“Call the Tower…”

MARK J KOLBER ATTORNEY AT LAWmjk@mkolberlaw.com

Pilot Deviations and FAA Enforcement Actions

Midlife Flight, LLCmark.kolber@midifeflight.com

Mark KolberAttorney, Commercial Pilot, CFI / CFII

Copyright 2008-2016 Mark J Kolber. All rights reserved.

Who Am I? Commercial, CFI-A / CFI-I Wings of Carolina Member Executive Flight Training

Instructor FAASTeam Representative Attorney licensed in North

Carolina, Colorado & Massachusetts

AOPA Legal Services Panel

Disclaimer

This presentation is for general information only.It is not legal advice and cannot replace a personal consultation with a professional when dealing with a specific situation.This is not an official FAASTeam presentation and does not reflect the views of the FAA or any ASI.

Don’t say I didn’t warn you!

10,000-foot View How it all begins The system Pilots Bill of Rights (August 3, 2012) The new “kinder and gentler” FAA Lowering violation risks Dealing with the FAA

How it all begins... “Possible pilot deviation. Suggest you

contact…” “I have a number for you…” Ramp checks Accident/incident investigations Complaints by citizens Complaints by other pilots and operators

Ramp Checks Not the big deal some make it out to be Based on statutory authority to inspect

pilots and aircraft May be based on observation or reports or

unsafe operation May be routine surveillance Not used that much – budget and

manpower

Ramp Checks Limited authority with published guidelines

//http:fsims.faa.gov, Vol 6, Chap 1, Sec 4 ASI must show ID Pilot certificate, medical, photo ID

– Handing your certificate to an inspector is NOT surrendering it!

AR[R]OW documents

Ramp Checks Pilot and aircraft logs if required for

operation; otherwise if available Meeting operational requirements

– VOR checks– Current charts, may ask even if not required

May not board without knowledge and consent

Should not unnecessarily delay flights

Ramp Checks Be noncommittal Do not volunteer information not requested Do not argue You may ask the ASI questions

– To what do I owe the honor? Courtesy is expected on both sides Are there “rouge cops” out there?

“I Have a Number…” “Call the Tower” “Possible Pilot Deviation.

Suggest you contact…”– “Brasher” warning– In ATC Handbook– May be required in certain

cases or no sanction for violation

“I Have a Number…” Should I call? What should I say?

Unfortunately, it’s not that simple

“I Have a Number…” Saying nothing can be the right answer But it can also be the wrong answer! The FAA has a number of ways to handle

possible deviations And so do you…

Enforcement Process

FAA Enforcement Options [Civil Penalties] Certificate Revocation Certificate Suspension “709” Ride Warning Notice or Letter of

Correction Compliance Action No Action

Letter of Investigation

Initiates process that may lead to no action, administrative action or an enforcement action

Not used for a “Compliance Action” Nature of the violation

“Respond in 10 days or the file will be processed without the

benefit of your comments”

Letter of Investigation

Pilot’s Bill of Rights Entitlement to traffic data and how to get it Advises that response is not required

– Only respond if you are sure it will help!– Get advice!

“Respond in 10 days or the file will be processed without the

benefit of your comments”

No Action Can happen at any point

– After a talk with the controller– After oral or written communications with an

Inspector– After Letter of Investigation– After Notice of Proposed Certificate Action

Records expunged after 90 days

Compliance Action “some deviations arise from factors such

as flawed procedures, simple mistakes, lack of understanding, or diminished skills. *** deviations of this nature can most effectively be corrected through root cause analysis and training”

FAA Order 8000.373, June 26, 2015

Compliance Action “Kinder and gentler” FAA Brand New

– Announced June 2015 – Most implemented as of October 1, 2015

New policy or confirmation of changing practice?

What does it mean?

Compliance Action Pre-enforcement “compliance action” Early decision-making Published guidelines No Letter of Investigation or Pilots Bill of Rights

Notification Does not rule out enforcement action

– refusal or inability to participate or comply No requirement to speak immediately Still time for advice

Compliance Action

FAA Safety Briefing, Jan/Feb 2016https://www.faa.gov/news/safety_briefing/

Administrative Actions

Warning Notices and Letter of Correction (FAR 13.11)

“Administrative Action” not “Enforcement” Typically involves some sort of re-training Sometimes associated with special FAA

programs– Expired Runway Incursion Information Evaluation

Program (RIIEP) Records expunged after 2 years

Warning Notice or Letter of Correction (FAR 13.11)

Warning Notice– Describes the incident. – States “may have been a violation.”

Letter of Correction– FAA decides there was a violation.– Specifies corrective action (training).– Pilot agrees or already took corrective action.– If not completed, enforcement action likely.

709 Reexamination …the Federal Aviation Administration may

…reexamine an airman… 49 U.S.C. § 44709(a) Must be “reasonable”

– But refusal will lead to an emergency order Limited to reason for request May request change of inspector or FSDO Get and log training

Suspension For a stated period.

– FAA Order 2150.3B. FAA Compliance and Enforcement Program Sanction Guidance Table.

Expunction – until the pilot dies.– Used to be 5 years.– Colgan crash and Airline Safety and Federal

Aviation Administration Extension Act of 2010.– Changes to PRIA.

Revocation Certificates and ratings gone. May reapply after a year. Start all over Typically for the most serious violations.

– Drugs and alcohol use– Fraudulent logbook and flight record entries– Repeated TFR violations

Expunction – Never

A Kinder and Gentler FAA? Compliance action as outgrowth of ongoing

process Recent deviations before compliance

actions More flexibility for certain inadvertent, first

time TFR violations announced last year– 1 mile incursion with immediate exit– 2 minute improper squawk with no air traffic

complications.

A Kinder and Gentler FAA? Practical application of the compliance

action– More use when flexible earlier– First time deviations unless criminal– Looking for reasons to not bring action

May mean even more reasons to get advice

Lowering Risk of Violations 69% of pilot deviations come from General

Aviation – Us! Preflight Planning. Situational awareness. Taxi diagrams.

– Runway incursions remain a significant deviation issue.

Lowering Risk of Violations Pay attention to altitude assignments Declare an emergency when you have a

problem Training

– Flight training– Avionics and tablet training– Wings seminars

Mitigating Consequences Aviation Safety Reporting System (NASA

Form. Consult before you talk Remedial Training – beat them to the

punch!– Schedule session with your own CFI

immediately– This may help and will not hurt

ASRS – NASA Safety program with benefits Evidence of a compliant attitude Mail or submit online within 10 days Report may not be used against you in

enforcement proceedings– May use information from other sources

ASRS – NASA Anonymous.

– Don't lose it by identifying yourselfin narrative

Exceptions to anonymity– Criminal activity– Accidents (NTSB Part 830 definitions)

ASRS – NASA Waives the penalty not the violation Does not waive the penalty if:

– Violation within prior 5 years.– Violation was intentional or deliberate.

• May be subject of hearing Does not prevent less severe actions

– Compliance, administrative actions or 709 Ride

VOID

“Advise you contact...” Aviate – Navigate - Communicate Fly the airplane! Complete the flight Park/Tie down

STOP! RELAX! THINK!

“Advise you contact...” Should I call? What should I say? Should I identify myself?

– Famous case or aviation myth?– They have the tapes. They saw the

radar track– IFR or filed VFR flight plan – the PIC

is already identified

“Advise you contact...” Be polite but non-committal

– “This is N1234X. I was asked by to call you after I landed. Can you tell me why?”

– “I’d rather not say anything about it right now.”

– I’d like an opportunity to hear the tapes before I say anything

How to Deal with Investigation

Do not ignore. Do not schmooze. “Compliant attitude.” Listen more; talk less Avoid admissions Don’t threaten to send your lawyer, but… If you can, speak with an attorney before

speaking with the FAA

Find a lawyer – Join a LSP Cheap protection. More likely to call attorney. Recurrent training for

AOPA Panel lawyers. AOPA members have

access to the list even if not a subscriber.

Questions/Comments/Concerns?

You ever been in a cockpit before? 

Feel free to contact me with

any questions.

mark.kolber@midlifeflight.com

mjk@mkolberlaw.com

Presentation available on SlideShare at http://bit.ly/1PAd0ZL

PDF version via Dropbox at https://db.tt/v3JnomXu Thank you for coming!