When is criminal law necessary for aviation safety?

[Winthrop]

When does a safety violation necessitate the threat of violence for enforcement purposes? It seems to me that the potential threat to the public from unsafe aircraft is palpable, but perhaps Peter will disagree. Of course, it is also possible that the regulations which do exist actually do more harm than good.

 

[PeterNSteinmetz]

I am inclined to agree there is some risk to the general public from people flying airplanes. The question is how much and how well that can be judged. And then based on those facts, whether that justifies threats of violence for enforcement (as noted originally by @rotorwrench, the FAA cannot directly enforce using violence, it can only refer to others to do so).

Almost any activity in public involves some risk to the public using the same resources. Consider driving a car on a public street. If I drive my car at 120 mph down the street in front of us while ignoring others nearby, I have likely noticeably increased the risk of killing the small girl who lives across the street. If I drive at 15 mph and pay attention, I have still raised the risk of my killing her compared to my not driving at all, but it is a much smaller increase and generally thought of as an acceptable trade-off for my convenience of driving.

Continuing with this analogy, when we introduce laws about this, such as speed limits or safety requirements for vehicles, we also create a risk of that law causing undesired side effects. For example, I might have a broken taillight and am pulled over because of it. Perhaps the LEO then mistakenly thinks I am reaching for a gun to shoot him when I am going to get my flashlight. I am doing so because it is night and I need to find my registration. He then shoots me in what he believes to be self defense. That may be rather unlikely, but the risk of this sort of mistake and others like it may be great enough to offset the risk posed by my driving 30 mph.

 

[rotorwrench]

When is criminal law necessary for aviation safety?

When the FAA enforcement process fails to stop or prevent the continuing of an unsafe act or operation. However, based on a previous thread’s discussion it appears some background info is required.

There are 2 levels of aviation enforcement: the FAA Enforcement level and the Federal Criminal Aviation level. And any aviation attorney worth their salt will always recommend to never cross the red line that separates them.

An example perhaps. Capt. Bubba is a commercial pilot who offers for-hire services with his aircraft. After several years, times get tough, so he decides to cut costs. He elects to forgo his required maintenance inspections, and instead forges those inspection entries with various mechanics names/numbers.

A year later, Bubba has a minor incident and during the FAA investigation it is determined the aircraft has no valid 100 hour or annual inspection, so he receives an FAA LOI.

In the following weeks/months, the FAA enforcement process moves through the steps and subsequent appeals from the FSDO up to a full board appeal, but Bubba loses and has his pilot certificate revoked and his aircraft’s AWC is pulled. At this point the FAA is done. No further FAA enforcement action is possible.

However, Bubba decides to move to a different state, buy another aircraft, and set up for-hire ops again. 6 months go by. Then Bubba gets ramp checked. And during this new FAA investigation, it is discovered Bubba has no valid certificate or medical. Except now he himself… not the FAA… has crossed the dreaded red line to the Federal Criminal Aviation level. All’s the FAA is permitted to do is refer the investigation to the DOT OIG and they are basically done with the matter.

So without the criminal aviation side, with its stricter penalties and punishments, Bubba could potentially operate forever or at least until he killed someone or himself. Unfortunately, there are a number of “Bubbas” out there who have actually killed people and a larger number who haven’t been caught yet.

Regardless, to put the federal criminal aviation side into perspective, only about 17 cases out of the 1000s of FAA violations issued in 2023 made it to the federal criminal level. So the “hypothesis” from other threads that somehow an FAA enforcement action can directly end with armed intervention or the threat of, is simply not true. Plus it also takes the individual (Bubba) to make a conscious decision to engage in that criminal activity even after the FAA is done.

 

[PeterNSteinmetz]

When the FAA enforcement process fails to stop or prevent the continuing of an unsafe act or operation. However, based on a previous thread’s discussion it appears some background info is required.

...

So without the criminal aviation side, with its stricter penalties and punishments, Bubba could potentially operate forever or at least until he killed someone or himself. Unfortunately, there are a number of “Bubbas” out there who have actually killed people and a larger number who haven’t been caught yet.

Regardless, to put the federal criminal aviation side into perspective, only about 17 cases out of the 1000s of FAA violations issued in 2023 made it to the federal criminal level. So the “hypothesis” from other threads that somehow an FAA enforcement action can directly end with armed intervention or the threat of, is simply not true. Plus it also takes the individual (Bubba) to make a conscious decision to engage in that criminal activity even after the FAA is done.

This post provides some valuable information, thanks.

In terms of my post #2 here, the question which is critical in my view is how dangerous is Bubba really to the general public? He may be a danger to himself and a liability to his insurer, but to others? There should likely also be a distinction between the danger to those who choose to deal with him and everyone else nearby.

Another critical question to consider is how certain are we of these risks. I think these questions are critical to the central issue of when criminal enforcement or the threat of it is justified.

 

[rotorwrench]

he question which is critical in my view is how dangerous is Bubba really to the general public? He may be a danger to himself and a liability to his insurer, but to others?

Well since my example was pulled from several actual events resulting in 5 people killed, I think those questions should be asked to the survivors of the 5 killed. I think they will give you the most accurate answer.

While analytical study may work for you and insurance companies who care little about body counts, when the actual body count hits in your house you tend to want answers on how and why the system failed. If I remember the actual transcripts correctly, one Bubba wife admonished the FAA investigators in the room why they didn’t save her husband from himself.

Another critical question to consider is how certain are we of these risks.

Fairly certain based on lower accident rates and the improvement of safety factors over the years as the regulatory system matured. But keep in mind, the minimum mx requirement for a private aircraft is one annual inspection and AD notes. Not really much oversight in the big picture given most accident causes are pilot related and not mx related. But if that’s still too much oversight for you there is E/AB as an alternative.

Another way to look at it. If you and your grandson are at a fly-in and he wants to fly on 10 different privately-owned certified aircraft there, how would you be certain each of those aircraft presented an acceptable risk to let him fly in?

 

[PeterNSteinmetz]

Well since my example was pulled from several actual events resulting in 5 people killed, I think those questions should be asked to the survivors of the 5 killed. I think they will give you the most accurate answer.

While analytical study may work for you and insurance companies who care little about body counts, when the actual body count hits in your house you tend to want answers on how and why the system failed. If I remember the actual transcripts correctly, one Bubba wife admonished the FAA investigators in the room why they didn’t save her husband from himself.

Certainly that posts raises a number of good issues. Let's try and parse them one at a time.

So here is a question that is sort of basic here. Do you think that which actions are regulated and potentially criminalized by the government should be decided by emotional appeals in particular cases, or by objective consideration of the data overall and the risk/benefit tradeoffs, or by some other method?

 

[rotorwrench]

Do you think that which actions are regulated and potentially criminalized by the government should be decided by emotional appeals in particular cases, or by objective consideration of the data overall and the risk/benefit tradeoffs, or by some other method?

The “emotional appeals” are only on the congressional side. If you can figure out a way to make that process less emotional you would a hero. Unfortunately, there have been a number of aviation statutes created by emotional congressional members.

The rulemaking or regulatory side is a robust system of committees, rulemaking processes, and public notices that follows the items in the second half of your question.

A couple examples of the rulemaking side. First is a proposed rule for aircraft-based network safety design standards. The public comment period ends in October 2024.

And the second is a link to the 2017 final rule that rewrote Part 23 by removing over 900 individual regulations and replacing them with performance-based consensus standards that are listed in various ACs.

 

[PeterNSteinmetz]

The “emotional appeals” are only on the congressional side. If you can figure out a way to make that process less emotional you would a hero. Unfortunately, there have been a number of aviation statutes created by emotional congressional members.

The rulemaking or regulatory side is a robust system of committees, rulemaking processes, and public notices that follows the items in the second half of your question.

A couple examples of the rulemaking side. First is a proposed rule for aircraft-based network safety design standards. The public comment period ends in October 2024.

And the second is a link to the 2017 final rule that rewrote Part 23 by removing over 900 individual regulations and replacing them with performance-based consensus standards that are listed in various ACs.

Thanks for the historical perspective. But how do you think these decisions should be made? Because that is what I assume you are judging when you opine that the rule should be this or that way, is fair or unfair, justifies criminalization or not, etc.

 

[rotorwrench]

But how do you think these decisions should be made?

I don’t quite follow the question. But I don’t find much problem in how they currently make those decisions???

Regardless, I also think that since the FAA is no longer funded at a level to maintain their current responsibilities properly, congress should allow the FAA to tweak things to reduce some of those responsibilities but still provide the necessary guidance to keeps things orderly.

 

[PeterNSteinmetz]

I don’t quite follow the question. But I don’t find much problem in how they currently make those decisions???

Well, if it were up to you, how would you make them? What sort of standards would you apply to determine whether a given action should be regulated by the government and/or criminalized?

We are talking normative standards, or what is necessary in this thread, so this is right at the core of that.

 

[Winthrop]

Regardless, I also think that since the FAA is no longer funded at a level to maintain their current responsibilities properly, congress should allow the FAA to tweak things to reduce some of those responsibilities but still provide the necessary guidance to keeps things orderly.

Congress should do many things, but they do not do them.

 

[Winthrop]

Capt. Bubba???

So maybe take a more extreme real world example, perhaps the crash of N114TD in 2018. In that case, a Falcon 50 crashed due to improperly trained pilots and an aircraft which should not have even been in the air. It seems that this happens with some frequency in Part 135 where oversight is more or less non-existent. The problem is that with the pilot and owner dead, criminal law does not do you much good. However, I would aver that it might be prudent for the FAA to do more overseeing Part 135 operations and given that these people are holding themselves out to the public as FAA approved, perhaps some "state sponsored violence?"

 

[PeterNSteinmetz]

So maybe take a more extreme real world example, perhaps the crash of N114TD in 2018. In that case, a Falcon 50 crashed due to improperly trained pilots and an aircraft which should not have even been in the air. It seems that this happens with some frequency in Part 135 where oversight is more or less non-existent. The problem is that with the pilot and owner dead, criminal law does not do you much good. However, I would aver that it might be prudent for the FAA to do more overseeing Part 135 operations and given that these people are holding themselves out to the public as FAA approved, perhaps some "state sponsored violence?"

Another alternative would be to simply remove the FAA approval. Then buyers would need to become more aware of what they are purchasing. Perhaps they would even evolve the equivalent of a Consumers Union for airlines and a set of standards they must meet to receive approval.

In terms of the main question in this thread, people on the ground who have no choice could argue about aggression on the part of the operators. For people who choose to do business with them, isn’t this more like a fraud or contract breach? It strikes me as a typical failure of professional licensing schemes actually.

 

[Winthrop]

Another alternative would be to simply remove the FAA approval. Then buyers would need to become more aware of what they are purchasing. Perhaps they would even evolve the equivalent of a Consumers Union for airlines and a set of standards they must meet to receive approval.

I think there is a strong argument that the FAA makes aviation safety worse . Passengers think that if an operator holds a certificate from the FAA it must be safe. While if there was no FAA then people would be further incentivized to research air carriers. A 121 example would be Delta Air Lines Flight 1288 where the MD88 in question had a history of issues, but they adhered to FAA guidelines, just not common sense and ethics.

 

[rotorwrench]

Well, if it were up to you, how would you make them? What sort of standards would you apply to determine whether a given action should be regulated by the government and/or criminalized?

I’m still not following. Perhaps an example? But if you are asking if I could personally make all the laws and regulations for the aviation industry... what standards I would use... then that wouldn’t be very realistic as I would only use my personal standards and probably piss off a number of people.

However, I would aver that it might be prudent for the FAA to do more overseeing Part 135 operations [...]

Definitely. Except oversight requires funding and employees which congress has repeatedly refused to issue or increase since the 1980s. This has led to consolidation of oversight offices, which in turn reduced the number of ASIs available to provide oversight of all sectors.

So as certain sectors in the aviation industry have expanded, the FAA has been forced to prioritize oversight to these larger sectors. And in order to maintain limited oversight/surveillance on the smaller sectors, they have spread those oversight ASIs very thin. Which has caused issues on both domestic and internal levels and may just cause the US to lose its status as the “bastion” of aviation.

Regardless, the most unfortunate result of this stretched thin oversight/surveillance network is more people are following the path of non-compliance like your Falcon guys. And its not only at the 135 level. For example, there has been a marked increase at private Part 91 level where more aircraft don’t conform or the owners are adding “non-compliance” to their vocabulary. In the days of GADO level oversight this was hardly an issue on this scale.

Then buyers would need to become more aware of what they are purchasing.

While if there was no FAA then people would be further incentivized to research air carriers.

Not in my experience. I don’t know much about the Part 121 side but on the Part 135/136 helicopter tour side, 99% of the pax will not research operators except to know how much and where they fly. And I haven’t noted any difference in Part 121 pax either.

For example, there was a helicopter tour operator who had a fatal accident. As this is a high-volume operation, there were 3 other aircraft loaded with pax running on the ramp. Due to the accident the company shutdown ops to work the accident scene. Every single pax that was waiting in those helicopters demanded an immediate refund so they could go another operator down the road to complete their sight-seeing flights. And this is only one example.

So thinking your average pax will research an airline or any flight company outside cost or destinations is more wishful thinking as most view aircraft as nothing more than a flying bus or uber. And speaking of buses, the CEO of Ryan Air tried to get an EASA exemption to allow pax to stand in the aisles during flights and hold on to the loop straps like in a bus. He stated he would sell out on those discounted tickets on every flight.

So if you look deep enough, you’ll find one of the reasons we have certain aviation laws and regs is because after an accident its those same pax who will complain to their govt representatives and demand they keep them safe on commercial aircraft even though they won’t lift a finger to do that themselves.

 

[PeterNSteinmetz]

I’m still not following. Perhaps an example? But if you are asking if I could personally make all the laws and regulations for the aviation industry... what standards I would use... then that wouldn’t be very realistic as I would only use my personal standards and probably piss off a number of people.

Ok here’s an example. The FAA says it believes that the risk of people carrying a firearm on a GA aircraft merits banning the carriage of any firearm on a flight operated under part 91.

Certainly there are some small risks here and the FAA says that is enough that they are banning them. However, you get to make the final decision.

What principles, if any, would you apply in making the decision? And why would you use those principles?

 

[rotorwrench]

The FAA says it believes that the risk of people carrying a firearm on a GA aircraft merits banning the carriage of any firearm on a flight operated under part 91.

Since there has been no prohibition for firearm carriage on Part 91 aircraft that I know of… nor would I support one, I doubt the FAA would have the authority to ban that given it deals with a constitutional right. However, I think I see what you are looking for so perhaps a more relevant example?

So the FAA determines there is an increase in undocumented maintenance being reported on privately-owned Part 91 aircraft which is leading to more serious issues like aircraft incidents and improper enforcement actions.

Further investigation finds there was no mechanic involved with the undocumented mx and only the aircraft owner is involved. Reviewing the applicable standards, they find several pertinent rules: 43.9, 91.403, 91.405 which indicate all mx must be documented with the owner assuming the responsibility for those write ups.

The risks of that undocumented mx include the potential to degrade previous or future mx tasks, contribute to increased unairworthy/unsafe aircraft conditions, and the potential for that undocumented mx to be falsely attributed to other persons.

To address those risks the FAA decides to add a rule requiring each Standard AWC aircraft owner/operator to make a mx record entry stating the aircraft has been maintained in accordance with Block 6 of the AWC immediately prior to the performance of a required 100hr/Annual inspection.

So based on the above regulatory standards and the principal of the aviation industry is a closed system that requires rule compliance to maintain system integrity, I would decide to implement the new rule as a simple, efficient way to mitigate the risks and provide accountability to the existing standards and principals.

 

[Winthrop]

I am not sure why the FAA would lack authority to do that. There is 14 CFR § 135.119 which is kinda vague. USCG has implemented some guns bans and while I am not sure they are entirely legal, they are doing it anyways.

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[PeterNSteinmetz]

Since there has been no prohibition for firearm carriage on Part 91 aircraft that I know of… nor would I support one, I doubt the FAA would have the authority to ban that given it deals with a constitutional right.

Let's call this example 1. So would you sole or primary reason for not supporting one be that it is unconstitutional? Or are there other issues?

So the FAA determines there is an increase in undocumented maintenance being reported on privately-owned Part 91 aircraft which is leading to more serious issues like aircraft incidents and improper enforcement actions.

Further investigation finds there was no mechanic involved with the undocumented mx and only the aircraft owner is involved. Reviewing the applicable standards, they find several pertinent rules: 43.9, 91.403, 91.405 which indicate all mx must be documented with the owner assuming the responsibility for those write ups.

The risks of that undocumented mx include the potential to degrade previous or future mx tasks, contribute to increased unairworthy/unsafe aircraft conditions, and the potential for that undocumented mx to be falsely attributed to other persons.

To address those risks the FAA decides to add a rule requiring each Standard AWC aircraft owner/operator to make a mx record entry stating the aircraft has been maintained in accordance with Block 6 of the AWC immediately prior to the performance of a required 100hr/Annual inspection.

So based on the above regulatory standards and the principal of the aviation industry is a closed system that requires rule compliance to maintain system integrity, I would decide to implement the new rule as a simple, efficient way to mitigate the risks and provide accountability to the existing standards and principals.

Let's call this example 2. So for this example -

Would the potential costs of compliance factor into your decision?
How strong would the evidence supporting the idea that this was the cause have to be?

 

[rotorwrench]

I am not sure why the FAA would lack authority to do that. There is 14 CFR § 135.119 which is kinda vague.

I believe the underlying US law to 135.119 and similar regs only addresses common carrier ops. So without an existing Part 91 US law to base their authority on, I doubt the FAA could do anything of that nature on a private aircraft. No clue on the USCG side.

Let's call this example 1. So would you sole or primary reason for not supporting one be that it is unconstitutional? Or are there other issues?

Primary reason for the 1st part. And for the 2nd part, no, as private Part 91 ops do not directly affect the general public as a whole, so I see no reason to restrict any weapon and leave it up to the owner/operator to handle it as they would their private vehicle.

Let's call this example 2. So for this example - Would the potential costs of compliance factor into your decision?

Yes, as that is a legal requirement for the NPRM process for any proposed regulation and is usually included in each notice.

How strong would the evidence supporting the idea that this was the cause have to be?

The “evidence” would have to be substantiated in some form which is also part of the existing NPRM process. For example, the FAA SDR/FAA ASIAS/NASA ASRS/NTSB reporting could be used. Or FAA enforcement records could also be another and so on. Or if warranted, a field airworthiness review could be used to sample various industry and regulatory experiences as well. A summery of which would be listed in the proposed NPRM.