The answer to the question posed in the title of this post can be summed up in three words: call your attorney! Once the FAA has issued a Letter of Investigation (LOI), you can be fairly certain that the FAA’s investigation is already well underway if not almost complete. Any response by you will be used against you, so do not respond. Get advice. It is better if your lawyer responds.
An enforcement action may result in a reprimand or warning or a suspension or revocation of certificate or rating. Civil monetary penalties may also be required. A letter of investigation almost always means the FAA intends to take action irrespective of any response.
A corporate culture of safety concern and reporting
The FAA’s actions can be affected if the operator has fostered an ongoing culture of “safety first” that includes routine risk assessments and non-retaliatory reporting procedures. Employees at every level should be thoroughly trained—and the training must be ongoing—in safety procedures. They must also be encouraged to speak up when a potential violation has occurred. Bringing violations to the attention of management before they come to the attention of the FAA is the end-goal.
Once a potential violation has been brought to light, management must have a process in place for conducting a thorough internal investigation to include:
- Details of the potential violation
- Whether an incident of this type has occurred previously
- Who was responsible for the incident and were they properly trained?
- Was the responsible party following operator-mandated procedures?
- If a contractor was involved, whether the contractor was provided with proper guidance and training by the operator
- What quality controls were in place and were they adequate?
- What needs to happen to prevent a recurrence?
Voluntary disclosure programs help mitigate damage
After you have completed an internal investigation, then you must self-report. There are a number of voluntary disclosure programs that can help mitigate the scope and any attendant penalties that may arise from an FAA investigation. Chief among these is the FAA-NASA Aviation Safety Reporting Program (ASRP), which covers the voluntary disclosure of any incident that did not (1) result in an accident, (2) involve a criminal offense, or (3) result from a lack of qualification. If an ASRP if filed within 10 days of an occurrence, it will prevent the FAA from imposing civil penalties or certificate suspensions. At least that is the theory. This get-out-of-jail card does not work if the FAA deems the offense careless and reckless, which is a boilerplate allegation in all enforcement actions.
Aviation law can be complex. Skilled representation is necessary. Williams Commercial Law Group, L.L.P., is a law firm with decades of experience in aviation law, business divorce, and high stakes litigation. Contact us at (602) 256-9400 and schedule a time to meet with us today.