by Gregory J. Reigel, Esq.
© Copyright 2022. All rights reserved!
Published in Midwest Flyer Magazine April/May 2022 online issue.
The FAA wants to be able to track you down. Why? Aside from the obvious compliance and enforcement reasons, the FAA also wants to keep airmen informed of seminars (e.g. Wings programs, etc.), to request input from airmen regarding local issues (e.g. airspace design, airport closure, etc.) and to provide airmen with any other aviation safety information it feels is beneficial or necessary. As usual, it accomplishes this goal through the Federal Aviation Regulations (“FARs”).
The Regulation
FAR §61.60 requires that airmen keep the FAA informed of their permanent mailing address. (A similar regulation applying to airmen other than flight crewmembers is found at FAR §65.21.) Specifically, FAR §61.60 prohibits an airman from exercising the privileges of his or her certificates if the airman has failed to provide the FAA’s Airman Certification Branch with a new permanent mailing address within 30 days of changing his or her permanent mailing address.
The change of permanent mailing address may be reported to the FAA via U.S. Mail or via the internet. If via mail, the notification must be sent to FAA, Airman Certification Branch, P.O. Box 25082, Oklahoma City, OK 73125. If via internet, airmen should go to the FAA’s website here, where a form may be completed to notify the FAA of a change in permanent mailing address.
When an airman cannot provide a permanent residence address (e.g. where the person resides in a motor home or is in the process of moving), it is permissible for the airman to use his or her parent’s or friend’s permanent address as the airman’s permanent address. This is frequently the case with newly hired airline pilots who are domiciled out of a different city from the city in which they will ultimately reside when they acquire enough seniority to hold the appropriate schedule.
Some airmen attempt to simplify compliance with this regulation by disclosing a post office box as the permanent mailing address. That way, so the argument goes, the airman can move as much as he or she wants without having to provide notice to the FAA with each move. This is a nice idea, in theory. Unfortunately, the regulation accounts for this scenario and requires the airman to also provide his or her current residential address if a post office box is disclosed as the permanent mailing address.
FAR §61.60 does not specifically ask for your “residence” or where you live, except when you are using a post office box for a permanent mailing address. Also, the regulations do not define “permanent mailing address,” or “residential address” for that matter. However, the reasonable implication of FAR §61.60’s requirement is that the FAA wants an address where it knows that information mailed by it to that address will be received by the airman. For most airmen, this address is where they live.
Consequences of Non-Compliance
A failure to comply with FAR §61.60 usually presents in one of two situations. First, the issue may come to light during the course of a ramp check or check-ride conducted by an FAA inspector/examiner when he or she compares the addresses on an individual’s airman and medical certificates and the driver’s license or other government identification, which airmen are required to carry when flying. Inconsistent addresses on the documents may lead an FAA inspector to confirm the address on file with the FAA to determine which address was current and whether it matched the FAA’s records. If the airman’s current permanent mailing address does not match the FAA’s records, the airman is technically in violation of FAR §61.60.
However, it is unclear what sanction the FAA may seek to impose for a violation of FAR §61.60, if any. A review of the Sanction Guidance Table in FAA Order 2150.3C does not disclose a specific reference to FAR §61.60. Further, a quick search of National Transportation Safety Board (“NTSB”) reported cases does not reveal any reported cases in which the FAA has pursued enforcement action against an airman for violation of FAR §61.60.
This isn’t to say that the FAA will not or cannot pursue enforcement action for a violation of FAR §61.60. It simply means that if the FAA pursued an action, we don’t have any clear guidance as to what sanction the FAA would seek to impose. Depending upon the circumstances, the sanction sought could be anywhere from a minimal suspension, up to revocation.
Second, the consequences of violating FAR §61.60 often appear in enforcement actions arising from unrelated FAR violations. Many airmen have suffered suspensions and revocations for unrelated FAR violations without the benefit of a hearing or appeal as a direct result of their failure to comply with FAR §61.60. How does this happen?
Well, in order to initiate an enforcement action against an airman, the FAA must serve the airman with a “notice of proposed certificate action” (“NPCA”) or “notice of proposed civil penalty” (“NPCP”). This NPCA/NPCP offers an airman several alternatives for responding to the NPCA/NPCP and the airman must choose and pursue one of the alternatives within 20 days. If the FAA does not receive a timely response from the airman (in this case because the airman was unaware of the NPCA/NPCP because it went to the airman’s address of record with the FAA which was no longer current), then the FAA will simply issue an order imposing the sanction sought in the NPCA/NPCP.
When the FAA mails an order of suspension, revocation, or civil penalty to an airman via certified mail, service is effective on the date of the mailing. An airman must appeal an order within a specified period of time (20 days for a non-emergency order and 10 days for an emergency order or 2 days for appeal of an emergency determination), otherwise the order becomes final and un-appealable. (Of course, if the airman did not receive the NPCA/NPCP because of the incorrect address, more often than not the airman will not receive the order either.)
If an airman later learns of the FAA’s order and attempts to appeal the order, unless unusual circumstances are present, the airman’s appeal will likely be denied. NTSB precedent holds that when the FAA mails the order to the airman’s permanent address on file with the Airman Certification Branch, the use of such address constitutes constructive notice. As a result, if the FAA has provided constructive notice to an airman, the NTSB deems that the airman has received notice, whether the airman has actually received the NPCA/NPCP/order or not.
If the airman failed to keep the FAA informed of a change of his or her permanent mailing address, the airman will not be able to argue on appeal that he or she never received proper service. According to the NTSB, “[c]ertificate holders must ensure that they keep their official records, to include a permanent address of record at which they may receive official correspondence regarding their certificates, current.”
Further, failure to receive an order that was sent to the most current permanent mailing address contained in the FAA’s record, does not constitute “good cause” that would excuse the untimely filing of an appeal. The NTSB has rejected, and continues to reject, arguments of “good cause” based upon an airman’s failure to receive the mail when his or her permanent mailing address differs from the one contained in the FAA’s records.
The FAA and NTSB expect that the airman will check that address for FAA mail, especially if the airman was on notice of an investigation or aware that a NPCA could be sent. Airmen need to take steps to ensure that they are promptly notified of any mail from the FAA. If an airman is unable to check the mail regularly, the airman should have someone he or she trusts check it for the airman.
Conclusion
Like it or not, airmen need to make sure the FAA knows where it can reach them. Not only does FAR §61.60 require it, but it also makes good sense. The FAA does, on occasion, send airmen aviation safety information that is beneficial and unrelated to compliance and enforcement. And, if you are involved in an enforcement investigation, you probably want to make sure that the FAA sends things to an address where you know you will receive them so you can preserve your rights and respond in a timely manner. After all, if the FAA wants to pursue an action against you and it uses the current address it has in its records, it can do so whether you actually receive its order or not.
EDITOR’S NOTE: Greg Reigel is an attorney with Shackelford, Melton, McKinley & Norton, LLP, and represents clients throughout the country in aviation and business law matters. He has more than two decades of experience working with airlines, charter companies, fixed base operators, airports, repair stations, pilots, mechanics, and other aviation businesses in aircraft purchase and sales transactions, regulatory compliance including hazmat and drug and alcohol testing, contract negotiations, airport grant assurances, airport leasing, aircraft-related agreements, wet leasing, dry leasing, and FAA certificate and civil penalty actions. For assistance, call 214-780-1482, email: greigel@shackelford.law, or Twitter @ReigelLaw (www.shackelford.law).
