It could happen to you. Flying into notam-established security airspace is one of the most prevalent violations charged against general aviation pilots. It happens because of the bewildering complexity of many of the FAA notams and rules, and because of the complexity of the airspace in which they apply. These airspace intrusions are virtually never intentional, and, in retrospect, never were a serious safety or security threat. Yet, for understandable reasons, following the terrorist attacks of September 11, 2001, the FAA adopted a strict enforcement policy requiring the grounding of offending pilots. According to the FAA, the lesser non-legal “administrative action” in the form of a warning notice or letter of correction would rarely be appropriate. Rather, legal enforcement action in the form of a certificate suspension of 30 to 90 days would be required for a single, first-time violation—and a certificate revocation would be required when such violation is deliberate or otherwise shows a disregard of or disdain for the FAR.
The FAA has now eased this policy, allowing administrative action (remedial training) and reexamination, rather than grounding the pilot, when the airspace intrusion is one mile or less and is quickly remedied, and when correcting an erroneous transponder code. This administrative action does not entail an official record of violation that carries serious consequences, including the bar for five years from the benefit of the Aviation Safety Reporting Program (“Pilot Counsel: Don’t Wait Too Long,” August 2014 AOPA Pilot).
So, for violations of FARs 91.133 (restricted and prohibited airspace), 91.137 (disaster/hazard TFRs), 91.139 (emergency air traffic rules), 91.141 (presidential TFRs), 91.143 (space flight notams), 99.7 (ADIZ), and subpart V of Part 93 (Washington Special Flight Rules Area), the FAA has amended its Compliance and Enforcement Bulletin, 2014-1 effective June 11, 2014, with this quoted sanction guidance (italics are my emphasis):
1. Sanction a 30-day suspension for a single, first-time, inadvertent violation except in the following circumstances: a. Inadvertent, first-time violations resulting from aircraft intruding one mile or less into the security airspace and then turning and exiting directly when there are no resulting complications for air traffic control or other aircraft. b. Inadvertent, first time violations resulting from aircraft briefly (two minutes or less) squawking a 1200 code or failing to squawk an assigned discrete code, in security airspace that requires the aircraft to squawk a discrete code, when there are no resulting complications for ATC or other aircraft.
2. Sanction a 45- to 90-day suspension for having a new inadvertent violation and a history of one prior inadvertent violation occurring in security airspace. Sanction a 90- to 150-day suspension for having a new inadvertent violation and having a history of two prior inadvertent violations occurring in security airspace. Revocation is the sanction for having a new inadvertent violation and having a history of three or more inadvertent violations occurring in security airspace. One of the factors that may be considered, in selecting a sanction within the appropriate range, is the period of time that has elapsed between violations.
3. Use remedial training to address operations falling under one of the circumstances identified in 1.a. and 1.b. above when there are no prior related violations.
4. Reexamine the certificate holder’s qualifications to hold a certificate under 49 U.S.C. §44709 when a violation is subject to this special emphasis enforcement program and calls into question the qualifications of the certificate holder.
5. Revoke the certificate holder’s qualifications to hold a certificate for intentional violations occurring in security airspace and for aggravated violations.
The Flight Standards inspector investigating the violation will determine whether remedial training is appropriate using this new sanction guidance. It is in the letter notifying the pilot of the investigation of the violation that the inspector will offer the airman an opportunity for remedial training. The pilot will then have the opportunity to meet with the FAA and agree on a course of training. Once the training is agreed and then completed, the pilot provides evidence (signed by the training facility or the inspector, or for online courses a computer-generated completion certificate) that the training program has been successfully completed. The inspector documents this corrective action by issuing a letter of correction that will remain on the pilot’s file for two years, and then be expunged. The letter is not an official finding of violation, and will not act as a bar to future participation in the Aviation Safety Reporting Program, or any of the other troublesome consequences that result from a violation history. A small change, but good news—thanks to the FAA.
John S. Yodice is partner in the law firm that manages the AOPA Legal Services plan through AOPA’s Pilot Protection Services.