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LOCAL ENFORCEMENT OF CIVIL AVIATION SAFETY

REGULATIONS

MONDAY, MAY 17, 1948

UNITED STATES SENATE,
SUBCOMMITTEE OF THE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE,

Washington, D. C. The subcommittee met at 2:30 p. m., pursuant to call, in room 57, Senate Office Building, Senator Owen Brewster, chairman of the subcommittee, presiding.

Present: Senators Brewster (chairman of the subcommittee) and Hawkes.

Senator HAWKES (presiding). We will proceed with the hearing on S. 2452, a bill to amend the Civil Aeronautics Act of 1938, as amended, with respect to local enforcement of safety regulations of civil aviation, and for other purposes.

I shall ask that the reporter insert the bill in the record at this point.

(S. 2452 is as follows:)

[S. 2452, 80th Cong., 2d sess. ]

A BILL To amend the Civil Aeronautics Act of 1938, as amended, with respect to local

enforcement of safety regulations of civil aviation, and for other purposes Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Civil Aeronautics Act of 1938, as amended, is amended by striking out "interstate, overseas, or foreign air commerce" and "air commerce" wherever appearing therein, and inserting in lieu thereof "air navigation."

SEC. 2. (a) Section 1 of such Act is amended by striking out paragraph (3) of such section and inserting in lieu thereof the following paragraph :

“(3) ‘Air navigation means the operation of navigation of aircraft (a) upon any airport in the United States or in the air space over the United States, or (b) to or from any place in the United States whether or not through the air space over the United States."

(b) Such section 1 is further amended by striking out paragraph (20) of such section and renumbering the remaining paragraphs of such section accordingly.

SEC. 3. Title VI of such Act is amended by inserting after section 610 the following new section :

"ENFORCEMENT IN LOCIL COURTS AND AGENCIES

“SEC. 611. (a) As used in this section (1) the term 'State' includes a Territory or possession of the United States and the District of Columbia, and (2) the term State agency' means any agency of a State which, by the law of such State, is authorized to exercise the powers granted by subsections (c) and (d) of this section.

“(b) Any person violating any provision of paragraph (1), (2), (3), or (5) of section 610 (a) may be proceeded against in a state court. All civil penalties collected by reason of a judgment in a proceeding in a State court, arising out of a violation of any such provision, shall be paid to such State.

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"(c) Any State court or State agency, after notice to the defendant and an opportunity for hearing, may suspend in whole or in part for a period not exceeding six months any certified airman for violation of any air traffic rule promulgated by the Civil Aeronautics Board pursuant to section 601 (7). If in any proceeding brought under this subsection it appears from reliable evidence that such a violation has occurred and that there is need for emergency action to protect the public safety, the court or agency, without prior notice to the defendant, may by order suspend an airman certificate in whole or in part for a period not in excess of thirty days. At the time of service of such order of suspension, or as soon therafter as practicable, there shall be served upon such airman a complaint containing the charges on which such order is based, and prior to the termination of such thirty-day period he shall be given the opportunity for hearing above provided for.

"(d) Any State court or State agency, after notice to the defendant and an opportunity for hearing, may suspend in whole or in part for a period not exceeding six months any airworthiness certificate, airman certificate, or air agency certificate for such violations of regulations promulgated under this title as the Civil Aeronautics Board, by regulations, shall from time to time designate.

"(e) The jurisdiction exercised by State courts or State agencies pursuant to this section shall be concurrent with the jurisdiction of the Federal courts or the Civil Aeronautics Board, as the case may be, notwithstanding the provisions of section 256 of the Judicial Code, as amended (U. S. C., 1940 edition, title 28, sec. 371).

“(f) Actions or proceedings in the name of the United States may be brought in a State court or State agency, under subsection (b), (c), or (d) of this section, by the district attorney of the United States for the district in which the offense was committed. Actions or proceedings may be brought in a State court, under subsection (b), (c), or (d) of this section, by any official of the State authorized to prosecute persons in courts of the State for offenses against the laws of the State. Proceedings may be brought in a State agency, under subsection (c) or (d) of this section, by any official of the State authorized by law of the State to bring such proceedings. Section 771 of the Revised Statutes, as amended (U. S. C., 1940 edition, title 28, sec. 485), shall not apply in any case in which any person is proceeded against under subsection (b) of this section by an official of a State.

"(g) When any action or proceeding is commenced in a State court or State agency pursuant to this section a copy of the complaint or other document initiating such action or proceeding shall be filed with the Civil Aeronautics Board by the official bringing such action or proceeding; and there shall also be filed with the Board, by the appropriate official of the State court or State agency, a copy of any judgment or any final order or decree issued in any such action or proceeding. The places at which such copies of complaints, documents, judgments, orders, or decrees shall be filed, in the case of actions or proceedings brought in the various States, shall be designated by the Board by regulations.

"(h) This section shall not be applicable with respect to any act or omission of any air carrier holding a certificate of public convenience and necessity issueil pursuant to this Act nor with respect to the act or omission of any employee of such air carrier while acting for such air carrier."

SEC. 4. Title VIII of such Act is amended by changing the title heading to read as follows: "TITLE VIII-OTHER GOVERNMENTAL AL THORITIES," and by inserting after section S03 thereof the following new section :

"UNIFORM REGULATION OF SAFETY OF AIR NAVIGATION "SEC. 804. In order to promote the fullest and safest development of air navi. Lation and because of the unique characteristics of the facilities used in air navigation and the special nature of the regulatory problems involved, it is necessary in the public interest that regulation of air navigation be as nearly uniform as practicable throughout the Nation, and that persons engaged in air navigation not be subjected to duplicating or conflicting regulation with respect to safety. No State, Territory, or possession of the United States, or political subdivision thereof, shall, without the consent of Congress, impose upon any person any prohibition or requirement which relates to the same subject matter as any provision of title VI of this Act."

Senator HAWKES. Before proceeding with the hearings I would like to insert in the record reports from the Department of Commerce and Department of National Defense and Civil Aeronautics Board.

(The reports are as follows:)

THE SECRETARY OF COMMERCE,

Washington 25, May 7, 1948. Hon. WALLACE H. WHITE, Jr., Chairman, Committee on Interstate and Foreign Commerce,

United States Senate, Washington, D. C. DEAR MR. CHAIRMAN: This letter is in further reply to your communication of April 7, 1948, requesting the comments of this Department on S. 2452, a bill to amend the Civil Aeronautics Act of 1938, as amended, with respect to local enforcement of safety regulations of civil aviation, and for other purposes.

This bill is intended to broaden the scope of the Civil Aeronautics Act of 1938 by substituting the words “air navigation” for the present phrase "air commerce"; would give State courts and State agencies jurisdiction to decide issues involving certain alleged violations of the civil air regulations; and would prevent States, Territories, and possessions of the United States from imposing prohibitions or requirements relating to the subject matter of title VI (relating to civil aeronautics safety regulations) of the Civil Aeronautics Act of 1938.

The Department is of the opinion that the cooperation of State aeronautical officials and State courts should be secured in the enforcement of those portions of the civil air regulations of the Civil Aeronautics Board which are in effect air-traffic rules and air regulations prohibiting the careless operation of aircraft. It is believed, however, that the authority of the States should not extend to carriers engaged in interstate air commerce and should not extend to the revocation of an airman certificate as distinguished from the suspension of such certificate. Such a policy has been furthered by the Civil Aeronautics Administration which has cooperated with the States in promoting the adoption of uniform State aeronautical statutes and has conducted extensive training courses for the officers of States cooperating in the program with the view toward having standard enforcement practices and rules applied whenever possible. The Civil Aeronautics Authority has also cooperated with the National Association of State Aeronautical Officials and other organizations representing the States in working out a State-Federal policy for the enforcement of air-traffic rules mutually satisfactory to both the States and Federal Government.

In view of this already existing approach to the problem, the Department is in favor of an appropriate amendment to the Civil Aeronautics Act of 1938 which would authorize State officials to determine certain questions of violation of the act, including authority to suspend airman certificates. This position is consistent with the proposal (recommendation 24 (b) of the national aviation policy) made by the Congressional Aviation Policy Board governing violations of nonair carrier air traffic regulations of the Civil Aeronautics Board. Such an amendment would be in furtherance of the Civil Aeronautics Administration's policy of assigning functions and responsibilities to local governments and private enterprise whenever possible. It is the opinion of the Department of Commerce, however, that the subject bill goes considerably beyond what we believe to be the appropriate area of State jurisdiction. This conclusion is evidenced by the following comments on specific sections of the bill:

SECTIONS 1 AND 2

Sections 1 and 2 are apparently designed to broaden the scope of the Civil Aeronautics Act of 1938 by substituting the words “air navigation” as defined in S. 2452 for the words "air commerce" as defined in the Civil Aeronautics Act of 1939 as it now reads. We should like to point out that this substitution would have the opposite effect of narrowing the coverage in the following instances :

(a) "Air commerce" includes the transportation by a United States air carrier of persons and property from a place in the United States to an ultimate destination outside the United States; "air navigation" would cover transportation from the United States to an intermediate destination outside he United States but, if a different aircraft were used by the air carrier for transportation between the intermediate destination and the ultimate destination, it would not cover the latter operations; and

ris) "Air commerce" covers transportation partly by aircraft and partly by other modes of transportation ; "air navigation" covers transportation by air(raft only.

SECTION 3

Section 3 of S. 2452 gives State courts and State agencies jurisdiction to hear and decide issues involving violations of section 610 of the Civil Aeronautics Act of 1938, by adding a new section to title VI. This proposal should more appropriately be a part of title IX, which deals with the jurisdiction of the court and procedures with respect to section 610.

“State agency” is defined in S. 2452 as “any agency of a State which, by the law of such State, is authorized to exercise the powers granted by subsections (c) and (d) of this section.” Under this definition, a single individual without judicial experience could hear and decide all cases coming within the juris. diction of the agency. We believe that "State agency" should be redefined to insure that it will consist of a body that is reasonably competent to undertake judicial deliberation, similar to the Civil Aeronautics Board, or that, in the alternative, reference to "State agency” should be stricken from S. 2452.

We seriously oppose the provisions of section 611 (d) authorizing State courts and State agencies to suspend airworthiness certificates and air-agency certificates. These certificates are issued by the United States Government on the basis of acreful examination by highly qualified technical personnel of CAA. It is extremely doubtful that any State will be able to support a technical staff sufficiently qualified to establish in the State courts or before State agencies facts calling for the suspension of an airworthiness certificate or air-agency certificate.

Section 3 restricts its applicability to operations other than to those of “an air carrier holding a certificate of public convenience and necessity.” This provision would appear to give preferential treatment to a group within a class. In our judgment it ought to be amended to apply to all aircraft engaged in interstate commerce for compensation or hire.

While the Department of Commerce recognizes the need for an appropriate amendment to the Civil Aeronautics Act of 1938, authorizing State enforcement officials to bring actions under the act. It nevertheless, in consideration of the objections to this bill, indicated above, is unable to recommend the enactment of S. 2452.

I have been informed by the Director of the Bureau of the Budget that there is no objection to the submission of this report for the consideration of the committee.

If we can be of further assistance in this matter, please feel free to call upon us. Sincerely yours,

WILLIAM C. FOSTER, Acting Secretary of Commerce.

THE SECRETARY OF DEFI

Washington, April 17, 19.8. . Hon. WALLACE H. WHITE, Jr., Chairman, Conimittee on Interstate and Foreign ('ommerce,

United States Senate. DEAR MR. CHAIRMAN: Further reference is made to your letter of April 7 and 9, 1948, requesting the views of this office on S. 2455, to amend the Civil Aeronautics Act of 1938, as amended, by limiting the liability of certain persons not in possession of aircraft; S. 2452, to amend the Civil Aeronautics Act of 1938, as amended, with respect to local enforcement of safety regulations of civil aviation, and for other purposes; S. 2467, to amend the Interstate Commerce Act and the Civil Aeronautics Act of 1938, so as to penalize black marketing of transporta tickes.

The above-numbered bills are concerned with activities and functions outside the primary interests of the National Military Establishment. For this reason, the National Military Establishment has no comment to offer on their provisions and no objection from a military standpoint to their adoption after whatever consideration your committee may give them.

The Departments of the Army, Navy, and Air Force and this office concur in the above views.

The Director of the Bureau of the Budget has advised this office that there is no objection to the submission of this report. Sincerely your's,

JAMES FORRESTAL.

COMMENTS OF THE CIVIL AERONAUTICS BOARD BEFORE THE SENATE COMMITTEE ON

INTERSTATE AND FOREIGN COMMERCE RELATIVE TO ITS CONSIDERATION OF S. 2452,
MAY 17, 1948

S. 2452 is responsive to recommendation No. 24, particularly paragraph (b) thereof, of the Congressional Aviation Policy Board with which the Civil Aeronautics Board fully concurs. It is also generally consistent with the recommendations of the President's Air Policy Commission (p. 126), and of certain industry groups such as the National Aeronautical Association which adopted a bill of policy to this effect at the Fifth National Aviation Clinic at Springfield, Ill., in November 1947. Insofar as the bill would authorize State enforcement of Federal air-traffic rules it also embodies the recommendations of the National Association of State Aviation Officials.

Since S. 2452 would amend the Civil Aeronautics Act of 1938 so as to clarify, and perhaps to extend somewhat, the jurisdiction of the Federal Government over regulation of air safety, and also to grant State courts and agencies a measure of concurrent jurisdiction over violations of safety regulations promulgated by the Federal Government, it may be helpful to delineate briefly the present jurisdiction of the Board and the methods of enforcing its regulations.

At the present time the Board is empowered to prescribe regulations and standards to promote the safety of flight in air commerce. Air commerce as defined in the act includes (1) all commercial traffic by air in interstate, overseas, or foreign commerce, (2) any transportation of nail by aircraft, (3) any operation or navigation of aircraft within the limits of any civil airways, and (4) any operation or navigation of aircraft, whether for commercial purposes or not, which directly affects or may endanger safety in any of the preceding categories of traffic. Accordingly, the Board now has jurisdiction to promulgate safety regulations governing not only movement of aircraft actually engaging in interstate or foreign commerce, but also any movement of aircraft, whether or not for commercial purposes or wholly within a single State, where the Board finds that such movement affects or may endanger safety of aircraft actually engaging in interstate or foreign commerce.

In the exercise of its jurisdiction under these provisions, the Board in 1941, finding such action necessary in view of the great growth in both civil and military aviation activity, promulgated regulations requiring that all aircraft operating in the airspace over the United States have certiticates of airworthiness issued by the Federal Government and that all airmen likewise have certificates issued by the Federal Government. Upon being challenged in court, the validity of these regulations as a proper exercise of the jurisdiction vested in the Board has been sustained (United States v. Drumm, 55 F. Supp. 151 (D. C. Nev. 1944) ; Rosenhan v. United States, 131 F. (20) 932 (CCA 10th 1942)).

The Civil Aeronautics Act of 1938 provides two types of sanctions for the safety regulations promulgated by the Board. The first is an action in the Federal district courts for a civil penalty of not more than $1,000 for each violation. Such actions are instituted by a United States district attorney upon request of the Administrator of Civil Aeronautics. The Administrator is, however, authorized to compromise such civil penalties with the violator; that is, to accept payment of a civil penalty in an amount agreed upon in satisfaction of the alleged violation. The second type of sanction is an action against an airman certificate, aircraft airworthiness certificate, air carrier operating certificate, or similar certificate. Such action takes the form either of a suspension of the certificate for a prescribed period when such action is in the interest of the public, or a revocation of the certificate for a violation of a character which would have authorized the Board to refuse to issue a certificate in the first instance. Actions to suspend or revoke certificates are prosecuted by attorneys of the Civil Aeronautics Administration before examiners of the Civil Aeronautics Board. Such examiners issue an initial decision which, if not appealed to the Board, becomes final. If appeal is taken, then the Board reviews the matter and issues its order disposing of the proceeding.

Under this program, enforcement of the Federal safety regulations is vested entirely in the hands of Federal agencies. This enforcement system has the undeniable advantage of providing for maximum uniformity in treatment. However, as the Congressional Air Policy Board has pointed out: “The essence of effective enforcement of safety regulations is the speedy and just handling of alleged violations." Prompt action against violations is undoubtedy essential to an effective enforcement program. Under the present system the necessary speed in handling cannot be achieved as your Board indicated without "unduly increasing

Federal personnel" (recommendation 24 (b)). Despite

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