When the FAA has completed an audit of your facility and it has found something that it believes is a violation, it will likely open an enforcement investigation report (EIR) file and send you what I call a “fishing letter.” “FAA Order 2150.3B FAA Compliance and Enforcement Program” is the guidance FAA safety inspectors use to find example letters and enforcement policies. A “fishing letter” comes from the Order and includes the following paragraph:
“This is to inform you that the FAA is investigating this matter. We wish to offer you an opportunity to discuss the incident in person or submit a written statement within 10 days following receipt of this letter.
Your statement should contain all pertinent facts and any mitigating circumstances you believe may have a bearing on the incident. If we do not hear from you within the specified time, we will process this matter without the benefit of your statement.”
I picked the term “fishing letter” because of the natural way that the verbiage in this paragraph compels the unknowing certificate holder to write an apology letter, resulting in an admission of any and all of the allegations. Up to this point any findings are simply that — findings. They have not been proven to be violations. In my experience, it is just as likely that the FAA has misinterpreted the findings and there is not a violation. The problem is that if the certificate holder “bites,” he or she will, without further investigation, provide the FAA with everything that is needed to successfully process the violation. The FAA will not read you your Miranda warning, but “everything you say can and will be used against you” in the course of the FAA’s investigation.
When I became aware of the fact that all FAA inspectors are obliged to file a violation when they suspect an infraction, and that these letters were being sent out, I began to see the FAA a little differently.
I have since been a proponent of knowledge: Every certificate holder should become an expert at the rules and regulations that they are to operate under and know, without a doubt, how they are complying with each and every applicable rule. Then, if there is ever an investigation, they will know immediately if the findings are valid or not and will be able to respond intelligently to a letter of investigation.
A side note, if you receive a letter of investigation and don’t know if the allegations are legitimate, ask the FAA for more time to look into the matter. Don’t send an apology letter; it will only seal your fate. Please refer to AMT January 2007, Around the Hangar article “Hello, I’m from the FAA” at www.amtonline.com to find a detailed explanation of the FAA Compliance and Enforcement Program.
Letter vs. spirit of regulations
My focus is primarily on the business aviation community, but what prompted this article is what happened to the airline industry this spring. It boiled down to the difference between, “the letter of the regulation” vs. “the spirit of the regulation.” It seems the purpose of regulations is to maintain the safest possible aircraft and flights. To do so, the FAA would be wise to file violations for infractions to safety, rather than play the game of interpretation in order to try to make a regulatory infraction stick. Two cases in point:
Southwest Airlines’ airworthiness directive compliance issue was made very public by Congressional involvement. I agree wholeheartedly that the actions taken by the FAA inspector to “approve” flight without compliance with applicable ADs were a result of an inappropriate relationship between the airline and the specific FAA inspector assigned to the airline and should never have happened. The event prompted additional audits of 10 other airlines to verify AD compliance.
The FAA auditors felt compelled to make an example of someone, in my opinion, to show that they are taking action. In this case American Airlines was one such example. As a result of the audit, American Airlines grounded several aircraft to make adjustments to previous compliance with airworthiness directives that were not done exactly like the AD specified (as interpreted by the FAA auditor). American Airlines had assisted Boeing in the authoring of the service bulletin that the AD covered.