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 Federal Aviation Administration (FAA) Order 2150.3, 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 person 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, they must document the enforcement action per the policies in Orders 8900.1 and 2150.3.
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 (4 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 report.
c) Consider the need for Flight Standards (FS) reviewing office personnel to determine the type of sanction. The inspector should include information that supports their recommendation on type of sanction and information that can be used by FAA enforcement counsel 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 supervisors 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 (OM) Responsibilities. Office managers have overall responsibility for effectiveness and propriety of the compliance and enforcement program within their respective offices.
1) OMs are responsible for the quality and timeliness of each investigation and its corresponding report.
2) The OM’s signature is the only one required on the report. The OM assumes full responsibility for the report when signing it.
E. FS Reviewing Office Responsibilities. The assigned FS reviewing office is responsible for reviewing all assigned EIRs to determine their adequacy and completeness. The reviewing office may:
1) Accept the case as is and forward legal action cases to the FAA enforcement counsel.
2) Call the investigating office and ask for more information or evidence.
3) Return the file for further investigation or revision, which could include a recommendation to change the action to Compliance Action (CA).
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 type of sanction) before forwarding it to FAA enforcement counsel.
F. FAA Enforcement Counsel Responsibilities. The enforcement 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 FS reviewing office. However, counsel may contact the reporting inspector to discuss the case and ask for clarification, availability of additional evidence, etc.
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 OM has every right to request changes or make changes in a report. When the OM signs the report, it becomes a product of the investigating office. When the FS reviewing office reviews the report and signs it, the report becomes the responsible Flight Standards office’s report.
3) When FAA enforcement counsel prosecutes the case, it becomes a completed FAA report. Enforcement counsel is the custodian of the report once they accept it. If anyone requests any information contained in the report after counsel accept it, they must go through 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 properly.
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 91, § 91.401(b) states 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 121 or 129 or 14 CFR part 135, § 135.411. Many inspectors have attempted to cite part 121 or 135 operators with § 91.405 when 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, § 91.7; part 121, § 121.153(a)(2); and § 135.25(a)(2) all pertain to operation of aircraft in an unairworthy condition. Section 91.7 should be cited on a general aviation operation, § 121.153(a)(2) on an air carrier, and § 135.25 on an air taxi operation. Section 91.7 could be cited on a part 121 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 indepth analysis. Look out for the following types and their associated phrases.
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 or prohibitive.
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 show noncompliance.
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 § 91.13 for an example, this is how the rule is broken down into its elements. Section 91.13 states 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 43, § 43.15(c) requires the use of a checklist while performing inspections. It states that the checklist must include the scope and detail of the items contained in part 43 appendix D and § 43.15(b). Although appendix D must be complied with, § 43.15(c) is 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 § 43.15(b), 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 documents.
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 (CH) 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 person.
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 Person 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 FAA enforcement 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 they were 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. Refer to Order 2150.3, Chapter 6, Enforcement Investigative Report and Record Distribution Requirements, for policy. Refer to Wingman Enforcement Series job aids at Wingman E-Series – All Documents (https://avssp.faa.gov/avs/afsteams/NationalTeams/EIR/eEIRTransfers/Documents/Forms/AllItems.aspx?RootFolder=%2favs%2fafsteams%2fNationalTeams%2fEIR%2feEIRTransfers%2fDocuments%2fWingman%20E%2dSeries&FolderCTID=0x0120004B2AC4CE935A354BA0EDABACCF36D2A4) for help with drafting the EIR. The “E2018-028B Section B template rev2 02-07-2019.pdf” is the current version at the time of this publication.
14-2-2-11 SECTION C—ITEMS OF PROOF. When developing a case, the inspector should gather anything which may be pertinent to that case. Refer to Order 2150.3, chapter 6 for policy. Refer to Wingman Enforcement Series job aids at Wingman E-Series – All Documents (https://avssp.faa.gov/avs/afsteams/NationalTeams/EIR/eEIRTransfers/Documents/Forms/AllItems.aspx?RootFolder=%2favs%2fafsteams%2fNationalTeams%2fEIR%2feEIRTransfers%2fDocuments%2fWingman%20E%2dSeries&FolderCTID=0x0120004B2AC4CE935A354BA0EDABACCF36D2A4) for help with drafting the EIR. The “E2019-001 Section C template - with attachment icons.pdf” is the current version at the time of this publication. The information below is to supplement the information found in Order 2150.3.
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 violation.
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 FAA enforcement 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 of Case.
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 violation.
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 circumstantial evidence.
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 through 3, 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 (213) 555‑8946.
3. Aircraft Log, page 17 – last recorded annual inspection, dated 2/7/89.
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, if any.
I. No Action—Insufficient 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 Safety Assurance System (SAS) Activity Recording (AR) or Action Item Tracking Tool (AITT), discussed with the inspector’s manager and/or CH’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 nonregulatory 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) Refer to Order 2150.3, chapter 4, subparagraph 9g for information on authentication of evidence.
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 13, § 13.401 for 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 enforcement counsel. If flight recorder material is used, a certified readout of the data is required. (Refer to Order 2150.3 for additional information.)
5) The use of cockpit voice recorder data as evidence in enforcement cases is prohibited by §§ 121.359 and 135.151.
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 person’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 § 91.17(c) and (d).
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 appropriate FS office, or enforcement counsel, 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 believed violated.
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 § 91.119(a) is involved, city maps, photographs (such as 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 Section B Statement of Case 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 FS reviewing office. The inspector should forward any subsequent data immediately to the reviewing 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 of contents.
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 or authenticated 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 Statement of Case.
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 FS reviewing office 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 actions;
• 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 type of 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 § 91.13. Inspectors should not include § 91.13 in 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 § 91.13 in 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 § 91.13 in 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 2150.3.
B. Section B, Factors Affection Sanction. Investigative personnel analyze any factors affecting sanction (e.g., severity level, culpability, business size, mitigating factors, and aggravating factors) that are relevant to the case. General sanction guidance is found in Order 2150.3, Chapter 9, Legal Enforcement Action Sanction Policy. Refer to Order 2150.3, chapter 6, subparagraph 3b for additional information.
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 2150.3 describes 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.