Working with the FAA: A look at the enforcement process

Around The Hangar

Working With The FAA

A look at the enforcement process

By Joe Hertzler

October 2004

Joe Hertzler

As I think about the aviation maintenance business it occurs to me that our business is somewhat unique in that we are a highly regulated industry. For that reason, the governing entity the FAA, becomes a part of our business. What this means is that business decisions can be greatly influenced by actions the FAA takes and our response to those actions. Believe me folks, how you handle the FAA and their involvement in your business can make the difference between marginal success and meeting your business goals.

The key focus of this issue is to look at the FAA's enforcement program and how it works. Our objective is to provide you with the information required to properly manage the FAA's involvement in your business and equip you to be proactive in your FAA dealings rather than reactive.

To start with, 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
When an FAA inspector is performing surveillance on an assigned certificate holder(s), the majority of his or her job is to identify regulatory violations and take enforcement action against those in violation. 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, there are specific procedures that, being a government agency, he/she must follow. The process goes something like this:

• An EIR (Enforcement Investigation Report) file is opened and given a unique number that will identify the package/violation throughout the process.
• A 'Letter of Investigation' (LOI) 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 pre-written 'canned' letter that must contain certain elements. One is a request for the certificate holder to respond to the allegations. (It's important to note that any response becomes a permanent part of the investigation package. What they don't 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 the 'enforcement action' that should be taken based upon the findings, your response, and the guidelines of Order 2150.3A.
• The inspector will then submit the package to FAA regional council (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 of how to respond.

Enforcement action is a term used to describe the official action taken by the FAA toward those found, through FAA investigation, to be in violation of regulations. There are two categories of enforcement action: administrative action and legal action.

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 don't 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
Certificate actions consist of either a suspension or a revocation of certificate. Suspension can be for a fixed or indefinite period of time. 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 they have successfully demonstrated the requirements to hold the certificate. The most drastic measure is certificate revocation. This is 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.

Civil penalties
A civil penalty is basically a monetary fine. When it comes to civil penalties the dividing line for monetary amounts to be assessed is drawn between individuals (mechanics and pilots) and small business concerns (small repair stations and air carriers) and entities that are not small business concerns (large repair stations and air carriers).

Civil penalty assessment guidelines changed Dec. 12, 2003. For violations of certain laws and regulations occurring after Dec. 12, 2003, the FAA has the authority to issue a civil penalty of up to $25,000 per violation not to exceed $400,000 against large repair stations and air carriers. For mechanics, pilots, small repair stations, and small air carriers, after Dec. 12, 2003, the FAA has the authority to issue a civil penalty of up to $10,000 per violation not to exceed $50,000.

There is no dollar limitation for violations of the Hazardous Materials Transportation Safety Act or the Hazardous Materials Transportation Regulations, and the penalty for each violation of these requirements ranges from $250 to $30,000.

Before a penalty is assessed, an individual or entity may appeal the notice proposing a civil penalty. A hearing before one of the Department of Transportation's administrative law judges is available. Any decision by an administrative law judge may be appealed to the FAA Administrator. Final decisions by the Administrator or the district court may be appealed to a U.S. Court of Appeals.

For more detailed information on enforcement actions refer to: http://www.faa.gov/agc/enforcement/index.htm.

'I'm here to help ya'
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.

We have a few suggestions on how you might 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, however, it's important to know that technically they are obliged to do so if they find something. So how should a visit be handled?

The relationship with our FAA inspector is important and it's important to maintain cordial relations as in any business relationship, but be careful not to fall into a subordinate position. You don't work for him/her. In a way, being the government, your inspector works for you. Dependence upon the FAA for guidance and answers to regulatory questions can thrust you into a subordinate position. One of the first rules in compliance management is to know and understand the regulations and how to comply.

The FAA visit should last a day or a two. Follow these guidelines to stay in control.

1. Assign a representative within your organization to be with the FAA at all times. The person assigned should know where to find or have quick access to information the FAA will want to see.
2. Refrain from entering into conversation about any specific events. The FAA should use your documentation to find answers they need. Instruct your representative on this.
3. Let the FAA know that your representative will make copies of anything they might need. Instruct the representative to always make two copies, one for you as well.
4. 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 at a time (for each inspector), putting them away as they are finished.
5. Remember to keep only two years' maintenance records (as a repair station). That's all you're required to have for inspection.
6. Don't get into any arguments with your FAA inspector. Let them do their job. Remember, you already hold a certificate.
7. Don't agree to make any major changes in your procedures on the spot. Most of the time a verbal change requested by the FAA is simply that inspector's opinion. Major changes to procedures can cost your company money. Wait to see if the inspector includes it in the letter they send to you summarizing their visit and listing their findings, and then address it properly.

Following all FAA inspections, you should expect a letter outlining the findings and requesting a letter of response showing the corrective action taken. Keep copies of all correspondence with the FAA. If you receive a letter of investigation, call an 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, which, as described above, is the first step in the FAA enforcement program. This is your first indication that the enforcement process has started.

Remember, the FAA is always going to be a part of your business but to remain profitable you need to be purposeful about being in compliance and maintain control of your business at all times.

Joe Hertzler is the president of AVTRAK Inc., an Aurora, Colorado-based company. He is an Airframe and Powerplant mechanic with Inspection Authorization and also a private pilot.