Call the Tower - March 2016

“Call the Tower…”

MARK J KOLBER ATTORNEY AT [email protected]

Pilot Deviations and FAA Enforcement Actions

Midlife Flight, [email protected]

Triangle North Executive Airport March 5, 2016

Copyright 2008-2016 Mark J Kolber. All rights reserved.

Who Am I? Commercial Pilot Certificate CFI-A / CFI-I FAASTeam Representative Attorney licensed in North

Carolina, Colorado & Massachusetts

AOPA Legal Services Plan panel

DisclaimerGeneral information only.Not legal adviceCannot replace personal

consultation with a professional for a specific situation

Not an official FAASTeam presentationDoes not reflect the views of the FAA

Don’t say I didn’t warn you!

High Altitude OverviewHow it all beginsThe systemPilots Bill of Rights (August 2012)The new “kinder and gentler” FAALowering violation risksTakeaways in dealing with the FAA

How it all begins...“Possible pilot deviation. Suggest you

contact…”“I have a number for you…”Ramp checksAccident/incident investigationsComplaints by citizensComplaints by other pilots and operators

Ramp ChecksNot the big deal some make it out to beBased on statutory authority to inspect

pilots and aircraftMay be based on observation or reports or

unsafe operationMay be routine surveillanceNot used that much – budget and

manpower

Ramp ChecksLimited authority with published guidelines

//http:fsims.faa.gov, Vol 6, Chap 1, Sec 4ASI must show IDPilot certificate, medical, photo ID

Handing your certificate to an inspector is NOT surrendering it!

AR[R]OW documents

Ramp ChecksPilot and aircraft logs if required for

operation; otherwise if availableMeeting operational requirements

VOR checks Current charts, may ask even if not required

May not board without knowledge and consent

Should not unnecessarily delay flights

Ramp ChecksBe noncommittalDo not volunteer information

not requestedDo not argueYou may ask the ASI questions

To what do I owe the honor?Courtesy is expected on both sidesAre there “rouge cops” out there?

“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

“I Have a Number…”Should I call?What should I say?

Unfortunately, it’s not that simple

“I Have a Number…”You are not required to call!Saying nothing can be the right answerBut it can also be

the wrong answer!The FAA has a

number of ways to handle possible deviations

And so do you…

Enforcement Process

FAA Enforcement Options [Civil Penalties] Certificate Revocation Certificate Suspension “709” Ride Warning Notice or Letter of

Correction Compliance Action No Action

Oral Inquiry“Might” only be a question or discussion

Tower controllers don’t really want more paperwork

May be all an ASI needs to finish off non-event paperwork

Could initiate a process that may lead to a compliance action, administrative action or an enforcement action

Relax and think before you talk

Letter of Investigation

Pilot’s Bill of RightsEntitlement to traffic data and how to get itAdvises 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”

No ActionCan 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

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

Compliance Action“Kinder and gentler” FAABrand New

Announced June 2015 Most implemented as of October 1, 2015

New policy or confirmation of changing practice?

What does it mean?

Compliance ActionPre-enforcement “compliance action”Early decision-makingPublished guidelinesNo Letter of Investigation or Pilots Bill of Rights

NotificationDoes not rule out enforcement action

refusal or inability to participate or complyNo requirement to speak immediatelyStill time for advice

Compliance Action

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

Administrative Actions

Warning Notices and Letter of Correction (FAR 13.11)

“Administrative Action” not “Enforcement”Typically involves some sort of re-trainingSometimes associated with special FAA

programs Expired Runway Incursion Information Evaluation

Program (RIIEP)Records expunged after 2 years

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.

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 requestMay request change of inspector or FSDOGet and log training

SuspensionFor 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.

RevocationCertificates and ratings goneMay reapply after a year, starting overTypically for the most serious violations.

Drugs and alcohol – mandatory for some federal offenses other than simple possession

Fraudulent logbook and flight record entries Repeated TFR violations

Expunction – Never

A Kinder and Gentler FAA?Compliance action an ongoing process?Recent deviation examplesTFR/SFRA violations

Post 9-11 mandatory certificate action June 2014 – mandatory suspension but

flexibility for certain inadvertent, brief first time violations

February 2016 – withdrawal of 2014 policy in favor of compliance action analysis

A Kinder and Gentler FAA?Compliance philosophy application

More flexibility earlier in the process First time deviations unless criminal Looking for reasons to not bring action

May mean even more reasons to get advice

Lowering Risk of Violations69% of pilot deviations come from General

Aviation – Us!Preflight Planning.Situational awareness.Taxi diagrams.

Runway incursions remain a significant deviation issue.

Lowering Risk of ViolationsPay attention to altitude assignmentsDeclare an emergency when you have a

problemTraining

Flight training Avionics and tablet training Wings seminars

Mitigating ConsequencesAviation Safety Reporting System (NASA

Form.Consult before you talkRemedial Training – beat them to the

punch! Schedule session with your own CFI

immediately This may help and will not hurt

ASRS – NASASafety program with benefitsEvidence of a compliant attitudeMail or submit online within 10 daysReport may not be used against you in

enforcement proceedings May use information from other sources

ASRS – NASAAnonymous.

Don't lose it by identifying yourselfin narrative

Exceptions to anonymity Criminal activity Accidents (NTSB Part 830 definitions)

ASRS – NASAWaives the penalty not the violationDoes not waive the penalty if:

Violation within prior 5 years. Violation was intentional or deliberate.

• May be subject of hearingDoes not prevent less severe actions

Compliance, administrative actions or 709 Ride

VOID

“Advise you contact...”Aviate – Navigate - CommunicateFly the airplane!Complete the flight Park/Tie down

STOP!RELAX!THINK!

“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 identifiedGet advice first?

“Advise you contact...”You are not required to call but if

you do… Think before you call Polite but non-committal

• “This is N1234X. I was asked by to call you after I landed”

Listen more; talk less Avoid admissions Know when to shut up!

FSDO Contact

Get advice early Don’t threaten to send your

lawyer Legal advice supports you

through the process The earlier the better

FSDO ContactDo not ignore

Oral – “get back to you later” Written – plenty of time to respond

Do not schmooze“Compliant attitude”Listen more; talk less

Find a lawyer – Join a LSPCheap protection.More likely to call attorney.Recurrent training for AOPA Panel

lawyers.AOPA members have access to the list

even if not a subscriber.

Questions/Comments/Concerns?

You ever been in a cockpit before?

Feel free to contact me with

any questions.

[email protected]

[email protected]

Presentation available on SlideShare at http://bit.ly/1QpSSHc

PDF version via Dropbox at https://db.tt/yQmZyzJ6Thank you for coming!

Call the Tower - March 2016

Education

Transcript of Call the Tower - March 2016