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General Aviation Law

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Aviation and the Law
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Aviation Lawyer's Manual: Representing the Pilot in FAA Enforcement Actions
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Fantasy Fighters
Still Flying
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Professor A.K. Cydent
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SW Aviator Magazine
3909 Central NE
Albuquerque, NM 87108
Phone: 505.256.7031
Fax: 505.256.3172

"Hi, I'm from the FAA, Can We Talk?"
by Dwayne Keating

A Legal Perspective

Your pilot's license—even your ATP license that you use to fly big jets for thousands of dollars a year—is just that, a license. It's not a right, and you aren't guaranteed by any law or constitutional provision the right to have it. If the FAA wants to take it away, they must follow certain procedures, but it is not anything like a criminal matter. They can revoke it based upon a showing that you are not fit to keep it or have violated the law, including the FARs. And the rules of procedure that most attorneys are familiar with may not apply! With this in mind, let's look at one particular issue—the ramp check.

So, exactly what is the FAA's power when it comes to the ramp check—or any other check for that matter? Well, much of it depends on what part of the Federal Aviation Regulations (FARs) you are operating under. If you are operating under Part 135, you might be surprised to know that they can ask you to do almost anything.

Let's look at a case that received national attention a couple of years ago. John Yodice, Legal Counsel for AOPA, wrote an article on it for his column in the AOPA magazine. It points out the all-encompassing power of the FAA inspector should he find something he either doesn't like or that indicates some carelessness in the pilot's preparation for the flight.

The pilot of a Lear made a short hop from his starting point to Smyrna, Tennessee. The FBO at Smyrna had the lowest fuel prices in the area by almost a $1.00 a gallon, so the pilot decided to stop. Unfortunately for him, there were two FAA inspectors at the airport when he arrived.
The pilot claims that the inspectors never identified themselves and were there specifically to ramp check him because of problems they were having with the company he was working for. The inspectors, on the other hand, say they were there to inspect a flight school. Regardless of whose story you believe, neither party denies that the inspectors conducted a ramp check on the hapless pilot.

The pilot had asked the FBO's line crew to top off the tip tanks. While this was going on, the inspectors asked to see the load manifest—the weight and balance determination—for the aircraft. They found some errors. Specifically, the weight for the crew was too light by about 220 pounds, and the load of the cargo was also incorrect by about the same amount.

Apparently, during the inspection, things got a little heated, and the pilot refused to turn on the master switch of the airplane for the inspectors to see how much fuel was in the main fuel tanks. At that point, one of the inspectors told the pilot he was going to do an en route check. The pilot basically refused to cooperate for several reasons—not the least of which was that he would have to burn off fuel to take the inspector with him. He walked off, leaving the airplane, the co-pilot, and the inspectors behind.

Under Section 135.73 (which governs inspections of 135 operations) “Each certificate holder and each person employed by the certificate holder, shall allow the Administrator, at any time or place, to make inspections or test (including en route inspections) to determine the holder's compliance with the FAA Act of 1958...”

Section 135.75 goes on to say “(a) Whenever, in performing the duties of conducting an inspection, an FAA inspector presents an Aviation Safety Inspector credential, FAA Form 110A, to the pilot-in-command of an aircraft operated by the certificate holder, the inspector must be given free and uninterrupted access to the pilot compartment of that aircraft...”

Seems pretty straightforward doesn't it? Notice that neither of the these sections states that the pilot must cooperate with the inspector. The pilot raised exactly that point in his appeal to the NTSB about turning on the master switch. They didn't buy it. The NTSB said this:

“The request was a reasonable and simple one. Inspector Williams testified that the FAA's general policy is to refrain from entering an aircraft or manipulating its controls without the operator' or owner's permission. [Pilot] replies that he is not required by the regulation to assist the FAA in its inspection. At the same time, his refusal to comply with a simple unburdensome request could fairly be construed as a withholding of authority to accomplish a task that was necessary to complete the inspection.... By refusing, the [Pilot] did not ‘allow’ the inspection to be completed and denied the inspectors free and uninterrupted access to the pilot compartment.” (Administrator v. Rogers, Docket SE-13914.)

I'm sure not convinced that refusing to do something is the same as “not allowing the inspectors access” to the pilot compartment; they can go in all they want. It seems to me that the NTSB expanded the rules to require the pilot to assist in the inspection. But, again, the matter is irrelevant. Ultimately the NTSB suspended the pilot's license for nine months.

OK, you're saying, that's fine. That guy should have known he had to cooperate with the inspector, and why didn't he know what he and the co-pilot weighed? It's his own fault. On top of that, I only fly my airplane under Part 91—not for hire—and don't have to comply with all those rules and regulations that the Part 135 and 121 operators do. So what can they do to me? Well...plenty!

In preparing to write this article I talked with a couple of FAA inspectors, ex-inspectors and FAA attorneys, as well as some attorneys that defend actions against airman by the FAA. In every case, there was almost unanimous agreement that, by-and-large, FAA inspectors are really trying to do their job—without “hassling you.”

Their job, by the way, as spelled out in the FAA's own Compliance and Enforcement Programs Handbook, is “to promote aviation safety and security in civil aeronautics... The FAA's compliance and enforcement program is designed to promote compliance...” That same handbook goes on to define fairness:

“To be effective, the agency's compliance and enforcement program must be fair and reasonable in fact, and should be perceived as fair by those subject to regulation.... It also requires good faith efforts to understand the alleged violator's position and take it into account, as well as appraise the alleged violator of the agency's position in a timely manner.”

With all this in mind, what can inspectors ask you to do if you are just flying your airplane on a weekend to a local fly-in/open house? First, they would probably need a reason to even want to do a ramp check, but let's assume its been a slow afternoon and they’re getting tired of watching the birds fly.

First, since the FAA is charged with ensuring flight safety—whether it's you in your home-built or you and a couple of hundred friends in a Big Airlines 777—they have a “right to inspect.” What can they inspect? Basically anything they want. There is some issue about whether they need a search warrant to crawl around inside your airplane, especially if there is the possibility they might find something that would cause them to take criminal action, but generally they are entitled to look things over.

What will they inspect? Generally, they'll ask for those items that your instructor did when you first started flying: Airworthiness Certificate, Registration, Operators Manual and Weight and Balance information. And they are entitled to see them. In addition, they may ask to see your license and medical, especially if they just saw you taxi in! Do you show them to the inspector? Yes. There seems to be a misunderstanding among some pilots that, if you give the inspector you license and medical, they can keep them if they find something wrong or they just don't like you. Not true! The only time the FAA may forcibly keep your license and/or medical is after a hearing at which it is determined that you must turn them over to them. No one with the FAA may keep your certificate during a ramp check, period! The inspector is also allowed to look at your aircraft; after all, they're supposed to be there to help insure safety! However, I would suggest you politely—and the emphasis is on politely—refuse until you have the chance to talk with someone else.

What if the inspector finds something wrong: Your medical is out of date, the flap is falling off on the right side of your airplane, or you've had a couple a beers and are going to buzz your house? Can they take the keys away from you, lock the door, chain down your airplane, or arrest you? No! If they do, they might leave themselves, as well as the FAA itself, open to civil liability. Should they take such action? In the above cases, probably yes. But I chose extreme examples to show that they do not have police power. They can, and probably would, call the police in a couple of the above scenarios, but the inspector alone can't stop you. (Now I'm not encouraging anyone to fly in an unairworthy airplane or after having even one beer. Not only is it dangerous, it's stupid!)

How should you handle it? There are at least two schools of thought out there. One is to say and do the minimum and not offer anything. The other says cooperate as much as is reasonable. My position leans toward the latter, with some common sense thrown in. Cooperate to a point. If the inspector hasn't seen that there aren't any tires on the airplane you were about to get into and fly, don't point it out! On the other hand don't start yelling and screaming, saying the FAA has no right to “hassle” you and that you’re going to call your attorney if he keeps it up. Surprise, you'll probably get that opportunity!

So what do you do? Whenever an inspector finds something on a ramp check, much is going to depend on two things: your attitude and the severity of the problem. Obviously, the severity of the problem trumps your attitude if it's bad enough, but your attitude can go a long way to mitigate it.

In fact, when faced with a violation of the FARs, inspectors have several options. They can take what's called “administrative action”—a Warning Notice or Letter of Correction—or the new Streamlined Administrative Action Process, what was the “traffic ticket” last year (and which I may discuss in a future article). This action is taken when the FAA does not believe legal enforcement is warranted. They can require you to take a reexamination; they can take certificate action, as they did with the pilot of the Lear in the beginning; they can seek civil penalties, basically a fine; or they can pursue criminal actions, as they are doing with the company that shipped the oxygen generators in the US Air crash in Florida.

In all but the last one, your attitude is important, just as it would be with a policeman. It also puts you in a difficult position. One of the options open to the inspector under administrative actions is remedial training. Assuming that you can't prove you did nothing wrong, or the inspector actually saw you do something wrong, or there was “tape at ten” showing your smiling face buzzing downtown Bernalillo, then remedial training requires that you have a “constructive attitude”—and that's up to the inspector to determine! If the inspectors don't think your attitude is correct, you may not even be given this option.

You might feel it would be appropriate to talk to someone else, before you volunteer any more information. That's okay, too; just do it in a positive, non-threatening manner. Remember the FAA Inspector is entitled to see your FAA license, current medical, documents required for your aircraft and your log book if you have them with you. But, most importantly, do not volunteer information! Most inspectors are human. If you get confrontational they will too and I can tell you who wins that one almost every time: the FAA.

What about an inspector that is determined to show his power to you and the world? They are out there, even people inside the FAA admit that, just as they are on the freeways and probably where you work. My best advice is to be nice and resist the temptation to point out that they are in a bad mood, you did nothing wrong, and that they should put their clipboard in some dark moist place. That would most assuredly get you a letter from them at the very least asking for further information, and—assuming that the inspector can sell it to his or her boss—a letter from the Regional FAA Attorney's office telling you they would like to take your license away for a couple of days.

On the other hand you do not have to put up with verbal abuse any more than they do. Make notes, take pictures if you can and get the names of any witnesses—make sure there are some if at all possible, it may not make a lot of difference, but it won't hurt. Then see someone who practices aviation enforcement law before doing anything. It's not the same as criminal law or general civil law. It's a whole 'nother ball game!

Duane Keating is an attorney in Albuquerque, New Mexico, practicing law in the areas of FAA and NTSB Certificate and Medical enforcement Actions, Elder Law, Medicare/Medicaid and Estate Planning, Business and Real Estate Law. He has been in practice over 20 years, is a member of the NTSB Bar Association, the Lawyer Pilot's Bar Association and is an AOPA Panel Attorney. He holds a Commercial License with ASEL, AMEL and Instrument ratings and is a CFI—Instrument and Multi-Engine. He can be reached at 505-332-4657 and by writing at 1000 Eubank, NE, Suite B, Albuquerque, NM 87112.

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The material in this publication is for advisory information only and should not be relied upon for navigation, maintenance or flight techniques. SW Regional Publishing, Inc. and the staff neither assume any responsibilty for the accuracy of this publication's content nor any liability arising out of it. Fly safe.