Dear AMFA Member:

To assist our members in understanding the relationship between the Government, the Company, and you the Technician, in the event you become involved in an investigation involving the Federal Aviation Administration (FAA), AMFA's General Counsel, Seham, Seham, Meltz and Petersen, has prepared the following Handbook.

The primary focus of this Handbook is to explain to Mechanics the process by which FAA enforcement proceedings are handled against Technicians who allegedly violate provisions of the Federal Aviation Regulations (FARs). It is also intended as a guide to help you avoid some of the pitfalls of FAA enforcement proceedings.

Relationships with the Company and FAA will be discussed as well as the proper course of action you should take if you are involved in an investigation.

Sincerely,

A not uncommon occurrence in today's air carrier operation, is the situation where a technician is contacted by the FAA (perhaps through a Company representative) for an alleged violation of the FARs. Because the impact of the penalties imposed for FAR violations in even minor incidents can be harsh, it is important for you as an FAA licensee to understand the investigatory powers of the FAA, your rights in responding to an FAA inquiry and the potential impact of any FAA action on your career.

An investigation into an alleged violation of the Federal Aviation Regulations may be initiated by various means including FAA routine surveillance or anonymous "tips." There are a number of violations for which a technician may be cited, ranging from general performance of maintenance functions to improper record keeping.

If it appears that a violation may have occurred, the FAA is required to undertake an investigation. The investigation will normally be conducted by the FAA Flight Standards District Office (FSDO) having jurisdiction over the location at which the alleged violation occurred. For accidents and serious incidents the NTSB may conduct the investigation with the FAA as a participant.

Following an occurrence and pursuant to an FAA investigation, the FSDO charged with investigating the matter will normally issue a letter Of Investigation (LOI) to the certificate holder(s) it believes to be responsible for the alleged violation. This letter generally states that the FAA is investigating a certain incident and that you, the certificate holder, may have violated applicable FARs. The letter will further offer you the opportunity to meet and discuss the matter with an FAA inspector or to provide written comments on the incident which are to be forwarded to the investigating office within 10 days of receipt of the LOI.

There is no statutory or regulatory obligation for the certificate holder to reply to the LOI. Likewise, there is no requirement for the FAA to even issue an LOI, and failure to issue an LOI will not preclude the FAA from pursuing subsequent enforcement action. Additionally, and most importantly, any information provided in response to an LOI, either in writing or in person, can be used against the responding party, or other parties in any subsequent enforcement action.

There is no iron clad rule as to whether an individual under investigation should reply to an LOI. After receiving an LOI you should immediately call AMFA in addition but prior to any Company required notification. AMFA will advise you of the appropriate action to take on the LOI. If the decision is made to respond to the FAA investigator in person, AMFA will accompany you. If a written response is more appropriate, AMFA will assist you in writing the letter to the FAA.

Keep in mind that the investigative process begins upon the occurrence of a possible violation and ends when the FAA either takes administrative action, or forwards the case to FAA Legal for certificate or civil penalty enforcement. Anything you say to the FAA throughout this period of time can and may be used against you.

Any time you are approached by a representative of the FAA, be extremely careful in what you say. Above all, do not admit to any violation of the regulations. The FAA must prove that a violation was committed. Don't make their job easier. Use any conversation with the FAA to your advantage. Find out as much as possible about the investigator's view of the incident and whether the agency intends to pursue a violation against you. Do not argue the case with the inspector. If the investigating office believes a violation occurred, your argument is unlikely to change their decision.

(ASRS) Whenever a possible violation occurs, no matter how insignificant it may seem at the time, a NASA Aviation Safety Reporting System form should be filled out and mailed by each technician involved with the event within ten (10) days of the problem being reported. A blank NASA ASRS Form will be made available on request.

The Aviation Safety Reporting System invites users of the aviation system and other members of the aviation community to report to NASA actual or potential discrepancies and deficiencies involving the safety of aviation operations. Under Section 91.57 of the FARs, the FAA is prohibited from obtaining or using NASA reports in any enforcement action, except in situations involving criminal offenses and accidents, which are wholly excluded from the program.

Each Aviation Safety Report has a tear-off portion which contains the information that identifies the person submitting the report. This tear-off portion will be detached by NASA, time stamped, and returned to you as a receipt. Keep the receipt in a safe place. The receipt provides proof of your having filed a report on a specific incident or occurrence. Except in the previously mentioned situation of reports describing accidents or criminal activities, NASA does not make or retain a copy of the ASRS Form Identification Strip. Prompt return of the Identification Strip to the individual is a primary element of the ASRS program's report de-identification process and assures your anonymity.

A technician's timely filing of a NASA report will, in most cases, ensure immunity from sanction. In the event the FAA makes a finding that a violation has been committed, the FAA will not impose either a civil penalty or a certificate suspension if:

(1) The violation was inadvertent and not deliberate;

(2) The violation did not involve a criminal offense, or accident, or action under Section 609 of the Act which discloses a lack of qualification or competency;

(3) The person has not been found in any prior FAA enforcement action to have committed a violation of the Federal Aviation Act or of any regulation promulgated under the Act for a period of five (5) years prior to the date of the occurrence; and

(4) The person proves that, within ten (10) days after the violation, he or she completed and mailed a written report of the incident or occurrence to NASA under the ASRP (FAA Advisory Circular No. Oo-4EC, 2485).

During the investigatory stage of the action, you should not inform the FAA that you filed a NASA report. Aside from subverting the anonymity of the ASRS Program, the FAA investigator may be inclined to initiate enforcement action or increase the recommended penalty, knowing that you won't actually have to surrender your license or pay a fine because of your immunity under ASRS. While an FAA investigator should not ask if a report has been filed under ASRS, they often do. If asked, respectfully decline to answer.

A common misconception regarding the ASRS program is to save disclosure of your report until you really need it. In other words, take a short suspension now if necessary and save your NASA immunity in case you get hit with a longer suspension sometime in the future. In fact, doesn't work that way. You only receive immunity if you haven't committed a violation within five (5) years prior to the date of the present occurrence, regard-less of whether you've taken advantage of NASA immunity on a previous occasion. There is no advantage to saving your NASA Report for a potential future problem if the current action leads to a violation being placed on your record. Remember, immunity applies only to the sanction. A violation will be entered on your record even where the penalty is waived.

As a result of its investigation of the incident, the FAA will either take no action, administrative action or forward the case to FAA legal for certificate or civil penalty action.

This normally applies to minor violations which do not require the use of legal enforcement action to meet the goals of the FAA's compliance efforts. According to the FAA's internal enforcement and compliance manual, administrative action may be taken in lieu of legal enforcement only when all of the following elements are present

(1) No significant unsafe conditions exist;

(2) Lack of competency or qualification was not involved;

(3) The violation was not deliberate; and

(4) The alleged violator has a constructive attitude toward complying with the regulations and has not been involved in previous similar violations. (FAA Handbook 2150.3)

There are two types of administrative actions:

(1) Warning letter - a "don't do it again letter"

(2) Letter of Correction - a "don't do it again letter," plus some type of corrective action to be accomplished by the alleged violator.

Administrative action does not charge the technician(s) involved with a violation and does not constitute a formal adjudication of the matter. However, it is entered on the technician's record for a period of two years.

The determination of whether an incident merits administrative action or legal enforcement action is highly subjective. Policy varies from one FAA region to another depending upon the relationship between the FSDO and the Regional Counsel, the nature of the violation, and any mitigating factors raised by the alleged violator. There has been an increasing trend within the FSDOs of not exercising their discretionary authority to impose administrative action in lieu of legal enforcement action. Regardless of how minor the alleged deviation, if a violation can be established, they will most likely forward the case to FAA Legal for enforcement action.

Unless the case is dropped or disposed of administratively, the FAA will seek legal enforcement action against the technician. There are two legal avenues by which the FAA may proceed - certificate action or civil penalty action. Section 609 of the Federal Aviation Act (the Act) delegates to the Administrator the power to amend, modify, suspend or revoke, in whole or in part, any certificate by the FAA. Section 901 of the Act provides for the assessment of a civil penalty against air carrier personnel of up to $1,000 for each violation.

Currently the FAA prefers to utilize Section 609 certificate action as a means of enforcing the FARs against air carrier technicians. Most often this will result in a greater monetary loss to the technician because of the temporary loss of a license raises the potential for lost income.

The FAA initiates certificate action by sending the alleged violator a Notice of Proposed Certificate Action (NPCA) letter. This letter will set forth specific allegations pertaining to the incident and cite specific sections of the FARs that were allegedly violated. The letter will conclude by advising the technician of the FAA's intention to either suspend or revoke a specified certificate held by the individual. The FAA's Enforcement and Compliance Manual outlines a range of sanctions for violations of particular regulations. A partial listing is outlined at the end of this hand-book. The sanction guidelines are not mandatory, and the FAA may impose a greater or lesser penalty for the infraction.

Accompanying the NPCA letter is a form providing the alleged violator with several options for responding to the FAA's proposal:

(1) Accept the action proposed in the NPCA letter and surrender your license;

(2) Request that an order of suspension or revocation be issued in accordance with the NPCA so that you can appeal the matter to the National Transportation Safety Board;

(3) Provide a written answer to the charges, furnishing additional information, including statements by you or your fellow technicians, or other documentary evidence you wish to have considered;

(4) Claim entitlement to waiver of penalty consistent with the Aviation Safety Reporting Program by submitting proof of timely filing of a NASA report, which constitutes your agreement that an Order may be issued without further notice, but without affecting any statutory rights to appeal to the NTSB; or

(5) Request that you or your representative be afforded an informal conference with the FAA attorney assigned to your case.

AMFA generally advises technicians to request an informal conference regardless of how weak you believe your case to be. You should not submit proof of a NASA ASRS report unless you do not wish to contest any of the allegations. Contrary to the implication contained in the FAA's letter, not submitting proof of a NASA filing in reply to the NPCA does not waive your right to claim entitlement to immunity at a later date. AMFA will normally advise the technician to disclose NASA immunity eligibility at the informal conference as part of a full and open discussion on the merits of the case.

The informal conference allows you and your representative an opportunity to set forth arguments demonstrating your compliance with the regulation in question and any mitigating factors which provide a basis for excusing compliance. This meeting with the FAA attorney is the last chance the technician has to tell his/her side of the story prior to formally being charged with a violation. It also allows you and your representative the opportunity to question opposing counsel on the FAA's case against you and to explore settlement possibilities. The FAA cannot add charges or increase the proposed penalty as a result of what was discussed at the informal conference. More often than not the case can be settled at the informal conference, resulting in a reduction of the penalty, dropping of some charges or on occasion, a complete dismissal of all charges against the technician.

You should contact AMFA immediately upon receipt of a NPCA. AMFA Legal will advise you of the best course of action to take and assist you with the informal conference and any subsequent appeal that is warranted.

Assuming that the FAA does not withdraw the NPCA following the informal conference, a final Order will be issued charging you with an FAR violation(s) and suspending or revoking a specified certificate. If immunity is granted because of a timely filing of a NASA report, the Order will note such filing and no sanction will be imposed. However, the FAR violation(s) will still be entered on your record. Unless altered through settlement or by a timely NASA report, the charges and sanction will be the same as set forth in the NPCA letter. The Order will also set forth a date by which the certificate must be surrendered (if there is no NASA immunity) and advise the technician of the right of appeal to the National Transportation Safety Board (NTSB) within 20 days of receipt of the Order.

An appeal to the NTSB stays the effectiveness of the FAA's Order and permits you to retain your license pending the outcome of the appeal. Once appealed, the case is assigned to an Administrative Law Judge (ALJ) for a full evidentiary hearing. Upon conclusion of the hearing, the ALJ will normally render a decision. The ALJ can either affirm, modify or reverse the FAA's Order The judge cannot increase the sanction set by the FAA, nor can he or she substitute a civil penalty for the certificate action.

If the decision is adverse to the technician or the FAA, either party may appeal the decision to the five member NTSB. As with the first step appeal to the ALJ, the effectiveness of the FAA Order is deferred pending the full Board's decision. This stage of the appeal is usually handled through written briefs. Oral argument may be requested, but is rarely granted. If the full Board renders its decision against the technician, that decision may be appealed to the U.S. Court of Appeals, and thereafter, a petition for certiorari may be filed with the U.S. Supreme Court. Very few cases, however, are ever appealed to the U.S. Courts. Furthermore, an appeal to the U.S. Court of Appeals does not automatically continue the stay of the FAA's suspension or revocation Order.

If the Board's decision goes against the FAA, that's the end of the case. The FAA does not have the right of appeal of the Board's decision to the U.S. courts.

The FAA may also take emergency certificate action against the alleged violator if the Administrator finds that an emergency exists and safety in air transportation require immediate execution of the sanction. The certificate holder does not have a right to an informal conference, and appeal to the NTSB does not stay the effect of the Order. There is, however, an expedited process for appeal of an emergency order and the Board is required to dispose of the mailer within 60 days of the filing of an appeal.

Civil penalty action procedures have changed in recent years. Prior to September, 1988, the FAA did not have the authority to impose a civil penalty directly against an alleged violator. If the certificate holder refused to pay the fine proposed, the FAA would forward the case to the Department of Justice for adjudication and collection. Most civil penalties were resolved at the informal conference with FAA Legal accepting a monetary settlement of the charges. More importantly, an offer made and accepted as a compromise settlement did not constitute an admission of guilt by the alleged violator and no finding of violation was entered on the certificate holder's record.

The FAA now has its own in-house administrative procedures, and no longer must rely on the Department of Justice. It also appears that the FAA is now unwilling to make offers of compromise, and of greater significance to the technician, pay-merit of a civil penalty may result in a violation being entered on your record.

Under the current procedure the alleged violator will receive a letter of proposed civil penalty action setting forth allegations of fact and law and stating the FAA's intent to assess a specified sum as a civil penalty. The technician will again be provided with several options for responding to the FAA's letter:

(1) Submit the amount of the civil penalty specified in the Notice, which constitutes an agreement that an Order assessing a civil penalty may be issued without further notice;

(2) Submit in writing information and evidence demonstrating that a violation of the regulations was not committed and that, if it were, the facts and circumstances do not warrant the proposed civil penalty;

(3) Request that a civil penalty be assessed in a specific amount less than that proposed in the Notice (or that no civil penalty be assessed) and submit reasons for the reduction, which also constitutes an agreement that an Order incorporating such measures may be issued without further notice;

(4) Request that you or your representative be afforded an informal conference with the FAA attorney assigned to your case;

(5) Claim entitlement to waiver of any civil penalty pursuant to the Aviation Safety Reporting Program by submitting proof of the timely filing of a NASA report, which constitutes an agreement that a civil penalty Order may be issued without further notice (but does not affect any statutory rights of appeal); or

(6) Request a formal hearing in accordance with Section 13.16 of the FARs with the understanding that an Order of Civil Penalty will be issued and filed as the complaint and a formal evidentiary hearing will be scheduled.

As with a response to a proposed certificate action, AMFA would advise technicians to request an informal conference with the FAA attorney. More importantly, contact AMFA Legal immediately upon receipt of a Notice of Proposed Civil Penalty letter.

Regardless of whether you are involved in a minor deviation or a major incident, you may be obliged to discuss the matter with your employer. It may not be a question of should you talk to the Company, but rather how, when, and under what circumstances the discussions should take place.

In the case of any potential violation you should first notify and discuss the incident with an AMFA representative as soon as possible and, again, always before responding to an LOI. The Company may have a policy whereby it is entitled to know when one of its employees is being investigated by the FAA for a possible FAR violation. Any Company notification requirement in this regard will most often be required if you receive an LOI and again if, and when, certificate action is taken by the FAA.

This does not preclude you from discussing the matter with Company officials prior to receiving an LOI. The central point to remember is to contact AMFA if at all possible before discussing the matter with the employer

AMFA and the Company may work together on your behalf during the investigative stage. While Company support is desirable, you should seek consultation with AMFA representatives from the time you first become aware of a potential problem. If you seek advice from AMFA only after receipt of a NPCA letter, it may be too late for effective assistance.

Immediately following an aircraft accident or serious incident the situation is most often one of confusion. Under such circumstances a technician cannot reasonably be expected to give a well thought out statement. While your cooperation may be not only appropriate but vital to the investigation, there is no legal requirement for a technician to give a statement to anyone following an accident until and unless he or she is served with a subpoena.

Technicians have, in the past, been lulled into a false sense of security by employers, FAA, and Board investigators when asked to comment (in the accident/incident immediately after being assured that what he/she would say was "off the record." Don't comment "on or off the record" until after consultation with AMFA. Admitting to any action that even hints of carelessness or negligence on your part may be taken out of context and used against you. It is most difficult to overcome such admissions in proceedings before the FAA and NTSB or in grievance proceedings with the Company.

If you are approached by investigators or Company supervisory personnel at the scene of an accident or incident and asked to comment, what should you say? Don't say anything about the accident/incident until you have had a chance to evaluate the situation and consult with AMFA. Remember, "only the fish with an open mouth gets caught."

Following an accident or serious incident, AMFA recommends the following general guidelines:

1. Call an AMFA Safety representative at the first possible opportunity. Make a full and open disclosure with the Association's representatives (this is the only way they can assist).

2. Do not voluntarily discuss the accident with any Company personnel or investigators.

3. Make any required reports to the Company and the Government only after consultation with the Association.

4. If possible, defer submitting to any post-accident drug or alcohol testing requested by the Company, local law enforcement officials, or the government until after you have contacted AMFA.

Both the NTSB and the FAA have congressional mandates to investigate aircraft accidents, but for different purposes. The primary function of the NTSB is to determine the "probable cause" of an accident and to make recommendations to prevent recurrence, while the FAA's central investigative role is to determine whether there was a violation of the FARs. The NTSB may send a single investigator from a local field office, or it may send an entire "go team" from Washington, D.C. or delegate the incident to the FAA.

Before you make any comments to the NTSB or FAA investigators, always consult with AMFA. Your right of representation during an NTSB investigation is set forth in Part 431.8 of the NTSB

Regulations:

Any person interrogated by an authorized representative of the Board during the field investigation, or who appears to testify at a public hearing, shall be accorded the right to be accompanied, represented, or advised by counsel or by any other duly qualified representative.

You may be requested by the Company, government or local law enforcement officials to submit to alcohol or drug testing following an accident/incident. Prior to undertaking any testing, you should always contact AMFA Legal. Discussed below are various regulations pertaining to alcohol and drug testing of technicians.

Effective December 18, 1989, the FAA's mandatory drug testing program went into effect. The provision related to post-accident testing reads as follows:

FAR 61.14 sets forth the penalties for refusing to submit to a drug test:

In addition to the FAR sanctions, refusal to follow a Company directive to undergo post-accident drug testing will be considered insubordination by the Company and the technician will be terminated.

As of this writing, the Federal Aviation Administration requirements for post-accident alcohol testing of aircraft maintenance personnel are being implemented. Because the rules are relatively new, they are set forth below as they appear in the regulations:

Consistent with state and local law, local law enforcement officials of the state where the accident occurs may also request the crew member to undergo an alcohol/blood test.

Remember, anytime anyone requests that you submit to a post-accident drug or alcohol test, always consult with AMFA Legal first. You have a right to consult your union prior to agreeing to undergo any post-accident drug or alcohol testing, and any and all questions relating to the testing should be directed to AMFA Legal at such time.