VOLUME 14 COMPLIANCE AND ENFORCEMENT
CHAPTER 2 INVESTIGATION AND Enforcement-RELATED TASKS
Section 2 Preparation of Federal Aviation Administration Form 2150-5, Enforcement Investigative Report
14-2-2-1 GENERAL. In keeping with the procedural format of this
order, the inspector should consider the following information supplementary
to the information found in the current edition of Federal Aviation Administration
FAA Compliance and Enforcement Program, for filling out
FAA Form 2150-5, Enforcement Investigative Report, and completing an Enforcement
Investigative Report (EIR).
14-2-2-3 EIR RESPONSIBILITIES.
A. Inspector Responsibilities.
1) When the inspector finds or becomes aware of noncompliance
with Title 14 of the Code of Federal Regulations (14 CFR), per Volume 14, Chapter
1, the inspector must investigate, document, and determine the best course of
action that will bring the individual or entity into full compliance.
2) In accordance with the process in
Volume 14, Chapter 1, Section 2,
when the inspector finds that enforcement
action is appropriate or required, he or she must document the enforcement action
per the policies in Orders 8900.1 and
B. Discharging Enforcement Responsibilities. Inspectors must
remember some very important issues when carrying out enforcement responsibilities.
1) Inspectors can and should encourage system improvements through
the use of best practices and the highest possible standards. However, when
it comes to enforcement, the inspector can only require compliance with
statutes (Title 49 of the United States Code (49 U.S.C.)) and regulations (14 CFR).
a) Regulations are sometimes permissive, sometimes restrictive. Restrictive
regulations are enforceable; permissive regulations are not. If the regulation
does not specifically say a person cannot, then a person can.
b) It is necessary to review the regulation being cited, determining whether
or not the regulation is enforceable. The FAA may only take legal enforcement
action for violation of an enforceable regulation. (See subparagraph 14-2-2-5C)
below for more information.)
2) When investigating and drafting the report, inspectors must:
a) Focus on fact-finding needed to determine compliance and to find both
mitigating and aggravating circumstances.
b) Be objective and document all relevant information. All relevant information,
whether it proves or disproves the apparent violation, must be included in the
c) Consider the need for regional personnel to determine the final sanction.
The inspector should include information that supports his or her recommendation
on type of sanction and information that can be used by regional personnel to
make a sound decision for the sanction amount.
d) Include the inspector’s feelings, opinions, and conjecture in the analysis,
clearly separating them from the facts.
e) Take a positive, objective approach during the investigation and preparation
of the EIR. Consultation with other inspectors or supervisor can be very effective
in validating that the information is presented in an impartial way.
f) Avoid emotional reporting. Remain detached and do not become emotionally
involved in the outcome of the case. The inspector should always reread the
draft report to see if it reflects a true and accurate picture of the facts
and circumstances specific to the event under investigation.
C. Unit Supervisor and Reviewing Principal Inspector (PI) Responsibilities.
Immediate supervisors are responsible for:
1) Ensuring that inspectors assigned to cases are fully qualified
to investigate and report on the related compliance issues.
2) Tracking investigations to ensure timely reporting and progression.
3) Assisting inspectors during the investigation and reporting
process by giving advice and guidance to ensure quality reporting.
4) Validating that inspectors have met their responsibilities
as listed above.
5) Carefully and thoroughly reviewing each EIR to be sure it
is prepared in accordance with national guidelines. The review must include
checking the reference to and analysis of each rule and statute cited on FAA
Form 2150‑5. This is absolutely essential to ensure that there is evidence in
the file to support all applicable elements of each citation and to avoid wasting
agency resources by sending up deficient cases before they are complete.
D. Investigating Office Manager Responsibilities. Office managers
have overall responsibility for effectiveness and propriety of the compliance
and enforcement program within their jurisdiction.
1) Office managers are responsible for the quality and timeliness
of each investigation and its corresponding report.
2) The office manager’s signature is the only one required on
the report. The manager assumes full responsibility for the report when signing it.
E. Regional Flight Standards Division (RFSD) Responsibilities. The RFSD
is responsible for reviewing all EIRs to determine their adequacy and completeness.
The division may:
1) Accept the case as is and forward legal action cases to the
2) Call the investigating office and ask for more information
3) Return the file for further investigation or revision, which
could include a recommendation to change the action to Compliance Action.
4) Revise the report as necessary to provide the adequacy and
completeness needed (including the addition or deletion of regulations believed
violated and changing the recommended action and sanction) before forwarding
it to the Regional Counsel.
F. Regional Counsel Responsibilities. The Regional Counsel reviews
the case for sufficiency of evidence and appropriateness of sanction. If they
find insufficient evidence or any other deficiencies in the report, they coordinate
any corrective action through the RFSD. However, Counsel may contact the reporting
inspector to discuss the case and ask for clarification, availability of additional
G. “Ownership” of the Report. Every EIR should be considered
a “One-FAA” report that is produced through a cooperative, coordinated, team effort.
1) The unit supervisor may request changes or make changes in
a report to ensure that it complies with current guidelines. When it is accepted
by the supervisor, the report becomes the unit’s report.
2) The investigating office manager has every right to request
changes or make changes in a report. When the manager signs the report, it becomes
a product of the investigating office. When the RFSD’s Technical Branch reviews
the report and signs it, the report becomes the division’s report.
3) When Regional Counsel prosecutes the case, it becomes a completed
FAA report. Regional Counsel is the custodian of the report once they accept
it. If anyone requests any information contained in the report after Regional
Counsel accept it, he or she must go through Regional Counsel to obtain it.
14-2-2-5 DETERMINING THE REGULATION BELIEVED VIOLATED.
A. Knowledge and Ability Required. To be certain the correct
regulation is cited and to assist in writing a concise and accurate summary
of facts, the reporting inspector must be knowledgeable of pertinent sections
of 49 U.S.C. and 14 CFR and must know how to read and analyze those regulations
B. Analysis. The first step in analyzing what regulations may
have been violated is to determine which sections of 49 U.S.C. and which parts
of 14 CFR apply. Generally speaking, the regulations violated are either applicable to airmen, aircraft, and/or operations.
Cases may involve an apparent violation of only 49 U.S.C., an apparent violation
of only 14 CFR, or both.
1) The inspector can find the pertinent sections in 49 U.S.C.
applicable to compliance in 49 U.S.C., Subtitles V and VI. Although there are
other sections which lend themselves to being cited as violations of 49 U.S.C.,
Chapter 447, Safety Regulation, is the one most generally used because it covers
most situations. If the violation is not covered in Chapter 447, the inspector
should refer to 49 U.S.C., Table of Contents, and look for an appropriate section.
2) The inspector must verify the general applicability of the
subpart and cited sections of 14 CFR.
a) For example, 14 CFR part
that certain other sections of this subpart do not apply
to an aircraft maintained in accordance with a Continuous Airworthiness Maintenance
Program (CAMP) approved under 14 CFR part
129 or 14 CFR part
Many inspectors have attempted to cite part
135 operators with §
the section is not applicable to them.
b) Some sections of 14 CFR may appear to be applicable in the subpart applicability
statement when, in fact, there may be other parts which apply more directly
and should be cited. The particular regulation for the particular type of operation
should be cited. For example, §
pertain to operation of aircraft in an unairworthy condition. Section
be cited on a general aviation operation,
§ 121.153 on
an air carrier, and §
an air taxi operation. Section
be cited on a part
or 135 operation,
but there is no reason to do so.
C. Determining Enforceability. Inspectors must carefully analyze
sections and subsections of 14 CFR to determine their enforceability. About
half of all 14 CFR is not enforceable because they either confer authority or
responsibility or are definitive or explanatory in nature. To be enforceable
the rule must contain mandatory or prohibitory language. (When used alone, “may”
is permissive and is used to state authority or permission.)
1) The words “shall” and “must” appear in mandatory language.
2) “No person may” and “a person may not” are examples
of prohibitory language.
3) There are six general types of regulations. Prohibitive and
mandatory, as mentioned above, are easily discernible. However, the others require
a little more in depth analysis. Look out for the following types and their
a) Regulations may contain conditionally prohibitive language, such
as “no person may except” or “no person may unless.”
b) Regulations may contain conditionally mandatory phraseology, such
as “each person shall except” or “however.”
c) Regulations that confer authority or responsibility, such as “the aircraft
owner is responsible,” cannot be violated.
d) Regulations that define or explain, such as “this part prescribes”
or “each of the following requires,” appear to be compulsory but are not mandatory
D. Reading and Analyzing the Regulation. Inspectors must be able
to take a regulation apart and analyze it in relation to the alleged violation
to determine for certain that it has been violated. The inspector needs to answer
some important questions before citing a particular section or subsection:
· To whom does the regulation apply?
· What does it say in its entirety? (In other words, inspectors
must not read sentences or phrases out of context.)
· Where must it be complied with?
· When must it be accomplished?
· How does it apply in this occurrence?
· Are there any special conditions?
· Are there exceptions or exclusions?
· Does this regulation clearly apply?
· Are there any other regulations needed for support?
E. Elements of Regulations Which Must Be Proven.
1) All regulations have specific elements or component words
that convey important information. These elements must be proven in order to
2) Inspectors must identify the elements and answer the what,
where, when, why, how, and who questions before saying with certainty that there
is a violation. Using §
an example, this is how the rule is broken down into its elements. Section
that “No person may operate an aircraft in a careless or reckless
manner so as to endanger the life or property of another.”
· Person: Who was pilot in command (PIC) or the person responsible?
· Operate: What, where, when, and how did the person operate?
· Aircraft: What make, model, and N-number was the aircraft?
· Careless or reckless manner: Which was it? What was it? How was
it careless or reckless?
· Endanger: What was the endangerment? How did it endanger? Why
is it considered endangerment? Who was endangered? Was it actual, potential, or inherent?
· Life or property: Whose and What?
· Another: Who besides the pilot?
F. Enforcement of Other Referenced Documents. Occasionally, because
of the scope and detail involved, other documents besides regulations are incorporated
by reference. The legal effect is to require compliance with those documents; however, the 14 CFR have
been violated, not the reference. For example:
1) Title 14 CFR part
the use of a checklist while performing inspections. It
states that the checklist must include the scope and detail of the items contained
43 appendix D, and
Although appendix D must be complied with, §
the regulation cited if it has not been complied with. If the
aircraft being inspected is a rotorcraft, the checklist must also contain the items in
which is a supporting regulation and not the one violated.
2) Other regulations require the use of manuals, advisory circulars
(AC), Service Bulletins (SB), specifications, Airworthiness Directives (AD),
etc. Although a person may be required to use these documents, it is the regulation
which requires their use that must be cited for a violation and not the referenced
3) The referenced documents in this type of situation become
primary items of proof that must be referenced in the summary of facts and elaborated
on in the facts and analysis.
G. Title 49 U.S.C. § 44709. While it is not possible for a certificate
holder to violate 49 U.S.C. § 44709, the section allows the FAA to reinspect
or reexamine and, when necessary, amend, suspend, or revoke a certificate. If
a person refuses to allow a reinspection or reexamination, or fails the retest,
an EIR must be prepared. In the completed EIR, the inspector must document the
need or justification for the reexamination. This may be an accident report,
incident report, complaints from industry, and/or a statement by the inspector
of the inspector’s own personal knowledge of the person’s suspected or known
incompetency. The inspector must also document the reluctance or refusal to
submit, as well as the request for reexamination sent to the individual.
H. Intent of the Regulation. The preamble of the regulation may
be of some help in determining the intent of the rule, but enforcement action
can only be taken on what the rule actually says. It may be helpful to include
a copy of the pertinent preamble with the items of proof and discuss the intent
of the rule in Section B.
I. Intent of the Individual/Organization Being Investigated.
It is very difficult, if not impossible, to prove intent. The inspector cannot
normally find objective evidence of intent, only on the actual occurrence of
a violation. The only exception to this is when the word “intent” is contained
in the wording of an enforceable rule. The inspector may, however, base a recommendation
for specific action and sanction on intent and may ask Regional Counsel to prepare
injunctions on evidence of intent to prevent violations.
J. Observable Behavior. Inspectors should document the actions
taken and any observable behaviors of the individual National Airspace System
(NAS) participants in each case, then discuss how those behaviors relate to
safety or the cited rules and statutes.
K. Preponderance of Evidence. The FAA must have more evidence
that a violation did occur than it has that it did not occur before processing
a case. One witness statement, even of an inspector or policeman, does not outweigh
an alleged violator’s statement that he or she was not in violation. Unless
the inspector has other proving or circumstantial evidence to back up the word
of the inspector, the inspector should consider closing the EIR with “No Action”
because of insufficient evidence.
NOTE: Regardless of the need to close an EIR with “No Action” for insufficient
evidence, the inspector must always take appropriate action on any safety issues
or concerns as described in
Volume 14, Chapter 1, Section 2.
14-2-2-7 SECTION A. Section A is the only part of
the EIR that must be used with every report, regardless of the type of action
or sanction; this includes closing the case with “No Action.” Inspectors should refer to
Order 2150.3 for
detailed information on the completion of FAA Form
2150-5. The form contains the same information that must be entered into the
Enforcement Information System (EIS). The EIS printout should be used in lieu
of a handwritten or typed FAA Form 2150-5 in the completed EIR package.
14-2-2-9 SECTION B. This paragraph gives a brief overview of the
contents of Section B of the EIR, which includes a Statement of Case, Factors
Affecting Sanction, Other Information, and the Regional Program Office (for
Flight Standards Service (AFS), the RFSD) Sanction Recommendations.
A. Statement of Case. As described in Order
the Statement of Case is a concise statement of the facts and alleged statutory or regulatory
violations found during the investigation and a discussion of how those facts
establish the alleged violations. The statement of case identifies who did what,
when, where, why, and how. AFS personnel should refer to Order
Chapter 8, for additional information concerning the Statement of Case.
B. Factors Affecting Sanction. As described in Order
the Factors Affecting Sanction portion of Section B includes analysis of the
factors in Order
Chapter 7, paragraph 4 or Appendix C for relevance
and applicability to the case. The factors in Order
Appendix C, which apply to hazardous materials (hazmat) cases, are found in paragraph 2 and subparagraph
6d of that appendix. AFS investigative personnel should refer to
Chapter 7, Chapter 8, and Appendix C for additional information concerning Factors
C. Other Information. In addition to the items listed in Factors
Affecting Sanction, the report should also discuss the following: the reliability
of evidence, any conflicting evidence in the case, explanations provided by
the apparent violator (if appropriate), mitigating factors, extenuating factors,
aggravating factors, personal opinions about the case (these must be labeled
as opinions), conclusions, enforcement action recommendations, and sanction
type recommendations. AFS personnel should refer to Order
Chapter 8, for additional information concerning this other information to be included in Section B.
D. Regional Program Office Sanction Responsibilities. Appropriate
regional office personnel should include their recommendation concerning enforcement
action recommendations, amount of sanction, and justifying reasons.
14-2-2-11 SECTION CITEMS OF PROOF. When developing a case, the inspector should
gather anything which may be pertinent to that case. The information below is
to supplement the information found in
A. Format. To assist in writing the EIR and to help the reviewers, the inspector
should normally list the Items of Proof (exhibits) in chronological order by
date, according to the sequence of the investigative events, unless there is
a compelling reason to do otherwise when documenting the case in Section B.
1) The inspector should start the list with the telephone record,
incident report, complaint, or whatever brought the occurrence to the attention
of the investigating office.
2) To keep it simple, the inspector should just add each primary
exhibit to the listing as the investigation progresses.
3) Technical supporting exhibits should then be grouped with
the primary exhibits to which they relate. The publication dates on technical
supporting exhibits do not relate to the chronological listing, but they may
be important to show currency of the technical document at the time of the apparent
B. Purpose of Evidence. FAA personnel must have acceptable evidence
in support of all alleged facts in order to take legal enforcement action.
C. The Law of Evidence. Simply put, the Law of Evidence establishes
whether evidence is admissible or acceptable or not. Evidence is only admissible
if it is relevant, material, or competent. The Law of Evidence is quite complex,
and Regional Counsel has the primary responsibility for determining acceptability
of evidence. The following information should provide inspectors with a basic
understanding of the Law of Evidence and how EIRs are affected.
1) The inspector should keep in mind that evidence available
at the time of the initial investigation may not always be available several
months later. Therefore, it is critical to obtain and document evidence when
found by the inspector.
2) The Law of Evidence is a body of rules which excludes from
consideration (by a judge, jury, or hearing examiner) certain kinds of evidence.
3) Evidence which is deemed to be misleading, unrelated, or unimportant
is not considered when adjudicating the case. In other words, certain types
of evidence have been determined to be untrustworthy or so remote in likelihood
as to be inadmissible (i.e., not worthy of consideration).
D. Admissible Evidence. In general, evidence is admissible only
if it is all of the following:
· Relevant: logically related to an issue in the case;
· Material: importantly related to an issue in the case; and
· Competent: of a generally reliable nature.
E. Proving and Circumstantial Evidence. Only salient (proving)
evidence listed in Section C should be referenced in the Section B Statement
1) The inspector submits all evidence to support the contention that a violation
did occur. The inspector also submits evidence concerning the background and
circumstances (both mitigating and aggravating) surrounding the event.
2) In the Statement of Case, clearly identify and explain the
evidence relied on to establish each element of the regulatory or statutory
3) Identify supporting evidence with enough detail to show its
relevance and to allow reference to it as needed outside the Statement of Case.
The exception to this is when the inspector must rely on a preponderance of
F. Sufficient versus Insufficient Evidence. Sufficient evidence
must exist to prove every element of a cited rule or statute for any enforcement
action (Administrative or Legal). Administrative Enforcement Action should not
be used as a substitute for insufficient evidence where Legal Enforcement Action
is appropriate; additional investigative work must be done to substantiate the
legal action, or the EIR must be closed as “No Action.” See
Volume 14, Chapter 1, Sections 1 and
for additional information on Pilot’s
Bill of Rights (PBR) due process considerations and taking appropriate action
on any remaining safety issues or concerns.
G. Contents of Exhibits.
1) When listing exhibits, the inspector should give a brief description
of each exhibit. This will assist the reporting inspector, as well as other
reviewers of the file, when searching for pertinent information. These descriptions
have special value in complex cases or where the inspector wants to emphasize
an exhibit or a point within an exhibit that is considered significant or controversial.
2) If a witness statement does not include the witness’ addresses
and telephone number, these should be shown in the Items of Proof index list
at the front of Section C. For example, item 1 below contained no contact information
for Mr. Gibbits in the Record of Telephone Conversation, so it is listed as
shown below. The item 2 statement contained an address for Mr. Jones, but not
his telephone number, so it was included here.
“Section C Items of Proof.
1. FAA Form 1360-33, Record
of Telephone Conversation, with Harold Gibbits, dated 6/1/90, 224 Rae Avenue,
Center, CA 92222, (213) 555-8948.
2. Statement of Mr. J. Jones, dated 6/5/90 eyewitness account
of incident; telephone
3. Aircraft Log, page 17 last recorded annual inspection,
4. Cessna 610 Airplane Flight Manual, page 27, fuel system.”
H. Notice of Investigation and Response. In all cases, the inspector
must include the notification of investigation or state in Section B that an
oral notice was given. Also, the inspector must always include the violator’s
response. In short, the inspector should always give the violator an opportunity
to explain, excuse, or deny and then document both the opportunity and refusal,
I. No ActionInsufficient Evidence. If an EIR is closed with “No
Action,” the inspector should keep the following in mind:
1) Inspectors can learn from the experience to conduct more productive
investigations that better document provable rules and statutes.
2) Remaining safety concerns or risks should be documented in
the Program Tracking and Reporting Subsystem (PTRS), discussed with the inspector’s
manager and/or certificate holder’s PI, and communicated to the airman/organization
involved. In the parent activity that led to the EIR, clearly identify and document
these safety concerns and/or non-regulatory recommendations in a separate comment
using the appropriate primary area code, a keyword listing of “911” and an opinion
code of “I.”
3) Identified safety concerns or risks can be used to justify
increasing surveillance in targeted areas.
4) Inspectors must remember, however, that they should not allow
someone to violate a regulation in order to collect better evidence, when the
potential violation could have been prevented.
J. Effectiveness of Documentary Evidence.
1) When an infraction involves an uninspected aircraft or an
airman lacking logbook endorsement, the inspector can use the following types
of documentary evidence. They are listed in descending order of effectiveness:
· The logbook itself, which, however, cannot normally be taken;
· Certified photocopy (or picture/photograph) of pertinent pages
covering the time in question; dates are important;
· Statement of an FAA inspector who examined the logbook;
· Admission of the violator; and
· A computer printout from the aircraft registry or an EIS printout.
2) The inspector should remember that although logbooks can later
be subpoenaed, they can also be altered, corrected, or misplaced after the inspector
returns them. The inspector needs to make copies (or take pictures/photographs)
of pertinent pages as soon as possible.
3) The inspector should watch out for certain situations in which
an apparent violation may be misreported. As an example, if an inspector finds
that an annual inspection was not recorded in the aircraft logbook that does
not necessarily mean that the inspection did not occur. It may be that the inspection
occurred but was not recorded. Other evidence would be needed to supplement
copies of the aircraft logbook to prove that the inspection did not occur. The
inspector should report violations on what can be proven to have occurred, not
on what appears to have occurred.
4) The inspector should always document the violation history of the alleged
violator and include the EIS computer printouts on the aircraft and airman.
The official violation history may be obtained
only through the Accident Incident Data System (AIDS)/EIS Display and Profile.
5) All copies of Items of Proof, except for physical evidence,
must accompany the report.
a) Each Item of Proof must be numbered and tabbed consecutively as an exhibit.
b) Each exhibit, including a brief statement of its content, must be listed
in an index to this section of the report. The inspector should keep the index
in a logical sequence to aid in reviewing the report.
c) The inspector must not mark on or deface original exhibits. If marks
must be made, the inspector can use plastic overlays or mark on a copy.
6) All copies of Items of Proof must be legible, and official
documents must be certified. Copies of published documents need not be certified.
a) Whenever making copies of documents during an accident or incident investigation,
the inspector should prepare enough copies to have some available for any possible EIR.
b) Copies made from earlier copies of documents often are not legible.
c) Inspectors must not sign certified copy statements unless the inspector
personally made the copy. If a clerical or secretarial person made the copies,
that person must sign it.
7) When preparing investigative reports, the inspector should
remember that the reviewers will not have had the advantage of the inspector’s
knowledge of the case facts. Therefore, whenever photographs, sketches, drawings,
copies of pages from books, etc., will materially contribute to a clearer technical
explanation of legal evidence, the inspector should include them with the report.
The inspector must be sure to number the pages of multiple‑page exhibits page
1 of 3, page 2 of 3, etc.
K. Witness Statements. Using the techniques on active listening in
Volume 14, Chapter 2, Section 1,
the inspector should interview and obtain
written statements from all knowledgeable witnesses or at least from a representative
number if a crowd witnessed the violation.
1) The inspector should select the best witnesses based on their
knowledge and competence to testify.
2) If an inspector witnesses a violation or becomes knowledgeable
of anything pertinent which is not contained in other witness statements, the
inspector should prepare and sign a personal statement.
3) The inspector should interview and obtain statements from all persons
pertinent to the investigation, such as:
· The PIC;
· The other pilot and passengers;
· All involved air traffic controllers;
· Airport personnel who may have serviced an aircraft or witnessed
its arrival or departure;
· Bartenders or food servers who may have served the person before
or after a flight (if the apparent violation involves alcohol consumption).
· State and local police; and
· Other persons who work or reside in the area where the violation
occurred. Everyone does not complain. Sometimes a knock on a few doors can be
rewarding in obtaining witness statements.
4) When a person refuses to or cannot write a statement, the
inspector may assist in preparing the statement but must not dictate it.
5) Statements should be complete, concise, and to the point.
They should convey what that person said, did, or perceived by their senses.
The inspector should include the witness’ complete name, address, telephone
number, occupation, and aeronautical experience, if any. Any opinions the witness
stated should be shown as such.
6) If a witness refuses to sign a statement after it is written,
the inspector should ask the witness if the witness agrees to the substance
of the statement. If the witness agrees but still refuses to sign, the inspector
should make a notation to that effect, date and sign the statement, and ask
other witnesses present to also sign it.
L. Other Forms of Documentary Evidence.
1) When photographs are used as essential evidence, it
is extremely important to have names and addresses of photographers; the date
and time the pictures were taken; the type of camera; who has custody of the
original digital image files; and any other pertinent information.
2) Charts, maps, and diagrams can be very helpful to show
airports, terrain, congestion, obstructions, etc. They may also be useful in
interviewing witnesses and evaluating their statements, establishing the degree
of hazard involved, etc. The inspector must be sure to explain the intended
purpose of charts, maps, and diagrams in Section B of the report. The inspector
should include a copy of the appropriate aeronautical chart which was current
at the time of an airspace violation.
3) If weather is involved in the violation, the inspector must
obtain certified copies of pertinent weather data from the National Weather
Service (NWS). The inspector must also include a weather analysis in Section
B of the report.
4) Provided an air carrier has not identified flight recorder
data collected in accordance with 14 CFR part
inclusion in its approved Flight Operations Quality Assurance
(FOQA) program, the FAA may use such flight data in any FAA enforcement action
because the regulations that require flight recorders in aircraft do not specifically
limit or prohibit such use. Even if flight data collected under the regulations
is identified for inclusion in a FOQA program, the data may be used in any enforcement
action if the basis for the enforcement action involves deliberate or criminal
acts. Flight recorder material must not be used to discover any violations when there
is no other evidence. Flight recorder material must not be used as evidence except to corroborate other evidence or to
resolve conflicting evidence. Therefore, the inspector
must coordinate use of flight recorder
material with the regional office. If flight recorder material is used, a certified
readout of the data is required. (Refer to FAA Order
5) The use of cockpit voice recorder data as evidence
in enforcement cases is prohibited by
§§ 121.359 and
6) If other federal or local law enforcement agencies are involved,
the inspector should obtain records from them. The inspector should obtain pertinent
transcripts and certified copies of court orders, convictions,
etc. The inspector should include any foreign, state, or local laws if pertinent.
7) Medical records can be obtained with the individual’s
consent or by subpoena. One exception is that when alcohol or drugs are involved,
pilots must now consent to provide pertinent records in accordance with §
a) Government medical records are subject to the Privacy and Freedom of
Information Acts. Where required, the inspector should try to obtain consent
from the owner.
b) An airman medical information printout may be obtained from Comprehensive
Airmen Information Subsystem (CAIS), or an airman medical form may be obtained
from the Aerospace Medical Certification Division (AAM-300).
c) If an airman does not have a current medical certificate or any other
certificate for that matter, the inspector should request AAM-300 to send a
“diligent search” certificate and include it in the Items of Proof.
8) The inspector must take care that physical evidence
is not lost, destroyed, damaged, or altered because the inspector may have to
testify to it. The inspector should establish a chain of custody if necessary
or lock the evidence up in a safe place, if possible. The inspector should be sure to at least take photographs of physical evidence
and put those in the Items of Proof, along with an explanation of where the
evidence is located. If necessary, inspectors should work through their management
chain to contact the Regional Flight Standards Division (RFSD), or Regional
Counsel personnel, for additional information.
M. Other Pertinent Items of Proof. Other Items of Proof that
must be included when pertinent are:
1) A copy of the air operator or air agency certificate held
by the alleged violator.
2) A copy of the pertinent part of the operations specifications
(OpSpecs), management specifications (MSpecs), or training specifications (TSpecs)
and letters of authorization (LOA) or waiver when any of the provisions are
3) A copy of the pertinent part of the AD, manufacturer’s SB,
logbook entries, or other aircraft maintenance records when a maintenance
or operational rule is involved.
4) When the location is alleged to be a congested area and particularly when §
involved, city maps, photographs (such as 35 mm aerial shots),
or satellite imagery, each with the source information referenced.
5) When airworthiness is believed to be involved, a separate
signed inspector’s statement (as an exhibit) which clearly states how the inspector
concluded that the aircraft was in an unairworthy condition at the time of the
operating violation, either by reason of not meeting type certificate (TC) design
requirements or that the aircraft is otherwise unsafe for flight. (See
Volume 14, Chapter 3, Section 4,
Airworthiness, for more information.)
6) When controlled airspace is involved, a copy of the appropriate
en route or sectional chart or approach chart, effective at the time
of the occurrence. Charts should be in their original form and not marked on.
7) When an accident or incident is involved, a complete
copy of the report when available as a numbered exhibit.
8) When weather is involved, the following information that would
have been available to the pilot must be included:
a) Area forecasts, with all significant meteorological information/Airmen’s
Meteorological Information (SIGMET/AIRMET) amendments.
b) Terminal forecasts, with all amendments, for departure point,
destination, and along the route of flight, including at least 2 hours before
the flight began and 2 hours after the flight ended.
c) On the weather reports and forecasts (except officially authenticated
NWS copies), which will be referred to in the Facts and Analysis or elsewhere,
the inspector should place a red checkmark adjacent to the portions referenced
and convert the Greenwich mean times (GMT) and dates to the appropriate local
time and dates with a pencil.
N. Submission of Additional Evidence or Material. Reporting of
facts does not end when the investigating office forwards the EIR to the region.
The inspector should forward any subsequent data immediately to the regional office and include the inspector’s
evaluation and recommendations concerning the material. Additional investigation may be required
to evaluate any additional evidence intelligently.
O. Summary. Inspectors should check the following items
to ensure that they have a good Section C before forwarding the file for review:
1) A numerical index of all Items of Proof, with a brief statement
2) The Inspector has numbered each Item of Proof as an exhibit.
3) The inspector has listed all items in a logical order.
4) The inspector has included originals of documents when possible.
5) Copies have been certified when appropriate.
6) The inspector has included photographs of physical evidence.
7) All evidence referred to in the file should be included in
an exhibit, and all exhibits should be referenced in the Facts and Analysis.
14-2-2-13 COMMON EIR ERRORS. The following are some common errors found in EIRs:
· Inclusion of related case numbers when cases were actually unrelated;
· Transmittal of related cases to the region separately;
· Omission of the full names of legal entities, including “doing
business as” (DBA);
· Omission of EIS data on airmen or operators;
· Citing regulations that are not enforceable;
· Citing regulations that were not applicable to the operation;
· Omission of applicable 14 CFR subsections;
· Not supporting Section B with proving evidence;
· Not arranging Items of Proof in a logical order;
· Defacing of original Items of Proof and photographs;
· Omission of photographs when they are needed as prime evidence;
· Not including all evidence referenced in the file;
· Not including all pertinent facts, circumstances, and exhibits;
· Not referencing supporting exhibit numbers;
· Omission of facts so that the case history is incomplete;
· Omission of an analysis of how safety was affected;
· Not considering the reliability of the evidence;
· Omission of considerations concerning the airman’s attitude, enforcement
history, and economic and livelihood situations;
· Not analyzing and evaluating conflicting evidence;
· Ignoring mitigating and aggravating circumstances;
· Ignoring the airman’s statement of denial;
· Ignoring the “stale complaint rule” on recommended suspension
· Taking unauthorized administrative actions;
· Omission of material from the evidence that proves that the aircraft
was operated or who was PIC;
· Omission from the analysis of a conclusion and a recommendation
for action and sanction; and
· Errors in dates, times, places, names, numbers, and signatures.
14-2-2-15 EIR APPRAISAL. The inspector’s appraisal of evidence gathered during
an investigation of an act of noncompliance is reflected in a section of the
EIR. The following are some important points requiring emphasis.
A. Citing of §
Inspectors should not include §
FAA Form 2150-5, Section A, Block 18 as a “catch‑all” citation.
The presumption that any act of noncompliance is careless or reckless is not
appropriate. Citing §
an apparent violation should only be done so when there specific
evidence supporting a careless or reckless act. This evidence must include consideration
of both aggravating and mitigating circumstances.
1) Because of mitigating circumstances, it is possible for an
inspector to determine that an airman operated an aircraft in a manner which
potentially endangered persons and property but was not careless or reckless.
For example, a minor controlled airspace incursion would potentially endanger
others, but because of the circumstances surrounding the incursion, the inspector
may conclude that the act was neither careless nor reckless. Inspectors must,
when citing a violation of §
conjunction with violations of other sections of 14 CFR, analyze
in Section B how the allegations support the finding that an airman acted
in a careless or reckless manner.
2) For additional information on careless and reckless determinations,
as well as the application of an apparent violation of §
91.13, refer to
Volume 14, Chapter 3, Section 5, and Order
B. Section B, Factors Affection Sanction. This section should
be used by the inspector to justify a corrective action that goes outside the
sanction guide table. Here an inspector can justify why the inspector believes
a sanction should be less than what is indicated in the table or greater than
what is indicated. Again, the inspector must approach this analysis armed with
all possible information that can “prove the case.” If the sanction the inspector
recommends is outside the guidelines of the sanction table, there must be an
adequate explanation why this is the appropriate course.
1) When describing mitigating circumstances, the inspector must
thoroughly describe the extent to which those circumstances suggest that the
occurrence may not have been actually unsafe.
2) The same holds true for aggravating circumstances. If an act
of noncompliance is so deliberate, so willful, or created such a significantly
unsafe condition, the inspector may recommend a sanction that exceeds what is
suggested in the table. The description of the aggravating circumstances must
be sufficient to support the sanction. In either case, describing mitigating
or aggravating, the inspector must be objective and never vindictive.
C. Section C, Items of Proof. Order
the physical format
of the Items of Proof and must be followed. Because of the misconception about
mitigating circumstances, inspectors often omitted material that should have
been included in Items of Proof. Items of Proof should support or refute the
existence of an act of noncompliance.
14-2-2-17 through 14-2-2-31 RESERVED.