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U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS ^' 

FEDERAL AVIATION ADMINISTRATION 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

vs. 

ATRTRAN AIRWAYS, THC 

Respondent. 

FAA Docket No. CP10SO0002 

Judge Bcnkiii 

11 

M01 ION FOR DECISION ON THE PLEADINGS 

OR TN THF ALTERNATIVE. 

MOTION FOR HEARING ON SANCTION ONLY ci5 

Complainant, by and through the undersigned counsel, pursuant to §13.218(t)(5) of the Rules 

of Practice (14 C.F.R. 13,218(f)(5)), hereby files its Motion for Decision on the Pleading;; or 

in the alternative, Motion for Hearing on Sanction Only. In support thereof, Complainant 

states the following: 

1. 

Motions for decision are analogous to motions for summary judgment under Rule 56 of 

the Federal Rules of Civil Procedure. Sec, e.g.. Horizon Air Industries. Inc.. FAA Order No. 96-

24 al 6 n.3 (1996). Pursuant to this rule, the moving party has the burden of "identifying for the 

court the portions of the materials on file that it believes demonstrate the absence of any genuine 

issue of material fact." Elec. Service v. Pacific Elec. Contractors. 809 F.2d 626, 630 (9lh Cir. 
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1987). Inferences from the facts must be drawn in the light most favorable to the non-moving 

parly. Id. at 631. 

2. 

In its answers to the complaint, Respondent admitted Paragraphs 1 througli 9, which 

contain all of the factual allegations at issue. The Respondent only denied the allegations in 

Paragrajjhs 10 of the complaint.' Respondent denied that the civil penalty of $15,000 sought by 

ihc Complainant is appropriate. See Exhibit 1, Answer of Respondent dated April 15, 2010-

As the allegations are admitted, there remain no genuine issues of material fact. 

Consequently, Complainant is entitled to a judgment on the pleadings. Pursuant to 14 C.F.R. 

§13.218(f)(5) of the Rules of Practice, the grant of a motion for decision is called for if, among 

other things, "admissions . . . show that there is no genuine issue of material fact and that the 

paay making the motion is entitled to a decision as a matter of law." Thus, the only remaining 

issue is sanction. 

4. 

The complaint charged Respondent with a violation of Section 121.467(b)(13) of the 

Federal Aviation Regulations (FAR) (Title 14 of the Code of Federal Regulations), for failing to 

relieve a flight attendant from flirther duty for at least twenty-four (24) consecutive hours during 

any seven (7) consecutive calendar days. In accordance with Sections 46301(a)-(d) of Title 49 of 

the United States Code (Transportation) (49 U.S.C.§46301(a)-(d)), Respondent is liable for a 

civil penally noi lo exceed $25,000 for each violation of the FARs. 

The Complainam notes that its complaint dated February 24, 2010 does not contain a paragraph II. 
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Tlic Complainant's Table of Sanctions included in FAA Order 2150,3B effective October 

1, 2007, sets forth the FAA Administrator's policy guidance for use by agency employees 

involved in the investigation and prosecution of enforcement cases. The sanction guidance also 

reflects the Administrator's general views about the civil penalty ranges that are appropriate for 

different types of violations. See In the Matter of Folsom's Air Service, Inc., FAA Order No. 

2008-11 (November 6, 2008). The Table of Sanctions in the 2150.3B was formulated like its 

predecessor guidance in the 2150.3A to consider the nature, circumstances, extent and gravity of 

each general type of vjolaiion. To that end, the Table of Sanctions are categorized into civil 

penalty ranges based on the type of violator (i.e. individual, small business concern, or large 

business concern.) See Exhibit 2, Order 2150.3B Tabic of Sanctions. A review of the Table of 

Penalties indicates for violations committed by U.S. Air Carriers or U.S. Commercial Operators 

who arc classified as large business concerns, the maximum civil penalty is $25,000 per 

violation. See Exhibit 2 at pages B-3 through B-4. 

The Respondent is a U.S. Air Carrier that meets the definition of a large business 

concern, The Table of Sanctions indicates that a large business concern is an air carrier operating 

under part 121 or part 135, with an aimual operating revenue of $100,000,000 or more. 

Operating revenue is determined by reference to DOT's "Air Carrier Industry Scheduled Service 

Traffic Statistics Quarterly," which is found on the Department's website at 

htip://ostpxweb.dot,gov/aviation/index.html. and clicking on "Airline Financial Review." See 

Exliibit 2 at page B-3. A review of the "Airline Quarterly Financial Review" for Fourth Quarter 

2009, the most recent report available, reveals that Respondent AirTran Airways, had operating 

revenue for the quarter ending December 2009 of $598.4 million dollars. See Exhibit 3, at page 

18. By reason of the foregoing. Respondent is classified under the Complainant's Table of 
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Sanction.s as a Group 1 Air Carrier. The sanction ranges included in the Administrator's sanction 

policy are designed to reflect the agency's position that the size of a civil penalty should vary 

depending upon the size of the canier. 

The Administrator states in the 2150.3B that sanctions should be deterrent and that the 

sanction should be high enough to remove any profit incentive for violations. Penalties should 

never be permitted to be a cost of doing business. Therefore, the FAA uses air carrier si^e as one 

means of ensuring a relatively equivalent deterrent effect on each air earner that violates the 

same FAA regulation. See Exhibit 4, FAA Order 2150.3B, Chapter 7, Paragraph 4(j) at page 7-

8; See also In the Matter of Folsom's Air Service, Inc.. FAA Order No. 2008-11 (2008). 

The Table of Sanctions establishes for flight and duty time violations the appropriate 

sanction is a Moderate civil penalty. For "Group 1 Air Carriers - large business concerns" the 

Moderate sanction range is $10,000-$ 18,749 for each violation of the FARs. See Exhibit 2 at 

page B-3. The 2150.3B indicates that for single, first-time, inadvertent violations, when 

deieimining a specific sanction amount within a range, FAA enforcement personnel begin with 

an amount in the middle of the range and increase that amount toward the higher end of the range 

for aggravating factors or decrease that amount toward the lower end of the range for mitigating 

factors. See Exhibit A, FAA Order 2150.3B, Chapter 7, Paragraph 5(b)(3) at page 7-9. In the 

instant case, the Complainant is seeking a $15,000 civil penalty in accordance with the 

established sanction policy. 
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6. 

WHEREFORE, Complainant respectfully requests that the Motion for Decision on the 

Pleadings be granted and Respondent be assessed a civil penalty in the amount of $15,000. hi 

the alternative. Complainant respectfully requests the Motion for Hearing on Sanction Only be 

granted. 

Submitted this 30'*" day of April 2010. 

RA^W N RICH CJEORGE 7 ^ 

Attorney 

Office of the Regional Counsel 
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CERTIFICATE OF SERVICE 

I hereby certify that a copy of the foregoing Motion for Decision on the Pleadings, or in the 

Alternative Motion for Hearing on Sanction Only was mailed by, facsimile and Federal Express 

to: 

llic Honorable Isaac D. Benkin 

DOT, Administrative Law Judge 

Office of Hearings, M-20 

1200 New Jersey Avenue, SE 

East Building Ground Floor 

Room £12-320 

Washington, DC 20590 

(FAX) (202) 366-7536 

and electronic mail, facsimile and Federal Express 

Stephen .1. Kolski, Esq. 

Executive Vice President Corporate Affairs 

AirTran Airways, Inc. 

9955 AirTran Blvd. 

Orlando, FL 32827 

(FAX) (407) 318-5901 

and the original and one copy via Federal Express to 

Hearing Docket Clerk 

FAA, AGC-430, Suite 2W1000 

Wilbur Wright Building 

800 Independence Avenue, SW 

Washington, DC 20591 

di^^^M^^ 

APR 3 0 2^"^ 

Dated 
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U.S. DEPARTMENT OP TRANSPORTATION 

OFFICE OF HEARINGS 

FEDERAL AVIATION ADMINISTRATION 

Federal Aviation Administration 

Complainant 

vs. 

AirTran Airways, Inc. 

Respondent 

FAA Docket No. CP10SO0002 

Judge Isaac 0. Benkin 

ANSWER OF RESPONDENT AIRTRAN AIRWAYS. INC 

Introduction 

On Febnjary 24, 2010, Complainant filed its COMPLAINT in the above styled matter. 

On March 18. 2010, Respondent filed its MOTION TO DISMISS COMPLAINT. On 

March 26. 2010 Complainant filed its AMENDMENT TO COMPLAINT amending its 

COMLAINT by alleging that Respondent was subject to a maximum civil penalty of 

$25,000 Instead of the $11,100 specified in its February 24,2010 COMPLAINT. 

On April 6, 2010, the Court issued its ORDER DENYING RESPONDENTS MOTION 

TO DISMISS COMPLAINT. Respondent now furnishes its ANSWER in the above styled 

matter. 

Respondent's Specific Responses to Complainant's Allegations Contained in 

Complainant's Complaint. 

Paragraph # 1: Respondent admits this allegation. 

Paragraph # 2: Respondent admits this allegation. 

Paragraph # 3: Respondent admits this allegation. 

EXHIBIT. 1 
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- 1^003/004 

Paragraph # 4: Respondent admits this allegation. 

Paragraph # 5: Respondent admits this allegation. 

Paragraph # 6: Respondent admits this allegation. 

Paragraph U 7: Respondent admits this allegation. 

Paragraph # 8: Respondent admits this allegation. 

Paragraph # 9 (as amended): Respondent admits this allegation. 

Paragraph # 10: Respondent denies this allegation. 

Paragraph #11 : Respondent denies this allegation. 

Respondent's Affirmative Defense 

First AfTinnative Defense: The proposed civil penalty is excessive and unwarranted. 

Respectfully submitted this ^j6%yof ddy of April i . 2010 

O^/nOOmr;^ 

Stephen J. Kolski 

Ftofida Bar Number 01034082 

Executive Vice President Corporate Affairs 

AirTran Airways. Inc. 

9955 AirTran Blvd. 

Orlando, FL 32827 

Phone (407) 315-5108 

FAX: (4078) 318-5901 

Emial: Steve.Kolski(a)AirTran.com 
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FAA Docket No. CP10SO0002 

(CiviJ Penalty Action) 

SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviatioo Administration 

800 IhdependeQce Ave, S.W. 

WashiDgton, DC 20S9I 

Attention: Hearing Docket Cieik, AGC-430 

Wilbur Wrighi Building - Suite 2W1O00 

(VIA U. S, MAJL) 

ONE COPY 

Rashawn Rich George, Complainant's Counsel 

Office of the Regional Counsel, ASO-7 

Southeni Region 

Federal Aviation Administration 

P.O. Box 20636 

Atlanta, GA 30320 

TEL: 404-305-5200 

FAX: 404-305-5223 

(VIAFACSINaLE) 

The HonoTsble Isaac D. Benldn, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Josey Avenue, S.E. 

East Building Ground Floor, Room E12-320 

Washington, DC 20590 

TEL: Attorney 202-366-2139 

Legal Assistant 202-366-2132 

FAX: 202-366-7536 

(VIA FACSIMILE) 
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10/01/07 2150.38 

Appendix 0 

Table of Sanctions 

Ail Enforcement Programs 

Except Hazardous Materials 

Part One - Abbreviations and Definiijunii 

1. Applicability. This tabic ofsanctions applies to violations dial occurred on oratier 

October i, 2007. For violations occuning before October I, 2007. FAA enforccmciu personnel 

apply the .sanction guidance principles in FAA Order 2150..3A using up to the sUttLitoi-y 

maximum sanction amount in effect at the time of the violalton. 

2, Abbreviations. The following abbreviations aie ti^cd in ihis Table 

/lP/i" Hicans approved producnon ui,spect>oii s^isu^m 

A/yy means aiiv/orihincss 

AW^C means airwonhine.ss certificate 

^75 means Under Secretary for Border and TrHnipon<Ttion Security 

iA means iivspcciion aulhorizaiion 

LC means law enforceiricnt 

PC means production cciiifleaic 

STC means supplemental type certificate 

TC means type cenificaic 

TFR means Temporary Flight Restriction 

TSA means Transportation Security Administration 

3- Definitions: 

a. A continuing violation arises when a .specific violation occurs over more than one day 

or over more than one flight. It also may involve a violation that is ongoing, for example, an 

ongoing refusal to provide required records (o the FAA for in;spcction. Punitive sanctions are 

appropriate for continuing violations that are not currently ongoing. Sanction guidance for 

these violations is set forth in paragraphs 6 and 7 {multiple acts or multiple violaiiom) of 

chapter 7, A combination of punitive and remedial sanctions is appropriate when continuing 

violations arc ongoing. 

b. Violation committed by a small business concern. Section 503 of Vision 100—Century 

of Aviation Reauthorization Act (CARA) amended 49 U.S.C. § 46301 to change the civil 

penalty amounts the FAA may seek for violations that occur on or after December 12, 2003; 

the law sets different limits on the civil penalties the FAA may seek for violations by small 

business concerns, as opposed to violations by other entities. Vision 100 C/VRA gives small 

business concern the same meaning as in the 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 of operation." The Small Business 

Administration regulations implement the Small Business Act and define business concern as 

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10/01/07 2150.38 

"a business entity organized for profit, with a place of business located in the U.S., and which 

operates primarily within the U.S. or which makes a significant contribution to the U.S. 

economy through payment of taxes or use of American products, materials or labor." 13 

CF.R, § 121,105, The SBA regulations further define small business concern in tables, 

describing each kind of entity by its economic activity or industry, and listing the limit for 

small by annual receipts or, more commonly, number of employees. ( fhe size limits generally 

arc established under the North American Industry Classification System (NAICS)-) hor the 

complete list, see 13 C.F.R. § 121.201 or the SDA's website at www.sba.gov. Thus, if a person 

meets the definition of business concern and has annual receipts or the number of employees 

within the applicable SBA limit, it is a small business concern, and the FAA will determine ihc 

civil penalty using the applicable range. Limits for common aviation entities follow (in 

numbers of employees, unless otherwise noted). 

Manufacturing 

Aircraft- 1,500 employees 

Aircraft engine and pari • 1 ,OUU employees 

Other aircraft part and equipment - 1,000 employees 

Air transportation 

Scheduled passenger - 1,500 employees 

Scheduled freight - 1,500 employees 

Nonscheduled passenger - 1,500 employees 

Nonscheduled offshore marine passenger - S25.5 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 

Flight Training - $23.5 million annual receipts 

Airport operations 

Airport operator, organized for profit- $6.5 million annual receipts 

Other operations, excluding air traffic control - $6.5 million annual receipts 

Note that the following guidance uses large business concern for some civil penalty ranges. 

That is not a statutory or regulatory term for purposes of FAA enforcement. It includes each 

business concern that exceeds the maximum limit for small business concern, as well as any 

other entity that does not meet the definition of "small business concern." 

c. Civil Penalty Ranges. For the purpose of this table, when civil penalty action is 

recommended and described as Minimum, Moderate, or Maximum, the penalty ranges arc 

defined in subparagraphs (1) through (9) of this paragraph. Note that the middle of each 

recommended sanction range would be for a single violation without aggravating or mitigating 

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10/01/07 2150.3B 

(1) VIULAnON COMMITTED BY U.S. AIR CARRIERS OR U.S. CQMMFRCIAL 

OPFRATOR. 

CLASSIFICATION OF AIR CARRIER AND OPERATOR 

(iROUP I - Each air earner operating under part 121 or part 135, with an annual operating 

revenue of $100,000,000 Or more. Operating revenue is determined by reference to DOT'S 

"Air Carrier Industry Scheduled Service Traffic Statistics Quarterly." See 

lutp://ostDxwcb,dot,eov/aviatioii/index.html, and click on ".Airline Financial Review." 

GROUP II • l-.acli an canier or commercial operator operating under pan 121 with an annual 

opcr;ilin[j revenue nf less than $100,000,000, or under pan 135 with an annual operating 

revenue of ICJS ihan $ 100,000,000, if the 135 operator has 50 or more pilots and 25 or more 

aircraft on iis opcrHiions specifications. Operating revenue is determined by reference to 

DOT'S "Air Carrier Industiy Scheduled Service Traffic Statistics Quarterly." 

GROUP Ml - Fach air carrier or commercial operator operating under pad 135 with 6 to 49 

pilots or 6 to 24 aircraft, 

GROUP IV - r-ach air carrier or commercial operator operating under part 135 with no more 

than 5 pilots and no more than 5 aircraft 

GROUP 1 - large business concern 

Maximum $18.750-$25,000 

Moderate $10,000-$ 18,749 

Minimum $2,000-$9,999 

GROUP I - small business concern (for violations covered under 49 U.S.C. 

§ 46301(a)(5)(A)): 

Maximum $8,250-$ 11,000 

Moderate $4,400-$8,249 

Minimum $l,100-$4,399 

GROUP I - small business concern (for violations covered under 49 U.S.C § 46301(a)(1)(A) 

or (B) bul noi under 49 U.S.C. § 46301(a)(5)(A)): 

Maximum $850-$ 1,100 

Moderate $650-$849 

Minimum $500 $649 

GROUP II - large business concern: 

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10/01/07 2150.38 

11. All individuals and entities: Failure to Surrender Certificate, Authorization, or Other 

Approval. 

Fig. B-ll. 

1. L.S. AIR CARRIERS. U.S. COMMERCIAL OPERATORS, PART 125 OPERAIORS. AND 

PART 129 OPERATORS. 

FiR. B-l-a. Maintenance Manual 

(1) Failure to maintain current manual 

(2) I'ailure to provide adeqiiiiie 

instructions and procedures in 

manual 

(.\) Faijurc to distribtife nianvial lo appropriate personnel 

(4) Release ot aircraft without required eqviipiiieiit 

Civil Penalrj' 

Minimum 

Moderate H) Maximum 

Mmimum to Moderate 

Moderate lo Maximuin 

Fig. B-1-b. A/W Directive 

(1) Failure to comply 

Civil Penaltv 

Moderate to Maximum 

I'ig. B-l-c, Operations Spccincation.s 

(1) Exceed inspection or overhaul lime limitation 

(2) Operation contrary to ops specs • technical 

noncompliance 

(3) Operation contrary to ops specs likely poiential or actual 

adverse effect on safe operation 

Civil Penalty 

Moderate 

Minimum 

Moderate to Maximum 

Certilicate 

Action 

• " 1 

Up to 7-day 

suspension 

l.Jp to 7-day 

suspension 

Certificate 

Action 

Certilicate 

Action 

Up to 7-day 

suspension 

Fig. B-I-d. Facilities and Equipment 

(1) Failure to provide adequately for proper servicing, 

maintenance, repair, or inspection of facilities and cquipmcnl 

Civil Penalty 

Maximum 

Ccrtincate 

Action 

Indefinite 

Suspension 

until proper 

servicing, 

maintenance, 

repair and 

inspection of 

facilities and 

equipment is 

provided to 

Revocation 

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Fig. B-l-e. MaiDtcnance and Inspection Or|;anization 

(I) Failure to provide or maintain a maintenance and 

inspection organization 

Ci»il Penalty' 

Maximum 

Fig. B-l-f. Training Program 

(1) lailure to have (rainini; proeram 

(2) Failure to maintain training program 

(.1) Failure to train pefsoiuiol adequately 

Civil Penally 

Maximum 

Moderate ro MBximuni 

Moderate to Maximum 

Fig. B-l-h. Performance of Mainteaaocc 

(t) Dy unauthorized person 

(2) Failure to perform or improper niainienanec 

Civil Penalty 

Maximum 

Moderate to Maximum 

Fig. B-I-j. Record J and Reports 

(1) Deliberate violation 

(a) Intentionally false or fraudulent entry, 

reproduction, or alteration in record or 

report 

(b) Other 

Civil Penalty 

Certificate 

Action 

indel'initc 

Sij.^pcriiion 

until ^n 

appropriate 

maintenance 

and 

inspection 

organ i.?:al ion 

is provided ro 

Revocation 

Certificate 

Action 

Indefinile 

Suspen.sion 

until 

eompliaiiee 

(0 

Revoi;ali<5n 

Fig. B-l-g. Maintenance or Aircraft Papervfork 

(1) Incomplete or unsigned release 

(2) Failure to revise a/c data aAcr repair 

Civil I'enalty 

Minimum to Maximum 

Moderate to Maxitnum 

Certificate 

Action 

Certificate 

Action 

Fig.B-I-i. SFAR36 

(1) Failure to comply second offense 

Civil Penalty 

Maximum 

Certificate 

Action 

Ccrtincate 

Action 

Revocation 

[ RO-day 

Suspension 

to 

Revocation 

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10/01/07 2150.3B 

Fig. B-I-j. Records & Reports cont. 

(2) Failure to make accurate mechanical interruption summary 

report 

(.1) Failure to make available report ol'major aheraiion or 

repair 

J 4 ) Failure to make accurate mechanical reliability rcpon 

(.5) Failure to make reqtiired entry m aircraft log 

(6) Failure to make available pilot record 

(7) Failure to make available load manifest 

(8) Failure to monitor and record enroute radio coitununication Moderate to Maximum 

Civil Pcnalry 

Moderate to Maximum 

Moderate to Maximum 

Moderate to Maximum 

Minimum to Maximum 

Moderate to Maximum 

Moderate to Maximum 

Fif;. B-l-k. Dispatch and Flight Release Rules 

(1) Any violation of subpan U of 14 CFR part 121 

Civil Penalty 

Moderate to Maximum 

Fig. B-1-I. Operation of unairwortliy aircraft 

(I) Technical non-conformity to TC; no likely effect on safe 

operation 

(2) Non-conformity To TC that may have, or ha."i. adverse 

effect on safe operation 

(3) Release of aircraft without required equipment 

Civil Penalty 

Minimum 

Moderate to Maximum 

Moderate to Maximum 

Certificate 

Actirtn 

Indefinite 

Suspen.sion 

lo 

Revocation 

Inde finite 

Su.spension 

lo 

Revocation 

liidefiniie 

Suiipcnsion 

to 

Revocation 

Certificate 

Action 

Certificate 

Action 

Up to 7-day 

suspension 

Fig. B-l-m. Provisions specific to passenger-carrying 

1(1) Boarding, or serving alcoholic beverage to, a person who 

appears to be intoxicated 

(2) Failure to brief passengers 

(3) Failure to ensure seat and bell for each passenger 

(4) Operation w/o operable public address sy.slcm 

(5) Failure to store bagRafte properly 

Civil Penalty 

Maximum 

Moderate to Maximum 

Maximum 

Maximum 

Moderate 

Certificate 

Action 

1 Fig. B>I-n. Provisions specific to (light deck crew 

(1) Use of crcwmember with expired medical certificate 

(2) Failure to make flight deck seat available to authorized 

enroute inspector 

Civil Penalty 

Minimum to Moderate 

Maximum 

Certificate 

Action 

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Fig. B-l-n. Provi$ions specific to Might deck crew cont. 

(3) LLse of unqualified crewmember 

(4) Flight and Duty Time violation 

Fig. B-I-o. Other provisions 

(1) Improperly Returning Aircraft t(i service 

(2) Illegal carriage of controlled substance with knowledge of 

carrier, that is, knowledge of, or iiivolvcmcni in, conduct by 

top manat;ement personnel 

(J) Use ofunqLialiCicd persoiuiel other than flight deck 

crewmember 

Fig. B-1-p. Operations at airport.s requiring slots 

(1) Operation wiihoui a reservation from A TC 

(2) Operation with a rcscr^-ation, hut at the wrong time 

(3) Use of intcinaiional slot for domestic flight 

(4) Use of aircraft not meeting criteria in 

14 CF.R, § 9-T.123(cK2) in commuter slot 

Civil Penalty 

Maximum 

Moderate 

Civil Penalty 

Maxitnum 

Maximum 

Civil Penalty 

Moderate 

Moderate 

Moderate 

Moderate 

Certificate 

Action 

Certificate 

Action 

Revocation 

Certificate 

Action 

2. PERSONNEL OF AlR CARRIERS. COMMERCIAL OPERATORS, AND PART 125 

OPERATORS. 

Fig. B-2-a. Maintenance, including inspection 

(1) Performing maintenance without certincate, rating, or 

authorization 

(2) Performing maintenance that exceeds limitations 

(3) Failure to perform mainienanee properly 

Civil Penalty 

Maximum 

Certificate 

Action 

30-to 45-day 

Su,spension 

30- to 120-

day 

Suspension | 

1 Fig. B-2-b. Inspection 

1(1)' Failure to make required inspection 

(2) Making improper inspection 

(3) Improper relea.se of aircraft to service 

(4) Releasing aircraft for service without required equipment 

Civil Penalty 

-

Certificate 

Action 

30-to60-.day 

Suspension 

30- to 120-

day 

Suspeiisi(.)n 

30 to 60-day 

Suspension 

30 to 60-day 

Suspen.sion | 

B-15 
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AIRLINE 

QUARTERLY 

FINANCIAL 

REVIEW 

FOURTH QUARTER 2009 

MAJORS 

Pi I 

•'! -N 

I \ I ; ; 1 

,; . m ,,,,1,,, , , , 

• '• I M 

( 

.n_n. 

• i i I 

r,- ( 

\ .,' 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF AVIATION ANALYSIS 

COMPETITION AND POLICY ANALYSIS DIVISION 

EXHIBtL 3 
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TABLE OP COMTBMTS 

De.tiC-RIPTION PAGE 

introduocjon 3 

Total Syscera Passenger & All-Cargo Majors -i 

Chare 1 Operating and Net Pro£it (Loss) Fourth Quarter 2009 i 

Chart 2 Operating and Net Profit (Lose) 

12 Moiitho Ended Fourth Quarter 2009 7 

Chare 3 Operacing Profit (Loss) By Quarter 9 

Chart 4 Net Income (Loss) By Quarter 8 

Chart 5 Operating Profit (Loss) By 12-Month Ending Periods 9 

Chart 6 Net Income (Loss) By 12-Month Ending Perioda 9 

Chart 7 Operating Revenue Per Revenue Ton-Mile 

Percent Change From Same Peri r>d A Year Earlier 10 

Chart 8 Ton ijoad Factor Percentage Point Change From Year Earlier... 10 

Chart 9 Operating Expense Per Revenue Ton Mile, 

Percent Chuiiyc From Same Period A Ifear Earlier 11 

Chart 10 Operating Expense Per Available Ton-Mile, 

Percent Change Prom Same Period A Ytar Earlier H 

Total Paasenger Majors 12 

Chart 11 Passenger Revenues Per Revenue Passenger-Mile, 

Percent Change From Same Period A Year Earlier 15 

Chart 12 Revenue Passenger-Miles, 

Percent Change Prom Same Period A Year Earlier IS 

Chart 13 Available Seat-Miles, 

Percent change Krom ijame Period A Year Earlier 16 

ChaiT. I'I Passenger Load Factor, Percentage 

Point Change From Same Period A Year Earlier 16 

Chart 15 Passenger (RPM) Yield T/ 

churL 16 PaG^enger Load vactor 17 

AirTran, Inc 16 

Alaska Airlines, Inc 19 

American Airlinua, Inc 20 

American Eagle, Inc 21 

Atlantic Southeast Airlines 22 

Coiiuii, Inc. 23 

Continental Air Lines, Inc 24 

Delta Air Lines, inc 25 

ExpressJct Airlines 26 

Frontier Airlines 27 

JetBlue Airways 28 

Meoa Airlines, inc 29 

Northwest Airlines, Inc 30 

Slcywest Airlines Co 31 

.Southwest Airlines Co 32 

US Airways, inc 33 

United Air Lines, Inc 34 

Total All-Cargo Majors 35 

Federal Express Corp 33 

United Parcel Service 39 

Compari:jOn of Individual Major Operating Profit (Loss) 40 

Comparison of individual Major Net income (Lo.?.?) ^i 

Comparison ot Individual Major Scheduled Passenger Load Factor 42 

Comparison of Individual Major Scheduled Passenger Yield 43 

Comparison of individual Major Operating Profit Margin 44 

Comparison ot Individual Major Debt To Investment Ratio and Total Debt .. 4 5 

Footnotes 4 6 

Explanac ion of Line items 4 7 
05/05/2010 16:26 FAX 2024935142 FAA * DMS I2|019/031 

INTRODUCTION 

This report contains staff comments, tables and charts on the financial condition of the U-S, 

major aiflines. 

The data are presented on both a carrier group and an individual carrier basis, but the primary 

focus IS on the individual major carrier and its performance. Data are presented for the most recent 

quarterly period and the comparable quarter a year earlier and also on a 12-rT\onth ended basis as at 

the end of the five most recent quarters, In addition, data on charges over comparable periods 12-

months earlier are presented- A graphic presentation of comparative trends, on a carrier group basis, 

is made for several unit and overall financial indicators. In the case of merged carriers, data for the 

carriers involved have been comtined and presented under the name of the surviving carrier so thai 

meaningful comparisons couid be made. 

Ail data presented in this financial and traffic review are derived from data reported to the U,S. 

Department of Transportation on Form 41 Schedules by Large Certificated Air Carriers, For 

comparison purposes, this analysis is limited to the major scheduled passenger and all-cargo air 

carriers only. Alaska Airlines, with revenues exceeding $1 billion In calendar year 1995, became a 

major airline effective January 1,1996, and is now/ Included in this review. All financial and traffic 

results have been retroactively restated to include the operations of Alaska. Certain daia in this revievi/ 

is classified in two broad categories: namely "domestic" and 'Internatlonar, "Domestic" 

encompasses operations within and between the 50 states of the United States, the District of 

Columbia, the Commonwealih of Puerto Rico, and the U.S. Virgin Islands. It also encompasses 

Canadian transborder operations and for certain carriers Mexican transborder operations. All other 

operations are considered "international", which is separated into Atlantic, Latin, and Pacific, 

Suggestions from users for the improving either the scope, presentation, or utility of this review 

are invited. It will also be appreciated if suggestions, discrepancies, and errors In the data are called 

to the attention of the Economic & Financial Division, Office of Aviation Analysis, Office of the Secretary, 

U.S. Department of Transportation, Washington, 0,C. 20590. 
05/05/2010 1G:27 FAX 2024935142 FAA •>• DMS 13020/031 

QUARTERLY FINANCIAL & TRAFnC REVIEW 

SYSTEM OPERATIONS 

AirTran Airways 

ITEMS 

FINANCIAL RESULTS: (SMHHons) 

Operating Revenues 

Operating Expenses 

Operating Profit (Loss) 

N«t Ineome (Loss) 

TRAFFIC: (Bllionsl 

RPMs • Schadulfld Svc. 

ASMS - Scheduled Svc. 

Overall RTMs (All Svc.) 

Overall ATMs (All Svc.) 

YIELD & UNIT COST & PROFITS: (Cents) 

Operating Revenue per RTM 

Operating Expense per RTM 

Operating Prrjfit (Loss) par RTItl 

Operating txpanse per ATM 

Passenger Revenue par RPM 

FINANCIAL RATIOS: 

QUARTER ENDED 

2009/12 2008/12 

596.4 

572,3 

26.1 

17.1 

4.5 

5,8 

0.5 

0.7 

132.7 

127,0 

5.8 

B5.3 

11.86 

Operating Revenues to Total Investment 

iimuii Interest Earned 

Current Assets to Current Liabilities 

No of Days Cash Coverage of Cash Exp. 

FINANCIAL PERCENTAGES.-

Oparaiing Profit (Loss) to Operating Revenui 

Net Income to Stockholders Equity 

Corporate Return on Invesiment 

Debt to I'uLiii Investment 

PASSENGER LOAD FACTOR; (Sch. Svc. %) 

589.4 

534.6 

54.9 

-118,4 

4.2 

5.3 

0.4 

0.6 

140.7 

127.6 

13.1 

86.4 

13.13 

12 MONTHS ENDED 

2009/12 2009/09 2009/08 2009/03 2008M2 

4.4 

Actual 

Breakeven 

Etnplovmanl & Prnductivltv: 

Employment, Total Weighwd Avg CY 

Overall K(tA's par Employee (OOP) 

77.7 

73,6 

7.801 

57,6 

9.3 

2,341.4 

2,164.4 

177,0 

134,7 

18.5 

23,3 

1.9 

2.7 

126.5 

116.9 

3.6 

80.3 

11.25 

1,57 

2.65 

1.04 

103,2 

7.6 

36.85 

14.5 

/0.7 

78,1 

69.5 

7,387 

56.7 

79.5 

72.1 

7,898 

234.4 

2,332.4 

2,126.7 

205.8 

-0.6 

18.2 

22,8 

1,8 

2.8 

126.2 

116.9 

11 

ao.5 

11.53 

1.61 

1.05 

0,32 

81.4 

8,8 

-0.23 

5.4 

72,8 

79.6 

71.0 

7,795 

233.4 

2.408.3 

2.285.7 

122.6 

-116,3 

18.2 

22.9 

1.8 

2,7 

132.1 

125.3 

6.7 

86.2 

12,06 

1.61 

0.06 

0.03 

74.6 

6.1 

-32.21 

0.2 

72.1 

79.6 

747 

7.765 

234.9| 

2,498.0 

2,467.1 

10,9 

-210.3 

18,5 

23.3 

1.9 

2.7 

134.9 

134.3 

0.6 

92.0 

12.53 

1,65 

-1.77 

0.85 

70,9 

0.4 

-56.97 

-8,9 

77.8 

79.2 

78,7 

7,812 

237,0 

2,552.5 

2,624,5 

-72.0 

-273.8 

18.7 

23.8 

1.9 

2.8 

135.9 

139.7 

•3.8 

95.3 

12.78 

1.67 

-3.13 

0.82 

59,6 

•2.8 

-69.06 

-13.3 

82.0 

78.9 

815 

7,906 

237.7 

26 

27 

28 

29 

30 

31 

32 

33 

Operating Pavenues (%) 

Operating Expenses (%) 

Operating Profit (Loss) (in Millions S) 

Net Income (Loss)(in trillions $) 

RPMs (Sch. Svc.) ("/.) 

ASMS (Sch. Svc) (%) 

Operating Revcnuas per RTM (•/.) 

Operating Expense per RTM (%) 

Passunger Revenue per RPM (Sch. Svc.)(% 

CHANGE OVER COMPARABLE PERIOD 12 MONTHS EARLtER | 

1.5 

7.1 

-28.8 

1355 

7.6 

8.4 

-5,7 

-0.5 

-9.7 

1.0 

-6.0 

40.0 

-116.2 

-2.9 

•6.7 

3,6 

.3.4 

2.2 

-8.3 

•17.5 

249.0 

408,5 

•1.4 

•2.1 

-6.9 

-16.3 

-12.0) 

-a.4 

-20.0 

317,7 

1S6.8 

-3.8 

-5.5 

-4,8 

-16.9 

-9,3 

•3.0 

-8,9 

150.0 

-78.4 

•1.5 

•4.6 

-1.5 

-7.5 

-5.2 

4.0 

7,5 

'77.7 

-224.9 

3.0 

0.4 

1.1 

4.5 

-1.5 

10.6 

20,8 

•208.8 

-325.4 

8.8 

4.7 

1,9 

11.4 

0.4 

18 
05/05/201 0 1G:2 7 FAX 202493514 2 FAA •>• DMS @1021/03 1 

10/01/07 2150.3B 

Chapter 7. Sanction Guidance Policies 

1- Purpose. This chapter provides ihe FAA's policies for dcicrmining an appropriate sanction 

once FAA enforcement pcrsonniil decide that legal enfoiccmeni action is appropriate. This chapter 

contains the getieral policy the FAA intends to apply in selecting the types of banciion.";, ranges of 

sanctions within tho.se types, and specific sanction amouni.'; to impose in legal enforcement actions 

for typical violations of the FAA's statute and regulations This guidance covers the piiramcters 

both for selecting sanctions and for modifying sanctions during the informal procodtircs. The 

guidance in this chapter is applied in adjudications under 49 U.S C. §§ 44106, 44709, 44710, 

44726, 44924, 461 I 1, 46301, arid 70115. Hazardous material."; sanction guidance and policies tire 

addressed in Appendix C. 

2. General Guidelines. 

a. Certificate Suspension Action and Civil P«nal(Y Action: Sanctions for Punitive and 

Deterrent Purposes. 

(1) General. If a certificate holder improperly exercises the privileges of a certificate, a 

natural conseciuencc of thai act is to lose the privileges for a period of time commcnsuraic with 

the violation. Balanced against this principle, however, the FAA considers the adverse impact 

that a certificate suspension could have on the public. Thus, the agency generally suspends the 

certificates of individual certificate holders for violations. However, the FA A tisualiy takes civil 

pcrialty action against air carriers and airports because such actions do not disrupt service, which 

may adversely affect the public. Nevertheless, when the FAA determines that safety 

considerations warrant it, the agency will suspend the cenificatc of any type of certificate holder. 

In no case will the FAA take civil penalty action alone when remedial legal action is necessary 

or appropriate. 

(2) Use of both punitive certificate action and civjl penalty action for the same 

violations. The FAA generally does not take civil penalty action and punitive certificate action 

(that is, certificate suspension for a fixed period of lime) against a certificate holder for the same 

conduct, [f unusual circumstances warrxint deviation from this practice, legal counsel consult 

with the Assistant Chief Counsel for Enforcement (AGC-300) before initiating the actions. 

(3) Change in type of proposed sanction. The initial enforcement action reflects the 

agency's best assessment of the appropriate sanction for the violations alleged. After initiating 

the action, legal counsel ordinarily does not change the type of sanction unless additional facts or 

circumstances are presented to the FAA that warrant a change. If tlie action was coordinated 

under chapter 6, paragraph 3, with AGC-300 before initiation, then legal counsel coordinates any 

change in the type of sanction with AGC-300 before making the change. 

b. Legal Sanctions for Remedial Purposes. 

(1) Indefinite certificate suspension pending compliance or demonstration of 

qualification. Suspension action is appropriate where there is a need temporarily to 

7-1 

EXHIBIT 
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suspend the privileges of the certificate or rating pending demonstration of qualification or 

compliance with statutory or regulatory requirements. FAA generally uses remedial suspension 

when an individual does not voluntarily surrender his or her certificate pending reexamination. 

5«'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 

of the privileges of llie certificate in such circumstances would be contrary to safely in air 

commerce or air transportation and the public interest. Revocation is appropriate whenever a 

certificate holder's conduct demonstrates a lack of the technical proficiency or a lack of the 

degree of care, judgment, or responsibility, required of ihc holder of such a certificate. Orders of 

revocation arc issued on an emergency basis when the certificate holder lacks qualification and is 

reasonably able as a practical matter to exercise the privileges of the certificate. Legal counsel 

docs not allege a lack of qualifications lo avoid dismissal of charges under 49 C,F,R. § 821.33, 

the NTSB's stale complaint rule. 

(3) Ccrtificaie revocation - individuals. The FAA generally revokes an individual's 

certificate or rating whenever he or she demonstrates a lack of vvjUingncss or ability to compily 

consistently with statutory or regulatory requirements. A lack of willingness or ability to comply 

may be demonstrated by such things as repeated or deliberate violations or by violations ihai 

involve grossly careless or reckless conduct Hvcn a single violation may he .sutficiem to warrant 

a conclusion an individual lacks qualification.s. The FAA ordinarily revokes all certificates of a 

person who commits a vjohiion involving intentional falsification. 

(4) Certificate revocation - entities. Revocation is normally appropriate when a 

certificate-holding entity deliberately or flagrantly violates the statute or regulations or falsifies 

records. Revocation also is generally appropriate when the certificate holder has committed the 

same or similar violations in the recent past demonstrating a lack of qualification, or when the 

certificate holder no longer has, and does not obtain in a reasonable time, the personnel or 

equipment to conduct ik operation in full compliance with statutory and regulatory requirements. 

(5) Mandatory certificate revocation. Under 49 U.S.C. § 44710, the FAA is required to 

revoke the certificates of any airman who has been convicted of violating certain federal or state 

statutes relating to a controlled substance when an airplane was used in the commission of the 

offense and the airman served as an airman, or was aboard the aircraft, in connection with 

commission of the offense or the facilitation of the commission of the offense. Even when there 

has been no conviction, revocation is required when an airman has knowingly carried out an 

activity punishable under these criminal statutes. The Administrator may waive the revocation if 

a law enforcement officer requests the waiver and the Administrator decides the waiver will 

facilitate law enforcement purposes. See 49 U.S.C. § 44710(f). Under 49 U.S-C. § 44106, the 

FAA also must revoke the registration certificate of any airplane used in the commission of such 

an offense when the use was permitted by the owner of the aircraft with knowledge that it would 

be used for such purpose. Under 49 U.S.C. § 44726, the FAA must revoke the certificates of any 

certificate holder or an individual who has a controlling or ownership interest in the holder who 

was convicted of a violation of federal law relating to the installation, production, repair, or sale 

of a counterfeit or fraudulently-represented aviation part or material or knowingly, and with the 

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inicm to defraud, carried out or facilitated an activity punishable under .such a law. The 

Administrator may waive that sanction to facilitate law enforcement purposes or amend, rather 

than revoke, a certificate under certain circumstances. Sed 49 USC, §§ 44726(f) and (g), 

(6) Mandatory certificate action for security concem.s. Under 49 U.SC § 46111, the 

Admiuistnuor is required to issue an order amending, modifying, suspending, or revoking any 

FAA-issocd certificate if the Administrator is notified by the Under Secretary of Border and 

Transporiation Security (BTS) of the Department of Homeland Security (DHS) that the 

certificate holder poses, or is suspected of posing, a risk of air piracy or terrorism or a threat lo 

airline Or passenger safety. Under 49 US.C. § 44924, the Administrator is required, ai the 

request of the Under Secretary of BTS, to suspend or revoke foreign repair station certificates in 

connection with security audit.s. 

3. Applicability and Exclusions. The .vanclion guidance table (table) in Appendix B provides 

types of .sanctions and general ranges of ."sanction amouius for violations of 49 U.S.C. subtiik vii 

and 14 C.F.R. parts 1.-199 and 49 U.S.C Subtitle IX, chapter 701 and I4C.F,R chapter 111 

Once [he agency has determined that legal enforcemeni action is warranted for a violation, FAA 

enforcement personnel use the table and paragraph 4 of this 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. arc some types of agency action that fall out.side ihc scope of 

paragraph 3 and the table. 

a. Decisions to Take Administrative Action (Warning Notices or Letters of 

Correction). An administrative action does not constitute cidier a fonnal adjudication of the 

incident or a finding of violation. For that reason, FAA investigative personnel do not propose a 

sanction using the table. 

b. The FAA's Exercise of Prosecutorial Discretion. The decision whether to prosecute a 

particular case is based on a review of the evidence and relevant policy 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 FAA's discretion in these areas is absolute and presumed to be 

immune from review. Heckler v. Cheney, 470 U.S. 821, 831 (1985). 

c. Hazardous Materials Violations. Actions involving violations of the federal hazardous 

materials transportation law, 49 U.S.C. chapter 51, or the Department of Transportation's 

Ha73rdous Materials Regulations, 49 C.F.R. parts 106 through 185. Enforcement sanction 

guidance for these violations is found in Appendix C. 

d. Violations by Members of the U.S. Armed Forces- The FAA is required to forward 

reports of these violations to the Secretary of the department concerned under 49 U.S.C. 

§ 46101(b), whenever the violator is acting in the performance of official duties. The FAA, 

however, takes remedial action in addition to referring a report when the violator, whether or not 

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acting in the pcrfonnancc of official military duties, holds an FAA certificate, and the violator's 

qualifications are at issue. The FAA may take punitive action against a member of the US, 

Armed Forces for a violation committed when the member is not performing official duties, 

4. Mitigating or Aggravating Factors and Elements, The factors in chapter 7, .subparagraphs 

4,H, through m. have been developed over years of policy making and case adjudication. They 

have proven useful and appropriate for determining the seriousness of a violation and for 

selecting an appropriate sanction. Flcmenis for evaluating and weighing each factor arc also 

described. These factors and elements provide a framework for determining sanctions for 

violations specifically listed in the table as well as those not specifically listed. All the factors 

and elements, however, may not apply to each violation. Only those 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 of the Violation. Three elcnionis define the nature of a violation: first, whether 

the violation was operational or non-operational; second, whether the violation involved careless 

or reckless conduct; and third, whether the violation involved any special aggravating or 

mitigating factors. 

(1) Individuals. When an individual who holds a certificate improperly exercises (he 

privileges of that certificate, the natural consequence of that act should be loss of privileges for a 

period of time commensurate with the violation. The FAA, therefore, primarily uses certificate 

actions to enforce operational regulations against individuals who hold cenifieatcs. The 

potential adverse impact that certificate action may have on an individual's livelihood does not 

alter this principle. Non-operational violations may warrant a different type of sanction. 

(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 on the 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 conduct by any 

certificate holder, when any certificate holder lacks qualification, or there is a reasonable basis to 

question the qualifications of any certificate holder, the FAA lakes remedial action, for example, 

revocation or indefinite suspension, as necessary. 

(3) Careless or reckless conduct. Violations that involve careless or reckless conduct in 

violation of 14 C.F.R. §9113 may warrant more severe sanctions. Carelessness connotes 

conduct that falls below the standard of care or prudence expected of a reasonable person, or 

holder of the relevant certificate, acting under the same or similar circumstances. Recklessness 

connotes conduct that demonstrates a gross, or even callous or fiagranl, disregard for safety. 

Aircraft operations that do not otherwise result in a violation of a specific regulation should be 

evaluated in light of these standards to determine whether they constitute careless or reckless 

operations in violation of 14 C.F.R. § 91 13. When a person operates an aircraft in violation of a 

specific regulation other than 14 C.F.R. § 91.13, however, that violation constitutes acarcless or 

reckless operation in and of itself In tlicsc cases, the misconduct may also result in a violation 

of 14 C.F.R. § 91.13 if if actually or potentially endangers the lives or property of others. 

7 ^ 
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When calculating the amount of sanction based on this 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 another violation. When a 14 C.F.R. § 91.13 violation is residual only, a higher 

sanction generally is not warranted unless the conduct is also reckless 

b. VVhether the Violation was Inadvertent and Not Deliberate. If a violation i.s 

deliberate or not inadvertent, a sanction at the upper end of the range or exceeding the range for 

thai lypc of violation generally is appropriate. A deliberate violation generally warrants a 

.sanction that is more severe than one that is jusi not inadvertent. 

(1) Not deliberate. This clement means a lack of the degree of deliberation found in 

inieiuional misconduct. Deliberate or intentional misconduct is an aggravating circumstance and 

includes deliberate conduct that leads to a violation a.s well as eireumstanecs indicating intent to 

commit y violation, 

(2) Inadvertence. An act is inadvertent when it is the result of both inattention and lack 

of purposeful choice. For example, an inadvertent act occurs when a pilot flics at an incorrect 

akitude because he or she misread the aircraft's instruments; however, it is not an inadvertent act 

when a pilot flies at an incorrect altitude as a result of choosing not lo consult the aircraft's 

instruments or choosing not to use other available meaiis to verify altitude. The lest to be ap[)lied 

is whether the conduct, not the factual or legal consequences, is inadvertent and unintended. 

Ferguson v. National Transportation Safety Board. 67K F.2d 821, 82X-829 (9th Cir 1982). 

c. Certificate Holder's Level of Experience. 

(1) Level of experience refers primarily to the type of certificate and ratings held (for 

example, student, private, commercial, airline transport pilot, or certified flight instructor), and 

the number of hours flown, by the 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 than private pilots and airline transport pilots may be held to an even higher 

standard than commercial pilots. 

(2) In determining an appropriate sanction, the FAA may consider the extent to which 

the certificate holder's action deviated firom the degree of care and diligence normally expected 

of a person with the certificate holder's level of experience. A significant deviation from the 

degree of care and diligence expected of the holder of that certificate may warrant a more 

aggravated sanction. 

d. Attitude of the Violator. 

(I) A good compliance attitude is the norm and docs not warrant a reduction in sanction. 

A prior violation history may suggest that 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 adminisimtive action 

or counseling that such conduct is in violation of those requirements might well be regarded as 

having a poor compliance disposition. In evaluating compliance disposition, the FAA does not 

7-5 
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10/01/07 2150.3B 

view an alleged violator as having a poor attitude because the alleged violator fails lo respond lo 

a letier of investigation, chooses to be represented by counsel, or contests the violation. 

(2) In assessing the attitude of an alleged violator, the FAA may consider the declaration 

of an emergency lo air traffic conu-ol. When an emergency is genuine and not of the person's 

own making, the emergency is exculpatory under 14 CF.R. § 91.3(b). However, this situation is 

distinct from the situation where a declaration of emergency is not exculpatoiy but is a factor that 

might be appropriate to consider in determining sanction. In emergency situations, the FAA 

views declaring an emergency lo air traffic control as a sign of good judgment and a constructive 

attitude. When an emergency is of a person's own ntaking, that person's declaration of an 

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 if a person voluntarily 

reports a violation, 

c. Degree of Hazard. 

(1) rhe degree of ha,£ard may be increased as a result of the interplay of the operational 

environment (for example, weather conditions, congested vs. sparsely populated areas) and the 

nature of the threat lo safety (to the life or property of another, including those in the aircraft 

being operated, to other aircrafi, or to persons or property on the surface) that the misconduct 

presents. The safety threat is ba.se«l on ihe reasonably foreseeable consequences of the 

misconduct. For example, operating 500 feet below the minimum altitude poses a greater hazard 

than operating 100 feci below. Similarly, if an aircraft operator fails to comply with an 

airworthiness directive by operating 10 hours past a required inspection, the degree of hajjard is 

probably not as great as when the aircraft is operated 100 hours beyond the required. And it is 

not mitigating when a violation docs not result in actual harm; that is simply fortuitous. 

(2) The sanction ranges reflect the degree of danger normally inherent in an average 

violation of a regulation, without aggravating circumstances. As discussed in chapter 7, 

subparagraph 5.b., an increase in the degree of hazard 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 Other Authority. This factor ordinarily involves the 

following elements: whether the alleged violator's employer has taken disciplinary action and 

whedicr criminal prosecution is involved. 

(1) Employment discipline. Where the violation would normally call for a certain type 

of enforcement action, the FAA takes that action regardless of any action taken by the violator's 

employer. Generally, the FAA does not credit an employer's disciplinary action toward a period 

of suspension the FAA imposes against the violator's certificate because of the different 

purposes of government-ordered, as contrasted with employer-ordered, actions. 

(2) Criminal prosecution. When arising out of the same conduct, local, state, or federal 

jjrosccution does not preclude the FAA firom taking appropriate remedial enforcement action; nor 

7-6 
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does it preclude ihe FAA from taking appropriate punitive enforcement action. For cases where 

federal, state, or local authorities prosecute criminally, the FAA generally docs take remedial 

enforcement action if ihat is warranted despite the criminal prosecution. However, the FAA docs 

not generally take punitive legal enforcement action for the .same conduct, unless it believes the 

criminal sanclions arc not sufficient to provide an adequate deterrent for future violations by the 

violator atid others similarly situated, or when the b^A wants to establish a violation histor>' 

record. If the FAA decides to proceed with a punitive civil enforcement action in addition to the 

criminal prosecution, it generally considers the cnminal penalties incurred in those proceedings 

in determining the appropriate amount of sanction to be sought in the FAA's putative 

enforcement action. 

g. Use of a Certificate. This factor relates to the nature or kind of activity or operafion 

involved at the time the violation was committed. Whether the certificate holder was engaged in 

student, private, commercial, or airline activity bears on the severity of the sanction Air carriers 

are held to the highest standard of care Likewise, personnel engaged in air transportation are 

held to the highest safety .standard. 

h. Violation History. 

(1) A violation-fi-ee history is the expected norm, not the exception and, therefore, is not 

a mitigating factor. Sanction ranges in the table generally represent the normal range of sanction 

for a single, first-time, inadvertent violation. Given the expected norm, a prior violation record 

can be evidence of a poor compliance disposition or of a pattern of disregard for ihe FAA's 

regulations, which are aggravating factors. As a result, a violation history can justify imposing a 

sanction at the higher end of the normal range or a sanction beyond the normal range. It might 

also justify revocation rather than suspension if the pattern of violation reflects a lack of 

qualification. In addition, a violation history might justify a certificate suspension if previously 

issued civil penalties have not produced the desired deterrent effect. In deciding whether a 

violation history justifies aggravating the sanction or changing the usual type of sanction, the 

FAA consideni the length of lime thai has elapsed between violations, 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 final; orders of amendment, modification, suspension, or revocation of an 

FAA certificate; orders assessing a civil penalty; findings of violation contained in a consent 

order, order of compliance or denial; and findings of violation made by a federal court. In 

addition, a party may agree as part of a settlement that the FAA may consider alleged violations 

as findings of violation for future sanction determinations. 

i. Decisional Law. Decisions of the FAA decisionmaker represent the FAA 

Administrator's position on issues arising in civil penalty assessment actions, including issues 

regarding sanctions. The policy in this order also represents the Administrator's po.sition 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 

in Ihis order supersedes those deci.sions. However, FAA decisionmaker decisions published after 

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the issuance of this document that conflict with the policy in this order supersede this documcni 

and arc controlling, 

j . Ability to Absorb Sanction. Sanctions should be dcicrrenl. While punitive sanctions 

should not be unduly harsh, ilicy should be substantial enough to prevent violators from profiling 

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 of doing business. Air carriers, 

in particular, are required by law to have the financial wherewithal to operate according lo 

established safety standards. While the FAA docs not allow financial circumstances to excuse 

any violation, it does consider a carrier's size and financial strength in choosing the appropriatesanction amount. The difference in the penalties fixed in the law for large aiid small business 

concerns recognizes this fact. A civil penalty that may be a mere cost of doing business- to a 

major air carrier might compel a small air carrier to go out of bu.siness. Therefore, the FAA uses 

air carrier size as one means of ensuring a relatively equivalent deterrent effect on each air 

carrier that violates the same FA A regulation. The resultitig classification of air carriers by si^e 

and ranges of civil penalties are set fonh in pan one of the table. For all cniiiies and individuals, 

the FAA 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 of Sanction. One of the agency's goals is to achieve relative consistency in 

imposing similar sanctions for similar violations. The FAA pursues this objective to a.ssurc 

fairness and so the sanction'.s impact has an equivalent degree of deterreni or diseiphnary value 

to others similarly situated. This goal may not always be achieved, however, because of the 

inherently subjective nature of the exercise of judgment in setting sanctions. 

I. Whether the Violation was Reported Voluntarily. 

(1) The FAA has programs that allow persons to report voluntarily apparent violations 

and receive lesser enforcement action provided certain criteria arc met. These programs include 

the aviation safety reporting program, the voluntary disclosure reporting program, and the 

aviation safety action program. Besides these programs, the FAA may grant special enforcement 

consideration under ceruin circumstaiices to a person who, incident to his or her report of 

another's violations, voluntarily discloses his or her own participation in the same or related 

violations. This special enforcement consideration may range from mitigating the sanction to 

determining that no enforcement action is required. 

(2) If a person is not covered under one of these programs but nonctliclcss voluntarily 

reports an apparent violation to the FAA before the FAA discovers it, takes imniediaie action to 

correct the noncompliance, and works with the FAA on steps to preclude recurrence of die 

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 cortective action exceeds the minimum regulatory or statutory 

requirements. The amount of credit given in setting a sanction depends on tlic extent and timing 

of the corrective action, that is, how extensive was the corrective action and how quickly was il 

taken. Implementing new procedures that are above those required under the FAA's regulations 

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to prevent fiirure violations ordinarily is considered a mitigating factor in determining an 

appropriate sanction. Corrective action taken after the alleged violator first becomes aware of a 

deficiency but before FAA discovery of the violation ordinarily warrants greater mitigation than 

corrective action that is taken only after the alleged violator receives notice of the FAA's 

enforcement action. (?orrective action taken by an alleged violator that simply brings that person 

into compliance with the statutory or regulatory requirements is not considered in mitigation of 

sanction. To mitigate a .sanction based on such corrective action would put at an economic 

disadvantage competitors who have expended the resources necessary to maintain compliance. 

5- Use of the Table of Sanctions. 

a. General. Sanction detcmiinations arc not accomplished through a strict malhemalical 

formula; rather, sanction determinations result from a judgment of where a case lie.^ along a 

spectrum of gravity. Ullimalely, the cireum.stanccs of each case arc evaluated in icnns of the 

needs of safely and the public inicie.st. 

I). Single, First-time, Inadvertent Violations. 

(1) Pan 11 of the table specifies both the normal types of sanction (certificate action, civil 

penalty action, or other type) and the normal ranges within those types the F/\A ordinarily seeks 

to impose in a legal enforcement action for a single, first-time violation that is generally 

inadvertent (the table includes range.s of .sanctions for several violalioii.s that usually are 

intentional, for example, interference with a crewmember, smoking on an aircraft). In addition, 

the table generally reflects a presumption thai the alleged violator wants to comply with the law 

and to remedy any noncompliance and that the alleged violator, therefore, has a constructive 

attitude. 

(2) For factors b, d, or h of paragraph 4 (that is, inadvertent and not deliberate conduct, 

altitude, and violation history), the FAA docs not normally deviate from the ranges listed in the 

table solely based on the inadvertence of the violation or on die alleged violator's good 

reputation, past public service, violation-free history, or constructive attitude. Any mitigating 

circumstances are to be found in the facts and circumstances of the 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, c, f, g, i, j , k, and m of 

paragraph 4 (that is, nature of the violation, level of experience, degree of hazard, action by 

employer or other authority, use of certificate, decisional law, ability to absorb sanction, 

consistency of the sanction with similar cases, corrective action), to the extent they arc applicable 

or relevant. When determining a specific sanction amoimt within a range, FAA enforcement 

personnel begin with an amouni in the middle of the range and increase that amount toward the 

higher end of the 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 

below the normal ranges based on justifiable mitigation under factors j , I, and m of paragraph 4 

(that is, the ability to absorb the sanction, voluntary reporting, corrective action). The FAA may 

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impose .sanctions above the nortnal ranges when the following circumstances, relating to factors 

b, d, e, and h of paragraph 4 are present: the violation is other than inadvertent^, the violator has 

a violation history, the violation involves a significant degree of hazard, or the violator has a 

poor compliance disposition. The ranges also may be exceeded when the case involves multiple 

violations. {Sec chapter 7, paragraphs 6 and 7). 

c. Types of Sanction. 

(1) General. The FAA ordinarily does not initiate punitive civil penally 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 

proceeding to impose another, pursuing both actions solely for punitive purposes usuiilly is not 

necessary. The FAA takes remedial and punitive actions in die same case, however, when 

warranted. 

(2) Selecting types of sanctions. Fxcept in exceptional circumstances, the FAA uses the 

type of sanction recommended in the table. The FAA must impose any sanction mandated by 

statute (for example, revocation under 49 US.C. §§ 44106(b), 44710(b), and 44726(b) unless 

waived by the Administrator) 

6. General Guidance on Multiple Acts or Multiple Violation.s. 

a. Description of Multiple Violations. Unforcement actions often involve multiple 

violations: multiple violations of a single regulation; a single violation of multiple regulations; 

or multiple violations of multiple regulations. In addition, under 49 U.SC. § 46301(a)(2), if a 

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 tabic, however. Simply adding up the 

individual penalties for each violation 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 lo require a penalty 

greater than the sum of the recommended amouni of penally provided for in the table for each 

violation, 

c. Single Act of Noncompliance Resulting in Multiple Violations. When a single 

instance of noncompliance results in multiple violations of general and specific regulations 

involving the same or similar conduct, the FAA ordinarily does not compound the sanction to 

reflect the amount of sanction recommended in the table for each regulatory violation. In 

calculating the amount of sanction for multiple violations, FAA enforcemeni personnel consider 

* When * e violation is one that i.s generally inljerently deliberate {e.g., interference with crewmember or smoking 

violations), factor b. Ii! not coosidered m dctcrminiag wheilii;r the .sanction should be above ihe range in the table. 

The ranges ui the table for such violations already have taken into cotisiJcradon the inherently deliberate nature of 

ihc violation. 

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the totality of circumstances relating to the multiple violations, including the alleged violator's 

degree of culpability, and whether the alleged violator had laken steps, although unsuccessful, to 

prevent the violations. 

d. Type of I ,egal Enforcement Action. Where this guidance designates the type of legal 

enforcement action for a single violation, Ihc FAA ordinarily selects the .same type of sanction 

for multiple violations of a similai nature The seriousness of multiple violaiion.s, however, may 

require changing what is nomialiy a civil penally action to a cenificatc action or, sometimes, a 

punitive certificate su.spension to a remedial revocaiion action. 

7. Special Considerations for Numerous Multiple Violations Resulting From an Initial Act 

or Omission. To determine penaliie,'^ 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. Ihese cases involve stich a high number of multiple violations that 

if FA A enforcement personnel wcrc simply to add the iccomrncnded amounts of penalty for each 

flight or day that constitutes a separate violation, the resulting sanction amouni could be 

disproportionately harsh for the inisconducl involved, in an average case. 

a. Determining Proposed Penalty. To determine an appropriate civil penally in a case 

involving numerous multiple violations resulting from an initial act or omission (for example, an 

aircraft operated on a doijen or more fiiglits after being improperly returned lo service), FAA 

enforcemeni personnel: 

(1) Identify each initial act or omission that caused or resulted in the multiple violations 

(for example, improper maintenance plus improper return to service; failure to maintain a quality 

control system). 

(2) Consult the table in Appendix R and ihe general guidance in chapter 7, paragraph 4, 

on aggravating and mitigating factors to detemiine the amouni of penalty appropriate for each 

initial act or omisbion that caused or resulted in the multiple violations (for example, in 

airworthiness cases, a penalty for the act of improper maintenance or inspection; in 

manufacturing cases, a penalty for the act of failing to maintain a quality control system). 

(3) Determine the amount of penalty for the numerous multiple violations by applying 

the guidance in chapter 7, stibparagraphs 7.b. through d. Of particular importance in determining 

an appropriate sanction for numerous multiple violations is the degree of the alleged violator's 

culpability for the multiple violations. A lower degree of culpability is present when the alleged 

violator neither knew nor was likely to discover the continuing violations. For example, once 

improper maintenance was done there were no signs of ii from such things as discrepancies 

reported by the crew, and no inspections that would have led lo its discovery were scheduled. A 

more significant degree of culpability is present when 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 acl or omission remained undetected and continued through required 

inspections or checks designed lo reveal such discrepancies; 

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