May 25, 1998 Ramp Check '98: The FAA Inspector as Traffic Cop

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by	Phillip J. Kolczynski

About the Author ... Phillip J. Kolczynski manages his own law firm in Irvine, California. He has a national practice, concentrating in aviation, product liability and business litigation in federal and state courts. Phil teaches evidence, product liability and aviation law at the Aviation Safety Program, School of Engineering, University Of Southern California. He chaired the 1990 ABA National Institute on Aviation Litigation in Washington, D.C., and has spoken nationally at numerous aviation litigation symposia. Prior to moving to California in 1983, he was a trial attorney in the Aviation Unit, U.S. Department of Justice, Washington, D.C., and the Litigation Division, Office of the Chief Counsel, Federal Aviation Administration, Washington, D.C. Phil graduated from Case Western Reserve School of Law, Cleveland, Ohio, in December, 1976, and attended college at Marquette University, Milwaukee, Wisconsin, in 1969 where he held a Navy ROTC Full Scholarship. Before entering law school, he was a Marine Corps Captain and F-4 Phantom Pilot. He is a Commercial Pilot with instrument and multiengine ratings. AviationLaw@AVweb.com AviationLawCorp.com

The FAA has issued Bulletin No. 98-1 (dated February 10, 1998) announcing a new enforcement program that will allow FSDO inspectors to issue "tickets" for flight violations. The FAA will use Form 2150-7 which they call an "Administrative Action" — I call it a "ticket." The inspector will decide on the spot whether the ticket is a Warning Notice or Letter of Correction and the airman will be required to sign acknowledging acceptance of the violation at the time it is issued. Unlike a traffic "ticket," you will not get to go to traffic court to prove you were innocent. The citation will be placed in an airman's file for two years and the license holder will have no right of appeal.

The Form 2150-7 is so new that the FAA is still working out the details for the program. The objective is to provide inspectors with an opportunity to increase surveillance while at the same time reducing the amount of paperwork they have to do in order to take administrative enforcement actions. Before getting into the details of how this programs works on some of its problems, a brief review of the existing enforcement options available to the FAA should be helpful.

Two Types of FAA Enforcement Actions

Under the Federal Aviation Act, the FAA has the authority to bring legal or administrative enforcement against the holder of any license or certificate issued by the FAA. The FAA brings legal enforcement action upon recommendation of its inspectors and after review by FAA attorneys. A formal investigation is conducted and items of proof are collected justifying the sanction sought. Legal Enforcement Actions result in suspension, revocation, or a monetary civil penalty. Suspensions and revocations are usually applied to airmen whereas the FAA typically imposes monetary civil penalties on entities.

In a legal enforcement action, the airman has extensive appellate rights. If the order of the Administrator suspending or revoking a license is affirmed, the result will be recorded in the airman's records. Suspensions are expunged after five years, while revocations remain in the file without expungement.

Administrative Enforcement Actions are generally less serious than Legal Enforcement Actions. The traditional Administrative Enforcement Action involves a Warning Notice or Letter of Correction which will remain on the airman's record for two years. With the traditional Administrative Enforcement Action an investigation is conducted and "items of proof" are collected in a file to justify the administrative actions. However, with Administrative Enforcement Actions the certificate holder has no right of appeal. The FAA utilize an administrative enforcement action instead of legal enforcement where there is :

• No prior record of flight violations;
• No evidence that the airman lacks the qualifications necessary to hold the certificate;
• No significant unsafe conduct;
• No evidence of deliberate, grossly negligent or criminal behavior acts; and
• Certificate Holder reveals a proper "compliance attitude."

The Typical Administrative Enforcement Action

In order to understand the problems with the FAA's new "ticketing" procedure let's look at how the FAA processes administrative enforcement actions. Typically, the FAA learns of flight violations by three methods:

• The FSDO's normal surveillance program which includes ramp inspections;
• Complaints from members of the public; or
• Notification by air traffic controllers who are required to report any flight violation they witness while on the job.

FSDO inspectors investigate flight violations while special agents of the FAA security offices investigate security breaches. The investigation results in the creation of a file which is then incorporated into an Enforcement Investigative Report (EIR) on FAA Form 2150.5. This EIR usually contains a listing of "items of proof" and a written statement of the "facts" upon which the administrative enforcement action was based. If a pilot questions the Administrative Action he or she can obtain the EIR through the Freedom of Information Act.

Upon completion of the enforcement investigative report (EIR) the FAA, without assistance from the regional counsel's office, can issue a "Warning Notice" or a "Letter of Correction." With a "Warning Notice" the airman may be allowed to write a letter of explanation or mitigation in the attempt to persuade the FAA to withdraw the Warning from his record. Alternatively, where some form of corrective action is needed, the FAA will issue a "Letter of Correction". The Letter of Correction will address the actions which constituted a flight violation or aircraft condition which renders the aircraft unairworthy. Usually, the letter will prescribe remedial efforts that must be taken to correct the problem.

In this context, the FAA may offer remedial training to an airman. Remedial training is only offered if:

• the violation did not occur while the airman was conducting an operation for compensation or hire;
• there is no underlying competency problem;
• the airman has a clean record;
• the violation itself was not a result of some deliberant of grossly negligent action;   and
• the airman reveals a "compliance attitude."

If the airman refuses to cooperate with the Letter of Correction the matter can be turned over to the FAA Regional Counsel's office for legal enforcement proceedings.

Problems with the New "Ticketing" Procedure

FAA inspectors are supposed to use this procedure when the violation does not require extensive investigation. The FAA's Enforcement Bulletin 98-1 allows the inspector to issue a FAA form 2150-7 "ticket" (shown at right) when the inspector personally observes an alleged violation or "when evidence of an alleged violation is readily available." What is readily available evidence? Does this mean that if the inspector does not observe the violation he may issue a "ticket" if he receives information suggesting a violation from someone such as a mechanic, air traffic controller, member of the general public, etc. Does this mean that tickets will be issued based upon hearsay? Enforcement Compliance Bulletin 98-1 appears to allow such a procedure.

It appears that an inspector may, by providing bare bones detail with regard to the nature of the violation involved, cause a citation to be placed on an airman's record for two years. The airman will in effect be without recourse to challenge the validity of the citation. Remember, under the traditional and still-existing procedure for Administrative Enforcement Actions, the FSDO inspector must prepare an Enforcement Investigative Report (EIR) which lists the "items of proof" relied on and states all the "facts" in support of the violation. When there is an EIR to review, an airman can show why there is insufficient evidence of a violation. "Items of Proof" and "Facts" in an EIR can be used to show prospective employers that the violation was not serious. With the new ticketing procedure there will apparently be no background file of evidence to examine in order to explain the citation. Without an investigation, inspectors are more likely to make mistakes which would be normally be corrected by a diligent inspector during the completion of the enforcement investigative report.

Prior to issuing a Form 2150-7 "ticket" the violator shows a "compliance attitude." Thus, the FAA expects you to acknowledge the violation, act repentant, and not argue with the inspector. If you think you are right and refuse to sign Form 2150-7, will the inspector treat your refusal to sign as evidence of a "non-compliant attitude"?

If the airman refuses to accept the Form 2150-7 "ticket" and does not sign acknowledging receipt, the inspector may recommend that matter be reviewed by Regional Counsel's office for a possible legal enforcement action. Remember legal enforcement actions result in suspension, revocation or civil penalties.

Even if you go along with the "ticket" for fear of escalating a confrontation with the FAA, the inspector can still go back and search your records for other violations. If he finds other violations, the inspector can withdraw the Form 2150-7 and kick the matter upstairs for legal enforcement proceedings. Remember, if the "ticket" takes the form of a Letter of Correction the inspector will have an obligation to follow up and determine within the violator completed the prescribed corrective action in a manner acceptable to the FAA. If not, the inspector can refer the matter for legal enforcement proceedings.

Finally, the FAA's policy is to issue administrative citations instead of legal enforcement actions where there is no previous history of flight violations. If a pilot receives a Form 2150-7 "ticket," he now has a history of an administrative enforcement action. Thus, a subsequent violation may lead to legal enforcement proceedings creating serious damage to the airman's career opportunities.

A Form 2150-7 "Ticket" May Blemish Your Record

Under the Pilot's Records Improvement Act of 1996, an airline must obtain a pilot applicant's FAA license file, previous employment records for five years and National Driver Registry citations before hiring the pilot. "Airline" is interpreted broadly to include air freight, air taxi and commuter operators.

Although the Act only requires that the airlines focus on legal enforcement actions, many carriers may obtain a complete FAA file on the pilot, which will reveal any administrative enforcement actions such as a Form 2150-7 "ticket." It is hard to predict whether an airline employer will adopt a tolerant attitude toward administrative enforcement actions and whether a Form 2150-7 "ticket" may place an applicant at a competitive disadvantage.

Similarly, some insurers may consider such FAA administrative citations as a factor to be considered when setting premiums.

Ramp Checks: Recognize When You Are a Suspect

Under the Agency's surveillance program, an inspector can approach you and interrogate you about your flying or the airworthiness of your aircraft even where there is no specific complaint. He or she has the power to ask relevant questions or demand to see your licenses and logbooks. Be aware that inspectors do not always show their identification, they may simply strike up a conversation with you about your airplane or your flying.

The FAA does not have to advise you of your legal rights before they take a statement from you. You do have a right to remain silent and you do have a right to an attorney. However, the inspector doesn't have to advise you of these rights (the Miranda warning in a criminal case). Moreover, anything that you say may be used against you by the FAA as an admission.

That's right, criminal suspects have more rights and protections than you do! In fact, the Courts have held that FAA enforcement proceedings are civil in nature and do not constitute criminal prosecution.

What Can You Do to Protect Yourself?

Understand that the license or certificate that you hold, which was issued by the FAA, grants you certain privileges which can be taken away. You do not have a fundamental constitutional right to pilot an aircraft. The FAA has been granted authority by Congress to regulate the aviation industry. The FAA can revoke your license if you violate their rules. The National Transportation Safety Board has recognized that the FAA's "pervasive regulatory authority," and that the mobility of aircraft justify searches without a warrant, whereas a warrant would be required of a police officer or other law enforcement official. Administrator V. Brodnax, Order EA 1467, Docket SE 4750 (NTSB 1980).

The first thing you need to do to protect yourself is to be suspicious if a person you don't know starts asking you about your previous flight activity or about the condition of the aircraft. It may be none of their business unless they can identify themselves as a law enforcement officer or FAA official. You should ask the interrogator to present identification before you respond.

Secondly, if you think you are the subject of a FAA enforcement investigation, you should attempt to defer the interview until you can mentally reconstruct the issues and events under scrutiny. I would normally recommend that you consult with an aviation lawyer, but FAA inspectors probably won't allow you to contact an attorney during a ramp inspection.

Under the new compliance and enforcement program, the inspector may simply present you with a FAA Form 2150-7 "ticket" and ask you sign it. Hopefully, he will let you tell your side of the story before demanding your signature on the form. The FAA inspector may suggest that any refusal to answer questions or sign the form may reveal a lack of "compliant attitude." Thus, you may feel compelled to cooperate with the inspector in the belief that he will "let you off" with merely a Form 2150-7 "ticket."

It's impossible to offer any blanket recommendation as to whether or not you should sign the Form 2150-7 in such a situation. Each case is different and the airman must decide if he or she is in real trouble and needs a lawyer before cooperating with the FAA, or whether full cooperation on the spot is called for to avoid further trouble. The implication of the new procedure is that if you refuse to sign Form 2150-7, or insist on your right to consult an attorney, that the inspector will conduct a formal investigation and may recommend a legal enforcement action.

Certainly, you should ask questions before saying anything to the inspector. Such questions should include:

• why the FAA inspector suspects you,
• what information the inspector has which leads to such suspicion, and
• which Federal Aviation Regulations he suspects you violating.

Misunderstandings can occur and there may be legitimate explanations for infractions which do not require the assistance of a lawyer.

Try asking for an opportunity to review the FAR in question with the inspector to see if it is open to interpretation in your favor. Suggest locating a likely witness to clarify the situation. Will ATC tapes support your position? Will the inspector take time to review them? If the inspector questions the airworthiness of your aircraft, ask if the inspector will agree to invite an A&P mechanic who works at the airport to examine the component at issue.

One thing is clear: do not start an argument with an FAA inspector. Furthermore, do not resist the commands of a properly licensed FAA or law enforcement officer. While it is important to know your rights, it is important also to understand the power that the agency has over you and your aircraft.

What Can an FAA Inspector Demand to See?

Upon request, a properly credentialed FAA official may demand to see a pilot's license and medical certificate and a copy of the pilot's logbook (if he has it with him). An inspector cannot normally gain entry to search an aircraft operated under FAR Part 91 without authorization from the owner or operator, but he may examine the aircraft from the outside and look through unshaded windows. Exceptions may exist where there is probable cause that a crime has been committed or in "border crossing" situations.

Commercial operators under part 135 and part 121 must provide even greater on-the-spot cooperation. An FAA inspector is authorized to examine their operations manual and operations specifications at any time, and may gain entry to a commercial aircraft for purposes of an inspection upon request. Further, with commercial operations, the minimum equipment list and load manifest, shipping papers and cargo may be inspected.

In a fairly recent legal decision of The National Transportation Safety Board, a commercial operator was determined to have a responsibility to cooperate with the FAA by turning on switches to assist the FAA officials with their inspections. A commercial operator's pilot may even have to conduct a flight with the inspectors aboard so that they can conduct an en route inspection. Administrator v. Rogers, Order EA 4428, Docket SE 13914 (NTSB 1996). Recognize that if the FAA has reason to suspect a security breach or safety hazard, that a subpoena may be obtained to authorize a search of persons, airplanes and business facility as long as there is an adequate showing of "probable cause." The usual problem for an honest aviator is not that the FAA will uncover incriminating evidence during a physical inspection, but the risk that an aviator will make verbal admissions during the inspection which will lead to either an administrative or legal enforcement proceeding.

In conclusion, since most airmen can't have a lawyer "on tap" to assist them in such situations, it behooves every pilot to know his rights and responsibilities, to respect the FAA's power, and to respond prudently to anyone who inquires about his previous flying or the airworthiness of his airplane.

NOTE: The issues and recommendations discussed in this article are based on hypothetical situations and do not constitute legal advice. My objective is to alert you to some common issues so that you can avoid or minimize legal trouble. Anyone with an aviation law problem should be guided by the advice of his or her lawyer, under applicable federal and state laws, after a full and confidential disclosure of all relevant facts.