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March 1, 1993
By John S. Yodice
Expunction is a high-sounding word that means no more than "to erase, to rub out."
The FAA is adopting an expunction program to purge its files of records more than five years old that show that a pilot or other individual has been suspended or fined for a violation of the Federal Aviation Regulations. This has not been as easy a task as first anticipated. The FAA is entitled to credit for trying and for accomplishing as much as it has to date.
Right now, the FAA maintains violation records indefinitely, and these records are open to the public. This has proven to be troublesome to some individuals where the infraction was a relatively minor "traffic" violation and occurred a long time ago. It is particularly troublesome to young pilots and flight instructors trying to get on with the airlines, and to aircraft owners applying for aircraft insurance. Beyond that, most pilots feel that such a violation history against a particular individual loses its significance after a period of time. The FAA agrees.
The effort to persuade the FAA to expunge old violation records dates back many years. The expunction policy that is now being adopted is a direct result of recommendations made to the FAA by an industry group headed by AOPA. That industry group made an in-depth review of FAA enforcement and came up with a whole series of recommendations to reform the FAA's enforcement process. These recommendations spurred the FAA to conduct a "System Safety and Efficiency Review" of its compliance and enforcement programs. The SSER, launched in July 1989 by newly appointed FAA Administrator James B. Busey, consisted of three phases: data gathering and analysis, six or seven "listening sessions" held across the country (several hosted by AOPA), and a final evaluation by the SSER team of issues including those identified at the listening sessions. The team evaluation was done at the end of October 1989.
By March 1990, the FAA staff had gleaned from the SSER effort 34 recommendations to reform the FAA enforcement process, and Busey announced their implementation in a speech on March 5. Remedial training is probably the most positive reform accomplished so far. We reported on the remedial training program in this column in the July 1990 Pilot. Another one of the reforms Busey talked about in his speech was expunction — "we intend to set up procedures to expunge records of violations after a reasonable period of time elapses." He announced that the FAA would have a policy developed and a plan established within 60 days of the March 1990 speech. That time frame proved too ambitious.
It wasn't until October 1991 that the expunction policy was published in the Federal Register. It is a good policy. It announces that "in general, records of legal enforcement actions involving suspension of an airman certificate or a civil penalty against an individual will now be maintained for five years; records of enforcement actions resulting in revocation of the airman certificate will be maintained indefinitely; and cases closed with no enforcement action will be expunged within 90 days. A record will not be considered eligible for expunction unless the record has been closed by the appropriate FAA office, and no further action is required in that matter. Further, no legal enforcement action record will be expunged if, at that time it is otherwise due to be expunged, one or more other legal enforcement actions is pending against the same individual."
As you see, there are some records that will not be expunged after five years. For example, the policy does not include expunction of enforcement actions resulting in the revocation of an airman certificate. That is because revocation is such a serious sanction that the FAA feels that the record must be retained indefinitely. The FAA will look very carefully at a new application for an airman certificate by an individual whose certificate has been revoked, even if it was more than five years ago. The FAA will consider the circumstances of the past revocation to determine if they evidence a pattern of noncompliance that could be disqualifying, or indicate other areas of deficiency that could be disqualifying.
And a legal enforcement action record will not be expunged if, at the time that the five years are up and it is due to be expunged, another legal enforcement action is pending against the same person. The FAA considers a person's recent violation history as very important in determining what sanction to impose in a new case.
The policy also addresses the situation where an incident was investigated by the FAA, and the FAA decided to take no action. That kind of a history could hurt even though there was no finding of violation. Now, cases closed with no enforcement action will be expunged within 90 days.
Cases closed by administrative action, that is, a warning notice or a letter of correction, will continue to be expunged after a period of two years. That had been the policy and was not changed. Administrative action rather than legal enforcement is used to dispose of minor cases.
Five years sounds like a reasonable period of time, but the period may effectively be a lot longer than five years because the time does not run from the date of the violation. In the case of a suspension, the five- year period begins to run from the date that the airman actually surrenders his or her airman certificate. This could be a long time after the violation, especially if the case was litigated and appealed. Then it could be years. If the suspension was waived because an Aviation Safety Report was filed with NASA (see "Pilot Counsel: The Aviation Safety Reporting Program," December 1989 Pilot), the five-year period begins with the date of the Order of Suspension With Waiver of Sanction. This, too, could be a long time after the violation, depending on the time it took the FAA to discover and process the case, and the time it took to litigate it, if it was contested.
It would have been better to have the five-year period run from the date of the infraction.
In the case of a civil penalty action, essentially a fine, the five years begins to run on the date the civil penalty was paid. If the penalty was waived under the aviation system reporting system, the five years begins to run on the date of the letter or order assessing civil penalty but waiving the fine. If the civil penalty has not been paid (or a promissory note given to the FAA), the record will not be expunged until the civil penalty is satisfied.
The FAA's intentions are good, but as I suggested earlier, this has not been an easy task. This policy is still not fully implemented. The FAA found these records were being maintained in several forms throughout the organization, including computerized (the Enforcement Information Subsystem, the primary source of public information on enforcement history), microfilm (the airman's certification file), and paper records (the records of the FAA inspectors, special agents, and lawyers investigating and handling the cases). The expunction policy applies to all of these records. Furthermore, the FAA is subject to a law, the Records Disposal Act, which requires that the FAA get approval from the National Archives and Records Administration to destroy these records. The approval process is still going on.
In the meantime, at AOPA's request, the FAA has issued an order that attempts to implement the policy until the records actually can be destroyed. The order prohibits the internal use by FAA personnel of records eligible for expunction. The order also prohibits the disclosure of these records outside the FAA. In other words, if a member of the public asks for a violation record, it will not be disclosed if it is eligible for expunction, even though the FAA still has the record. This order became effective at the end of July 1992.
Implementation of the FAA expunction policy is only half of the solution. The other half involves getting the airlines and the insurance companies and others to cooperate. They should restrict the questions they ask on employment and insurance applications to dovetail with the policy. That's because even if stale information is no longer available from the FAA, an airman must respond truthfully to an open-ended question about his/her FAA enforcement history. AOPA has asked the airlines and the insurance companies for their cooperation and is continuing to work to get this cooperation.
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