A kinder, gentler FAA? The US aviation regulator is changing its enforcement tactics.
This article is for informational purposes only and should not be construed as or relied upon as legal advice. If you have questions about a specific FAA investigation of you or your company, or about an administrative, compliance, or enforcement action, you should contact an attorney.
What happens after you violate a Federal Aviation Regulation (FAR)? There have been some changes recently in how the FAA handles the process.
Prior to 2015, the enforcement action was the FAA’s primary method for dealing with violators. The agency could initiate an enforcement action, which could include a fine and either suspension or revocation of a certificate, against any FAA-certificated entity, including operators, pilots, maintenance technicians, repair stations, and equipment manufacturers.
In 2015, the FAA adopted a program known as the Compliance Philosophy. An attempt to embrace a just culture, the Compliance Philosophy is built around the idea that very few people get up in the morning thinking about how unsafe they plan on being that day. Most FAR violations are the result of honest mistakes, lack of knowledge, or lack of skill. In a just culture, people are encouraged to admit to their mistakes, and the goal is to improve safety—not to punish.
The FAA announced that it would focus on returning violators to compliance with the FARs and improving safety in the National Airspace System. Thus, the compliance action was born. If you haven’t heard of it, then read on, because the FAA has changed how it deals with some FAR violations.
Letter of Investigation
You usually first learn that the FAA believes you have violated an FAR when you receive a letter of investigation (LOI). The LOI usually ends with the following invitation to discuss the incident with the FAA: “We wish to offer you an opportunity to discuss the incident in person or submit a written statement.… Your statement should contain all pertinent facts and any mitigating circumstances.… If we do not hear from you within the specified time, we will process this matter without the benefit of your statement.”
Your first inclination may be to immediately respond to the LOI, but first, take a moment. Consider whether a response is appropriate and what that response should be. There is no obligation to respond to an LOI—the FAA will neither penalize nor reward you for responding. Furthermore, any statements you make in your response can be used against you. In fact, there are cases where the response to an LOI helped the FAA prove its charges. Because the decision of whether to respond to an LOI and what to say depends on the particular facts of your case, talk with your attorney before responding to an LOI.
An FAA investigation commenced by an LOI can end in one of four ways:
- No violation found
- Administrative action
- Enforcement action
- Compliance action.
Of course, the best outcome of an investigation is the FAA finding no violation. Another option is the route of an administrative action. This does not result in a violation against you, but typically the FAA will issue a warning notice (that stays on your record for two years) or a letter of corrective action for you to take.
The penalties of an enforcement action come in two types. The FAA can issue a notice of proposed certificate action, which either proposes to suspend or revoke your certificate. It can also issue a notice of proposed civil penalty, which proposes a fine.
If you receive either of these notices during an enforcement action, you can submit any evidence favorable to you and request what is known as an informal conference with the FAA. Bring your legal counsel. At the informal conference, the FAA will hear the information you want to present and consider whether this information should affect the proposed action.
As stated by the FAA in its Enforcement Manual: “The FAA does not use the informal conference to gather additional evidence or admissions to prove the charges in the enforcement action. The FAA, however, may use any information revealed by the apparent violator for impeachment purposes if the apparent violator makes a contrary statement about a material fact later in the proceeding.” Thus, when speaking with the FAA, speak carefully, as misstatements can be used against you.
If you are unsuccessful at having all charges withdrawn at the informal conference, then the FAA will issue an order that suspends or revokes your certificate and/or results in a fine. An FAA order suspending or revoking a certificate can be appealed first to the National Transportation Safety Board and then to the federal courts. An FAA order that fines an operator is generally appealed to the Department of Transportation and then also to the federal courts.
The FAA’s fourth method for dealing with violations of the FARs is the compliance action, which is relatively new. The FAA refers to a compliance action as a nonenforcement method because, if you are offered a compliance action and meet its requirements, then you avoid a violation, which is clearly to your benefit.
Whether to offer a compliance action to a suspected violator, as opposed to pursuing an enforcement action, remains within the discretion of the FAA. However, there are some things that you can do to tilt the odds in your favor. First and most important, compliance actions are only available if the FAA determines that you have not willfully violated the FARs. The FAA says it will have “zero tolerance for intentional or reckless behavior,” and these cases will still be subject to enforcement actions.
The next test you must meet is to be “able and willing” to cooperate with the compliance action. The compliance action is designed to set up an honest and transparent dialogue between you and the FAA about what you did, what went wrong, why it went wrong, and how you will avoid similar situations.
The FAA uses that information to develop corrective measures to return you to compliance. If you complete these measures, you should avoid a violation. The goal, after all, is not to punish you but to return you to compliance with the FARs.
Generally, a compliance action ends with the completion of retraining or counseling, as opposed to a fine or suspension. You must be willing and able to comply with all the terms of the compliance action, including paying all training costs.
Another factor that could increase your chances of receiving a compliance action is having an effective safety management system (SMS) program. Why? This means you have a vibrant safety culture, where you and your colleagues actively work to identify safety hazards, engage in risk analysis and mitigation, and fine-tune your efforts based on results. Notice, I said an effective SMS program; the dusty manual on your shelf doesn’t count.
According to the FAA, under its Compliance Philosophy, it “will encourage a more proactive approach by airports, airmen, and organizations to disclose and develop measures that identify safety risk, prevent deviations, and ensure corrective actions are taken when deviations exist.” If you operate under an SMS, then the Compliance Philosophy’s focus on open communication, hazard identification and mitigation, and training should sound familiar.
The FAA has made clear that your retention of an attorney does not prevent you from obtaining a compliance action. Further, an initial refusal to respond to an LOI does not prevent you from obtaining a compliance action. However, once a compliance action has commenced, then you must voluntarily share information with the FAA.
Further, once you agree to enter into a compliance action, you must make a strong effort to remain in the program. If you are removed from a compliance action—maybe you never got around to completing your remedial training—the required disclosures you made as part of the compliance action can be used against you in an enforcement action.
Another balancing act that you and your counsel must undertake is this: if the FAA has not yet offered a compliance action, should you request one? While that answer will depend on your specific circumstances, I can tell you this: if you decide to request a compliance action, you must do so in such a way as to ensure that you are not admitting to certain things before you know you have the protection of a compliance action. If you are being investigated by the FAA and you wish to receive a compliance action, and one has not yet been offered, discuss with your attorney the best way to present the request to the FAA.
Embracing a Just Culture
The Compliance Philosophy should be viewed as a benefit for all of us who are certificated by the FAA. The FAA is clear that it will launch enforcement actions against those who are reckless or who do not want to comply with the FARs. And that’s as it should be—we need our regulator to keep us safe from those guys.
However, for those of us who make an honest mistake, have a temporary lapse of judgment, or let our skills get rusty, the alternative of a compliance action is a welcome change from an FAA that has embraced a just culture.