Legal Briefing

The safety seminars the FAA holds each year at the Experimental Aircraft Association's AirVenture Oshkosh are world class and set the standard for cooperation between the pilot community and the FAA in promoting general aviation safety. The FAA brings an outstanding team and devotes an entire building to making you a safer airman, mechanic, or aircraft owner.

The enthusiasm and good will the FAA generates at Oshkosh has had a very positive effect on thousands of airmen. You should take full advantage of the FAA's Oshkosh experience because you never know whether someday you may have to deal with the FAA's other side - the one that is responsible for enforcing the federal aviation regulations - and they aren't the same folks.

FAA enforcement is serious business and involves the potential loss or suspension of your airman's certificate or a civil penalty (a fine). Let me give you a real-life example. Say you were unfortunate enough to experience an engine failure in a single-engine aircraft. You landed your airplane successfully in an open field, with no damage to the passengers or aircraft (because your CFI gave you excellent flight training to FAA standards).

The side of the FAA that promotes aviation safety is delighted with you. However, the side of the FAA that enforces the regulations will investigate your flight. If the FAA determines that a pre-existing condition caused the engine failure - one that it believes you should have caught during your preflight inspection - the FAA may start an enforcement action against you to suspend your pilot certificate for 30 to 180 days for flying an unairworthy aircraft.

What? Tell me that again. I landed safely, and the FAA is after me? What if I inadvertently violated an FAR? How does the FAA enforcement system work? Here are the basics:

The first notice you have that the FAA is investigating you for a possible violation may be when you receive a letter of investigation. This letter is generally called "The 10-Day Letter" because that's how long the FAA gives you to respond to it. Upon receiving this letter, you have the right to respond, the right to not say anything, and the right to have an attorney.

If the FAA decides the action should go forward, it will send you a "Notice of Proposed Certificate Action," which generally requests a minimum 30-day suspension of your pilot certificate. If the FAA decides to pursue a civil penalty, you will receive a "Notice of Proposed Civil Penalty."

Upon receiving either of these letters, you have four options: (1) surrender your certificate; (2) request that the matter be discussed informally with an FAA attorney; (3) submit a written answer to the proposed Notice; or (4) request that the Order be issued so you can appeal the matter directly to the National Transportation Safety Board.

Most pilots elect to discuss the matter informally with an FAA attorney, often with the pilot's aviation attorney present. If you (and your attorney) and the FAA cannot resolve the matter at this level, the FAA will issue an Order of Suspension. You must appeal the Order of Suspension within 20 days to be entitled to a hearing before an administrative law judge of the National Transportation Safety Board, where a court reporter makes a complete transcript of the proceedings.

The NTSB judge makes a ruling at the hearing's conclusion. You can appeal this decision to the NTSB, but you must make the appeal within 10 days. If you're not satisfied with the NTSB decision, you can appeal to the United States Court of Appeals.

In most circumstances, you're entitled to a waiver of having to serve a sanction that the FAA might find under the foregoing judicial process if you file a report to NASA's Aviation Safety Reporting System within 10 days following the incident in question. FAR 91.25 also prohibits these reports filed with NASA from being used for enforcement purposes.

The purpose of NASA's aviation safety reporting program is to help identify problems that require correction in the aviation system. Please note, however, that the FAA has recently attempted to erode this prohibition and use an airman's description of the "Type of Event" on the identification strip of the NASA Report Form against the airman (Administrator v. Money, NTSB Order No. EA-4609, November 17, 1997).

Airmen should be cautioned against making any damaging admissions on the NASA Form's identification strip, which is the portion of the form NASA returns to the airman. In addition, there are restrictions on the use of the NASA report, and a pilot's immunity from sanction is available only once in any five-year period. Still, every pilot should carry one of these forms in the flight bag and file it within 10 days of any incident.

Most pilots are never involved in the FAA enforcement process, but you should be aware that the FAA enforces violations for the purpose of promoting air safety. It's also important for pilots to know that they are entitled to a hearing if they believe the FAA's enforcement action or sanction is not appropriate for their conduct.

If you are concerned about the possibility you may be caught in the FAA enforcement web someday, you may want to think about attending the FAA safety seminars and the EAA seminars on FAA enforcement at EAA AirVenture Oshkosh. You may also wish to think about signing up for the Aircraft Owners and Pilots Association's legal plan, which is an excellent way to protect yourself from the legal costs of an FAA enforcement action.