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CASE ANALYSIS Eight

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Photo credits and acknowledgments. Unless otherwise stated, photographs used are © J. Scott Hamilton. Photos indicated throughout are courtesy of and copyright of the following organizations or individuals and are used with permission: 1-3, Washington Metropolitan Airport Authority; 1-5, NASA; 1- 6, (upper) Hyku Photo, and, 1-7, (lower) Eclipse Aerospace, Inc.; 1-8, U.S. Customs and Border Protection; 7-1, Library of Congress, G.G. Bain Collection; 7-4, Clay Observatory at Dexter and Southfield Schools, for Virgin Galactic; 8-2 U.S. Navy; 8-3 Bernie Roland; 9-1, U.S. Army; 13-4, USGS digital orthophoto of Santa Monica Airport (via TopoQuest); 13-5, Denver International Airport; 14-2, U.S. Air Force; 15-3, Transportation Security Administration; 18-1, photo by Danny Fritsche; 18-2, NASA– Gagarin Cosmonaut Training Center (ISS Soyuz 13 mission training session, Star City, Russia); 18-3, Bigelow Aerospace, LLC; 18-4, NASA illustration.

Cover: iStockphoto ©yongbum park

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ASA-PRCT-LAW6-EK ISBN 978-1-61954-273-0

Preface

Practical Aviation and Aerospace Law is designed to be used in conjunction with the Practical Aviation and Aerospace Law Workbook as a university text for aviation and aerospace law courses and, standing alone, as a reference guide for aviation and aerospace business managers, pilots, mechanics, aircraft owners, and others involved in aviation by vocation or avocation.

Originally titled simply Practical Aviation Law, beginning with the first edition in 1991 and continuing through the fifth edition in 2011, the book has continuously grown in response to industry developments and instructor feedback. In much of the world, aviation is generally considered to be included in the term “aerospace industry,” but in the United States, a distinction has persisted, with the term “aviation industry” generally encompassing operations, repair and maintenance, while “aerospace industry” is used to refer to aircraft, spacecraft, and component design and manufacturing, and now also spaceflight operations. With the recent expansion of the number of companies engaged in commercial spacecraft design and manufacturing, and most of these companies engaging in or preparing to engage in operation of those spacecraft (beyond the flight test phase) for commercial purposes, it appeared timely to add a new chapter covering the law of commercial spaceflight operations in this edition. The addition of “and Aerospace” to the title signifies the book’s expanded scope for this and subsequent editions. The author of this new chapter (the first contributed by another author since the book’s inception) is Dr. Sarah Nilsson, Assistant Professor at Embry-Riddle Aeronautical University’s Prescott, Arizona, campus, whose research interests encompass this topic.

Except for certain treaties having worldwide or at least multinational effect, the scope of previous editions of the book has been limited to the law of the United States and may have had little relevance to the domestic laws of other nations. In keeping with the truly global nature of the aviation and aerospace industries and in recognition of the worldwide employment opportunities that offers, this edition begins what is likely to be a long-term effort to continually

expand the global perspective. The book does not attempt to explore the entire seamless web of the law—only those areas particularly applicable to aviation and aerospace. I recommend that students considering a career in aviation and aerospace, whether in operations, maintenance, engineering, manufacturing or business management, also take courses in business law and aviation labor relations. While there is some overlap between the content of those courses and this text, those give much broader and deeper coverage of some of the legal concepts and principles studied here.

As the title suggests, this book takes a practical viewpoint. It aims to provide the reader with basic legal knowledge and perspectives along with an understanding of how the legal system works in relation to aviation and aerospace activities. It aims to provide that in a form that can be applied to help you recognize and avoid common legal pitfalls, and to recognize when the moment has come to stop what you are doing and consult your lawyer. If this book had a subtitle, it would be How to Avoid Aviation Lawyers and When to Call One.

No book can hope to advise you what to do in every conceivable situation. In advising our clients, lawyers must take into consideration not only the law but also the facts and circumstances. In over thirty-five years of practicing law—in private practice, as government and later corporate counsel—I represented clients in well over three thousand aviation matters involving every subject in this book, and never saw two identical cases. While similar facts give rise to similar considerations, slight differences in the facts and circumstances often lead to major differences in the best approach to solving the problem. Examples in this book and its accompanying workbook are drawn largely from cases I encountered in my practice.

The law itself is also in a constant state of change. Even as I write, the Congress of the United States, fifty state legislatures, and a vast number of administrative agencies are daily making changes to statutes and regulations, while hundreds of federal and state courts are writing and publishing case decisions on the interpretation, application, and constitutionality of those laws and regulations, along with decisions that modify, clarify, or sometimes confuse the common law. Simultaneously, U.S. diplomats are negotiating with their foreign counterparts new or amended treaties to be ratified by their governments. Such changes as have occurred since the fifth edition of this book was published are one reason for this expanded and updated sixth

edition. While this process of continual change keeps the lawyer’s work from

becoming routine to the point of boredom, it also means that what was good advice yesterday (or the day this book went to press) may no longer be good advice today. While the fundamental legal principles discussed in this book are less susceptible to sudden obsolescence than, say, a text on the Internal Revenue Code and IRS Regulations, you are cautioned not to attempt to solve actual individual legal problems on the basis of information contained in this book. Finding yourself faced with an actual legal problem, you should recognize that the time has come to consult your lawyer.

Acknowledgments

I would like to thank the following people for their encouragement, advice, and support, without which I would not have undertaken and persevered with the writing of this text, the related workbook and teacher’s manual, and subsequent updated editions of each. These acknowledgments should not be construed to imply an endorsement of this teaching system by any of the persons or organizations mentioned.

Dr. Stacy Weislogel, chair, Department of Aviation, The Ohio State University, one of the first to urge me to write this book.

Professor Gary Kitely of Auburn University, who recently retired as executive director of the University Aviation Association, an organization that consistently provides a wonderful forum and source of information to those of us who teach aviation-related courses in colleges and universities. He was a source of encouragement not only in the drafting of the original manuscript for the first edition, but also in the continuously expanded international law coverage of each subsequent edition.

Dr. Rex A. Hammarback, director, University of North Dakota Aviation Foundation and formerly a professor in UND’s renowned aviation program, who after I had explained my concept for the book said simply and directly: “If you write it, I’ll use it.”

Hon. John E. Faulk, NTSB administrative law judge (retired), a practicing attorney with the Trachtmann law firm in Melbourne, Florida, and an adjunct professor in the School of Aeronautics at the Florida Institute of Technology. Many of his recommendations based on his classroom experience using this teaching system have been incorporated as improvements to each successive edition.

Professor Terri Haynes, Chadron State College, Chadron, Nebraska. She deserves particular credit for strongly encouraging me to avoid “legalese” jargon wherever possible in favor of plain English to make the book as clear and understandable as possible to students and other readers having no previous training in the law.

Jonathan Stern, Esq., partner in the Washington, D.C. office of the world- renowned Schnader, Harrison, Segal & Lewis law firm and editor of the American Bar Association’s Aviation Litigation Quarterly. Jon has been especially helpful in providing materials, insights, and updates on the continuing evolution of international law governing airline liability.

Bill Behan, president, AirSure, Ltd., Golden, Colorado. Bill continues to be a reliable source of information on developments in the ever changing field of aviation insurance.

John and Kathleen Yodice, a father-and-daughter team in the Yodice & Associates law firm in Bethesda, Maryland, who do yeoman service for general aviation as legal counsel for the Aircraft Owners & Pilots Association and other clients and have proved themselves reliable sources of insights into recent developments in FAA enforcement, aviation medical, and airport and airspace access issues.

Professors Robert Kaps of Southern Illinois University (Carbondale) and Timm Bliss of Oklahoma State University, co-authors with me of the new Labor Relations in Aviation and Aerospace textbook and study guide with supplemental readings, published by Southern Illinois University Press, and Professor Jack Panosian of Embry-Riddle Aeronautical University’s Prescott, Arizona, campus, who strongly encouraged that effort. All of them also use this Practical Aviation & Aerospace Law text and motivated me to expand the coverage of Chapter 17 to provide students a broader introduction to that topic.

Dr. Sarah Nilsson, Assistant Professor, Embry-Riddle Aeronautical University, contributing author of the new chapter on commercial spaceflight operations, was also a particularly helpful sounding board on recent developments in the law governing unmanned aircraft and on the Pilot’s Bill of Rights and proposed Pilot’s Bill of Rights 2 legislation. Both of these topics are moving targets, areas of rapid development having application to and receiving expanded coverage in several chapters.

The Lawyer-Pilots Bar Association, Southern Methodist University’s Journal of Air Law and Commerce; DePaul University College of Law’s International Aviation Law Institute (IALI) and its journal, Issues in Aviation Law and Policy; and the University of Denver’s Transportation Law Journal, each of which consistently provides wonderful forums and opportunities for attorneys and others interested in aviation and aerospace law to share

knowledge and ideas in print and face-to-face in an atmosphere of professional collegiality. They continue to contribute greatly to the advancement of the legal profession and the quality of legal service to aviation and aerospace clients.

Colleagues teaching aviation and aerospace law courses at numerous colleges and universities who provide feedback and suggestions that contribute to the continuous improvement of each successive edition of this teaching system.

My students, past and present, who continue to relentlessly question, challenge, and demand clear explanations and sound reasoning, rightly refusing to settle for less.

Not unlike the airline and aerospace industries, the publishing industry is in dynamic change as publishing companies merge, are acquired, go out of business, or adjust their scope and market focus, particularly in response to technological advancements in alternative means of dissemination of knowledge. Through all this change, successive editors at Iowa State University Press, Blackwell Publishing Professional, and now Aviation Supplies & Academics have recognized the need for this teaching system and its periodic updates, turning my vision into the solid reality you are now holding in your hand or viewing on your electronic device.

My family, who encouraged me in this project and more-or-less cheerfully tolerated the many hours I spent sequestered writing and updating this work (often after a full day of practicing aviation law, running a corporation or teaching), and especially my wife Charlotte, who did most of the work of preparing the original and subsequent manuscripts.

The credit is theirs; the errors are mine.

Notes on the Text

Unless otherwise noted, all opinions expressed herein are entirely my own and do not necessarily reflect the views of my employers, past or present.

All photos and illustrations are by the author, unless otherwise credited. The use of proper language and phraseology is of crucial importance in the

law. The primary use of italics in the text is to alert you to the introduction of a law, legal word or phrase you need to understand to grasp the concepts under discussion, though italics are also occasionally used to give special emphasis to a point.

The law is constantly evolving to keep abreast of challenges presented by the evolution of society and technology. The aviation and aerospace industries are among the most dynamic of all enterprises, and thus the locus of some of the most continual legal change. The reader can watch for changes that may occur after this book is in print by consulting the “Reader Resources” page for this book on the ASA website at http://www.asa2fly.com/reader/prctavlaw.

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About the Authors

J. Scott Hamilton is an adjunct professor and course developer at Embry- Riddle Aeronautical University, formerly assistant professor and faculty chair. He previously served as general counsel for the Civil Air Patrol, then as the national organization’s chief operating officer. Prior to that, he served as senior assistant attorney general for the State of Wyoming. While practicing aviation law in Colorado, he also was a faculty member at the University of Denver College of Law, as well as Metropolitan State College of Denver. He is an experienced pilot and skydiver who served as a HALO instructor in the Green Berets. Hamilton is widely published on aviation law and has received many honors, including induction into the Colorado and Arkansas Aviation Halls of Fame.

Sarah Nilsson is an Assistant Professor at Embry-Riddle Aeronautical University and a practicing attorney in Arizona, where her practice focuses on aviation/aerospace and business law. She previously managed an Aerospace Magnet program at an inner city high school in Phoenix. Nilsson gained extensive aviation operating experience working as a cargo pilot and flight instructor and now volunteers as a safety representative on the FAA Safety Team. Her research interests include aviation, space, and unmanned aerial systems law.

PART I

ADMINISTRATIVE LAW

1

Regulatory Agencies and International Organizations

If you are involved in aviation, you will deal with administrative agency regulations far more frequently than any other area of the law. Indeed, you will probably be confronted with making decisions based on the Federal Aviation Regulations (FARs) on a daily basis. Those regulations also establish standards of legal behavior by which a judge or jury may later decide whether you and your employer are legally liable for negligence in the event of an aircraft accident. Hardly any aspect of aviation today is unaffected by these regulations. That is why we begin with an examination of administrative law, with particular focus on the role of the Federal Aviation Administration (FAA) in administering the federal program of air safety regulation.

Since the 1920s, Congress has created a plethora of regulatory agencies to administer the many federal programs it has initiated. Indeed, federal agencies continue to grow and multiply, under Democratic and Republican administrations alike. We start here with an overview of the numerous U.S. administrative agencies most directly involved with some aspect of aviation, distinguishing them from each other according to the specific role played by each in regulating aviation. Although this chapter focuses on the U.S. model, virtually all nations have their own counterparts of these agencies, engaged in similar aviation regulatory activities. For example, at least 165 nations have their own domestic counterpart of the FAA, such as the European Union’s European Aviation Safety Agency, the Civil Aviation Authority of Singapore, the National Civil Aviation Agency of Brazil, the United Arab Emirates’ General Civil Aviation Authority, and the Civil Aviation

Administration of China. The ease with which civil aircraft cross national borders, air

transportation’s key role in the global economy, and recent horrific and effective use of civil airliners as weapons of terror have made the regulation and development of civil aviation a continuing subject of not only national but also international concern.

This chapter also introduces the International Civil Aviation Organization (ICAO) and the International Air Transport Association (IATA), organizations that, although not technically regulatory agencies, play an important role in harmonizing technical standards for civil aviation worldwide.

FEDERAL ADMINISTRATIVE AGENCIES The terrorist attacks of September 11, 2001, shook the United States to the core. Few industries—indeed, few aspects of American life—were untouched, though some were more deeply affected than others. Civil aviation, having been so infamously and effectively abused in these attacks as a weapon of terror, has borne the brunt of these changes.

One of the results of the attacks was the most sweeping reorganization of the federal government in over a half-century.

Transportation Security Administration (TSA) (www.tsa.gov) Barely two months after the attacks and for the express purpose of improving security in all modes of transportation, including civil aviation, Congress enacted the Aviation and Transportation Security Act of 2001, creating the Transportation Security Administration (TSA). The TSA was originally established as an operating agency of the Department of Transportation (DOT), but moved into the Department of Homeland Security (DHS) when that agency was created.

Previously, operators of airports served by commercial airlines had been responsible for airport security, relying primarily on contractors, with some FAA oversight. The new law brought the responsibility for day-to-day screening of airline passengers, baggage and cargo into the federal arena, under the TSA, which immediately set about hiring and training security personnel. Most of the new federal screeners were the same individuals

http://www.tsa.gov
previously employed by those contractors that had been performing the function prior to its federalization. With a change of uniform and some additional training, they returned to the same work. However, in late 2004, the Screening Partnership Program (SPP) enabled airports to obtain TSA approval to replace those federal screeners with qualified, TSA-approved private sector vendors. At this writing, some eighteen airports have taken advantage of the SPP and now utilize private sector contractors to provide passenger and baggage screening services.

The TSA also took over from the FAA the responsibility for inspecting and testing security measures at airports, with the added responsibility for the same at other transportation facilities, including foreign aircraft repair stations. Congress also empowered the TSA to receive, assess, and distribute intelligence information related to transportation security. The new agency was directed to develop plans, policies, and strategies for dealing with threats to transportation security and to coordinate countermeasures with other federal agencies. Congress also ordered that the Federal Air Marshal program be beefed up and that steps be taken to increase the availability and use of explosive detection systems at air carrier airports.

Under the Secure Flight Program, the TSA is now responsible for maintaining the Terrorist Watchlist and related No Fly and Selectee lists. The “watch list” of known and suspected terrorists is a uniform list used to identify persons who should be prevented from boarding (the No Fly List) or who should undergo additional security scrutiny (the Selectee List). The TSA began taking over the responsibility for the pre-boarding matching of airline passengers’ names against these lists from the airlines in early 2009.

Transportation Security Oversight Board (TSOB) Congress’ initial investigation into the terrorist attacks revealed that various federal law enforcement agencies had clues that, if assembled together and investigated coherently, might have revealed the plot and enabled prevention, but that these agencies tended to hoard, rather than share, potentially crucial intelligence information. In an effort to address that shortcoming, the Aviation and Transportation Security Act also created the Transportation Security Oversight Board (TSOB), an extremely high-level panel composed of the Secretaries of Homeland Security, Transportation, Defense, and Treasury; the Attorney General, and the Director of National Intelligence (or

designees of any of the foregoing), along with a presidential appointee representing the National Security Council (NSC). The TSOB was made responsible for assuring the coordination and sharing of intelligence relating to threats against transportation.

Department of Homeland Security (DHS) (www.dhs.gov) Next, Congress and President George W. Bush created the new Department of Homeland Security (DHS), now the largest federal department. Paralleling President Truman’s epic 1947 merger of all branches of the U.S. armed forces into a new Department of Defense (DoD) to better coordinate the nation’s defense against military threats, 24 federal agencies were brought under the new DHS to protect the nation against further terrorist attacks and respond to natural disasters. Agencies brought into the DHS include the following (italics indicate the agency’s former home in the federal bureaucracy):

Secret Service Coast Guard (Department of Transportation) U.S. Customs Service (Department of the Treasury) Immigration and Naturalization Service (INS) (part, from Department of

Justice) Transportation Security Administration (TSA) (Department of

Transportation) Federal Protective Service (General Services Administration) Federal Law Enforcement Training Center (Department of the Treasury) Animal & Plant Health Inspection Service (part, from Department of

Agriculture) Office for Domestic Preparedness (Department of Justice) Federal Emergency Management Agency (FEMA) Strategic National Stockpile & Disaster Medical System (Department of

Health and Human Services) Nuclear Incident Response Team (Department of Energy) Domestic Emergency Response Teams (Department of Justice) National Domestic Preparedness Office (FBI) CBN Countermeasures Program (Department of Energy)

http://www.dhs.gov
Environmental Measures Laboratory (Department of Energy) National Biological Warfare Defense Analysis Center (Department of

Defense) Plum Island Animal Disease Center (Department of Agriculture) Critical Infrastructure Assurance Office (Department of Commerce) Federal Computer Incident Response Center (General Services

Administration) National Communications System (Department of Defense) National Infrastructure Protection Center (FBI) Energy Security and Assurance Program (Department of Energy) The Aviation and Transportation Security Act originally assigned the

attorney general responsibility for screening all aliens applying for training at U.S. flight schools for security risks. Due to comparatively low fuel costs, prevalent VFR weather, and abundant suitable airspace, the United States (and particularly Florida and the desert southwest) was a popular destination for large numbers of foreigners wishing to learn to fly (and land). This new requirement hit U.S. flight schools—many of which were heavily reliant on foreign students—hard and hundreds closed their doors. This screening duty was later transferred to the new DHS and limited to students desiring to learn to fly aircraft with a maximum certificated gross takeoff weight of more than 12,500 pounds. As required by Congress, DHS now gives quick service to these foreign students, acting on them within five days.

Aviation security law is discussed in much greater detail in Chapter 15.

Department of Transportation (DOT) (www.dot.gov) The U.S. Department of Transportation houses a variety of federal agencies dealing with policy and regulation of various means of transportation of people and goods. DOT agencies having jurisdiction over various aspects of transportation include the Federal Aviation Administration (FAA), Federal Highway Administration (FHWA), Federal Motor Carrier Safety Administration (FMCSA), Federal Railroad Administration (FRA), Federal Transit Administration (FTA), Maritime Administration (MARAD), National Highway Traffic Safety Administration (NHTSA), Pipeline and Hazardous Materials Safety Administration (PHMSA), Research and Innovative Technology Administration (RITA), St. Lawrence Seaway Development

http://www.dot.gov
Corporation (SLSDC), and Surface Transportation Board (STB). The head of the agency is the Secretary of Transportation.

In civil aviation, the DOT amasses and publishes a wealth of detailed operational and financial data and statistics on airlines and airports, available online at http://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/subject_areas/airline_information/index.html

The DOT also issues certificates of economic authority to U.S. carriers for interstate or foreign passengers and/or cargo and mail authority, a certificate for interstate or foreign all-cargo authority, or authorization as a commuter air carrier, as well as foreign air carrier permits to foreign airlines designated by their nations to provide service to the United States pursuant to treaty. The DOT consults with the State Department in the foreign air carrier approval process. Permit issuance requires presidential approval. The president may disapprove a specific foreign carrier only for foreign relations or national security reasons. Such permits have occasionally been denied or withdrawn in the application of U.S. foreign policy, as when Aeroflot’s permit was suspended following the Soviet Union’s invasion of Afghanistan.

The DOT also regulates deceptive and anticompetitive practices by airlines and airports to protect consumers and foster competition in the airline industry.

Federal Aviation Administration (FAA) (www.faa.gov) In the Federal Aviation Act of 1958, Congress made the FAA primarily responsible for the safe and efficient use of the nation’s airspace. The agency’s influence on the entire aviation industry is pervasive.

The FAA Administrator is the head of the agency, and likely the single most influential person in U.S. civil aviation.

For many years, the FAA (and its predecessor, the Civil Aeronautics Authority, or CAA) enjoyed independent agency status within the federal bureaucracy, an arrangement that afforded the administrator direct access to the president. But now that the FAA is but one of those many divisions of the DOT, the Secretary of Transportation is the sole voice for all of these subordinate agencies in the president’s cabinet. Some aviation interests still feel that the development of sound aviation policy has suffered as a result of this organizational structure. A parade of proposals to liberate the FAA from the DOT has come before Congress, but none has passed and as the years go

http://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/subject_areas/airline_information/index.html
http://www.faa.gov
by, it appears even less likely that one will. For several decades, the position of FAA Administrator was one of the

plums of political patronage. The administrator served at the pleasure of the president, and turnover in the position was frequent, averaging about every two years—hardly sufficient time to accomplish anything in so ponderous a bureaucracy. Now, however, the individual appointed to the position is assured a five-year term in office.

The FAA’s activities cover a wide range, and include:

1. Regulation The FAA regulates aviation safety, airspace use, and, to a certain extent, aircraft noise. The primary laws promulgated and enforced by the FAA are the Federal Aviation Regulations (FARs), found in Title 14 of the Code of Federal Regulations (14 CFR). This pervasive body of regulations addresses every conceivable aspect of aviation safety. Additionally, through those regulations prescribing airworthiness standards for the certification of new aircraft, the FAA has established aircraft noise limits. These regulations, developed in consultation with the Environmental Protection Agency (EPA), deserve credit as the primary incentive for development of the quieter high bypass ratio fanjet engines that came into use on the second generation of airline transport jets—the Boeing 747, Lockheed L-1011, and McDonnell Douglas DC-10. In comparison, the straight turbojet engines used on the first generation of jet transports, such as the Boeing 707, Douglas DC-8, and Convair 880, were positively thunderous. Indeed, as we’ll see in Chapter 13, that first generation of airline jets (whose noise was not regulated by the FAA) appears largely responsible for creating the widespread enmity that persists today between airports and their noise-sensitive neighbors. Although these noisy “Stage 1” jets are now banned from flying in the United States unless retrofitted with quieter new-technology engines or “hush kits,” the legacy of public hostility toward airports engendered decades ago by their noise remains an effective obstacle to the development of new and the expansion of existing airports in this country.

The FAA also recently imposed noise limits on propeller-driven light and commuter aircraft receiving FAA type certification in 2006 and later, based on criteria developed by the International Civil Aviation Organization (ICAO, discussed later in this chapter).

Congress has also given the FAA sole regulatory authority over suborbital spacecraft, in the Commercial Space Launch Amendments Act of 2004, intended to encourage private enterprise investment and participation by avoiding overregulation of this developing area of commercial activity, recognizing that spaceflight is inherently more risky than flight in the atmosphere. That authority is now exercised by the FAA’s Office of Commercial Space Transportation, which licenses the launch and re-entry of commercially operated spacecraft. (NASA, however, retains the authority to set safety standards for any spacecraft that carry NASA astronauts or visit NASA destinations, such as the International Space Station.)

In addition to the FARs, the FAA from time to time issues other mandatory orders having the force and effect of law on the subject of aviation safety. The primary examples are Airworthiness Directives (ADs), which are FAA orders requiring some inspection or modification of previously certified aircraft. An AD is usually issued when operating and maintenance experience reveals the need to change some element of the design or fabrication of a particular type of aircraft or component to improve flight safety. The need for such an improvement may be revealed by an accident (or series of accidents), or by reports of difficulties experienced or observed by aircraft operators, inspectors, and mechanics in the field.

2. Certification It is virtually impossible for a person or business to participate in any aspect of civil aviation in the United States without first obtaining one or more certificates from the FAA. The FAA certifies not only flight crew members— including pilots (student, sport, recreational, private, commercial, and airline transport), flight engineers, flight instructors, flight navigators, and ground instructors—but also airmen other than flight crew members, including air traffic control tower operators, aircraft dispatchers, mechanics, repairmen, parachute riggers and (likely by the time you read this) unmanned aircraft operator certificates. The FAA also issues a great variety of skill-specific ratings to accompany these certificates, as well as aviation medical certificates required of pilots and air traffic controllers (discussed in greater detail in Chapter 3).

The agency also certifies air carriers and commercial operators, including domestic, flag, and supplemental air carriers; foreign air carriers operating in

the United States, commuter and on-demand operators, rotorcraft external load operators, agricultural aircraft operators, and airports serving certificated air carriers; pilot schools and aviation training centers, aircraft and component repair stations, and aviation maintenance technician schools.

Additionally, each civil aircraft of U.S. manufacture is the product of three separate FAA inspection and certification processes. An aircraft manufacturer intending to introduce a new aircraft design into the marketplace must first produce prototype aircraft that are subjected to an intense program of both flight and static testing to prove the design’s conformity to the certification standards contained in the FARs. Once this test program is completed to the satisfaction of the FAA, an FAA Type Certificate is issued, approving the design. Next, the manufacturer’s production facilities and quality assurance program are submitted to FAA scrutiny. The agency must be convinced that the manufacturer’s production and inspection methods are adequate to ensure that each aircraft produced will precisely replicate the design for which the type certificate was issued. Once this is accomplished, the FAA issues a Production Type Certificate and manufacturing can proceed. Next, each aircraft produced is inspected and tested for conformity with the original design and receives an FAA Airworthiness Certificate before being delivered to the customer. Subsequent modifications and improvements to the design require additional FAA certification, through amendments to the Type Certificate, by issuance of a Supplemental Type Certificate, or by a one-time field approval for modification of an individual aircraft under an FAA Form 337.

3. Registration The FAA also operates a single centralized registry for all civil aircraft in the United States and for certain powerful aircraft engines and propellers. The FAA Aircraft Registry in the FAA Aeronautical Center in Oklahoma City maintains files on every aircraft that has ever been issued an “N-number” signifying U.S. registry (see Figure 1-1). The files include the entire history of the sequence of owners of the aircraft and other legal interests in the aircraft, such as liens and encumbrances. The utility and importance of this registry is explored in greater detail in Chapter 11, along with its connection to the new International Registry applicable to certain aircraft.

Figure 1-1. If it has an “N-number,” a title search through the FAA Aircraft Registry and the International Registry can reveal who owns it and who has recorded liens against it.

4. Security The Aviation and Transportation Security Act transferred the FAA’s former air carrier security function to the TSA, but in that Act, Congress ordered the FAA to improve flight deck security by requiring airlines to strengthen flight deck doors and keep them locked except as necessary to permit authorized persons to enter or exit, and to develop guidance for training flight deck and cabin crews to deal with threats. Congress also ordered the FAA to explore the use of video monitors in the cabin, along with methods to prevent disabling of the aircraft’s transponder in flight (as the 9/11 hijackers had done, to make tracking the aircraft more difficult) and improved methods for cabin crews to alert the flight deck of security breaches and other emergencies.

5. Cartography Responsibility for the production of government aeronautical charts, once the domain of the Department of Commerce’s National Ocean Service (NOS),

has been transferred to the FAA. Along with that transfer of responsibility, over 300 NOS employees were transferred to the FAA’s then-new National Aeronautical Charting Office (NACO). (Since then the office was renamed the Aeronautical Products Department [“AeroNav”] and more recently changed again to “Aeronautical Information Services [AIS]”).

6. Education The FAA educates members of the aviation community on new developments and matters pertaining to aviation safety through a system of publications, such as the advisory circulars (AC), and through safety seminars and recertification programs for flight instructors, pilot examiners, mechanics holding inspection authorization, and others. The FAA also trains its own employees at the FAA Academy in the Aeronautical Center in Oklahoma City and numerous programs at its various facilities.

7. Funding Under the Airport Improvement Program (AIP), the FAA distributes federal matching funds for the construction of new airports, the improvement of existing airports, and related airport planning. These funds are appropriated by Congress from the Aviation Trust Fund comprising the proceeds of aviation fuel taxes paid by general aviation and passenger ticket taxes paid by persons traveling on U.S. commercial airlines. This funding program administers a trust fund currently valued at approximately $15 billion, generally expended at a rate of over $3 billion per year, and is discussed in greater detail in Chapter 13.

8. Investigation The FAA investigates virtually all civil aircraft accidents in the United States, as well as some accidents outside the country involving U.S. built civil aircraft, in connection with the agency’s air safety regulation and enforcement function. As more fully discussed in Chapter 10, the FAA also performs the on-site investigation of general aviation aircraft accidents under delegated authority on behalf of the National Transportation Safety Board (NTSB). The NTSB, however, has the exclusive authority to make the federal government’s official finding of the “probable cause” of all civil aircraft accidents, regardless of whether the factual investigation was conducted by

NTSB or FAA personnel. The FAA also investigates incidents in which aviation safety may have

been jeopardized but no accident occurred, such as when two aircraft pass within such proximity as to create a collision hazard. The FAA also investigates all reports of violations of the Federal Aviation Regulations. This process of investigation and enforcement in connection with alleged FAR violations is described in detail in Chapter 2.

9. Operations The FAA operates a great variety of aviation facilities and equipment, including:

a. The Air Traffic Control (ATC) System This system includes airport control towers, terminal radar approach

control (TRACON or Approach) facilities, en route Air Route Traffic Control Centers (ARTCC or Center), the Air Traffic Control System Command Center (formerly known as Central Flow Control), and Flight Service Stations (FSS). There are some control towers operated by private enterprise and local governments at airports that do not meet activity-level criteria to qualify for a federal control tower, but most control towers and all TRACONs and Centers are FAA operated (see Figure 1-2). At this writing, Lockheed Martin is operating the FSS under contract to the FAA.

Figure 1-2. Most ATC facilities, such as this control tower at the Cheyenne Regional Airport in Wyoming, are operated by the FAA, although some towers at airports that are not busy enough to qualify for a federal tower are operated by private corporations under contract to local governments. More privatization of the ATC function is possible, as lawmakers search for ways to reduce federal spending.

b. Radio Aids to Navigation The FAA also operates a vast network of ground-based radio aids to

navigation (“NAVAIDs”), including radio beacons guiding aircraft over long distances (such as VORs and VORTACs), non-directional beacons (NDB) for imprecise navigation to some airports, and others that lead aircraft precisely to the runway in all weather, such as instrument landing systems (ILS), microwave landing systems (MLS), and the wide-area augmentation systems (WAAS) to improve the accuracy and reliability of satellite-based global positioning systems (GPS). Lockheed Martin operates the WAAS satellite for the FAA. The Department of Defense operates the constellation of GPS navigation satellites. The Coast Guard operated the Loran C navigation aids until 2010, when it discontinued that service in favor of satellite-based navigation. Local governments also operate some NAVAIDs,

particularly NDBs, and private industry also owns and operates some approach aids, with several airlines having proprietary ILS or MLS equipment at remote airports they serve. With the increasing industry reliance on GPS navigation and impending implementation of the next generation air traffic control system (NextGen), it appears likely that a phase-out of many of these ground-based NAVAIDs may begin in this decade.

c. National Airports For many years, the FAA was the operator of two of the major

Washington, D.C., air carrier airports designated as the “National Airports” (Reagan—formerly known as Washington National—and Dulles). These airports are now operated by the Washington Metropolitan Airport Authority (Figure 1-3).

Figure 1-3. Ronald Reagan Washington National Airport with national capital building visible in the background to the left of tower. (Washington Metropolitan Airport Authority photo)

d. Aeronautical Center The FAA’s Mike Monroney Aeronautical Center in Oklahoma City is a

major record-keeping and training facility. There, you will find the Aircraft Registry (discussed more fully in Chapter 11), which maintains the records of ownership and other legal interests in every civil aircraft ever registered in the U.S. (see also Figure 1-1 and accompanying text); the Airman Records Branch, which keeps a dossier on every person ever issued an FAA certificate; the FAA Academy, which trains air traffic controllers, air safety inspectors, and other FAA personnel; and the Civil Aviation Medical Institute (CAMI), which reviews and develops medical certification standards along with drug and alcohol testing policy for persons in the aviation industry.

e. Technical Center The William J. Hughes Technical Center (formerly known as the National

Aviation Facility Experimental Center or NAFEC), located near Atlantic City, New Jersey, is the site of the scientific test base for FAA research and development, test and evaluation activities relating to air traffic control, communication, navigation, airports, aviation security, and flight safety. The facility is deeply involved in shaping the NextGen air traffic system. The FAA does no basic research on aircraft and flight system technologies, these being within NASA’s area of research responsibility. Where FAA and NASA research and development (R&D) responsibilities abut or overlap, the two agencies work together closely to coordinate their efforts without duplication, conflict, or waste. Throughout the federal government there is increased emphasis on interagency cooperation. Examples in aviation include Safer Skies, an FAA initiative that involved a wide range of government and industry organizations in an effort to improve the safety record of general and commercial aviation. The initiative is developing recommendations for changes in training, technology, and procedures with the goal of reducing general aviation accidents. The Safer Skies initiative also led the FAA, NTSB, NASA, and a variety of industry associations to form the General Aviation Data Improvement Team (GADIT) to gather better data on general

aviation accidents, especially those involving human factors. Another example is the Advanced General Aviation Transport Experiments (AGATE), a consortium of industry, higher education, and government entities (organized by NASA and including the FAA) focusing on developing technologies for general aviation. AGATE is intended to help revitalize the general aviation industry by advancing the use of new technologies in aircraft and developing new training methods for pilots. A related NASA program, the Small Aircraft Transportation System (SATS), is discussed later in this chapter in the section describing that agency.

National Transportation Safety Board (NTSB) (www.ntsb.gov) The National Transportation Safety Board is an independent federal agency whose primary responsibility is to investigate transportation accidents, determine the “probable cause” of each accident, and recommend to the appropriate regulatory agencies (in the case of aviation, the FAA) measures that might prevent similar accidents in the future. Like the Department of Transportation, the NTSB’s duties cover a broad range of civil transportation modes, including aviation, highway, marine, pipeline, and hazardous materials transportation accidents.

The NTSB is one of the smallest federal agencies, having only about 300 employees, only a fraction of whom are trained aircraft accident investigators. Therefore, the board must frequently delegate its on-site aircraft accident investigation duties to the better-staffed FAA. This is done particularly in non-fatal general aviation accidents, to allow the NTSB field investigators to concentrate on airline and other high-profile civil aviation accidents.

Regardless of which agency’s employees conduct the on-site investigation, it is always the NTSB that must analyze the information and make the official finding of the probable cause of the accident. This process is discussed in greater detail in Chapter 10.

The NTSB also has the responsibility for coordinating and integrating the resources of the federal government and other organizations (such as the American Red Cross) to support the efforts of state and local governments and the airline to meet the needs of airline disaster victims and their families.

The NTSB also serves as the first level of appeal in cases where the FAA has taken enforcement action to suspend or revoke a certificate or, under

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certain circumstances, to impose a fine. This process is discussed in Chapter 2.

National Aeronautics and Space Administration (NASA) (www.nasa.gov) Although NASA’s name most commonly brings to mind the agency’s space exploration activities, NASA continues to make important contributions in the areas of aerodynamics and aviation technology. In aerodynamics, NASA research & development led to the supercritical airfoil now in general use on high-performance aircraft (in both wing and propeller cross sections) and the “Whitcomb winglet” (Figure 1-4), both of which increase aircraft efficiency and conserve aviation fuels. Much of the basic research that led to successive generations of increasingly quiet and fuel-efficient high bypass ratio fanjet engines was done at NASA.

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Figure 1-4. Many airliners are sprouting winglets such as these, originally

developed by NASA, to improve fuel efficiency.

The agency is also conducting research into alternative aviation fuels, helicopter blades made of shape-changing materials to reduce noise and smooth out the ride, blended wing/fuselage technology to improve the efficiency and reduce the carbon emissions and noise footprint of subsonic jet transports (see Figure 1-5), and the design and propulsion of a second- generation (the British Aerospace Concorde, now retired from service, being the first) supersonic or hypersonic transport. NASA research and development efforts in aviation have also led to advanced flight control and aircraft deicing systems, along with improvements in civil aircraft airworthiness. NASA is now providing research support in connection with development of the NextGen ATC system.

Figure 1-5. NASA is currently researching a blended wing body design for quieter and more efficient transport category jets. Here, a subscale X-48B is seen banking over desert scrub at Edwards Air Force Base. (NASA photo)

NASA’s general aviation research activities focus on: Propulsion, noise and emissions improvements to reduce environmental impacts New flight deck displays to improve safety Advanced metals and composites for general aviation applications Aerodynamic improvements to increase aircraft speed, capacity, and

fuel efficiency

Recent interrelated general aviation programs supervised or participated in by NASA include the Highway in the Sky program, intended to ease pilot workload and simplify air navigation through more sophisticated electronic displays; the Advanced General Aviation Transport Experiments (AGATE), focused on developing technologies for general aviation; and the Small Aircraft Transportation System (SATS) program, building on the others to demonstrate the viability of using increasingly sophisticated light general aviation aircraft (Figure 1-6), including very light jets (VLJs) (Figure 1-7), to affordably reduce many of the expected problems in the nation’s transportation system, such as increasing congestion on highways and at major airports served by the airlines, by providing point-to-point transportation between the thousands of existing public use airports not served by the airlines.

Figure 1-6. The ergonomically designed high-tech “glass cockpit” in this very light jet (VLJ) exemplifies the ease of operation goals of the AGATE and SATS

programs. (Hyku Photo)

Figure 1-7. Very light jets, such as this Eclipse 500, may fulfill the vision of NASA’s SATS program of doubling the number of U.S. communities receiving air transportation. (Eclipse Aerospace, Inc. photo)

NASA also administers the confidential Aviation Safety Reporting Program (ASRP), designed to identify problems in the National Air Transportation System, especially those related to air traffic control. This program is described in greater detail in Chapter 2.

On the space operations side, NASA and the FAA have distinct but interlocking safety regulation authority. The FAA is responsible for regulation and licensing of commercial space launch and re-entry operations, primarily to assure safety of persons and property on the surface and in the airspace during those operations, but lacks regulatory authority over the airworthiness/spaceworthiness of the spacecraft (at least for now, early in the learning curve of these operations). NASA retains authority to set safety standards (so-called “man-rating”) for any spacecraft that will carry NASA astronauts or visit any NASA destination (such as the International Space Station). The two agencies closely coordinate their activities and share their

respective stores of specialized knowledge and experience in this area.

Civil Aeronautics Board (CAB) Formerly the powerful and pervasive regulator of airline economics, including routes flown and routes served by U.S. airlines and foreign airlines serving the U.S., the CAB was gradually wound down as a result of Congress’ passage of the Airline Deregulation Act of 1978. The CAB finally ceased to exist on January 1, 1985.

Before deregulation, the Public Utilities Commissions (PUCs) of most states also exercised tight regulatory control over the economic aspects of intrastate operations of air carriers, duplicating the CAB’s controls over interstate and foreign transport for air carriers operating within the states. For example, in Colorado there is a niche market for air transportation between Denver and the state’s ski resort areas. One airline focusing on serving this market was Rocky Mountain Airways (RMA), which operated only within Colorado. Before adding or deleting service between any two points within Colorado, RMA was required to obtain a certificate of public convenience and necessity from the state’s PUC. Before setting or changing the fare to be charged on any of these routes, RMA was required to obtain PUC approval. This duplicative, expensive, and time- and resource-wasting state regulatory process was specifically preempted by the Deregulation Act, which prohibited all states except Alaska (which, due to its size, geography, and extremely limited highway system, is uniquely reliant on commercial air transportation) from regulating the economics of federally certificated air carriers (rates charged and routes served, for example).

This federal preemption does not, however, extend into the areas of registration and taxation of aircraft, so that state aircraft registration requirements and state personal property or specific ownership taxes on aircraft are lawful and commonplace. Typical state aircraft registration and taxation programs are discussed in Chapter 11.

Air Transportation Stabilization Board (ATSB) Only 11 days after the terrorist attacks of September 11, 2001, Congress passed the Air Transportation Safety and System Stabilization Act to compensate victims of the attacks for their losses and to aid the recovery of U.S. airlines from the financial consequences of the attacks. Victim

compensation provisions of the Act are discussed in detail in Chapters 8 and 9.

The Act created the Air Transportation Stabilization Board, composed of the Secretary of Transportation, Chairman of the Board of Governors of the Federal Reserve System (designated as Chair of the ATSB), Secretary of the Treasury, and Comptroller General of the United States (as a nonvoting member), or their designees.

The ATSB was empowered to issue up to $10 billion in federal loan guarantees to the airlines and to compensate the airlines up to $5 billion for direct losses resulting from federal action grounding the airlines in the wake of the attacks.

National Mediation Board (NMB) (www.nmb.gov) Unlike most other industries, labor-management relations in the airlines (and railroads) are governed not by the National Labor Relations Board (NLRB) under the National Labor Relations Act, but by the National Mediation Board under the Railway Labor Act of 1926, made applicable to common carriers by air in 1936. The NMB supervises union efforts to organize workers, elections, and conducts the compulsory mediation procedures the RLA requires as a mandatory step toward resolving major labor-management disputes within the airline industry. These procedures are discussed in detail in Chapter 17.

National Labor Relations Board (NLRB) (www.nlrb.gov) The NLRB regulates labor-management relations in all U.S. industries except the airlines and railroads. Thus, the NLRB supervises union organizing efforts and elections, and rules on unfair labor practice claims in the aerospace manufacturing industry and general aviation (except general aviation operators conducting common carrier operations, such as on-demand charters and emergency medical air transportation). The NLRB’s regulations and procedures are discussed in some detail in Chapter 16.

Office of Personnel Management (OPM) (www.opm.gov), Federal Labor Relations Authority (FLRA) (www.flra.gov), and Merit System Protection Board (MSPB) (www.mspb.gov) These agencies have roles in regulating labor-management relations of

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federal employees, such as FAA air traffic controllers and air safety inspectors.

The OPM establishes the rules and procedures and practices for federal employment, the FLRA oversees union organizing and collective bargaining by federal employees, and the MSPB hears appeals of federal employee grievances—such as those filed by thousands of former FAA air traffic controllers whose employment was terminated as a result of their participation in an illegal strike by the Professional Air Traffic Controllers Association (PATCO). These agencies are discussed in greater detail in Chapter 16.

Federal Trade Commission (FTC) (www.ftc.gov) and Department of Justice (DOJ) (www.usdoj.gov) The Federal Trade Commission and Department of Justice police all industries for anticompetitive practices. In aviation, this mostly involves airline and aerospace manufacturer mergers and acquisitions and collusion among competitors in price-fixing.

The Department of Justice is also responsible for investigation and prosecution of federal crimes relating to aviation, such as aviation security and bogus parts cases. Crimes relating to aviation are discussed in Chapters 2 and 15.

In the Aviation and Transportation Security Act, Congress also directed the National Institute of Justice, the research and development branch of the Department of Justice, to assess potential use of nonlethal weapons by flight deck crewmembers to temporarily incapacitate intruders.

Customs and Border Protection (CBP) (www.cbp.gov) U.S. Customs and Border Protection (CBP) is the largest federal law enforcement agency and is part of the Department of Homeland Security. CBP is responsible for preventing terrorists and terrorist weapons, unauthorized persons, illegal drugs, and other contraband from entering the United States.

The Aviation and Transportation Security Act required all airlines providing international air transportation to the United States to secure their computer reservation systems against unauthorized access and to electronically transmit passenger and crew manifests to U.S. Customs prior to

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departure. Under the Secure Flight Program, implementation of which began in early 2009, the TSA now screens the names on these lists against its “watch list” of known and suspected terrorists to identify persons who should be prevented from boarding (the No Fly List) or who should undergo additional security scrutiny (the Selectee List).

The CBP’s Office of Air and Marine (OAM), formed in 2005 to consolidate several federal law enforcement aviation programs, is the world’s largest civilian law enforcement air force, with over 700 pilots operating more than 272 aircraft of 22 different types (including unmanned aircraft systems) (Figure 1-8). The division’s mission is to detect, interdict, and prevent acts of terrorism and the unlawful movement of people, illegal drugs and other contraband toward or across the borders of the United States, and to conduct air operations in support of other federal, state, and local needs, such as disaster relief. CBP’s activities are focused along U.S. borders.

Figure 1-8. U.S. Customs and Border Protection Lockheed P-3 Orion on offshore patrol. (Customs and Border Protection Photo)

Immigration and Customs Enforcement (ICE) (www.ice.gov)

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Another DHS agency, working in close coordination with CBP and the U.S. Marshals Service, ICE law enforcement activities focus more on identification and apprehension of removable aliens, detention and removal of illegal aliens who are already within the United States. It prioritizes the apprehension, arrest and removal of convicted criminals, those who pose a threat to national security, fugitives, and recent border entrants. It is also the first point of contact for individuals seeking asylum in the United States.

ICE removal (deportation) activities are directed by ICE Air Operations (IAO), which utilizes commercial airlines and air charter services (often referred to as “Ice Air”) to transport such individuals both domestically and for repatriation worldwide.

Occupational Safety and Health Administration (OSHA) (www.osha.gov) OSHA regulates safety and health in the American workplace, publishing and enforcing specific health and safety regulations, requiring employers to keep records of all workplace injuries and accidents, and inspecting workplaces to ensure compliance. OSHA is empowered to assess fines for violations and order employers to correct unsafe conditions.

The Occupational Safety and Health Act, which created and empowered OSHA, also imposed on employers a general obligation to keep their workplaces free from hazards that could cause serious harm to employees.

In the aviation and aerospace industries, OSHA had generally confined its inspection activities to aerospace manufacturing facilities and airline ground operations, but in 2013 the agency adopted new workplace safety rules for required aircraft cabin (but not flight deck) crewmembers, whether operating under 14 CFR Part 121, 135, or 91 rules. OSHA and the FAA are cooperating in developing minimally intrusive inspection and enforcement protocols for these new in-flight standards.

Overall, OSHA’s approach appears effective. In 1900, about 35,000 American workers died at work, but although a century later the workforce had increased by a factor of five, the number of annual workplace deaths had dropped to about 5,500.

The State Department (www.state.gov) and the President (www.whitehouse.gov)

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The State Department negotiates treaties between the United States and other nations. Examples relating to aviation include treaties relating to air piracy and air transport agreements providing for reciprocal international air service. Once the State Department has negotiated a proposed treaty, it must be approved and executed by the president and ratified by the Senate.

Foreign air carriers designated by their country to provide service to the U.S. under an international air service agreement must receive a foreign air carrier permit before commencing operations to the U.S. The DOT issues these permits, after consultation with the State Department and subject to presidential approval. The president may disapprove a specific foreign carrier only for foreign relations or national security reasons, such as when the carrier’s security practices are deemed overly lax.

STATE ADMINISTRATIVE AGENCIES State governments are also free to regulate commerce, as long as state rules do not conflict with federal law or unduly burden interstate or foreign commerce. (See Chapter 13 for detailed discussion of the application of this concept to the regulation of airport operations and airspace use.)

In one example of permissible state regulation, Florida’s Department of Environmental Protection (DEP) initiated enforcement action against Embry- Riddle Aeronautical University (ERAU) for the age-old and then industrywide practice of “sumping and dumping.” It is a crucial step in the preflight inspection of any powered aircraft to drain small fuel samples from the aircraft’s various fuel sumps to check for water, debris, and other possible contaminants, as well as to verify (by color and odor) that it is the correct type of fuel for that aircraft (“sumping”). For virtually the entire first century of powered flight, it was routine practice throughout at least the general aviation community to then discard each small collected sample by pouring it on the ground (“dumping”). The problem is that fuel is toxic, flammable, and corrosive, which qualifies it as hazardous waste. Although most of such a small sample of dumped avgas evaporates, some (including the tetraethyl lead additive) remains to run off into the soil and water, making the practice an unlawful disposal of hazardous waste, punishable by a fine of up to $50,000 per day under Florida law—enough to motivate anyone to make a focused effort to break an old bad habit. In consideration of ERAU partnering

with DEP and the Aircraft Owners and Pilots Association (AOPA) to develop an educational campaign to persuade pilots to break this old bad habit, the state reduced the university’s fine for the past illegal practice.

The Occupational Safety and Health Act that created OSHA as a federal administrative agency also empowered states to take responsibility for enforcing occupational safety and health standards through OSHA-approved state plans. At this writing, 24 states and 2 territories now have functioning approved state enforcement plans.

INTERNATIONAL REGULATION International Civil Aviation Organization (ICAO) (www.icao.int) Although not technically a regulatory agency, the International Civil Aviation Organization, an organ of the United Nations and headquartered in Montreal, has a profound worldwide effect on aviation standards.

ICAO was organized in late 1944 at the Chicago Conference. There (with World War II still raging in Europe and the Pacific), representatives of 52 allied and neutral nations gathered to chart global civil aviation’s postwar course.

The two specific goals of the gathering were: 1. Establishment of international technical standards for airworthiness

certification, flight crew certification, communications, and radio aids to navigation, and

2. Establishment of principles and procedures for the economic regulation of international civil aviation’s routes, fares, frequency, and capacity.

The delegates’ philosophy was clearly expressed in the preamble to the resulting treaty, the Convention on International Civil Aviation (also known as the Chicago Convention):

WHEREAS the development of international civil aviation can greatly help to create and preserve friendship and understanding among the nations and peoples of the world, yet its abuse can become a threat to the general security; and

WHEREAS it is desirable to avoid friction and to promote that cooperation

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between nations and peoples upon which the peace of the world depends; THEREFORE, the undersigned governments having agreed on certain

principles and arrangements in order that international civil aviation may be developed in a safe and orderly manner and that international air transport services may be established on the basis of equal opportunity and operated soundly and economically;

HAVE ACCORDINGLY concluded this Convention to that end. Today, virtually all nations (at least 191) have signed the Convention on

International Civil Aviation and become members of ICAO. The organization has succeeded famously in achieving the first goal. ICAO-adopted technical standards, known as international Standards and Recommended Practices (SARPs), are published in a series of documents known as Annexes to the treaty. The smooth and efficient functioning of international civil aviation is largely attributable to ICAO’s work. Wherever you fly on earth, you have ICAO to thank for communication and navigation systems that are compatible with the equipment in your aircraft and for the ability to communicate with air traffic controllers in the English language (an area ICAO has targeted for further improvement, because ATC English capabilities still vary widely across the globe). ICAO has also developed internationally accepted standards for the transport of hazardous materials by air and is actively pursuing agreement to achieve international harmonization of aircraft certification and operating rules as a goal to help reduce airlines’ operating costs.

ICAO’s Technical Cooperation Programme provides technical expertise, consultation, training, and airport and airway equipment to developing countries.

Concerns over global environmental deterioration brought ICAO to the forefront of organizations and businesses collaborating to minimize aviation’s impact on the problem (quantified as about 2 percent of the greenhouse gas emissions contributing to global warming, but probably disproportionately effective in exacerbating the problem, since much of these emissions occur at the upper levels of the atmosphere). Frustrated by a lack of progress in efforts to achieve a global solution to greenhouse gas emissions, the European Union (EU) adopted the market-based cap-and-trade Emissions Trading Scheme (ETS), with civil aircraft to be included in 2012.

The EU ETS—which would apply to the entire length of any flight into, out of, or through EU airspace—provoked a firestorm of adverse response that brought the world to the brink of a global trade war over the issue. Russia denied overflight rights to EU-based Finnair, China refused to pay for and accept delivery of 30 completed jetliners from EU-based Airbus, the U.S. Congress passed legislation prohibiting U.S. airlines from participating in the EU scheme, and India and other nations voiced objections to the EU and considered retaliatory options. ICAO had long sought a global solution for civil aviation emissions, but was making no progress toward achieving consensus. When this unilateral action by the EU raised such ire, the organization rapidly ramped up its effort and the EU postponed the effective date for application of its ETS to civil aircraft until after the ICAO governing body’s next meeting, the ICAO Assembly in the fall of 2016, to give the organization a chance to resolve the issue.

Accomplishments in the area of the Chicago conferees’ second goal were less sweeping, but significant. At that 1944 conference, The United States sought basically a free global market for the airlines, proposing that the nations of the world agree to recognize the Five Freedoms of the Air (see Figure 1-9).

Figure 1-9. The Five Freedoms of the Air, illustrated for an airline of nation A.

Although much of the world might jump at such a generous offer today, to gain greater access to comparatively lucrative U.S. markets, in late 1944 the U.S. was poised to dominate the international airline industry at war’s end. At the beginning of World War II, there were only 365 transport aircraft in the U.S., but by war’s end the U.S. had produced over 300,000 aircraft, of which over 11,000 were transports such as the C-47 (DC-3) and C-54 (DC-4), most of which would be taken out of service and disposed of as surplus shortly after the war’s end. In the same time period, the U.S. had trained hundreds of thousands of aircrew members, including pilots, navigators, and loadmasters, along with mechanics, weather forecasters, dispatchers, and other essential support personnel. Many of these had operating experience on international routes and at foreign bases, and most would be mustered out of the armed forces and on the civilian job market shortly after the end of the war.

It would have required little more than a change of aircraft paint and crew uniforms to transform that military airlift fleet into civil airlines having a greater capacity than all of the other nations could hope to muster for many years. And unlike the other major powers on both sides of the war, America’s aircraft manufacturing industry emerged intact, with plants undamaged, new designs in progress, and (with the abrupt cancellation of military orders) excess capacity to produce those new transports.

Thus it is not surprising that national protectionism prevailed over free market competition. The conferees agreed only on the principle of international sovereignty in airspace, providing that no scheduled international air service may be operated over or into a nation or its airspace without its permission.

A separate agreement known as the Transit Agreement was also signed at that time in Chicago by fewer than all of the conferees, agreeing to the first two Freedoms (overflights and nontraffic stops). Foremost among the nonsigners were the security-obsessed nations of the communist bloc (also understandable, considering the devastation they had received and were still receiving from Axis air power). The other Freedoms were left to be negotiated between individual nations, although as part of the Chicago Conference, ICAO did develop a standard form of bilateral (between two

nations) agreement for exchange of air routes. The form has been widely used since and is generally recognized as a significant contribution to the high degree of consistency in commercial international air service agreements for well over a half-century. According to ICAO, over 3,500 bilateral air service agreements are in effect today.

Additional Freedoms discussed since the Chicago conference and included in some bilateral and multilateral (between more than two nations) air service agreements are:

Sixth Freedom: The right to carry traffic from one nation through the homeland and on to a third nation. Seventh Freedom: The right to carry traffic between two foreign nations without going through the home country. Eighth Freedom: (Also called cabotage.) The right to carry traffic between two points in a foreign country, such as if a European airline were permitted to operate commercial flights between New York and Los Angeles. If the origin and destination are located in geographically separated parts of that country, such as the route between Los Angeles and Anchorage, it is called grand cabotage.

In the United States, the president’s National Commission to Ensure a Strong Competitive Airline Industry found that the prevailing bilateral agreement system was no longer conceptually sound or sufficiently growth- oriented in the global trade environment. The Commission recommended that U.S. negotiating efforts should focus on creating multilateral agreements.

Open Skies Agreements are the latest fashion in treaties for international air service. Unlike the bilateral agreements that were typical for many decades following the Chicago conference, open skies agreements (which may be either bilateral or multilateral) do not limit the service provided by airlines of signatory nations to specific city pairs (i.e., New York City–Paris), but give the airlines of both countries the right to operate between any point in one country and any point in another, as well as to and from third countries (“beyond rights”). Other features of open skies agreements designed to encourage competition include:

Free market competition: No restrictions on number of airlines the signatory nations may designate to provide service under the treaty, or on capacity, frequency of service, or types of aircraft.

Pricing determined by market forces: A fare can be disallowed only if both governments concur (“double disapproval pricing”), only allowed for certain specified reasons intended to assure competition. Fair and equal opportunity to compete: Carriers of all signatory nations may establish sales offices in all others, may convert earnings and remit them to the home country in hard currency and without restrictions, may provide their own ground handling services (“self- handling”) or choose among competing providers, may arrange ground transport of air cargo, and are guaranteed access to customs services. Cooperative marketing arrangements: Designated airlines may enter into code-sharing or leasing arrangements with airlines of other signatory countries, with those of third countries, and even with surface transportation companies. Liberal charter arrangements: Airlines may choose to operate under the charter regulations of any signatory country. “Seventh Freedom” rights: Some open skies agreements include authority for an airline of one signatory nation to operate all-cargo services between another signatory nation and a third country via flights not linked to the airline’s homeland. Safety and security: Each signatory government agrees to observe high standards of aviation safety and security, and to render assistance to the others in certain circumstances. Dispute settlement and consultation: The model text agreement (available on the State Department website, (www.state.gov) includes procedures for settling differences that may arise under the agreement.

In 2007, the United States entered into an open skies agreement with the European Union. The agreement allows any airline of the EU and any airline of the U.S. to provide service between any point in the U.S. and any point in the EU. The agreement favors U.S. carriers in that they are also allowed to fly between points in the EU, while EU airlines are not permitted to provide service between points in the U.S. or own a controlling interest in a U.S. airline. The United States has concluded over 70 bilateral and multilateral open skies agreements to date.

First Freedom rights of overflight were granted by Russia beginning in

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2001, allowing shorter and more efficient polar great circle commercial airline routes between North America and Asia, saving the airlines millions of dollars each year in fuel, staff costs, and landing fees at intermediate airports such as Anchorage.

Air piracy (hijacking and terrorism) has proved to be one of the most difficult and enduring problems facing ICAO. Such unlawful interference with civil aviation is hardly a recent phenomenon. The first reported episode occurred in 1784, when a young man forced his way into the basket of a Charliere (helium) balloon and demanded at sword-point that he be carried aloft. ICAO statistics show that such incidents were extremely rare until 1968, when hijacking became a fad. Some 200 aircraft hijackings occurred worldwide from 1968 through 1970. The perpetrators were mostly criminals seeking to escape, mentally unstable persons, or political militants. A few acts of sabotage against airliners have simply been murders perpetrated in an attempt to collect on the life insurance of a targeted passenger. Politically motivated terrorists have been responsible for the most recent hijackings and acts of sabotage against civil aviation, such as the blowing up of Pan Am flight 103 over Lockerbie, Scotland, and the hijacking of four U.S. airliners for use as weapons to perpetrate the most lethal terrorist attack in human history on the twin towers of the World Trade Center in New York City and the Pentagon in Washington, D.C. (The fourth aircraft crashed in rural Pennsylvania after the passengers, learning of the fate of the first three, attempted to regain control of the aircraft from the terrorists and prevented it from reaching its still-unknown intended target—likely either the White House or U.S. Capitol building—no doubt saving many other lives in the process.)

The problem is one of global dimensions, which no single nation can effectively solve. Yet the frequent presence of a political motive for such acts has greatly complicated efforts to achieve global consensus on an appropriate approach to solutions. In such situations, although the nation whose airliner is attacked and others unsympathetic to the attackers’ particular cause may view the attackers as terrorists or common criminals, others sympathetic to their cause may view them as heroic freedom fighters or even religious martyrs.

Given the level of factionalism and hatred in the world, it sometimes seems amazing that any agreements can be reached over such emotional and politically charged issues, but under ICAO’s leadership, about 100 nations

have signed treaties agreeing to promptly return hijacked aircraft to their countries of origin, permit hijacked passengers to continue their journey as soon as possible, and hold suspected hijackers for investigation and either prosecute them under their own law or extradite them to the country whose aircraft was hijacked for prosecution under its law. While the threat has by no means been eliminated (because a significant number of nations have not signed the treaty and some continue to offer safe haven to hijackers and terrorists whose political agendas they support), significant progress has been made on the diplomatic front.

Meanwhile, as efforts continue to achieve world peace and improve international civil aviation safety and security, it appears certain that the role of ICAO will continue to increase in importance.

International Air Transport Association (IATA) (www.iata.org) When the Chicago Conference failed to reach agreement on its second goal of regulating international civil aviation’s routes, fares, frequency, and capacity, the international airlines formed their own trade association, the International Air Transport Association, to address these issues. IATA is also headquartered in Montreal and represents the interests of some 230 airlines that carry 93 percent of global passenger traffic. Initially operating primarily as a cartel to divide up markets and fix prices on international air routes, IATA soon came into conflict with U.S. antitrust laws. As a result, the association discontinued that function.

Today, one of IATA’s most important functions is its clearinghouse in London, which rapidly settles accounts amounting to over $30 billion annually for interline transactions among member airlines, airline-associated companies (such as companies providing ground handling), and associated travel agents. Airlines for America (A4A), formerly known as the Air Transport Association (ATA), performs a similar clearinghouse function for U.S. airlines in domestic operations. Without these clearinghouses, arranging travel requiring a change of airline would be an unbelievably complicated nightmare, particularly in the international arena where currency differences and fluctuating exchange rates add to the intricacy of the task.

IATA also works closely with ICAO on technical issues involving airline operations, safety, and security and has formed an alliance with the Flight Safety Foundation (FSF) to exchange information and promote the best

http://www.iata.org
airline safety practices. The association has strongly urged the ICAO Assembly to:

Agree on a roadmap for development of a single global market-based measure (MBM) for aviation emissions to be adopted in 2016 and implemented in 2020. Agree that the goal is for aviation to be carbon-neutral by 2020, that aviation emissions should be counted only once, and that the global MBM should take account of the different operating circumstances of operators around the world. Develop milestones for the MBM, including an ICAO standard for monitoring, reporting, and verifying aviation emissions, and a mechanism to define the quality of verified offset types that could be used.

IATA’s Aviation Training and Development Institute offers a wide variety of courses in airline and airport management, aviation law, aviation security, airline safety, pilot selection, crew resource management, airport planning, and air navigation services. These courses are taught in 66 locations around the world, as well as through distance learning.

The association also publishes about 300 reference and training publications vital to the industry on topics such as safety, security, ground handling, transporting dangerous goods, and airport development.

International Registry of Mobile Assets (IRMA) (www.internationalregistry.aero/ir-web/) In 2001, the Cape Town Convention on International Interests in Mobile Equipment (an international treaty) created the International Registry of Mobile Assets, which became effective in 2006. Intended to facilitate financing and reduce costs for international transactions in aircraft, railroad rolling stock, and spacecraft, the registry provides a global single-source to identify legal interests in certain specified aircraft, regardless of their nation of registry. Although physically located in Dublin, Ireland, the registry operates entirely via secured transactions online. Details of the registry and requirements of the treaty are covered in Chapter 11 on Buying and Selling Aircraft.

http://www.internationalregistry.aero/ir-web/
2

FAA Enforcement

As we saw in the previous chapter, the Federal Aviation Regulations have always been the “law.” The FAA employs thousands of aviation safety inspectors and hundreds of attorneys to enforce this body of law. Aviation professionals and general aviation operators are probably now more likely to encounter an FAA inspector than any other law enforcement officer.

The FAA issues certificates to a wide variety of specialized personnel (such as pilots, flight engineers and navigators, maintenance personnel, maintenance inspectors, air traffic controllers, aircraft dispatchers, ground and flight instructors, and parachute riggers); businesses (such as aircraft and component manufacturers, aircraft and component repair stations, commercial air carriers, air taxi and commercial charter operators, helicopter external load operators, and flight and aviation maintenance schools); operators of airports serving air carriers (most of which are regional or local governmental entities); and even products (such as individual aircraft, each of which receives an airworthiness certificate). The FAA also has the power to deny, suspend or revoke any and all of these certificates.

Because FAA actions to enforce the FARs are characterized as administrative law rather than criminal law, FAA inspectors are generally not required to advise suspects of their legal rights. In an effort to appear to be good cooperative citizens, aviators, maintenance personnel, aviation managers and others often make voluntary statements to FAA inspectors and air traffic controllers that are subsequently used by the agency to suspend or revoke their certificates or to punish them by imposing substantial fines.

The purpose of this chapter is to furnish a practical working knowledge of your legal rights in FAA investigation and enforcement situations. A separate course of study can and should be devoted to the organization and

requirements of the FARs. Although the majority of the examples used in this chapter involve pilots, the same principles apply to actions against all individuals, businesses, and even public entities (such as airports serving air carriers) that may be charged with FAR violations.

A RANGE OF POSSIBLE CONSEQUENCES When the FAA has reason to suspect that an individual or company has violated one or more of the Federal Aviation Regulations, the FAA can choose from a variety of penalties to punish the violator:

1. Administrative Dispositions. When the FAA considers the violation to be minor, of little consequence but too serious to ignore altogether, it may dispose of the case administratively through the issuance of a warning notice or letter of correction.

A. Warning Notice. Being issued a Warning Notice by the FAA is very much like receiving a warning from a police officer in a traffic case. The notice outlines the facts about the incident and indicates that it may have been a violation of the FARs but that the FAA has decided not to file formal charges.

B. Letter of Correction. When a minor violation involves a condition that has since been corrected (for example, if the FAA inspector found an aircraft’s ELT battery out-of-date and the owner immediately rectified the discrepancy), the FAA may issue a Letter of Correction outlining the facts of the incident or condition, stating that it may have been a violation of the FARs, but noting that in light of the corrective action taken, no enforcement action will be pursued.

The Letter of Correction is also used to provide for remedial training for some FAR violations, instead of punishment. This allows an individual suspected of a violation to submit to a course of remedial training (instead of having to face a certificate suspension or fine) if: i. The violation did not occur in connection with an operation for

compensation or hire in air transportation, and ii. The FAA is satisfied that you have a constructive attitude so that

remedial training will probably lead you to a life of future FAR compliance, and

iii. Your violation was not one that would indicate an underlying basic lack of qualification to hold your certificate, and

iv. You don’t already have a record of noncompliance with the FARs, and

v. Your violation was not deliberate, grossly negligent, or a criminal offense.

Unlike reexamination (discussed later in this chapter), remedial training does not include a testing component; so as long as you take the agreed training with an instructor of your choice during a time period that you and the FAA agree to, you will be off the hook with a Letter of Correction.

In my experience, most FAR violations are unintentional errors made by people who are really trying to comply with the regulations but make a human error. A little refresher training with an instructor never hurt anybody, and every client I have been able to help get into this program has come away feeling like a better pilot for the experience. And most importantly, remedial training doesn’t result in an FAR violation going on your record. Presented with the option between remedial training and an enforcement action, I’d snap up the opportunity for remedial training every time.

If a Warning Notice or Letter of Correction is issued, this becomes a part of your airman record at the FAA Aeronautical Center in Oklahoma City. Warning Notices and Letters of Correction are automatically removed from your airman record two years after issuance. Meanwhile, this record is always consulted by FAA inspectors investigating alleged violations, and if it appears that the person or the company under investigation has a previous administrative disposition of record, a harsher penalty will be sought in the subsequent case, on the theory that “last time we were nice guys and gave him a break, and he obviously didn’t learn his lesson from that, so this time we have to hit him harder to get his attention.” Under current FAA policy, administrative dispositions are frequently used to provide remedial training to rusty individual certificate holders and under self-reporting programs for air carriers and manufacturers (discussed later in this chapter), but legal enforcement action in the nature of a certificate action or civil penalty is still taken quite frequently.

2. Certificate Action. Where the violation is one of an operational nature (rather than, for example, a mere delinquency in recordkeeping), the FAA prefers to suspend or revoke the FAA certificate(s) held by the violator. The election between revocation or suspension—and, if suspension is elected, the duration of the suspension imposed—is determined by the FAA attorney handling the case, with the advice of the inspector who conducted the investigation and by reference to a table of sanction guidelines issued by the FAA’s Washington, D.C., headquarters. Factors considered by the attorney in reaching this decision include:

A. Precedent. Penalties previously imposed by the FAA and upheld by the NTSB on appeal in similar cases serve as a guideline for future penalties.

B. Current FAA Enforcement Priorities. In the course of its safety- regulating duties, the FAA looks for patterns appearing in its investigations of accidents, incidents, and violations, and as a matter of policy focuses on certain types of misbehavior that may appear to be “getting out of hand” or causing particular concern. These receive increased emphasis in inspections and related enforcement actions. When an alleged violation falls within an area designated by FAA management for such special emphasis, penalties harsher than those previously applied for such a violation may be sought on the theory that precedent punishment has proven insufficient to deter such violations.

C. Individual Considerations. In selecting the sanction to impose on an individual violator, the FAA attorneys are also instructed to consider the following factors:

i. The degree of hazard to the safety of other aircraft and persons or property in the aircraft or on the ground created by the alleged violation;

ii. The nature of the violation (whether inadvertent or deliberate);

iii. The violator’s previous record (the FAA expects everyone to obey the law and have a violation-free record, so a previous violation is considered an aggravating

circumstance that will lead to a harsher penalty in a later case, but a clean record is not considered a mitigating factor to reduce the penalty);

iv. The alleged violator’s level of experience (more- experienced pilots are expected to make fewer mistakes);

v. The attitude of the alleged violator (a positive attitude toward FAR compliance may soften the penalty, while a bad attitude may lead to harsher treatment);

vi. The nature of the activity involved (private, public, or commercial, the latter calling for a harsher penalty);

vii. Any ability of the alleged violator to absorb the sanction without any real impact (such as by taking an earned vacation during the period of suspension or an employer’s offer to pay any fine imposed); and

viii. Whether the violation indicates an underlying lack of qualifications on the part of the violator to hold a certificate (either as the result of lack of skills or knowledge or an attitude of disrespect toward the FARs).

D. The Horror Factor. The FAA attorney’s subjective “gut” feeling about the seriousness of the violation also plays a role in the selection of a penalty. Few FAA attorneys are pilots or have any other practical background in aviation, so this evaluation is often affected by views expressed by the investigating inspector and any sensational publicity that may have appeared in the news media.

3. Civil Penalties (fines). The FAA attorney has the option of imposing a fine instead of taking certificate action in some cases. (Constitutional prohibitions against double jeopardy have generally been construed to allow the FAA to either impose a fine or to take certificate action, but not to do both for the same violation.) For operational violations, FAA enforcement policy generally encourages the use of certificate action against individuals and civil penalties against companies. However, if the FAA feels that the management of a certificate- holding company (such as an air carrier or repair station) is not making a serious effort to obey the FARs, it will not hesitate to suspend or revoke that

company’s operating certificate. A civil penalty may be the only punishment available against an FAR violator who is not required to hold an FAA certificate, such as the pilot of a single-seat ultralight, an operator of a small unmanned aircraft (“drone” or model aircraft), or a skydiver. However, if that individual does hold an FAA airman certificate (but was not exercising the privileges of that certificate at the time), the FAA may still be able to take action to suspend or revoke that certificate for careless or reckless operation (unmanned and model aircraft are still aircraft within the definitions appearing in the Federal Aviation Act and FARs) or for demonstrating judgment that calls the person’s qualifications into question.

If the FAA attorney elects to proceed with a civil penalty (fine), the agency may seek to collect a maximum of $1,000 per violation in most cases against individuals and some businesses, $10,000 per violation by air carriers and airport operators, or $250,000 for falsification of documents.

Most incidents give rise to more than one regulatory violation, if only because whenever an FAR is violated, the FAA almost always adds a residual charge of a violation of 14 CFR §91.13 (careless or reckless operation) on the theory that it is careless or reckless to violate any FAR. For continuing operations, the FAA may count them on a per-flight or per-day basis. For example, if an airplane made a dozen flights after an airworthiness directive (AD) was due but had not been performed, the operator could be fined $1,000 per flight for the overdue AD plus $1,000 per flight for a careless or reckless operation. In the alternative, if this situation was allowed to exist while the aircraft was operated over a period of thirty days, each day could count as a violation of each of these regulations. In either event the potential fine could quickly build to an astronomical number. If the violator is an air carrier or airport operator, multiply that result by ten.

4. Summary Seizure of Aircraft. If the FAA charges you or your company with a violation and is concerned about your ability to pay such a fine, the agency also has the power to seize the aircraft involved and hold it until the fine is paid or bond is posted to cover the fine.

5. Reexamination. If an accident, incident, or report of an FAR violation causes the FAA to be

concerned about your competency, the FAA may require you to submit to reexamination in the area of concern. This may include a repetition of written, oral, flight, or other practical tests required for the certificate involved. The FAA must have some reasonable basis for requesting such reexamination, but if it does you have no right of appeal and must submit to reexamination, at your own expense.

If you do not submit to reexamination within a reasonable period of time, that in itself is an FAR violation for which the FAA may suspend or revoke your certificates. For example, if during IFR operations ATC observed you having some difficulty executing a published instrument approach procedure, wandering all over the sky, they might then require you to submit to another instrument flight test with concentration on instrument approach procedures as a condition of keeping your instrument rating. Before any reexamination, it is wise to spend some time with an instructor polishing your skills and updating your knowledge in the area in question.

Where an FAR violation caused the concern about your qualifications, the FAA can both require you to submit to reexamination and punish you for the violation by certificate action or fine. This is generally not considered to violate the constitutional prohibition against double jeopardy since the reexamination is not considered punishment. The proposed Pilot’s Bill of Rights 2, if enacted, would limit the Administrator’s power to require an airman to submit to reexamination, only allowing it based on acts or omissions that occurred while the airman was exercising the privileges of the certificate, or if the Administrator has reasonable grounds to believe the airman obtained the certificate by fraud.

INVESTIGATIONS The FAA is required by Congress to investigate all reports of FAR violations, regardless of how far-fetched the initial report may sound. Most reports of FAR violations are investigated by FAA inspectors, usually those assigned to a Flight Standards District Office (FSDO).

The majority of FAR violations come to the attention of these FAA inspectors during the regular conduct of their duties, including aircraft accident investigations; routine checks (such as base inspections of aviation businesses); and airport surveillance (including ramp checks of aircraft

operators and the hated “weekend duty” when the inspector on call for accident investigations may meanwhile roam around local general aviation airports, looking for problems like a cop on the beat).

The FAA’s air traffic controllers are the second major source of reports of FAR violations. For example, if a flight operating under instrument flight rules (IFR) deviates from an altitude assigned by the ATC, a report may be forwarded to the inspectors for investigation and prosecution as an FAR violation. In fact, the ATC computer program has a feature, officially named the Quality Assurance Program and generally called “the Snitch Patch,” that automatically calls many deviations from clearances to the attention of FAA enforcement personnel.

ATC has caught and reported thousands of airspace violations since the terrorist attacks of 9/11/01 caused a dramatic increase in the designation (often on extremely short notice) of temporary flight restrictions (TFRs). Some of these errant pilots have been intercepted by fighters and escorted to a nearby airport (not usually the airport of intended landing), where they were met and interrogated by Secret Service agents eager to assure that the pilot had no terrorist intent. FAA enforcement action has sometimes followed. (See Chapter 14 for more on airspace regulation.)

The third largest source of reports of FAR violations is the general public. Reports from the general public arise largely out of “buzz jobs,” when a citizen is frightened or annoyed by low-flying aircraft, or low-flying aircraft spook livestock in a rural area (see Figure 2-1). Since the terrorist attacks of 2001, the general public has been particularly jumpy about low-flying aircraft, fearing that the pilot intends to crash into them or spray them with some lethal substance. Now, public sensitivity over privacy, as well as safety, is driving increasing complaints about often unidentified low-flying unmanned aircraft.

Figure 2-1. While the “buzz job” has a long history as the choice expression of exuberance by aviators, the public is no longer amazed or amused by such antics, more often responding with a flash of fear or anger instantly followed by the capturing of a picture or video clip on their cell phone or other photographic equipment, as seen here. The proliferation of small portable imaging devices in the hands of law enforcement officers and ordinary citizens has greatly increased the likelihood that low-flying aircraft and their pilots will be successfully prosecuted.

The FAA has a toll-free telephone number (800-255-1111) at its Washington, D.C., office for the Safety Hotline anyone can call to report FAR violations. The FAA promises to keep the caller’s identity confidential if requested and begins a preliminary investigation of each report within one day. The FAA is also providing grant funding for a similar hotline operated by the National Air Transportation Association (NATA) for charter operators to report suspected illegal commercial operations in violation of 14 CFR Part 135, a perpetual problem in the industry. The toll-free number for that hotline is 888-759-3581.

While the circumstances leading up to an FAA enforcement action are

sometimes downright laughable, finding yourself the focus of one is anything but amusing. For example, a DC-3 freighter had just landed at a Florida airport and as the crew was taxiing to park, they noticed a group of young Civil Air Patrol (CAP) cadets drilling on the ramp to the immediate left of the aircraft’s course. As the cadets paused to watch the proud classic airliner taxi grandly by, the captain said to the first officer, “Your aircraft.” The first officer took the controls, responding, “I have the aircraft.” The captain then opened the cockpit window, released his seat belt, rose, lowered his trousers and “mooned” the passing cadets, failing to first notice that the proud mother of one of the cadets was videotaping the drill and the taxiing DC-3. The mother was appalled. When she showed the videotape to the FAA, they were not amused, either, and issued an Emergency Order of Revocation of the pilot’s airline transport pilot (ATP) certificate, alleging that he lacked the “good moral character” required to hold such a certificate, along with careless or reckless operation. At the hearing (more on this process momentarily) before a female NTSB administrative law judge (ALJ), the videotape was shown several times, to the pilot’s increasing embarrassment. By the conclusion of the hearing, the pilot’s attorney was able to beat the moral character charge (the ALJ finding the “mooning” only a juvenile prank), but the judge found in favor of the FAA on the charge of careless operation (based largely on the first officer’s testimony that he was laughing so hard he could barely steer the aircraft). She reduced the penalty accordingly to a 10- day suspension of the captain’s ATP certificate, with credit for time served. The moral of the story, in this era of proliferation of personal digital and video cameras, cell phones, and other devices that can take and send digital photos and video clips, is that before doing something frisky with your flying machine, you should ask yourself, “How is this going to look to the FAA and the NTSB ALJ when (not if) they see it on video?”

The Crucial Moment (Ramp Checks, etc.) Although you have the right to appeal the charges and have a hearing with your attorney present to represent you, as a practical matter the most crucial moment in the entire process is likely to be your first contact with an FAA representative. In my experience, people under investigation frequently make damaging admissions in early statements to the FAA, often not even realizing that they are under investigation for a suspected violation. Such admissions

may later make it impossible for your attorney to effectively defend the formal charges brought against you.

Although on appeal the FAA will have the burden of proving its charges, your early admissions may be all that it takes. For example, in a violation alleged to have been committed by a general aviation aircraft operating noncommercially and under visual flight rules (VFR), the most difficult element for the FAA to prove on appeal may be the identity of the pilot-in- command (PIC) of the aircraft at the time of the alleged violation (for example, in a simple low-flying case). If you have already admitted to the FAA that you were flying the airplane (although you may vigorously dispute charges that you were flying too low), that admission can be used against you on appeal. The testimony at hearing might go something like this:

FAA ATTORNEY: Inspector Stern, did you contact the Respondent, Mr. Badguy in the course of your investigation? FAA INSPECTOR: Yes, sir, I telephoned his home that same afternoon, and a person who identified himself as Mr. Badguy answered. I told him that we had received a complaint from a citizen that his plane was flying low over the town of Brooklawn earlier that day. He told me that he had been flying over Brooklawn about that time, but stated that he had been at least one thousand feet above ground level at all times. Thus, the pilot provided the FAA the evidence needed to identify him as

the pilot-in-command, an element that might have been impossible to prove without his admission.

Part of the problem here is the nature of the FAA inspector’s job, which requires the kind professionalism of Dr. Jekyll when counseling individuals and companies involved in aviation to help us get the certificates we need and to stay out of trouble, then to transmogrify into the vicious Mr. Hyde and prosecute us to the fullest extent of the law when we are suspected of having violated an FAR. Another part of the problem is our attitude toward the FAA. From our earliest flight training, we are trained to think of the FAA as our friend. If we want to obtain a pilot certificate, add a rating to an existing certificate, or get authority to start an aviation business, we first go to see our friends at the FAA (the same inspectors who may later bring an enforcement case against us). If we find ourselves confused by an FAR and need guidance to interpret it, we consult our friendly FAA inspector. If we find ourselves in

a dilemma in flight, perhaps in clouds with failing navigational equipment, we radio for help to our friends in FAA ATC. And each of these contacts is to be commended; for it is often only through such cooperation that we can live through many in-flight emergencies and remain in compliance with the regulations.

But many of the FARs are quite vague and subject to differing interpretations. Despite your best efforts to comply, you may someday find, much to your chagrin, that an FAA inspector’s interpretation differs from your own. As a result of this difference of opinion, you or your company may be temporarily or permanently deprived of the FAA certificates necessary to conduct your business (or at least prerequisite to your personal pleasure flying). For example, you may have undertaken a flight you believed proper under your authority as a commercial pilot only to find an FAA inspector later believes that you could not have legally performed the flight without also holding an air-taxi/commercial-operator certificate issued under 14 CFR Part 135. Or, being human, you may simply make an inadvertent mistake that results in an FAR violation. In either event, the first contact you have with the FAA over this problem may be the most crucial moment in the entire experience. Yet unless you are in the habit of traveling around with your lawyer handcuffed to your wrist, which most of us are not, your first contact with the FAA—the most crucial moment in the entire case—will occur without your having the benefit of legal advice. In fact, it is very likely that you may not even realize until it’s too late that your good old buddy from the FAA is talking to you this time in his Mr. Hyde enforcement role. If you committed some crime, such as holding up a convenience store, the first law enforcement officer to contact you during the course of the investigation would have to advise you of your legal rights before anything you said could be used against you in court. We’ve all seen those TV crime shows where the suspect is given the Miranda warning advising him of his rights. Most FAR violations, however, are not crimes and the courts have held that the FAA does not have to advise you of your legal rights before taking statements from you with the intent of using them against you to suspend or revoke your certificate. The courts consider such cases “merely administrative.”

You have most of the same rights as a criminal suspect in that situation; it’s just that the FAA doesn’t have to advise you of those rights before interrogating you, so I will: When questioned by the FAA, you have the right

to remain silent. Anything you say can and will be used against you to suspend or revoke your certificate or fine you. You have the right to have your attorney present during any questioning. (Unfortunately, you do not have the right to require the government to appoint an attorney to represent you if you can’t afford one.)

While in a formal “ramp check” the inspector will usually identify himself as such, FAA inspectors are not required to identify themselves before striking up a conversation with you. Because of this, and because they are not required first to advise you of your rights, many people have given FAA inspectors enough information to hang them without even realizing that the person they were talking to was an FAA inspector. Indeed, in my experience, it is quite common for some FAA inspectors to try to trick people into confessing their participation in violations in order to perfect an otherwise difficult enforcement case. The seemingly friendly person who strikes up a conversation with you on the ramp some sunny weekend may well be an FAA inspector on airport surveillance duty hoping to get you to say something useable to prove an enforcement case against you. He doesn’t have to identify himself unless you inquire whether he works for the FAA and request to see his FAA identification. After 9/11, in addition to their FAA ID, real FAA Inspectors now carry badges. They frequently begin an investigation by subterfuge since the law permits them to, and it’s usually a lot easier than trying to get answers out of someone who knows what’s going on, knows their rights, and has an attorney at hand.

My favorite example of this occurred in a small rural community. The town was having its annual July 4th celebration at a lakefront park, and a local skydiving club was invited to participate. Because the town might have been construed by the FAA as a “congested area” under the FARs, an airshow waiver was obtained from the FAA to permit the jump under certain conditions, notwithstanding the general FAR prohibition against parachuting over and into congested areas. A condition of that waiver was that the parachute jumpers must land in the lake. During his descent, one of the jumpers decided that he didn’t really want to get his parachutes wet and have to go to the trouble of drying them out before repacking them. So he turned his parachute and steered to a landing in a cul-de-sac on a dirt road on the very fringe of town, where he landed safely without any perceptible danger to the three shanties in the neighborhood and their associated chicken coops. As

he was gathering up his parachute, a beat-up old green pickup truck came bouncing down the road and pulled up beside him.

“Kind of missed your spot didn’t you, sonny?” inquired the bib overall-clad driver.

“Nah, I just decided I didn’t want to get my chutes wet,” the jumper replied.

“Would you like a ride back over to where the other fellows landed?” offered the driver.

The jumper gladly accepted, and the friendly conversation continued during the ride, with the kindly old farmer asking things like: “What’s your name? My, that’s an unusual last name, how do you spell that?” and “Where do you work, George?”

As they were nearing the beach where the other jumpers had gathered, there was a lull in the conversation and the jumper took it to be his turn, asking: “What’s your name?” followed by “Where do you work, Al?”

The answer to his final question was “I’m an FAA aviation safety inspector at the Denver Flight Standards District Office.”

The truck stopped and the driver dropped the jumper off then went on to his office to file a violation that would prove unbeatable, given the jumper’s admissions.

This example is only the most vivid and amusing of the great many I’ve seen in which people had no idea they were under investigation for an FAA violation until they had already made damaging admissions. I’ve seen other cases in which inspectors (without having first identified themselves) struck up conversations with people on airport ramps, in fixed base operator (FBO) offices, or at social gatherings, or have telephoned and begun asking questions without revealing their purpose.

If, however, the person does claim to be an FAA representative, you should request to see his FAA ID and badge to verify the claim. Be sure to compare the face to the photo on the ID. In one case, FAA inspectors performing a base inspection on a major airline switched ID cards before going through the airline’s security, and then hit the airline with a $20,000 fine for the security breach when they were allowed in. If the person claiming to be from the FAA can’t produce an FAA ID and badge, or if the photo on the ID doesn’t match the face of the person carrying it, call airport security or the police immediately.

Is there some way you can tell when your FAA inspector has made that switch from the kindly Dr. Jekyll who’s your buddy to the vicious Mr. Hyde who is trying to take away your certificates? Is there some clue to alert you to the possibility that you are under investigation and your certificate may be in jeopardy? Yes, there is, and it is this: Someone from the FAA wants to talk to you about history (and by history I mean anything that has already occurred, whether years, months, minutes, or even seconds ago). Whenever an FAA representative wants to discuss history with you, an annunciator light should start flashing and bells ringing in your mind to alert you that you are probably now a suspect in an FAA enforcement case.

Now, of course, there is always the possibility that this particular FAA representative is writing the definitive history of aviation in the United States in her spare time and is only checking to be sure she has the facts straight for the chapter devoted to your role. But the probability of that is remote. The only other reason that someone from the FAA ever wants to discuss history is that they have been assigned the duty of building an enforcement case against you or the company you work for (or both).

One lawyer/pilot friend of mine, who had successfully defended numerous pilots to the embarrassment of her local FSDO, encountered an FAA inspector on the ramp as she was heading toward the FBO office at the conclusion of a flight. He wanted to ask her some questions. Recognizing a ramp check when she saw one and knowing that this individual was out to get her, she said she’d be glad to talk to him, but first she had to make a restroom stop (entirely plausible to any pilot). The inspector took a seat in the office outside the door when she entered the women’s restroom, where she climbed out the window, got in her car and drove home. Whenever he finally realized he’d been tricked, he probably made a very nasty note in his file.

So there you are. The FAA inspector is in your face or on the telephone and wants to talk about history with you. The annunciator light is flashing and the bells are ringing in your mind, and you have that tightness in your throat that comes with recognition that the FAA is out to get you. Congratulations! At least you know what’s going on, unlike many of the previous victims of FAA investigation and enforcement actions. But what are you going to do about it? Well, a good opener is always: “Why do you ask?” You may as well first see if you can find out what this is all about, if you aren’t already certain.

Then, you are on the horns of a dilemma. You know that you have the right

to remain silent, that anything you say will almost certainly come back to haunt you by helping the FAA suspend or revoke your or the company’s certificates (or both), and that you have the right to have your attorney present during any questioning. But your attorney isn’t present, and the inspector wants to talk now. Additionally, you may suspect that if you exercise your rights and refuse to discuss the historical facts the inspector is looking for, she will make a little note in her file that “the suspect displayed a belligerent, uncooperative attitude,” or something to that effect. You may fear that if the inspector decides you lack a constructive attitude, you may be denied the opportunity to participate in remedial training (instead of an enforcement action to suspend or revoke your certificates or fine you) and that you will be singled out for harsher-than-normal treatment. And that is exactly what may happen. You may have only two alternatives, both unpleasant (but not equally so): An angry inspector who may be unable to prove a case against you because you did not confess, or a happy inspector who can prove a case against you because you did confess. Pushed to that choice, I will go with the first choice every time.

Never discuss historical facts with the FAA without first consulting your attorney. You must be firm on that point. It is also, however, important to not appear disrespectful of the inspector, the FAA, or the FARs. It is definitely in your best interest to try to avoid the appearance of a bad attitude by maintaining a polite, soft-spoken presentation and professional demeanor toward the FAA inspector. You might try saying something like:

“I really would like to talk to you about this, Inspector, but I think the professional thing for me to do in this situation is to consult my attorney first. May I have your business card, so that I can call you back after I consult with my attorney?” Many FAA inspectors are not beneath persisting in trying to cajole you into

telling them what they want to know in the face of your resistance, and they have been known to say things like:

“Aw, shucks, I think you’re blowing this way out of proportion. It’s not that big a deal, and probably nothing will come of it. I’ve just had a file dumped in my lap, and I have to check it out. The sooner I get the answers to these questions so I can fill out this report, the sooner I can close the file.”

So you relent and answer their questions. They write down the answers and close the file as promised. Then they put it in an envelope and send it to the FAA attorney who takes action to suspend or revoke your certificate. You appeal, and the FAA proves its case by using the answers you gave the FAA inspector. It happens every day. Don’t be a chump. Telling a funny story in his comedy routine about an unfortunate drunken encounter with a police officer, comedian Ron White says: “I knew I had the right to remain silent, but I did not have the ability.” Confronted by an FAA inspector, you must muster that ability, hold your ground, and firmly but politely decline to discuss any historical facts with the FAA until you have consulted your attorney.

Another context in which that crucial moment of the first contact with an FAA representative may occur is by an invitation to telephone or visit the air traffic control tower, RAPCON, or center. If you are personally invited (by the controller on the frequency or a line service person while you are securing the aircraft after a flight) to telephone or visit the ATC facility, that annunciator light should start flashing in your mind to alert you that you are probably suspected of an FAR violation. They aren’t inviting you up there because they want to show off their new radar display to an appreciative taxpayer, and they don’t want you to phone in so they can compliment you on the awesome skill you demonstrated in your crosswind landing. They want to talk to you because they think you have made a mistake.

Once again, you are on the horns of a dilemma. If you do telephone or visit the tower in response to their request, you may help them prove a case against you by identifying yourself as the pilot-in-command and by making other damaging admissions. If you don’t, they may decide you lack a constructive attitude and attempt to come down harder on you.

My favorite example of the former occurred at Harlingen, Texas, then home of the Confederate Air Force (CAF), since renamed the Commemorative Air Force, a charitable organization that led the movement to restore and preserve American and foreign military aircraft of World War II vintage. A middle-aged commercial pilot flew his personal Piper Comanche on a personal pleasure trip to Harlingen for the CAF’s big annual air show. He arrived VFR in VMC at dusk on the evening before the show. The flight was uneventful and there was no other traffic in the pattern when he arrived. He had not filed a flight plan, nor was one required. As he was

tying down the Comanche on the line, a line service attendant from the flying service tapped him on the shoulder and said something like: “Pardon me, sir, but when you get done tying the aircraft down, they’d like you to pay them a visit in the tower.” The pilot replied (probably with an audible gulp): “Tower? What tower?”

It seems that the pilot did not have the latest sectional aeronautical chart and thus did not realize that the airport had acquired an FAA control tower in the interim since the chart he was using had expired, so he had landed without establishing radio contact. Being an otherwise good and responsible citizen, however, he dutifully reported to the tower where he straightforwardly admitted his mistake, expressed sincerest apologies, and made it quite clear that he was mortified and had learned a valuable lesson. All in all, he found it a very frank and gratifying professional exchange with the controllers. He left believing that the problem was solved and that nothing would come of it. A few weeks later, the FAA instituted proceedings to suspend his commercial pilot’s certificate for six months for the violation.

Then he contacted me for the first time. We appealed the case to the NTSB (more on how this process works later) and as the hearing was approaching, I was trying to figure out some way to defend this case and drawing a blank. After all, the guy had confessed, hadn’t he?

Going over in my mind each element of the case the FAA would have to prove at the hearing, I thought about how they would prove he was the pilot- in-command who had visited the tower and confessed. I expected that the FAA attorney would call as a witness one of the control tower operators who was present during this visit and would proceed to prove the identity of the pilot-in-command like this:

FAA ATTORNEY: Did you request that the pilot of the Comanche visit the control tower? CONTROLLER: Yes, sir. I telephoned the flying service and asked them to send someone out and request that the pilot pay us a visit in the tower when he got done tying down his airplane. FAA ATTORNEY: Did the pilot visit the control tower in response to your request? CONTROLLER: Yes, sir, he did. FAA ATTORNEY: And do you see that person present here in the

courtroom, today? CONTROLLER: Yes, sir, that’s him in the green shirt, sitting over there next to Mr. Hamilton. So I didn’t bring my client to the hearing. Sure enough, the control tower chief appeared as a witness and the

questions and answers proceeded along the expected lines until the crucial question about recognition. Although my client was not present in the courtroom, the gallery was packed with a number of my students who had come to observe the proceedings. The tower chief paused, took his glasses out of his pocket and put them on, then studied each face carefully before he finally replied: “No, sir, I don’t.”

You could have heard a pin drop as the FAA attorney realized that he had walked into an ambush and was about to lose his case for inability to prove the identity of the pilot-in-command.

Then the darndest thing happened. The tower chief started rummaging around in his flight bag, pulling out unfiled approach-plate revisions, crackers, stale sandwiches, charts, tomorrow’s fresh shirt—all the usual contents of the working aviator’s flight bag. Suddenly realizing that everyone in the courtroom was staring at him as if he’d gone mad, he paused, turned to the judge and said, “But, Your Honor, while he was up there, he signed our guest book and I believe I have a copy of that with me.” With some further rummaging in the bag, he found the copy of the relevant page from the “guest book,” and the FAA introduced it as an exhibit. There, in the most legible handwriting you’ve ever seen, was my client’s signature.

So we lost the case. Current FAA enforcement policies require ATC personnel to report all

observed FAR violations to the inspectors for investigation. Although once routine, controllers are no longer permitted to solve most problems by friendly chats with pilots.

If I get that invitation to call or visit the tower, I’ll strongly Roger it and tie down the airplane, then if the situation permits, disappear as rapidly as possible, not waiting around to refuel or leave a trail of little exhibits-to-be like signed gas slips, car rental agreements, and so forth.

Another lawyer friend of mine who also does a lot of FAA enforcement defense work got a request to telephone the tower after landing at an

unfamiliar airport. Trying to strike a careful balance between appearing to have a constructive attitude without giving the FAA ammunition to use against him in an enforcement case, he made the call. When the approach controller answered, he said, “Yes, sir, and I’ll need your name for our log.” My friend laughed and replied: “I know why you need my name and I’m not going to give it to you, but if you think I did something wrong I’d sure like to know what it is so I won’t do it again.” The controller then explained the problem to him, he responded positively and appreciatively, and nothing further came of it. Once the airplane is at the chocks, you are no longer “air traffic” and thus no longer required to obey the orders of air traffic controllers (like to present yourself somewhere or call anyone on the telephone). You have a great deal to lose by showing up or calling and identifying yourself without first talking to your attorney. Don’t fall for it! Find the ability to exercise your right to remain silent!

Displaying Documents Although you are not required to discuss anything with the FAA without having your attorney present, you are required by 14 CFR §61.3(a)(1) and §61.3(c) to have in your personal possession or readily available in the aircraft your pilot certificate, medical certificate, and government-issued photo ID whenever exercising the privileges of your certificate. You are required by 14 CFR §61.51(i) to present your pilot certificate, medical certificate, government-issued photo ID, and logbook to FAA or NTSB investigators or any federal, state, or local law enforcement officer for inspection upon reasonable request. Similar presentation-upon-request requirements apply to non-pilot holders of airman certificates, such as mechanics and repairmen (see, e.g.: 14 CFR §§65.89 and 65.105).

Unless you are a student pilot on a cross-country, however, you are not required to have your pilot logbook with you and it is probably best that you don’t (even if you do, if you catch my drift). 14 CFR §21.181(b) also requires that you make the aircraft’s airworthiness certificate available for inspection by the FAA.

If you are operating under 14 CFR Part 91, these are the only documents you are required to present, and you are only required to present these documents for inspection, not to surrender them (unless the person making the request presents you with a written Emergency Order of Suspension or

Revocation signed by an FAA attorney, described later). It is important that you exercise your rights here, as well. If the inspector starts to pocket or otherwise depart with your certificate and logbooks in her possession, you must insist upon their immediate return. Otherwise, you may later be held to have surrendered them voluntarily and given up all your rights to appeal any suspension or revocation of these certificates. Again, it may be necessary for you to firmly but politely insist upon preserving your rights in this regard. Present, but do not surrender, these documents. Present but do not discuss anything about these documents without first consulting your attorney. If the FAA inspector ignores your protests and begins to depart the area with your certificates or logbooks anyway, scream bloody murder and get witnesses who can later testify that you did not voluntarily surrender these documents to the inspector. But do not under any circumstances lay a hand on the FAA inspector. You don’t want to add a criminal charge of assaulting a federal officer, a felony under 18 U.S.C. 111, to your problems.

If you are operating under 14 CFR Parts 121 or 135, you will find that document production requirements are substantially greater than those described here.

Aircraft Inspection During the course of ramp inspections, FAA inspectors routinely ask permission to board the aircraft. If you are operating under 14 CFR Part 135 or 121, the inspector must be granted immediate flight deck access upon request. 14 CFR Part 91 operators, on the other hand, are not required to grant FAA inspectors entry to the aircraft on oral request and should not grant such a request. Even if, as a gesture of kindness, you allow the inspector to board the aircraft to get in out of the rain, the inspector is not going to come aboard with blinders on. If anything appears amiss, the inspector’s observations will be used against you later in an enforcement case. Even without your permission, inspectors may examine the aircraft’s exterior without removing any inspection covers or opening cowlings or hatches. They can even press their noses against the Plexiglas and peek in from the outside. Just don’t allow entry unless required.

It is not unusual for a difference of opinion to arise between the pilot and an FAA inspector over an issue of airworthiness during the course of a ramp check. The safest way to handle this is to call over a qualified mechanic to

resolve the disagreement, if one is available. If not, you are on the spot: If you go ahead and fly, you may find yourself the guest of honor in an enforcement case for operating an unairworthy aircraft. But if you cancel your trip and later verify that your airworthiness assessment was correct, you will have suffered the inconvenience and consequences unnecessarily. If you feel confident that the aircraft is airworthy and that proceeding with your trip is worth the risk of an enforcement action, you can turn around and put the inspector on the spot. State that in your opinion, the aircraft is airworthy and you intend to fly it unless the inspector is so certain of her position that she is willing to issue a written Aircraft Condition Notice (FAA Form 8620-1). State that if she does, then you will defer to her judgment and not operate the aircraft until a qualified mechanic can inspect it.

The Letter of Investigation Sometimes, you have no indication that the FAA is after you until you receive a letter from them in the mail. The Letter of Investigation (LOI) comes from an inspector at the Flight Standards District Office (FSDO) investigating a complaint or report of violation. The letter indicates that the FAA has received a report that you were involved in an incident in violation of the FARs. The letter will describe in short summary form what they believe you did, when and where they believe you did it, and will invite you to respond in writing within 10 days with your side of the story. Aviation lawyers call the LOI the “invitation to hang yourself,” because—even though the Pilot’s Bill of Rights enacted by Congress in 2012 now requires that the letter inform the individual that no response is required, that no action or inference can be taken against the individual for declining to respond, and that any response by the individual may be used as evidence against the person—a surprising percentage of recipients still immediately sit down and (without the benefit of counsel) draft a complete narrative response and send it off to the FAA in the naive expectation that once the FAA sees their side of the story, the problem will go away. Fat chance! What almost always happens, instead, is that such writers give the FAA admissions against their own best interests that the FAA then uses to prove their enforcement case.

For example, the FAA LOI states that on May 31, 2015, the addressee was the pilot-in-command of Avitat Husky aircraft N2020BZ, and operated the aircraft over the Colorado River in the vicinity of Lake Havasu City, Arizona,

at approximately 7:30 p.m. The letter goes on to state that the aircraft was observed flying at an altitude as low as 50 feet above swimmers and watercraft, contrary to Federal Aviation Regulations. The pilot’s reply letter typically says something like: “When I flew my Husky over the river that evening, I never got below 500 feet AGL.” Gotcha! The FAA may have had no proof of the identity of the pilot-in-command of the aircraft, so they sent an LOI to the aircraft owner hoping to draw him out. Sure enough, he fell for it and gave them a written confession that he was the pilot. That admission, of course, would constitute ample proof of the pilot’s identity, sure to satisfy any ALJ. In cases in which there are multiple registered owners of the aircraft, FAA inspectors typically send identical LOIs to each of them, hoping that the owner(s) not involved in the incident will respond by denying their involvement and identifying who the pilot was.

Do not fall for the “invitation to hang yourself.” Take it to your aviation lawyer immediately for advice. After considering your explanation of events, your lawyer may choose to craft a carefully worded admission-free response for your signature, respond on your behalf revealing that you are represented by counsel, or recommend no reply be sent. In one case where four close friends were co-owners of an aircraft identified in a possible airspace violation, the FAA sent each an LOI hoping or expecting that the other three would identify the pilot. They all came together to see me and I replied to the FAA that I represented all four of them and that all further communications in the matter should be directed to me. Stymied in their effort to identify the PIC, the FAA did not proceed with an enforcement case.

On February 26, 2015, Senator James Inhofe, who sponsored the legislation that became the Pilot’s Bill of Rights, introduced a new bill (proposed legislation) in Congress denominated the Pilot’s Bill of Rights 2. One of the features of that proposal is a requirement that the FAA provide notification to an individual once they become the subject of an FAA investigation, rather than await the conclusion of that investigation. If enacted, this provision would bar the FAA from pressing charges or even retaining records of the investigation if the notification is not given.

When to Talk to the FAA Talking to the FAA in advance, such as when you don’t understand an FAR and need an interpretation or other professional guidance to enable you to

avoid committing a violation, is highly recommended. And while you really are “air traffic” (while the aircraft is actually in

operation and in communication with ATC) cooperate fully and be absolutely truthful in all communications. This advice applies even if you’ve made a mistake and fear that ATC has caught it. This is simply because any failure to be truthful could have far worse consequences than the suspension or revocation of your certificate.

Imagine that ATC has cleared you to climb and maintain Flight Level 380. Because of some distraction, you climb through your assigned altitude without leveling off, and ATC, noticing your mode-C encoder return, asks you to “say altitude.” Realizing that you have made a mistake and that your certificate may be in jeopardy for violating an FAR by deviating from the clearance, you may feel a strong temptation to report level at 380 to avoid such troubles. The problem is that if you do that and succeed in conning the controller into believing that you really did not bust your altitude, the controller may not issue a deviating vector to the A-380 that is coming at you head-on at Mach .85 plus your own airspeed at your real altitude. The consequences of that could make an enforcement case look like pretty light stuff. So I urge that as a practical matter you cooperate fully and report truthfully to ATC during all aircraft movements (from chock to chock you might say). But once the aircraft is stopped, they are on their own, and discussions of historical events should be deferred until you have first received the advice of your attorney.

You should also be careful to avoid getting into arguments with controllers on the frequency. Nothing is more certain to result in an enforcement case being filed against you than you jamming the frequency with some ranting filibuster over a difference of opinion with the controller. Carry out your responsibilities as pilot-in-command and do not accept clearances that would, in your professional judgment, endanger the safety of the flight. But save the debate until you’re home safely back on the ground, you and the controller have both had time to cool off, and you’ve consulted your attorney. There is a better way to clear up past misunderstandings and prevent future conflicts with ATC. The radio frequency is not the appropriate forum for debate.

Immunity from Sanction: The NASA Report If any occurrence during your operations results in an unsafe situation or

causes you concern that the FAA or anyone else might think that you did something wrong (unless an accident or crime was involved), it is advisable to file an Aviation Safety Reporting Program (ASRP) report with NASA. There are three reasons to file this report: (1) You may make an important personal contribution to improving aviation safety; (2) you may receive immunity from sanction for an FAR violation; and (3) you have nothing to lose by filing the report.

The purpose of the NASA Aviation Safety Reporting Program is to identify problems in the National Air Transportation System to provide a sound basis for improving the system. The reporting form is free online at http://asrs.arc.nasa.gov, at all FAA offices including Flight Service Stations, or by writing to FAA Aeronautical Center, Distribution Section, AAC-45C, P.O. Box 25082, Oklahoma City, Oklahoma 73125.

A copy of the form is reproduced in Figure 2-2, and NASA will accept a copy that you make out of this book. It is a good practice always to have at least one of these forms with you in your flight case. Electronic filing is also available at the website noted above.

The report is not only for use by pilots, but also air traffic controllers, maintenance personnel, and cabin crewmembers.

Filing a report may accomplish several things. First, you may make an important personal contribution to improving

aviation safety. Here’s an example from a CFII client I represented: The day was marginal VMC with haze when the light twin was cleared for a practice ILS approach to runway 35R. The ATC clearance for the approach received from the airport control tower stated: “Piper 43 Tango is cleared for the practice ILS approach, runway 35 right; report power lines.”