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FAA Enforcement Process

Auditing for compliance

There are several reasons the agency may open an enforcement investigative report (EIR). Complaints from former or current employees, routine surveillance of your operations or a problem from a customer are all examples of how an “investigation” starts.

Typically the agency notifies the alleged violator of the investigation by issuing a letter of investigation (LOI); however, this is not required. During the investigation, all “evidence” of the potential violation is placed in the EIR. At a minimum, the report will contain the name of the alleged violator, a description of the incident, witnesses, a summary of the incident including specific regulatory non-copliance, all items of proof, and the inspector’s analysis and recommendations. The EIR is reviewed first by the local office at which time several results may occur. If the local office believes no violation took place or that remedial action is the best way to handle the matter, the alleged violator will get letters of:

  • No action, or
  • Administrative action

If the local office does not clear the matter, it will be reviewed by the regional office and any of the following may result:

  • Legal enforcement action
  • Request for reexamination
  • Referral to other authorities for criminal action

Administrative Action

Where the agency deems that an administrative action is sufficient, it may take two forms: a warning notice, or a letter of correction. A warning notice recites available facts and information about the incident or condition and indicates that it may have been a violation. A letter of correction confirms the FAA decision in the matter and states the necessary corrective action the alleged violator has taken or agrees to take. If the agreed corrective action is not fully completed, legal enforcement action may be taken.

Legal Enforcement

Legal enforcement action may be taken where the FAA legal staff determines that a violation has occurred. Action may take the form of a civil penalty or a certificate action.

Civil Penalty
The FAA will issue a Notice of Proposed Civil Penalty (NPCP), which is a monetary penalty levied for regulatory violations. There are several options in responding to a NPCP, including:

  • Pay the penalty
  • Submit a written answer to the charges
  • Request an informal conference with an FAA attorney, and request a copy of the EIR
  • Request the FAA issue the order, which activates the right to appeal

Certificate Action
The FAA will issue a Notice of Proposed Certificate Action (NPCA), which is a demand that the alleged violator respond, or suffer certificate amendment, revocation or suspension. A NPCA can be issued on a regular or emergency basis. Failure to respond will result in the forfeiture of the right to contest the suspension or revocation. Generally, NPCAs are issued on a regular basis, in which case a response will stay the action and the certificate holder may continue to exercise the privileges of the certificate. However, where the NCPA is issued on an emergency basis, immediate surrender of the certificate is required (upon receipt of the notice). The options for responding to the NPCA include:

  • Admit the charges and surrender the certificate
  • Answer the charges in writing
  • Request that the FAA issue the order, which activates the right to appeal
  • Request an informal conference with an FAA attorney, and request a copy of the EIR

Responding to the NCPC or NPCA
ARSA recommends that upon receipt of a NPCP the company request releasable portions of the EIR, and then request an informal conference with an FAA lawyer after receiving and understanding the contents of the EIR.

Right before the informal conference, a “smart letter” should be written explaining the company’s position on each allegation for discussion during the informal.  This letter should address the facts of the allegations versus the regulations, the mitigating steps taken by the company, and explain or attach any favorable evidence. However, it should not “admit” any wrongdoing. It should also address any applicable small business aspects of the assessment.

Criminal Action

Where the FAA legal staff determines it is appropriate, possible violations of the Federal Aviation Act of 1958 or the Hazardous Materials Transportation Act are referred to the Department of Justice for criminal prosecution.

Resources

NOTE: If you have questions about the enforcement process, ARSA staff is here to assist. However, if you need specific help drafting or reviewing letters or exchanges with the FAA, the law firm that manages the association is standing by (same people, different name: www.potomac-law.com).

ARSA