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What Is A Security Violation Worth?

by Greg Reigel 28. February 2014 15:06
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Have you ever wondered just how much trouble you would be in if, for example, you forgot that your Zippo lighter was still in your pocket when you tried to go through the security checkpoint at an airport? Well, a quick review of the TSA's Enforcement Sanction Guidance Policy indicates that you could be facing a fine of $250.00 to $1,500.00. A firearm, depending upon whether or not it is loaded, could net you a fine anywhere from $1,500.00 to $7,500.00 plus a referral for criminal prosecution. Of course, where you end up in these ranges will depend upon the circumstances of the violation and whether any of the aggravating or mitigating factors identified in the Policy are present.

In addition to sanctions for individual violations, the Policy also includes sanction guidance for security violations by aircraft operators, airport operators and by "indirect air carriers" such as cargo operators. The Policy provides ranges of fines, which opens the door for discretion in the actual amount that is assessed against a violator. This discretion presumably takes into account any aggravating or mitigating factors. Enforcement of a violation for which a fine is the penalty proceeds as a civil penalty action pursuant to a Notice of Proposed Civil Penalty.

So, if you want to assess your liability exposure (both civil and criminal), in addition to the delay and embarrassment associated with being caught, you can review the Enforcement Sanction Guidance Policy to get an approximate idea of just how much hot water you would be in for a particular type of violation. Not something I would recommend. But it makes for interesting reading.

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Greg Reigel

Administrative Actions: The FAA's "Slap on the Wrist"

by Greg Reigel 1. January 2014 21:33
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In past articles 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.

But what happens when the FAA believes that compliance can best be 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 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

Administrative Actions: The FAA's

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 accurately track airworthiness directive compliance in an aircraft's logs.  However, keep in mind that each situation is different.

And 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", in many cases I personally believe that is exactly what happens.  Thus, depending upon the facts and the FAA's analysis of the above 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 you 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 reciting 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 understand the corrective action required and the criteria that will be used for determining whether action has been satisfactorily completed.  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, or having a finding of violation in the certificate holder's record.  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.  However, now, with the fiscal restraints imposed by sequester, it seems the FAA's use of administrative actions may increasing.  And that's good news, both for certificate holders and for aviation safety.

 

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Greg Reigel

Why Did The FAA Send Me A Request For Re-Examination?

by Greg Reigel 2. December 2013 13:48
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As you may know, if the FAA discovers evidence that leads it to reasonably question an airman’s qualifications to exercise the privileges of the airman’s certificate, the FAA may issue a "request for re-examination." The "evidence" is usually a situation or circumstances involving the airman and his or her operation of an aircraft. And, unfortunately for airmen, it doesn't take much for the FAA to have a reasonable basis for requesting the re-examination. As long as the FAA can show that an airman's lack of competence or qualification was a factor in causing the situation, then the request will be considered reasonable.

So, what types of situations may result in a request for re-examination? Here are a few, in no particular order:

  1. Running out of fuel.

  2. Landing with the gear up.

  3. Landing or taking off in a manner that results in damage to your aircraft (e.g. prop strike, tail strike, scraping a wingtip on the ground, striking runway lights etc.).

  4. Continuing a VFR flight into IMC.

  5. Getting caught on top of an overcast layer of clouds when you are not instrument rated or equipped.

  6. Taking off or landing on a runway at a tower controlled airport when you have not received take-off or landing clearance.

  7. Taking off from or landing on a taxiway.
  8. Getting into an accident with your aircraft.

  9. Getting caught operating your aircraft over gross.

  10. Landing at the wrong airport.

  11. Entering Class B, C or D airspace without first establishing communications with ATC controlling the airspace.

  12. Colliding with another aircraft in flight, or on the ground.

  13. Operating an aircraft on a flight without appropriate or current charts necessary for that flight.

This is only a partial list of some of the more obvious situations that may trigger a request for re-examination of an airman by the FAA. The list can, and does, go on.

Hopefully this will never happen to you. But if it does, it isn't the end of the world. Pilots survive, and even learn from, requests for re-examination all the time. For more information and tips on responding to requests for re-examination, please read my article: The 709 Ride.

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Aircraft Accidents | Greg Reigel

Aircraft Loan Documents: Knowing What To Expect Before You Sign On The Dotted Line

by Greg Reigel 31. October 2013 15:06
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If you are financing the purchase of an aircraft, you know, or at least you should know, that the lender will have a number of documents for you to sign before it advances the funds. The loan documents typically associated with a basic aircraft finance transaction and required by a lender include a promissory note, aircraft security agreement, guaranty/pledge and authorization.

A promissory note contains the terms of the loan (e.g. amount, repayment schedule, interest rate etc.) and the borrower's promise to repay the loan according to those terms. It also provides the lender with remedies if the borrower does not fulfill its obligations under the promissory note or if something else happens that gives the lender a reasonable basis to believe that repayment of the loan may be in jeopardy.

The aircraft security agreement pledges the aircraft as security for the promissory note. If the borrower fails to repay the promissory note, the lender will have the right to take possession of the aircraft. Once it has regained possession, the lender is able to sell or otherwise dispose of the aircraft to recover as much money as it can to offset against the outstanding loan balance. If the lender is able to sell the aircraft for more than is owed, the excess is paid to the borrower. However, after the lender offsets the amount received from sale against the outstanding balance and the lender's costs/fees incurred in repossessing and selling the aircraft, it is unusual for an excess balance to exist.

For transactions in which the loan is being guaranteed by someone other than the borrower, that individual or business will need to execute a guaranty that obligates the guarantor to repay the loan in the event that the borrower defaults. If the borrower or any guarantor is a corporation or limited liability company, the lender will require that an appropriate official of the entity execute an authorization representing that the person executing the documents on behalf of the entity is authorized to sign and bind that entity.

Most lenders will have standard or form documents they use in aircraft finance transactions. However, depending upon the lender, the financial position of the borrower, the relationship of the borrower with the lender, and the amount of the loan, many of the terms in the loan documents may be negotiable. It never hurts to ask.  Similarly, it isn't a bad idea to have an aviation attorney review the documents on your behalf and negotiate any changes that may be required to protect your interests.

Aircraft loan transactions don't have to be complicated.  If you know what to expect and ask for assistance when needed, obtaining financing for your purchase of an aircraft should be as easy as signing on the dotted line.

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Greg Reigel

What Are An Airman's Options After The FAA Denies A Medical Application Based Upon A Disqualifying Condition?

by Greg Reigel 30. September 2013 15:44
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When an airman is denied a medical based upon an admitted disqualifying condition, an appeal will, in almost all cases, be unsuccessful. In that situation, the airman has the burden of proving that the airman is qualified to hold a medical certificate. That's a tough thing to accomplish if the airman has already admitted that he or she has a disqualifying condition.

If an airman is denied based upon a disqualifying condition, but the airman believes he or she is otherwise qualified, the airman should request that the FAA grant a special issuance medical certificate. A special issuance is a medical certificate that has limitations and/or conditions with which the airman must comply in order for the certificate to be valid. The conditions/limitations will often include regular testing or evaluation, test results within acceptable ranges, no changes in medication etc.

If the FAA refuses to grant an airman's request for a special issuance, the airman may appeal that denial to the NTSB. However, since the Board defers to the FAA's discretion in denying a special issuance, the only way to be successful is to show that the FAA's denial is arbitrary or capricious. For example, if a denied airman can prove that the FAA has granted a special issuance in circumstances that are very similar to or identical with those of the airman, then an ALJ may be convinced that the FAA's denial in the airman's case is arbitrary or capricious. As a practical matter, however, this can be a very difficult task.

If you have a medical condition that may disqualify you from obtaining a medical certificate, get help before you apply for your medical certificate. Talk to an aviation attorney or the medical certification professionals at AOPA or NBAA. By taking a pro-active approach and getting help, you will be able to "pick your battles" wisely to maximize your chances of successfully obtaining a medical certificate.

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Greg Reigel





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