Legal Briefing

Or Just Keep Quiet?

During the course of your flying career, you'll probably have opportunities to meet with FAA inspectors and air traffic controllers to discuss aviation practices and procedures - and to share your recommendations, opinions, and ideas. These are valuable opportunities; take advantage of them when they arise.

Your chance to talk to controllers and inspectors is most likely to occur when you attend a conference, seminar, or meeting that gathers together the users and directors of the system. You may get a similar opportunity if you contact the FAA to ask a specific question. In most circumstances, FAA representatives are glad to provide you with guidance or information so that you may better understand your role and responsibilities as a pilot within the system.

But what happens if the FAA initiates the dialog with you, perhaps during an inquiry into conduct that may be determined to be in violation of the regulations? Instead of you asking the questions, the FAA will be asking you to explain some incident involving your flying. It could come in a letter or a telephone call from an FAA inspector. It could be a controller's question to you over the radio or a controller's request that you telephone the tower when you land. This is where you need to be more careful not to engage in too much conversation with the FAA.

Usually, as pilots, our immediate reaction is to talk to the FAA and explain. But, do you have to? There are regulations that address this issue, and it is important for you to know them.

Start with a couple of guiding principles - slow down and get assistance. Before responding to the FAA in any way, you should take the opportunity to reflect on what happened to cause the FAA's inquiry and what your rights and options may be. Further, if a response is required or warranted, whatever response you give should be ap- propriate in scope, truthful, and not misleading. In most cases, you have no obligation to say anything or to provide anything to the FAA. In those limited circumstances when you are required to respond, there is usually an opportunity to gather yourself together to prepare a proper response. In other words, take a deep breath, and if you can, seek competent counsel.

Let's start with the regulations that require you to respond to the FAA, either in writing or in person. There are two general circumstances when the regulations require this - if you experience an in-flight emergency and if you are requested to present your certificates and logbooks for inspection.

If a pilot experiences an emergency that requires that pilot to deviate from the regulations or that results in the controllers giving the pilot priority, then FAR 91.3(c) and 91.123(d) require that the pilot submit a written statement to the FAA, but only if requested to do so by the FAA. If the FAA does not request a report, there is no requirement to write or submit one.

If a reasonable request is made by the FAA to see your pilot certificate, including your medical certificate, or to see your pilot logbook or aircraft maintenance records, then FAR 61.51(i) and 91.417(c) require that you make this information available. In addition, although not specifically requiring presentation, FAR 91.203 requires that you carry on board your aircraft an appropriate and current airworthiness certificate and an effective U.S. registration certificate. So, if you're operating an aircraft and an FAA inspector inspects your aircraft, the regulation requires that these documents be accessible to passengers or crew, effectively creating a presentation requirement.

That's it as far as the regulations requiring any response from the pilot to the FAA. Otherwise, if the FAA contacts you for information, it is at your discretion whether or not to respond. If you respond to a letter, talk to an inspector on the phone, or even answer a controller's questions about a possible deviation, be aware that any information you provide will be used in the FAA's investigation of the matter. The information you provide - whether in writing, orally, or on tape - is admissible as evidence in an enforcement action. So if there is a dispute as to the facts, or if the FAA might have trouble establishing proof, it is probably better for you not to respond.

On the other hand, if there is no question as to the facts or the FAA's ability to establish them, then it might be better to respond. Knowing the difference is difficult, and knowing the nuances of the FAA's enforcement programs may be important.

It's a good idea to know your rights, options, and the potential consequences of your actions. Even if you feel you understand the system, it's a good idea to seek competent counsel to help you determine whether and how to respond. At the core of all of this is the notion that you must think before you act and be cognizant of your regulatory responsibilities.