overview of faa enforcement actions.july 2012

The Judge BuildingEight East Broadway, Suite 410

Salt Lake City, Utah 84111(801) 746-6300 (Office)

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Overview of FAA Enforcement Actions – What can happen and what to do

Tuesday, July 10, 2012Peyton H. Robinson(801) [email protected]

Presentation at:Upper Limit Aviation619 North 2360 WestSalt Lake City, UT 84116

Overview of FAA Enforcement ActionsSlide 2

Agenda

► What FAA procedures apply to enforcement?► What is a LOI and how should you respond?► When is your certificate in jeopardy?► What if you want to appeal the FAA action?► What rules apply for alcohol driving violations?► How can you protect yourself?


Some Violation Has Occurred

► Any violation of the Federal Aviation Act may be investigated ► 14 CFR § 13.3: “…the Administrator may conduct investigations,

hold hearings, issue subpoenas, require the production of relevant documents, records, and property, and take evidence and depositions.”

► Statutory support: 49 USC §§ 40113, 44709, and 46101

► Aviation Safety Inspector (ASI) from the Flight Standards District Office (FSDO) typically takes the lead in investigating a potential violation, which could be from a ramp check, ATC report, witness, accident/incident, etc.


Results of an FAA Investigation

► No action► Oral or written counseling► Administrative action

► Warning notice or letter of correction► Streamlined No Action and Administrative Action Process (SNAAP)

► Remedial training► Request for reexamination► Legal enforcement action

► Certificate action (suspension or revocation)► Civil penalty

► Criminal action


Administrative Actions

► The FAA officially recognizes two types of administrative action for airmen (14 CFR § 13.11):► Warning Notice► Letter of Correction

► FAA takes administrative enforcement action only in cases where there is evidence to prove a violation, but the action does not charge the person involved with a violation

► Administrative action brings the incident to the attention of the person involved, documents corrective action if appropriate, encourages future compliance with the regulations, and provides a source of information for the FAA’s use


Administrative Actions -- continued

► Criteria for administrative action versus legal action► Legal enforcement action is not required by law, and administrative

action would serve as an adequate deterrent to future violations ► The certificate holder is otherwise qualified for the certificate► Violation was inadvertent and not purposeful► There was not a substantial disregard for safety or security, and the

circumstances were not aggravated► The apparent violator has a constructive attitude toward complying

with the regulations► There is not a trend of noncompliance indicated by past violations


Warning Notice or Letter of Correction

► Warning Notice: A warning notice is a letter or form addressed to the apparent violator that brings to that person’s attention the facts and circumstances of the incident. The warning notice advises that, based on available information, the apparent violator’s action or inaction appears to be contrary to the regulations, but does not warrant legal enforcement action. It also requests future compliance with statutory and regulatory requirements.


Warning Notice or Letter of Correction -continued► Letter of Correction: A letter of correction serves the same

purpose as a warning notice, but is used by FAA investigative personnel when there is agreement with the company, organization, or airman that corrective action acceptable to the FAA has been taken, or will be taken within a reasonable time.

► The primary purpose of a letter of correction is to bring noncompliance to the attention of an apparent violator and document action that has or will be taken to correct conditions that are in apparent violation of statutory or regulatory requirements.


Remedial Training

► Remedial training may be available for some violations in order to settle the matter through the Letter of Correction

► Factors the FAA considers for remedial training:► Can future compliance reasonably be ensured through remedial

training alone► Does the airman display a constructive attitude► Does the conduct display a reasonable basis to question the

airman’s qualifications ► Does the airman have a record of enforcement actions► Was the conduct deliberate, grossly negligent, or a criminal

offense

► Remedial training may be offered in a Letter of Investigation (see example in attachments)


Request for Reexamination

► 49 U.S.C. § 44709(a) – allows for “709 Ride”► Used by FAA investigator or an office with medical responsibility

when there is a reasonable question whether an airman is qualified to hold a certificate

► Not viewed as a punitive measure, and does not preclude concurrent enforcement actions

► Reexam is limited to reason for request► Airman can request to change inspector or FSDO► Airman should get training before 709 Ride and log it► Failure of ride or refusal to submit leads to an emergency Order of

suspension► Cannot retry repeatedly – generally 2 failures leads to revocation


Legal Enforcement Actions

► Generally involves the airman receiving 1 of 3 different types of letters► Letter of Investigation (LOI) – from a FAA inspector► Notice of Proposed Certificate Action (NPCA) or Notice of

Proposed Civil Penalty (NPCP) – from a FAA lawyer► Order of Suspension, Revocation, or Civil Penalty – from a FAA

lawyer

► The letters are usually sent by both certified mail and regular mail► Failure to accept the certified mail while regular mail is delivered

will generally be treated as constructive service


Letter of Investigation

► Merely a notice of investigation► A response is not legally required► Any response may be used as evidence against airman► If remedial training is offered in the LOI, then a response

is required if remedial training is wanted► Important strategic considerations in any response

► Can indicate compliance and cooperation► Can also lead to greater sanction depending on details involved

and disclosures made in response


Notice of Proposed Certificate Action

► Offers a series of options:► Surrender certificate (waive right to appeal)► Request Order be issued so that appeal may be made to National

Transportation Safety Board (NTSB)► Respond with an answer or explanation to NPCA with evidence

► Can be in conjunction with an informal conference request► Request an informal conference with FAA attorney

► Conference is confidential, but can be used for impeachment► Strategic issue of when to raise NASA report (discussed later)► Enforcement Investigative Report (EIR) from ASI should be obtained

before conference► Airman has right to be heard and present evidence► Airman retains right to appeal to NTSB

► If airman fails to respond to NPCA, Order is issued


Notice of Proposed Civil Penalty

► More typically used against companies or entities versus individual airmen► But ex: failure to surrender certificate can lead to separate action

for civil penalties, or in other cases where FAA deems appropriate

► Options for airmen in responding to NPCP include:► Pay the penalty► Answer the charges in writing► Submit a written request for an informal conference► Request an Order be issued so appeal can be made to NTSB

► Failure to timely respond to NPCP will lead to an Order of assessment against airman► May still be timely appealed to NTSB


Appeals from FAA Enforcement

► Where Order of Suspension, Revocation, or Civil Penalty has been issued ► Esp. under 709 reexamin situation (not renewal or issuance)► Appeal to NTSB possible

► Deadline is 20 days from time of service of Order► Filing an appeal stays the effectiveness of Order, except in

emergency cases► FAA files Order as complaint to NTSB, and airman must file an

answer within 20 days

► Emergency Orders have different timeliness rules and other considerations► Where FAA determines emergency exists and safety in air

commerce requires immediate application of Order


Appeals from NTSB

► Appeal of FAA enforcement action to NTSB goes to administrative law judge (ALJ) for hearing► After ALJ issues his initial decision, further appeal may be taken to

the Board► Board’s consideration of issues on appeal from ALJ is limited

► After Board decision, appeal may be taken to the DC Federal Circuit Court, or to the Circuit Court in the circuit where airman lives or has a principal place of business► FAA or airman may appeal Board’s final decision► Appeal to Circuit Court may or may not allow for suspension of

Order


Expunction

► The FAA has had a policy of expunging from a pilot’s record certain enforcement actions after a period of time► No action – 90 days► Administrative actions – 2 years from issuance of action► Legal actions – used to be expunged in 5 years, but a 2010

amendment to the Pilot Records Improvement Action (“PRIA”) has changed FAA policy; now there is no expunction of legal actions (certificate actions or civil penalties) pending FAA figuring out how to comply with the new provisions


When is Your Certificate in Jeopardy?

► Factors in FAA Enforcement Decision Process guidelines:► Is there a lack of, or question of, qualification, including

falsification, medical, competency, drug positives, cheating, etc.► Is there criminal activity ► Was the violation inadvertent and not purposeful► Was there a substantial disregard for safety or security► Were there aggravating circumstances ► Does the alleged violator have a constructive attitude► Is there a trend of noncompliance► What was the severity of the risk, and separately, what was the

likelihood that the risk could have been realized► Does the airman qualify for remedial training as an option


Alcohol Violations

► Why discussing here?► Driving violations in your car can lead to certificate action in

relation to flying, even if your flying has been exemplary

► Primary regulation – § 61.15► Distinguish § 91.17 and § 91.19 – flying related to alcohol & drugs► Other violations possible for air carriers under other sections

► Under § 61.15(e), if you experience a “motor vehicle action” then it must be reported to the FAA’s Civil Aviation Security Division within 60 days of the MVA

► FAA example of a notification form letter available at:► http://www.faa.gov/about/office_org/headquarters_offices/ash/ash_

programs/investigations/airmen_duidwi/


Alcohol Violations – continued

► What is a “motor vehicle action”? – § 61.15(c)1) Conviction for DWI, DUI, or similar offense2) Suspension, cancellation, or revocation of license to drive for a

cause related to a DWI, DUI, or similar offense► Includes a refusal to submit to testing, which typically results in

automatic suspension because of “implied consent” to testing3) Denial of a license to drive for a cause related to a DWI, DUI, or

similar offense

► Each event requires separate notification, even if part of the same arrest► Ex: refusal of breath test results in suspension of DL (event #1),

and then later conviction for same event (event #2)


Alcohol Violations – continued

► Information on a medical form is not notification under Part 61 –though the medical certificate application does require separate reporting under Part 67 (i.e., arrests convictions, admin actions)

► Failure to provide notification under § 61.15(e) is grounds for denial of a certificate for up to a year after the MVA, as well as grounds for suspension or revocation of the airman’s certificate

► Two or more MVAs within a 3 year period is also grounds for denial of a certificate for up to a year, and the pilot’s certificate is likely to be suspended or revoked

► Refer to sanction table in attachments for potential penalties –► 15 days to 45 days for failure to provide notification of a MVA ► 90-120 day suspension for 2 MVAs in a 3 year period► Revocation for 3 MVAs in a 3 year period


Aviation Safety Reporting System

► Background – TWA Flight 514 (Dec. 1, 1974) – May 1975► New ASRS Advisory Circular – AC-00-46E (2011)

► Restriction on use of report – 14 CFR § 91.25► Time critical – within 10 days of event or the date when airman

was aware or should have been aware of event► Program is voluntary, confidential, and non-punitive

► Form and information at – http://asrs.arc.nasa.gov► Eliminates legal sanction (airman’s burden of proof of

filing report)► No certificate action or civil penalty

► FAA will still make a finding of violation► Airman can still appeal action to NTSB


ASRS – Exceptions and Issues

► Report cannot involve an “accident” ► NTSB definition of accident in Rule 830.2 – death, serious injury,

or substantial damage to the aircraft► No anonymity or confidentiality

► Report cannot involve a criminal offense (e.g., MVA)► No anonymity or confidentiality

► Violation must have been “inadvertent and not deliberate”► No finding of violation in the prior 5 years prior to event

► Note: Does not mean airman can only file a ASRP report once every 5 years

► No lack of competency or qualification issue► As disclosed by an accident, criminal offense, or other action


AOPA Pilot Protection Services

► Must be a member of Aircraft Owners and Pilots Association to enroll in PPS

► Two levels of protection in PPS► Basic Level – $39 ► “Plus Level” – $99

► Two primary benefits► Legal services (FAA, IRS, contracts, other aviation legal services)► Medical certification services

► https://pilot-protection-services.aopa.org/default.aspx► Example: basic level legal services covers up to 100

hours of assistance with FAA enforcement actions for $39 total – versus hiring your own attorney for $$$ per hour


Appendices Attached

► Warning Notice► Letter of Correction► Letter of Investigation – Remedial Training► Remedial Training Agreement► Letter of Correction for Remedial Training► Letter of Termination (Remedial Training)► Corrective Action through Remedial Training Case Study► Letter Requesting Reexamination► Notice of Proposed Certificate Action ► Notice of Proposed Civil Penalties (not an airman)► Notification Letter Sample (§ 61.15(e))► Table of Sanctions Applicable to Airmen► Aviation Safety Reporting System Form

Overview of FAA Enforcement Actions

Questions? Comments?

Overview of FAA Enforcement Actions

APPENDICES

overview of faa enforcement actions.july 2012

Technology

faa action

record of enforcement

document action

violationadministrative

faa investigator

types of administrative

apparent violators action

administrative actionsthe