January 2016 Edition of the "Call the Tower - Pilot Deviations and FAA Enforcement Actions." Includes information about the FAA's new "Compliance Philosophy" which went into effect in October, 2015.

1. “Call the Tower…”
MARK J KOLBER ATTORNEY AT LAW
mjk@mkolberlaw.com
Pilot Deviations and FAA
Enforcement Actions
Midlife Flight, LLC
mark.kolber@midifeflight.com
Mark Kolber
Attorney, Commercial Pilot, CFI / CFII
Copyright 2008-2016 Mark J Kolber. All rights reserved.

2. Who Am I?
 Commercial, CFI-A / CFI-I
 Wings of Carolina Member
 Executive Flight Training
Instructor
 FAASTeam Representative
 Attorney licensed in North
Carolina, Colorado &
Massachusetts
 AOPA Legal Services Panel

3. Disclaimer
This presentation is for
general information only.
It is not legal advice and cannot replace a
personal consultation with a professional
when dealing with a specific situation.
This is not an official FAASTeam
presentation and does not reflect the views
of the FAA or any ASI.
Don’t say I didn’t warn you!

4. 10,000-foot View
 How it all begins
 The system
 Pilots Bill of Rights (August 3, 2012)
 The new “kinder and gentler” FAA
 Lowering violation risks
 Dealing with the FAA

5. How it all begins...
 “Possible pilot deviation. Suggest you
contact…”
 “I have a number for you…”
 Ramp checks
 Accident/incident investigations
 Complaints by citizens
 Complaints by other pilots and operators

6. Ramp Checks
 Not the big deal some make it out to be
 Based on statutory authority to inspect
pilots and aircraft
 May be based on observation or reports or
unsafe operation
 May be routine surveillance
 Not used that much – budget and
manpower

7. Ramp Checks
 Limited authority with published guidelines
//http:fsims.faa.gov, Vol 6, Chap 1, Sec 4
 ASI must show ID
 Pilot certificate, medical, photo ID
– Handing your certificate to an inspector is
NOT surrendering it!
 AR[R]OW documents

8. Ramp Checks
 Pilot and aircraft logs if required for
operation; otherwise if available
 Meeting operational requirements
– VOR checks
– Current charts, may ask even if not required
 May not board without knowledge and
consent
 Should not unnecessarily delay flights

9. Ramp Checks
 Be noncommittal
 Do not volunteer information not requested
 Do not argue
 You may ask the ASI questions
– To what do I owe the honor?
 Courtesy is expected on both sides
 Are there “rouge cops” out there?

10. “I Have a Number…”
 “Call the Tower”
 “Possible Pilot Deviation.
Suggest you contact…”
– “Brasher” warning
– In ATC Handbook
– May be required in certain
cases or no sanction for
violation

11. “I Have a Number…”
 Should I call?
 What should I say?
Unfortunately, it’s not that simple

12. “I Have a Number…”
 Saying nothing can be the right answer
 But it can also be the wrong answer!
 The FAA has a number of ways to handle
possible deviations
 And so do you…

13. Enforcement Process

14. FAA Enforcement Options
 [Civil Penalties]
 Certificate Revocation
 Certificate Suspension
 “709” Ride
 Warning Notice or Letter of
Correction
 Compliance Action
 No Action

15. Letter of Investigation
 Initiates process that may lead to no
action, administrative action or an
enforcement action
 Not used for a “Compliance Action”
 Nature of the violation
“Respond in 10 days or the file
will be processed without the
benefit of your comments”

16. Letter of Investigation
 Pilot’s Bill of Rights
 Entitlement to traffic data and how to get it
 Advises that response is not required
– Only respond if you are sure it will help!
– Get advice!
“Respond in 10 days or the file
will be processed without the
benefit of your comments”

17. No Action
 Can happen at any point
– After a talk with the controller
– After oral or written communications with an
Inspector
– After Letter of Investigation
– After Notice of Proposed Certificate Action
 Records expunged after 90 days

18. Compliance Action
 “some deviations arise from factors such
as flawed procedures, simple mistakes,
lack of understanding, or diminished skills.
*** deviations of this nature can most
effectively be corrected through root cause
analysis and training”
FAA Order 8000.373, June 26, 2015

19. Compliance Action
 “Kinder and gentler” FAA
 Brand New
– Announced June 2015
– Most implemented as of October 1, 2015
 New policy or confirmation of changing
practice?
 What does it mean?

20. Compliance Action
 Pre-enforcement “compliance action”
 Early decision-making
 Published guidelines
 No Letter of Investigation or Pilots Bill of
Rights Notification
 Does not rule out enforcement action
– refusal or inability to participate or comply
 No requirement to speak immediately
 Still time for advice

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

22. Administrative Actions
 Warning Notices and Letter of Correction
(FAR 13.11)
 “Administrative Action” not “Enforcement”
 Typically involves some sort of re-training
 Sometimes associated with special FAA
programs
– Expired Runway Incursion Information
Evaluation Program (RIIEP)
 Records expunged after 2 years

23. Warning Notice or Letter of
Correction (FAR 13.11)
 Warning Notice
– Describes the incident.
– States “may have been a violation.”
 Letter of Correction
– FAA decides there was a violation.
– Specifies corrective action (training).
– Pilot agrees or already took corrective action.
– If not completed, enforcement action likely.

24. 709 Reexamination
 …the Federal Aviation Administration may
…reexamine an airman… 49 U.S.C.
§ 44709(a)
 Must be “reasonable”
– But refusal will lead to an emergency order
 Limited to reason for request
 May request change of inspector or FSDO
 Get and log training

25. Suspension
 For a stated period.
– FAA Order 2150.3B. FAA Compliance and
Enforcement Program Sanction Guidance
Table.
 Expunction – until the pilot dies.
– Used to be 5 years.
– Colgan crash and Airline Safety and Federal
Aviation Administration Extension Act of 2010.
– Changes to PRIA.

26. Revocation
 Certificates and ratings gone.
 May reapply after a year.
 Start all over
 Typically for the most serious violations.
– Drugs and alcohol use
– Fraudulent logbook and flight record entries
– Repeated TFR violations
 Expunction – Never

27. A Kinder and Gentler FAA?
 Compliance action as outgrowth of
ongoing process
 Recent deviations before compliance
actions
 More flexibility for certain inadvertent, first
time TFR violations announced last year
– 1 mile incursion with immediate exit
– 2 minute improper squawk with no air traffic
complications.

28. A Kinder and Gentler FAA?
 Practical application of the compliance
action
– More use when flexible earlier
– First time deviations unless criminal
– Looking for reasons to not bring action
 May mean even more reasons to get
advice

29. Lowering Risk of Violations
 69% of pilot deviations come from General
Aviation – Us!
 Preflight Planning.
 Situational awareness.
 Taxi diagrams.
– Runway incursions remain a significant
deviation issue.

30. Lowering Risk of Violations
 Pay attention to altitude assignments
 Declare an emergency when you have a
problem
 Training
– Flight training
– Avionics and tablet training
– Wings seminars

31. Mitigating Consequences
 Aviation Safety Reporting System (NASA
Form.
 Consult before you talk
 Remedial Training – beat them to the
punch!
– Schedule session with your own CFI
immediately
– This may help and will not hurt

32. ASRS – NASA
 Safety program with benefits
 Evidence of a compliant attitude
 Mail or submit online within 10 days
 Report may not be used against you in
enforcement proceedings
– May use information from other sources

33. ASRS – NASA
 Anonymous.
– Don't lose it by identifying yourself
in narrative
 Exceptions to anonymity
– Criminal activity
– Accidents (NTSB Part 830 definitions)

34. ASRS – NASA
 Waives the penalty not the violation
 Does not waive the penalty if:
– Violation within prior 5 years.
– Violation was intentional or deliberate.
• May be subject of hearing
 Does not prevent less severe actions
– Compliance, administrative actions or 709 Ride

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

36. “Advise you contact...”
 Should I call?
 What should I say?
 Should I identify myself?
– Famous case or aviation myth?
– They have the tapes. They saw the
radar track
– IFR or filed VFR flight plan – the PIC
is already identified

37. “Advise you contact...”
 Be polite but non-committal
– “This is N1234X. I was asked by to
call you after I landed. Can you tell
me why?”
– “I’d rather not say anything about it
right now.”
– I’d like an opportunity to hear the
tapes before I say anything

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

39. Find a lawyer – Join a LSP
 Cheap protection.
 More likely to call attorney.
 Recurrent training for
AOPA Panel lawyers.
 AOPA members have
access to the list even if
not a subscriber.

40. Questions/Comments/Concerns?
You ever been in a cockpit before?
Feel free to contact me with
any questions.
mark.kolber@midlifeflight.com
mjk@mkolberlaw.com
Presentation available on SlideShare at
http://bit.ly/1PAd0ZL
PDF version via Dropbox at https://db.tt/v3JnomXu
Thank you for coming!