If your company holds any sort of FAA certification, air carrier or repair station, or even if you personally are certificated as a pilot or mechanic, you are under the surveillance of the FAA. It is the FAA’s duty to identify and correct actions that are taken by certificated individuals and entities that are contrary to the Code of Federal Regulations. Today I would like to cover the FAA enforcement program and also give you some “for what its worth” advice on how to deal with an FAA enforcement action.
Let me first say, I believe that the core objective of the FAA and its procedures described here are well-intended, and we as an industry must accept the fact that we are in a business that falls subject to very specific regulations that are rightly intended to maintain the highest level of safety. If I could wish for one thing however, it would be the use of “instant replay” when the FAA “throws the flag”. Too often we have been called into situations where the FAA thought it saw something and what it saw turned out to actually be much different than it thought and completely in compliance with the regulations.
Let’s take a close look at the process the FAA follows when taking enforcement action against a certificate holder. The investigative process, referred to as the FAA enforcement program, is detailed in FAA Order 2150.3A.
FAA enforcement program
Here is how the enforcement program is designed to work. When an FAA inspector is performing surveillance on his or her assigned certificate holder(s), part of the job, more specifically obligation, is to identify regulatory violations and take enforcement action against those found in violation. As mentioned before, a certificate holder is any FAA certificated airman or agency (i.e., pilots, mechanics, repair stations, and air carriers).
Once the FAA safety inspector believes that a violation has occurred, the process goes something like this:
- An EIR (Enforcement Investigative Report) file is opened and given a unique number that will identify the package/violation throughout the process.
- A “Letter of Investigation” is written and sent via certified mail to the certificate holder to make him/her aware that the FAA believes a violation has occurred. The letter is a prewritten “canned” letter that must contain certain elements. One of the elements is a request for the certificate holder to respond to the allegations. (Note that any response to such a letter becomes a permanent part of the investigation package. What they don’t tell you, and don’t have to tell you is “Anything you say can and will be used against you.”)
- The investigation is then completed and the evidence compiled.
- The investigating inspector makes a determination as to what “enforcement action” should be taken based upon the findings of the investigation, your response, and the guidelines of Order 2150.3A.
- The inspector will then submit the package to FAA regional council (an FAA attorney) with a recommendation for action to be taken.
- Enforcement action is taken against the certificate holder. The regional council sends the certificate holder what is called “Notice of Proposed Civil Penalty,” or “Notice of Proposed Certificate Action.”
- The certificate holder must then choose from several options, how they would like to respond.
There are two categories of enforcement action for us to discuss, administrative and legal.
Administrative action is the least forceful and generally results from a minor technical violation with no impact on safety. According to the FAA, “The purpose for administrative enforcement action is to provide the field inspector with administrative means for disposing of minor types of violations which do not require the use of legal enforcement sanctions.” (Ref FAA Order 2150.3A, Chapter 11).
Legal action really comes in one or a combination of two forms, 1) Certificate action – suspension or revocation of the certificate, 2) Civil action – levy of a monetary fine against the certificate holder.
Certificate actions consist of either a suspension or a revocation of certificate. Suspension can be for a fixed period of time or indefinite. Certificate suspensions of a fixed number of days are issued as a disciplinary action “Hand Slap” against the violator and in an effort to deter future violations. Suspensions of an indefinite period of time are issued to prevent a certificate holder from exercising the privileges of his/her certificate until he/she has successfully demonstrated that he/she meets the requirements to hold the certificate. And then there is the most drastic measure, certificate revocation. Certificate revocations are issued when the FAA determines that a certificate holder is no longer qualified to hold a certificate. Orders of suspension and revocation issued by the FAA may be appealed to the National Transportation Safety Board, and the Board’s decisions may be reviewed by a U.S. court of appeals.
A civil penalty is basically just a monetary fine. When it comes to civil penalties, air carriers are held to a higher standard. An air carrier can be subject to a penalty of up to $11,000 for a single violation of a regulation; other certificate holders (repair stations, mechanics, pilots, etc.) can receive a penalty of up to $1,100 for each violation.
For more detailed information on enforcement actions refer to: http://www.faa.gov/
Most generally, the event that creates a concern by the FAA that your organization may have violated a regulation is a “friendly visit” from your assigned safety inspector. If you are a repair station or an air carrier, your organization is subject to yearly or more frequent “visits” by your FAA inspectors. In many cases, these visits are treated very lightly by the certificate holder, without an understanding of the importance of the outcome of the visit. Now let’s take a moment and look at how you might better handle FAA yearly inspections to minimize unnecessary confusion with the FAA.
Guidelines for an FAA visit
The FAA’s job, defined when they took their oath as safety inspectors, is to expose and take enforcement action on any violations discovered. The yearly inspection is intended to find noncompliance with your procedures and/or violations of specific regulations. Not all inspectors take enforcement action, and we can appreciate that, however, it is important to know that technically they are obliged to do so if they find something. So, how should you prepare for and handle a visit from your assigned FAA safety inspector?
The relationship that we have with our FAA inspector is important and it is important to maintain amicable cordial relations as you would in any business relationship, but be careful not to fall into a subordinate position to your inspector. You do not work for him/her. As a matter of fact, in a round about way, being the government, your inspector works for you. What can thrust you into a subordinate position with your FAA inspector is dependence upon them for guidance and answers to regulatory questions. One of the first rules in compliance management is to know and understand the regulations and how you are in compliance with each one that affects your business.
The FAA visit should last a day or two. Following these guidelines will keep you in control of most situations that could arise.
- Assign someone within your organization, a representative, to be with the FAA at all times. The person assigned should know where to find information the FAA will want to see, or have quick access to someone who knows where things are kept.
- Refrain from entering into conversation about any specific events that have taken place. The FAA should use your documentation to find answers they need. Instruct your representative on this.
- Let the FAA know that your representative will make copies of anything they might need. Don’t give the FAA free access to your copy machine. Instruct the representative to always make two copies of anything the FAA wants a copy of, one for you as well.
- Provide only the information that is requested. If the FAA asks to look at “the work orders,” ask them to be more specific. “What type of work order would you like to see?” Provide one work order at a time (for each inspector), putting them away as they are finished. Stay organized.
- Remember to keep only two years maintenance records (as a repair station). That is all you are required to have available for inspection.
- Do not get into any arguments with your FAA inspector. Let them do their job. Remember, you already hold a certificate.
- Do not agree to make any major changes in your procedures on the spot. Most of the time a change requested by the FAA verbally is simply that inspector’s opinion. Major changes to procedures can cost your company lots of money in retraining and inefficiencies. Wait to see if the inspector includes “his/her opinion” in the letter to you at the end of the inspection, then address it properly.
Following all FAA surveillance inspections, you should expect a letter outlining the findings and requesting a letter of response showing the corrective action you have taken. Keep copies of all correspondence you have with the FAA. If you receive a Letter of Investigation (LOI), call a regulations expert or an aviation attorney, dependent upon the nature of the allegation before, you respond.
An FAA Letter of Investigation is an indication that your inspector has opened an Enforcement Investigation Report, (EIR) which, as you remember, is the first step in the FAA enforcement program described above. This is how you know the enforcement process has started. To avoid too much disruption in your organization, seek advice and direction from an expert or aviation attorney. The FAA enforcement program is completely understood by any good compliance consultant or aviation attorney.
It is not our intention to create fear or undue concern, however, if you have been lackadaisical about FAA surveillance inspections we hope that this explanation has shed new light and understanding and that you will be able to handle any inspection with more efficiency and less risk.