In evaluating whether an apparent violation is covered by this Program, five conditions must be met:

1. The certificate holder, indirect air carrier, foreign air carrier, or production authority holder ("PAH") has notified the FAA of the apparent violation immediately after detecting it and before the agency has learned of it by other means;
2. The apparent violation was inadvertent;
3. The apparent violation does not indicate a lack, or reasonable question, of qualification of the certificate holder or PAH;
4. Immediate action, satisfactory to the FAA, was taken upon
   discovery to terminate the conduct that resulted in the apparent
   violation; and
5. The disclosing entity has developed or is developing a comprehensive fix and schedule of implementation satisfactory to the FAA. The comprehensive fix must include a follow-up self-audit to ensure that the action taken corrects the noncompliance. This self-audit is in addition to any audits conducted by the FAA.
   Disclosure also protects the employees involved, provided they promptly report the noncompliance to the company. 
    

   The AC provides: The voluntary disclosure policy applies to individual airmen or other agents of an employing certificate holder, indirect air carrier, foreign air carrier, or PAH when:

   1. The apparent violation involves a deficiency of the employing entity's practices or procedures that causes the employing certificate holder, indirect air carrier, foreign air carrier, or PAH to be in violation of a covered violation of an FAA regulation;
   2. The airman or other agent of the employing entity, while acting on behalf of the employing entity, inadvertently violates the FAA's regulations as a direct result of a deficiency of the employing entity that causes the employing entity to be in violation of the regulations. (The voluntary disclosure policy does not apply to the airman or other agent when his/her apparent violation is the result of actions unrelated to the employing entity's deficiency);
   3. The airman or other agent immediately makes the report of his/her apparent violation to the employing entity; and
   4. The employing certificate holder, indirect air carrier, foreign air carrier, or PAH immediately notifies the FAA of both the airman or other agent's apparent violation and the apparent deficiency in its practice or procedures.

   Employees should be made aware of the FAA's Voluntary Disclosure Reporting Program, and air carriers should implement these policies within their own organizations. Employees should be comfortable talking with supervisors and management about apparent inadvertent violations or other safety concerns, and if they are, they will be more likely to come forward and report same. Each member of management must learn that safety starts with him or her. A more congenial environment which prompts employees to report a noncompliance is the only way management will have the information in time to promptly and voluntarily disclose the violation to the FAA, take the necessary corrective action and avoid a legal enforcement action.

   NASA ASRP
   If the irregularity or occurrence did not result in an accident (as defined in NTSB Regulation Part 830 [49 C.F.R. Part 830]), did not involve a criminal offense and was due to inadvertence, the NASA Aviation Safety Reporting Program will also apply. ASRP "invites" pilots, controllers, flight attendants, maintenance personnel, other users of the National Airspace System (NAS), or any other person, to report actual or potential discrepancies and deficiencies involving the safety of aviation operations. The operations covered by the program include departure, en route, approach, and landing operations and procedures, air traffic control procedures and equipment, crew and air traffic control communications, aircraft cabin operations, aircraft movement on the airport, near midair collisions, aircraft maintenance and record keeping and airport conditions or services.

   The report (there are prescribed forms for flight operations, maintenance, cabin safety and air traffic control-originated reports) must be filed with NASA within 10 days of the date of the occurrence--no extensions or exceptions.

   The NASA Report will not preclude the FAA from taking legal action. However, it will preclude the FAA from imposing a suspension or civil penalty (although such actions will nonetheless be made a matter of public record). Reports should be filed on behalf of the organizational certificate holder as well as each person involved.

   Response to the Letter of Investigation
   The Self-Disclosure and NASA programs are mutually exclusive. Moreover, they should be initiated before the FAA issues its Letter of Investigation. Once the LOI is issued, it is generally too late for the certificate holder and its employees to avail themselves of the Voluntary Disclosure and NASA programs. Moreover, although the FAA is not required to issue an LOI, investigation leading to an enforcement action can be conducted without any requirement that the FAA notify the person or entity that it is investigating. Moreover, the absence of an LOI does not mean that the FAA does not know about the potential violation or that it not going to take any action.

   Do you respond to the LOI? There is a split in the legal community on this one. However, my general recommendation is "YES", for several reasons:

   1. By the time the FAA has issued the LOI and the time for response has run, the FAA's investigation is not only already underway, but has probably been substantially completed; 
   2. Failure to respond to the LOI has traditionally been regarded by the FAA as indicative of poor "attitude" and compliance disposition and possibly be deemed as an admission of culpability;
   3. Organizational certificate holders have to work with the FAA on a daily basis. Failure to respond will eventually work to one's detriment in future dealings with the investigating Inspector and District Office. A certificate holder's perceived credibility and ability to communicate are oftentimes regarded by the FAA as its "stock in trade"; 
   4. Common courtesy. After all, nobody likes to have their letters go unanswered; and>
   5. If the FAA is wrong, this is the time to let it know. Despite its best intentions, the FAA position is not always the correct one or the only viable one. If the FAA has misstated or misunderstood the facts, or if their regulatory or legal interpretations are in error, the certificate holder's LOI response should, at a minimum, set the record straight. 

   However, the response to the LOI should only be made after consultation with and review by experienced aviation counsel. The LOI response, to the extent that it contains any admissions or other inculpatory remarks, will invariably serve as "Exhibit A" to the FAA's case against the organizational certificate holder and its employees. Depending upon the severity of the case, and the level of culpability of those involved, the LOI response may need to be made by aviation counsel on behalf of the certificate holder(s) and not by the certificate holder(s) or employee(s) involved.

   Caveat: Criminal Proceedings
   However, there is a caveat: FAA investigations are rarely criminal proceedings and rarely give rise to criminal proceedings. Fundamental constitutional protections normally afforded to the criminally accused (e.g, the 5th Amendment right against self-incrimination) do not extend to FAA investigations and enforcement actions. Although FAR infractions are normally civil in nature, criminal penalties can attach. In those instances in which there is evidence, or even an indication, of possible criminal activity, any information furnished in connection with a Voluntary Disclosure, a NASA ASRP Report or in response to an LOI can be, and will be, used against the responding party.

   49 U.S.C. §46316 authorizes criminal prosecution and penalties for the knowing and willful violation of any regulation or order prescribed with respect to the FAA's safety duties and powers or any term of a certificate issued thereunder. In addition, the federal false statements statute, 18 U.S.C. Sec. 1001, may apply:

   Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willingly falsifies, conceals or covers up by any trick, scheme, or device of a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.

   To prove a violation of this statute, the government must establish that a party knowingly and willfully made a false statement regarding a material fact that is within the jurisdiction of a federal agency. It is not required that a party make the statement with actual knowledge of the federal agency jurisdiction, or that the statements were even conveyed to a federal agency. Statements and certifications on repair station work orders, maintenance tags and certificates of conformance furnished to air carriers and government contractors, even without an expectation of examination by a federal agency, constitute statements of material facts and may precipitate criminal proceedings.

   Even if the government cannot prove that a party knowingly and willfully made false statements, it does not preclude the government from commencing an investigation or initiating prosecution. In one recent case instituted by the U. S. Attorney in San Francisco, the government commenced investigation and prosecution even where it was doubtful that the party had knowingly and willfully made a false statement--the party merely relied upon certifications from its vendors and suppliers–contending that the party should not have "blindly" relied upon the certifications (which subsequently turned out to be false). The mere initiation of an investigation oftentimes causes a business concern irreparable damage–not to mention the toll on those individuals involved.

   Over the past eight years, there have been no less than 56 federal criminal prosecutions against air carriers, maintenance facilities, parts manufacturers and distributors and their company officials. The vast majority of these prosecutions have resulted in convictions, either after trial or upon guilty pleas, of companies and company officers and employees. Sanctions have ranged up to $3 Million (U.S.D.) in fines, Court-ordered payments of restitution up to $1.2 Million, imprisonment for up to five years, and debarment from engaging in the aviation business for up to five years.

   There have been recent instances in which the FAA, the NTSB and other governmental authorities have conducted concurrent civil and criminal investigations. Oftentimes, criminal investigations have "muscled out" and thwarted the conduct civil investigations to determine the causes of aviation accidents and mishaps.

   In view of what appears to be a very disturbing trend, there are no surefire guidelines. Rather, determinations as to whether or not or how responses are made, and under what circumstances, must be on a case-by-case basis, balancing the benefits of responding against the substantial risks associated with criminal investigation and prosecution. However, it should be borne in mind that a corporation may be held criminally liable for the unlawful conduct of its employees, provided that such conduct is within the scope of the employee's authority and provides some benefit to the corporation–even if the employee's actions are contrary to explicit corporate policy. Moreover, a corporation may be held criminally liable even though no single corporate employee is responsible for the wrongdoing (i.e., the "collective knowledge doctrine").

   The United States Attorney's Manual prescribes consideration of the following factors in determining whether a corporate prosecution should be initiated:

   • Nature and seriousness of the offense, including risk of harm to the public, and applicable policies and priorities governing the prosecution of corporations for particular categories of crime;
   • Pervasiveness of wrongdoing within the corporation (e.g., complicity and condonation);
   • The corporation's history of similar conduct, including prior criminal, civil and regulatory enforcement actions;
   • Timely and voluntary disclosure of wrongdoing and willingness to cooperate in the investigation, including the waiver of the attorney-client and work-product privileges;
   • Existence and adequacy of the corporation's compliance program;
   • Remedial actions taken by the corporation, including efforts to implement an effective or improve an existing corporate compliance program; replace responsible management; discipline or terminate wrongdoers; pay restitution; and cooperate with government authorities;
   • Collateral consequences, including harm to shareholders and employees not proven personally culpable; and
   • Adequacy of non-criminal remedies, such as civil or regulatory enforcement actions.

   Corrective Action
   Appropriate, responsive and meaningful corrective action is required under the Voluntary Disclosure Reporting Program. Moreover, the nature and scope of any remedial actions may be determinative in whether criminal prosecution will be initiated.

   The law requires that air carriers meet the highest level of safety and provide the highest duty of care. Accordingly, carriers should undertake constant and continuous reviews of their programs, policies, procedures and manuals. Although internal evaluation programs are not specifically mandated by the FAR's, most reputable carriers have developed and have implemented them.

   Additional Caveat on Disclosure and Voluntarily-Provided Information
   Is information voluntarily self-disclosed to the FAA by air carriers and other air agencies releasable to the public? Under the Federal Aviation Reauthorization Act of 1996 (Pub. L. No. 104-264), and for the purpose of encouraging voluntary submission of safety and security information, the FAA has been directed not to disclose voluntarily-provided information...(here's the catch) if the FAA determines that doing so would inhibit further disclosure or interfere with security concerns. How the FAA will make this determination, or what guidelines it will use, are anyone's guess at this time. Needless to say, we stand by our prior recommendations, i.e., WHEN YOU DISCLOSE TO THE FAA, ANTICIPATE THAT WHATEVER YOU SAY, AND WHATEVER YOU SUBMIT (manuals, records, employee information, internal memoranda, and the like) WILL EVENTUALLY BE RELEASABLE AND MADE AVAILABLE TO THE PUBLIC!

   When furnishing the FAA with manuals, either in connection withinitial certification, manual revisions, making Disclosures or responding to LOI's, do it in writing and include the following in your transmittal, specifically state:

   These submissions are proprietary. They contain procedures, processes, methods and ideas which are trade secrets and commercial information; they are evolutionary in nature, reflecting the certificate holder's unique operating experience and the combined years of experience and specialized training that its management and personnel have undergone, and numerous man-hours which have been expended in preparing these manuals, and all revisions thereto. Considering this substantial investment, the release of these manuals would certainly cause substantial harm to the certificate holder's present or future competitive position. Objection is made to the release of these submissions or to any other document, material or information that references or describes any of these submissions, including but not limited to manuals or any of the procedures, processes, methods or ideas embodied therein. The requirements for manuals, and the contents thereof, are contained in FAR's which clearly contemplate that the manual is to be prepared solely for the use of that certificate holder and is to be made available only to the certificate holder's own personnel and to representatives of the FAA. To the extent that any certificate holder envisions that the FAA would make available for public release and dissemination copies of those manuals will undoubtedly have a chilling effect. Accordingly, confidential treatment of this submission is requested under 49 C.F.R. §7.69 and under 49 U.S.C. Sec. 40115.

   Second, when identifying employees or former employees of the organizational certificate holder, request confidential treatment of same under 49 C.F.R. §7.73, as disclosure could result in an unwarranted invasion of personal privacy.

   Third, assert that the continued viability and success of the Disclosure program requires that certificate holders be able to report safety concerns and possible discrepancies without fear that these reports will become matters of public record or otherwise disseminated to the public. Disclosure of reported matters will have a chilling effect and undermine the integrity of the self-disclosure program.

   There is no guaranty that the FAA will adhere to these conditions, but it may give the FAA reason to pause or at least consult with you and/or your carrier or air agency client and afford the opportunity to object prior to releasing the information.

   SAAP
   On August 3, 1999, the FAA implemented its Streamlined Administrative Action Process ("SAAP") in an effort to reduce paperwork and shorten the time it takes to resolve "certain violations that do not pose a serious threat to aviation safety". It establishes a process which dispenses with "extensive" investigation; requires that inspectors speak with "alleged violators about noncompliance advising them why their act or omission resulted in a regulatory violation and that enforcement action will be taken"; authorizes the issuance of an administrative enforcement action (warning notice or letter of correction) and establishes procedures for entry of the violation information in the FAA's enforcement database.

   Because it is a relatively new program, it is impossible to evaluate its fairness or effectiveness. However, there are a number of potential problems:

   1. The sole arbiter of whether an alleged violation requires "extensive investigation" is the reporting inspector. There are no criteria other than "when inspectors personally observe an alleged violation or when evidence is readily available". What if the inspector is wrong? There are no rights to appeal the inspector's determination of violation or determination that no investigation is necessary.
   2. Who is the "alleged violator"? With whom must the inspector speak? To the extent that organizational certificate holders come within this program, any employee (regardless of job function and whether or not he or she is authorized to speak for the organization) can essentially become that organization's representative in FAA matters--and whether or not the company knows about it.
   3. Unlike administrative actions against individuals (pilots, mechanics and flight engineers) which are subject to a two-year record expunction, administrative actions against organizational certificate holders remain on record indefinitely and records of same are releasable under the Freedom of Information Act.

   In view of these potential problem areas, organizational certificate holders should establish procedures for guidance of its personnel in dealing with FAA inspectors and in responding to FAA inquiries and concerns.

   Conclusion
   As business entities, organizational certificate holders have many goals--many of which may conflict. The integrity and survival of the aviation industry require that safety come first--ahead of profitability, market share, growth and other noble corporate objectives. It is imperative that organizational certificate holders establish and communicate this basic safety policy and ensure that all employees understand it and recognize their responsibilities thereunder--not only with respect to their own efforts, but also as to what goes on around them. If there are problems, they should immediately be brought to the attention of management so that the causes can be investigated and appropriate corrective actions can be taken. Developing, implementing and maintaining a corporate culture of safety awareness, communication and trust is perhaps the best defense of all.

   AND NOW, FOR YOUR READING ENJOYMENT (as if you haven't been enjoying what you've been reading thus far), HERE IS THE FACT (?) SITUATION FOR THE MOCK TRIAL AT LAST SUMMER'S NTSB BAR-LAWYER PILOTS BAR AVIATION LAW CONFERENCE:

   ADMINISTRATOR,
   FEDERAL AVIATION ADMINISTRATION,
   Complainant

   V.

   ORVILLE WILBUR TORTSMORE,
   Respondent

PREFACE (and disclaimer)
The facts of this case are not true. The names of the persons and aircraft types, the aircraft registration numbers are intended to be fictitious. There are, to the author's knowledge, no airports named Great Northern Plains International Airport (GNP) or Moonshine International Airport (MOO). The organization, Royal and Benevolent Order of Yak Brethren, is intended to be fictitious. Likewise, the author knows of no Annual Winter Solstice Ice Fishing, Sasquatch Sighting and Goose Cook-Off Celebration organized or celebrated by any person, firm, corporation, organization or other entity, notwithstanding the fact that the author himself has cooked a goose or two (or at least had his goose cooked) at that time of year.

Any resemblance to actual persons, living or dead, locations, or registered aircraft is purely coincidental.

FACTS
Orville Wilbur Tortsmore, is a private pilot with airplane, single/multi-engine, and instrument ratings. He has been flying for about 30 years and has accumulated over 4,000 hours of flight time, all of which has heretofore been accident/incident-free. He owns his own aircraft, an Aero-Advance Industries Twin Belchfire, N24BS, a cabin-class twin engine, low wing airplane. Mr. Tortsmore is a self-employed businessman and resides in Moonshine, a small community in the Southeastern United States. N24BS is hangared at Moonshine International Airport (MOO).

On December 20, 2000, Tortsmore and his brother-in-law, Merle "the Burl" Dagwood, departed MOO for Great Northern Plains International Airport (GNP), approximately 2,300 miles to the northwest where they were planning to attend the Annual Winter Solstice Ice Fishing, Sasquatch Sighting and Goose Cook-Off Celebration of the Royal and Benevolent Order of Yak Brethren. The flight to GNP was without incident and they arrived late in the evening of December 22. After they secured the aircraft in a transient tie-down area, they departed the airport and did not return until the morning of December 27. During that time, it had snowed on several occasions (in fact, on Christmas eve, there was a blizzard).

When they arrived at GNP for their planned departure on December 27, they found that the aircraft was completely covered with snow and ice, and that the majority of the airport was under four feet of snow, with drifts in some locations as high as six feet. These conditions made departure impossible. Tortsmore and Dagwood elected to remain another night, finding last minute accommodations at the Last Chance Luxury Resort, Casino and Spa.

They returned to GNP the next morning (December 28) and found that conditions had not changed. Snow removal crews reported that morning, but a large fogbank, the infamous "GNP Slump", had enveloped the airport preventing any departures as weather was substantially below minimums. Tortsmore and Dagwood had no alternative but to spend another night and returned to the Last Chance.

Upon their return early in the morning of December 29, they found that an additional 8 inches of snow had fallen and weather was still below minimums, precluding their departure. Hence another night. As can be imagined, after several days of festivities with the Yak Brethren, and a few additional, and unplanned evenings at the Last Chance, Tortsmore and Dagwood were running out of money and available credit on their charge cards.

They returned to the airport on December 30. Although weather conditions had improved, snow removal was still underway. Runways and taxiways had been plowed, but the transient area had not--the aircraft was under and surrounded by snow, thus preventing departure. They returned to the Last Chance and over after dinner libations, noticed that it had started snowing again. Another 3 inches fell that evening.

December 31 was a beautiful day. It was cold, but ceiling and visibility were unlimited. Snow removal crews were busily at work, and the transient area immediately surrounding N24BS had been plowed.

Preparatory to their departure on December 31, Tortsmore and Dagwood removed the snow from the aircraft, and with the assistance of the local FBO, moved the aircraft into a heated hangar to deice and to facilitate the conduct of a detailed preflight inspection (which Tortsmore performed while Dagwood paid the FBO's bill), incident to which he determined that all aircraft equipment was working properly. Tortsmore obtained a detailed weather briefing from and filed a VFR flight plan with the Flight Service Station. Although it was cold, the weather was clear--ceiling and visibility were unlimited, surface winds were light and variable, and winds aloft were out of the northwest at 20 knots. It was anticipated that the return flight to MOO, although quite lengthy, would be without incident. The return flight was going to take two full days, with an overnight stop at the half-way point. However, given the extended forecast, and absent any unforeseen difficulties, they anticipated an arrival at MOO late in the evening of January 1, 2001, in sufficient time to have a night cap and belatedly ring in the new year with their respective spouses, the lovely Ludmilla and vivacious Oxana.

Prior to taxiing for departure, he was instructed by Air Traffic Control (ATC) to taxi to Runway 34R. The transient parking area in which N24BS was situated was very close to Taxiway A-1. From his chart, he also knew that an East Taxiway paralleled Runway 34R.

The several snowfalls of the previous week had turned the entire airport white. Taxiway and runway signs were obliterated by snow banks. The taxiways and runways, although usable, had not been completely plowed and no taxiway, runway or hold line markings were visible.

After starting the engine, consulting the appropriate charts and contacting GNP Ground Control, N24BS left the transient area. At Tortsmore's request, Dagwood kept an eye out for airport markings and traffic. From the transient area, the aircraft made a right turn onto Taxiway A-1, heading west. Tortsmore then made a left at what he thought was the East Taxiway, but which subsequently turned out to be Runway 34R. After taxiing south for some time on what he initially thought was the East Taxiway, Tortsmore came up to a spot at which the snow had eroded from the surface and saw what appeared to be runway markings. He immediately called ATC and asked if he was on the taxiway or the runway. Twelve seconds later, Air Traffic Control Specialist (ATCS) Stella Claris responds: "N24BS, you're on the taxiway." A few seconds later, ATCS Claris transmits: "N24BS, let me get my binoculars." Ten seconds thereafter, another aircraft, an AirRover Super Visigoth, N22T, on a long final approach transmits: "Hey, that Twin Belchfire is on the runway!" ATCS Claris then advised N24BS that it was on the runway.

No conflict was created. N22T was on a sufficiently long final approach, and at a sufficient slow approach speed (accounting for its unique STOL capabilities) that N24BS was able to depart from the runway. N22T landed without incident.

ATCS Claris reported this incident to her supervisor, Tower Manager Stu DeBaker Packard, who prepared an incident report and took the necessary steps to ensure that the tape recordings of communications between it and N24BS were preserved.

With the exception of this possible incursion and some stronger than forecast headwinds, Tortsmore and Dagwood's return flight to MOO was without incident. They landed at MOO at 3 A.M. on January 2, 2001. Upon his arrival home, and before retiring for the evening (or early morning), Tortsmore prepared a NASA Aviation Safety Reporting Program Report, pursuant to FAA Advisory Circular 00-46D. In the course of his preparing the NASA Report, Tortsmore realized that the last annual inspection performed on N24BS had been signed off on December 13, 1999. Hence, commencing January 1, 2001, the aircraft was "out of annual". In his NASA Report, he disclosed the runway incursion and the out of date annual inspection. His NASA Report was timely filed.

Upset by his time away from home over the holiday season, his late return in the early hours of January 2, and genuinely worried about her husband's safety, Mrs. Tortsmore independently discovered that her husband's last airman medical certificate had been issued on December 1, 1998, and had expired on December 31, 2000. In a fit of rage, and unbeknownst to her husband, she telephoned the FAA's toll-free hotline to report that her husband had flown without a current medical certificate on January 1 and 2, 2002. In a heated argument later that evening, she told her husband what she had discovered and that she had reported this to the FAA--although she conceded that she did not think that this report would precipitate any enforcement action or the imposition of any sanction. Needless to say, Mr. Tortsmore became very upset.

Mr. Tortsmore visited FAA-Designated Aviation Medical Examiner Will E. Feelgood, M.D., on the morning of January 3, 2001 and was issued a new Third-Class Airman Medical Certificate. Additionally, on that same day, Mr. Tortsmore delivered N24BS to Moonshine Airmotive, the local FAA-certificated repair station, where it underwent correction of minor squawks and completion of an annual inspection. The annual inspection was signed off on January 10, 2001 by IA Johnnie "Walkaround" Walker.

HISTORY OF THE CASE
On May 31, 2001, the FAA, by and through its Regional Counsel, initiated an enforcement action against Mr. Tortsmore, inthe form of a Notice of Proposed Certificate Action proposing to suspend his airman certificate for 120 days for alleged violations of Federal Aviation Regulations (FAR's) Secs. 91.123(a), 91.129(i) and 91.13(a), 61.3(a) and (c), 91.203(a)(1) and 91.7 (please see REGULATIONS, below). Mr. Tortsmore requested and attended an informal conference accompanied by his attorney. Although settlement was explored, the parties could not come to a meeting of the minds. The FAA the issued an Order of Suspension, which Mr. Tortsmore has appealed to the NTSB.

The Order of Suspension serves as the Complaint. It should be noted that in his Answer, Mr. Tortsmore, through his attorney, has denied the majority of allegations contained in the Complaint, and has pled numerous affirmative defenses.

REGULATIONS

91.13 Careless or reckless operation.

(a) Aircraft operations for the purpose of air navigation. No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.

91.123 Compliance with ATC clearances and instructions.

(a) When an ATC clearance has been obtained, a pilot in command may not deviate from that clearance, except in an emergency, unless that pilot obtains an amended clearance. However, except in Class A airspace, this paragraph does not prohibit that pilot from canceling an IFR flight plan if the operation is being conducted in VFR weather conditions. When a pilot is uncertain of an ATC clearance, that pilot must immediately request clarification from ATC.

91.129 Operations in Class D airspace.

(i) Takeoff, landing, taxi clearance. No person may, at any airport with an operating control tower, operate an aircraft on a runway or taxiway, or take off or land an aircraft, unless an appropriate clearance is received from ATC. A clearance to "taxi to" the takeoff runway assigned to the aircraft is not a clearance to cross that assigned takeoff runway, or to taxi on that runway at any point but is a clearance to cross other runways that intersect the taxi route to that assigned takeoff runway. A clearance to "taxi to" any point other than an assigned takeoff runway is clearance to cross all runways that intersect the taxi route to that point.

61.3 Requirements for certificates, ratings, and authorizations.
(a) Pilot certificate.

A person may not act as a pilot flight crewmember in command...unless that person has a valid pilot certificate...in that person's physical possession or readily accessible in the aircraft when exercising the privileges of that pilot certificate....

(c) Medical certificate.

...a person may not act as pilot in command or in any other capacity as a required pilot flight crewmember of an aircraft...unless that person has a current and appropriate medical certificate that has been issued under Part 67 of this chapter....

91.7 Civil aircraft airworthiness.
(a) No person may operate a civil aircraft unless it is in an airworthy condition.

91.203 Civil aircraft: Certifications required.
(a) ...no person may operate a civil aircraft unless it has within it the following:

(1) An appropriate and current airworthiness certificate....

THE HEARING
The hearing is before an Administrative Law Judge of the National Transportation Safety Board, the agency having appellate jurisdiction over FAA certificate actions.

Two witness are expected to testify: the Respondent, Mr. Tortsmore, and the GNP Airport Operations Manager, Mr. I. Needmore Gates. Both parties were going to call ATC Specialist Seymour Claris to testify but have stipulated to his testimony consistent with that which has been recited above. Additionally, the parties have previously stipulated to the authenticity of the tape re-recording of ATC communications, and thus, there is no need to call Stu DeBaker Packard to testify.

At the commencement of the hearing, Respondent's counsel amends the answer to admit additional allegations of the Complaint. In response, Complainant's counsel moves for judgment based upon these admissions. The Administrative Law Judge concludes that while a prima facie case has been established by the admissions, the case should be tried on the affirmative defenses that have been raised in the Answer. The outcome remains to be seen.

HAVE A HAPPY, HEALTHY AND SAFE HOLIDAY SEASON AND NEW YEAR!

All the best,

Mike, Steve, Chris, Jason and Chelsea