What happens when things go wrong?
A look inside the FAA's enforcement process
Your mind keeps replaying the events leading up to the moment air traffic control (ATC) asked you to call. If you don't know why already, your mind races through the possibilities. Was it my altitude? Did I wander into someone's airspace? Did I cross an active runway? Did I just land without a clearance? The uncertainties can be almost paralyzing.
What should you do if you find yourself in such a predicament? There are a number of very important things you need to do, but first on the agenda is the phone number you wrote down on your pad. Simply put, you've got a choice to make. You could call the number and talk to the FAA, or you could not call the number and see if the FAA contacts you. Neither choice seems very attractive. (See the series "Legal Briefing: Talking to the FAA," in the December 2006, January 2007, and February 2007 AOPA Flight Training.)
If you don't call the number, the FAA might take that as a sign you're being uncooperative. If you think they can't possibly find out that you were the pilot, think again. From the aircraft registration comes the aircraft owner. And from there it might be relatively simple for them to connect the dots to you.
If you do call the number, you'll probably end up talking to a supervisor, and not the actual controller who contacted you when the incident took place. But before you call, you should have a firm idea as to what you're willing to say. Your call will probably be recorded, which is normal for calls made to an ATC facility.
More than likely, the supervisor will try to ascertain the facts of the incident, and perhaps take the opportunity to relate the gravity of the situation from ATC's point of view. You can express your understanding of the seriousness of the situation, and without resorting to excuses, you could tell the supervisor what you believe happened from your point of view. You should not speculate, however, and you should be very careful about what you say, because any statements you make could be used later as evidence in an enforcement case against you.
Your goal during this initial contact is to get the supervisor to drop the incident right then and there. Supervisors are people too, and they don't want to fill out extra paperwork or write up a report. If you can come to a mutual understanding with the supervisor, you might just stop the ball rolling at this point and preclude the supervisor from notifying the local flight standards district office (FSDO).
But let's say for argument's sake that despite all your best efforts the supervisor decides that a report must be filed and sent to the local FSDO. Sometimes, with certain incidents, ATC's hands are tied. By mandate, they have no option but to notify the local FSDO--for example, except in extraordinary circumstances, the violation of a temporary flight restriction (TFR) or air defense identification zone (ADIZ) will proceed to legal enforcement action. What happens next?
What is a NASA report?
So, what is a NASA report? In the mid-1970s, the FAA realized that one way to improve the safety of the National Airspace System was to set up a reporting program to identify the airspace system's weaknesses and take steps to improve them.
But it had a problem: Aviation folks weren't interested in voluntarily telling the FAA about potential or actual deficiencies, incidents, or violations when their mistakes could be grounds for enforcement action. To rectify that, the FAA hired NASA, a neutral and trusted third party, to administer the program and to receive, de-identify (meaning your name is removed once the report is received), and analyze the reports.
Thus was born the modern Aviation Safety Reporting System (ASRS). To increase the flow of information necessary for the effective evaluation of the safety and efficiency of the system, a carrot was needed. The carrot was to offer the reporter anonymity as well as immunity from civil penalty or certificate action, as stated in Federal Aviation Regulation 91.25, which "prohibits the use of any reports submitted to NASA under the ASRS (or information derived there from) in any disciplinary action, except information concerning criminal offenses or accidents."
To learn more about ASRS, see AOPA Online (ft.aopa.org/links) or read FAA Advisory Circular AC 00-46D, Aviation Safety Reporting Program, which is available at the FAA Web site. Reports can now be submitted online through the ASRS site. |
While you're waiting for a possible Letter of Investigation (LOI) from the local FSDO to arrive, the second very important thing you need to do is protect yourself by filling out a NASA Aviation Safety Reporting System report (see "What is a NASA report?" at right). After you've done that, it's probably a good idea to send it via certified mail, return receipt requested, to NASA's ASRS, and make sure to mail it within 10 days after the alleged incident occurred. This form, NASA Aviation Safety Report (ARC 277D), is available on AOPA Online or the ASRS Web site--where you also have the option of submitting it online.
In the meantime, perhaps within a few weeks, the FSDO may send you a Letter of Investigation, stating that it's investigating the alleged incident, and giving you the chance to respond by providing any facts or circumstances relevant to the case. If you haven't already, you should consult with an aviation attorney before you make any written statements or provide any further information.
Keep in mind that the FSDO inspector has a wide range of options when it comes to pursuing the incident, from administrative actions to legal enforcement to suspending or revoking your pilot certificate.
The inspector should be following guidance contained in FAA Order 2150.3A, "Compliance and Enforcement Program," the agency's playbook for enforcement. The FAA's enforcement philosophy is straightforward, and it uses a multifaceted approach. First, it relies on us to voluntarily comply with the federal aviation regulations. In fact, civil aviation safety and security depends primarily on our voluntary adherence to legal requirements. To obey the law, we must know the law. If we don't have a clear understanding of the regulations, it will try to enhance our understanding of them.
The FAA also uses surveillance, or monitoring of operators (like a ramp check or flight school inspection), to detect possible violations. Finally, it can use the options listed above to pursue an enforcement action.
Most letters of investigation will lead to one of three outcomes: a No Action letter to the airman indicating that no action will be taken, a Corrective Action for the airman in the form of remedial training; or Enforcement Action against the airman.
There are two categories of enforcement action: administrative actions and legal actions. Administrative actions generally result from a minor technical violation with no impact on aviation safety. According to the FAA, "The purpose for administrative enforcement action is to provide the FAA inspector with an administrative means for disposing of minor types of violations which do not require the use of legal enforcement sanctions." They are intended to bring the incident to the attention of the person involved, document corrective action, and encourage future compliance with the regulations. You are not charged with a violation, and no formal finding of violation is found. Plus, administrative actions are supposed to be expunged from the record after two years.
If you're offered the remedial training program, you may want to take it. Part of the educational approach to enforcement, remedial training is FAA-specified training (usually ground and flight training) that you can choose to receive in lieu of enforcement action for an alleged violation.
For example, let's say you accidentally clip the corner of Class B airspace without a clearance, and the intrusion results in a heavy jet being given a vector to avoid your aircraft and prevent a "loss of separation." Before you know it you're signing for an LOI sent via certified mail from your local FSDO. If your alleged violation meets certain criteria, you may be offered remedial training. If you decide to accept it, you sign a remedial training agreement promising to complete the training within a specified time period, typically 90 days, and you bear all costs associated with the training.
All pilots are eligible to participate in the program, regardless of their experience or ratings. In addition, it offers you three distinct advantages over fighting the FAA over the alleged violation. First, if the remedial training is completed satisfactorily, no record of a violation is placed in your FAA file. If you are concerned about rising insurance costs, or planning a future airline career, this reason alone makes it easy to choose the remedial training option. Second, even with the expense of renting an airplane and hiring a flight instructor, the alternative of hiring an aviation attorney who charges by the hour to battle your case with the FAA could be much more expensive. And third, you might benefit from the training.
AOPA's Legal Services Plan
If you had the forethought to enroll in AOPA's Legal Services Plan and a controller asked you to call an ATC facility, your first phone call would be to an aviation legal expert at AOPA who could advise you before you even think about calling the FAA. Let's face it, you may be an excellent pilot, but you're probably not experienced in dealing with the FAA. But AOPA has or knows someone who is, and that person is literally a phone call away.
For those unfamiliar with the AOPA Legal Services Plan, it offers expert aviation legal assistance and representation for all enrolled members, from students to airline transport pilots, at an incredibly affordable price. The plan is just like having auto, life, or homeowner's insurance; it's wise protection in case you have an unforeseen run-in with the FAA. And just like a fire extinguisher, it is far, far better to have the legal services plan and not need it than to need it and not have it.
You can use your plan benefits in a variety of ways, not just for FAA enforcement actions. You can use it for help with aircraft accidents, medical certification suspensions or revocations, aircraft purchase and sales agreements, alcohol and drug testing issues related to flying, and much more. Additional information on the AOPA Legal Services Plan is available at AOPA Online or by calling 800/USA-AOPA. |
Finally, legal action comes in two forms: certificate action, resulting in a suspension or revocation of the certificate; or a civil penalty resulting in a monetary fine against the certificate holder. Certificate actions consist of either a suspension or the revocation of a holder's certificate, or both. Suspensions can be for a fixed or an indefinite period of time. Certificate suspensions for a fixed number of days are issued as a disciplinary action against the violator in an effort to deter future violations. Suspensions of an indefinite period of time are issued to prevent a certificate holder from exercising the privileges of his/her certificate, until they have successfully demonstrated the various requirements to hold the certificate.
The most drastic measure is a certificate revocation. This is issued when the FAA has determined that a certificate holder is no longer qualified to hold a certificate. Orders of suspension and revocation may be appealed to the National Transportation Safety Board, and the board's decisions may be reviewed by a U.S. Court of Appeals. A civil penalty is basically a monetary fine.
Flying has always been dynamic, fluid, and fast-paced. That's part of what makes it so exciting, and part of its appeal. But with any dynamic activity, there's bound to be an occasional foul-up. The thing to remember is that the FAA wants voluntary compliance. When the agency pursues an alleged violation, however, it does have a wide range of options, everything from education to revocation.
Christopher L. Parker is a CFI and an aviation author, speaker, and FAA remedial training specialist. He flies internationally as a contract captain on a Bombardier Challenger business jet and lives in Los Angeles.
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