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.