Membership Services
FAA enforcement
Almost anyone flying in today’s complex aviation environment is acutely aware that there are regulations, manuals, orders, circulars, bulletins, and directives that must be consulted, followed, and complied with in the operation of an aircraft. This is a regulatory responsibility as well as a practical safety responsibility. But, how many of us are as acutely aware of the consequences of failing to follow them, even if done so inadvertently or unintentionally and without any real safety consequence?
Apart from the consequences that could come from causing damage or harm, or the consequences of losing a job, there is also the potential consequence that the FAA may take a legal enforcement action to suspend or revoke your FAA certificate or to collect a civil monetary fine from you based on allegations that you violated an FAR.
Years ago, Congress gave the FAA the authority to promulgate minimum standards and regulations to promote aviation safety. Congress also gave the FAA the authority to enforce compliance with those standards and regulations by allowing the FAA to investigate information indicating a violation and to impose sanctions on pilots who have committed a violation. The FAA exercises its sanction authority in many different ways, ranging from informal counseling to criminal prosecution. In between these extremes are administrative actions, remedial training, certificate actions, and civil penalty actions, which appear to be the most commonly used legal enforcement tools taken against pilots.
Such actions sometimes start with an FAA inspector who receives information that a violation of the regulations may have occurred, or they can begin with an FAA inspector who comes across evidence of a violation during routine surveillance or while investigating an aircraft accident or incident. Once started, the inspector conducts an investigation, during which the inspector gathers evidence and puts it together in an Enforcement Investigative Report (EIR). During this investigation, the inspector will usually contact the pilot who is target of the investigation. The inspector may try to interview the pilot, after which the inspector will make a record of the interview. And, the inspector will send the pilot a letter of investigation, which invites a detailed response. Anything that the FAA inspector gathers during the investigation may be used later in an enforcement action and there is no requirement that the FAA inspector tell anyone that.
It is at this point in the process where pilots seem to get in the most trouble because they don’t fully understand their rights in dealing with an FAA inspector. As a general rule, the first instinct that someone has when approached by a government official asking about their conduct is to explain everything to that government official. The consequence of acting on this instinct during an FAA investigation may be very damaging. Many times, believing that the FAA will accept the detailed explanation provided and be done with it, the pilot ends up proving the FAA's case for them by making admissions and giving up even more information than the FAA may have been able to discover on their own. Therefore, we always recommend that anyone caught up in this process seek competent counsel before speaking with an FAA inspector and before responding to the FAA inspector's letter of investigation.
After the inspector completes the investigation, finishes compiling the evidence, prepares an analysis of the findings of the investigation, and makes a recommendation of the action to take, the EIR is forwarded through the FAA inspector's managers to the FAA's legal office to initiate the legal enforcement action. Here, the law affords pilots very specific, important procedural rights. That is, the law requires that before taking any legal action, the FAA must advise a person of the charges or other reasons for the action and, except in an emergency, must provide the person with an opportunity to answer or explain why the action should not be taken. This advisement from the FAA comes in a Notice of Proposed Certificate Action or a Notice of Proposed Civil Penalty, and the FAA gives the person several options for responding, including the option to attend an informal conference with an FAA attorney to discuss the charges made by the FAA.
If the matter is not settled or dropped after this right to be heard has been fulfilled, the FAA will issue an order, which a pilot may appeal to the National Transportation Safety Board (NTSB). Once an order is appealed, the case will be assigned to an NTSB administrative law judge who will hold a trial-type hearing at which the FAA bears the burden of proving the charges alleged in the FAA’s order. The person being charged will have the opportunity to offer evidence in defense against those charges, including calling witnesses and presenting documentary information. The NTSB's rules allow a person to represent themself at this hearing, or they may appear with and be represented by an attorney. At the conclusion of the hearing, the judge issues an oral decision, and either affirms, modifies, or reverses the FAA’s order. If either the FAA or the pilot is dissatisfied with the judge's decision, a further appeal may be taken to the full five-member board of the NTSB, and even further appeals may be available after than in the federal appeals courts.
I think that most of us would agree that those who intentionally violate the regulations or seriously compromise safety should be subject to a vigorous FAA enforcement program, and we will continue to support the FAA in this regard. This makes sense. Certainly, the threat of FAA enforcement for a violation of a regulation that impacts safety is a meaningful deterrent. However, the system should be fair to the pilot and that is where your Plan benefits can help you. In addition, by continually reviewing and becoming better educated on the regulations, standards, and guidance that apply to your operations, you are guarding against an FAA charge of a violation of the FARs. If, however, you find yourself the target of an FAA investigation, you should be aware of what to expect and what rights you may have to exercise.
April 12, 2011
