Fortunately, there is a method to the madness, and having some insight into the FAA investigative and enforcement process may ease your mind and dispel some of your FAA nightmares. And for reference, FAA Order No 2150.3C contains the agency’s official policies and procedures concerning the enforcement program, which is supplemented by Order 8900.1, the aviation safety inspector’s “handbook”, among others.
When the FAA learns of a potential violation of any Federal Aviation Regulation (FAR), it will likely investigate. After its investigation, if the FAA substantiates a possible violation, it will generally proceed with one of the following “actions”: a compliance action, an administrative action, or an enforcement action.
Now let’s flesh out the FAA’s investigative and enforcement process. The idea behind enforcement is to let the punishment fit the crime, so to speak. Thus, the more serious the violation, the more serious the consequences. The factors considered for assessing penalties include but are not limited to, degree of hazard, history of violations, experience level, the attitude of the violator, and whether action was taken to correct the violation. These can be found in Chapter 9 of FAA Order No. 2150.3C.
At the lowest level are investigations involving inadvertent noncompliance with no significant pattern of violations. These will likely be resolved through the FAA’s Compliance Program. This is an informal process used to resolve noncompliance in lieu of an enforcement action. Depending on the situation, the matter may be addressed through a simple on-the-spot correction, counseling, additional training, or a combination thereof. And because a possible violation resolved through the Compliance Program does not constitute a finding of a violation, it will not appear in the airman’s record (though the FAA will keep an internal record). More information on the Compliance Program can be found here.
In the middle are administrative actions and there are two types: warning notices and letters of correction. A warning notice states the facts and circumstances of noncompliance and request future compliance. A letter of correction is like a warning notice, but it also documents the corrective action taken to accomplish compliance. Like a compliance action, administrative actions are not findings of a violation, and they are not appealable. But unlike the Compliance Program, these administrative actions will appear on your airman record for 2 years.
Last, and most significant, are legal enforcement actions. These can result in suspension or revocation of airman certificates or civil monetary penalties. Legal enforcement is mandatory where the express terms of a statute or regulation require it. Otherwise, legal enforcement is pursued in circumstances where noncompliance involves intentional conduct, reckless conduct, failure to complete previous corrective actions, or conduct creating unacceptable risk to safety.
For all enforcement actions, an enforcement investigative report (EIR) will be created. This is the report that the FAA uses to collect evidence of a violation. The report is completed by the investigating office and then forwarded to its reviewing office. If supported by sufficient evidence and rationale, the EIR is approved and forwarded to the FAA’s Office of the Chief Counsel. If the case is deemed meritorious, an enforcement action formally begins.
Enforcement actions not considered emergencies (or other immediately effective order) begin with a notice of proposed action. This notice is generally sent to the airmen by certified mail. The letter will outline the violations and put the airman on notice that the FAA intends to take action against an airman certificate or issue a civil penalty. It will also provide timelines and options to the airman. These options include: admit the allegations and surrender/pay the penalty; provide supplemental information in writing; request an informal conference with the FAA attorney; or request that the FAA issue an order to initiate your appeal options.
If you receive such a notice, you should immediately contact counsel. At this stage, one important tactic that is often overlooked is to immediately request the releasable portions of the EIR. This is akin to a litigation discovery request and without it, it is difficult to understand the case against you. Additionally, unlike warning notices and letters of corrections, final orders resulting in certificate action and civil penalties are appealable, which is a topic for another article. Finally, just because you are not in the right seat, recall the skills that make you a pilot and use them in this situation—take a deep breath, remain calm, and contact AOPA’s Pilot Protection Services.
