Written for PAMA by Kathy Yodice © 2000, 2010

Almost anyone working in the aviation maintenance industry these days is acutely aware that there are regulations, manuals, bulletins, and directives that must be consulted, followed, and complied with in the performance of aircraft maintenance. This is a regulatory responsibility as well as a practical safety responsibility.

But, how many of us are as acutely aware of the consequences of our failure to properly follow the instructions contained in those publications, even if due to complete inadvertence? Certainly, it is simple to understand that there are aviation safety consequences associated with maintenance that we perform, but what other consequences may we need to be prepared for?

Two possible consequences come quickly to mind: 

1. Potential liability for the damages and injuries that may result from the maintenance that you performed, and;
2. Potential to lose your job. 

But, there is also the potential consequence that the FAA may take a legal enforcement action to suspend or revoke your FAA certificate or to collect a civil monetary fine from you based on allegations that you violated an FAA regulation in the performance of aviation maintenance.

Years ago, Congress gave the FAA the authority to promulgate minimum standards and regulations to promote aviation safety. Congress also gave the FAA the authority to enforce compliance with those standards and regulations by allowing the FAA to investigate information indicating a violation and to impose sanctions on persons who have committed a violation. The FAA exercises its sanction authority in many different ways, ranging from informal counseling to a warning letter to a punitive suspension or remedial revocations to criminal prosecution. Within these extremes are certificate actions and civil penalty actions, which appear to be the most commonly used legal enforcement tools taken against aviation maintenance personnel.

Such actions sometimes start with an FAA inspector who receives information that a violation of the regulations may have occurred, or they can begin with an FAA inspector who comes across evidence of a violation during routine surveillance or while investigating an aircraft accident. Once started, the inspector conducts an investigation, during which the inspector gathers evidence and puts it together in an Enforcement Investigative Report (EIR). During this investigation, the inspector will usually contact the person who is target of the investigation. 

The inspector may try to interview the person, after which the inspector will make a record of the interview. And, the inspector will send that person a letter of investigation, which invites the person to provide information for the FAA to consider in its investigation. Anything that the FAA inspector gathers during the investigation may be used later in an enforcement action and there is no requirement that the FAA inspector tell anyone that.

It is during this point in the process where the person seems to get in the most trouble because that person does not fully understand his or her rights in dealing with an FAA inspector. We almost always see that a mechanic's first instinct when approached by a government official asking about their conduct is to explain everything to that government official. The consequence of acting on this instinct during an FAA investigation may be very damaging. Many times, believing that the FAA will accept the detailed explanation provided and be done with it, the person ends up proving the FAA's case for them by making admissions and giving up even more information than the FAA may have been able to discover on their own. Therefore, we always recommend that anyone caught up in this process seek competent counsel before speaking with an FAA inspector and before responding to an FAA inspector's letter of investigation. 

After the inspector completes the investigation, finishes compiling the evidence, prepares an analysis of the findings of the investigation, and makes a recommendation of the action to take, the EIR is forwarded through the FAA inspector's managers to the FAA's legal office to initiate the legal enforcement action. Here, the law affords the person very specific, important procedural rights. That is, the law requires that before taking the action, the FAA must advise the person of the charges or other reasons for the action and, except in an emergency, must provide the person with an opportunity to answer or explain why the action should not be taken. This advisement from the FAA comes in a Notice of Proposed Certificate Action or a Notice of Proposed Civil Penalty, and the FAA gives the person several options for responding, including the option to attend an informal conference with an FAA attorney to discuss the charges made by the FAA. The person may appear at the conference on his or her own, or be represented by an attorney.

If the matter is not settled or dropped after this right to be heard has been fulfilled, the FAA will issue an order, which the person then may appeal to the National Transportation Safety Board (NTSB). Once an order is appealed, the case will be assigned to an NTSB administrative law judge who will hold a trial-type hearing at which the FAA bears the burden of proving the charges alleged in the FAA’s order. The person being charged will have the opportunity to offer evidence in defense against those charges, including calling witnesses and presenting documentary information. 

The NTSB's rules allow individuals to represent themselves at this hearing, or they may appear with and be represented by an attorney. At the conclusion of the hearing, the judge issues an oral decision, and either affirms, modifies, or reverses the FAA’s order. If either the FAA or the person is dissatisfied with the judge's decision, a further appeal may be taken to the full five-member board of the NTSB, and even further appeals may be available after than in the federal appeals courts. 

Many aviation maintenance personnel have found themselves unnecessarily caught up in this legal enforcement process, and have been faced with making decisions whether to spend time and money to defend themselves against the FAA's action. At the core of all this is the risk that it poses to their continued ability to maintain a livelihood. Many of these cases have involved first-time, inadvertent incidents where safety has not been seriously compromised. It would appear that these kinds of cases could be most efficiently and appropriately resolved through a cooperative effort, during the investigation stage, without the FAA having to make a "federal case" out of the incident. Yet, we see the FAA pushing forward. Unfortunately, because these maintenance personnel don't understand their rights and the defensive options available to them or they don't have the resources to mount a defense, they may feel compelled to accept the FAA's action and suffer the future consequences that the mark on their record will have.

I think that most of us would agree that those who intentionally violate the regulations or seriously compromise safety should be subject to a vigorous FAA enforcement program, and we will continue to support the FAA in this regard. This makes sense. Certainly, the threat of FAA enforcement for a violation of a regulation that impacts safety is a meaningful deterrent. However, the system should not be such that the FAA exhibits "zero tolerance" and a strict enforcement mentality that could only serve to discourage productive interaction between the maintenance professional and the FAA. After all, the regulations are sometimes difficult to interpret and understand and we should not be discouraged, by the threat of enforcement, from seeking guidance from the FAA. A tempered system, rooted in mutual respect will go a long way to achieving aviation safety. 

By continually reviewing and becoming educated on the regulations, standards, and guidance that apply to the aviation maintenance you perform, you are guarding against an FAA charge of a violation of the regulations. If, however, you find yourself the target of an FAA investigation, you should be aware of to expect and what rights you may have to exercise.