June 1, 2002
By John S. Yodice
At my FAR refresher seminars I am surprised at how often I am asked about how to respond to an FAA request for pilot documentation, especially pilot certificates and logbooks. "What am I required to produce?" "Must the request be reasonable?" "Can the inspector take my certificate or logbooks?" "Can I physically hold on to my certificate while the inspector looks at it?" "Suppose I refuse to produce these documents, what happens then?" These questions usually lead to a lively discussion.
A recent FAA enforcement case gives us an opportunity to review these regulatory requirements. It also gives us a real-life answer to some of these questions, especially to the "what happens" question.
Let's look at the rules. The regulatory requirements are contained in FAR 61.3(l) and 61.51(i). These regulations require a pilot to "present" for "inspection" certain pilot documents upon the reasonable request of certain officials. Yes, in answer to one of the frequently asked questions, the request must be "reasonable." While the word reasonable appears in only one of the two provisions — FAR 61.51(i) — it has been interpreted to apply to both. The concept of reasonableness is narrower than one might expect.
What documents must be presented? The credentials that must be produced for inspection are an individual's FAA pilot certificate, medical certificate, and pilot logbooks. There are other documents that must be produced, but they don't seem to raise the same level of concern. These are the records that are required to be kept by FAR Part 61. FAR Part 61 governs FAA certification of pilots and instructors. These records include special-purpose pilot authorizations such as the familiar LOAs (letters of authorization) and flight and ground instructor certificates.
The officials named in the regulations who may make such requests are: authorized representatives of the FAA, the National Transportation Safety Board, and any federal, state, or local law enforcement officer.
OK, in summary then, a pilot is required to present for inspection his or her pilot and medical certificate and logbooks at the reasonable request of an FAA or NTSB representative, or a federal, state, or local law enforcement officer.
The pilot involved in this case is a flight instructor. He was administering a biennial flight review to another pilot when the Cessna 172RG they were flying landed gear up. The local FAA flight standards district office began an investigation of the incident. As part of the investigation, the FSDO wrote to the flight instructor asking him to present his pilot logbooks and flight instructor records for inspection. (Later in the proceedings, the FAA also demanded that he produce his medical certificate for inspection.)
For what he thought were good reasons, the flight instructor refused to comply. He was familiar with Part 830 of the National Transportation Safety Board regulations, which prescribes what accidents and incidents must be officially reported. This was not one of them. Since the involvement of the FAA was not required or invited, according to the flight instructor, he concluded that the FAA request was an unreasonable invasion of his privacy. He also believed that the FAA request was unreasonable because he had timely filed an Aviation Safety Reporting System (ASRS) report about the gear-up incident, which he felt provided him with immunity from the FAA probing.
The refusal didn't sit well with the FAA. As is usual in such cases of refusal, the FAA issued an order suspending all of his airman certificates — not only his flight instructor certificate, but also his pilot and medical certificates. That is certainly one answer to the question of "what happens" after a refusal.
As was his right, the flight instructor appealed the FAA's order to the NTSB. A hearing was held before an NTSB administrative law judge. The flight instructor's arguments didn't sway the judge. The judge sustained the FAA order. The instructor then appealed to the full five-member board, as again was his right. The full board also affirmed the FAA order. In doing so, the board kept the order of suspension in effect beyond the 30-day suspension ordered by the FAA, extending it until the flight instructor complied with the FAA request. In no uncertain terms, the board said: "In the event [the flight instructor] does not produce the requested records before or within the 30-day suspension period, the suspension shall remain in effect indefinitely until such time that [the flight instructor] fully complies with the [FAA] administrator's inspection request." This, too, is usual in such cases, and gives us a more complete answer to the question "what happens."
So, this case is a real-life illustration that if a pilot believes an FAA request for pilot documentation is unreasonable, the way to test it is to refuse. The FAA will surely issue an order of suspension or revocation of the pilot's certificates, and the pilot must then appeal to the NTSB to raise the issue of reasonableness. As we can see from this case, the NTSB will probably be tough on the issue of reasonableness. Reasonableness, the board tells us, will be measured in terms of the burden imposed on the pilot, not, as one would suppose, the FAA's justification for the request. Here is what the board said: "We have previously held that 'reasonable' in the context of FAR section 61.51(i) means that compliance presents no undue or inappropriate burden, for the administrator is not obligated to explain or establish why she wants or should be permitted to see the logbooks or other records she is authorized to review under the regulations."
Assuming an FAA request would be considered reasonable in this context, what about that intriguing question: "Can I physically hold on to my certificate while the inspector looks at it?" I don't know that a pilot needs to go that far, as long as the inspector is made to understand that "present" for "inspection" does not mean "surrender." Most inspectors are conscientious in doing their jobs and well understand the difference, but there have been some isolated misunderstandings. A pilot may be merely presenting his certificates for inspection, as the regulations require, but the FAA inspector may view it as a voluntary surrender of the certificates. The pilots asking the intriguing question are quite right in assuming that the FAA inspector has no authority to take the certificates (except by way of a very formal and legalistic procedure in which a pilot has rights of appeal to the NTSB). Holding on to the certificates may be an effective way of ensuring that the inspector understands that the pilot is not surrendering the certificates. There may be other, less confrontational ways of making this clear.
I faced this situation once years ago. A well-dressed gentleman, purporting to be an FAA inspector, was meeting all aircraft as they arrived at the Frederick airport, and asking the pilots to see their certificates. The inspector was acting very professionally in doing his job, and I wouldn't fault him for that, but I didn't get the feeling that he appreciated the uncomfortable position he was putting the pilots in. Since I didn't know him, I politely asked to see his FAA credentials before I would produce mine. He was obviously taken aback. Apparently no other pilot had asked him to identify himself. To his credit he quickly realized the propriety of my request and showed me his credentials, which he carefully guarded (held on to!). I then showed him my certificates. I believe that after our exchange, he had a better appreciation of the intimidation pilots naturally feel when faced with such a request. There was no question that I was surrendering my certificates to him any more than he was surrendering his credentials to me. As long as the inspector understands that there is no voluntary surrender, a pilot may hand them over for the brief period necessary for the inspector to "inspect" them.
With regard to the possibility of confusion between surrender and presentation for inspection, pilots should be aware that there is an FAR right on point. FAR 61.27, which relates to pilot and flight instructor certificates, first states the obvious, that a certificate holder may voluntarily surrender a certificate for cancellation. Then it goes on to provide that any such request by a certificate holder must include the following signed statement or its equivalent: "This request is made for my own reasons, with full knowledge that my (insert name of certificate or rating, as appropriate) may not be reissued to me unless I again pass the tests prescribed for its issuance." If an FAA inspector ever argues that you made a voluntary surrender of your pilot or instructor certificate, you should remind him or her that you never signed such a statement as required by the rule. That should settle the argument. There is no similar provision in the regulations for medical certificates.
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