11/4/16

 

8900.1 CHG 422

Indicates new/changed information.

Appendix 14-5.  Guidance for Review of Enforcement Cases Under the FAA’s Compliance Philosophy

Cases received in the Office of the Chief Counsel (AGC) prior to September 3, 2015:

If one instance of noncompliance documented in the Enforcement Investigation Report (EIR) warrants a legal enforcement action, then all instances of noncompliance in the EIR will be addressed with legal enforcement action. For those cases not requiring legal enforcement action, AGC may recommend settlement through an administrative action. The following general steps apply:

1.   AGC will consult with the Flight Standards Service (AFS) (and, when appropriate, the regulated entity) in the development of a corrective action plan (CAP) that would be appropriate in the settlement. A corrective action might include training, counseling and education, or improvements to procedures or training programs.

a.   The corrective action can also take into account actions already initiated or completed by the regulated entity.

2.   For an uninitiated case (e.g., AGC has not issued a notice of proposed certificate action), AGC will contact the regulated entity with a standard letter explaining the Federal Aviation Administration (FAA) Compliance Philosophy (CP) and that the case might be settled without the need for a legal enforcement action.

a.   If no response is received with 10 days, AGC will likely proceed with the legal enforcement action.

b.   Note: For an initiated case (e.g., AGC has issued a notice of proposed certificate action), the attorney will not send the standard letter because the attorney previously made initial contact with the regulated individual or entity. For initiated cases, AGC, AFS, and the regulated individual or entity may discuss settlement under the CP through the informal conference.

3.   For an uninitiated case, AGC will schedule a conference with the regulated entity and AFS personnel to discuss the CAP.

a.   AGC will normally schedule the conference 7–10 days after AGC receives the response described in step 2 above.

b.   It is expected that an agreement on the CAP will be reached within 14 days after AGC receives the response described in step 2 above.

4.   For an uninitiated case, AGC will prepare the settlement agreement and contact the regulated entity.

5.   For an uninitiated case, if the entity agrees to the settlement, the attorney will return the EIR (including the settlement agreement) to the AFS regional office. The AFS field/regional office will monitor completion of the CAP.

a.   AFS will inform AGC whether or not the terms of the CAP are met. If so, AFS will close the case with an administrative action via a Letter of Correction (LOC) as described in the current edition of FAA Order 2150.3B, FAA Compliance and Enforcement Program, chapter 5, subparagraph 4(b)(2). The LOC should state the corrective action taken by the regulated entity.

b.   If the regulated individual or entity did not take corrective action to the satisfaction of the FAA, the FAA will initiate a legal enforcement action.

6.   For an initiated case (e.g., AGC has issued a notice of proposed certificate action), AGC and AFS will coordinate to handle the case similarly to the process for uninitiated cases, described above, except that:

a.   AGC will retain the EIR until AFS reports that corrective action has been completed to the satisfaction of the FAA. At that point, AGC will withdraw the notice of proposed certificate action (or the notice of proposed civil penalty, or the civil penalty letter, as the case may be) and will return the case to the program office to be closed with an administrative action via an LOC. The LOC is described in the current edition of Order 2150.3B, chapter 5, subparagraph 4(b)(2) and should state the corrective action taken by the regulated entity.

7.   The following steps must be taken to properly document the action:

a.   In the Enforcement Information System (EIS), change the recommended action code from the original recommended action to an administrative action. Action Code 38, Closed for Compliance Action, cannot be used.

b.   In the Program Tracking and Reporting Subsystem (PTRS), change the activity code to reflect an administrative action. In the comments section, indicate that an administrative action through an LOC is being taken instead of a legal enforcement action, and provide pertinent information concerning the corrective action agreement.

c.   Other PTRS codes can be used during this process as needed in order to document providing technical assistance to legal counsel, document additional surveillance to support monitoring of the Compliance Action (CA) plan, etc.

Cases received by AGC on or after September 3, 2015, but before October 1, 2015 (the FAA-wide implementation date for the CP):

AGC may return cases to AFS, when legal enforcement is not required under the current edition of Order 2150.3B, for reconsideration as a CA or administrative action, as appropriate. If AFS agrees to resolve the case through CA, the steps in paragraphs 8 through 12 below apply. If, however, an administrative action is appropriate, AFS will follow the steps in paragraph 7 above.

8.   Change the PTRS activity code to reflect the CA taken.

a.   In the comments section, indicate that a CA is being taken instead of enforcement action and provide any pertinent details needed to explain the decision.

i.    Additional comments that provide the information required by Volume 14, Chapter 1, Section 2, subparagraph 14-1-2-9E must be entered.

ii.    Any comments previously entered for the enforcement action should be retained in the PTRS.

b.   The EIR number should remain in the “EIR#” field within the PTRS.

i.    This is critical to allow the PTRS record to be associated with the previous EIR file.

c.   If the EIR PTRS record is no longer available in the Enhanced Flight Standards Automation System (eFSAS) for editing, the record can be restored by making a request to
9-amc-afs620-certinfo@faa.gov.

9.   If the PTRS was originally triggered from a surveillance activity, then the surveillance activity PTRS comments must be annotated as described in Volume 14, Chapter 1, Section 2, subparagraph 14‑1‑2‑9D1)b):

The ASI must manually enter tracking of triggered record(s) in the parent record. The activity number(s)/record ID(s) of the triggered record(s) should be entered in the comment section using the appropriate Primary Area, Keyword “907,” and Opinion Code “I,” per the PPM, Chapter 4, Recording PTRS Activities. Refer also to the PPM, Appendix B, How to Tie Records to Their Followups, for triggering and linking records.

10. In the EIS, the Recommended Action Code should be changed to “38” (Closed to Take Compliance Action).

11. AFS should contact the airman and proceed with the CA procedures described in Volume 14, Chapter 1, Section 2.

12. If in the future the CA needs to be terminated and enforcement action initiated (i.e., airman chooses not to participate, is unable to take effective corrective action, or new information/behavior makes CA inappropriate):

a.   A new EIR PTRS record should be triggered from the CA PTRS record.

b.   A new EIR number and record will need to be created within the EIS. The original CA EIR number should be entered into the related number field of the new EIR number in the EIS.

Cases where AFS personnel initiate an enforcement action and an EIS entry is generated, but it is later determined that CA is appropriate:

The determination to take CA in lieu of enforcement action may arise as the inspector gathers new information through review by office management or regional personnel, or through discussion between AFS and AGC personnel.

13. AFS personnel should utilize the procedures in paragraphs 8 through 12 above to document the CA within the PTRS and address the entry created within the EIS.

14. There is no need for an office to make an entry in the EIS to take a CA. The procedures above are only used when an enforcement action was initiated and it is later determined that a CA will be taken.

Supporting information:

1.   Order 2150.3B CHG 9 was signed on September 3, 2015. This revision contained changes to reflect the FAA’s CP and included allowance for AFS to address regulatory noncompliance with CAs (below the level of administrative or legal enforcement action).

2.   Order 2150.3B CHG 10 was signed on October 30, 2015. CHG 10 clarifies that FAA personnel are to evaluate regulatory noncompliance under CHG 9 (i.e., under the CP) as of the September 3, 2015, the effective date of CHG 9.

a.   AFS published updates to Volume 14 to align with the allowances provided in Order 2150.3B. These changes were effective October 1, 2015.

b.   If AGC had not yet received a case as of September 3, 2015, AFS evaluates that case under the updated policy in Volume 14. This is because Order 2150.3B CHG 9 became effective while AFS was investigating the apparent violation or processing the case. Such cases are eligible to be resolved through a CA (when the appropriate criteria are met).

c.   As new cases arise on and after September 3, 2015, aviation safety inspectors (ASI) will generally process those cases under the CP as described in Volume 14. AFS will refer the case to AGC only if the ASI determines that legal enforcement action is required under the current editions of Order 8900.1 and Order 2150.3B.

3.   Order 2150.3B CHG 10 also clarifies that CHG 9 does not by its terms apply to regulatory noncompliance that was the subject of EIRs that were transferred to AGC for legal enforcement action before September 3, 2015. This means that if AGC received a case before September 3, 2015, the FAA is not obligated to resolve that case under the CP (e.g., by taking CA when the appropriate criteria in Order 8900.1 and Order 2150.3B CHG 9 are met). Nonetheless, in the spirit of the new philosophy, FAA enforcement attorneys generally evaluate—under the CP—open cases in legal that AFS transferred before September 3, 2015. For this subset of cases that AFS transferred to AGC before September 3, 2015 and that are currently open in AGC, enforcement attorneys will work with ASIs to determine whether the case, though initially referred to AGC for a legal enforcement action, can be resolved with administrative action.