A certificate holder recently asked me whether an FAA inspector could violate him for not following the inspector’s demand which the certificate holder believed was not in the Federal Aviation Regulations (“FARs”). My initial, lawyerly answer was, “not necessarily.” Not very helpful, I know, but further information will help clarify.
With respect to FAR compliance, it is important to know that you are only required to comply with the FARs and the FAA’s valid interpretations of those FARs. In order to suspend or revoke your certificate, or authority, the FAA has the burden of proving that you violated an FAR. The confusion arises when you interpret an FAR one way and the FAA inspector interprets it another way.
If you disagree with the demands placed upon you by an inspector, you should ask the inspector to identify the regulatory basis/justification for the demand. The inspector may simply identify the applicable FAR, or he or she may also identify “guidance” explaining the inspector’s interpretation. The “guidance” could be in the form of an Advisory Circular, a legal interpretation from the FAA Chief Counsel’s office or internal FAA documentation. At that point, you can evaluate whether the inspector’s interpretation is accurate.
If the inspector fails to provide anything beyond a cite to an FAR, then you, or an aviation attorney, will need to do some research (e.g. reviewing FAA guidance, other regulations and statutes, and case law) to determine whether your interpretation has any legal support. The results of your research will dictate whether you have a basis to dispute the inspector’s interpretation. If you discover support for your interpretation, then further discussions are in order with the inspector, his or her supervisor, or the manager of the FSDO.
Unfortunately, the FAA’s interpretation of an FAR, whether right or wrong, will trump your interpretation. If the FAA believes that you violated the FAR based upon the FAA’s interpretation then, yes, enforcement action will likely be in your future.