Regulatory and Certification Policy
Pilot Counsel: FAA�s ticket programBy John S. Yodice (From AOPA Pilot, September 1999.)
There was a proposal to have FAA inspectors issue Federal Aviation Regulations violation citations "on the spot," much like traffic tickets issued by police or state troopers for alleged motor vehicle violations. For that reason it was dubbed the "FAA ticket program." The good news for pilots is that the proposal has now been revised significantly as a result of objections by AOPA and other industry organizations.
The revised program, which took effect last month, is now called the Streamlined Administrative Action Process (SAAP). While much of what was bad in the ticket program has been cured, pilots, aircraft owners, and others still need to know their legal rights in this new process. The bad news is that it remains an enforcement process that leads to an official black mark on a pilot�s record. Such a record could have serious consequences, including affecting a pilot�s ability to get a flying job, to get insurance, and even how seriously the FAA will come down on a pilot in the future.
Let�s put this new process in perspective. If the FAA investigates a pilot�s possible FAR infraction, the investigation could result in a whole range of possibilities. Such an investigation is usually preceded by a letter of notification to the alleged violator that an investigation is being conducted. The notice quotes the regulations thought to have been violated, and offers the pilot an opportunity to respond within 10 days.
The most benign result of an FAA investigation, the result we�d most like to have, is a finding that no violation occurred. The pilot under investigation usually receives a follow-up letter from the FAA saying just that�that the investigation failed to disclose any evidence of a violation and that no further action will be taken.
Or, the FAA could conclude that a violation did occur, but that it was so minor that it warrants only an administrative action. An administrative action takes the form of a Warning Notice or a Letter of Correction. A good example of an administrative action is the remedial training program, in which a pilot agrees to take additional training in lieu of a legal enforcement action.
Or, the FAA could consider the matter serious enough to warrant legal enforcement action. This usually takes the form of a suspension or revocation of a pilot�s certificate, although it is sometimes the imposition of a civil penalty�essentially, a monetary fine. A pilot faced with a legal enforcement action has the legal right to appeal such an action to the National Transportation Safety Board. On appeal, the FAA has the burden to prove its case against the pilot, and a pilot has a right to defend the action with the pilot�s own evidence. The case is judged by an independent administrative law judge who decides whether the FAA has borne its burden of proof, and whether the suspension, revocation, or fine imposed by the FAA is warranted.
The most serious result of an FAA investigation is criminal charges. When the FAA concludes that criminal charges are warranted, the case is referred to the U.S. Department of Justice for prosecution.
We did not mention a request for re-examination in this listing because technically it is not an enforcement action, but it could be a result of an FAA investigation.
Within this range of possible outcomes of an FAA investigation, the new SAAP falls into the category of an administrative action. An administrative action is certainly preferable to a legal enforcement action. The problem is that an administrative action leads to an automatic black mark on a person�s record without affording that person a legal process to contest that black mark, like the process that is available in a legal enforcement action. Yet, that black mark�a record of the FAA�s conclusion that the person committed an infraction of the Federal Aviation Regulations�is publicly available. It could lead to undesirable consequences for the pilot.
So what should a pilot do when faced with an SAAP action? How does a person even know that he or she is the subject of an SAAP investigation?
As the program is structured, an SAAP action typically will be preceded by a face-to-face encounter with an FAA inspector�usually "on the spot." It will involve the inspector�s counseling the person about some alleged violation. The inspector should advise the person why what he or she did, or did not do, is a violation. The inspector also should indicate that an enforcement action will be taken. If this happens to you, you should by now be aware that you are probably involved in an SAAP process.
What should a pilot do? Remember during this encounter that the inspector still has available the whole range of possible outcomes we discussed. We sure would like the inspector to conclude that no violation occurred. Yet, if we discuss the matter with the inspector in an effort to persuade him that no violation occurred, it could lead to unnecessarily damaging admissions and other evidence that could hamper the defense of any legal enforcement action that might result. Worse yet, it could result in an argument and an ugly confrontation. On the other hand, refusal to discuss the matter�and an individual has a perfectly legal right to do this�will probably be considered a lack of cooperation and a poor attitude. This will be taken into account in deciding what, if any, enforcement action should be taken.
The safest course of action is to avoid discussing the substance of the matter with the inspector until you have had an opportunity to reflect on the incident and to consult with someone knowledgeable on FAA enforcement. (You do have to present your FAA certificates for inspection if asked, as well as logbooks if you have them with you, but only after the inspector has shown his or her credentials.) But from past experience, we know that this recommendation to remain silent is difficult to take. Most people will talk to the FAA because they find themselves involved in the encounter before they realize the potential ramifications of what is happening. And in the past, discussing the incident often turned out to be the best course for resolving minor infractions. The inspector offered counseling, the pilot accepted it, and that was the end of it. Now, of course, it will probably lead to an official record of an administrative enforcement action.
If the matter is a serious one (a tough judgment call), a pilot should politely indicate that he or she would like to consult with someone before discussing the matter further with the inspector. This is especially important advice for members of the AOPA Legal Services Plan, who should call in at the first reasonable opportunity. If the inspector is persistent, at the very least, the inspector should assure the pilot that nothing more serious will come out of the discussion than an administrative action. If the inspector refuses to offer that assurance, that is all the more reason for politely begging off. This is a difficult choice because it could lead to a legal enforcement action in a matter that might have been disposed of by administrative action.
If the matter is minor (also a tough judgment call), since you will likely be trapped into a discussion before you know what is going on, there are some general rules you should follow. In any encounter with an FAA inspector regarding an alleged infraction, you should always be polite. The inspector is only doing his or her job. Once you become aware of what is happening, and you have concluded that the matter is a minor one, take the inspector�s counseling. Listen more than talk. Avoid making damaging admissions�don�t volunteer anything. If as the discussion progresses you feel that the matter is more serious than you first thought, beg off. The SAAP process is supposed to be used only in minor matters.
If after an encounter, the FAA inspector decides that the matter should be disposed of using the SAAP process, then within several days of the encounter you will receive in the mail Warning Notice or a Letter of Correction. It will cite the regulations that were allegedly violated. It will tell you that the violations alleged by the FAA will be made a matter of record for two years from the date of issuance. It will also advise you that you may send in additional information within 30 days. Since the FAA charges will be a matter of public record, you should send a letter giving your side of the story. Based on your letter, the FAA may change its mind and withdraw the Warning Notice or Letter of Correction�not likely, but you have nothing to lose. You will be notified if there is a withdrawal.
As we gain experience with SAAP, we may be able to offer additional and maybe even different guidance. Let us know your experiences.