As I mentioned briefly in the government structure section, aviation law enforement generally takes place within the realm of civil, as opposed to criminal, law. A pilot who has commited a violation has usually not broken a criminal law that applies to the public at large but has rather acted contrary to a very specific set of rules, namely the FARs, that have been laid out for the safe and effective operation of the aviation community. There are some situations, however, in which criminal law effects pilots. Examples include forgery of certificates or registration documents, inappropriately carrying weapons aboard aircraft, illegal fuel tank installation, the false marking of aircraft, and airport security violations. In cases when such activities have been alleged of a pilot, the FAA may still be involved in the enforement process to some extent, but the government body responsible for taking action against him or her is the U.S. Department of Justice. This section, however, will only discuss those cases that involve the standard civil enforcement process of the FAA against a general aviation pilot for an alleged violation of the FARs.
If the FAA becomes aware of what it sees as a violation on the part of a pilot, it will generally pursue one of three possible options:
The former is a letter that recites the facts and circumstances of an incident that the FAA claims to be a violation and states that the matter has been corrected and/or does not warrant legal enforcement action. It then goes on to request future compliance with the FARs. The Warning Notice is not final, however, since the FAA can (though it usually does not) later withdraw it and decide to take legal enforcement action against the pilot if it later deems that appropriate. The Letter of Correction is similar, except that it lays out an agreement with the pilot that corrective action acceptable to the FAA has been taken or will be taken. A common example of such an agreement is for both parties to agree on the pilot's participation in the remedial training program. In these cases, the Letter of Correction closes the case, after the pilot successfully completes the training.
Although administrative action is not an official finding against the pilot of a violation, it still does go into his or her official record and will remain there for two years. If the pilot wishes to respond to one of the above letters in writing, his or her response will also be made part of the official record, and any admissions of violation could potentially be used in future enforcement actions.
Civil Penalty
This is the government-lingo way of saying "fine". The FAA can impose (at the time this page was constructed) a financial penalty of up to $1000 for each violation it cites. This enforement method is used much less often, however, than certificate action.
Certificate Action
Certificate action is the FAA's most commonly used enforcement mechanism against general aviation pilots. The Administration tends to seek suspension or revocation of a pilot's certificate for operational violations of the regulations or whenever a violation indicates a lack of technical proficiency or qualification that the FAA considers too serious to remedy through reexamination or an administrative action.
The Federal Aviation Act grants pilots significant procedural rights. It requires the FAA to advise the pilot of the charges or other reasons for the action before taking the action and -- except in the case of emergency action, which I discuss later -- provide the pilot with an opportunity to answer or explain why the action should not be taken. If the FAA receives information that a possible violation of the regulations has occurred, an FAA inspector will perform a preliminary investigation into the allegation. Part of this process is sending a Letter of Investigation to the pilot (or other person under investigation), which informs the recipient that an investigation is under way, gives a basic indication of the alleged violation, and inidcates that the recipient has 10 days in which to contact the inspector who wrote the letter and tell his or her side of the story. This could take the form of giving reaons to justify or flatly denying that he or she carried out the action in question.
The pilot is not legally required to respond to this letter. Since the FAA enforcement procedures are civil and not criminal, the letter is not required to inform you of the right to remain silent, but that is a right pilots can excercize. It is up to you, with the possible help of an aviation attorney, to decide whether it is in your best interest to respond, but it is important to note that any admissions of guilt that you make to the FAA in a reponse can, and probably will, be used against you in later enforcement action.
Though the contents of the letter tend to be vague and general, they give you an indication of what type of action that is under investigation. If you feel that you have not violated any FARs or would like to know more about the regulations that apply to the area of operation in question, this is a good time to do some legal research on your own and/or consult an aviation attorney. This will help you to best formulate a response to the FAA or give you a better idea where you stand if you choose to ignore the Letter of Investigation and wait for the next stage in the process.
The inspector will next finish hte investigation within the FSDO and decide whether or not the alleged violation warrants the pursuit of certificate action against the pilot. He or she then sends the investigation file to counsel at the FAA regional office responsible for the geographic area in wich the alleged violation occurred and the area in which the FSDO is located. The pilot will receive a form letter at this point, informing him or her that the matter has been passed on to regional counsel. An attorney at the regional office will conduct further investigation and then propose what it sees as a suitable penalty if it seems that there is sufficient evidence to support the allegation of a violation of the FARs.
If the attorney determines that a provable case exists, FAA counsel will send a Notice of Proposed Certificate Action to the pilot, usually by certified mail. This document is much more specific than the Letter or Investigation, laying out the factual allegations of the case and the regulations in question, as well as the certificate action -- either suspension or revocation -- that the FAA is proposing. Unlike the Letter of Investigation, ignoring the Notice of Proposed Certificate Action is almost always a bad idea. If the pilot fails to respnd within a given period (usually 20 days), the certificate action stated on the notice becomes goes into effect. Since this document cites specific regulations, this may be a good time to do some research. You could discover, for example, that the NTSB has ruled in your favor in a similar case. Such information may not convince the FAA that you are not in violation of the regulations, but it will be good evidence to have on your side, especially if you end up appealing the case further.
There are five general ways to respond to the this notice:
If, after exercising one of the above options, the case is not settled or dropped, the FAA issues a Notice of Certificate Action. As indicated by the removal of the word "Proposed" from the previous notice, this is the document that invokes the official certificate action against the pilot. It explicitly lays out the alleged facts and FARs violated. If the pilot appeals this case to the NTSB, this document is used as the official complaint by the FAA against the pilot during those hearings.
The pilot's certificate remains valid during the entire enforcement process discussed above. There is one situation, however, in which that is not the case: emergency enforcement action. Such actions are quite rare, and only occur when the FAA determines that an emergency exists and that safety requires the immediate effectiveness of the certificate action. In such cases, the FAA issues an Emergency Order of Revocation or Suspension, and the pilot must give the certificate to the FAA pending the outcome of the appeal. Some such situations are a pilot illegally performing part 135 operations for hire, cheating on a test, falsifying logbook records, or other forms of dishonesty. The timeframe for notices and appeals is considerably shortened in these cases, in order to quickly resolve any danger the pilot may be posing to the public and to lessen the burden on any pilots who may have been falsely accused and are now unable to exercise the priveleges of their certificates and ratings.
Once final action has been taken against the pilot, he or she has 20 days in which to file a notice of appeal with the NTSB. Appeals to the NTSB are formal legal proceedings, though, as stated earlier, they are civil cases not criminal. The FAA will be represented by a lawyer. If a pilot can afford it, the pilot is also advized to have legal representation. The administrative law judge who hears the case is not only resonsible for ruling on issues of law but is also the official finder of facts. There is not jury, and not all of the formal criminal rules of due process and admission of evidence apply; so, for example, hearsay evidence can be admitted (this allowance is laid out at 49 CFR 821.38). One possible defense is the NTSB's "stale complaint" rule, which requires that the FAA formally notify the pilot of a proposed enforcement action within six months of the date of the incident, unless the FAA has good cause for the delay or provides good reaons that the pilot is unqualified to hold a certificate.
Once the administrative law judge has made a final decision, either party -- the FAA or the pilot -- can appeal it to the full five-member NTSB board. Such cases are much less common, and involve a great deal of effort on both sides. Each party must file a formal brief and must appear at the hearing in Washington, D.C. Generally, no oral arguments are held at this stage.
Taking the process even further, if the pilot or the FAA is dissatisfied with the full board's order, either may obtain judicial review in federal appeals court in Washington, D.C. The FAA, however, can only make such appeals to the court when the FAA determines that such an order will have a significant adverse impact on the implementation of the Federal Aviation Act. Appeals to the federal judiciary are again quite rare, and involve a great deal of effort and expense on both sides.
Finally, the Appeals Court decision could be appealed to the U.S. Supreme Court. Such appeals are extremely rare, and it is even more rare for the Supreme Court to grant certiorari in (agree to hear and decide on) such cases. If you are a general aviation pilot faced with a standard FAA certificate action against you, the chances of you dealing with the federal court system, let alone the highest court of the land, are virtually nonexistent.
One other action that the FAA can take is to require that a pilot be reexamined. Section 609 of the Federal Aviation Act states that the FAA can reexamine you at any time to determine whether or not you are still qualified to hold your certificate. The Administration must have reasonable grounds for such a demand, which usually involves an accident or incident that suggests to the FAA that you may not be competent. In such cases, you will receive a certified letter from a FSDO, which provides the basis for the reexamination and usually points out the rating and maneuvers or procedures upon which you will be reexamined and a request to call to arrange a time and place for the reexamination. The letter goes on to threaten that, if you don't make an appointment, the FAA will start proceedings to suspend your certificate.
Regarding jurisdiction, it is important to recall the distinctions in area of responsiblity laid out in my section on government structure. The NTSB, not the FAA, has primary authority in aircraft accident investigation and is thus the government body to which required notification and reports must be made. While it is true that, under delegation from the NTSB, the FAA investigates most accidents involving agricultural, experimental and homebuilt aircraft and some others, it is still the NTSB that investigates most accidents and is ultimately responsible for the investigation of all of them. In practice, notification is often made through the FAA -- a tower controller, flight service station (FSS), or FSDO -- which perpetuates the misconception that the FAA holds primary authority in accident investigation. To better understand these procedures and to see whether or not a given event is officially classified as an "accident" that needs to be reported, I recommend you review NTSB 830.
Under the program, the FAA has promised (as laid out in FAR 91.25) that, except in certain specific types of cases, it will not take disciplinary action against a pilot who files an ASR. Only those who file the report will be granted immunity, however, so others involved in the incident may be prosecuted if they don't file their own reports with NASA. The report must be made within 10 days of the inicident in question, and is restricted to the following conditions:
Even if the FAA knows that the pilot has filed a NASA report and that immunity may be granted, an FAA investigator will still carry out an investigation of the suspected violation. The inspector will not query NASA, nor will he or she ask the alleged violator if a report was filed under the ASRP. Only after the case turns into a formal enforcement action will the alleged violator get any indication from the FAA that he or she may request waiver of the proposed sanction. The burden of immunity is on the pilot, who must prove that he or she delivered or put in the mail a written report to NASA within 10 days of the incident. For this reason, it is often recommended that such reports be sent by certified mail, return receipt requested. You should also be sure to hold onto the date-stamped portion that NASA should return to you upon receipt of the form.
If the FAA makes an official finding of a violation of the FARs, the FAA issues an order stating the factual allegations and the findings of violations but does not impose a penalty because of the immunity granted under the ASRP. The FAAs order is appealable to the NTSB, just as a standard Notice of Certificate Action would be. An ultimate finding of a violation will become part of the pilot's file and will bar the pilot from further immunity for the next five years.
The NASA ARC Form 227 (revised October 1984) is available free from the back of the ASA FARs, FSDOs, FSSs, the Aircraft Owner's and Pilots Association (AOPA), and NASA either online (in PDF format) or by mail from
Aviation Safety Reporting SystemThis is also the address where the completed forms should be sent.
Post Office Box 189
Moffett Field, California 94035
If an official form isn't available for some reason, you can also submit a written narrative report. It should contain the name, address, telephone number, and role of the reporter during the incident; date, time, location, and nature of the incident being reported; a description of the event/situation; and thoughts on what can be done to prevent a recurrence or to correct the situation. NASA will transfer the information to an official form and then return the completed identification strip to you.