FAA Enforcement Refresher
Sometimes, it’s complicated
By Stephen P. Prentice
Recently, I ran into some new technicians who were not up to speed on the subject of FAA enforcement actions and what can happen when they get after you for alleged violations of the FAR’s — especially Part 43. So, as a New Year’s start, a brief shot on this subject seems to be in order. By the time you all read this, we will have a new leader at the DOT, but the same Administrator (Jane Garvey) unless she chooses to resign, and that’s not likely — too cushy a job. It will be interesting to see the interaction, keeping in mind that the Administrator works for the DOT.
Enforcement – the important first step
Whenever you see or hear of an FAA person looking into something you have done or repaired, get out your trusty NASA ARC #277D form, fill it out, and mail it! What is this form you say? Well, you better be aware of it and make use of it when necessary. It is the maintenance variety of the aviation safety reporting system form.
This system was established to identify issues in the aviation system that need attention. The program is described in FAA Advisory Circular 00-46D. The information you provide (about what you suspect might be an FAR violation by yourself) cannot be used against you in any way as stated in FAR 91.25. This FAR prohibits reports filed with NASA from being used for FAA enforcement purposes. The report is not made available to FAA. The identity strip attached to the form is returned to you, stamped as received by NASA, and the date. You are totally anonymous. A further tip is to keep a copy of the form for your records and send it certified mail, return receipt requested. This is your double insurance of proof of mailing.
Why do this? Well, if this is your only report within five years, you are immune from imposition of any sanctions as a result of what is reported, when and if FAA brings an enforcement action against you. Let the case go to hearing if necessary and if you wind up being found guilty in a certificate action or civil penalty case, you bring out your copy of the NASA report. Simply show it after the hearing is concluded. Under most conditions, you will not be held to the sanction. Do not reveal it or introduce it during the hearing — the FAA can use it against you if you do!
BUT, and it is a big but, there are some rules. The most important of which is to get the report filed A.S.A.P. There is a 10- day rule involved from the date of the "incident." Even if the time element is in question, file a report anyway! It can’t hurt you and may help you. So, for example, in the case of a pilot busting a Class B airspace restriction, he knows when it happened and should send his report immediately, whether or not he thinks the FAA knows about it. In the case of a mechanic, an example would be releasing an aircraft to return to service without making a log entry. If you could not get the log back into your hands, you should file a report immediately. Anytime, there appears to be anything out there that might come back to haunt you, file a report. Read AC 00-46D and FAR 91.25. Airline pilots and technicians don’t go anywhere without their ARC 277 form.
How it starts
When the FAA begins their "focus" on you for enforcement, they will do it with a Letter of Investigation, more commonly called an "LOI." Keep in mind that this investigation letter usually comes long after (beyond 10 days) the alleged infraction occurred. This is the reason you should never wait to file the form in order to see if anything is going to happen as a result of what you feel might be a violation.
In the LOI, the inspector assigned to your case will describe the event in question, state that it may or may not be a violation of the FAR, and then ask you if you know anything about it. Most describe this as a fishing expedition. You can answer in writing if you want, although I never recommend that you do. Written responses are to be avoided because of their unequivocal character. Simply call the inspector acknowledging receipt of the letter and, in as courteous a manner as possible, simply state that you don’t have anything to add to the enquiry. Never admit to any violation. If you have consulted with an attorney, you need not mention it. Experts will tell you that the FAA makes most of their cases from the mouths of the airmen concerned!
However, if you have information that could clearly remove you from the incident then by all means tell him or her about it. There is no need to be coy where you can show that you are not involved. Just be careful that in the process you don’t talk yourself into some other FAR violation. This is why any counselor would tell you to say nothing. You have to be careful.
The Miranda law
Too many people think that the so-called Miranda law will protect them from volunteered statements without the usual warning. Not true!
A word of caution about responding to the LOI in writing or orally: Be aware that anything you say in your response can be used against you in a certificate or civil penalty action. The FAA will not tell you this and there is no requirement for them to do so. You are not entitled to any "Miranda" warning in administrative proceedings.
However, there is a hazy area out there. Remember the mechanics who were indicted in Federal Court for crimes in the ValuJet case? This was a case where the FAR violations resulted not only in administrative action revoking their certificates, but criminal charges were also filed afterwards. There could be an argument that all the evidence collected from the airman in the administrative case could not be used in the follow up criminal case absent an appropriate Miranda warning at the first interview. Furthermore, some criminal defense lawyers would suggest that the whole case could be tainted. However, in the ValuJet case, it did not matter since the men were found not guilty of any crimes by a Federal jury – much to the displeasure of the US Attorney’s office in Florida. Another clear case where politics in bringing the case triumphed over common sense!
There are now various alternatives available to airmen in place of formal FAA enforcement proceedings. Since there is great emphasis today on learning and safety, there is always an opportunity for remedial training. This applies when the violation is not severe, was inadvertent, and the inspector goes along with it. Today, inspectors have broad discretion in how a particular violation will be handled. Keep in mind however, that this process is not available to air carriers but can be used by Part 91 corporate operations.
In the case of air carriers or repair facilities, the so-called self- disclosure process is available to avoid formal FAA action. Both of these alternatives to formal action have been the subject of previous articles and can be found in the archives at www.AMTonline.com.
Also, keep in mind that the FAA has the choice of filing an Administrative action or a Certificate action against you. In one case, there is a civil fine and in the other, your certificate is suspended or revoked. The FAA can agree to change penalties from one to the other in some instances when it appears appropriate.
When there are no alternative proceedings available, then the FAA will file a formal complaint against you. Before this occurs, however, you will receive a Notice of Proposed Civil Penalty or Certificate Action. This document advises you that the Complaint may be filed against you. You still have an opportunity to discuss the matter further at an informal conference, which you should always request. You may bring counsel with you to this conference and it is an opportunity to settle or just find out more about the case against you. Keep in mind that anything you say or admit to at this conference can be used against you at a subsequent trial.
Complaint and answer
When, and if, a Complaint is served upon you, take particular notice of the date. The rules are quite clear in regard to filing an answer to this Complaint. If you don’t answer in the correct manner and in a timely fashion, you will be defaulted—meaning you lose! The general rule is that it must be answered within 30 days. Some additional time can be added when holidays are involved or for other reasons, but don’t delay at all — get your response on file and served on the FAA immediately. All you need to do is deny each and every allegation of any violation specifically. You must list each one of them and then after each item simply say, "Deny." Note the requirement for specificity! A general denial won’t work and will be deemed a failure to answer. Again, you lose.
The only time an answer will be accepted late is by stipulation in writing between you and the FAA or where good cause can be shown. Needless to say, good cause does not include forgetting.
As stated, the Complaint can seek certificate action or a fine. Civil fines are US $10, 000 per violation for an air carrier and US $1,000 per violation for non-air carrier. Any civil fine above US $50,000 can be challenged in a US District Court rather than the NTSB (Certificate Action), or the FAA Decisionmaker for civil fines (Administrative).
Request for trial (called appeal)
The word appeal can be somewhat confusing to people. What you are really doing is asking the Board for a hearing (trial) on your case where you can present a defense. So, the word appeal at this point simply is a request for a trial hearing before an Administrative law judge. Certificate actions are thus appealed to the NTSB (Complaint is Answered). Remember, in both certificate and civil penalty cases, you are appealing the FAA’s attempt to impose a suspension, revocation, or a fine on you.
Real first appeal
If the decision of the Administrative law judge is against you, the appeal from this "trial" is to the full Board or the FAA Administrator. Again, this happens after your "trial." As in the filing requirements for your answer to the Complaint, you must pay particular attention to the requirements for the Notice of Appeal and more importantly, get your appeal brief on file. The Board is very strict on these requirements and being one day late on the Notice of Appeal or the filing of your brief will blow you out.
Real second appeal
An appeal by the FAA or the petitioner (You), can be made to one of two US Court of Appeals — The District of Columbia Court of Appeals or the district court wherever you live. This process is usually beyond the means of the average airman and is mostly unsuccessful.
End of the line
Well, by this time, you will have expended most of your cash on legal fees and costs (absent some sort of insurance protection) and you may not have certificates or cash to even pay any fines. So much for our legal system. Furthermore, you have to know that suspension and civil penalty records at the FAA are kept on file for five years. Your revocation record, if any, is kept on file forever! If your certificates have been revoked, you can start all over after one year and work on earning all of your certificates again. Many have done so — others don’t bother.
The thing to remember is this: During the time your case is processed, you continue to exercise the privileges of your certificate. Only in emergency cases are you put out of business instantly. The usual enforcement case may drag on for several years while the process goes on. The case may also be settled at any time during the proceedings.
This is obviously a short and condensed treatment of what can be a complex subject. If you have any specific questions consult with your counselor or forward them by email and we’ll look into providing you an answer. The best approach of course, is to be careful and avoid any run in with the Feds.