Legal Briefing

In February 1998 the FAA initiated its new "streamlined process for administrative action" by issuing Compliance/Enforcement Bulletin No. 98-1, which gives FAA inspectors and special agents power to issue "on the spot" tickets "to promote field activity and visibility and facilitate the reporting of apparent violations."

Under this program, FAA Flight Standards District Office (FSDO) inspectors will have the power to ticket an airman for an alleged violation, and the airman will be required to sign the citation "on the spot," just like a traffic ticket. But unlike a traffic ticket the airman has no appeal, and it will go into his FAA file for two years.

If the airman refuses to sign the ticket, this would be evidence that the airman doesn't have a constructive attitude toward compliance. The FAA would then proceed with the traditional enforcement program by issuing a letter of investigation and seeking to suspend or revoke the airman's certificate.

The FAA says that this program of issuing tickets for "on the spot" administrative actions and letters of correction is the answer to the question of how to improve safety and efficiency in the FAA enforcement program.

As you can imagine, the thought of FAA inspectors playing the role of traffic cops and issuing non-appealable traffic tickets from their Harleys has offended virtually every fair-minded aviator and aviation interest group in the United States. Rarely have pilots expressed such outrage, and equally rarely have the airlines and general aviation expressed such unanimity. The Airline Pilot's Association (ALPA) issued a press release that stated "ALPA President to FAA: Administrative Action Program Should Be Grounded," and the Aircraft Owners and Pilots Association (AOPA) has called for immediate termination of the ticket program. Every other aviation group also has protested loudly.

Why the concern? The FAA's answer to FAQs (Frequently Asked Questions) about how the new "Ticket Program" will work gives some insight.

Question: I don't understand how a person, receiving a ticket, could say to the inspector that "I do not agree with your opinion that it is a violation, and want to go to full enforcement action and NTSB hearing." Does the person receiving the ticket have the right to appeal?

Answer: The alleged violator does not have to agree with the inspector/agent. The decision to take Administrative Action is our [the FAA's] decision (ticket or traditional) and is not subject to legal appeal. If a person does not agree that a violation occurred, one should question if administrative action is appropriate. The requirements for administrative action dictate that you achieve compliance; can be assured of future compliance; the person has a constructive attitude; and the action will serve as an adequate deterrent. If the person does not agree or [does not] believe that a violation occurred, at least one of the administrative action criteria would not be met. In that case, a legal enforcement should be filed for which the legal right of appeal is afforded. In reality, most people will opt for the administrative action.

Question: What if someone feels very strongly that they were given a warning in error?

Answer: There are no appeal rights associated with the use of the form. However, as with all job functions, an individual/company may elevate a disagreement with an inspector to the office manager.

Criticism of the proposed "Ticket Program" is not limited to the aviation interest groups. The Internet is bristling with comments from concerned airmen. AVweb's editor-in-chief, Mike Busch, states that "the program is seriously flawed and potentially unjust because the airman must agree with the inspector... or else."

He notes that allegations aren't the same as proof, that unproven allegations shouldn't be made public, and that a ticket based on an FAA inspector's alleged violation with no requirement for investigation or proof is, in effect, a sanction without appeal.

For the moment, FAA Administrator Jane Garvey has put the FAA Ticket Program on hold until the FAA can have more public comment. A check of the FAA Web site (www.faa.gov) indicates that the Ticket Program is "currently on hold until further notice." The FAA Web site also indicates that the FAA is seeking a new director of Flight Standards who will have direct oversight in enforcing FAA regulations.

All of us in aviation hope that the new director of Flight Standards will be someone who understands the aviation community's desire to operate safely in the airspace system - and not someone looking to be the FAA's new chief of police. We do not need a new Flight Standards director who is formerly the chief of police of the District of Columbia or the past director of the FBI crime lab.

If the FAA really wants to improve the safety and efficiency of the enforcement program, it should do three things.

1. Abandon the "Ticket Program" as a bad idea that will generate bad relations between the FAA and the aviation community;

2. Support the "Hoover Bill." House Bill 1846, popularly known as the "Hoover Bill," provides for a third party review of FAA emergency revocations by the National Transportation Board. The purpose of the bill is to eliminate abuses of the FAA's emergency powers and retain due process for FAA certificate holders. The legislation supports the FAA's power of emergency action where aviation safety is compromised, but seeks to eliminate FAA abuses such as those that have occurred in the past. A similar bill is also under consideration in the United States Senate.

3. Develop guidelines to ensure that all FAA attorneys who handle enforcement actions have, as a minimum, a private pilot's certificate and instrument rating so they have some familiarity with the operational environment and a better understanding of when to issue a warning letter rather than proceed with a frivolous enforcement action.

General Aviation Team 2000, which is doing a terrific job of generating new student pilots, should focus its efforts on non-pilot FAA enforcement attorneys as a new source of general aviation pilots. This would be a great step forward toward improving the effectiveness of the FAA enforcement program. (Although the pundits will argue that more lawyers flying in the airspace system would affect safety adversely)

No one knows for sure what the FAA is going to do next, so stay tuned as the FAA Ticket Program, the "Hoover Bill," and the FAA attorney/pilot idea move through the bureaucratic web.