Greg Reigel's Aero Legal Services

When, If Ever, Should A Certificate Issued By The FAA Be Surrendered?

By Gregory J. Reigel

© January, 2019 All rights reserved.

Surrendering Because You Are Required To

A certificate issued by the FAA may be suspended or revoked by an NTSB administrative law judge (“ALJ”) following a hearing on the merits of the allegations contained in an order of suspension or an order of revocation. In the case of suspension or revocation following a hearing, in the absence of a stay pending appeal, the ALJ will also order the certificate holder to surrender the suspended or revoked certificate to the FAA. If the certificate holder does not surrender the certificate (or has not previously surrendered the certificate), the FAA then follows up with a letter to the certificate holder demanding surrender of the certificate. But, does the certificate holder have to surrender the certificate in this situation? The answer is “yes.”

Similarly, if the FAA issues an emergency order of revocation (typically in falsification cases or other cases where the FAA alleges a lack of qualification to hold the certificate), that order is effective as soon as the FAA issues it. And unless the NTSB determines that an emergency does not exist, the certificate holder is required to immediately surrender the certificate to the FAA.

In either situation, if a certificate holder fails to surrender the certificate, the FAA can and will assess a civil penalty against the certificate holder for failure to surrender the certificate as required by the order of suspension or revocation. Under 14 CFR 383.2, depending upon the type of operator (e.g. individual, small business, air carrier etc.) and type of violation, the penalties can range from $1,466 for an individual (and in some cases a small business) to $3,334, $6,666, $13,333 and up to $33,333 per day.

But what about when an order of suspension or revocation hasn’t been issued? Does it ever make sense to voluntarily surrender a certificate? Well, it depends.

Surrendering When You May Want To

FAA-certificates may be voluntarily surrendered for cancellation (see, e.g., 14 CFR §61.27(a), , 65.15, 119.61(a)(1), 145.55(a) and (b)). But, according to FAA Order 2150.3C, FAA Compliance and Enforcement Program, FAA personnel refuse the voluntary surrender of a certificate if it appears the certificate is being surrendered to avoid certificate action.

If the FAA databases or other reliable information reveal to the FAA that the certificate holder is the subject of an enforcement investigation or legal enforcement action, then the FAA will refuse the certificate holder’s attempt to voluntarily surrender a certificate. However, this FAA policy typically does not apply to certificate surrenders pursuant to reexamination or reinspection.

Voluntary surrender of an airman medical certificate is a little bit different. If the FAA determines that an airman holding a medical certificate does not meet the qualification requirements of 14 C.F.R. Part 67 at a point in time after the certificate has issued and beyond the period within which the FAA can deny issuance of the certificate, then the FAA will refuse an airman’s attempt to surrender his or her airman medical certificate. Additionally, if the airman has (1) received a verified positive result for a DOT-required drug test or a DOT-required alcohol test result of 0.4 or above alcohol concentration, or (2) has refused to submit to a DOT-required drug or alcohol test, then the FAA will refuse the airman’s attempt to voluntarily surrender the medical certificate.

Why might this be important? Under various regulations, including those governing BasicMed (14 C.F.R. Part 68) as well as sport pilot operations (see 14 C.F.R. Part 61.23) an airman may not exercise the privileges granted by those regulations if the airman has had an applicatio for a medical certificate denied, or an issued medical certificate suspended or revoked. However, surrender of a medical certificate does not specifically prevent an airman from exercising privileges under those regulations. So, surrender of the certificate is preferable to suspension or revocation.

From the FAA perspective generally, and specifically with respect to medical certificates, the agency is concerned that a certificate holder who voluntary surrenders a certificate when the FAA believes the certificate holder is not otherwise qualified to hold the certificate, could still exercise similar privileges under regulations that do not require a certificate.

When Will The FAA Actually Accept A Voluntarily Surrendered Certificate?

Generally, the FAA will accept surrender of a certificate in the following circumstances:

Voluntary surrender unrelated to an enforcement case. 14 C.F.R. § 61.27(a) provides that an airman certificate may be surrendered for (1) cancellation; (2) issuance of a lower grade certificate; or (3) another certificate with specific ratings deleted. When an airman surrenders the certificate, he or she must also include a signed statement that includes the following or its equivalent:
“This request is made for my own reasons, with full knowledge that my (insert name of certificate or rating, as appropriate) may not be reissued to me unless I again pass the tests prescribed for its issuance.”
The FAA wants the airman to fully understand that by surrendering the certificate the airman has no reinstatement rights. Once surrendered, the certificate will be cancelled;
Voluntary surrender in anticipation of FAA certificate action. In this situation the FAA will need to document that the surrender is, in fact, voluntary and that it is absolutely clear that the FAA did not somehow coerce the airman into surrendering his or her airman certificate (other than the coercion perceived by an airman as a result of an anticipated certificate action);
Voluntary, temporary deposit of an airman’s certificate to the custody of the FSDO when an airman’s competency has been questioned by the FAA and the enforcement action or reexamination is justifiably delayed. Although not required, an airman may temporarily deposit his or her airman certificate voluntarily in the custody of a FSDO while the airman is preparing for a reexamination of competence. The deposit may only be for a maximum of 30 days at a time, but may be continued for additional 30 day periods; and
Surrender at Regional Counsel’s request. This occurs after an order of suspension or order of revocation has been issued against the airman’s certificate(s).

Conclusion

The short answer to the question of whether or when to surrender a certificate is that surrendering a certificate will likely not get you out of trouble once an investigation or enforcement action has started. However, in certain situations surrender of a certificate may make sense. And even if you decide to surrender a certificate, it is important to understand under what circumstances the FAA will and will not accept surrender of that certificate.

If you would like additional information about how FAA aviation safety inspectors are required to handle certificate surrenders, you may review FAA Order 8900.1, Flight Standards Information System, Volume 5, Chapter 2, Section 5.

As always, you can also contact me with any questions. If you are in a situation where you are contemplating surrendering a certificate and you are unsure whether you can or should, I would be happy to help.