by Greg Reigel
Attorney At Law
© December 2014. All rights reserved.
The FAA recently amended its enforcement guidelines for dealing with airmen who violate temporary flight restriction (TFR) airspace. In the past, when the FAA alleged that an airman violated a TFR, and the incident was a first-time, inadvertent violation by the airman, and that airman would receive a Notice of Proposed Certificate Action (Notice) proposing suspension of his or her airman certificate for 30 days for violation of a variety of regulations. This was the FAA’s “shoot from the hip,” no questions asked approach. And once the Notice was issued, the FAA conceded very little, if anything, from that 30-day suspension.
Now, however, it appears the FAA may have recognized that this approach wasn’t necessarily the best way of dealing with these types of violations. In June of 2014, the FAA amended Order 2150.3(b), the FAA’s compliance and enforcement program, to change its approach to dealing with first-time, inadvertent TFR violators. According to the FAA, it is modifying its policy to provide more flexibility in dealing with TFR violators with the intent of reducing “the number of violations occurring in security airspace by using remedial training in appropriate circumstances to prevent repeated inadvertent violations.” I’m not sure why it took the FAA this long to figure out that remedial training might be a better alternative to a suspension, but better late than never, I guess.
Under the amended guidelines, the FAA will apply the following sanction policy to TFR violations:
1. A single, first-time, inadvertent violation will result in a 30-day suspension EXCEPT in circumstances involving:
a. Inadvertent, first-time violations resulting from aircraft intruding one mile or less into the security airspace and then turning and exiting directly when there are no resulting complications for air traffic control or other aircraft; or
b. Inadvertent, first-time violations resulting from aircraft briefly (two minutes or less) squawking a 1200 code or failing to squawk an assigned discrete code, in security airspace that requires the aircraft to squawk a discrete code when there are no resulting complications for air traffic control or other aircraft.
In situations 1(a) and (b), the FAA will use remedial training, assuming the airman has no prior history of violations. This means the airman would receive a warning letter, remedial training and the airman would not have a finding of violation placed in his or her airman record. (In my opinion, a more appropriate response to this type of situation, rather than preventing an airman from staying current and competent by suspending his or her airman certificate, as was the case in the past.)
2. A new inadvertent violation and a history of 1 prior inadvertent TFR violation will result in a 45 to 90-day suspension of the airman’s certificate.
3. A new inadvertent violation and a history of 2 prior inadvertent TFR violations will result in a 90 to 150-day suspension of the airman’s certificate.
4. A new inadvertent violation and a history of 3 or more inadvertent TFR violations will result in revocation of the airman’s certificate.
5. If the facts and circumstances surrounding the TFR violation call into question the qualifications of the airman, the FAA may also issue the airman a request for re-examination under 49 U.S.C. § 44709 (a “709 Ride”).
6. Intentional TFR violations or “aggravated” violations (which isn’t defined or explained in the amended policy) will result in revocation of the airman’s certificate.
Unfortunately, informal counseling, whether oral or written, is not a permitted alternative for the FAA to deal with TFR violations. However, at least now the FAA has the option of remedial training to educate, rather than punish, inadvertent violators. Of course, this amended policy begs the question of what constitutes an “inadvertent” violation. Depending upon the FAA’s interpretation of “inadvertent,” which in the past hasn’t always been the most reasonable, the amended policy may be for naught.
But the amended policy definitely appears to be a step in the right direction. Hopefully, this more enlightened approach, and the voice of reason, will prevail in the future. In any event, airmen should continue to check for NOTAMS, understand the scope of any TFR NOTAMS issued for their route of flight, obtain appropriate flight service briefings and updates, and either avoid TFRs or comply with the applicable requirements for operation within the TFR.
Fly smart and stay safe.
EDITOR’S NOTE: Greg Reigel is an attorney with Reigel Law Firm, Ltd., a law firm located in Hopkins, Minnesota, which represents clients in aviation and business law matters.