Why the Big Fuss Over FAA Ticketing?
Airmen and alphabet groups alike are furious about the FAA's new "ticketing" program, and rightly so...the program is seriously flawed. But AVweb editor-in-chief Mike Busch believes that the original goals of the program are valid, and the FAA could easily fix the flaws without scrapping the program or eviscerating it. Let's hope the FAA is listening when it meets on this issue July 21st.
It was a beautiful day to go flying. The air was smooth, the airplane performed flawlessly, and the landing was so smooth that one passenger asked "are we down yet?" As you complete your after-shutdown checklist and open the cabin door, you spot a stranger in a white shirt and dark tie walking toward your airplane, and then your blood runs cold when you notice his blue nametag with its FAA "meatball" seal.
Inspector: "Hello. I'm John Dokes, an aviation safety inspector with the FAA's Smithtown FSDO. I'm conducting a routine ramp inspection, part of the FAA's normal surveillance program. May I please see your pilot and medical certificates?"
Pilot: "Certainly, Mr. Dokes. ... I keep them right here in my wallet. ... Ahhh, give me a moment. ... Darn! ... Oh gee! I took them out of my wallet yesterday to make a photocopy for my insurance renewal, and I must have forgotten to put them back. I'll bet they're sitting on my dresser at home. I just can't believe it! I always carry them with me... What should I do?"
Inspector: "Are you aware that FAR 61.3 requires that you have your pilot and medical certificates in your physical possession or readily accessible in the aircraft when you act as pilot-in-command?"
Pilot: "Yes I am, sir, and I always carry them in my wallet, as I told you. I just can't believe I forgot..."
Inspector: "Well, although it's apparent that you violated FAR 61.3, it's clear to me that your violation was inadvertent. So I'm just going to issue you a warning on this "ticket" form and leave it at that. The warning will remain in your file for two years and then be expunged. May I have your name and address please..."
So what's the big fuss about the new ticketing program, as set forth in Compliance/Enforcement Bulletin #98-1 and symbolized by the new FAA Form 2150-7 "ticket" and as examined so skillfully by AVweb's aviation law editor Phil Kolczynski in his article "Ramp Check '98: The FAA Inspector as Traffic Cop"?
Isn't it a good thing that the inspector was able to let the pilot go with just a warning? Isn't it a good thing that the matter could be resolved on-the-spot without all sorts of intimidating paperwork like Letters Of Investigation and Enforcement Investigation Reports? Why are AVweb and pilot alphabet groups like ALPA, AOPA and EAA making such a stink about this? Isn't this new program which the FAA field-tested in Alaska before deciding to deploy in the Lower 48 something that conscientious airmen should welcome, and that only the scofflaws and cowboys among us should fear?
What's wrong with this picture?
In fact, the scenario illustrated above is precisely how the folks who designed the FAA's new streamlined administrative action program intended the program to be used. If I could be sure that it would be used only in situations like this, I wouldn't object to it a bit. I've certainly got nothing against reducing FAA paperwork and bureaucratic monkey motion. Nor do I believe that long, drawn out enforcement procedures are desirable for simple matters that an airman and inspector agree can be settled on-the-spot.
The real issue, however, is what happens when things depart from this idyllic textbook scenario? What if an inspector cites an airman for violating an FAR that the airman doesn't believe he's violated? What if the airman wants a little time to look up the regs, or to consult with his CFI or A&P or attorney? What if the inspector is wrong about what the FARs say, or wrong in his interpretation of what they require of the airman? (Hey, it happens! Remember the inspector who grounded a twin Cessna as unairworthy because he'd never seen Q-tip props before?)
Aye, there's the rub!
The problem with the new FAA ticketing program is that, in the interests of streamlining the paperwork and facilitating immediate closure, the FAA has not provided adequate protections for the accused airman or other certificate holder. (The ticketing program applies not only to pilots, but to mechanics, dispatchers, and technically even to non-certificate holders like unruly passengers.) Under the new program, it's simply too easy for an innocent airman to suffer serious consequences if an inspector makes a mistake, or if the inspector and airman have an honest disagreement about whether or not a violation occurred, or even if the airman is unsure and needs some time to collect his thoughts.
The program is seriously flawed...
After carefully reviewing the 98-1 program, I've come to the conclusion that it has four serious flaws that make it potentially unjust.
Flaw #1: agree with the inspector...or else!
FAA enforcement policy states that "administrative action" (such as a Warning Letter, Letter of Correction, and now a Form 2150-7 "ticket") may be used as an appropriate alternative to legal enforcement action only when:
the airman has no prior record of similar violations;
there is no evidence that the airman is unqualified to hold his certificate and ratings;
there was no significant unsafe conduct involved;
there is no evidence of deliberate, grossly negligent or criminal behavior acts; and
the airman exhibits a good "compliance attitude."
It's the last item in this list that's most worrisome, because FAA policy doesn't define what constitutes a good or bad "compliance attitude."
Suppose an FAA inspector accuses you of violating an FAR, but you don't agree and you tell him so. Does that constitute a poor "compliance attitude" that justifies the inspector throwing the book at you instead of letting you off with a warning? Written FAA enforcement policy (Order 2150.3A) is silent on this issue. In recent weeks, FAA spokespersons have repeatedly denied that an airman's failure to agree with an inspector's allegation of a violation constitutes a poor "compliance attitude" that would warrant legal enforcement action.
However, a recently-released "FAQ" prepared by the FAA for use in training inspectors in the new 98-1 procedure includes the following Q&A:
|Q: I do not understand how a person, receiving a ticket, could say
to the inspector that "I do not agree with your opinion that it is a violation, and
want to go full enforcement action and NTSB hearing." Does the person receiving the
ticket have the right to appeal?
A: The alleged violator does not have to agree with the inspector/agent. The decision to take Administrative Action is our decision (ticket or traditional) and is not subject to legal appeal. If a person does not agree that a violation occurred, one should question if administrative action is appropriate. The requirements for administrative action dictate that: you achieve compliance; can be assured of future compliance; the person has a constructive attitude; and the action will serve as an adequate deterrent. If the person does not agree or believe that a violation occurred, at least one of the administrative action criteria would not be met. In that case a legal enforcement should be filed for which the legal right of appeal is afforded. In reality, most people will opt for the administrative action.
The FAA seems to be telling its inspectors this: if the inspector accuses an airman of a violation and the airman replies "Yes sir, I'm guilty as charged," then the airman may qualify for administrative action (such as a Warning Letter or "ticket"); but if the airman says "No sir, I think you may be wrong about that," then the airman does not qualify for administrative action and gets legal enforcement action instead.
This is nothing short of intimidation, and is terribly dangerous government policy. It's one of the most blatant cases of "if you don't agree with the inspector, you've got a bad compliance attitude" that I've ever seen in writing from the FAA, and it's in material being used to train inspectors! Is it any wonder that the airman community is up in arms about this?
Flaw #2: allegations aren't the same as proof
Before bringing legal enforcement action against an airman, the FAA needs to have a solid case. If it doesn't, the FAA's proposed certificate action or civil penalty may be reversed on appeal by an NTSB Administrative Law Judge, or by the full NTSB, or by the Federal Circuit Court of Appeals (should the airman elect to take his appeal that far).
Administrative action is considered to be a much milder sanction, and so the "standard of proof" is much lower. Still, FAA enforcement policy directs an inspector to conduct an investigation, to assemble "items of proof" as required to justify his contention that a violation occurred, and to prepare a formal Enforcement Investigative Report (EIR). So if the airman believes that the inspector was wrong and chooses to escalate the matter to a higher level of FAA management, the airman can ask to go over the EIR and items of proof with the FAA manager and attempt to rebut them.
Under the new "ticketing" program, however, the "standard of proof" becomes virtually nonexistent. Bulletin 98-1 does not require the inspector to assemble "items of proof" and states that no EIR should be prepared beyond the filled-in Form 2150-7 "ticket" itself. Thus, should you wish to question the allegation against you, you have nothing to point to but what the inspector wrote on the ticket. It's his word against yours, with no requirement for corroborating evidence to back up his allegation.
The FAA claims that the new "ticketing" program will be used only for violations that are so cut-and-dried that no investigation or "items of proof" are necessary to substantiate them. Commonsense dictates otherwise: FAA inspectors hate paperwork as much as the next guy, and will use the ticketing program any time they think they can get away with it. "Cut-and-dried" is in the eye of the beholder!
Flaw #3: unproven allegations shouldn't be made public
If a "ticket" were nothing more than the proverbial slap-on-the-wrist (as the FAA suggests), then perhaps we could live with these flaws. In principle, the purpose for administrative actions (such as "tickets") is to provide the FAA with a vehicle for its stated policy of "progressive enforcement." In other words, "Mr. Airman, this time we'll let you off with a warning, but do it again and we'll throw the book at you." On the face of it, that's not an unreasonable policy, and administrative actions make sense in that context.
Unfortunately, the consequences of an administrative action can go far beyond that. If you're a professional pilot who flies for a living, it is FAA policy to send a copy of any such administrative action to your employer, where it could easily have serious impact on your continued employment or prospects for advancement.
Even if you're a pleasure flyer, an administrative action might result in your paying higher insurance rates or other adverse consequences. I'm looking at the Privacy Act Notice which is part of the new Form 2150-7 "ticket" and it states in part:
|C. Routine Uses: Records from this system of records may be
disclosed in accordance with the following routine uses that appear in the System of
Records No. DOT/FAA 847, General Air Transportation Records on Individuals, DOT/FAA:
So even though an FAA "ticket" is supposedly just a slap-on-the-wrist predicated on the unproven allegation of an FAA inspector with no opportunity for rebuttal by the accused airman, information about that "ticket" is available to your insurance company, or for that matter, to any member of the public who requests it under the Freedom Of Information Act!
Incidentally, lest you think I'm grasping at straws here, I've checked this out with several aviation insurance agents, and they agree that it's a very real concern.
Flaw #4: sanction without appeal
Given that a "ticket" is merely an inspector's allegation of violation with potentially serious consequences but virtually no requirement for investigation or proof, some mechanism for appeal by the airman seems essential...but none is provided.
I'm not suggesting that the airman should have the right to appeal a "ticket" all the way to the NTSB or the Federal Courts. On the other hand, simple fairness dictates that an airman who feels that he's been wrongly accused by an FAA inspector should have some meaningful recourse. The airman could try to go to the inspector's boss (generally the FSDO manager), but there's nothing in FAA policy that requires the boss to meet with him. Even if there were, the boss is hardly an appropriate neutral party...like any boss in any organization, a FSDO manager is highly likely to back up his inspector against outside criticism if the inspector's action is even remotely defensible.
How could meaningful recourse be provided? It seems to me that it would be in the best interests of both airmen and the FAA to offer a simple appeal mechanism that doesn't involve FAA lawyers and doesn't require a prudent airman to hire an attorney. I'm thinking of something like a "small claims court" or ombudsman program where an airman could present his arguments to a neutral third party, and the inspector could argue his case as well. The arguments of both sides, plus the binding decision of the ombudsman, would then be entered into the airman's record.
Some might question why it's worth the bother to "fight a ticket" when the sanction is nothing more than a glorified slap on the wrist. The answer is that if you let the ticket stand unchallenged, you now have a "record" for the next two years, and another violation will surely result in legal enforcement action against you. That's why an administrative action is worth appealing if you believe it to be erroneous. And that's why having an appeal process is essential.
...but the flaws can be fixed
Some of the airman alphabet groups are telling the FAA that the "ticket" program is fundamentally and fatally flawed, and that scrapping altogether it is the only acceptable alternative. I disagree. I believe that a properly drafted program of this kind could be beneficial to both the FAA and airmen alike. In fact, it seems to me that the program proposed in Bulletin 98-1 could be fixed pretty easily to make it acceptable to most airmen without eviscerating the FAA's original goals of reduced paperwork burden and expedited closure of simple, inadvertent, cut-and-dried violations (like forgetting to carry your pilot and medical certificate). All that's needed, I think, are the following changes:
The Form 2150-7 "ticket" should include a plain-English notice to the airman advising him of his rights under the program, one of which would be to decline the "ticket" and ask the inspector to issue a standard Letter of Investigation, Enforcement Investigative Report, and Warning Letter or Letter of Correction (i.e., the old pre-ticket administrative action procedure). Thus, an airman who isn't comfortable with the ticketing procedure's brand of "instant justice" could express his disagreement without fear of escalating the sanction from administrative action to legal enforcement action.
FAA inspectors should be required to assemble the same "items of proof" to support a Form 2150-7 "ticket" as they would in the case of a conventional administrative action investigation.
The Privacy Act statement that accompanies the Form 2150-7 "ticket" should be changed to prevent the FAA from disclosing information about administrative actions to other government agencies, members of the aviation industry, or the public. The information should be restricted to FAA use only for purposes of "progressive enforcement" (i.e., violate once and you get a warning, violate again and you get certificate action). It should not be available to employers, insurance companies, or other third parties. (It's possible that simply changing the Privacy Act notice isn't enough to protect the data...this is a question for the FAA lawyers to resolve.)
An airman who receives a "ticket" or other administrative action and believes that he's been wrongly accused of a violation by an FAA inspector should have the right to present his arguments to a neutral third party arbitrator (preferably without lawyers present), and those arguments plus the arbitrator's binding decision would then be entered into the airman's record.
The FAA has placed the "ticketing" program on hold pending a scheduled July 21, 1998, meeting with industry groups. Let's hope they either fix the program or scrap it. Otherwise, decades of hard-fought efforts by Administrators Busey, Engen and Hinson to create a reasonable measure of trust between airmen and inspectors will be lost. Administrator Garvey would do well to remember that the FAA (like the IRS) depends almost entirely on voluntary compliance by airmen to achieve its objectives.
The FAA says it wants to hear your thoughts on the proposed "traffic ticket" enforcement program. They've set up a special email address for this purpose: email@example.com. Let's not disappoint them.