AVIATION LAW
Just as the state considers driving an automobile a privilege, so too does the FAA consider it a privilege when it comes to operating, controlling, or working in many aviation fields. If a person or entity holds an FAA certificate, the FAA acting in its capacity as a policing agency, can suspend or even revoke the person’s or entity’s privilege under certain circumstances. Generally, this is called an Enforcement Action and normally follows one of two courses, non-emergency certificate action or emergency revocation. Either situation requires prompt and competent legal representation.
Initiation of Non-Emergency FAA Enforcement Action
Most often, but not always, the party involved (airman, mechanic, dispatcher, flight controller, etc.) is aware that an incident has occurred which may be questioned and investigated by the FAA. Generally, in the case of a non-emergency event, within a few weeks following the incident the party receives a Letter of Investigation in the mail and is asked to comment. The Letter of Investigation may contain an offer of remedial training, sometimes referred to as a "709 ride." Anxious to avoid further trouble with the FAA and eager to explain the circumstances, frequently a letter recipient responds without legal counsel, only to receive a second letter entitled Notice of Proposed Certificate Action.
Notice of Proposed Certificate Action
In this letter the FAA will offer a series of options including an opportunity for an Informal Conference. By now, however, the FAA has already conducted an enforcement investigation and prepared an Enforcement Investigation Report (EIR). The FAA will be represented at the "informal" conference by an FAA Prosecutor. Additionally FSDO Investigator or Flight Standards Supervisor from the regional headquarters will also be in attendance. Attending the Informal Conference without assistance of counsel is unwise. If the certificate holder is unable to convince the FAA to dismiss the charges at the Informal Conference, the FAA will issue a Order of Suspension, Revocation or Civil Penalty.
Order of Suspension, Revocation or Civil Penalty
At this point the certificate holder has limited time to appeal to the National Transportation and Safety Board (NTSB) for an evidentiary hearing before an Administrative Law Judge (ALJ). Prior to the hearing, the FAA issues a complaint that contains the same allegations as the Notice of Proposed Certificate Action. The parties(the accused certificate holder and the FAA) are given the opportunity to conduct traditional litigation discovery before the date of the hearing. The ALJ will issue a ruling at the end of the hearing. A dissatisfied party may appeal to the full NTSB. Appeal from ALJ or full NTSB are made the United States Courts of Appeals.
Emergency Revocation Order
As the name implies these are situations where the FAA believes emergency action is required to protect public aviation safety. The certificate holder is required to immediately surrender his or her certificate and the appellate deadlines are significantly shorter.
NASA aviation Safety Reporting System (NASA Report)
Penalties for Inadvertent and unintentional violations can be avoided by the timely filing(10 days from the date of the incident) of a NASA Report. The FAA can still bring an enforcement action against the certificate holder, and if successful, a record of this violation will be made with the FAA, however, the certificate holder may avoid the penalties. The NASA Form may be downloaded directly from the Aviation Safety Reporting System web site: http://olias.arc.nasa.gov/asrs/Forms.html
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