### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERALAVIATIONADMINISTRATION

FEDERAL AVIATION ADMINISTRATION, Complainant, 

# CEIVED DEC 08 2014 HEARING DOCKET

vs. DocketNo. FAA-2013-0716 FAACaseNo. 2012S0150128 TYLERPENNYWITT, Respondent. Judge Sullivan

PRE-HEARING SUBMISSION Pursuantto the Judge'sNovember 10, 2014, Order, the FAAhereby identifies the following witnesses and documents: Witnesses the FAAMay Call to Testify: 1. 

### S.C. Strickland Jacksonville Sheriffs Office 501 E Bay Street Jacksonville, FL 32202 Officer Stricldand was the pilot ofthe JSO helicopter affected by Respondent's conduct. Officer Strickland may testify about the incident in 

### question, problems with laser strikes in the area before and after June 4, 2012, the needto deter this sort ofconduct in this particular area, and (as the victim ofthe offense and a representative ofthe JSO) his opinion as to the inadequacy ofthe punishment ofRespondentthrough a federal criminal proceeding. 2. C.C. Bernard M.J. Lessard Jacksonville Sheriffs Office 501 E Bay Street Jacksonville, FL 32202 Officers Bernard and Lessardwere the JSO ground officers who apprehendedRespondent on June 4, 2012. Theymaytestify as to Respondent's statements atthe time, as outlined inthe arrest report draftedbyOfficer Bernard, including Respondent's statements regarding his use ofthe laserpointerthatnight and on prior occasions.

### 3. JoesephW. Gramzinski 5950 Hazeltine National Drive Orlando, FL 32822 Aviation Safety Inspector Gramzinski handled the FAA investigation ofthis case. Inspector Gramzinski maytestify withregards to that investigation, including his communicationwith Respondent. The FAA reserves the right to call other witnesses for impeachment or rebuttal as many become necessary at hearing.

ExhibitList C-1 Respondent's June 4, 2012 arrest report C-2 Statement ofOfficer Stricklandregarding June 4, 2012 incident C-3 Declaration ofOfficer Stricklandregarding June 4, 2012 incident C-4 June 22, 2012letterto Respondent from ASI Gramzinski C-5 July 6, 2012letterfrom Respondent's attorney to ASI Gramzinski, including Respondent's undated letterto "JSO Helicopter Pilot" C-6 FAA Order 2150.3B, Excerpts

The FAA reserves the right to introduce other exhibits for impeachment or rebuttal as may become necessary at hearing. 

## :d.__ Respectfully submitted this_(_day ofDecember, 2014.

# ~ CHRISTOPHERR. STE SON Attorney Office ofthe Regional Counsel

### CERTIFICATE OF SERVICE 

### Ihereby certifythat a copyofthe foregoing Pre-Hearing Submissionhas been sent this date by the following methods: original and one copyvia certifiedmail: Federal AviationAdministration 800 Independence Avenue, S.W. Attention: HearingDocket Clerk, AGC-430 Wilbur Wright Building- Suite 2Wl000 Washington, D.C. 20591

one copyvia certifiedmail and Federal Express: TylerPennywitt 4483 HanoverParkDrive Jacksonville, FL 32224 One copyvia certifiedmail and facsimile: Honorable Judge J.E. Sullivan Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJerseyAvenue, S.E. (Ell-310) Washington, DC 20590 fax: (202) 366-7536 

# tOcmmill**e~** DONNA STAN EY Legal Assistant Office ofthe Regional Counsel

DatedGOVERNMENT EXHIBIT C-1 TO THE "PRE-HEARING SUBMISSION" FILED BY COMPLAINANT IS LOCATED AT THE FAA HEARING DOCKET 600 INDEPENDENCE AVENUE, SW SUITE 2W1000 WASHINGTON, DC 20591

Vicki 5. Leemon, FAA, AGC-430 As per instructions ofJudge Sullivan 12/11/2014Written by Officer Stephen C. Strickland #6142- Pilot in Command While being vectored for the RNAV 32 approach byJAX approach, OfficerS. Vaughan U5941 and Iwere hit by a green laser. We were heading 140 at 2000 feet about 6 miles

**south~southeast** of Craig. We broke offour approach with JAX and went to the area of Hodges and JTB and just north of a power station. We went down to 1800 feet and set up an orbit of several miles around the area to maintain a safer distance as we directed ground units, Officers Mark Lessard #67898 and Christopher Bernard #52798, to the house. The suspect lased us about six or seven times in our orbits at various points in the orbit. When ground units were in position, we descended to 500 feet and a tight orbit over the hou;e. Ground units made contact with a woman who told them they had a laser and that ·,twas her husbands, who just came in from outside and was just getting in the shower. She took them to the laser, which fired a green laser. The suspect was taken into custody. He stated he had lased over a dozen planes with the laser. It should be noted that we were lased from the same area by a green laser last night at around 2230. As we worked this call, in Craig's airspace and just south ofthe final approach course for runway 32, Craig advised that about seven aircraft had complained of laser incidents in that area over the past week. 

## _}j,/)A Strickland, Stephen C. #6142, Police Pilot Jacksonville Sheriff's Office Aviation Unit

**904~642~0422**



### GOVERNMENT EXHIBIT



# (-'2_

### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERALAVIATION ADMINISTRATION

FEDERALAVIATION ADMINISTRATION, Complainant,

vs. TYLER PENNYWITT, Respondent. Docket No. FAA-2013-0716 FAA Case No. 2012S0150128

Judge Sullivan

DECLARATION OF STEPHEN STRICKLA\10 COMES NOW the Declarant, Stephen Strickland, and states as tO!lows: 1. 1am over the age of 18 and I understand the obligations ofan oath. 2. I serve as a police o!Iicer (#6142) in the Aviation Unit ofthe Jacksonville Sheriff's O!Iice (.ISO), Duval County, Florida. I have served in the JSO tor nineteen years, and in the aviation 

### unit for nine years. 3. On June 4, 2012, I was flying a JSO helicopter approximately six miles southeast of CraigAirport (KCRG) in .Jacksonville, Duval County. florida. 4. While being vectored for the RNAV 32 approach by JAX approach, Officer S Vaughan #5941 and I were hit by a green laser. We were heading 140 at 2000 feet about 6 miles southsoutheast of Craig. The laser entered the cockpit and was extremely bright. The laser made reading the gauges impossible. The laser also hit the cockpit window making it difficult to impossible to sec outside. We broke offour approach with JAX and went to the area of Hodges and John Turner Butler Boulevard,just north ofa power station. We went down to 1800 feet and set up an orbit ofseveral miles around the area to maintain a safer distance as we directed ground units. Officers Mark Lessard #67898 and Christopher Bernard #62798, to the house that the laser was coming from. The suspect lased us about six or seven times in our orbits at various points in the orbit. Each time it made reading instruments or seeing outside the cockpit di!T!cult to impossible depending on how the laser hit us. This also affected our night vision after the laser


### GOVERNMENT EXHIBIT



## c~~stopped. When ground units were in position, we descended and began a tight orbit over the house. 5. We had also been lased from the same area by a green laser on the prior night around 2230. As we worked this call, in Craig's airspace andjust south ofthe final approach course for runway 32, Craig advised that about seven aircraft had complained oflaser incidents in that area over the past week. 6. Each time we were hit by the laser it made it very difficult to operate the aircraft. We were a law enforcement flight and I elected to stay in the area due to the hazard that this presented to other aircraft and the need to stop this hazard.

I, Stephen Strickland, declare this L. Nday ofMay, 2014, under penalty ofperjury under the laws ofthe United States that the above statements are true and correct.



# qb~--- Stephen StricklandU.S. Department ofTransportation FederalAviation Administration



### June 22, 2012 

### CERTIFIED MAIL-RETURN RECEIPT REQUESTED File No. 

### #2012S0150128 Mr. Tyler John Pennywitt 4483 Hanover Park Dr Jacksonville, FL 32224 Dear Mr. Pennywitt: Orlando FSD0-15 Citadel International, Suite 500 5950 Hazeltine National Drive Orlando, Florida 32822-5023 (407)812-7757, Fax (407)812-7710



### Personnel ofthis office are investigating an incidentwhich occurred on June 04, 2012 involving the misuse ofa laser lighting device on a aircraft ofwhich you were involved with. This letter is to inform you that this matter is under investigation by the Federal Aviation Administration. We would appreciate receiving any evidence or statements you might care to make regarding this matter within I0 days ofreceipt ofthis letter. Any discussion or written statements furnished by you will be given consideration in our investigation. If w,e do not hear from you within the specificcltirne, OLtr 

### report will be processed without the benefit ofyour statement Sincerely.

A rJ 

### jJ --....._ /;/ // J' '-,'-'1 r .. /' 

# (V**1M:tt--~7** Joseph W. Gramzinski Aviation Safety Inspector Enclosure: Privacy Act Notice

i!l 

### GOVERNNIENT**~** 

### EXHIBIT 

# i**c~L-'-~**

# ::::: 

# •••••



# • • 

# Fletcher & 

# Phillips Lyman TFletcher Bos.rd Certlrlel:l Maritl!!.l Md

**F~mily** Lnw Amtlfic;;Jn Academy arMalrim.onial

**~swyero**

Florida Farnity Law Inn ofCourt Meeter



### Via Facsimile and US Mail Mr. Joseph W. Gramz'1nski Counselors and Attorneys at Law 

### Eric 

### J Friday Member FloriCJa ear MemberAI<'!

**bam<'~ B~r**  Floridl3 F<lmily Law Inn ofCautt, A&snciata 

### July 6. 2012

U.S. 

### Department ofTransportation- FAA Orlando FSD0-15 Citadel International, STE 500 

### 5950 Hazeltine National Drive Orlando, FL 32822-5023 Fax: 

### 407-812-7710 RE: File No 

### 201280150128 Dear Mr. Gramzinski: 

### Michael RPhillips Membet FIMda BM Emphasis in Fsmily Law rlorids rsmlly l.aw Inn or Court, 8:<Jrr1StM



### I have the privilege of representing Mr. Tyler Pennywitt regarding the incident you are investigating. The incident in question occurred while Mr. Pennywitt was in his backyard at 4483 Hanover Park Dr. in Jacksonville Florida with his toddler son. As a check of Google Maps will show, this address is not immediately adjacent to any airfield Direct overflights of Mr. Pennywitt's yard are not as routine an occurrence as they might be 1n other neighborhood that are on a direct approach or departure path to an airfield. Consequently, Mr. Pennywitt was not anticipating overflight by 

### any aircraft during the use of his laser pointing device in a 

### completely lawful manner. Mr. Pennywitl was engaged in stargazing and making designs on the trees, power lines and towers immediately behind his residence, with his young son and was utilizing a green laser pointer to point out stars to his young son and draw designs for the child's entertainment. While using his laser pointer he inadvertently shined the laser in the direction of the helicopter. He did so with no knowledge that the laser could either reach that far, nor did he realize that the intentional pointing of a laser pointing device at an aircraft in flight was illegal or could cause any harm to the aircrafl or the flight crew Mr. Pennywitt is an educated person with an accounting degree, and has a family with young children. Despite his education however, he was completely ignorant ofthe risks or the law regarding his conduct. While ignorance ofthe law is no excuse,

**this~~i..---'""'1111** 541 East Monroe Street, Ste 1 Jacksonville, FL 32202-2838 famllylaw@FletcherandPh,llips.com 

### GOVERNMENT EXHIBIT



# c--s-

### not one the common person is aware of and does not prohibit conduct that is clearly harmful to the average person. Only persons who have encountered this issue or those with a specialized knowledge regarding aviation issues would have any reason to be 

### aware ofthis law. I have purchased an exact duplicate of tt1e device Mr. Pennywitt' was using from Radio Shack. A thorough review ofthe packaging and instructions contain numerous warnings, but not one mentions the law regarding aircraft or in any way hints at the risk or dangers of pointing the device at an aircraft. It seems this is an issue the FAA may want to consider in its administrative rule making to require the addition of such a warning in the instructions of all laser devices sold in the US. This incident shows the need for an aggressive public awareness campaign regarding this issue, not a need for punishment of Mr. Pennywitt that would only harm his young family. Mr. Pennywitt has already drafted a letter of apology to the pilot ofthe aircraft, which I am including with this letter. It is my hope thatthe FAA will realize the need for further education of the public, over punishment of Mr. Pennywitt. Mr. Pennywitt stands ready and willing to assist in any way he can to make the public aware ofthe dangers of carelessly shined laser pointers and the possible penalties. If I can be offurther assistance or provide any additional information please do not hesitate to contact me.

541 East Monroe Street, Ste 1 Jacksonville, FL 32202-2838 

### Eric J. 

### Friday

familylaw@FietcherandPhillips.com phone: 904-353-T/33 fax: 904-353-8255Jacksonville Sheriffs Office

Dear JSD Helicopter Pilot: I wantto sincerely apologize forthe laser Incident on Monday evening, June 410

. I w;;s not tryingto intentionally blind you or cause any harm to you and your crew. I did not mean to Interfere In any police business or detain you from your duties. I honestly had no idea the laser could reach thatfar In the sky or have any impact on your abilityto navigate safely. Since the Incident, I have conducted extensive research on the Internet. I now realize the dangers of pointing a laser in thesky. Hopefullythe media and press coverage surroundingthis Incident will help the general public also recognize the dangers that laser lights pose and lm:rease the awareness ofaircraft safety. I am truly sorryfor any unnecessary duress that my careless actions caused you and your crew, In today's society I knowyou have Important tasks to address and I certainly didn't intend to detain you fromthose responsibilities. I hope you understand that there was no malicious Intentto my actions. Itwas simply a lack ofknowledge on my part. Please accept my sincere apology,10/01/07 2150.38 Chapter 7. Sanction Guidance Policies

1. 

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

### 2. General Guidelines.

a. Certificate Suspension Action and Civil Penalty Action: Sanctions for Punitive and DeterrentPurposes. (I) General. Ifa certificate holder improperly exercises the privileges ofa certificate, a natural consequence ofthat act is to lose the privileges for a period oftime commensurate with the violation. Balanced againstthis principle, however, the FAA considers the adverse impact that a certificate suspension couldhave onthe public. Thus, the agency generally suspends the certificates ofindividual certificate holders for violations. However, the FAAusually takes civil penalty action against air carriers and airports because such actions do not disrupt service, which may adversely affectthe public. Nevertheless, when theFAA determines that safety considerations warrant it, the agency will suspend the certificate ofanytype ofcertificate holder. In no case will the FAA take civil penalty action alone when remedial legal action is necessary or appropriate. (2) Use ofboth punitive certificate action and civil 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 oftime) against a certificate holder for the same conduct. Ifunusual circumstances warrant deviation from this practice, legal counsel consult with the Assistant ChiefCounsel for Enforcement (AGC-300) before initiatingthe actions. (3) Change in type ofproposed sanction. The initial enforcement action reflects the agency's best assessment ofthe appropriate sanction for the violations alleged. After initiating the action, legal counsel ordinarily does not changethe type ofsanction unless additional facts or circumstances are presentedto theFAA thatwarrant a change. Ifthe action was coordinated under chapter 6, paragraph 3, withAGC-300 before initiation, then legal counsel coordinates any change in the type ofsanction with AGC-300 before making the change. 

### b. Legal Sanctions for Remedial Purposes. (I) Indefinite certificate suspension pending compliance or demonstration of qualification. Suspension action is appropriate where there is a needtemporarilyto
7-1

**~** GOVERNMENT 

## i EXH_IBI! 

# i u-G10/01/07 2150.38 suspend the privileges ofthe certificate orrating pending demonstration ofqualification or compliance with statutory or regulatoryrequirements. FAA generallyuses remedial suspension when an individual does not voluntarily surrenderhis or her certificate pending reexamination. 

### See chapter 5. (2) Certificate revocation- general. The FAArevokes a certificate when a certificate holder lacksthe qualifications to holdthe certificate. The certificate holder's continued exercise ofthe privileges ofthe certificate in such circumstances would be contraryto safety in air commerce orair transportation and the public interest. Revocation is appropriate whenever a certificate holder's conductdemonstrates a lack ofthetechnical proficiency or a lack ofthe degree ofcare,judgment, or responsibility, required ofthe holder ofsuch a certificate. Orders of revocation are issued on an emergencybasis whenthe certificate holder lacks qualification and is reasonably able as a practical matterto exercise theprivileges ofthe certificate. Legal counsel does not allege a lack ofqualificationsto avoid dismissal ofcharges under 49 C.F.R. § 821.33, theNTSB's stale complaintrule. (3) Certificate revocation- individuals. The FAA generally revokes an individual's certificate orrating whenever he or she demonstrates a lack ofwillingness or ability to comply consistently with statutory or regulatory requirements. A lack ofwillingness or ability to comply maybe demonstratedby suchthings as repeated or deliberate violations or by violationsthat involve grossly careless orreckless conduct. Even a singleviolationmay be sufficientto warrant a conclusion an individual lacks qualifications. The FAA ordinarily revokes all certificates ofa person who commits a violation involving intentional falsification. (4) Certificate revocation- entities. Revocation is normally appropriate when a certificate-holdingentity deliberately or flagrantly violatesthe statute or regulations or falsifies records. Revocation also is generally appropriate when the certificate holder has committed the same or similarviolations inthe recent pastdemonstrating a lackofqualification, or when the certificate holder no longerhas, and does not obtain in a reasonabletime, the personnel or equipmentto conduct its operation in full compliance with statutory and regulatory requirements. (5) Mandatory certificate revocation. Under49 U.S.C. 

### § 44710, theFAA is required to revoke the certificates ofany airman who has been convicted ofviolating certain federal or state statutes relating to a controlled substance when an airplane was used in the commission ofthe offense and the airman served as an airman, or was aboardthe aircraft, in connection with commission ofthe offense orthe facilitation ofthe commission ofthe offense. Even whenthere has beenno conviction, revocation is required when an airman has knowingly carried out an activity punishable underthese criminal statutes. The Administratormaywaive the revocation if a law enforcementofficer requests the waiver and the Administrator decidesthe waiverwill facilitate law enforcementpurposes. 

### See 49 U.S.C. § 44710(1). Under49 U.S.C. § 44106, the FAA also mustrevokethe registration certificate ofany airplane used in the commission ofsuch an offensewhen the use was permitted bythe ownerofthe aircraft withknowledge that it would be used for such purpose. Under49 U.S.C. § 44726, the FAAmustrevokethe certificates ofany certificate holder or an individual who has a controlling or ownership interest in the holder who was convicted ofa violation offederal law relating to the installation, production, repair, or sale ofa counterfeit or fraudulently-represented aviation part ormaterial or knowingly, and withthe
7-210/01/07 2150.38

intentto defraud, carried outor facilitated an activity punishable under such a law. The Administrator may waivethat sanction to facilitate law enforcement purposes or amend, rather than revoke, a certificate under certain circumstances. 

### See 49 U.S.C. §§ 44726(f) and (g). (6) Mandatory certificate action for security concerns. Under 49 U.S.C. § 46111, the Administrator is required to issue an order amending, modifying, suspending, or revoking any FAA-issued certificate ifthe Administrator is notified bythe Under Secretary ofBorder and Transportation Security (BTS) ofthe Department ofHomeland Security (DHS) that the certificate holder poses, or is suspected ofposing, a riskofair piracy orterrorism or a threatto airline or passenger safety. Under 49 U.S.C. § 44924, the Administrator is required, at the request ofthe Under Secretary ofBTS, to suspend or revoke foreign repair station certificates in connection with security audits. 3. Applicability and Exclusions. The sanction guidance table (table) in AppendixB provides types ofsanctions and general ranges ofsanction amounts for violations of49 U.S.C. subtitle VII and 14 C.P.R. parts 1-199 and 49 U.S.C. subtitle IX, chapter 701 and 14 C.P.R. chapter III. Oncethe agency has determined that legal enforcement action is warranted for a violation, FAA enforcementpersonnel use the table and paragraph 4 ofthis chapter, as well as any other sanction guidance in this order, to determine a proposed sanction. The matters described in chapter 7, subparagraphs 3a.-d. are some types ofagency action that fall outside the scope of paragraph 3 and the table.

a. Decisions to TakeAdministrativeAction (WarningNotices or Letters of Correction). An administrative action does not constitute either a formal adjudication ofthe incident or a finding ofviolation. Forthat reason, FAA investigative personnel do not propose a sanction using the table. b. The FAA'sExercise ofProsecutorial Discretion. The decision whetherto prosecute a particular case is based on a review ofthe evidence andrelevant policy and litigation considerations. The agency exercises broad discretion inboththe 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. 

### Hecklerv. Cheney, 470 U.S. 821,831 (1985).

c. Hazardous Materials Violations. Actions involvingviolations ofthe federal hazardous materials transportation law, 49 U.S.C. chapter 51, or the Department ofTransportation's Hazardous Materials Regulations, 49 C.P.R. parts I06 through 185. Enforcement sanction guidance for these violations is found in Appendix C. d. Violations by Members ofthe U.S. Armed Forces. The FAA is required to forward reports ofthese violations to the Secretary ofthe department concerned under49 U.S.C. §4610I(b), wheneverthe violator is acting in the performance ofofficial duties. The FAA, however, takes remedial action in addition to referring a report when the violator, whether or not

7-310/01/07 2150.38 acting in the performance ofofficial military duties, holds an FAAcertificate, and theviolator's qualifications are at issue. The FAA may take punitive action against a member ofthe U.S. Armed Forces for a violation committed when the member is not performing official duties. 4. Mitigating or Aggravating Factors and Elements. The factors in chapter 7, subparagraphs 4.a. through m. have been developed over years ofpolicy making and case adjudication. They have proven useful and appropriate for determining the seriousness ofa violation and for selecting an appropriate sanction. Elements for evaluating and weighing each factor are also described. These factors and elements provide a framework for determining sanctions for violations specifically listed 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 elementsthat are relevantto a violation are considered in determining a sanction for the violation. This list of factors and elements is not intendedto be exhaustive; other factors may be relevant as well.

a. Natnre ofthe Violation. Three elements define the nature ofa violation: first, whether the violation was operational or non-operational; second, whether the violation involved careless orreckless conduct; and third, whether the violation involved any special aggravating or mitigating factors. (I) Individuals. When an individual who holds a certificate improperly exercises the privileges ofthat certificate, the natural consequence ofthat act should be loss ofprivileges for a period oftime commensurate with the violation. The FAA, therefore, primarily uses certificate actions to enforce operational regulations against individuals who hold certificates. The potential adverse impactthat certificate action may have on an individual's livelihood does not alterthis principle. Non-operational violations may warrant a different type ofsanction. (2) Entities. The FAA ordinarilytakes civil penalty action against a certificate-holding entity (for example, an air carrier) when 

### itdetermines there would be a substantial adverse impact on the public interest from disrupted service by that certificate holder andthe 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, orthere is a reasonable basis to question the qualifications ofany certificate holder, the FAAtakes 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.P.R. § 91.13 may warrant more severe sanctions. Carelessness connotes conduct that falls below the standard ofcare orprudence expected ofa reasonable person, or holder ofthe relevant certificate, acting under the same or similar circumstances. Recklessness connotes conduct that demonstrates a gross, or even callous or flagrant, disregard for safety. Aircraft operations that do not otherwise result in a violation ofa specific regulation should be evaluated in light ofthese standards to determine whether they constitute careless orreckless operations in violation of 14 C.P.R.§ 91.13. When aperson operates an aircraft in violation ofa specific regulation other than 14 C.P.R.§ 91.13, however, that violation constitutes a careless or reckless operation in and ofitself. In these cases, the misconduct may also result in a violation of 14 C.P.R.§ 91.13 ifit actually orpotentially endangers the lives orproperty ofothers.


### 7-410/01/07 2150.38

When calculatingthe amount ofsanction based onthis factor, a distinction generally is drawn between instances where 14 C.F.R. § 91.13 is an independent violation andthose 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 warrantedunless the conduct is also reckless. 

### b. Whether the Violation was Inadvertent and Not Deliberate. Ifa violation is deliberate or not inadvertent, a sanction at the upper end ofthe range or exceedingthe range for thattype ofviolation generally is appropriate. A deliberate violation generally warrants a sanctionthat is more severethan one that isjustnot inadvertent. (1) Not deliberate. This elementmeans a lack ofthe degree ofdeliberation found in intentional misconduct. Deliberate or intentional misconduct is an aggravating circumstance and includes deliberate conductthat leads to a violation as well as circumstances indicating intentto commit a violation. (2) Inadvertence. An actis inadvertent when it is theresult ofboth inattention and lack ofpurposeful choice. For example, an inadvertent act occurs when a pilotflies at an incorrect altitude because he or she misreadthe aircraft's instruments; however, it is not an inadvertent act when a pilot flies at an incorrect altitude as a result ofchoosingnotto consultthe aircraft's instruments orchoosingnotto use other available means to verify altitude. Thetestto be applied is whetherthe conduct, not the factual or legal consequences, is inadvertent and unintended. Ferguson v. National Transportation SafetyBoard, 678 F.2d 821, 828-829 (9th Cir. 1982).



### c. Certificate Holder's Level ofExperience. (1) Level ofexperiencerefers primarilyto thetype ofcertificate andratings held (for example, student, private, commercial, airline transport pilot, or certified flight instructor), and the number ofhours flown, by the certificate holder. Certificateholders with greater levels of experience may be heldto a higher standard. Thus, for example, commercial pilots may be held to a higher standard thanprivate pilots and airline transport pilots may be held to an even higher standard than commercial pilots. (2) In determining an appropriate sanction, the FAAmay considerthe extentto which the certificate holder's action deviated from the degree ofcare and diligence normally expected ofa person withthe certificateholder's level ofexperience. A significant deviation from the degree ofcare and diligence expected ofthe holder ofthat certificate may warrant a more aggravated sanction. 

### d. Attitude ofthe Violator. (1) A good compliance attitude is the norm and does 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 contraryto statutory orregulatory requirements after receiving notice through a prior administrative action or counselingthat such conduct is in violation ofthose requirements mightwell be regarded as having a poor compliance disposition. In evaluating compliance disposition, the FAA does not
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### 10/01/07 2150.38

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



### e. Degree ofHazard. (1) The degree ofhazard maybe increased as a result ofthe interplay ofthe operational environment (for example, weather conditions, congested vs. sparsely populated areas) andthe nature ofthethreatto safety (to the life orproperty ofanother, includingthose in the aircraft being operated, to other aircraft, or to persons or property onthe surface) that the misconduct presents. The safety threat is based on the reasonably foreseeable consequences ofthe misconduct. Forexample, operating 500 feet below the minimum altitude poses a greater hazard than operating 100 feet below. Similarly, ifan aircraft operator fails to comply with an airworthiness directive by operating 10 hours past a required inspection, the degree ofhazard is probablynot as great as when the aircraft is operated 100 hours beyond the required. And it is not mitigating when a violation does notresult in actual harm; that is simply fortuitous. (2) The sanction ranges reflect the degree ofdanger normally inherent in an average violation ofa regulation, without aggravating circumstances. As discussedin chapter 7, subparagraph 5.b., an increase in the degree ofhazard may form the basis for exceedingthe sanctionranges. 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 allegedviolator's employer has taken disciplinary action and whether criminal prosecution is involved. (1) Employment discipline. Where the violation would normally call for a certain type ofenforcement action, the FAAtakes that action regardless ofany action taken by the violator's employer. Generally, the FAA does not credit an employer's disciplinary action toward a period ofsuspensiontheFAA imposes againstthe violator's certificate because ofthe different purposes ofgovernment-ordered, as contrasted withemployer-ordered, actions. (2) Criminal prosecution. When arising out ofthe same conduct, local, state, or federal prosecution does not preclude theFAA from taking appropriate remedial enforcement action; nor


### 7-610/01/07 2150.38

does it precludethe FAA from taking appropriate punitive enforcement action. For cases where federal, state, or local authorities prosecute criminally, theFAA generally does take remedial enforcement action ifthat is warranted despite the criminal prosecution. However, theFAA does not generally take punitive legal enforcement action for the same conduct, unless it believes the criminal sanctions are not sufficientto provide an adequate deterrent for future violations by the violator and others similarly situated, or whenthe FAA wants to establish a violation history record. Ifthe FAA decides to proceed with a punitive civil enforcement action in addition to the criminalprosecution, it generally considers the criminalpenalties incurred in those proceedings in determining the appropriate amount ofsanctionto be sought in the FAA's punitive enforcement action. g, Use ofa Certificate. This factor relates to the nature orkind ofactivity or operation involved at the time the violation was committed. Whetherthe certificate holder was engaged in student, private, commercial, or airline activity bears on the severity ofthe sanction. Air carriers are held to the highest standard ofcare. Likewise, personnel engaged in airtransportation are held to the highest safety standard. h. Violation History. (1) A violation-free history is the expected norm, not the exception and, therefore, is not amitigating factor. Sanction ranges in the table generally represent the normal range ofsanction for a single, first-time, inadvertent violation. Given the expected norm, a prior violation record can be evidence ofa poor compiiance disposition or ofa pattern ofdisregard for theFAA's regulations, which are aggravating factors. As a result, a violation history canjustify imposing a sanction at the higher end ofthe normal range or a sanctionbeyondthe normal range. Itmight alsojustifyrevocation rather than suspension ifthe pattern ofviolation reflects a lack of qualification. In addition, a violation history mightjustify a certificate suspension ifpreviously issued civil penalties have not producedthe desired deterrent effect In deciding whether a violation historyjustifies aggravating the sanction or changingthe usual type ofsanction, the FAA considers the length oftime thathas elapsed betweenviolations, whetherthe violations involved the same or similar regulations, and whetherthe violations are factually similar. (2) The following actions constitute violation history when they involve regulatory violations and become final: orders ofamendment, modification, suspension, orrevocation ofan FAA certificate; orders assessing a civil penalty; findings ofviolation contained in a consent order, order ofcompliance or denial; and findings ofviolation made by a federal court. In addition, a partymay agree as part ofa settlementthat the FAA may consider alleged violations as findings ofviolation for future sanction determinations. i. Decisional Law. Decisions ofthe FAA decisiomnaker 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 position on sanctions in legal enforcement actions. To the extentthat this document conflicts with FAA decisionmaker decisions published before this document's issuance, the sanction guidance policy in this order supersedes those decisions. However, FAA decisiomnaker decisions published after

7-710/01/07 2150.38

the issuance ofthis document that conflict with the policy in this order supersedethis document and are controlling. j. Ability to Absorb Sanction. Sanctions should be deterrent. While punitive sanctions should not be unduly harsh, they shouldbe substantial enough to preventviolators from profiting from their violations, that is, the sanction should be high enoughto remove any profit incentive for violations. Penalties should never be permitted to be a cost ofdoing business. Air carriers, in particular, are required by law to have the financial wherewithalto operate according to established safety standards. While the FAA does not allow financial circumstances to excuse any violation, it does consider a carrier's size and financial strength in choosingthe appropriate sanction amount. The difference in the penaltiesfixed in the law for large and small business concerns recognizes this fact. A civil penaltythat maybe a mere costof doing business to a major air carrier might compel a small air carrierto go out ofbusiness. Therefore, theFAAuses air carrier size as one means ofensuring arelatively equivalent deterrent effect on each air carrierthat violates the same FAA regulation. The resulting classification ofair carriers by size and ranges ofcivil penalties are set forth in part one ofthe table. For all entities and individuals, the FAA considers ability to pay a civil penalty and the effect a civil penalty will have on a person's abilityto continue in businessto the extent it knows such information. k. Consistency ofSanction. One ofthe agency's goals is to achieve relative consistency in imposing similar sanctions for similarviolations. The FAA pursuesthis objective to assure fairness and so the sanction's impacthas an equivalent degree ofdeterrent or disciplinary value to others similarly situated. This goal may not always be achieved, however, because ofthe inherently subjective nature ofthe exercise of judgment in setting sanctions. I. Whether the Violation was Reported Volnntarily. (I) TheFAA has programsthat allow persons to report voluntarily apparent violations and receive lesser enforcement action provided certain criteria are met. Theseprograms include the aviation safetyreporting program, the voluntary disclosure reporting program, and the aviation safety action program. Besides these programs, the FAA may grant special enforcement consideration under certain circumstances to a person who, incidentto his orher report of another's violations, voluntarily discloses his or her own participation in the same or related violations. This special enforcementconsideration mayrange from mitigatingthe sanction to determining that no enforcement action is required. (2) Ifa person is not covered under one ofthese programs butnonetheless voluntarily reports an apparent violation to the FAA before the FAA discovers it, takes immediate action to correct the noncompliance, and works with the FAA on steps to preclude recurrence ofthe apparent violation, the FAA may consider such actions in mitigatingthe sanction for the violation.

m. Corrective Action. The FAA considers corrective action a mitigating factor in determining sanctionprovided the corrective action exceeds the minimum regulatory or statutory requirements. The amount ofcredit given in setting a sanction depends onthe extent and timing ofthe corrective action, that is, how extensive was the corrective action and how quickly was it taken. Implementing new procedures that are above those required under the FAA'sregulations 7-810/01/07 2150.38

to prevent future violations ordinarily is considered a mitigating factor in determining an appropriate sanction. Corrective action taken after the alleged violator first becomes aware ofa deficiency butbefore FAA discovery ofthe violation ordinarily warrants greater mitigation than corrective action that is taken only after the alleged violatorreceives notice ofthe FAA's enforcement action. Corrective action taken by an alleged violator that simply brings that person into compliance with the statutory orregulatory requirements is not considered in mitigation of sanction. To mitigate a sanction based on such corrective action would put at an economic disadvantage competitors who have expended the resources necessary to maintain compliance. 

### 5. Use of

### the Table ofSanctions.

a. General. Sanction determinations are not accomplished through a strict mathematical formula; rather, sanction determinations result from ajudgment ofwhere a case lies along a spectrum ofgravity. Ultimately, the circumstances ofeach case are evaluated in terms ofthe needs ofsafety and the public interest. 

### h. Single, First-time, Inadvertent Violations. (I) Part II ofthe table specifies both the normal types ofsanction (certificate action, civil penalty action, or othertype) and the normal ranges within those types the FAA ordinarily seeks to impose in a legal enforcement action for a single, first-time violation that is generally inadvertent (the table includes ranges ofsanctions for several violations that usually are intentional, for example, interference with a crewmember, smoking on an aircraft). In addition, the table generally reflects a presumption that the alleged violator wants to comply with the law and to remedy any noncompliance and that the alleged violator, therefore, has a constructive attitude. (2) For factors b, d, or h ofparagraph 4 (that is, inadvertent and not deliberate conduct, attitude, and violation history), the FAAdoes not normally deviate from the ranges listed in the table solely based on the inadvertence ofthe violation or on the 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 ofthe violation itself. (3) Applyingranges within a sanction type. In determining where, within each range, a sanction should be imposed, the FAA generally considers factors a, c, e, f, g, i,j, k, and m of paragraph 4 (that is, nature ofthe violation, level ofexperience, degree ofhazard, action by employer or other authority, use ofcertificate, decisional law, ability to absorb sanction, consistency ofthe sanction with similar cases, corrective action), to the extentthey are applicable orrelevant. When determining a specific sanction amount within a range, FAA enforcement personnel begin with an amount in the middle ofthe range and increase that amounttoward the higher end ofthe range for aggravating factors or decrease that amounttoward 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 onjustifiable mitigation under factorsj, I, and m ofparagraph 4 (thatis, the ability to absorb the sanction, voluntary reporting, corrective action). The FAA may 

### 7-910/01/07 2150.38 impose sanctions above the normal ranges whenthe following circumstances, relatingto factors b, d, e, and h ofparagraph 4 are present: the violation is other than inadvertent4

, the violatorhas a violation history, the violation involves a significant degree ofhazard, orthe violator has a poor compliance disposition. The ranges also may be exceeded whenthe case involves multiple violations. (See chapter 7, paragraphs 6 and 7).



### c. Types ofSanction. (I) General. TheFAAordinarily does not initiate punitive civil penalty and punitive certificate actions (thatis, fixed-period certificate suspensions) against a certificate holder for the same offense. While electingto impose one sanction is not a legal barto a concurrent proceeding to impose another, pursuingboth actions solely for punitivepurposes usually is not necessary. TheFAAtakes remedial and punitive actions in the same case, however, when warranted. (2) Selectingtypes ofsanctions. Except in exceptional circumstances, the FAA uses the type ofsanctionrecommended in thetable. The FAAmust impose any sanction mandated by statute (for example, revocation under49 U.S.C. §§ 44106(b), 44710(b), and 44726(b) unless waived by the Administrator). 

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

a. Description ofMultiple Violations. Enforcement actions often involve multiple violations: multiple violations ofa single regulation; a single violation ofmultiple regulations; or multiple violations ofmultiple regulations. ln addition, under49 U.S.C. §4630I(a)(2), ifa violation is a continuing one, each day the violation continues, or each flight for which the violation was committed, constitutes a separate offense. 

### b. General Sanction Guidance. Multiple violations ordinarilyresult in high sanction amounts. Such sanction amounts ordinarily are not determined by simply adding up the individualpenalties for multiple violations setforth in thetable, however. Simply adding up the individual penalties for eachviolation could result in compounding a sanction in a disproportionatelyharsh manner for the conduct involved. Conversely, multiple violations may be so serious in their consequences for safety and the public interest as to require a penalty greaterthanthe sum oftherecommended amount ofpenalty provided for in thetable for each violation.



### c. Single Act ofNoncompliance Resulting in Multiple Violations. When a single instance ofnoncompliance results in multiple violations ofgeneral and specific regulations involving the same or similar conduct, the FAA ordinarily does not compoundthe sanctionto reflect the amount ofsanction recommended in the table for eachregulatory violation. In calculatingthe amount ofsanction for multiple violations, FAA enforcementpersonnel consider

4 When the violation is one that is generally inherently deliberate (e.g., interference with crewrnember or smoking violations), factor b. is not considered in determining whether the sanction should be above the range in the table. The ranges in the table for such violations already have taken into consideration the inherently deliberate nature of the violation. 7-1010/01/07 2150.3B
the totality ofcircumstances relating to the multiple violations, including the alleged violator's degree ofculpability, and whether the alleged violator hadtaken steps, although unsuccessful, to preventthe violations. d. Type ofLegalEnforcement Action. Where this guidance designates the type oflegal enforcement action for a single violation, the FAA ordinarily selectsthe same type ofsanction for multiple violations ofa similar nature. The seriousness ofmultiple violations, however, may require changing what is normally a civil penalty action to a certificate action or, sometimes, a punitive certificate suspension to aremedial revocation action. 7. Special Considerationsfor Numerous MultipleViolations ResultingFrom an InitialAct or Omission. To determine penalties for numerous multiple violations thatresult from an initial act or omission, the FAA applies the special considerations and guidance in chapter 7, subparagraphs 7.a. through e. These cases involve such a high number ofmultiple violations that ifF AA enforcementpersonnel were simply to add the recommended amounts ofpenalty for each flight or day that constitutes a separate violation, the resulting sanction amount could be disproportionately harsh for the misconduct involved, in an average case.

a. DeterminingProposed Penalty. To determine an appropriate civil penalty in a case involving numerous multiple violations resulting from an initial act or omission (for example, an aircraft operated on a dozen or more flights after being improperlyreturned to service), FAA enforcementpersonnel: (1) IdentifY each initial act or omission that caused orresulted in the multiple violations (for example, improper maintenance plus improperreturn to service; failure to maintain a quality control system). (2) Consultthe table in AppendixBandthe general guidance in chapter 7, paragraph4, on aggravating and mitigating factors to determine the amount ofpenalty appropriate for each initial act or omission that caused or resulted inthe multiple violations (for example, in airworthiness cases, a penalty for the act ofimproper maintenance or inspection; in manufacturing cases, a penalty for the act offailing to maintain a quality control system). (3) Determinethe amount ofpenalty for the numerous multiple violations by applying the guidance in chapter 7, subparagraphs 7.b. through d. Ofparticular importance in determining an appropriate sanction for numerous multiple violations is the degree ofthe alleged violator's culpability for the multiple violations. A lower degree ofculpability is presentwhenthe alleged violator neither knew nor was likely to discover the continuing violations. For example, once improper maintenance was done there were no signs ofit from suchthings as discrepancies reported by the crew, and no inspections that would have led to its discovery were scheduled. A more significant degree ofculpability 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 act or omissionremained undetected and continued throughrequired inspections or checks designed to reveal such discrepancies;
7-1110/01/07 2150.38

• the alleged violator was not following maintenance or inspection procedures the FAAhad approved or accepted; • the level ofthe alleged violator's organization that was aware of, or involved in the noncompliance included management (for example, management implemented policiesthat contributed to the violations), although an alleged violator's culpability does not require management involvement; • the alleged violatorhas ahistory ofsimilar violations or ahistory ofsystemic deficiencies. Knowing and willful violations connote the highest degree ofculpability. (4) Add the penalties arrived at for the initial violation to the penalty for the multiple violations. b. Limitations on Total CivilPenaltyAmounts for Numerous Multiple Violations. (I) In an average case involving numerous inadvertent, multipleviolations resulting from a single act or omission, that is, not one that is coveredby chapter 7, subparagraphs 7.c. or 7.d., the total civil penalty for the multiple violations ordinarily falls within the ranges provided in eitherFigure 7-1 or 7-2. The group classifications are defined in partI ofAppendix B. (2) The term isolatedin Figures 7-1 and 7-2 typically describes a single instan.ce ofan employee's failure to follow a statutory or regulatory requirement, contraryto the company's own practice orprocedure. A case may involve a number ofisolated andunrelated violations. Each group ofthe multiple violations resulting from each isolated violation ordinarily is subject to the isolated, inadvertentranges in Figures 7-1 or 7-2. (3) Inadvertent failures are considered systemic ifthey are repetitive or otherwise demonstrate an underlying deficiency inthe alleged violator's system, practices, or procedures. Systemic failures generally warrant more substantial penalties and indicate a need for corrective action. (4) The aggravating or mitigating factors and elements in chapter7, paragraph4. are considered to determine an appropriate civil penalty withinthe applicablerange in Figure 7-1 or 7-2, for the multiple violations resulting from the initial act or omission. Ofparticular importance is an evaluation ofthe seriousness ofthe potential hazard causedby the violation and the degree ofculpability ofthe alleged violator for the multiple violations.

7-12

### 05/01/12 Compliance and Enforcement Bulletin No. 2012-1 

### 2150.38, Chg 4 Appendix H

SUBJECT: Sanctions for persons who direct a laser toward an aircraft in violation of 14 C.F.R. §§ 91.11, 121.580, 125.328, or 135.120. DISCUSSION: Datarecently compiled by the FAA reflects a continuing upward trend in the number ofreported incidents oflasers being aimed at aircraft. Aiming a laser at an aircraft can seriously impair a pilot's vision andinterfere withthe flight crew's ability to safely handle its responsibilities. Flight crewmembers exposedto laser light, while operating an aircraft at night, have experienced glare (atemporary disruption in vision caused bythepresence ofa bright light within an individual's field ofvision), flashblindness (the inabilityto see, caused by bright light enteringthe eye thatpersists after the illumination has ceased), and afterimage (an imagethat remains in the visual field after an exposure to bright light). A sufficientlypowerful laser could cause permanent ocular damage, blinding crewmembers and making a successful landing virtually impossible. 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 board the aircraft, who aims a laser beam atthat aircraft. The memorandum noted that the interpretation applied equally to the similarly wordedprovisions of 14 C.F.R. §§ 121.580, 125.328, and 135.120. Subsequently, this interpretation was published in the FederalRegisterto increase public awareness that: (I) directing laser beamstowards aircraft operating onthe ground or in the air so that it interferes with a crewmember in the performance ofthe crewmember's duties is a violation ofsection 91.11; and (2) persons violating section 91.11 are subjectto a civil penalty. See 76 Fed. Reg. 76611-76612 (Dec. 8, 2011). Minors found in violation ofsection 91.11 under this interpretation are subjectto enforcement action and sanction. Because ofthe continuinghigh number oflaser-related flight crewmember interference occurrences and the high riskto safetytheypresent, the FAA's Acting Administrator has determined that a special emphasis enforcementprogram is warranted 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 enforcementprogram is in effect for violations of 14 C.F.R. §§ 91.11, 121.580, 125.328, or 135.120 committed by an individual whenhe or she aims a laser beam at an aircraft: 1. Informal action (oral orwritten counseling) and administrative action (warning notices or letters ofcorrection) are not used to address such violations. 2. A single, first-time, inadvertent or non-deliberate violation by an individual generally warrants a civil penalty in the moderate range ($2,200-$4,399). 1

1An 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 or non-deliberate violation. H-4

### 05/01/12 2150.38, Chg 4 Appendix H 3. For a deliberate violation by an individual not holding an airman certificate, theFAA may seeka civil penaltyup tothe statutory maximum of$11,000 perviolation under49 U.S.C. § 46301(a)(5)(A).
4. For a deliberate violation by an airman certificate holder, regardless ofwhetherthe airman was exercising the privileges ofhis or her certificate at the time ofthe violation, the appropriate sanction generally is revocation ofthe airman certificate. A civilpenalty in the maximumrange may be appropriate in addition to certificate revocation.
5. The FAA's Regional Counsel Offices will coordinate withFAA's Office ofChief Counsel, Enforcement Division, in initiating and processing these legal enforcement actions.



### H-5