# Petition for Writ of Certiorari — Air Line Pilots Ass'n, International v. Quesada

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1961
- **Citation:** 366 U.S. 962

## Text

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PT REE oss pciw nb aescaedecwencecvaxs 13 -
Parker v. Fleming, 329 U. S. 531 (1947) .......... 11, 18
Parker v. Lester, 112 F. Supp. 433 (D..C. Cal. 1953)
aff'd 277.¥. 2d 708 og Re eee rer 33

Philadelphia Co. v. Securities Exchange Commis-
sion, 164 F. 2d 889, 899 (D. C. Cir. 1947), vacated
and dismissed as moot, 337.U. S. 901, (1949) ... . 29, 33

Powell v. United States, 300 U. S. 276, 284-85 (1937) 29

L. Singer and Sons v. Union Pacific RR., 311 U.S.

295, BOL (IMO) oer eteeeeeeees 18
United States v. Alabama Railroad Co., 142 U SS. |
Se fo teh ee cees CUL ea eu end ies 26
United States vy. Atlantic Refining Co., 360 U. S. |
Cr firs Ves Ca eC eee. a oie, 26
United States v. Seatrain Lines, Ine., 329 ss CC
424, 432 (1947) . 62.2.2... ome Ner or 13

Vinson v. Hobby, 114 I’. Supp. 663 (D. ¢. W. Va.
: 1953) _ Blea Rn POO ae sd ee beuhanacans 21

LBW ike Ine. v. Federal Communications Com- .
mission, 170 F. 2d 793 (D.C. Cir. 1948) ........ 29

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STATUTES: ras

PAGE”
Aibninintrntive e Pieiies e Act, 60 ‘Stat. 237, as
amended 5 L. S. C. § 1001, et is : hs
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ST ere eee ee eaioies MECC BREE
Administrative. Procedure Act, 60 Stat. 237, as
amended, 5 U.S. C., § 1001, et seq.:
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Civ rid Acronauties Act of 1938, G2 Gitat. 973 :.....:.: ". #
Civil. Air Regulations, Parts 20, 24, 29, 40, 41
SE og ey 5 TR Matty eae ee 3, 4,5, 24, 29
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Statutes (Continued) :
Ce eee ee SAAD te at 4,5, 28
a aa el ie AOR ne aut .
18,19, 20, 21, 22, 25427, 32, 37
Pe Sere ee acer eyelet pe
Federal “Aviation Act of 1958, 72 Stat, 731, 49
~ U.S.C. § 1301, et seq.:
{1300-1542 2... Creation veste Raterewry "29
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Sratetes (Continued):

§§ 1421-1430 ..... SER eee poree leeds cue «(8
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$1429 ...... ROT 5, 6, 7, 8, 9; 11, 18, 19, 20, 32, 37
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Judical Code, 28 U. S. C:
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N. Y. Generat Construczion Law
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— States Constitution -
Amendment V ....05.......0p.c0cseeeees 8, 27, 32, 34

CONGRESSIONAL MATERIAL

‘HH. R. Rep. No. 2360, 85th Cong. 2d Sess. +
are eee SE a ee ~ .12, 16, 17,23

-$. Rep. No. 1811, 85th Cong. 2d Sess. (1958).... °. 12
104-Cong. Rec. 13646 (1958) ......... nase 10

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Vii |
‘ PAGE
ConGREsSIONAL MarTeriaL (Continued) : |
Hearings Before: the Sub-Committee on Aviation .

of the Senate Committee’ on Interstate and
Foreign Commerce on S. 3880, 85th Cong. Sess. .
pages Sh aon es errr etre ye 15
pages 164- 165 ieee 65 C1560 b eters eeedanke 17

Hearings Before the Sub-Committee, of the House
Committee on Tnterstate & Foreign Commerce
on H. R2 12616, Soth Cong., 2d Sess. o4- 95 (W958) TT

Statement of Congressman Oren Harris, 104 c ong.

_ Ree. 1608] (1958) ........%: Ce aes ee" ee 4 17
Statement of Congressman Flynt, 104 cae Ree. - :
"16084 (1958) peed deena ks aoe eee eR A re '7
MiscELLAN BOUS .
Davis, Administrative Law, ‘$5.01, 5.06 (1958) .. 29
Gellhorn & Byse, Administrative Law, Cases and |
Comments, 774-75 (1954) ...........6. sa ete eee 32
N. Y. Genera! Construction Law, ¥en 13

Supreme Court uf the United States

October Term, 1960
No.

Ei
Vv

Ain Line Pivots Association, [NrerNATIONAL, an
unincorporated association, CLARENCE N, Sayen,-ete., et al.,
Petitioners,
4 cas against
. °
Kiwoop R. Quesava, individually and as Administrator
of the Federal Aviation Agency, o
4 yh. - Respondent.

ray
—

PETITION FOR / WRIT OF CERTIORARI TO
“ THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

Air Line*Pilots Association, International,. and the
individual. plaintiffs who are airline pilots and members
of Air Line Pilots Association, International, respectfully
pray that a writ of certiorari issue to review the judgment.
‘ot the United States Court of Appeals for the Second Cir-
cuit, entered in the above-entitled ease on February 9, 1961.

Opinions Below

~The opinion of the United States. Distriet Court ,for
the Southern District of New York‘ on the denial of, plain- ,
tiffs’ motion for a preliminary. injunction (Appendix to
Appellants’ Brief in the United States Court of Appeals
for the Second Cireuit, App. 315a-321)* is rgrortes at

*The Appendix to Appellants’ B rief in the United States Court
of Appeals for the Second Circuit that was prepared for purposes
of plaintiffs” appeal from the order denying their motion for a
preliminary injunction was also the major portion of the record
on which, plaintiffs’ appeal from the order grantirig defendant's
motion for summary judgment was heard. References to it are
‘designated ‘ “App.”

182 F. Supp. 595. The opinion of the Court of Appeals
affirming the denial of plaintiffs’ motiori for a preliminary
injunction (Appendix B, infra, pp. 65a- 75a) is reported
at 276 F. 2d 892. The opinion ofthe District Court grant-
ing defendant’s motion for summary judgment (Supple-
_ mentary Appendix for Appellants in the United States
Court of Appeals | ‘for the Second Circuit, Qupp! App.

' 326a)° and the opinion of the Court of Appeals affirming
the order granting defendant’s motion far summary judg-
ment (Appendix'C, infra, pp.-?6a-78a) have not yet been,
reported.

Jurisdiction

A judgment of the Court of Appeals affirming the °
denial of plaintiffs’ motion for a preliminary injunction
was dated and entered on April 21, 1960. The judgment
of the Court of Appeals affirming an @rder granting
defendant’s motion for summary judgment and dismiss-
ing the complaint .was dated and entered on February 9,
1961. The jurisdiction of this Court is invoked under
28 U. S. C. § 1254(1). ?

Questions Presented eo.

1. Whether the Administrator of the Federal Aviation
Agency may take action amending, modifying, suspending,
or revoking airmen certificates without complying with
Section 609 of the Federal Aviation Act of 1958?

2, Whether’ the due process clause of the Fifth Amend-

ment to the United States Constitution requires that airmen
_whose certificates are amended, modified or revoked be
‘accorded notice and hearing before the action becomes
effective with respect to their certificates?

*The Supplementary Appendix for Appellants in the United
States Court of Appeals for the Second Circuit consists of. pages
324a to 333a. References to it are designated “Supp. Hassall

’ United States Constitution? _

Constitution, Statutes and Regulations Involved

- The pertinent provisions of the United States Con-
stitution, “yy Federal Aviation Act of 1958 (72 Stat. 731,
49 U.S. C. § 1301, et seqg.), the Administrative Procedure
Act (60 Stat. 237, as amended, 5 U, S. C. § 1001, et seq.),
and the Civil Air Regulations are get forth in Appendix
A, infra, pages la-64a, 14 C. F. R., far 20, 21, 29 and 40.

*

Statement

Air Line Pilots Association, Intermatiorial, is an unin-
corporated association which represents the professional
airline pilots employed by scheduled United States gir

carriers. The individual plaintiffs herein are airline pilots
- who. hold airman certificates and Airline Transport Pilot
Rating Certificates for which they had duly qualified prior
to June 27, 1959- under the provisions of Title VI of the

Federal Aviation Act of 1958, 49 U. S. €. 4§ 1421-1430
and the relevant provisions of the Civil Air Regulations,
14-C. F. R., Parts 20, 21 and 29 and the predecessor statutes
and regulations. Prior to March 15, 1960, the date that
the administrative action attacked herein became effective
the individual plaintiffs were employed as pilots by various
scheduled United States air carriers; and nineteen of them
_ had reached the age of 60. .Elwood R, Quesada was the
Administrator of the Federal ‘Aviation Agency at. the time
that the administrative action challenged herein was taken ;
Najeeb Halaby, ‘his suecessor in office, has since been sub-
stituted for Quesada as defendant herein.

4.

On June 27, 1959, defendant, by publication wat 24 Fed.
Reg. 5247-5249 (1959) (App. 278a-28la), gave notice’ of

' intention to amend Parts 40, 41, and 42 of the Civil Air

Regulations which deal with certification and operation
rules for air carriers. Prior to the proposed. amendment,
14 C. F. R. § 40.260 provided:

‘Wtilization of airman. No air carrier shall utilize
an individual as an airman unless he holds a valid
appropriaté airman certificate issued by the Admin-
istrator and i is otherwi ise qualified for: the particular
operation in which he is to be utilized. =

The ‘Administrator proposed to. ouienl this section by —
designating the above text as paragraph (a): and adding

thereto a new paragraph (b), as follows:

- ‘No. individual who has reached ‘his, 55th birth:
day shall be utilized or serve as a pilot in command,
or as second in command of a flight crew of 3 or |
more pilots, on a turbojet-powered aircraft engaged
in air carrier operations unless he held an aircraft

_ type rating for the particular aircraft either prior

to such birthday or the effective date of this regula-

: tion. In addition; no individual who has reached

. his 60th birthday shall be utilized or serve as a

pilot’ on any aircraft “a in air carrier opera-
tions.”’

The same amendment was to be made in 14.C. FR.
§ 41.48 and 14 C. F. R. § 42.40.

The authority cited by the Administrator for the above
amendments was Sections 313(a), 601, 602 and 604 of the
ogi Aviation Act of 1958, 49 U. S. C. §§ 1354, 1421,

422 and 1424.

Written comment®,' both for and against the proposed
amendments, were received by the Administrator, including
opposing comment from the Air Line Pilots Association,
International, and individual pilots. In addition, plaintiff
Air Line Pilots Association, International, on behalf. of

~ :

4)

the individual plaintiffs herein .and on its own. behalf,
requested the Administrator to, schedule a hearing at which
the proposed amendments’ could be considered (App. Ta),

“The Administrator denied the or request for a hearing
. insofar as the age 60 maximum was concerned ( APP. seat
262a)..

On December 1, 1959, the Sdibalstintas issued the fol-
lowing amendment to Parts 40, 41 and 42 of the Civil Air
Regulations, 14 C. F. R.°§§ 40.260, 41.48 and 42.40:

‘*No individual who has reached his 60th birth-
day shall be utilized or serve as a pilot on any*
aircraft while engaged in air carrier operations.’’
(App. 262a) ae
7

The Administrator iaile: no finding that an emergency
existed and prov ided that the amendment was to take
effect on March 15, 1960. The Administrator did not amend
Parts 20, 21 or 29 of the Civil Air Regulations, 14C. F. R.
Parts 20, 21, and 29, dealing with pilot certificates, airline’
transport pilot rating, and physical standards for airmen,.
respectively.

Plaintiffs brought suit in the United States District
Court for the Southern District of New York for an
injunction.and for a declaratory judgment declaring the
amendment nujand void. The jurisdiction of the court
was based on 28 U. B.C. §§ 1331 and 1337. Plaintiffs
alleged that the amendments: were invalid: because they
had not been issued in eonformity with, and denied affected
pilots, the safeguards ofa) the procedural requirements of.
Section 609 of the Federal Aviation Act of 1958, 49 U.S. C.
$1429; or (b) the procedural requirements of Sections
4, 5, 7, and 8 of the Administrative Procedure Act, 5
U.S.C. §§ 1003, 1004, 1006 and 1007; or (c) the require-

ments of the Fifth Amendment to the United States Con-

ees

's *m eS. F.. R. § 42.40 the word “large” modifies the ‘word
“aircraft.” .

stitution. Plaintiffs also alleged that. the Administrator's _
action was, arbitrary and unreasonable‘and therefore con- .
stituted a violation of the Fifth Amendment to the Con-~
stitution. os

; ? 2.
Plaintiffs moved for a preliminary injunction and .
defendant cross-moved for summary judgment.

Plaintiffs’ motion for. a ‘preliminary injunction was
denied by an order of the United States District) Court
for the Southern District of New York, filed on March
14, 1960 (App. 315a-321la). Plaintiffs thereupon appealed
to the Court of Appeals for the Second Circuit.

The*Court of Appeals affirmed the denial of the pre-
liminary injunction on thé ground that the action of the
Administrator constituted rule making and the Administra-
tor followed the procedural requirements for rule making
in Section 4 of the Administrative Procedure Act, 5 U.S. ¢.
§ 1003. The Court also held that the fact that the amend-
ment modified the licenses of airmen did not require the.
Administrator to follow the procedures set forth_in Section
609 of the Federal Aviation Act of 1958, 49 U. SC. § 1429.

~ On this point-the Court said:

‘“‘The plaintiffs strenuously urge that, however
things may be under the Administrative Procetlure
Act, the statutory. scheme of the Federal Aviation
Act shows that Congress intended to afford airmen
the greater protection of an individual. hearing before
their certificates may be modified, We disagree.
Section 609 of the Act, 49 U. S. C. -§ 1429, states
that ‘the Administrator may * * * reexamine any
civil airman,’ and if, as a result of such reexamina-
tion, the Administrator ‘determines that safety in —.
air commerce * * * and the public interest requires, -
(h>) may issue an order amending, modifying, sus-
peurling, or revoking * * * (any) airman certificate.’
The certificate holder must be advised of the

* ‘charges or other reasons relied upon by the Admin-
istrator’ for his action, and a. h@arging must be
afforded with a right of appeal and frial de, nox °

7

before the Civil Acronautics Board and ultimate

rights of review —in.the courts. of appeals. It is
“Clear that Congress intended that the section should
apply only when an order of the Administrator is
directed to un individual airman and is concerned

with conduct or other facts peculiar to that airman.

Use of. ‘airman’ in the singular, the reference to
‘charges,’ the word ‘order’ in contrast with ‘regula-
tion’ in § 601, and the statement that upon review
the Board shall not ‘be bound by findings of fact
of the Administrator’ all strongly suggest that
§ 609 is not intended to apply when a general diree-
tive of the Administrator is promulgated, though
the regulation may in fact modify airmen’s certifi-
cates. Cf. §§ 602, 604 of the Act, 49 U.S. C. §§ 1422,
1424. Moreover, were we to interpret 4 609 to apply
to a case like that before us, the area in’ which
§ 601 might operate would be severely restricted.”’
(Appendix B, infra, p. 72a).

Thereafter, on June 14, 1960, the United States Dis-
trict Court granted defendant’s motion for summary judg-
ment (Supp. App? 326a). Its action was affirmed by the
Court of Appeals in an order dated and filed on Feb-
ruary 9, “1961, on the same grounds on which the Court
of Appeals had based its decision affirming the order of
the District Court denying’ plaintiffs’ motion fora pre-
liminary injungtion (Appendix C, infra, pp. 76a-78a).

| _ Reasons for Granting the Writ

aha |
1. This case. involves an .important question \oe first
iMpression concerning the interpretation of § 609 of the

Federal Aviation Act of. 1958,49 U. S. C. 6 1429, to deter-

mine the degree of protection afforded the holders of air-
man certificates, air-worthiness certificates, production
certificates, air carrier operating certificates, and other
certificates issued uffder the Federal Aviation Act of 1958,

499 U.S. C. $$ 1422, 1423, 1424, 1426 and 1427, against

-

—

*

; 8 ‘ , . 9
‘ or ae F nh
amendment, modification, suspension or revocation of their
certificates. The Administrator directéd air carriers not
_ to permit any pilot who was over 60 years of age to serve
as a pilot on any aircraft engaged in commercial air opera-
tions. See opinion .below, Appendix B, infra, page 66a,
tote 1. The immediate effect of the Administrator’s action
‘was to bar some 40 pilots from. continuing to practice
their profession on March 33, 1960, the effective date of
the: action (App. 255a).. Since then, the effect of the
Administrator’s action has been to automatically termi-
nate the rights of all pilots who reach the age of 60 to
pilot aircraft in commercial air operations. Thus, the
Administrator’s action has destroyed. the value of the
airman certificates issued to these pilots as a license per-
_ mitting them to fly aircraft in commercial air, operations.

Since the Courts below considered the: Admiistrator’s
action as ‘‘rule making’’, it has thus far been held that
neither Section 609 of the Federal Aviation Act, 49 U.S. C.
§ 1429, nor Sections 5, 7 and 8 of the Administrative Pro-
cedure Act, 5 UD. S. C. §§ 1004, 1006, and 1007, required
the. Administrator to-hold a hearing prior to the promulga-
tion of the regulation.. For the same reason and because *
the Administrator’s action was directed to the air carriers
and not at the airmen’s certificates it has thus far been
held that individual pilots who reached age 60 prior to
the effective date of the Regulation and_those pilots who
have reached age 60 since then are not entitled to an.
opportunity to be heard before the Regulation is applied
to them. See opinion below, Appendix B, pages 72a-74a. |
Thus, by means of promulgating a regulation and directing
the regulation at the employers of the pilots affected by it,
the Administrator has prevented pilots holding valid air-
man certificates from obtaining a hearing at any stage, —
either before or after the administrative action is applied to”

> them to terminate their right to practice their profession.

9°

The importance of the question presented in this case
” is apparent from the fact that the Administrator. could
follow the very same procedure to adversely affect hi lders
of other certificates under the Federal Aviation Act.. For
example, a regulation directed at air carriers with respect
to the type of aircraft they could use, could render value-
less a type certificate issued under § 603 of the Act, 49
U.S. C. § 1423. Further, the same procedure, epuld be
followed by other agencies. Cf. Columbia Brockoesting
» System v. United States, 316 U. S. 407 (1942). Thus,
if thy administrative action herein is held to be valid, ‘the.
rights of other persons holding certificates under the
Federal. Aviation Act could also be modified, and even
destroyed, without providing them with notice or an oppor-
tunity to:be heard at any stage of ‘the proceedings.

_ The decisions below are erroneous ‘because they fail
. to give any effect to Section 609 of the Federal Aviation
Act, 49 U. S. C. § 1429. Section 609 provides as follows:

‘ ‘‘The Administrator may,*from time to time,
reinspect gny civil aircraft, aircraft engine,

_ propeller, appliance, air navigation facility, or air
agency, Or may reexamine any civil airman. If, as a

result of any such reinspection or reexamination, or

if, as a result of any other investigation made by

the Administrator, he determines that safety in air
commerce or air transportation and the public inter-

eo est requires, the Administrator may issue an order
amending, modifying, suspending, or revoking, in

whole or in part, any type certificate, production cer-

tificeate, air-worthiness certificate, airman certificate,

air carrier operating certificate, air navigation facil-

ity certifi¢ate, or air agency certificate. .Prior to
amending, modifying, suspending, or revoking any of

the foregoing certificates, the Administrator ‘shall

] - advise the holder thereof as to any charges or other
| reasons relied upon by the Administrator for his pro-
posed action and, except in cases of emergency, shall

provide the holder of such a certifieate an opportunity

to answer any charges and be heard as to why such
certificate should not be amended, modified, sus-

10.

pended, or .revoked. Any person whose certificate
is affected by such an.order cf the Administrator
under this section may appeal the Administrator's
order to the Board and the Board may, after notice
and-hearing, amend, modify; or reverse the Adminis-
trator’s order if it finds that safety in air commerce
or air transportation and the public interest do not
require affirmation of.the Administrator’s order.
In the conduct of its hearings the Board shall not
be bound by findings of fact of the Administrator.
The filing of an appeal with the Board shall stay
the effectiveness of the Administrator’s order unless
the Administrator advises the Board that an emer-
gency exists and safety in air commerce or air traus-
portation requires the immediate effectiveness’ of
‘his order, in. which event the order ‘shall ‘remain
effective and the Board shall finally dispose of the
appeal within sixty days after being so advised
by the Administrator. The person substantially
_ affected by the Board’s order may obtain judicial
. review of said order under the provisions of sce-
tion 1006, and the Administrator shall be made a A;
party to such proceedings. -

It is apparent that Section 609 provides substantial
safeguards to holders of. certificates. First, unless. the
Administrator finds that an emergency exists he must
provide the holder of a certificate with an opportunity
to ‘‘be heard as to why such certificate should as le
amended, modified, suspended -or revoked’’. Second, *
person whose certificate“is affected by such an stl gi
the Administrator under this section may appeal the
Administrator's order to the Board and the Board may.
after notice and hearing, amend, modify, cr reverse the
Administrator’s order if it finds that safety in air com-
merce or air transportation and the_ public interest do
not require affirmation’’ of the*-Administrator’s. order.
Third, in the conduct~ef its hearings the Board is net
‘*bound by. findings of fact of the Administrator’’. Fourth.
unless the Administrator advises the Board that an emer-
gency exists and that safety requires the immediate effec-

e

1L

tiveness of his order, the filing of an appeal with the
Board stays the effectiveness of the Administrator’s order.
And fifth, provision is, made for judicial review of the
Board’s order by the Courts of Appeal.

The coufts below held that the safeguards provided
in Section 609 are not applicable to an :amendment or
modefication of. a ‘certificate that-ig accomplished by means
of,a regulation. That the Administrator's action constitutes
an amendment anc modification of pilots’ certificates, and
indeed, an effective suspension and revocation of the certifi-
cates of pilots above the age of 60 to fly in commercial
air transportation, was admitted by’ the Administrator
and not questioned by the Court of Appeals (App. 262a- °
263a, 264a; Appendix B, pages 70a-72a). The deci-
sions of this Court in FCC v. National Broadcasting Co..
Inc. (KOA), 319 U. S. 239 (1943), Pagker v. Fleming, 329
U. S. 531 (1947), FCC v. WIR, the Goodwill Station, Inc.,
337 U. S. 265 (1949), and Columbia Broadcasting System
v. Unitcd States, 3.6 U. S.°407 (1942), leave no question
but that the action of the Administrator herein constitutes
an amendment and modification of pilots’ certificates. But
the Court below reasoned that the exercise by the Adminis
trator of his safety rule making power under Section 601(a)
of the Federal Aviation Act, 49 U. S. C. §1421(a) was
not limited .by Section 609 of the Act, 49 U. S.C. 61429
even though it resulted in amending, modifying, suspend. .
ing or revoking airman certificates. See Appendix B, p.
72a. The Court said: .

‘ce ¢ @

it is clear that Congress intended that the
section should apply only when an order of the
Administrator is directed to an individual airman
and is concerned with conduct or other facts peculiar
to that airman. Use of ‘airman’ in the singular.
the reference to ‘charges’, the word ‘order’ in con-
trast with ‘regulation’ in 4601 and the statement
that- npon review the Board shall not ‘he bound
by findings of fact of the Administrator’ all strongly
Suggest that § 609 is not intended. to apply when a

lz

general directive of the Administrator is promul-
gated, though the regulation may in fact modify
airmen’s certificates. Cf. §§ 602, 604 of the Act,
49 U. S. C. $§ 1422, 1424. Moreover, were ‘we to
interpret § 609 to apply to a case like that befor
us, the area in which § 601 might operate would be
severely restricted.’’ (See Appendix B, p. 72a)

The Court also believed that the legislative history of
the Federal Aviation Act supported its conclusion. It said:

‘‘There is no indication anywhere that Congress
intended such limitation on § 601. Indeed, the legis--
lative history of the Federal Aviation Act and the
practice under the prior law show that Congress. .
intended the Administrator to have broad power

- to establish safety rules for the nation’s airways
without the delay attendant, upon numerous individual
hearings and ‘protracted appeals. The immediate
impetus to the legislation’ was a series of major
air crashes culminating in the midair collision of
two large airlines [sic] over the Grand Canyon in 1906
with the loss of 128 lives. Congress believed there
was a need for a more streamlined and efficient
means of safety rule-making in place of the system
of divided duties and responsibilities existing under
the Civil Aeronautics Act. The committee reports
make plain that the Administrator was to have sole
responsibility for safety rule-making under the new .
law, and’ that the procedures of § 609 were only
to come into operation when the Administrator modi-
fied or revoked ‘a certificate’. H. R. Rep. No. 2504,
85th Cong., 2d Sess. (1958); see S. Rep. No. 1811,
Soth Congy 2d Sess. (1958). The elaborate pro-
cedural requirements of § 609 are patently incom-
patible with the expedition with which Congress
intended that the Administrator should «ct in the
promulgation of safety rules. The clear rublic inter-
est in the speedy adoption of rules relating to. air
safety far outweighs any possible advantage in a
multitude of piecemeal and time-consuming hearing:
brought by each contesting airman.’’ (Appendix B,
pp. 72a-73a)

13

Court below are net supported -by the structure of the
Federal Aviation At of 1958 or by its legislative history.
Insofar as the decision of the Court is based on the use of the
__word *‘airman’’ in the singular, the reference to ‘charges’ :
and the use ‘of the word ‘‘order’’, it is subject .to the
criticism recently expressed by this: Court that ‘‘insights -
derived from syntactical analysis form a hazardous basis
for the explication of the major legislative’ enactments
se" See Local 1424, 1AM, AFL-CIO v. NLRB, 362
U.S. 471, 417, n. 7 (1960). Further, it is clear from
decisions of this Court that the word ‘order’? is a word
that can refer to administrative action in the nature of
rule making. “See United States v. Seatrain Lines, Lue.,
3829 T. S. 424, 432 (1947); Columbia Broadcasting Sustem
v. United States, 316.U. S. 407 (1942); Opp Cotton Mills,
Inc, v. Administrator, 312 U. S8.°126, 147 (1941). And it is
accepted construction of statutes that use of the singular

includes the plural. See, e.g., N. Y. GENERAL CoNnsTRUCTION
Law, § 35.

It is iw are pd cmon that the conclusions in the

Both the structure and the legislative history of the
Federal Aviation Act indicate that Congréss intended that
rules promulgated by the Administrator that have the.
effect of amending, modifying, suspefiding or revoking air-
man and other certificates issucd under’ the Act should
be subject to the procedural requirements of $609. Thus,
the Act requires the Civil Aeronautics Board, arid not only
the Administrator, to consider ‘‘the promotion of safety
in air commerée’’ ini the exereise and performance of its
powers .aid duties under the .
licenses and in their jobs may properly be limited by een-
,,Siderations of public policy which, in extraordinary cases,
require that observance of procedural safeguards be post-
poned, there is no warrant for a complete denial of notice
and hearing to persons whose ability to practice their
profession under a license granted by an agency of the
United States is destroyed. .

-. Nor is the action of the Administrator herein necessarily
limited to pilots. If the Administrator has the power to
destroy the value of pilot certificates by regulations that
‘ostensibly operate on the pilots’ employers without pro-
viding notice and hearing to the affected pilots, «does he
not have the power to destroy the value of a type certificate
for a particular aircraft without notice and hearing by
regulations that ostensibly operate on the potential pur-
chasers of that aircraft? See Federal Aviation Act, ‘4 603,
604(a), 49 U. S. C. §$ 1428, 1424(a).

On the effective date of the Administrator’s action,
some forty pilots were told by their employers that they
could no longer pilot aircraft in air carrier operations (App.
224a, 255a). Each of these pilots pos®ssed an Airline
Transport Pilot Rating Certificate which qualified him
under Civil Air Regulations to serve as pilot in command
a an aircraft engaged in air carrier operations. See 14

_ F. R. € 21.1 et seq., 641.48. When, by reason of the
poadeta bat s action, each of these pilots was removed
from his job in air carrier operations on March 15, 1960.
he was summarily deprived of (1) his license and (2) his
right to continue in the practice of a lawful profession.

Tne Administrator labeled his action a ‘‘regulation,”
which he purported to promulgate under:the rulemaking
power delegated to-him in the Federal Aviatiun Act of

Zo

1958. This label, however, is not controlling, since Courts
will independently examine the effect of administrative
action in determining what procedural safeguards must
.~ attend it. See Columbia Broadcasting System vy. United

States, 314 U. 8. 407, 416 (1942); American Federation of
Labor_v. National Labor Relations Board, 308 U. 8S. 401,
408 (1940); Powell v. United States, 300 U. S. 276, 284-85
(1937); Philadelphia Co, v. Securities Exchange Commis-
sion, 164 F, 2d 889;-899 (D.C. Cir, 1947) ; Davis, ApMInis-
TraTIVE Law, §{ 5.01, 5.46 (1958). Constitutional protee-
‘tions are operative, regardless of the form, label or lan-
guage used: by the Administrator to describe his action, if
the effect of the administrative action is to limit or revoke
outstanding licenses to practice a lawful profession. See
Federal Communications Commission v. National. Broad-
casting Co. (K. O. A.), 319 U.S: 239 (1943); L. B. Wilson,
Inc. vy. Federal Communications Commission, 170 F. 2a 793
(D.C. Cir. 1948) ; Civil Aeronautics Board v. American Air
Transport, 201 F. 2d 189 (D. C. Cir. 1952); Philadelphia.
Co. v. Securities Exchange Commission, supra.

It is highly unusual for licensees ‘o be forced to resort
to judicial proceedifigs to compel an administrative officer
to recognize that as a matter ot Due Process of. Law, the
revocation of a license and termination of the right to prac-
tice a lawful profession must be accompanied by notice and
an opportunity for the licensee to be heard. The individtial
evidentiang, hearing is invariably the sine qua nen ‘of the
normal, process of license modification or revocation. Agency
“rules”? or ‘‘regulations”’ are but one step in the accom-
plishment of the administrative purpose; the second step—
application of the ‘‘rule’’ or ‘*regulation’’ to individuals
Who fall within its general and prospective terms, awaits
subsequent adjudieatory enforcement proceedings. In such
circumstances, the individual hearing, required either by
due process, by statute or both, is held as a matter of

30

‘course when the second of these two steps is sought to be
accomplished. ln Columbia Broadcasting System v. United
States, 316 U. S. 407, 418 (1942), this Court said:

‘‘Most rules of conduct having the foree of law are
not self-executing but require judicial or administra-
tive action to impose their sanctivny with respeet to
particular individuals. Unlike an administrative
order or a court judgmént adjudicating the rights of
individuals which is binding only on the parties to
the ‘particular proceedings, a valid exercise of the
rulemaking power is addressed to and sets a stan-
dard of conduct for al!.to whom its terms-appiy. It
operates as such in advance of the imposition of
sanctions on any particular individual.’’ °

Coutrast the administrative determmation the consti-
tutionality of which is challenged in the instant case. This.
determination directed carriers to,remove forty pilots from
their jobs on a given date and thereafter to remove from
their jobs other pilots at the time that they reached the age
of 60. Thus, the carriers are used as the Administrator's
enforcement officers, and the necessity for subsequent en-
forcement proceedings alluded to in-the C.B.S. case, supra,
is obviated. The Administrator does net dispute the fdet
that his determination is to be enforced against individual
piluts, without giving them any notice or oppurtunity to be
heard, and, in fact, no hearings have been held.

The content of due process varies with the circumstances
of particular cases. This Court, in Joint Anti-Fascist Com-
mittee v. McGrath, 341 U.S. 128, 164 (1951) wrote:

‘*The precise nature of the interest that has been ad-
versely affected, the manner in which this was done,
the reasons for doing it, the available alternatives te
the procedure that was followed, the protection imi-
plicit in the officer or the functionary whose conduct
is challenged, the balanee of hurt complained ef and
good accomplished—these are some of the considera
tions that must enter into the judicial judgment.”

It is appropriate to compare ‘the balance.of hurt com- °
plained of and good accomplished’? as a result of the Ad-
ministrator’s determination here. On the one band, in-
. dividual pilots have lost their Airliné Transport Pilot
Rating Certificates and the right to continue in the prac-
_ tice of their profession without any notice or hearing af-
forded. to them. Othe nirman certificates which they
possess have been substantia'ly limited.

Upon an examination of the **good accomplished’’ by
the Administrator’s action, which denies these airmen an.
opportunity to be heard, there appears in the instant case
u0 consideration of foreign policy such*as was held to
justify the denial of hearings to an applicant for a certifi-
cate of convenience and necessity in the case of Chicago
and Southern Airlines, Inc. y. Waterman Steamship Corp.,
333 UTS. 103 (1948). Nor are there émergency wartime:
conditions: such as were held to justify the denial of hear-’
ings to a landlord -prior to the a of a price regula-
tion in Bowles v Ww dlingham, 321 U.S. 503 (1944).

But the Administrator argues that the action taken
‘against the pilots who were over age 60 was necessary to
‘preserve safety in air carrier operations and to prev ent
an alleged hazard resulting from the possibility of suddén
incapacitation of pilots in air-carrier operations.

The decision of this Court in the- Joint Anti-Fadscist
Committee case, supra, however, teaches that the ivailable
alternatives to the procedure that was followed bear sig-
hificantly upon the meaning of due process in particular
situations. Somé of the available alternatives to the Ad-
Ministrator’s action which, would have provided affected
pilots with an opportunity to be heard were:

1. The Administrator could have condueted more fre.
quent and intensive examinations of ‘the praficieney. and
vhysica] condition of pilots who were over 60. Intensive

sgini-a annual examination of the phy sicial condition and
oo of all Pilots in air carrier operations are now
uired. See 14 C. F. R. §§ 40.302tD), 41.53."

2. The Administrator could have refused to renew the
medical certificate of pilots over age-60.

3. The Administrator could have removed pilots the
were over 60 from flight auty under Section 609 of the Fed-
eral Aviation Act.

Surely the Administrator could have used one. of these
methods, or another method that gave the forty pilots
affected by his action. an opportunity to be heard’ before.
their right to practice their profession was terminated.

Moreover, if the Administrator. believed that an emer-
gency existed, he could have invoked the emergency powers
granted to him by { 609 of the Federal Ayiation Act. Sce
49 U.S. C. $1429; Getiuorn: ann Bysk, “ADMINISTRATIVE
Law, Cases anp Comments, 774-75 (1954).

Ignoring his emergency powers -nder the statut?, the
Administrator chose instead to act inja manner that Was
“both unconstitutional and unauthorized, ‘and that-permitted
months to pass. before his.action became effectiv e.

The substantia] and irreparable injury which has been
occasioned to the pilots who were 60 years old on the effee-
tive date of the Administrator’s action could have been
avoided without endangering public safety in any respect.-
The Administrator's choice of available alternatives is
therefore a significant factor in arriving at the meaning of
due process under the circumstances of this case. The
Due Process Clause of the Fifth Amendment requires that >
each individual affected by the Administrator’s actior be
accorded notice and the opportunity to be heard in gGefeuse
of his job and his lieénse. See, ¢.9., Joint Anti-Fascisi
Refugee Committce vo McGrath, 3841-U. S. 123 (A901):

Greene Vv. Meck lroy, 300-0. S. 474 (19 | In re Carter, 1¢7
F.2d fo (D.C. Cir..1949) 5 vi. 1a2 F.2d 35 (D.C! 1951);

Parker v. Lester, 112 °F. Supp. 433, (D. C. Cal. 1953), aff'd
227 F. 2d 708 (9th Cir. 1955); Civil Aeronautics Board v.
American Air Transport, 201 Kk. 2d 189-(D. ©. Cir. 1992 );
certificate dismissed, 244 U.S. 4 (1952).

Considerations of substantial and irreparable injury te
the licensee placed to one side, there are many other disad-
vantages which accrue from summary revocation of a
license. Primarily, however honest the Administrator's
intentions may be, his action thay be misguided. It is not
infrequent that the licensing authority itself is disposed
to alter its initial determinations on the basis o ey vide nce
-presented by a licensee at a hearing.

Furthermore, summary revocation forces -individuals
dissatisfied with the action of the licensing officials to
utilize judicial procedure. - Such judfeial proceediigs
involve, in most cases, an inquiry into matters which might
initially have been considered by the administrative officials
themselv es if. an administratiy e hearing had been held.

It is for these reasons, tufer alia, that the Courts have:
shaped the concept of due process into one which requires
a hearing-to precede administrative. action that’ ‘effects |
license revovation or property destruction, See Civil te ros.
nautics Board v, American Air Tiausport. 201 F. 2d 189
(D. C. Cir. 1952), certificate dismissed; 344 UL S. 4 (1952) +
Philadelphia Co. v. SEC, 175 F. 2d SOS (D.C. Cir. 1948),
vacated and dismissed as movt..337 U.S. 901 (1949) ;
‘and see Administrative Procedure Act, »S2(d), 2le). 5,
F,gnd 8,5 U.S.C. && 1001/d),- 1001 (©), 10042 1006. and
1007, “Gof

It is Tespect fuay submitted that the constititional ques.
tion presented herein strongly merits the consideration of
this Court.

34

4. This case Slso presents an important question ‘con.
cerning the inferpretation’ and application of the Du
Process Clause of the Fifth Amendment to the ( onstitution
when administrative action is challenged | as arbitrary and
unreasonable.

The Court below stated that to sustain such a challenge
it must be shown that the administrative agency had no
reasonable basis for the exercise of its judgment; and cite
American Trucking Associations, Inc. v. United States, 344
U.S. 298, 314 (1953).; Norman v. Baltimore & Oltio Railioad.
294 U.S. 240 (1935) (App. B, p. 74a).

The instant case is one in which petitioner has shown
that the Administrator’s action was without a reasonabl:
basis. It is respectfull; submitted that if the power of
the Court to overturn arbitrary administrative action is te
_ be given any. effect, it should be exercised in this case.

According to an affidavit of General Quesada, he based
his age -60 action on the following :

“A review of the available studies on ‘the subject
. of the effect of aging by the medical staff of the FAA
reveal that there is progressive deteriovation ot
certain physiological and psychological functions with
age and that sudden incapacitation due to such
diseases as heart attack and stroke become more.
freqyent with advancing years * * *. Moreover the
sum of these studies led us to the conclusion that.
unfortunately, medical science at the present tim
does ‘not have any means of detetmining the
physiologic age of: any specifie individual, ner |
there any reliable. method of predicting accurately
the occurrence of sydden ineapacitation due to heart
attacks or strokes. This was illustrated signifieant!y
by a st udy of one large industrial group of employers
under close medical supervision over an extended
period... This study, which was. amplified by «i+
cussions between physicians of this large industrial
group and members of my medical staff, showed that

approximately 85°~ of the perwots w ho had a heart
attack for the first time, had the-attack within six
months to a year after a therongh medical ex-
amination in which the individual had been found
to he in weendition normal to his age and without
any evidence. bs iggest the imminenee of such an
attack."* (.App.~256a)
Having conclided that: generally, as people grow older
they are subject to mere ils of the bedy than when they
ure younker the Administratoy turned his attention to
“the problem * * * [of] what maximum age limitation
would proyide 7a reasonable standard and wonld at the
same time ‘give full consideration to the duty resting npow
air carriers to perform their serviees with the aren
possible’ degree of safety in the spubli interest."° * ° °°
(App. 257a)

To solve shin problens the Administrator usec’ statistics
showing the mortality rate. from heart disease and the
incidence: of death from strokes, in all white males in the
United States’ (App. 257a-258a). All the statisties relied
upon by the Administrator were based on samples that cy
sisted of people whe were ‘in a condition normal to * * *
(their) age” (App. Fla, Joba, 2Zora-Josa). °

But this sample does not have any relevance to the
airmen affected hy the Administrator’: action that .i
yes. no
yes no
ves —_—-
yes yes
yes yes j
ves \dmimistrater . com-
plaint distaissed
Ves yes
— + yes
yes ms
ves ¥es
Ves Th
Ves cs
yes e Ves
Ves ne
ves ves
ves ves
yes yes

' Supplement A—4_

42

3

Case No ‘. ‘ ere : ; . Was Opportunity
and/or Date of Type of Administrator’s Examiner's CAB ~. for Administrative ©§ Was Waiver -
_ Name Docket No Order Physical Defeet Action Recommendations Action Hearing Granted? Granted?
James M. Cowart ‘S-827 9/9/57 * ‘mental | cert. den. —— remanded yes meme,
Frank W. Casey S-828 9/9/57 schizophrenia cert. den. _ remanded yes - ——
Herman Schram S-843 11/15/57 — manic depressive cert. den. reversed remanded yes. ——
‘ ; psychotic, — | , : .
John Doe S-846 12/11/57 mental cert. den. affirmed affirmed ——yess no
Denford D. Finke S-864 . 4/1/58 age 16 cert. den. — affirmed * yes no
J. K. Bates, ét al. 21 tdses S-866 4/10/58 = —— _-cert. den. pao remanded yes ee
Russel H. Paschke 5S-894 "7/2/58 _ mental _ cert. den. - reversed affirmed “yes yes”
LouisL.Armold.. S898 _ ‘7/9/38 mental cert. den. reversed _ affirmed yes ves
J. ¥. Bates, et al. © 21 cases S-901 7/17/58 diabetes’ and heart Administrator's petition for stay of CAB remand denied.
Wm. R. Bernurd —S--921 9/18/58 . age 16 cert. den. affirmed yes no
Anthony T. Milazzo S-931 10/24/58 deaf mute * cert. den. _— reversed - yes yes
Fred A. Pharis S-938 11/17/58 age 14 cert. den. affirmed yes no .
. Frank W. Casey S-939 12/4/58 mental Request to reopen by Casey and Administrator after cert. den. Poard asks

for written reasons.
Lyn B. Haggins S-946 12/30/58 diabetes © cert. den. reversed affirmed yes yes
Eugene J. M. Lunch 5-947 12/30/58 diabetes cert. den. reversed affirmed _ yes . yes .
Cecil C: Curtis . S-948 12/30/58 diabetes cert. den. reyersed affirmed yes yes
Billy N. Gray . S-949 12/30/88 myocardial infarction — cert. den. reversed” affirmed yes yes
Isidore H.- S-950 12/30/58 ; myocardial infarction cert. den. reversed affirmed yes yes

- Langenderfer. é; Fy
Oren J. Casey S-953 12/30/58 diabetes cert. den. reversed affii med yes yes
Albert H. Stronstoiff S-951 12/2/59 . myocardial infarction cert. den. affirmed reversed yes ves
Stanley J. Portman S-967 3/3/59 diabetes . cert. den, reversed _ affirmed . yes ves
Eugene M. Quimby S-968 3/3/59 diabetes cert. den. . reversed affirmed yes yes
Frank W. Casey S-980 4/24/59 Schizophrenia | cert. den. | affirmed affirmed yes yes
(limited vert. .
. _ granted)

Jas. R. Whitman, Jr. S-985 5/11/59, diabetes cert. den. reversed affirmed yes ves
Frederick K. Ake = S-988 5/15/59 diabetes cert. den. reversed affirmed yes yes
Henry H. Cre dian 6/8/59 diabetes cert. den. reversed reversed no

as : a By
Supplement A-5- eter te nes a
‘ CaseNo. : ues f° ‘Hearing Granted? .
ras and/or Date of Type of - Administrator's Examiner's - CAB Was Opportunity Was Waiver
Name Docket No. __. Order __ Physical Defect Action Recommendations _ Action for Administrative Granted?
JK. Bates $-997. 6/19759 “heart disease cert. den. reversed ~~ affirmed yes "yes ‘
Daniel H: H. Casebeer S-999 ” | 6/23/59 . heart disease cert. den. affirmed afferned ves no
Marshal D. S-1003 6/24/59 diabetes cert. den. reversed a affirmed . yes yes
Hendrickson oy rae,
Jas. R. Whitman, Jr. S-1015 | 8/26/59 diabetes .) cert. den. — _ afhrmed . yes - no ,
George F. Baker ~ §-1024 11/18/59 Effective October 15, 1959, the Administrator amended Part 295 ‘by modifying the revulations to
Ernestine Bienman S-1024 t1/18/59 provide that a medical history or a clinival diagnosis of certain specified diseases oF. E conditi ms (diabetes,
Owen L, Butler S-1024 | 11/18/59 myocardiai, infarction, coronary Leart disease) shall be disqualifying for airman medica! ¢er ‘icates
- 7 ne visiovas fn of any type. Subjects in case #S-1024 all were denied certificates by the Xdministrator prior to
A. C. Holder S-1024 11/18/59 | : 5 ae ; Z ‘. ere
Wm. W. em Ir. 5-1024 1118/59 October 15, 1959 because ofa mania: history or clinical diagnosis of one of the three specitied maladies.
Silas R. Langlois‘ S-1024 - 11/18/39 _ The Civil Aeronautics Board Examiner granted a limited certificate to all of these individuals, in
Ralph B. Muse S-1024 _ 11/18/59 © accordance with the regulations in effect prior to October 15, 1959. The Administrator appealed to
"Ralph C. Parker S-1024 11/18/39 the Board from-the decision of the Examine¢ granting said limited certificates. and the Tteard. on ©
_ H.S. Seabrook S-1024 — 11/18/59 November 18, ‘1959, remanded these. cases tu the Examiner for reconsideration in the light of the
. Robert E. Tramp S-1024 11/18/59 amendments to Part 29. No final decision had been rendered at the time this study was prepared.

Ps)

la

Appendix A
JNITED STATES CONSTITUTION

AMENDMENT V

Ne person shall be held to answer ‘for a capital, or
otherwise infamous crime, unless on a pres*ntment or in-
dictment of a Grand Jury, except in cases arising in the
land or naval forces, or in the Militia, when in actual service
in time of War or public danger; nor shall any person be
subject for the same offense to-be twice put in jeopardy of
life or limb; nor shall be compelled in any criminal case to
be a witness against himself, nor be deprived of life, liberty,
or property, without due process of law; nor shall private
property be taken for public use, without just compensation.

. - z 7

ADMINISTRATIVE PROCEDURE ACT *
66 Stat. 237 et seg.; 5 U.S. C. 1001 ef seg.

Sec. 2. (c) Rute anp RULE MAKING.—‘‘Rule’’ means
the whole or any part of any agency statement of general
cr particular applicability and future effect designed to
implement, interpret, or prescribe law or poliey or to
describe the organization, procedure, or practice require-
ments of any agency and includes the approval or preserip-
tion for the future of rates, wages, corporate or financial
structures or reorganizations thereof, prices, facilities,
appliances, services or allowances therefor or of valua-
tions, costs, or accounting, or practices: bearing upon any,
of the foregoing. ‘‘Rule making’’. means agency process
for the formulatton, amendment, or repeal of a rule.

(d)-OrpER AND absupIcaTIoN.—‘‘Order’’ means the
whole or any part of the final disposition (whether aff au
tive, negative, injunctive, or declaratory in form) of any
agency in any matter other than rule making but including
licensing. -‘‘ Adjudication’? means agency process for the
formulation of an order. ; ;

(e) Licexst axp Licenstne.—**License’* includes the
whole or part of any agency -permit. certificate, approval.

* As of February 15, 1959.

2a 2
eee ‘Appendix A

registration, charter, riacmbership, statutory exemption or
other fora of permission. | ‘‘Licensing’’ includes agency
process. respecting the grant, renewal, denial, revocation,
suspension, annulment, withdrawal, limitation amendment,
modification, or ‘conditioning of a license.. |

(f) Saycrion’ anp ReLIEF.—‘‘Sanction’”’ includes the
whole or part of any agency (1) prohibition, requirement,
limitation, or other cofdition affecting the freedom of any. -
person; (2) withholding of relief; (3) imposition of any
form of penalty or fine; (4) destryetion, taking, seizure, or
withholding of property; (5) assessment of damages,
reimbursement, restitution; compensation, . costs, charges,
or fees; (6) requirement, revocation, or suspension ofa
license; or. (7) taking “of other compulsory or restrictive
action. ‘*Relief’’ includes the whole or part of any agency
(1) grant of money, assistance, license, authority, exemp-
’ tion, exception, privilege, or remedy ; (2) recognition of any.
cleim, right, immunity, privilege, exemption, or exception;
or (3) taking of any other action upon the application or
Petition of, and beneficial to, any person. er
(g) Acency PROCEEDING AND AcTIon.—*‘ Ageney proceed.
ing’? means any agency process-as defined «in subsections
(ce), (d), and (e) of this section. ‘Agency action”’ includes -
the whole or part of every agency rule, order, license, sanc-
tion, relief, or the equivalent or denial thereof, or failure
to act. ia ote
‘Rete Makixe is

Sec. 4. {60 Stat, 238; 5 U.S. C. 1003] Except to the
extent that there is involved, (1) any military, naval. or
foreign affairs function of the United States or (2) any
matter relating to agency management or personnel or to
public property, loans, grants, benefits, or contract-—

(a) Notice.—General notice of proposed rule making
shall be publislied in the Federal Register (unless all per-
sons subject thereto are named and either personally served
or “otherwise have’ actual notice thereof in accordance

3a : e- y @
Appendix A

with law\ and shall include (1) a statement of the time,
place, aes nature of public rule making proceedings; -(2)
reference \to the authority under which the rule is pro-
posed ; and (3) either the terms or substance of the pro-
posed rulé or a description of the subjects and issues
involved. Except where notice or hearing is required by
statute; this subsection shall not apply to interpretative
rules, general statements of Policy, rules of ageney organi-
. zation, procedure, or practice, or in any situation in which”
the agency for good cause. finds (and incorporates *the
finding and a brief statement -of the reasops therefor in
the rules issued) that notice and public procedure thereon
are impractieable, unnecessary, or contrary to. the public
interest. mks | a

(b) Procepures.—After notice required by this section,
the agency shall afford interested persons an opportunity
to. participate in the rule making through submission of
Written data, views,’ or arguments with or without oppor-
tunity to present the same ora}ly in any. manner; and,
after consideration of alf relevant ‘matter presented, the
agency shall incorporate in any rules adopted a concise
General statement of their basis and pu@pose. Where
rules are required by statute to be made on the record ‘after.
opportunity for an agericy hearing, the requirements of
Sections 7 ard8 shall apply in plage of the provisions of
this subsection. Oe oe é

(ce) Errective DaTEs.“The required publication or
Service of any substantive rule (other than one granting or
recognizing exemjition or relieving restriction or inter-
pretative rules gid. statements of policy) shall be-made not
less than thirty days prior to the effective date thereof
except as otherwise provided by the agency upon good
cause found and published with the rule.

(d) Petirions.—Every agency. shall accord any inter-

ested person the right to petition for the issuance, amend--
ment, or repeal of a rule. | )

t ta
Appendix A

ADJUDICATION ; :

Sec. 5. [60 Stat. 239; 5 U. 8. C. 1004] In every case
of adjudication required by statute to be determined on the
record after opportunity for an agency. hearing, except to
the extent that there is involved (1) any matter subject to
a subsequent trial of the law and the facts de novo in any
court; (2) the selection or tenure of ani officer or employee
- of the United States other than examiners appointed pur-
suant to section 11;,(3) proceedings in’ which decisions rest
solely on inspections, tests, or elections ; (4) the condvet of
military, naval, or foreign affairs functions; (5) cases in
which an agency is acting as an ‘agent for a court; and {6)
the certification of ‘employee representatives—

(a) Notice.—Persons entitled to notice of an agency
‘hearing shall be timely informed of (1) the time, place and
nature thereof ;.(2) the legal authority and jurisdiction un.
der which the hffring is to be held, and ( 3) the matters of
fact and law asserted. In instances in which private per-
sons are the moving parties, other parties to the proceeding _
shall give prompt notice of issues controverted in fact or
law; and in other instances agencies may by rule require
responsive pleading. In fixing the times and, places for
hearings, due regard shall be had for the convenience and
necessity of the parties or their representatives.

(b) Procepure.—The agency shall afford all interested
parties opportunity for (1) the subffijssion and ¢onsidera-
* tion of facts, arguments, offers of settlement, or proposals
“of adjustment Where time, the nature of the ‘proceeding,
and the public interest permit, and (2) -to the extent that
the parties are unable so to determine any controversy, by
consent, hearing, and decision upon notice and in confermity -
with sections 7 and 8. - ee oe ee

‘(e) SEPARATION oF Functions.—The same officers who
preside at the reception of evidence pursuant to section 7
shall make the recommended decision or initial decision
. required by section 8 except where such officers become un-

ae

-

da oe
"Appendix A

available to the agency. Save té thie extent required Nor
the disposition of ex parte matters as authorized ‘by Jaw,

_ no such officer shall consult any person or party on any fact

in issue unless upon notice.and opportunity for all parties
to participate; nor shall such officer’ be responsible to or
subject to the supervision or-direction of any officer, em- —
ployee, or agent engaged in the performance of investigative
or prosecuting functioys for any agengy. No officer, em-
ployee, or agent engaged in the performance of investiga-
tive or prosecuting functions for -any agency in any ease
shall, in that or a factually related case, participate’ or
advise in the decision, recommended decision, or agency
review pursuant to section 8 except as witness. or cuunsel
in public proceedings. . This subsection shall not apply in
determining applications for initial licenses or to proceed-
ings involving the validity or application of rates, facili-
ties, or practices of public utilities or carriers; nor shall it

_be applicable in any manner to the agency or any member

or. members of the body comprising the agency.
(d) Dectaratory Orpers.—The agency is authorizedgin

‘its sound discretion, with like effect as in the case of other

orders, to issue a declaratory order to terminate a con-

troversy or remove uncertainty.
: ‘ , 2 > a

Hearinos

ge *. [60 Stat. 241; 5 U. S. C. 1006) In hearings

which section + or 5 requires to be conducted pursuant to

| this section—

(a) Presmrxe Orricers.—There shall preside at the,
taking of evidence (1) the agency, (2) one or more members .

“oof the body which comprises the agency, or (3) one or more
_¢xaminers appointed as provided in this Act; but nothing”

in this Act shall be deemed to supersede the ecnduct of
specified classes of proceedings in whole or part by or
before boards or other offi¢ers specially provided for by or

a

®

6a oo —
Appendix A. °

designated pursuant to‘statute. The functions of all pre.
siding officers and of officers participating in decisions in
conformity with section 8 shall be. conducted in an im. -
partial manner. Any such officer may at any time with. —
draw if he deems himself disqualified ; and, upon the filing
‘n good faith of a’timely and’ sufficient affidavit of personal
vias or disqualification of any such officer, the agency shall
determine the matter as a part. of the record and decisior
in the case. j ek ere ,
(b) Hearine Powers.—Officers presiding at hearings

Shall-have authority, gubject to the published rules of the

agency.and within its powers, to (1) administer oaths and
affirmations, (2) issue subpoenas authorized by law, (3)
rule upon offers of proof and receive relevant evidence, (4)
take or cause depositions,to be taken whenever. the ends
of justice would be served thereby, (5) regulate the course
of the’ hearing, (6) hold conferences for the settlement or

‘simplification of the issues by consent of the parties, (7)

dispose of procedural requests or similar matters, (8) make
decisions or recommended decisions in conformity with
section 8, and (9) take any other action authorized by
agency rule consistent with this Act.

(c) Evience.—Except as statutes otherwise ,provide, 9

the proponent of a rule or order shall have the burden of
proof. Any oral or documentary evidence may be received,
but every agency shall as a matter of policy provide for
the exclusion of irrelevant, immaterial, or unduly repeti-
tious evidence and no sanction shall be imposed or rule or’
order be issued except upon consideration of the whole ree-
ord or such portions thgreof as may*be cited by any party
and as supported by and in accordance with the reliable

probative, and substantial evidence. Every party shall

have the right to present his case or defense by oral or
documentary evidence, to submit rebuttal evidence, and to
conduct such cross-examination as may be required for a |
full and true disclosure of the facts. In rule making’ or

fa
Appendix A

determining claims for money or benefits or applications
for initial licenses any agency may, where the interéat of
any party will not be prejudiced thereby, adopt procedures
- for the submission of all or part of the evidence in written
form. = |

(i) Recorv.—The transcript of testimony and exhibits,
‘gether with all papers and requests filed in the proceeding, |
shall constitute the exclusive record for decision in accord-
-ance with section 8 and, upon payment of lawfully pre-
scribed costs, shall be made available to the parties. Where -
any agency decision rests on official notice of a material
fact not appearing in the evidence in the reeord, any party
shail on timely request be afforded an opportunity to show
the contrary. . | |

‘
* € 7

Sanctions AND Powers |
Sec. 9. [60 Stat. 242; 5 U.S. C.-1008] In the exercise
of any power.or authority— :

. (a) Iy Genenat,—No sanction shall be imposed or sub-
stantive rule or order be issued except within jurisdiction
- delegated to the agency and as authorized by law. =
_ (b) Licenses.-—In any tase in which application is made
for a license required by law and agency, with due regard
to the rights or privileges of all the interested parties or
adversely affected persons and with reasonable dispatch, .
shall set and complete any proceedings required to be con-

ducted pursuant to sections 7 and 8 of this Act or other pro-

_ Ceedings required by law and shall make its decision, Ex-

_ cept in eases of willfulness or those in which public health,
interest or safety requires otherwise, no withdrawal, sus-
Pension, revocation,-or annulment of any licensé shall be
“lawful unless, prior to the institution of agency ‘proceed-
ings therefor, facts or conduct which may warrant such
actions. shall have been called..to the attention of the li-
censee by the agency in writing and the licensee shall have
been accorded opportunity to demonstrate or achieve com-

Sa 4
pA ppendix a

pliance with all lawful réquirements. In any case in which
the licensee has, in accordance with: agency rules, made

timely and sufficient application ‘for a renewal or a new’

license, no license with réference to any activity of a cor-
tinuing nature shall expire until such application shall have

been finally determined by the ageney-—-

JupiciaL Review

Sec. ‘10 [60 Stat. 243; 5 U. S.C. 1009) Except se far

as (1) statutes preclude judicial review or (2) agency ae-
tion is by law committed to ageney discretion—

‘(a) Rigut oF Review.—Any person’ suffering lega!
wrong because of any agency action, or adversely affected
or aggrieved by such action within the meaning ofsany
relevant statute, shall be entitled to judicial review thereof.

(b) Form axp vENvE oF action.—The form of proceed-
ing for judicial review shall be any special statutory re-
view proceeding relevant to the ‘subject matter in any court
specified by statute or, in the absence or inadequacy there-
of, any applicable fotn of legal action (including actions
for declaratory judgménts or writs of prohibitory or man-

.datory injunction or hdbeas corpus) ‘in any court of- com-

petent jurisdiction. -Ageney actién shall be subject to ju- .
dicial review in civil or criminal proceedings for judicial

enforcement except to the extent that prior, adequate, and
exclusive opportunity for such review is provided by law.
(c) REVIEW ABLE acts.—Every agency action made r-
viewable by statute and every final ageney action for which
there is né other adequate remedy in any court shall be sub-
ject to‘judicial review.. Any preliminary, procedural, or
_ intermediate agency action or ruling not -directly. review-
able shall be subject to review upon the review of the final
agency action. Except as: otherwise expressly required by
statute, agency action otherwise final shall be final for the
purposes of this subsection whether or not there has beet
presented or determined any application for a declaratory
order, for any form of. recorsideration, or (unless the
-

4

9a
> Appendix A

agency .otherwisé requires by rulé and provides that the
action meanwhile shall be inoperative) for an appeal to

“superior agency authority.

(d) INtTERm™ RELIEF.—Pending judicial review any °
agency is authorized, where it finds that justice so requires,

to postpone the effective date-of any action taken by it--—

Upon such conditions as may be required and to the extent
necessary to prevent irreparable injury, every reviewing
court (including every court to which a case may be taken
on appeal from or upon application for.certiorari or other
writ to a reviewing court) is authorized to issue all néces-
sary and appropriate process to postpone the effective date
of any agency action or to preserve status or rights pend-
ing conclusion of the review proceedings. .

(e) Scope or rEview.—So far as necessary to decision
and where presented the reviewing court shall decide ail
relevant questions of law, interpret constitutional ‘and stat-
utory provisions, and determine the meaning or applica-
bility of the terms of any agency action. It shall (A) com-
pel agency.action unlawfully withheld or unreasonably de-
layed; and (B) hold unlawful and set aside agency action,

findings, and conclusions found to he ( 1) arbitrary, capri-

cious, an abuse of discretion, or otherwise not in aecord-
ance with law’; (2) contrary to -onstitutional right, power,
privilege, or immunity; (3) in exeess of statutory juris-
diction, authority, or limitations, or short of statutory
right; (4) without observance of procedure required by
law; (5) unsupported by substantial evidence in any case
subject fo the requirements 6f "section 7 and & or other-
Wise reviewed on the record of an ageney hearing provided
by statute; or (6) unwarranted by the facts to the extent
that the facts are subject to trial de novo by the reviewing
court. In making the foregoing determinations the court
shall review the whole record or such portions thereof as
may be cited by any party, and due account shall he taken

- Of.the rule ef prejudicial error.

|

~ 10a
Ap pendix A

FEDERAL AVIATION ACT OF 1958* |
72 Stat. 737 et seq.; 49 U.S. ©. 1301 et seq.

OTHER Powers axv Deties oF ADMINISTRATOR
1M. 8. f+. Gamepad
Sec, 313. [72 Stat: 752, 49 U. S- C. 1354] (a) The Ad-

ministrator is empowered to perform such acts, to condact
such investigations, to issue and amend such orders, and
to make and amend such general or special rules, regula-
tions, and procedures, pursuant ‘to and consistent with the
provisions of this Act, as he shall deem necessary to carry
out the provisi6ns of, and to éxercise and perform his pow-
ers and duties under, this Act... pt ee

&

* _»s.—¢—

~~ TITLE VI—SAFETY REGULATION OF CIVIL.
‘ AERONAUTICS
Genera Sarety Powers anp Duties - .
Minimum Standards; Rules “and Regulations
Sec. 601. [72 Stat. 775, 49 U.S.C. 1421] (a) The Ad-
ministrator is empowered and it shall be his duty to pro.,
mote safety of flight of civil aircraft in air commerce by
prescribing and revising: from time to time: fee
(1) Such minimum standards governing the design, ma: °
terials, workmanship, construction, and performance of
aircraft, aircraft engines, and propellers as may be tfe-

quired in the interest of safety;

(2) Such minirium standards governing appliances as
may pe required in the interest of safety;

(3) Reasonable’ rules and regulations and minimum
standards governing, in’ the interest of safety, (A) the in-
spection,’ servicing, and overhaul of aircraft, aircraft en-
gines, propeHers, and appliances; (B) the equipment and
facilities for such inspection, servicing, and overhaul: and

* As of February 15, 1959. .

lla
Appendix A
(C) in the discretion of the Administrator, the periods for

and the manner in, which such inspection, servicing, and
overhaul shall be made,,including provision for examina-

.tions and reports by properly qualified private persons —

whose examinations or reports the Administrator may ac-
cept in lieu of those made by its officers and employees ;

(4) Reasonable rales and regulations governing the re-
serve supply of aircraft, aircraft engines, propellers, ap-
pliances, and aircraft fuel and oil, required in the interest
of safety, including the reserve supply of aircraft fuel
and oil which shall be carried in flight ;

(5) Reasonable rules and regulations governing, in-the
interest of safety, the maximum hours or periods of serv-
ice of airmen, and other employees, of air carriers; and

(6) Such reasonable rules and regulations, or Minimum

_ Standards, goverriing other practices, methods, and proce-

dure, as the Administrator may find necessary to protide
adequately for national security and safety in air ecommerce.

Needs of Service To Be Considered: Classifica
Standards, ete.

(by In preseribing standardsy,, rules, and regulations,
and in issuing certificates under this title, the Adminis-
trator shall give full consideration to the duty resting upon
air carriers to perform their services with the highest pos-
sible degree of safety in the public interest and to any dif-
ferences between air transportation ‘and other air com- .
merce; and he shall make classifications of such standards, |
rules, regulations, and certificates appropriate*to the dif-
ferences between air transportation and other air com-

tion of

merce. The Administrator may authorize any aireraft,.
_aireraft engine, propeller, or appliance, for which an air-

eraft certificate authorizing use thereof in air transporta-

—_€ e

: | SP. oi EE iN
oe ppe ndiz A

= ‘ , .

tion has been issued, to be used in other air coniinerce with.
F out the issuance of a further certificate. The Administra.
tor shall exercise and perform his powers and duties under
this Act in such manner as will best tend to reducé or elim.
‘inate the possibility of, ‘or Tecurrence of, accidents in air
transportation, but shall not deem himself required té vive
preference to either air transportation or other air COM:
merce in the administration and enforcement of this title.

2

S./ Exemptions’
a

a

‘(c) The Administrator;from time to time may grant ex-
emptions*from the requirements of any rule or regulation
prescribed under this title if he finds that such action would:

be in the public interest. . fet.

AIRMAN CERTIFICATES
Power to Issue Certificate

|. Sec. 602. [72 Stat. 776,49 USC, 1422] (a) The Admin-
istrator is empowered to issue airman certificates specity-
ing the capacity in Which the holders thereof ‘are author-
ized to serve as airmen in connection witlt aircraft.

: 7 Tssuance of Certificate ° :

(b) Any person may file with the Administrator an ap-
plication fer an airman certificate.” If the Administrator
finds, ‘after investigation, *that such PeETSON possesses
proper qualifications for, and is physically able to perform
the duties pertaining to, the position for which ‘the airman
certificate is sought, he shall issue such certificate, con-
taining such terms, conditions, and limitations as to dura-
tion thereof, periodic Or special examinations, tests of
physical fitness, and other matters as the Administrator
‘mnay determine to be nécessary to assure safety in air com-

“meree, Exeept in the ease of persons whose certificates

a

se

%

13a
-
s Appendix A 4
are, at the time of? denial, under order of SUspeision or
whose certHicates have been revoked within one year of the
date of sueh denial, any person whose application for the

issuance +» renewal of an airman certitieate is denied may

file with the Board a petition for review of the Adminis-

trator’ action. The Board shall thereupon assign such
petition for heating at-a place convenient to the appli-
cant’s plaee of residence o¢ employment. In the. conduet
oh such’ hearing and in determining whether the airman
meets the pertinent rules, regulations, ‘or standards, the

‘Board shall not be bound by findings ef fact of the Admin. -

istrator. At the conclusion of such hea ring, the Board shall
issue its decision as to whether the airman meets the per-
tinent rules, regulations, and standards and the Admin-
istrator shall be bound by such decision; Provided, That
the Administrator may, in his diseretion, prohibit or re-
‘trict the issuance of airman certificates to aliens, or may
make such issuance dependent on the terms of: reciprocal]
agreements entered into with foreien sovernments,

. Form and Recording of Certificate

(¢) Each certificate shall be numbered-and recorded by
the Administrator: shall state the name and address of,
and contain a description of. the person to whom the certifi-
cate is issued; and shall be entitled With the designation of
the class covered thereby. Certificates issued to all nilots
serving in-scheduled air transportation shall be designated
‘airline transport pilot’? of the proper Class. |

AIRCRAFT CERTIFICATES

Type Certificates : | 3

: ‘

chapter:

.

‘GENERAL

20.10 Application and issuance. (a) An application
‘ a a pilot certificate or any rating shall be made on a form _
furni:hed by the Administrator.

(b) A student, private, or commercial pilot ‘or flight
* lnsttuctor certificate with appropriate aircraft ratings shall

*As of December 31, 1956, except where otherwise expressl
indicated.

ein

~

>

24a
A ppendix Ay

be issued by the Administrator to an applicait who meets
the applicable requirements. Additional aircraft category, -
class, and type, ‘and instrumént ratings for which an li-
‘cant has been found qualified shall be issued in connection
with a pilot or flight instructor certificate. A pilot certifi
' eate with appropriate limitations shall be issued to an ap-
‘plicant who cannot comply with all the prescribed skill
requirements due to the special characteristics of the air-
craft used in the “flight test if he meets. all other require.
* ments for the issuance of the certificate‘sought.

(c) An applicant for a pilot ‘certificate who presents a
medical certificate issued under .the physical-deficiencies
' provision of Part 29 of this subchapter and meets all other
‘requirements for the isshance of the certificate sought shali
be issued a pilot certificate containing such operating limi-
tations as the Administrator may find are ‘eommensurate
with the physical deficiencies. spe om his medical cer-
tificate.

(d) The prescribed examinations and tests shall. be
given by a person designated by the Administrator.

STupDENT

$20.20 Age. 16 years is the minimum age for the is-
suance of a student pilot certificate. If an applicant is less
than 21: years of age and is not a regular or reserve met-

_ber of thé armed forges of the United States or enrolled in.
an established ROTC or other training program of- such
armed forces at the time of making application, he shall
submit with his application the written consent of either
parent or of his legal or natural guardian.

; ‘ * ee ; :

§ 20.22 Physical standards. An applicant shall hold at
least a valid third class medical certificate issued in ac-
cordance with the physical standards prescribed i in Hart 2 29
of this subchapter.

25a .
Appendix A

' Private

$20.30 Age. 17 years is the minimum age for the is-
suance of a private pilot certificate.

§ 20.32 Physical standards. An applicant shall hold at
least a valid third class medical certificate issued in accord-
ance with the physical stz-ndards prescribed in Part 29 of
this sabchapter. :

e e e
COMMERCIAL * ‘
§20.40° Age. 18 years is the minimum age for the: is-
suance of a commercial pilot certificate. . ,

§ 20.42 Physical standards. An applicant shall hold at
least a valid second class medical certificate issued in ac-
cordance with the physical standards prescribed in Part
29 of this subchapter.

° a) e
e
>; . 4C. FL R. PART 21
Airtine Transport Pinot Ratixe
% * #* ;

$21.1: Provision for issuance. ‘Pursuant to:the provi-
sions.of the Civil Aeronautics Act of 1938, as amended, em-
powering the Administrator of 4‘ivil Aeronautics to issue

airman certificates specifying the capacity in which, the

holders thereof are authorized to serve’as airmen in con-
nection with aircraft, and requiring the Civil Aeronautics
Board to preseribe such reasonable rules and regulations
governing practices, methods, and proceedures as the Board

‘may find necessary to provide adequately for safety in.
* ar-commerce, airline transport pilots will be rated as to

- 26a
. Appendix A
competence in accordance with the provisions of-the regu-
lations in this part. °

§ 21.5 Definitions. As used in this part, terms are de-
fined as follows:
Category. A category is a broad classification ‘of uir-

craft with distinet, configuration and operating character-
istics such as airplane, rotorcraft, or glider.

Class. A class is a classification of aircraft within a |

category differentiating between single-engine, and multi-
engine and land and water configurations.

Flight time. Flight time is the total time from the mo-
ment the aircraft first moves under its own power for the
purpose of flight until the moment: it comes to rest at the —
end of the flight (block to block).

Maximum certificated take-off weight. Maxitmuny cer-
tificated take-off weight is the maximum take-off weight
authorized by the terms of the mi sess cer-
tificate.

Night. Night is the time between the tities of evening
civil twilight and the beginning of morning civil twilight
as published in the American Air Almanac converted té
local time ‘for the locality concerned. |

* Note: The American Air Almanac containing the end-
ing of evening twilight and, the beginning of morning twi-
light tables m@&y be obtained from the Superintendent of
Documents, Government Printing Office, Washinzton 29,
D.C. Information is also available concerning such tables
in the offices of the Civil Aeronautics Administration or the
United States Weather Bureau.

Pilot in.command, A pilot in command is the pilot, re-
sponsible for the operation and safety of the aireraft dur-
ing the time ‘défined as flight time. aa

27a
A ppendix A

Solo flight time. Solo flight time is flight time during
which the pilot is the sole occupant of the aircraft.

Type. Type is a specific classification of aircraft hav-
ing the same basic design including all modifications there- °
‘to except those modifications which result in a change in
handling or flight characteristics.

Minimym ReQuIREMENTS

§21.9 Eligibility. To be eligible-for an airline trans-
port pilot competency rating, an applicant shall comply
with the minimum requirements set.forth in § 21.10-21.18.

§21.10 Age. 23 years is the minimum age for the is-
suance of an airline transport pilot: rating.

§ 21.11 Character. Applicant shall be of good moral
ae

.

_Ewxceptioy : Form ACA-S78A_ will be accepted by the
Administrator from an applicant during the applicant’
period of employment with an air carrier or operator, pro
vided the applicant has been continuously employed since
taking the examination, as a pilot with an air carrier or
operator,-and during this period of employment actively
participates in a pilot traihing program condueted by the
air cerrier or operator. |

21.16 Avronautical erpericnee. An applicant for an
airline transport pilot rating shall hold a valid commer:
cial pilot rating, or equivalent as determined by the Ad
ministrator, and shall meet the following ae wonsatical UX:
perience requirements :

(a) Ay plicant shall have had at least 250 hours of fligh"
time composed of time as pilot in command, or time as co-
pilot actually performing the duties and funetions of 2
pilot in command under the surveillance of the pilot in
command, or any-combination thereof. Of this time, al
least 100 hours shall have been cross-country flight time.
and at least 25 hours shall have been night flight time
Flight time shown in fulfillment of the requirements of this
paragraph may also be used for the purposes of paragraph
(b) of this section.

ola
-Appendiz A

_ (b) Applicant shall, have. had at least 1,200 hours of |
flight time as pilot within the last 8 years, of which

(1) 5 hours: shall have been had within 60 days imme-
diately preceding the date of application; >

(2) 500 hours shall have been cross-country flight time ;
(3) 100 hours shall have been night flight time;

(4) 7d hours shall have been instrument time under ac-
tual or simulated instrument conditions of which not less
than 50 hours shall have been in actual flight.

(c) An applicant who meets the requirements of para-
graph (a) of this section with other than 200 hours, of
pilot-in-command time. shall ‘have his certificate appropri-
ately endorsed: by the Administrator in accordance with
Article 39 of the Convention on International Civil Avia-
tion. At such time as. the holder of a certificate so *en-
dorsed submits reliable documentary evidence ‘to the Ad-
ministrator that he has met the requirements of paragraph
(a) of this section, taking into account only time as pilot in
command, he shall be reissued a certificate without such
endorsement. |

Note: By the terms of Article 40 of the Convention on
International Civil Aviation, no person having a certificate
endorsed in accordance with the foregoing provision may

‘participate in international navigation as pilot in command

except with the permission of the State or States whose
territory is entered.

§21.16-1: Aeronautical experience (CAA rules which

“apply to & 21.16). (a) The following shall be considered

to hold the equivalent of a United States Commercial Pilot
Rating Certificate:

(1) Pilots of the U. S. armed services whose military
experience qualifies them for commercial certificates under
© 20.00 (b) of this subchapter. | -

. .

~

- 82a
Appendiz A

(2) Holders of foreign airline transport pilot or com-
‘mercial pilot licenses without limitations issued by mem-
ber states of ICAO.

‘(b) The holding of the equivalent of a commercial pi-
lot rating shall permit the holder thereof to meet the re-
quirements of. §§ 21.17 (a) (1) through (7) and 21.18 (}).

§21.16-2 Evidence of flight experience (CAA policies
which apply to.§ 21.16). (a) Flight experience required by
§ 21.16 sheuld be substantiated by a logbook maintained in
actordance With the requirements of § 43.43 of this sub-
chapter. - : iL :

© 91.16-3 Copilot expe rience’ (CAA policte s which aap
ply to § 21.16.(a)). A eopilot employed by a certificated
air carrier may credit ‘tas copilot actually performing the
duties and functions of a pilot-in-ecommand under the sur-
veillanee of the pilot-in-command”* that time during which
he performs all the functions of the pilot-in-command ' in-
cluding landings and takeoffs, en route flying, low ap-
prdaches, and ground functions.

(a) Flight time credited in this manner is subject to
the provisions of § 43.44 (b) (2) of this subchapter.

(b) .The actual flight time should be récorded and certi-
fied by the pilot-in-command tinder whose supervision the
functions were accomplished.

§ 21.17 Aeronautical skill. (a) Applicant shall demon-
strate satisfactorily his ability to pilot aircraft in normal

1 An air carrier should determine that a copilot has had sufficient
time and experience and has demonstrated his ability to perform
efficiently the duties of a copilot before permitting him to perform
. the functions of a pilot-in-command for the purpose of logging “pilot~

in-command time.” :

33a
Appendix A

take-offs, turns, landings, and the following maneuvers (the
maneuvers in subparagraphs (6) and (7) of this paragraph
shall be performed in an aircraft satisfactory to the examin-
: ing inspector of the Administrator) :

(1) From 3,500 feet, with engine fhrottled, a 360° turn
and a lending in normal landing attitude. _—-.

(2) From 2,500 feet, with engine throttled, a 180° turn
and a landing in normal landing attitude.

>

(3) A series of three shallow and three steep figure 8
turns and one 720° steep power turn in each direction. Dur-
ing these maneuvers, the pilot shall. not gain or lose more:
than 200 feet of altitude. . -

(4) A spiral in one dire¢tion from 3,500 feet, or higher,
with enginer throttled, and_a landing in normal landing,
attitude.

' (5) Subparagraphs (1) through (4) of this paragraph
shall be applicable when the flight tests are conducted in
aireraft of a gross weight in excess of 10,000 pounds: other- |
wise the pilot shall be required to demonstrate his aeronau-
tical skill in accordan¢e with § 20.45 of this subchapter.

(6) Emergency maneuvers such as simulated foreed
landings, spirals, side slips and climbing turns, and ré-
‘covery from stalls, maneuvers in multiengine equipment
_ with anthorized load with one engine inoperative, if rating
is sought on such equipment, and such other maneuvers as
the examining inspector of the Administrator may deem
necessary to demonstrate the competence of the applicant.

«)(?) A right-hand and a left-hand spin, each of at least
two full turns, with not to exceed 10 degrees error.

Note: The requirements of subparagraphs (1)-(7) of
this paragraphs and of § 21.18(b) may be met by the hold-
ing of a valid commercial rating.

ae |

- 7
_ Appendix A
- (b) Applicant .shall accomplish satisfactorily. a flight
test, solely by instruments, with respect to the following:
(1) Straight level flight for a given period of time.

(2) Moderate seaaed during 180° and 360° turns in
both directions.

(3) Minimum glides and simu climbs, and ap-
proaches to stalled attitudes of flight. .

(4) Climbing turns. | aa

(5) Stalls, skids, slips and spirals, and banks in exces:
of 45°, and recovery from the &

Nore:' ‘The requirements gare (1)-(5) of

‘this paragraph may be met by the holding of a valid instru-

ment rating.

(6) Such other maneuvers as the examining inspee efor

deems necessary. P

(7) A practical demonstration, while in flight or ander
simulated conditions, of estimating arriyal time, —
into account speed, wind, and drift.

§ 21.17-1 - Aeronautical ‘skill (CAA policies which ap-
ply to § 21.17). (a) An applicant will satisfactorily demon-
strate the following maneuvers to an Aviation Safety Agent
or a designated &irline transport pilot examiner by means”

~ of a flight check.? Tiis flight check may not be taken until

the written exainination has been satisfactorily completed .
anc the applicant has complied with the requirements of
21.31. ‘6

2 The examiner of agent will determine the order in which the
maneuvers are to be accomplished. See Appendix A for detailed
information relating to the. xequi:ed maneuvers. Appendix A no
filed with Federal Register Division.

s

35a
> Appendix A

(b) The following list of maneuvers will be ‘specifically
required for airiine transport rating in multiengine air-
craft:

Equipment examination (oral).

Preflight check.

Taxiing, or sailing and ee

Runups.
Takeoffs. : ‘

_Climbs and climbing turns.*

Maneuvering at slow speed.

Approaches to stalls.

Airport traffic pattern.

Landifig technique. |

Cross-wind takeoff and landing.

Traffic control procedure.

Steep turns (instruments only). a

Timed turns.®

Recovery from unusual attitudes.

Use of radio equipment.

Oriegtation.

Beam bracketing.

Cone (station) identification. -_

Instruntent approach procedures.

Missed approach procedures.

Use of directional radio.

‘Rapid descent and pull-up.

Engine(s) out procedure. _ F ,
_ Maneuvering with engine(s) out.

Maneuvering for landing at weather minimums.

Takeoff and landing with engine(s) failure.

Emergencies.

Smoothness and eoordination. °

a udgment.

* Not required if applicant holds instrument rating.

36a
Appendix A

-(e) The following list of- maneuvers will be ssiiiliiile
required for airline transport pilot rating in single-engine

aircraft : 4

Equipment examination (oral).”
a Preflight check. ?
Taxiing, or sailing and docking.
Runup. ,
_ Takeoffs. rere
Climbs and climbing turns.*
Maneuvering at slow speed,
Stalls.
Airport traffic pattern.
Accuracy approaches and spot landings.
Landing technique.
-Cross-wind takeoff and landing.
_ Traffic control procedures.
Steep turns (instument only).
Timed turns.®
Recovery from unusual attitudes.
_ Use of. radio equipment. .
- Orientation.
Beam bracketing.
Cone (station) identification. -
Instrument approach procedures.
. Missed approach procedures.
Use of- directional radio.
Rapid descent and pull-up.
4 Maneuvering for oe at weather minimums.
' Emergencies.
Smoothness and coordination. ite

J er.

.

3 Not required if applicant holds instrument rating.

37a
oe —— A

(a) The following list. of maneuvers will be specifically
* required of ATR multiengine pilots who fe a ply for addi-
tional type ratings:

Equipment examidation (oral).
Preflight check. __
Taxiiing, or sailing and docking.
Runups.
Takeoffs. _
Maneuvering at slow speed. .
Approaches -to stalls. ,
Airport traffic pattern. A
Landing *echnique.

9 Cross-wind takeoff and. landing.
Traffie control procedures.
Steep turns (instrument only).
Recovery from unusual attitudes.
Use of radio equipment.

Missed approach procedures.
Rapid descent and pull-up. —
Engine(s) out procedure.
Maneuvering with engine(s) oute
Maneuvering for landing at weather minimums.
Takeoff and landing ween engine(s s) failure.
Emergencies. :

Smoothness and coordination. ,
Judgment.

$21.18 Radio skill. (a) An_appiicant- shall. der.on-
strate his ability to interpret International Morse Code
signals, and shall accomplish a sati§factory flight. test iri a
hooded at with respect to’ the following:

(1) Tuning radio.

38a
Appendix A

(2) Orientation. Such orientation shall include the. use
‘of the radio direction finder with sufficient tests to deter-
mine the ability of the pilot to:

° (i). Home on a radio station.

(ii) Determine whether the aireraft | is » heading toyard %
or away from the station.

(iii) Obtain accurate fixes by the use of radio compass.
(3) Following radio range.
(4) Locating cone of silence.

(5) Letting-down-through on the range by the approved
instrument approach procedure for the — airport
used in comma with the test.

— (6) Such other’ maneuvers as the examining inspector
deems necessary.

_ (b) Such maneuvers as are necessary to demonstrate
competence to satisfactorily pilot an aircraft from _—
control seat. None of the maneuvers provided for in § 21,17
and this section shall be disregarded, but any such maneuv*r
may be modified by the examining inspector of the Admin. .
istrator to such extent as may be necessary for reasonable
and safe operation of the aircraft used in the particular
maneuver. Such inspector will report any such modifica-
tion to the Administrator in writing. ©

ArrLiNz£ Transport Pitot CoMpeTency CERTIFICATE

§ 21.20 Aircraft rating. The aircraft which the appli-
cant is deemed competent to pilot shall be prescribed. in .
his certificate by category and class, and type if the air-
craft has a maximum certificated take-off weight of more
‘than 12,500 Ibs. and, in the case of unconventional airplanes.
. such descripition as is appropriate to define clearly the com-

39a io
\

Appendix A

petence of the applicant. Competence to pilot aircraft shall )
‘be demonstrated in aircraft of the category and ‘class and,
if appropriate, the type for which the rating is sought.

§ 21.20-1 Air¢graft rating (CAA policies which apply to
§ 21.20(a))¢ Flight test maneuvers as outlined in § 21.17-1
td): will be used in determining competency of airline trans-
port pilots for aircraft ratings sought by them in accerd-
ance with this section.‘ !

§21.21 Application. Application for an airline trans-
port pilot certificate shall be made to the Administrator
upon a form supplied for the purpose.

(a) Application to amend. When any change in an air
line transport pilot competency rating is desired, the appli-
' cant shall file a written request therefor with the Adminis- .
trator upon a form supplied for the purpose.

(b) Rev ocation. No person whose airline transport
pilot certificate has been revoked shall apply for or be is- *
sued a pilot certificate of any grade or rating for a period
of l year after the revocation, except as the order of revo-
eation may otherwise provide.

§21.21-1 Application (CAA policies which apply to
~ § 21.21). Application for an Airline Transport Pilot Rat-
ing Certificate will be made on Form AC'A-34 2a. This form
can be obtained from a representative of the Administrator
at any regional, district, or field office. Application must be
presented in person to-an Aviation Safety Agent or a.desig-
nated airline transport pilot examiner.

§21.28-2 Application to amend (CAA policies which

apply to § 21.21(a)). (a) Application for an amendment,
* See Appendix B for various type ratings. Appendix B not filed
_ with Federal Register Division.

40a
Appendiz A

- to the Airline Transport Pilot Rating Certificate will be
made in accordance with procedures set forth in § 21.21-1.
(Supp. 2, 21 F. R. 7371, Sept. 27, 1956) .

§ 21.22 Issuance. Upon approval of an application
duly made, proofs submitted and examinations and tests
satisfactorily completed, an air line transport pilot certif-
cate will be issued in an appropriate form.

(a) Temporary certificate. Following application made
for an airline transport ‘pilot certificate, but prior to ap-
proval thereof and issuance of the certificate, a temporary
airline transport pilot certificate may be issued by the
examining inspector of the Administrator.

(b) Special ratings. A special rating, except an instru-
ment rating, will be issued to and renewed for the holder
of a valid airline transport pilot certificate pursuant to the
provisions of $§ 20.120 and 20.121, and upon the same terms
as such rating is issued to and renewed for the holder of

a_valid commercial pilot certificate.

(ec) Instruction in air transportation service. Any per-
son holding a valid airline transport pilot rating shall be
considered competent to instruct other pilots in air trans-
portation service in aircraft of a category, class, and type
specified in the airline transport pilot rating of the instruct-

ing pilot. No pilot shall give more than 8 hours of such in--

struction in any one day nor more than 36 hours in any /-

day period. Such instruction shall be given only*in air-

craft équipped with fully functioning dual controls.

§ 21.22-1 Issuance (CAA policies which apply to § 21.22
(a)). Aftet the applicant has satisfactorily completed both
the written examination and flight test, he will be. issued a
temporary certificate, Form ACA-1710T. This certificate
may be issued by an Aviation Safety Agent only. Hence.
if the ‘flight test has been given by a designated examiner,
the applicant must obtain a properly endorsed Form AC.A-

2?

4la
© -

. Appendix A
342A from him for presentation toan Aviation Safety Agent

who will issue the Form ACA-1710T. Permanent certifi-
cates will be issued from Washington, D. C.

@ §21.23 Display. An airline transport pilot certificate

shall be kept in the persone! possession of the pilot at all

times when piloting aircraft, and shall be presented for in-
spection upon the demand of any passenger, or of any au-
thorized official or employee of the Administrator or Board
or any State or municipal official charged with the duty of

_ enforeing local laws or regulations involving Federal com-

pliance, or upon the reasonable request of any other person.

$21.24 Duration. (a) An airline ‘transport pilot cer-
tifieate issued to a United States citizen shall remain in
effect until surrendered, suspended, revoked, or otherwise
terminatéd by order of the Board. A certificate issued to
an applicant other than a United States citizen shall remain
in effect for a period no longer than 12 months after the date
of issuance, but it may be reissued without*further demon-
stration of technical competence.

(b) A temporary airline transport pilot certificate shall ©

remain in effect for a pe ‘riod no longer than 5 months after
. the date of issuance.

(c) After revocation, and upon request after suspen-
sion, the certificate shall be returned to the Administrator.

(d) Nothing in this section shall be construed to deny
or defeat the jurisdiction ef the Federal courts, the Ad-
ministrator, or the Board to impose any authorized sane-
tion, including revocation of the certificate, for a violation
of the act or of the regulations in this subchapter occurring
during the effective period of the certificate.

(e) Upon application to the Administrator, a person

“

who on April 30, 1953, held a valid airline transpert pilot

42a
Appendix A

certificate showing ‘horsepower ratings and who has failed
to exchange such certificate may, notwithstanding such -
‘failure and without further showing of competence, obtain
an airline transport pilot certificate showing the aircraft -
category and class ratings/and any aircraft type ratings
for which he was qualitied on April 30, 1953: Provided,
That the holder-of such certificate ‘has :

(1) Passed an official rating test, as prescribed by the
Administrator, in that type aircraft; or

(2) Successfully accomplished, in that type aireraft,-a
pilot ground and flight training program acceptable to the
Administrator; or.

(3) Served as: pilot in command and sole manipulator
of the controls of that type aircraft for at least 10 hours,
since May 1, 1949, and such aircraft was within his cate-
gory, class, and horsepower ratings.

Such a person may also reinstate any. pilot or other spe- |
ciai ratings shown on the expired airline eames =
certificate.
_ Note: All airline transport pilot sities showing
_—— er ratings expired May 1, 1953.

~ § 21.25 | Nontransferability. An airline transport pilot
certificate is not transferable.

§ 21.26 Operation during physical deficiency. A cer-
tificated airline transport pilot shall not operate any air-
craft during the period of ‘any known physical deficiency or
increase ‘in’ physical deficiency which would render him:
during that period unable to nieet the physical require-
ments with which he cofnplied in arene to secure his. cér-
tificate.

§ 21.97 Termination of certificates. A certificate issued
to an applicant other than a United States citizen shall
remain in effect for a period no longer than 12 months

. Appendiz A

without correction: Provided, That if the depth perception

is greater than 30 millimeters without correction, and js

corrected to at least 30 millimeters average by.glasses, the.

applicant may be qualified upon condition that such glasses

_ be worn while exercising the privileges of his airman cer-
tificate. re -

(3) No diplopia in any meridian within 35 degrees from
‘the point of visual fixation. .

(4). Not more than one diopter of hyperphoria ‘in either
eye. =.

(5) Notzmore than 10 diopters of esophoria..
(6) Not more than 5 diopters of exophoria.

(7) An abduction of not less than 3 diopters nor more
1) diopters, ;

(8) An adduction of 6 or more diopters.

(9) A near vision of at least v==1.00 at 18 inches with
each eye separately without the use of correcting lenses:
Provided, That if near vision in either or both eyes is poorer
than r==1.00 at 18 inches the applicant shall possess the
necessary correcting lenses.

(10) Normal olor vision.
(11) Normal visual fields.
( 12) No acute or chronic pathological condition of either
eye or adenexae which may interfere with its proper fune-

tion, may progress to that degree, or may be aggravated
by flying. ,

?

o8a
‘A ppendix A

(b) Ear, nose, throat, and equilibrium, (1) Applicant
shall be able to-hear the Whispered voice at S- feet with
each ear separately; shall have no acute or chroni¢ disease
of the middle or internal ear; no disease of the mastoid;
no unhealed (unelosed) perforations of the ear drum; no
"disease or malformation of the nose or throat which may

interfere: with or be aggravated by flying: and no dis-
turbance in equilibrium. aes |

(2) If the hearing acuity for the Whispered voice is less
than 20 feet in either’ ear the applicant’ shall possess a
hearing acuity of at least 50 percent of normal in each ear
throughout the effective speech and radio range as demon-
strated by a standard audiometer,

(ec) General physical condition. (1) Applieant shall
have ne organie or functional disease or structural defect
or limitation which would be likely to Fender him unable
lo safely perform the daties and exercise the privileges of
the grade of airman certificate held or sought.

(2) Unless the adjusted maximum readings apply, ap-
plicant's reclining blood pressure shall not éxeeed the maxi-
tuum readings for his age group, as indicated in the table
“in this subparagraph, The adjusted maximum readings
shall apply to any applicant, age 30 years or more, whose -
reclining bood pressure. exceeds the maximum readings for
his age sroup and whose cardiae and kidney conditions, -
after complete ‘ardiovascular examination, are shown to
he normal, by ie

Maximum readings Adjusted maximum

>. (reclining hlood = *( reclining blood
pressure inmm.) "pressure in mm. ).
Age group ae Systole * Diastolic Systolic — Diastolic
ott, Oe EO One 140 SS ~- a
OF Sis cee. 1 ee 185, gS
hit eT ee 105 96 165° 100

OO and over A aint at 160 Qs 170. 100

d4a
sl ppendiz A

(3) Applicant 40 years of age or over shall demonstrate
a degree or circulatory efficiency compatible with the safe
- Operation of aircraft at high altitudes.

(d) Nervous system. Applicant shall have nq disease
of the mental or nervous system or abnormality of the per-
sonality which would be likely to render him unable to
safely perform the duties and exercise the privileges of the
grade and airman certificate held or sought. bibs

§ 29.3 Second class—fa) Eye. Applicant shall have:

(1) A visual acuity of at least 20/20 in each eVe sep.
arately without correction: Provided, That if the vision in
cither or both eyes is not poorer than 20/50 and is brought
up to 20/20 or better in each such eye by glasses, the
applicant may be qualified upon’ condition that correcting
glasses be worn while exercising the privileges of his air-
man certificate. .

(2) An average depth perception of 30 millimeters or
ess on a prescribed depth perception apparatus, with or

; ‘without correction: Provided, That if the depth percep-

tion is grated than 30 millimeters without correction, and

is corrected to at least 30 millimeters average by glasses,

the applicant may be qualified upon condition ‘that such’

‘ glasses be worn, while exercising the privileges of his air.
man certificate, |

(3) No diplopia in any meridian within 35 degrees from
the point of visual fixation.

(+) Not more than one diopter of hyperphoria.

(9) Properly balanced ‘eye muscles with an abduction of
3 diopters or more, and adduction of 6 diopters or more.

(6) Sufficient accommodation to pass a test prescribed
by the Administrator based primarily upon ability to read
Official aeronautical maps. ke:

oda
A ppendir a

(7) Normal fields of Vision,
(8) No pathology of the eye.

(9) The ability to distinguish aviation signal red, avia-
tion signal green, and white.

(b) Ear, nose, throat, and equilibrium. Applicant shall-
le able to hear the whispered voice at 8 feet with each ear
separately; shall have no acute or chronic disease of the

. middle or internal ear; no disease of the mastoid: no un.

_ healed (unclosed) perforations of the ear drum; no disease
or malformation of the nose or throat which may interfere ~

_ with or be aggravated by flying; and no disturbance: in.
equilibrium, ;

(c) General Physical condition, Applicant shall. have

no organic or functional disease or structural defect or

_ limitation which would be likely to render him unable to
safely perform the duties and exercise the privileges of the

grade of airman certificate held or sought. ,

~
-

(d) Nervous system. Applicant shall have no disease
of the mental or nervous system or abnormality of the per-
_ sonality which would be likely tu render him unable te
safely perform the duties and exercise the privileges of the
- grade of airman certificate held or sought. ~

$29.4 Third class—(a) Eye. Applicant shall have:

(1) A visual acuity of at least 20/50 in each eye sepa-.
rately without correction: Provided, That if the vision in
cither or both eyes is poorer than 20/50 and is brought up
to 20/30 or better in each such eye by glasses, the applicant
may he qualified upon condition that such glasses be worn
While exercising the privileges of his- airman certificate,

{2) No serious’ pathology of the eye.

(+) The ability to distinguish aviation signal red, avia-
tion signal green, and white.

56a
Appendia A

(b) Ear, nose, throat, and equilibrium. Applicant shall
he able to hear the whispered voice at 3 feet; shall have no
acute or chronic disease of the internal ear, no disease or
malformation of the nose or throat which may interfere
with or be aggravated by flying, and no disturbance in
equilibrium. 7 ) .

(c) General physical condition. Applicant shall have
no organic or functional disease or structural defect or
limitation which would be likely to render bim unable to
safely perform the duties and exercise the privileges of the
grade of airman certificate held or sought.

(d) Nervous system. Applicant shall have no disease
of the mental or nervous system or abnormality of the per-
sonality which would be, likely to render him unable to
safely perform the duties and exercise the privileges of
the grade of airman certificate held or sought.

§ 29.5 Physical deficiencies. (a) A limited medical
certificate shall be issued to an applicant who fails to meet
the physical standards prescribed for the medical certifi-

cate sought if the Administrator finds, through more esten- .
sive medical examinations, oractiet tests or’ otherwise
that, by the imposition of terms, conditions, or limitations,
the applicant, notwithstanding his physical deficiency, can .
perform the duties and exercise those privileges authorized
by the Administrator without endangering safety in air
ecommerce. The operational limitations imposed by the »
Administrator shall be set forth on the applicant’s airman
certificate. .

(b) Where the Administrator’s finding regarding an
individual’s physical fitness is based upon a practical test, |
_that individual shall not be required to retake such practi-
eai test during subsequent physical examinations unless, in
. the opinion of the Administrator, the individual’s physical
deficiency has become more pronounced.

* * *

rf

57a |
Appendix A.

14¢. F. R.. PART 40
SCHEDULED INTERSTATE AIR CARRIER

(' ERTIFICATION AND Op ERATION. RULES

* * .

APPLICABILITY AND DEFINITIONS

, 40.1 \ Applicability of this part.. The provisions of
this part are applicable to air carriers holding certificates
of publie p Wr ori and necessity issued in accordance
with Title IV of the Civil. Aeronautics Act of 1938, as
amended, whey they engage’ in scheduled interstate air
‘transportation within the continental limits of the United
"States: Provided, That the provisions of this part shall not
apply to operations conducted pursuant to economic exemp-
tion authority issued by the Board for a period of 90 days
or less: And provided further, That the Administrator
may authorize any air carrier holding authority to engage
a ~irstheduled cargo operations pursuant to Titlé’ IV of the.
Civil Aeronautics Act of 1938, as amendéd, to conduct such
operations in accordance with the air carrier certification
and operations rules prescribed in Part 42 of this subehap-
ter: And provided further, That inthe case of segments
of routes extending ‘beyond the continental limits of the
United States the Administrator may authorize an air car-
rier to conduct operations over such route segments pur-
suant to provisions of this part. ;

* * *
Cc - . j -
ERTIFICATION, RULES, AND OPERATIONS SPECIFICATIONS
: REQUIREMENTS

40.10 Certificate required. No person subject to the
provisions of this part shall operate an airplane in sched-
wled interstate aif transportation without, or in violation”
of the terms of, an air carrier operating certificate: issued
by the Administrator.

58a
“ae Appendir A

ReQUBREMENTS FOR SERVICES AND Factuities

540.30 Route requirements; demonstration of compe-
tence. The air carrier shall show that it is competent t
conduct scheduled operations over any route or route seg.
ment between any regular, provisional, or refueling airport
-and that the facilities and services available are adequate
for the type of operation proposed. The Administrator
shall not require actual flight over a route or route segment,
if the air carriér shows that such flight is not essential to
safety. The air carrier may thereafter conduct operations
between regular, provisional, or refueling airports on any
approved route or routes on which the operational facilities
and procedures are substantially similar: Provided, That
high-altitude operations may.be conducted over any route.

. f Manvau RequirEMENtTS

2

§ 40.50. Preparation of manual. The air carrier shall
prepare and keep current a manual for the use and guidance
of fight and ground operations personnel in the conduct of

‘its operations.

AIRPLANE RequirEMENTS

) 40.60 Generai:~ Airplanes shall be identified, certifi-
cated, and equipped in accordance with the applicable air-
worthiness requirements of the regulations in this sub-
chapter. No. air earriér shall operate any airplane in
scheduled operation unless such airplane meets the require-
ments of this part and is in an airworthy condition.

aa . ”

Specta, Arrwortutvess ReQuirEMENTS

* $40.110 Fire prevention. All airplanes used in pas- |

senger servier, powered by engines rated at more than 6)

~

ie ee ee age:

09a

Appendix A
6. .

horespower each for maximum continuous operation and
which have not been certificated in accordance with the
provisions of Part 4b of this subchapter in effect on or
after November 1, 1946, shall comply with the requirements
contained in $9 40.111 through 40.143: Provided, That if
the Administrator finds that in particular models of existing
airplanes literal compliance with specific items of these
requirements might be extremely difficult of accomplish-
ment and that such compliance would not contribute ma-
terially to the objective sought, he may accept such meas-
ures Of compliance as he finds will effectively accomplish
the basic objectives of these regulations.

INSTRUMENTS AND Equipmest ror Spectra OPERATIONS

> 40.170 Aircraft instruments and equipment for all
operation. (a) Instruments and equipment required by
40.171 thretgh 40,232 shall be approved and shall be
ustalled in accordance with the provisions of the air-
Worthiness requirements applicable to the instruments or
equipment concerned,

40.200 Instruments and equipment for operations at
night. Each airplane operated at night shall be equipped
with the following in: ‘ruments and equipment in addition
to those required by $$ 40.171 through 40.178:

(a) Flashing position lights:

(b) After May 31, 1956, an anti-collision light for air-
planes having a maximum certificated weight of more than
12.500 pounds ; ‘

(c) Two landing lights;

(id) Two class 1 or class 1A landing flares ;

60a
A ppendix A

- (e) Instrument lights providing sufficient illumination
to make all instruments, switches, ete., easily readable. so
instalied that their direct rays are shielded from the flight
crew members’ eyes and that no objectionable reflections
are visible to them. ‘A means of controlling the intensity
of illumination shall be provided unless it is shown that
nondimming instrument lights are satisfactory;

(f) An air-speed indicating system with heated pilot
tube or equivalent means for preventing malfunctioning *
due to icing; aud

(g) A-sensitive altimeter.

§ 40.241 Maintenance and inspection requirem« nfs. (a)
The air carrier, or the person ‘with whom arrangements
have heen made for the performance of maintenance and
inspection functions, shall establish an adequate inspection
organization responsible for determining that worknuin-
ship, methods employed, and material used,are in conforu-
ity with the requirements of the regulations of this su)-
“hapter, with accepted standards and good practices, am
that any airframe, engine, propeller, er appliance released
tor flight is airworthy. ~ ‘

.
(b) Any individual who is directly in charge of in-
spection, maintenance, overhaul, or repair of any air. }
frame, eugine, propeller, or appliance shall hold an ap-

propriate license or airman certificate.

AIRMAN aNd Crew Memner ReQvikEMENTS

£ 40.260 Utilization of airman, No air earrier *

~
Reevuirev ReEcorvs axp Reports

‘40.500 Records. Each scheduled air carrier shall
maintain records and submit reports in accordance wit
the requirements of $$ 40.501 through 40.511. All records
Shall be retained for the period specified in Part 249 ot
Subchapter B of this chapter (HNeonomic Regulations). w-
» less otherwisi specified in §$40.501 through 40.511.

* * *

i

*e

65a

eres YY Appendix B
UNITED STATES COURT OF APPEALS

For tHe Secoxp Cmevrr

No. 337 Ocetober Term, 1959.

“& (Argued April &, 1960 Deeided April 21, 1960. )

Docket No. 26174

°
0

Aim Lixe Pmots’ Assi IATION, TNTERNATIONAL, can Unin-

corporated Assdéciation, Clarence N. Sayen, ef al.,

Plaintiff s-A ppe Hants,

—Y

“~

_ Etwoov‘R. Qvesapa, Indis idually and as siquariboned of
the Federal Aviation Ageney,

Detendunt-A ppelles

Betore: a
Le atwarp, Chief Judqe,
Hast and Hixcxs, Cirenit Sudaes,

Plaintiffs appeal from an erder of the United States.
Distriet Court for the Southern District of New York, Alex-
ander Bieks, J., denying a preloninary injunetion ina Sait
iO restrain enforeement by defendant. Administretor of the
Fede ral Aviation Ageney, of “a reavdation forbidding eom-

mercial ar carriers from utilizing pilots beveril the
of Jizty. -

ere

Affirmed.

66a
Appendix B

Samvuey J. Coney, New York; N. Y. (Henny Wess, |
Hersert A. Levy and Couen anxp Weiss, New York.
° N. Y., on the brief), for plaintiffs-appellants.

S. Hazarv Guesprr, Jr., ‘United States? Attorney,
Southern District of New York, New York, N. Y.
(Rozert J. Warp, Assistant United States Attorney,
Suegman J. Saxi, Assistant United States Attorney,
Daccetr W. Howanrp, General Counsel, Federal: Avia-
tion Agency, Winuiam A. Crawrorp, Jr., Chief At
torney, Federal Aviation Agency, on the brief}, for
defendant-appellee.

_Lumparp, Chief Judge:+ 4%

_ On December 1, 1959 the def ndant, Elwood R. (Juesada,
Administrator of the Federal viation Agency, promul- °

‘“‘No individual who has redhed his 60th birthday —
shall be utilized or serve as a pilot on any aircraft
while engaged in air carrier operations.’’?

‘This regulation took effect on’ March 15, 1960.

The plaintffs, thirty-five individual pilots, their collec.
tive bargaining representative, Air Line Pilois Association,

414 C.F. R. § 40.266(b). Part 40 of the regulations concerns
scheduled interstate air carrier operations. An identical provision
appears at 14 C. F. R. § 41.48(e) ; Part 41 pertains to air carrier
Operations outside the continental limits of the United States. Par
42, which governs irregular air carrier operations, contains the same
provision at 14 C. F. R. § 42.40(c), except that in this provision the
word “large” appears in front of “aircraft.” ms

- The regulation does not apply to private or other pilots not er-
gaged in carrying passengers, mail, or freight for hire. See Federa!
Aviation Act of 1958, § 101,49 US C § 1301.

: | 67a"
Appendix B

and its president, brought the suit in January 1960 for a
declaratory judgment that the regulation was null and void
and for an injunction against its threatened application.
The complaint alleged—and the plaintiffs contend on this
appeal—that the regulation is invalid because it was issued
without the holding of adjudicatory hearings required by
the Administrative Procedure Act, 5 U. S.C. & 1001-11,
and by § 609-of the Federal Aviation Act of 1998, 49 U.S.C.
5 1429, before an airman’s license Ths be amended, modified,
suspended or revoked, and because it was arbitrary, dis-
criminatory and without reasonable relation to the stand-
- ards set forth in § 601 of the Act, 49 Us S.C. 5 1421, under
Which it was issued. The plaintiffs also claim that the
regulation, by terminating their right to pilot planes in .
‘commercial service after age sixty, deprives them of prop- |
erty in. their pilots’ licenses without due process of law. .
The district court, after submission of lengthy affidavits,
denied the plaintiffs’ notion for a preliminary injunction
but reserved ju@gment on the Administrator’s cross motion
for summary judgment. Plaintiffs brought this appeal un-
Mer § 1292(a) (1) of the Judicial Code. We affirm the order.
The Federal Aviation Act was passed by Congress for
the purpose of centralizing in a single authority—indeed,
in one administrator—the power to frame rules for the
safe and efficient use of the nation’s airspace, The 4 dmin-
istrator was given the authority, theretofore divided be-
tween the Cifl Aeronautics Board and the Civil Aero-
hautics Anthority: ye ‘ “.

Sayen, its president, have Standing to raise the issues before us.

Nor do we decide whethe- the plaintiffs hzve made a showing of
itrepirable injury a: lequate to warrant the granting of a pro imingry
Injurction. é

68a
Appendix B

‘* * * © [T]o promote safety of flight of civil aircraft.
in air commerce by ‘prescribing and revising from
time to time: . — at
. * Y

(5) Reasonable rules and regulations governing,
in the interest of safety, the maximum hours or
periods of.service of airmen, and other employees, of
air carriers; and es |

(6) Such reasonable. rules and regulations, or
minimum standards, governing other practices, meth-
ods, and procedure as the Administrator may find
necessary to provide adequately for natronal se.
curity and safety in air commerce.” 3

Pursuant to this statutory authority the Administrator and
his medical staff in the fall of 1958 began a study concern-
ing the aging process and the diseases and physiological
deterioration that accompany it in an effort to determine
whether a maximum age should be set for service by com-
mercial pilots. The Administrator took counsel with yari-
out experts in aviation medicine and safety and, amovz
other things, determined the practices followed by five for-
eign air lines with respect to a mandatory retirement age.
Finally, in. June 1959 the Administrator published a pro-
posed regulation in substance the same. as that ultimately

* Federal Aviation Act of 1958, §601(a), 49 U.S. €. § 1421 (a).
Section 601(b) goes on to state in part: ; x

“In prescribing standards, rules, and regtilations * * * the,
Administrator shall give full consideration to the duty rest.ng
upon air carriers to perform their Services with the highest
possible degree of safety in the public interest. * * * The Ac-
ministrator shall exercise and perform his powers and duties
under this chapter in such manner as will best tend to reduce or
elimjnate the possibility of, or ‘recurrence of, accidents ir air.
transportation. * * *”

69a
Appendix B

presecribed.* In accordance with the rule-making require-
‘-ments of § 4 of the Administrative Procedure Act, 5 U.8..C.
) 1003, opportunity was afforded for the submission of writ- ;
ten data and briefs. About one hundred comments, includ-
ing those of the plaintiff association, were received. A large
majority favored the regulation. No hearing was held since
the Administrator determined, as he. was entitled to under
the rule-making provisions of the Administrative Procedure
Act, that a hearing would not ‘‘serve a useful purpose’’ and
that it was not ‘‘necessary in the public interest.” ,

Plaintiffs assert that since the certificates of all commer-
cial pilots are in effect modified by the regulation, and in
the ease of pilots already sixty, terminated, promulgation
of th regulations was not rule-making within the meaning
of the Administrative Procedure Act, but that the Admin-
istrator was obliged to proceed by holding an adjudicative
hearing for each airman affected and by the entry of an
“‘order.’’* Alternatively, they say that whether one labels
the issuance of the regulation rule-making d? no

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0999%3A2. Public record. Not legal advice.