Administrative Action: The FAA’s “Slap on the Wrist”

Iknow that in past columns we have talked about FAA legal enforcement actions in which the FAA has suspended or revoked a mechanic’s certificate or the certificate of an air carrier or repair station, or has assessed a civil penalty against the certificate holder. In those situations, the FAA believed the regulatory violations committed by the certificate holders warranted the “pound of flesh” the FAA extracted with suspension or revocation of the offending party’s certificate(s) or the assessed civil penalty.

What happens when the FAA believes that compliance can be best obtained through some other action short of a legal enforcement action? (Yes, it does happen.) In those situations, the FAA has the option of addressing the certificate holder’s alleged violations with a “slap on the wrist” through an administrative action.

When Does The FAA Use Administrative Action?

The decision of whether or not to use administrative action is usually made by the FAA inspector investigating the alleged violation, or his or her local office. An FAA inspector may pursue an administrative action when the following criteria are satisfied:

1. Where legal enforcement action is not required by law and administrative action would serve as an adequate deterrent to future violations;

2. The violation does not indicate that the certificate holder lacks qualification to hold a certificate;

3. The violation was inadvertent and was not the result of intentional conduct;

4. The violation was not a substantial disregard for safety or security and the circumstances of the violation are not aggravated;

5. The alleged violator has a constructive, compliance-oriented attitude; and

6. The alleged violation does not indicate a trend of noncompliance with, or a disregard for, the FAA’s regulations.

By way of example, administrative action has been considered warranted in situations where a mechanic failed to make an appropriate approval for return to service maintenance record entry in an aircraft’s logs after maintenance was performed, or failed to track airworthiness directive compliance in an aircraft’s logs accurately. However, keep in mind that each situation is different.

Although FAA Order 2150.3B indicates that administrative action shouldn’t be taken “solely as a matter of convenience or when evidence to support a finding of a violation is lacking, or in cases that are stale”, I personally believe that is exactly what happens in many cases. Thus, depending upon the facts and the FAA’s analysis of the aforementioned six criteria, the FAA may not consider administrative action appropriate for all incidences of these examples of violations.

If the FAA determines that legal enforcement action is not necessary in a particular case, 14 C.F.R. § 13.11 provides the FAA with the authority to issue a warning letter or letter of correction.

The Warning Letter

The warning letter will identify the conduct at issue and the regulation(s) that the conduct allegedly violates. The warning letter will usually state that the FAA expects the alleged violator’s future compliance with the regulations. It may also offer the opportunity for the certificate holder to submit additional information in explanation or mitigation for inclusion in the file, in the event that he or she hadn’t already provided information in response to the letter of investigation which preceded the warning letter.

Although the warning letter is not a formal finding of violation, it stays in the certificate holder’s file at the FAA for a period of two years and is then expunged from the file. In the event of a future investigation or enforcement action prior to being expunged, the FAA will consider the warning letter when it decides how to proceed in that later case.

The Letter of Correction

The letter of correction is similar to a warning letter. However, in addition to restating the conduct and regulations that were allegedly violated, the letter of correction also contains an agreement under which the certificate holder agrees to take certain corrective action to address the alleged violation. The corrective action may require the certificate holder to participate in remedial training or counseling with the FAA inspector, adopt policies or procedures to address deficiencies identified by the FAA, verify compliance with respect to matters that were not at issue in the investigation, or take any other actions agreed to by the certificate holder and the FAA.

If the certificate holder fails to complete the agreed-upon corrective action within the time period specified in the letter, the FAA could then proceed with legal enforcement action based upon the alleged violations. Once completed, the letter of correction is included in the certificate holder’s file at the FAA and will stay in the file for a period of two years until it is expunged.

As with the warning letter, the letter of correction is not a formal finding of violation. However, in the event of a future investigation or enforcement action, the FAA will also take the letter of correction into consideration when it decides how to proceed in that later case.

Before agreeing to a letter of correction, it is important that the certificate holder understands the corrective action required and the criteria that will be used for determining whether action has been completed satisfactorily. This will hopefully prevent a situation in which the certificate holder and the FAA disagree upon whether the certificate holder has completed the corrective action as required.

Conclusion

The slap on the wrist of an administrative action is definitely more acceptable to a certificate holder than having to defend against a certificate or civil penalty action. Administrative action also makes more sense from an aviation safety perspective. After all, are certificate holders actually going to be safer after a suspension or assessment of a civil penalty? Probably not.

Unfortunately, up until recently it seemed like the majority of investigations resulted in the FAA pursuing enforcement action rather than resolving those cases through administrative action. Now, however, with the fiscal restraints imposed by sequester, it seems the FAA’s use of administrative actions may increasing. That’s good news, both for certificate holders and for aviation safety.

Greg Reigel is an aviation attorney, author and pilot. He holds a commercial pilot certificate with an instrument rating and can fly single-engine land and sea, as well as multi-engine land aircraft. His practice concentrates on aviation litigation, including insurance matters and creditor’s rights, FAA certificate actions and transactional matters. He represents clients throughout the country on aviation law matters. His also an adjunct professor at Minnesota State University - Mankato where he teaches aviation law and at William Mitchell College of Law where he is an instructor in the advocacy course. He can be reached via e-mail at greigel@aerolegalservices.com.

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