William A. Curtright stating in item #2. "On or about July 1, 2014 an Aviation Safety Inspector (ASI) from the Portland Flight Standards District Office wrote you a letter demanding that you provide aircraft weight and balance, and aircraft and engine maintenance logbooks for N949JP." (RM&MFSJ page 8 item E).
E. On or about May 19, 2015 the FAA through its attorney David J. Shayne filed a complaint; however, attorney David J. Shayne never signed the complaint, and did not list his attorney bar number to the complaint. 7 Respondent would request the court to impose sanctions against attorney David J. Shayne inthe amount of$11,000.00 for failure to sign and include his state bar number on the complaint. 8 Respondent replies to the court according to Federal Rule ofCivil Procedure ll(a) (Fed.R.Civ. P. ll(a) provides instructional guidance and Rule 11 (a) states, inpart: "The court must strike an unsigned paper"
...)9(RM&MFSJ page 8 item F)
F. Respondent replies the court that the FAA has never given an explanation ofwhy they are proposing an $11.000.00 fine as the civil penalty, and what forms the basis for the maximum

7 FAA's Rules of Practice, 14 C.F.R.§13.207(b) 8 FAA's Rules of Practice, 14 C.F.R.§13.207(c) 9 FAA's Rules of Practice, 14 C.F.R.§13.207(b) RESPONDENT'S REPLY MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Docket No. FAA-2015-1319 Case No. 2014NM0046 Page 7 William A. Curtright, DBA Respondent Telephone: (503) 209-7388 Fax (503)485-0812amount allowed. Respondent would further show the court that in the Complaint that was filed the FAA alleges that Respondent is liable for a civil penalty not to exceed $11,000.00 pursuantto 49 U.S. C. Sections 46301 (a) and (d). (Hereto attached as Exhibit 9 is Title 49 U.S.C. Sections 46301 (a) and (d). Respondent replies this court that under Title 49 U.S.C. § 46301-Civil penalties (A) states the following: "(1) A person is liable to the United States Government for a civil penalty ofnot more than $25,000 (or $1,100 is the person is an individual...." The FAA did not bring the civil penalty allegation under the proper U.S.C. code oftitle 49 U.S.C.§ 46301 (d)(2), and (7)(a)) Respondent would request the court to grant summaryjudgment reliefto Respondent

on this matter for lack ofexplanation,jurisdiction, and incorrect citing oflaw for the maximum amount allowed in a civil penalty case. (Attached hereto as Exhibit 10 is page 32lines 18-25 of the transcript ofthe telephone conference ofAugust 9, 2016 before the Honorable J.E. Sullivan U.S. Administrative law Judge.) G. Respondent replies the court that the FAA has never given an explanation ofwhy they are proposing an $11,000.00 fme as the penalty, and what forms the basis for the maximum amount allowed. Respondent would request the court to grant summaryjudgment for lack ofexplanation, and basis ofthe maximum amount allowed. (Attached hereto as Exhibit I0 is page 32 Lines 18-25 ofthe transcript ofthe telephone conference ofAugust 9, 2016 before the Honorable J.E. Sullivan U.S. Administrative Law Judge.) H. Respondent replies to the court that the FAA has not met the burden ofproof as the moving party bringing this action before the court against Respondent because of lack of proving that the imposed fine of $11,000.00 truly reflects the magnitude and scope of time period where the records were lost and not available to the FAA for inspection. Respondent replies to the court that in Complainant's Initial Disclosures Pursuant to the ALI's Order of August 10, 2016 and FRCP 26(1(a) that document 2014NM090046 clearly states that on July 7, 2014 and August 28, 2014

RESPONDENT'S REPLY MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Docket No. FAA-2015-1319 William A. Curtright,DBA Respondent Telephone: (503) 209-7388 Fax (503)485-0812 Case No. 2014NM0046 Page 8Respondent sent copies ofthe documents that were requested ofhim to the FAA. (Attached hereto

as Exhibit 11 is document 20 14NM090046 with lines f, and h,j.)
I. Respondent replies to the court that the FAA hindered this case by not disclosing to Martin G. Conroy that the documents were produced on July 7, 2014 as stated in the letter from Dr. W. Ames Curtright to Martin G. Conroy, dated September 9, 2014 RE: EIR Number 2014NM090046 with attachments. (Attached hereto as Exhibit 12 is the letter from Dr. W. Ames Curtright to Martin G. Conroy, dated September 9, 2014 with attached documents: Oregon Aircraft Registration Certificate and Memorandum from Ben W. Davidson to William Ames Curtright, dated 8/26/2014; Memorandum dated July 7, 2014 from William A. Curtright to Conray, Marty with attachments.) Respondent would request that this court grant summaryjudgment for lack of evidence ofviolation ofSection 14 C.F.R. 91.417(c) against Respondent. CONCLUSION Complainant has failed to meet his burden ofcoming forward with specific admissible evidence to support each element ofhis claims for which he will bear the burden ofproofat trial. In opposing Summaryjudgment, Complainant has done nothing more than attemptto create a metaphysical doubt as to the material facts ofthis case. Further, he has not grounded his claims in the applicable law, Rules and Regulations ofthe FAA. WHEREFORE, It is appropriate for this Court to grant Respondent's motion for summary judgment. Respectfully submitted this lOth day ofNovember 2016 

### (·. (\ c:-----

## =---'""'~c='r=·~----,----,-C=-;;_--.,::..,~:-:··--:---~-**\._____._.~,** --- Dr. Wm. Ames Curtright, DBA

RESPONDENT'S REPLY MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Docket No. FAA-2015-1319 Case No. 2014NM0046 Page 9 William A. Curtright, DBA Respondent Telephone: (503) 209-7388 Fax (503)485-0812

### DocketNo. FAA-2015-1319 (Civil Penalty Action)



### SERVICE LIST- BY U.S. MAIL ORIGINAL & ONE COPY Federal Aviation Administration (Fax and Certified First Class Mail) Attn: Hearing Docket Clerk, AGC-430 800 Independence Avenue SW Washington, DC 20591 Wilbur Wright Building, Suite 2WIOOO Fax: (202) 267-1293 ONE COPY Judge J.E. Sullivan (Fax, Email, and Certified First Class Mail) U.S. Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, SE (Ell-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 David F. Shayne, FAA Attorney (Fax, Email, and Certified First Class Mail) Complainant's Counsel NorthwestMountain Region, ANM-7 Federal Aviation Administration 1601 Lind Ave. SW Renton, W A 98057 TEL: 425-227-1847

RESPONDENT'S REPLY MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Docket No. FAA-2015·1319 Case No. 2014NM0046 Page 10 William A. Curtright,DBA Respondent Telephone: (503) 209·7388 Fax (503)485-081210/01/07 2150.38
seeks civil penalties primarily under 49 U.S.C. §46301; seizes aircraftunder 49 U.S.C. §46304; and issuesjudicially enforceable orders under 49 U.S.C. §40113. FAA enforcementpersonnel also refer apparent violations to foreign governments or to the Department ofDefense (DOD) for appropriate handling, and in cases where there is possible criminal conduct, to the Office of Inspector General (OIG) for criminal investigation. Generally, under 49 U.S.C. §40113, FAA enforcementpersonnel take actions believednecessaryto carry outthe Administrator's statutory safety duties andresponsibilities. Regulations governing the transportation ofhazardous materials are enforceable by civil and criminalpenalties, orders directing compliance, and equitablejudicialrelief(49 U.S.C. §§ 5121, 5122, 5123, and 5124). Regulations governing commercial space transportation are enforceable by civil penalties and licensing actions ( 49 

## u.s.c. §§ 70107, 70115). (2) Purposes. FAA enforcementpersonnel take compliance and enforcement action to prevent future actions that wouldviolate the regulations (for example, immediate corrective action after counseling or aletter ofcorrection; cease and desistorders; injunctions). They also take enforcement actions for remedial purposes (for example, administrative remedial trainiog; immediate corrective action and comprehensive fixes under the voluntary disclosure reporting programs; certificate suspension pending demonstration ofqualifications; orrevocation for lack ofqualification or competency). They also take enforcement actions to deter future violations by the subject ofthe enforcement action and those similarly situated (for example, punitive certificate actions or civil penalties). g. Fairness. To be effective, the agency's compliance and enforcement program mustbe fair and reasonable and shouldbe perceived as fair by those subjectto regulation. 

### This does not ._ and shouldnotimply anunwillingness to apply the full force ofstatutory sanctions where warranted. Itdoes encompass the right ofan apparent violator to be given objective, evenhanded consideration ofall circumstances surrounding the allegations before final action is taken. Italso requires good faith efforts to understandthe apparent violator'sposition and take it into

**accoun~** as well as to apprise the apparent violator ofthe agency's positi()n in a timely manner. 

### h. Timeliness. (1) The agency's discovery of, and response to, violations shouldbe timely. Delays in investigation orprocessing ofenforcementinvestigative reports can adversely affect the effectiveness ofthe agency's compliance and enforcementprogramin several ways. Delays may let an unsafe condition continue ifprompt corrective action is not taken. Delays also may de-emphasize the seriousness ofa givenviolation and lessen the deterrent value ofany enforcement actiontaken. The deterrent quality ofenforcement action, and effective hriklrig of the enforcement sanctionto objective change in compliance behavior, canbe bestrealized ifthe FAA investigates diligently and promptly and administers the appropriate sanction within a reasonable time period. Ifthe allegations ofviolation are not sustained, any unwarranted delay inprocessing the case may impose anunjustifiedhardship. The time needed for investigation andprocessing-wiUvarydepending on

### the complexity ofeach case. Certain cases, because of their effect on safety, including the need for emergency action, 

### will sometimes demand immediate involvement ofthe entire investigative and legal team to effect timely agency action, sometimes 

### in only amatter ofhours or afew days. 2-310/01/07 2150.38
letters to airmen, pilot forums, and evenpress releases may be appropriate. The program office maintains atracking method to evaluate the effectiveness ofthe special emphasis enforcement program on a continuing basis until termination ofthe program. 7. Formal Complaints.

a. Authority To Investigate Violations of49 U.S.C. Subtitle VII, 

### PartA. Under 49 U.S.C. §46101(a)(l), aperson may file a written complaintwith the Administrator about violations of49 U.S.C. subtitle VII, part A, or arequirement prescribedunderpart A. Under49 U.S.C. § 46101(a)(2), the Administrator, onhis or her initiative, may investigate, ifthe Administrator determines thatreasonable grounds existregarding aperson's violation. Ifthe Administrator determines the complaint does not state facts that warrant an investigation or further action, the Administratormay dismiss the complaint without ahearing (49 U.S.C. § 46101 (a)(3)). The Administrator, after notice and opportunity for hearing, must issue an order to compel compliance withpartA ifhe or she finds, after the investigation, that aperson is violatingpart A (49 U.S.C. §46101(4)). b. Procedures. 14 C.F.R. § 13.5 prescribes procedures for persons filing formal complaints. Under that section, any person may file a complaintwith the Administrator about anything done or not done by any person in contravention ofanyprovision ofany statute, or regulation or order issuedunder it aboutmatters within thejurisdiction ofthe Administrator. 14 C.F.R. 

### § 13.5, however, does not apply to complaints against the Administrator or any employee ofthe FAA acting withinthe scope ofhis or her employment

c. Contents ofthe Formal Complaint. Formal complaints are sent to the FAA, Office of the ChiefCounsel, Attention: EnforcementDocket (AGC-10), 800 Independence Avenue, SW, Washington D.C. 20591. The Assistant ChiefCounsel for Enforcement or

### his or her delegate determines whether the complaint meets the criteria for being docketed as a formal complaint. Complaints that do not meet the criteria set forth below are notdocketed as a formal complaint. Rather, the FAA treats them as reports under 14 C.F.R. § 13.1. Complaints that meet the criteria set forth below are docketed, and a copy is mailed to each person namedin the complaint Each formal complaint must: (1) Be submitted in writing and identified as a complaint filed for the purpose ofseeking an appropriate order or other enforcement action. (2) Set forth the name and address, ifknown, ofeach person who is the subject ofthe complaint and, for eachperson, **thespecificTermsofthestafU.fe;·regwiinon~-or ord'"'er"'tfi=e~per=so=nc---­**  violated. (3) Contain a concise statement ofthe facts relied on to substantiate each allegation. ( 4) State the name, address, and telephone number ofthe person filing the complaint. That person or a duly authorized representative sigos the complaint. d. Response to the Complaint. Within 20 days after service ofthe complaint, the person named in the complaint must file an answer.2-1110/01/07 2150.3B (2) To promote the prompt and diligentprocessing ofenforcement cases, the FAA has timeliness goals for completing investigations and associatedEJRs andprocessing legal enforcement actions. The timeliness goals for completing investigations and EIRs are in chapter 4, subparagraph 4.e. The timeliness goals for processing legal enforcement actions are in chapter 6, paragraph 25. i. Recommendations ofInspectors, SpecialAgents, Field Offices, and Regional Offices. FAA investigative personnel recommend initially the appropriate type ofresponse to address an apparentviolation. Often, they are in the bestposition to evaluate various subjective considerations, such as the apparentviolator's compliance attitude and whether an alternative to legal enforcement action may be sufficientto achieve compliance. IfFAA investigative personnel prepare an enforcement investigative report (EIR), program office management reviews it to determine consistency with agency compliance and enforcementpolicy. Inthis review, field andregionalprogram office personnel consider the recommendations ofFAA investigative personnel, ifthey properlyjustify and explain their recommendations. FAA legal counsel who reviews the EIR considers the recommendations ofthe program office. j. FAA Legal EnforcementActions; Sanction Guidance Policy. After determining that legal enforcement action is necessary, FAA enforcementpersonnel consult the sanction guidance policies in chapter 7 and tables ofsanctions in Appendix B or Cto determine the appropriate sanction. FAA enforcementpersonnel must fully explain andjustify in the EIR deviations from the sanction guidancepolicy. 4. Responsibility for DeterminingLegalEnforcementAction.

a. General. IfF AA enforcementpersonnel select legal enforcement action (for example, certificate action or civil penalty action), they determine the type and amount ofsanction under agency sanction guidance policy. The program office and legal counseljointly determine the type and amount ofsanction sought in a legal enforcement action. The roles ofthe various enforcementpersonnel withregardto sanction determination are outlined below. Disagreements within aprogram office orbetween legal counsel and the programoffice are generallyresolved following discussion among, as appropriate, the inspector or otherinvestigative personnel; field office, regional, or Washington headquarters program office personnel; and legal counsel. b. Responsibilities ofF AA Investigative Personnel. (l) Inall legal enforcement actions except those recommended by the security and hazardous materials program office, FAA investigative personnel recommend only the type of legal enforcement action (for example, civil penalty action, fixed-period suspension (for example, 30-day suspension)), indefinite suspension, revocation.) that shouldbe taken. Except in security orhazardous materials EIRs, FAA investigative personnel do not recommend a specific amount ofsanction (that is, specific number ofdollars or days) or arange ofsanction in cases that warrant either civil penalty action or a fixed-period certificate suspension. Fouecurityand hazardous materials EIRs, FAA special agents recommend arange ofsanction and a specific amount ofsanction in cases thatwarrant legal enforcement action.

2-4

### 10/01/07 2150.38
8. Principles for Applying Investigative Findings to Regulations BelievedViolated.

a. EnforceableRegulations. An enforceable regulation generally contains either mandatory language, that is, 

### shall or 

### must or prolubitory language, for example, 

### noperson may or 

### aperson may not. Regulations that contain words such as 

### noperson may, except or 

### no person may, unless are enforceable only in instances that are not covered by exceptions. Ifthe situation covered by the exception exists, the requirement orprohibition does not apply. For example, the minimum safe altitudes in 14 C.F.R. § 91.119, apply "except when necessary for takeofforlanding." Some regulations written inthe question and answer format underplain language principles may be enforceable even though they do not contain mandatory language. For example, 14 C.F.R. § 39.7 provides that a person is in violation ofthe regulations ifthey do not meet the requirements ofan airworthiness directive (AD). Although the regulation does not use the word

### must, itplaces arequirement onpersons to comply with ADs by explicitly stating that they are 

### in violation ifthey operate aproduct that does notmeet AD requirements. b. Elements ofRegulations. Regulations consist ofmnltiple 

### elements. To prove a violation ofa regulation, there must be evidence to prove each ofthe individual elements. This makes the ability to identity the individual elements ofa regulation a critical investigative skilL Appendix E contains an example ofhow FAA enforcementpersonnel establish a violation by proving each element ofa regulation.

c. Burden and Standard ofProof. In prosecuting both certificate actions and civil penalty actions, the FAA has the burden ofproof, by apreponderance ofthe reliable, probative, and substantial evidence, to establish all facts necessary to satisfY each element ofa statutory or regulatory violation. The preponderance ofevidence standard requires that the FAA's evidence shows that it is more likely than not the respondent committed the violation. When a respondent asserts an affirmative defense at ahearing, the respondent has tile burden ofproofand must establish the elements ofthe defense by a preponderance ofthereliable, probative, and substantial evidence. d. Relevance andMateriality. 

### Relevantevidence means evidence having any tendency to make the existence ofany fact that is ofconsequence to the determination ofthe action more probable or less probable than itwouldbewithout the evidence. Under the 5U.S.C. § 556(d), the agency as a matter ofpolicy shall provide for the exclusion ()firrelevant, immaterial, or unduly repetitious evidence. Material evidence is evidence thathas a natural tendency to influence or is capable ofinfluencing a question at issue in the legal dispute.

----- · 9;-tetter-oHnvestigation-andResponse.
a. General. (1) A letter ofinvestigation (LOI) serves the dual purposes ofnotifYing an apparent violator thathe or she is under investigation for a possible violation and providing an opportunity for the apparent violator to tell his orher side ofthe story. While an LOI is not required, FAA investigative personnel should issue an LOI in most cases. Learning the 

### otherside of the story early in the investigation is to everyone's advantage. Inviting input also helps to demonstrate the FAA is conducting the investigation fairly and impartially. FAA investigative personnel do not 

### 4-10 

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### 10/01/07 2150.38
issue an LOI unless evidence shows that a violation may exist. IfF AA investigative personnel issue an LOI, they put a copy ofit in the EIR 

### See sample letter ofinvestigation in Figure A-1 of Appendix A. (2) AnLOI usually identifies the activity being investigated, such as 

### the departure of Nl2345 from Anywhere, USA, atsome given time anddate, or 

### 1naintenanceperformedon Nl2345, atsome given time anddate, as opposed to citing specific sections ofthe regulations. During the investigation, itis usually premature to cite specificregulations. The critical objective ofthe LOI is to advise the apparent violator ofthe subjectmatter ofthe investigation sufficiently so the recipient ofthe letter may respond to the facts giving rise to an investigation ofan apparent violation. (3) AnLOI also may include arequest for inspection ofrecords. Some regulations specificallyrequire certificate holders to allow the inspection ofcertaintypes ofrecords. Examples include 14 C.F.R § 61.5l(i) for pilotlogbooks and 14 C.F.R. § 91.417(c) for maintenance logs. An LOI request for such documents includes a specific time limit for response to provide a firmbasis for enforcement action if there is noncompliance. (4) FAA investigativepersonnel usually send an LOI even ifthey have previously discussedthe activity with the apparentviolator, and he or she has offered an explanation. In these instances, an LOI serves to formalize and document the process. (5) Inemergency cases, an LOI response may be the only opportunity for the agency to learn ofcontradictory information or affirmative defenses the apparentviolator may present at trial (since there is no informal conference andlittle time for discovery in emergency proceedings). Therefore, LOis generally are sent in emergency cases and are specific and detailed in outlining the issues being investigated (6) Where FAA investigative persormel discover additional violations during the investigation after they sendthe LOI, FAA investigative personnel usejudgment as to whether they should send another letter ofinvestigation. An investigation continues whether ornot an LOI is sent. Incases involving companies with complex organizational structures, FAA investigative personnel exercise care to address the LOI to the responsible official. FAA investigative personnel may obtain advice on such matters from the supporting office. b. Preparation oftheLOI. FAA investigative personnel use the following guidelines inpreparing a letter ofinvestigation: --------------------- (1) The LOI is not a statement ofcharges. Itinforms the apparent violator ofthe activities being investigated. The LOI contains enough factual details so thatthe apparent violator can provide aresponse that addresses the facts the FM believes are relevant FAA investigative personnel do not cite specific statutory or regulatory provisions they believe have beenviolated, unless specific regulatoryreference is neededto accurately identify the incident. The LOI only states there may have been a violation.

4-1110/01/07 2150.38 (2) The LOI specifies a 

### time for reply. 

### This time normally is 10 days. Additional time may be necessary in cases involving apparent violators who reside orhave theirprincipal place ofbusiness in foreign countries. Although FAA investigative personnel consider any reply received after the 10 days, the investigation continues evenwithout areply. IfF AA investigative personnel have forwarded the EIR to the regional office, they forward the reply with an analysis, including a discussion ofhow the reply affects the analysis or changes their conclusions. FAA investigativepersonnel include the LOI and any response to the LOI in section Cofan EIR as items ofproof. (3) The LOI requests that specific relevant documents be retained ormade available for inspection and copying. ( 4) Ifthe apparent violator is an individual, FAA investigative personnel include a Privacy Act statement with the LOI. 

### See sample Privacy Act notice in Figure A-2 ofAppendix A.
c. Sending theLOIto theApparent Violator. FAA investigative personnel sendthe LOI byregularmail and either certifiedmail, return-receipt requested, or registered mail. to establish a record ofnotice to the party under investigation. Ifthe party is a certificate holder, FAA investigative personnel sendthe documentto the current address ofrecord. Ifthe regularmail is returned or the certified letter orregistered letter is returned as undeliverable (because it is addressed incorrectly or the party has moved and left no forwarding address), then FAA investigative personnel correctthe address or obtain a new address andresend the LOI to the correct address by regular mail and either certified

**mai~** return-receiptrequested, orregistered 

### mail.. Ifthe certified letter or registered letter is refused or returnedunclaimedbut the regular mail is not returned, then there is apresumption ofservice andFAA investigative personnel 

### do notresendthe LOI. IfF AA investigative personnel deliverthe letter inperson, they document the delivery inthe file. d. Distribution ofLOI. FAA investigative personnel send the original letter of investigation to the apparent violator and copies ofthe LOI to supporting FAA offices. 

### 10. Evidence.
a. General. The object ofthe investigation is to obtain evidence to establish whether a violation occurred. Evidence includes all the means bywhich any alleged fact tends to be proved or disproved. Itis the means by which FAA legal counsel proves the facts alleged in a complaint. IfFAA investigative personnel are uilstire alfout

### therelevance ofapiece ofevtdence, they secure and preserve the evidence and consult legal counsel. FAA investigative personnel obtain evidence from any place or source where itis legally available. Conducting an investigation atthe scene ofaviolation often will help FAA investigativepersonnel in the collection ofevidence. Itaffords FAA investigative personnel the best opportunity

### to obtain physical evidence 

### and interview and obtain statements from eyewitnesses. FAA investigative personnel also prepare awritten statement oftheir personal observations as soon as possible, because such observations are in most cases key evidence. FAA. investigative personnel obtain

4-12

### 10/01/07 2150.3B evidence that proves each element ofthe apparent violation andprepare areport that clearly conveys such facts and circumstances. b. HearsayEvidence. Hearsay evidence is evidence offered by awitness to prove afact about which the witness has no personal knowledge. For example, an inspector's testimony that a first officer statedthe pilotin command appeared intoxicatedwouldbe hearsay evidence if offered to prove the pilotwas intoxicated. Inadministrative hearings, such as those before the NTSB or DOT ALJs, hearsay evidence may be used to prove violations. FAA investigative personnel report any informationthat couldberelevant to the case and couldpossibly be used as evidence, including information that mightbe hearsay evidence. Hearsay evidence canbe helpful to FAA investigative

**personne~** because it often leads to persons who have direct knowledge ofthe incident, or knowledge ofimportant documents. Hearsay evidence may also behelpfulto legal counsel in cross-examination ofa hostile witness orthe alleged violator. Despite the usefulness ofhearsay evidence, FAA investigative personnel should obtain direct evidence ifitis available because ALJs generally accord greater weight to it.

c. Types ofEvidence. FAA investigative personnel gather andprepare various types of evidence, including witness statements, photographs, charts, maps, diagrams, records, and physical evidence, to substantiate aviolation. (1) Violationhistory and accident/incidentrecords. FAA investigative personnel obtain the violation history ofthe subject ofthe investigation from several automated information systems. They obtain violationhistory and accident history from the AID/EIS Display and Profile programuoderEIS. This program provides access to essential datataken from several separate data files ofthe Accidentllncident Data System (AIDS) and the Enforcement Information System (EIS). FAA investigative personnel address problems or questions to the local EIS systemmanager or A VS Support Central at 405-954-7272. EIS records containing a subject's rebuttal statement, under the provisions ofthe PrivacyAct, are available only from AFS-620. Requests for release ofthis information shouldbe referred to the Aviation Data Systems Branch, AFS-620. (2) Witness interviews. Generally, FAA investigative personnel interview all witnesses knowledgeable about an apparent violation andreport the

**inform<~.tion** gathered during the interview. Multiple witness statements may help inproving a

**c<~.se.** FAA investigative personnel may tape-record an interview, ifthey request and receive permission from the interviewee for the recording. FAA investigative personnel must record the interviewee's permission on tape at the beginning ofthe taping ofthe interview. Atape recording is avaluable investigative means of securing

**evidence~** FAA-iiivestigative personneTselecT\vltilesses llaseaonthelikelilrooaoftlret·,---- knowledge about 

### the incident and their competence to relate the information sought. FAA investigative personnel find, or learn of, possible witnesses from sources such as:

• Passenger manifests. • Air traffic controllers. • Records andpersonnel oforganizations, such as air carriers, airtaxis, andrepair stations. • Local restaurants orbars thatmayhave servedthe apparent violator. 4-13

### 10/01/07 2150.38

• Pilots and mechanics who may have pertinentinformation. • Persons who work orreside inthe area ofthe incident. • Healthpersonnel who may have exanrined the apparentviolator. (Maybe obtainedby subpoena or a signed release.) • Federal, state, or local law enforcementpersonnel. (3) Conducting the Interview. FAA investigative personnel interview witnesses in person orby telephone. FAA investigative personnel may use tl:le record ofinterviewjob aid in Figure A-3 ofAppendix Ato document information obtained during the interview. They may use other formats to documentthe interview, however, and shouldnot feel constrained to follow thejob aid inAppendix A. FAA investigative personnel state onthe record ofinterview form the name, address, and telephone number ofthe person interviewed. Iftwo or more FAA investigative personnel are preseut during the conversation, eacllprepares a record ofinterview for inclusion in section C ofthe EIR. The interviewing techniques ofF AA investigative personnel will vary depending on circumstances. The following general guidelines will facilitate an interview:

• Plan the interview to assure the interviewer is thoroughly prepared and that the best environment inwhichto hold the interview is selected. • Put the person to be interviewed at ease. • Maintain control ofthe interview. • Assure from the outset the witness understands tl:lat any information provided may be used as evidence in subsequent enforcementproceedings. No promises of confidentiality may be given withoutprior consultation with FAA legal counsel. However, ifa witness requests immunity in exchange for information regarding safety, FAA investigative personnel must immediately proceed under the policy on special enforcement consideration. • Do not discuss with witnesses any possible sanctions and do not raise the issue of immunity. Do not disclose sources ofinformation, except where necessary. • Request a signed and dated statement. • Plan questions that will accomplish the objective. The broad or general question often is effective to open areas ofdiscussion. Specific searching questions are good for getting specific information, clarification, and conclusions. • Be attentive and listen. • Take notes if practicalto do so. This will vary with circumstances, but ifnotes are not taken at the interview, make notes immediately after the interview and document the time and date the interview tookplace.

--------- .--s1llf1t!!lll"iz-e-tlreinterview with the witness to velify the interviewer's · understanding and recollection ofall relevant points. Give the witness an opportunity to make any additional comments. • Prepare a separate report ofthe interview, including the interviewer's own factual observations. This report ofinterview is a separate itemofproofin the EIR. The report ofinterview must not contain personal opinions ofthe interviewer. • Ask witness to prepare written statement. • When an essential witness refuses to cooperate, contact FAA legal counsel for an administrative subpoena. 4-1402/24/16 2150.38, Chg 11 Appendix H through educationwarrants administrative action (warning notices orletters ofcorrection, with associated documentation (See FAA Order 2150.3B, Chapter 5, Paragraph 3)).
• When sufficient evidence exists to support a violation that poses a medium or high actual orpotential risk to safety, legal enforcement action is appropriate. For example, legal enforcement action is appropriate when a UAS operation has a medium orhigh risk of endangering the operation ofanother aircraft or endangering persons orpropertyon the ground. In addition, repeated or intentional violations general!y warrant legal enforcement action. In making a sanction determination, the guidance provided in Order 2150.3B, Chapter 7 and Appendix B shall be applied. Appendix B sets forth ranges applicable to various individuals and entities.

• A violation that poses a medium actual orpotential riskto safety generallywarrants a civil penalty in the minimum to moderate range. 5

• A violation that poses a high actual orpotential risk to safety generally warrants a civil penaltyinthe maximumrange.

• Repeated orintentional violations generally warrant a civil penaltyinthe applicable maximum range. For a deliberate, egregious violation by a certificate holder, regardless ofwhether the certificate holder is exercisingthe privileges ofthe certificate in connection with the violations associated with a UAS operation, certificate action, maybe appropriate. Such certificate actionmaybe in addition to a civilpenalty.

4 A certificate holder should appreciate the potential for endangermentthat operating aUAS contraryto the FAA's safetyregulations may cause. Accordingly, aviolator's status as acertificate holderis an aggravating factor thatmay warrant a civilpenaltyabove the moderate range for a single, first-time, inadvertent violation. H-502/24/16 2150.38, Chg 11 Appendix H 3. For a deliberate violation by an individual notholding an airman certificate, the FAA may seek a civil penalty up to the statutory maximum of$11,000 per violation under 49 U.S.C. § 4630l(a)(5)(A). 4. For a deliberate violation byan airman certificate holder, regardless ofwhetherthe airman was exercising the privileges ofhis orher certificate at the time ofthe violation, the appropriate sanction generally is revocation ofthe airman certificate. A civil penalty in the maximumrange maybe appropriate in addition to certificate revocation. 5. The FAA's Regional Counsel Offices will coordinate with FAA's Office ofChief Counsel, Enforcement Division, in initiating and processing these legal enforcement actions.



### H-202/24/16 2150.38, Chg 11 Appendix H Appendix H. Compliance andEnforcement Bulletin No. 2012-1 (Originally Effective 05/01/12) SUBJECT: Sanctions for persons who direct a lasertoward an aircraft in violation of 14 C.F.R. §§ 91.11, 121.580, 125.328, or 135.120. ffiSCUSSTON: Datarecently compiledbythe FAAreflects a continuing upward trend in the number ofreported incidents oflasers being aimed at aircraft. Aiming a laser at an aircraft can seriouslyimpair a pilot's vision and interfere withthe flight crew's abilityto safelyhandle its responsibilities. Flight crewmembers exposedto laser light, while operating an aircraft atnight, have experienced glare (a temporary disruption invision causedbythe presence ofa bright light within an individual's field ofvision), flashblindness (the inability to see, causedbybright light entering the eye that persists afterthe illuminationhas ceased), and afterimage (an image that remains inthe visual field after an exposure to brightlight). A sufficiently powerful laser could cause permanent ocular damage, blinding crewmembers and making a successful landing virtuallyimpossible. On June 1, 2011, the FAA's Assistant ChiefCounsel for Regulations issued a memorandum interpreting 14 C.F.R. § 91.11 as being applicable to a person, not on boardthe aircraft, who aims a laser beam at that aircraft. The memorandumnotedthat the interpretation applied equally to the similarlyworded provisions of 14 C.F.R. §§ 121.580, 125.328, and 135.120. Subsequently, this interpretation was published in the Federal Register to increase public awareness that: (1) directing laser beams towards aircraft operating on the ground orinthe air so that it interferes with a crewmemberin the performance ofthe crewmember's duties is a violation ofsection 91.11; and (2) persons violating section 91.11 are subject to a civil penalty. See 76 Fed. Reg. 76611-76612 (Dec. 8, 2011). Minors found in violation ofsection 91.11 under this interpretation are subject to enforcement action and sanction. Because ofthe continuing highnumber oflaser-related flight crewmember interference occurrences and the high riskto safetytheypresent, theFAA's Acting Administratorhas determined that aspecial emphasis enforcement program is v.ra..11anted for violations of 14 C.F.R. §§ 91.11, 121.580, 125.328, and 135.120 resulting from such occurrences. ACTION: Until further notice, the following special emphasis enforcement program is in effect for violations of 14 C.F.R. §§ 91.11, 121.580, 125.328, or 135.120 committedbyan individual when he or she aims a laserbeam at an aircraft: 1. Informal action (oral orwritten counseling) and administrative action (warningnotices or letters ofcorrection) are not used to address such violations. 2. A single, first-time, inadvertent ornon-deliberate violation by an individual generally warrants a civil penaltyin the moderate range ($2,200-$4,399). 1

1 An individual who holds an airman certificate should appreciate the potential for danger associated with directing a laser at the crew operating an aircraft. Accordingly, a violator's status as an airman is an aggravating factor that maywarrant a civil penalty above the moderate range for a single, first-time, inadvertent ornon-deliberate violation. H-1

### 10/01/07 2150.38 (2) All FAA investigative personnel include a written analysis supporting the type of legal enforcement action, and in security and hazardous materials EIRs the sanctionrange and specific amount ofsanction, they recommend in section Bofthe EIR. Inthe written analysis, FAA investigative personnel explain the reasons why they recommend atype oflegal enforcement action and for eachviolation address the factors described in chapter 7, paragraph 4, or Appendix Cthat are relevantto that alleged violation. FAA investigative personnel explain how each ofthe relevant factors applies to each allegedviolation and why itmay warrant mitigation or aggravation ofthe sanction amount for the case. (3) To determine the type oflegal enforcement action, FAA inspectors first consult the sanction guidance table in Appendix B. The table provides the type oflegal enforcement action thatusually is taken for an alleged violation. (Ifaparticularviolation is not listed inthe table, FAA investigative personnelreferto an analogous or similarviolation for guidance.) FAA special agents follow the guidance in Appendix Cto recommend a specific amount ofsanction for a hazardous materials case orAppendix B for their other cases. FAA investigative personnel document their recommendation and the reasons for it in section Bofthe EIR.

c. Responsibilities ofRegional andWashington Headquarters Program Office Personnel. (1) For civil penalty actions and fixed-period certificate suspensions in cases other

### than those opened by the Office ofSecurity andHazardous Materials, regional orWashington headquarters program officepersonnel recommend a specific amount ofsanction, that is, the number ofdays or dollars the FAAwill seekfor a case. Regional orWashingtonheadquarters program office personnel base this recommendation onFAA investigative personnel's analysis ofthe relevant factors and elements affecting sanction andtheirrecommendation. Regional or Washingtonheadquarters program office personnel apply the agency's sanction guidance policy in determining a specific sanction amount for the case. For cases involving multiple violations, regional orWashington headquarters program office personnel follow the guidance in chapter7, paragraphs 6 and 7in determining the specific amount ofsanction for the case. Whenthe regional program office division manager and the Regional

**Counse~** or the Washington headquarters program office division manager and the Assistant ChiefCounsel for Enforcement, agree, program office personnel andlegal counsel may collaborate in determining the specific amounts ofsanction for cases before the program office forwards the EIR to legal counsel for processing. Program office personnel document in the EIR when they determine a specific sanctionrecommendation collaboratively with legal counsel. (2) Ifthe EIR does not contain a sufficient sanction analysis for regional orWashington headquarters program officepersonnel to recommend a specific sanction amount, then those

- personnel-may-retum-theEIR-to FAA investigative personnel for further sanction analysis.

Regional andWashington headquarters program office personnel document theirrecommended specific sanction amount or the amount determined collaboratively with legal counsel, and the reasons for that amount, 

### in section B ofthe EIR. Ifthat sanction recommendation differs from 

### 2-510/01/07 2150.38
the recommendation ofF AA investigative personnel, then regional orWashington headquarters program office personnel and legal counsel, ifappropriate, discuss the difference with FAA investigative personnel. Regional or Washington headquarters program office personnel must document the reasons for the difference in section B ofthe EIR. d. Responsibilities ofLegal Counsel. (1) Iflegal counsel and the program office do not collaborate on determining a specific sanction amountbefore receipt ofthat case by the legal office, th.en legal counsel reviews the sanction recommendation of regional or Washington headquarters program office personnel. If legal counsel believes the sanction sought should differ from the regional orWashington headquarters program office recommendation, then legal counsel discusses the proposed change to the sanction type or amount with appropriate program office personnel, including FAA investigative personnel, ifpracticable. Iflegal counsel seeks a sanction type or amount different from the recommendation ofregional or Washington headquarters program office personnel, then legal counsel documents in the EIR the reasons why legal counsel sought that sanction. (2) After legal enforcement action is initiated, legal coUllsel consults with appropriate regional orWashingtonheadquarters program office personnel before proposing any changes 

### to the sanction sought. Ifsuch a change also differs from the type ofsanction recommendedby FAA investigative

**personne~** thenregional or headquarters program office personnel consults, if practicable, with FAA investigative personnel before legal counsel changes the sanction sought. Legal counsel documents in the EIR the reasons for any changes to the sanction sought.

e. Sanction Determinations in Significant Cases. Significant cases defined inparagraph 3 ofchapter 6require coordination with Washington headquarters through AGC-300. FAA enforcement personnel determine the type ofsanction and specific sanction amount for such cases in accordance withthe guidance in chapter 2, subparagraphs 4.a.-d. IfWashington headquarters personnel involved in coordinating a significant case have adifferent opinion about the sanction the FAA should seek inthat case, then they convene ameeting or teleconference with FAA investigative personnel, regional andWashington headquarters personnel, and regional and Washingtonheadquarters legal counsel. The p111pose ofthe meeting or teleconference is to discuss the case and to resolve any differences that exist among FAA enforcementpersonnel aboutthe type and amount ofsanction that should be sought. 5. Voluntary Safety Programs.
a. Background. The threatto regulatedpersons ofmclllTlllg pumtive legal enforcement actions is a traditional and often effective incentive 

### to promote ccmpliance. While these actions have deterrent value, they do notnecessarily improve aperson's ability to assure future compliance. The public interest in aviation safety is served in appropriate circumstances by positive incentives to promote and achieve compliance. To this end, the FAA has established several programs to-improve compliance and increase safety by offering incentives to regulated persons to disclose their own violations, other safety discrepancies, and general safety information to the FAA andtake corrective action to preclude future safety problems, if appropriate. These programs include the voluntary disclosure reporting programs, the aviation
2-6

### 10/01/07 2150.38 (2) To promote the prompt and diligentprocessing ofenforcement cases, the FAA has timeliness goals for completing investigations and associatedE!Rs andprocessing legal enforcement actions. The timeliness goals for completing investigations and EIRs are in chapter 4, subparagraph4.e. The timeliness goals for processing legal enforcement actions are in chapter 6, paragraph 25. i. Recommendations ofInspectors, Special Agents, Field Offices, and Regional Offices. FAA investigative personnelrecommend initially the appropriate type ofresponse to address an apparent violation. Often, they are in the bestposition to evaluate various subjective considerations, such as the apparentviolator's compliance attitude and whether an alternative to legal enforcement action may be sufficient to achieve compliance. IfF AA investigative personnel prepare an enforcement investigative report (EIR), program office management reviews itto determine consistency with agency compliance and enforcementpolicy. Inthis review, field and regional program office personnel considerthe recommendations ofF AA investigative personnel, ifthey properlyjustify and explain their recommendations. FAA legal counsel who reviews the EIR considers the recommendations ofthe program office. j. FAA Legal Enforcement Actions; Sanction Guidance Policy. After determining that legal enforcement action is necessary, FAA enforcementpersonnel consult the sanctionguidance policies in chapter 7 and tables ofsanctions in Appendix B or Cto detennine the appropriate sanction. FAA enforcementpersonnel must fully explain andjustifY in the EIR deviations from the sanction guidance policy. 4. Responsibility for Determining Legal EnforcementActiom.

a. General. IfF AA enforcementpersonnel select legal enforcement action (for example, certificate action or civilpenalty action), they determine the type and amount ofsanction under agency sanction guidancepolicy. Theprogram office and legal counseljointly detennine the type and amoUnt ofsanction sought in a legal enforcement action. The roles ofthe various enforcementpersonnel 

### vvithregardto sanction determination are outlinedbelow. Disagreements within aprogram office orbetween legal counsel andthe program office are generally resolved following discussion among, as appropriate, the inspector or other investigative personnel; field office, regional, orWashington headquarters program office personnel; and legal counsel. b. Responsibilities ofFAA Investigative Personnel. (1) Inall legal enforcement actions exceptthose recommendedby the security and hazardous matenals program of:fiee,FAA-mvestigative personnel **recommendonl:yth...-e"'~'typ"""e"o'f----­** legal enforcement action (for example, civil penalty action, fixed-period suspension (for example, 30-day suspension)), indefmite suspension, revocation) that shouldbe taken. Except in security or hazardous materials EIRs, FAA investigative personnel do not recommend a specific amount ofsanction (that is, specific number ofdollars or days) ()t arange ofsanction in cases that warrant either civil penalty action or a fixed-period certificate suspension. For security and hazardous materials EIRs, FAA special agents recommend a range ofsanction and a specific amount ofsanction in cases thatwarrant legal enforcement action.

2-4