FAA enforcement and your flying future
But what's this? It's a form from the post office stating that you are the recipient of a certified letter, and the return address is...the FAA Flight Standards District Office. Your pulse rate triples.
You charge down to the postal station with visions of your career going up in smoke, sign for the dreaded communiqu�, and tear open the envelope. There it is: a Letter of Investigation (LOI). It seems that an airplane under your command was tracked by approach control radar as it punctured some Class B airspace without a clearance. The air traffic controller eyeballed your target to the home airport and, after a call to the FBO, you were identified as the pilot of N-such-and-such that just taxied in. You were the only airman to have landed in the past hour. The radar blip was you.
Your LOI states the scenario, advises that the operation may be contrary to the regulations, and invites your side of the story in the next 10 days.
Is this the end of the world? Will your dreams of zipping around in an American Eagle regional jet now be replaced by visions of flying night freight forever in a Beech Duchess for Billy Bob Air?
Stuff happens. Let's deal with it from two perspectives. First, what is the FAA going to do with you? Second, what impact will a regulatory violation have on your career?
The FAA has essentially one of five en-forcement avenues to pursue:
Administrative action. For minor transgressions, the FAA may opt for either a Warning Notice or Letter of Correction. In such instances, the FAA considers several facts: the violation was not deliberate; not terribly unsafe; and did not demonstrate that the pilot was incompetent or unqualified.
Presume, for example, that Inspector Gary Goodguy spent the afternoon at the local aerodrome and, during the course of a routine ramp check, discovered that a particular flight was conducted without a registration certificate on board. Chances are the inspector can educate the errant pilot in one of two ways.
A Warning Notice could be addressed to the alleged violator. The letter will state the violation, indicate that the action is contrary to the regulations, and state that the matter was corrected when the registration certificate was located on a flight school desk and returned to the airplane -- and the situation does not warrant legal action.
A Letter of Correction is very similar to the Warning Notice, except that the pilot agrees to take corrective actions in a manner acceptable to the FAA immediately or within a prescribed timetable. A Letter of Correction is often used in conjunction with the Remedial Training Program. Say, for example, a pilot prangs a Cessna 172 during a landing roll by taking out a runway light or two. Rather than sidelining the airman for 30 days by seeking suspension of his pilot certificate, the investigating FAA inspector instead offers a remedial training program as an option in the initial Letter of Investigation. The training might include, say, three hours of takeoff and landing instruction with a local designated pilot examiner. The program is a formal agreement between the pilot and the FAA, the cost of which is born by the aviator. Failing to adhere to the terms of the program can lead to a certificate action.
An administrative action is not as serious since it generally does not involve a finding of a violation and is not typically released by the FAA when a potential employer makes an inquiry. The good news? The matter is supposed to be expunged from the pilot's records after two years.
Re-examination. When hangar talk turns to "the 709 ride," this is it. Federal law (49 CFR Section 44709) allows the FAA to re-examine a pilot at any time provided that there are reasonable grounds. Two common circumstances resulting in a Section 44709 checkride are accidents and minor violations of the federal aviation regulations.
The investigating inspector will notify the pilot by certified mail, explain that a re-examination is justified based on a particular incident, and specify what procedures and maneuvers will be evaluated. The aviator is requested to contact the FSDO to schedule an appointment. If the pilot does not comply, the FAA attorneys will take action and suspend the pilot's certificate until the re-examination is passed.
If offered a 709 ride, sage advice is to take it -- and get some instruction prior to the scheduled checkride. It might even be wise to suggest a retest in lieu of any other action. A re-examination is not technically an enforcement action and, therefore, will not show up in the airman's file.
Certificate action. The most commonly used action against general aviation pilots is a procedure in which the FAA seeks to suspend or revoke a certificate for operational violations of flight rules or whenever a violation reveals a lack of technical proficiency or qualification that is so serious that an administrative action or re-examination is deemed inappropriate. In some extreme circumstances, the FAA may seek emergency revocation of the pilot certificate without the benefit of prior due process.
The ordeal can be long, involved, and expensive. Once a violation has been identified, the FAA will attempt to build its case by gathering evidence from a variety of sources such as ATC or eyewitness observations, audiotapes, radar tracks, etc. The alleged violator will also be sent a Letter of Investigation by certified mail soliciting his perspective. Of course, the pilot may choose to respond to the LOI with his version of the matter, which may or may not have mitigating or exculpatory facts, or the alleged violator can ignore the LOI since there is no legal mandate to reply.
A certificate action is quite complex and can have a dramatic bearing on one's career. Such action can range from a 15-day certificate suspension to revocation. Thus, seeking the advice of legal counsel in such matters is more than justified since very important procedural rights are in play, including an appeals process that could take the matter right through the NTSB to the federal court system.
Civil penalty. Civil penalties are commonly associated with violations committed by operators such as airlines, maintenance facilities, air taxi carriers, and the like. In some instances, fines against errant operators can be in the tens of thousands of dollars. Assessing fines against general aviation pilots is somewhat rare.
A certificate action must be brought against the pilot within six months of the incident so as not to run afoul of the "stale complaint" rule. However, the FAA has up to two years to seek a monetary forfeiture. Notification and procedural rules in civil penalties are daunting, so it's imperative that a pilot employ legal counsel.
Criminal action. This is the hammer. Forge a pilot certificate, carry a gun on an airliner, fake an aircraft registration, or stick an illegal fuel tank in your Piper Seneca, and the guys with dark sunglasses from the Department of Justice take over. Lose a case here and hard time is the result.
So, what to do if you suspect that you have violated the regulations? If an operational error is involved, submit a "NASA Form" (see "Legal Briefing: NASA's ASRS Program," March 2003 AOPA Flight Training) and provide data regarding the incident to the Aviation Safety Reporting System (ASRS). There is a misperception that the ASRS is a "get out of jail free" card. It's not. The violation will still show on your record, although the FAA will not be able to assess a sanction. But, it is important to understand the limits of the program, such as filing within 10 days of the incident; the violation must be unintentional; the pilot must not have been found in violation of the regulations in the past five years; the pilot must be qualified.
There are two distinct schools of thought regarding how to respond to the FAA in the face of a violation.
On one hand, it seems as if the majority of legal professionals urge pilots to contact an aviation attorney first; don't admit anything to the FAA lest you incriminate yourself. Members of AOPA's Legal Services Plan have easy and affordable access to legal counsel to help navigate the issues; you can learn more about the plan on AOPA Online. Then there are those who say, if guilty, "take your medicine." The theory is this: FAA inspectors do have some latitude in recommending sanctions, and a cooperative spirit can go a long way in securing a 30-day suspension rather than 90 days.
What about 'fessing up to the job interviewer at an airline? You will be questioned about violations. How will an enforcement history be viewed? Here are some thoughts.
From the majors to the regionals, every hiring executive consulted has said in so many words, "Take responsibility. What did you learn from the experience? Never pass the buck to someone else when the violation is clearly your fault." Nobody is perfect and, thankfully, reasonable employers understand that humans do make mistakes; they may be willing to forgive and forget -- up to a point.
What is that point? The seriousness of the offense obviously is important. If as a private pilot you incurred a 15-day suspension for an altitude bust, that's probably no big deal. However, if you flew an air taxi flight with an expired medical last month or buzzed the control tower, not good!
Frequency is another consideration. One not-so-serious violation in all of your years of flying most likely will not weigh against you. But, if you have had three run-ins with the sky cops, you have displayed a habitual pattern of misdeeds that could be a liability to the employer.
What about any violation that has been expunged from your pilot records? Remember that an administrative action should disappear from your files after two years, and a certificate action should go away after five years unless the certificate has been revoked -- in which case the action never goes away. Well before the interview, contact the FAA's Airmen Certification Branch in Oklahoma City and request a copy of your airman's file. Determine if any violation ghosts still haunt your records. Then, listen carefully to the interviewer's question. If your violation has disappeared from the FAA's files, what if the question is, "Have you ever had an FAA enforcement action?" Ah! How strong is your moral fiber?
Remember the ancient adage, "Honesty is the best policy." When facing the tough questions about violations in an interview, have those words engraved on your brain.
Wayne Phillips is an airline transport pilot with a Boeing 737 type rating. He is a B-737 instructor and operates the Airline Training Orientation Program in association with Continental Airlines. He is an aviation safety consultant in Michigan and speaker for the AOPA Air Safety Foundation.
The AOPA Legal Services Plan provides you with an aviation attorney if you're accused of violating a regulation.
