by Tom Hamilton
In February the Federal Aviation
Administration issued Bulletin No. 98-1. This document announced a new enforcement
program design to allow Flight Standard District Office inspectors to issue
"on the spot" administrative action citations. The FAA will use
Form 2150-7 which the aviation community has labeled a "ticket."
A broad representation of aviation groups including the Balloon Federation of America, Aircraft Owners and Pilots Association, and the Experimental Aircraft Association has come out against this program. The wide spread opposition has caused Jane Garvey, the FAA Administrator, to delay full implementation of the program.
The intent of the program is to reduce the amount of paperwork that an inspector needs to complete when they observe an alleged violation. The process may be used in situations that do not warrant legal enforcement action. See page 16 for the complete text of the Compliance/Enforcement Bulletin.
The FAA has authority to bring two types of enforcement action, administrative or legal, against the holder of any license or certificate issued by the FAA. Legal enforcement action is taken after a formal investigation is conducted, items of proof are collected, and FAA attorneys have reviewed the case. As part of the investigation a pilot would typically receive what is called the "ten day letter."
This letter is usually a fishing expedition by the investigator hoping that the alleged violator will provide additional evidence to incriminate themselves. The letter is delivered by certified mail and the recipient has ten days to respond. For more about how to respond to such a letter and what actions are available should you receive such a letter see Violation, Balloon Life, April 1989.
After the inspector has completed the investigation and the FAA feels it has a case the airman will receive a letter titled, "Notice Of Proposed Certificate Action." At that point in time the airman can either turn in their certificate or begin exercising extensive appellate rights afforded under the law. Keep in mind, this is not a criminal case and the airman will have the burden of proof to show that they are not in violation. None the less, they will have their day in court.
Legal enforcement actions result in suspension, revocation, or a monetary civil penalty. Suspensions and revocations are usually applied to airmen. Monetary civil penalties are typically imposed on entities. Suspensions and revocations are recorded in the airman's record. Suspensions are removed after five years. Revocations remain in the file and are not removed.
Administrative enforcement actions are generally less serious than legal enforcement actions. Items of proof are collected, but unlike the legal enforcement action, the airman has no right of appeal. An administrative action will result in a "Warning Notice" or "Letter of Correction." Either would remain in the airman's record for two years.
This type of action is typically used when there is no prior record of flight violations, no evidence that the airman lacks the qualifications necessary to hold the certificate, no significant unsafe conduct, no evidence of deliberate, grossly negligent or criminal behavior acts, and the certificate holder reveals a proper compliance attitude.
Usually the FAA learns about possible flight violations in one of three ways. First, the FSDO's inspectors conduct routine surveillance. Often referred to as "ramp checks" the inspector may walk up to any aircraft and visually inspect the condition of the equipment or speak to an airman. Note, that the inspector might strike up a conversation about your flight without identifying themselves. More on that later.
Second, the FAA receives complaints from members of the public. Third, the FAA receives notification by air traffic controllers who are required to report any flight violation they witness while on the job.
An investigation will create a file which is incorporated into an Enforcement Investigative Report on FAA Form 2150.5. This EIR will usually contain a listing of "items of proof" and a written statement of the "facts" upon which the administrative enforcement action is based. If an airman questions the administrative action they may obtain the EIR through the Freedom of Information Act.
If a Warning Notice is issued the airman may be allowed to write a letter of explanation to try and persuade the FAA to rescind the notice. Letters of Correction will describe what needs to be accomplished to correct the problem, whether an aircraft condition which makes the balloon unairworthy or a pilot action which constituted a flight violation. If the airman does not comply with the Letter of Correction the violation may be turned over to the FAA Regional Counsel's office for legal action.
The main benefit to the FAA of the new "ticketing" program is to cut down on paperwork. Justification given, "...it is consistent with a recommendation of the Vice President's National Performance Review that the FAA streamline its enforcement program by developing pilot programs designed to offer more flexibility in the enforcement process."
How does that impact a balloon pilot? "FAA Form 2150-7 may be used when the alleged violation does not require extensive investigation. For example, when an inspector or special agent personally observes an alleged violation or when evidence of an alleged violation is readily available, FAA Form 2150-7 may be used to take administrative action."
While the program is designed to deal with "simple" problems like you left your pilot certificate at home and can not produce it when the inspector asks to see it, there is fear in the aviation community that abuse can take place. "AOPA is opposed to the ticket program in any form," said AOPA President Phil Boyer. "We believe this program has a potential for abuse and can only lead to increased administrative actions against pilots."
Aviation groups object because the FAA has not provided adequate protections for the accused airman or other certificate holders. According to one industry pundit, "Under the new program, it's simply too easy for an innocent airman to suffer serious consequences if an inspector makes a mistake, or if the inspector and airman have an honest disagreement about whether or not a violation occurred, or even if the airman is unsure and needs some time to collect his thoughts."
Four problems with the new ticketing program have been cited in the aviation press. First, what if the alleged offender disagrees? This could be construed as a non "compliance attitude" and the inspector could choose to seek legal action. The time and expense of defending the action might intimidate the pilot into agreeing with the inspector and signing the ticket.
Second, allegations are not the same as proof. With this new program, there is no "proof" required to be documented.
Third, the purpose of the program is to deal with minor infractions with a "slap on the wrist." Should a next occurrence happen then the FAA might take a more aggressive action against the airman. Unfortunately actions taken under this policy can be disclosed to the public on request. Information under this program is available to your insurance company or the general public under the Freedom Of Information Act.
Fourth, there is no right of appeal.
The FAA Administer is to meet with aviation groups on July 21 to listen to their concerns. The result of that meeting and deployment of this program will be reported in a future issue.
In the meantime what can you do to protect yourself? Be aware that an inspector can approach you and interrogate you about your flying or the airworthiness of your aircraft even where there is no specific complaint. They are not required to identify themselves. They might just strike up a "friendly" conversation with you. There is no requirement to advise you of any rights. You do not have to answer any questions, although it might be determined that you did not have a "compliant attitude."
With proper documentation the inspector can request to see your license and pilot logbook. The license should be on your person or accessible in the aircraft. You have a reasonable time to produce the logbook, because it might be at home. There is no requirement for it to be with you.
Be suspicious of people who ask you about your flight or condition of the aircraft. You can always ask them to identify themselves. If you believe that you are the subject of an investigation try to put off the interview until you review and gather all the information relevant to the situation. You might want to consult an aviation attorney.
If simply presented with a "ticket" and asked to sign what do you do?
Do not get into an argument. Do not resist the commands of a properly licensed FAA or law enforcement officer.
You can ask questions as to why the FAA inspector thinks something is wrong. What FARs did you violate? What other information did the inspector have in arriving at their decision?
Try asking for an opportunity to review the evidence, regulations, or if the inspector is open to a clarification of the situation by a third party.
Being prepared, know your rights and responsibilities.
