Aviation Safety: FAA's Use of Emergency Orders to Revoke or Suspend Operating Certificates
Released: 1998-08-06T00:00:00

Letter

Background

When FAA finds that certificate holders have violated aviation regulations, it has the statutory authority to take appropriate action. FAA Order 2150.3A on compliance and enforcement provides guidance on the range of options available for responding to violations. The option chosen depends on such factors as the seriousness of the violation and the violator’s prior enforcement history and willingness to comply with regulations. FAA uses administrative actions to document incidents involving minor violations, to request future compliance, and—if appropriate—to document corrective actions violators have agreed to take. Legal actions, such as fines or certificate actions, are FAA’s strongest enforcement tools. While FAA uses certificate actions primarily against individual certificate holders (e.g., pilots, mechanics, or flight engineers), it can also take certificate action against such entities as airlines, air taxi operators, or repair stations. FAA can also refer cases to the Department of Transportation’s Office of Inspector General or to the appropriate law enforcement agency for criminal prosecution.

When FAA determines that the public interest and safety require the immediate suspension or revocation of an operator’s certificate, the agency can issue an emergency order. An emergency order revoking an operating certificate is the most severe enforcement action that FAA can take against a certificate holder. An emergency order is generally used when a certificate holder is not qualified and may make use of the certificate or demonstrates a lack of care, judgment, and responsibility by, for example, operating an aircraft while under the influence of drugs or alcohol. An emergency order takes effect immediately on issuance. The certificate holder does not have an opportunity to contest the order before it is issued, and, unlike nonemergency certificate actions, the emergency order remains in effect while the certificate holder appeals. Emergency orders can be appealed to the National Transportation Safety Board (NTSB) and the U.S. Court of Appeals. (See app. II for more information on the process for appealing FAA’s emergency and nonemergency certificate actions.)

FAA’s Use of Emergency Orders

FAA used emergency orders in a small percentage of its enforcement cases. FAA regions varied in their use of emergency orders to initiate certificate actions; these differences appear to result in part from differences in enforcement practices. Nearly 60 percent of the emergency orders revoked or suspended pilot certificates or the medical certificates pilots must also have. Of the cases FAA initiated using emergency orders, over three-quarters ultimately resulted in a suspension or revocation of the certificate.

FAA’s Increased Use of Administrative Actions Resulted in a Larger Proportion of Emergency Certificate Actions

Of the 137,506 enforcement cases closed in fiscal years 1990 through 1997, FAA initiated 3 percent using emergency orders. The actual number of emergency orders ranged from a low of 322 in fiscal year 1990 to a high of 573 in fiscal year 1996. On average, FAA closed 468 cases annually in which it had initiated enforcement action using emergency orders. (See table 1.)

Since fiscal year 1990, emergency orders have been used to initiate an increasing proportion of certificate actions. As FAA shifted to using administrative actions to handle less serious enforcement cases, its use of certificate actions decreased. Because the number of emergency orders remained relatively constant, emergency orders came to represent a larger proportion of the remaining certificate actions. (See table 1.) According to the Assistant Chief Counsel in the Enforcement Division, the proportion of certificate actions initiated using emergency orders grew largely because, beginning in 1990, FAA used administrative actions more frequently to handle many less serious violations, which decreased the number of certificate actions. Thus, fewer cases are now handled as certificate actions, but they are the more serious cases.

Regional Use of Certificate Actions and Emergency Orders Varied

FAA used emergency orders to initiate 18 percent of its certificate action cases, on average, for fiscal years 1990 through 1997, but three regions initiated from 28 to 38 percent of their certificate actions using emergency orders. (See table 2.) These differences among the regions reflect, among other things, (1) unusually high numbers of emergency orders to suspend or revoke medical certificates in the Eastern, Western-Pacific, and Southwest regions and (2) large numbers of emergency suspensions of mechanic certificates in the Southwest region.

While most regions issued no more than a handful (one to five) of emergency orders to revoke or suspend medical certificates each year in fiscal years 1990 through 1997, the Southwest region averaged nearly a dozen annually, and the Eastern and Western-Pacific regions averaged almost 25. (See table 3.) Officials at these offices and at FAA headquarters were unsure why these regions initiated so many more emergency orders on medical certificates than did the other regions. Differences in enforcement practices in FAA’s regional offices apparently may affect whether emergency orders are used to revoke or suspend a medical certificate. One regional counsel suggested that the staff in her region were simply efficient in processing these cases, while in other regions, the certificates of pilots that do not meet requirements may simply be allowed to expire. (Medical certificates must be renewed every 6 months to 3 years, depending on the type of pilot.) Another regional counsel suggested that some regions may handle medical certificate cases as nonemergency certificate actions.

The Deputy Associate Administrator for Regulation and Certification suggested that the higher numbers of medical certificates suspended or revoked using emergency orders in certain regions may reflect the larger population of pilots in those regions. We agree that regions that have a higher number of pilots might have proportionately higher numbers of emergency orders against pilots’ medical certificates. However, we do not believe this fully explains the differences among FAA’s regions. For example, the Southern region, which FAA officials told us had the largest number of general aviation pilots, had only one-sixth as many emergency revocations or suspensions as the Western-Pacific and Eastern regions.

FAA was better able to clarify why the Southwest region issued nearly 40 percent (174) of the 442 emergency orders to revoke or suspend mechanic certificates in fiscal years 1990 through 1997. Other regions revoked or suspended mechanic certificates between 6 and 75 times during this period. According to the information provided by the Flight Standards Service in FAA headquarters and the legal staff in the Southwest region, many of these cases resulted from problems with a designated examiner with delegated authority from FAA who did not properly administer tests to ensure that mechanics were qualified. His actions necessitated the reexamination of nearly 200 mechanics; those who did not retake or did not pass the examination had their mechanic certificates suspended on an emergency basis.

Pilots Were Most Often Affected by Emergency Orders

The 3,742 emergency orders to revoke or suspend aviation certificates in fiscal years 1990 through 1997 affected both individual pilots and mechanics and aviation entities such as repair stations and airport operators. Of the emergency orders, nearly 60 percent affected pilots by revoking or suspending 1,563 pilot certificates and 625 medical certificates. FAA also issued emergency orders to revoke or suspend 442 mechanics’ certificates and 118 certificates of the operators of air carriers, air taxis, airports, and other aviation entities. (See fig. 2.) These numbers reflect the number of certificates issued—there are many more pilots (622,261 during 1996) than air carriers or air taxis (3,057 during 1996). In addition, pilots must have at least two types of operating certificates—pilot and medical. (See app. III for annual data on FAA’s use of emergency orders by certificate type.)

Pilot (1,563)

Medical (625)

Mechanics (442) 3% Operators (118)1% Repair stations (56)

FAA used emergency orders to initiate certificate action against a similar proportion of private pilots and pilots holding commercial and air transport certificates. (See table 4.) FAA issued emergency orders to commercial pilots nearly 75 percent more often than it did to air transport pilots, although the number of pilots in each group is similar—129,187 commercial pilots and 127,486 air transport pilots in 1996. According to FAA’s Deputy Associate Administrator for Regulation and Certification, it is not surprising that a smaller proportion of air transport pilots, particularly those flying for major airlines, receive emergency orders because they have more initial training and more extensive recurrent training on a regular basis than do commercial pilots.

Most Certificate Actions Initiated Using Emergency Orders Resulted in Revocations or Suspensions

A high percentage of the certificate actions initiated using emergency orders ultimately resulted in revocations or suspensions. Of the 2,311 certificate revocations initiated using emergency orders in fiscal years 1990 through 1997, 86 percent resulted in the individual’s or entity’s losing the certificate. Specifically, 72 percent of the emergency revocations ultimately resulted in the certificate’s being revoked, and an additional 14 percent led to a suspension of the certificate. Less than 4 percent of the actions initiated as emergency revocations ultimately resulted in the case being dropped (no action). Similarly, of the 1,431 certificate suspensions initiated using emergency orders, 62 percent ultimately resulted in the suspension of the certificate, an additional 2 percent resulted in revocation, and 6 percent were ultimately dropped (no action). (See table 5.) While the final resolution of 240 of the cases could not be determined from the available data, the vast majority of the remaining cases were resolved by allowing the certificate to expire or by having operators successfully complete a reexamination of their qualifications. (See app. V.)

According to FAA officials in the Enforcement Division in the Office of the Chief Counsel and in Flight Standards, the high numbers of emergency orders that were upheld for suspension and revocation reflects the fact that the agency takes emergency orders, particularly revocations, very seriously and is reluctant to initiate them without clear and convincing evidence. The Acting Director and other staff in the Flight Standards Service, the Assistant Chief Counsel in FAA’s Enforcement Division, and the nine regional counsels strongly agreed that emergency revocations are used in cases in which individuals or entities lacked the qualifications for the certificate or demonstrated a lack of care, judgment, and responsibility by, for example, falsifying material aviation records or operating aircraft while under the influence of drugs or alcohol. The Acting Director of the Flight Standards Service said that requests to initiate emergency revocations against individuals are scrutinized at the local and division levels within Flight Standards before being referred to legal staff for action. Additionally, regional legal and program office staff provide information in cases against air carriers and repair stations to the Office of the Chief Counsel and the Associate Administrator for Regulation and Certification for review and concurrence. In most cases, the Office of the Deputy Administrator and the Office of the Administrator of FAA are briefed on the recommendation before an emergency order is issued.

Redefinition of Emergency Has Affected FAA’s Use of Emergency Revocations

A change to FAA’s policy broadened the circumstances in which the agency uses emergency orders. Although the policy change applied to both emergency revocations and emergency suspensions, FAA officials focused on the rule’s impact on the agency’s use of revocations. According to several regional counsels we interviewed, prior to 1990, many revocation actions had been taken on a nonemergency basis. In 1990, FAA concluded that an emergency order is appropriate when a revocation is warranted in the interest of public safety because the certificate holder lacks qualifications. Under these conditions, the revocation should be taken immediately unless it is unlikely that the holder will use the certificate. The Assistant Chief Counsel of the Enforcement Division pointed out that, if the revocation is not taken immediately, the certificate holder can continue to operate for months or even years until the appeal process is completed. Furthermore, because of FAA’s responsibility to protect the public safety, such potentially unsafe operating situations cannot be allowed to continue for a long period of time. FAA informally implemented this policy change in 1990 and 1991 before formally incorporating it into FAA Order 2150.3A in February 1992. As a result, FAA increased the use of emergency orders to initiate revocations from 184 in fiscal year 1990 to between 264 and 382 annually thereafter. (See table 6.)

For Half of the Cases, Months Elapsed Between FAA’s Learning of the Violation and Issuing the Emergency Order

The use of emergency orders is intended to expedite the handling of serious certificate actions. For half of the 3,742 emergency actions we analyzed, however, more than 4 months elapsed between the time FAA learned of the violation and the time it issued the emergency order. During this period, FAA inspection staff investigated the violation, reached a preliminary determination that an emergency suspension or revocation was warranted, and then transferred the case to legal staff for the review and preparation of the case and the issuance of the emergency order. In most cases, FAA may not envision the use of an emergency order at the outset of the investigation. Time is needed to investigate the facts and evaluate whether the evidence demonstrates a lack of qualification sufficient to support the issuance of an emergency order. The time that elapses between the violation and the issuance of the emergency order raises questions about safety because the certificate holder, such as a pilot or mechanic, can continue to operate until the emergency order is issued. In addition, some aviation attorneys in the private sector question whether it is appropriate or necessary for FAA to handle some cases as emergencies, especially if the violations occurred years before. These two positions reflect the tension between FAA’s need to act swiftly in cases that present an immediate threat to safety or a demonstrated lack of qualifications and to act prudently to protect the rights of certificate holders by thoroughly investigating alleged violations before revoking or suspending a certificate that may be essential to the livelihood of an individual or the employees of an airline, repair station, or other aviation entity.

For Half of the Enforcement Cases That Involved Emergency Orders, More Than 4 Months Elapsed Between FAA’s Learning of the Violation and Issuing the Emergency Order

For half of the enforcement cases in which FAA used emergency orders in fiscal years 1990 through 1997, more than 4 months elapsed between the time FAA learned of the violation and the time it issued the emergency order. Once FAA learned about the violations, it completed its investigation, prepared the case, and issued the emergency order within 10 days for 4 percent of the cases and within a month for 11 percent of the cases. Most cases, however, required more than 4 months (132 days) from the date of violation until FAA issued the emergency order. (See table 7.) Cases remained in the program offices for investigation for most of this time. (See tables IV.3 and IV.4 in app. IV for times spent on investigation and case preparation.)

While it may be clear as soon as FAA learns of some types of violations that they merit the use of an emergency order, other cases may not be so clear-cut. According to the Deputy Associate Administrator for Regulation and Certification, the use of an emergency order is not necessarily envisioned when FAA first learns of a violation and initiates its investigation. She added that only after investigation do the FAA inspector and managers make a determination in some cases that an emergency order is warranted because of a lack of qualifications on the part of the certificate holder. She said that FAA generally processes emergency cases very quickly, often within a few days.

While FAA’s databases do not have a field for recording when inspection staff initially determine that an emergency order is warranted, the Enforcement Information System (EIS) provides some data on how long it takes to issue an emergency order once inspection staff recommend that action. Specifically, EIS tracks the day FAA’s legal staff receive a case and the type of emergency action recommended by the program office. In about one-third of the cases in which inspection staff recommended emergency suspension or revocation, FAA’s legal staff issued the emergency order within 10 days of receiving the case. Half of the emergency orders were issued in 20 days or less, 94 percent took 6 months or less to issue, while the remaining 6 percent took longer than 6 months to issue. (See table IV.5.)

Without an extensive review of individual cases—which was beyond the scope of our review—it is impossible to determine how much time FAA expended on investigation, particularly in more complex cases. According to the Acting Director of the Flight Standards Service, inspectors conduct investigations while simultaneously carrying out many other responsibilities, such as accident investigations and inspections. Similarly, FAA legal staff have many nonenforcement responsibilities, including work on procurement issues and contract disputes. In addition, some complex cases may require more time for legal review, while other cases may require additional investigation to have sufficient evidence to support the issuance of an emergency order, according to the Assistant Chief Counsel for Enforcement in FAA’s Office of the Chief Counsel. The fact remains, however, that months often elapse between the occurrence of a violation, the time FAA learns of that violation, and the date the agency issues an emergency order of suspension or revocation. During this time, a certificate holder who lacks qualifications or who represents a threat to safety can continue to operate.

FAA Regions Varied Widely in the Number of Days Used to Investigate Violations and Issue Emergency Orders

FAA regions varied widely in the number of days used to investigate the violations that led to the issuance of emergency orders in fiscal years 1990 through 1997. Four of FAA’s regions (Aeronautical Center, Alaskan, Central, and Northwest Mountain) issued emergency orders within about 2 to 3 months of learning about violations in half the cases they handled. In contrast, other regions (Eastern, European, Great Lakes, New England, Southern, Southwest, and Western-Pacific) took anywhere from almost 4 months to over 8 months to issue the emergency order. (See table 8.)

Much of the variation occurred in the time needed for investigation. For example, the Central region turned half its cases over to FAA’s regional legal staff to prepare the emergency order within 40 days of learning of the violation, while half the cases in the Eastern region remained with the program office for over 6 months (197 days). (See table 9.) According to the Acting Director of the Flight Standards Service, such variations in the time needed for investigation may reflect differences in the type and complexity of the cases handled. For example, he said that the Eastern region may need additional time to investigate cases generated by the three international field offices located within its boundaries. He also suggested that the large number of repair stations and manufacturing operations in the Eastern region produce many cases that can be complex to investigate.

Differing Perspectives on the Emergency Nature of FAA’s Enforcement Actions

FAA often spends months on investigating violations, determining whether they merit emergency action, preparing cases, and issuing emergency orders. We interviewed a number of aviation attorneys from the private sector who raised key questions about FAA’s use of emergency orders: Do the cases really need to be handled as emergencies, especially if the violations occurred years before? Does FAA use emergency orders to handle cases that it might otherwise not be able to prosecute? Does FAA use the planned issuance of an emergency order to pressure certificate holders into voluntarily surrendering their operating certificates? We discussed these issues with officials from FAA and NTSB. They provided a variety of opinions that reflected the tension between FAA’s responsibility to act prudently in investigating thoroughly before revoking or suspending a certificate and its responsibility to act swiftly in cases that present an immediate threat to safety or a demonstrated lack of qualifications. The scope of our review of FAA’s use of emergency orders did not permit the kind of case analysis that would determine whether FAA had struck the appropriate balance between these competing responsibilities.

Several of the private sector attorneys questioned whether it is appropriate for FAA to use emergency orders for some violations that are years old or for cases that have required months to investigate and issue. While these attorneys acknowledged the need for an enforcement tool that allows FAA to act swiftly when aviation safety is a concern, one questioned the immediacy of the safety threat in some violations he has handled and another questioned whether FAA uses emergency orders to process violations when the investigation is not completed promptly.

However, FAA officials cited situations involving older violations or long investigation time frames that they believe merited the use of emergency orders. For example, the Manager of the Compliance and Enforcement Branch in FAA’s Civil Aviation Security Division said that FAA may not learn for months or years that an inactive pilot who has returned to flying has had several drunk driving convictions. Although the violations are older, he said that they raise potential safety issues, as well as questions about the pilot’s judgment if the pilot has falsified information about these convictions when applying for a medical certificate or has failed to report these convictions to FAA within 60 days, as required. Similarly, the Acting Director of the Flight Standards Service said that some complex cases involving the use of unapproved parts for aircraft repairs may take months or years to investigate before FAA has sufficient evidence to initiate an emergency order. He said that, once the evidence is clear and convincing, the case becomes an emergency if it potentially affects safety. According to the Assistant Chief Counsel in FAA’s Enforcement Division, FAA’s position is that the revocation must be taken immediately in cases like these. For such situations, he said that FAA prefers to use an emergency action rather than allowing the certificate holder to operate for months or years until the case could be resolved using a nonemergency certificate action.

Two aviation attorneys we interviewed suggested that FAA may use emergency orders in cases in which the agency has exceeded NTSB’s 6-month time frame for processing cases against individual airmen, mechanics, or other certificate holders. For example, one attorney cited a case in which a policeman had notified FAA of alleged alcohol use by a pilot on the night of the incident, but FAA did not issue the emergency order until 18 months later. NTSB’s rule states that FAA must notify the alleged violator of the violation within 6 months of the date of the violation. In an emergency case, the emergency order itself fulfills the notification requirement. Under NTSB’s rule, the case must generally be dismissed after 6 months. However, NTSB has no deadline for initiating cases when an individual’s basic qualifications to hold the operating certificate are in question. If FAA shows in nonemergency cases that it had good cause for its delay in notifying the violator, NTSB can determine that the case is not too old and hear it. According to the Manager of the Compliance and Enforcement Branch in FAA’s Civil Aviation Security Division, NTSB sometimes makes this determination if FAA learns about the violation well after it occurred. He said that NTSB’s judges have heard, and FAA has prevailed in, several recent cases in which FAA did not learn about pilots’ multiple drunk driving convictions until many months after they had occurred.

FAA sometimes allows individuals or aviation entities to voluntarily cease operations rather than face emergency revocation of their certificates.Several FAA regional counsels interviewed said that small carriers or repair stations in their regions have occasionally done so. As one regional counsel explained, when a certificate holder voluntarily ceases operations and negotiates a consent order with the agency, FAA inspectors can focus on monitoring the entity’s efforts to come back into compliance rather than on preparing a legal case against the entity. The Assistant Chief Counsel in FAA’s Enforcement Division characterized this approach as less harsh than revoking a carrier’s certificate—an approach that could have more serious, long-term economic consequences for the carrier because it must reapply to begin operations after its certificate has been revoked.

Two of the aviation attorneys we interviewed raised questions about the appropriateness of an aviation entity voluntary surrendering its operating certificate when confronted with the probable issuance of an emergency order. One attorney suggested that the notification of the probable issuance of an emergency order might be a way for FAA to avoid the due process that would be required for a nonemergency certificate action, for which hearings are held before a certificate is revoked or suspended. One attorney suggested that it might be appropriate for FAA to issue a letter of investigation and give the aviation entity 10 days to prepare a formal response. FAA does not concur that such notification is needed because certificate holders generally receive a notice of investigation when the agency initiates its investigation, according to FAA’s Deputy Associate Administrator for Regulation and Certification. According to the Assistant Chief Counsel in FAA’s Enforcement Division and the Acting Director of the Flight Standards Service, once evidence of a potentially serious safety situation or lack of qualifications has been gathered, FAA would be remiss in allowing the individual or entity to continue to operate.

Conclusions

FAA’s emergency authority exists to provide the agency with a mechanism for acting swiftly in cases in which aviation-related activities jeopardize public safety or an operator’s qualifications are in question. In responding to violations of aviation safety and security regulations, FAA uses emergency orders rarely—in only 3 percent of enforcement cases. The time needed to investigate violations and issue emergency orders has raised some concerns about the urgency and diligence with which FAA pursues these serious certificate actions. These concerns reflect the need for FAA to strike a delicate balance in each case between prompt action to protect safety and judicious action to protect the rights and, frequently, the livelihood of a certificate holder. In addition, our analysis has raised questions about the consistency with which certain types of violations are handled across FAA’s regions. How well FAA achieves balance and consistency can ultimately be judged only through a review of individual cases, a level of review that was beyond the scope of this study.

Nevertheless, FAA’s historical success in sustaining emergency actions through internal and external review can be read as indirect evidence of the appropriateness of the initial decision to use its emergency powers. Most cases begun as emergency actions eventually result in a cessation of operations through the suspension, revocation, or expiration of the certificate. Very few of these cases are later dropped because FAA determines that no violation was committed or has insufficient evidence to prove a violation.

Agency Comments

We provided FAA with a draft of this report for its review and comment. We met with FAA officials, including the Deputy Associate Administrator for Regulation and Certification, the Acting Deputy Director of the Flight Standards Service, and officials from the Office of the Chief Counsel and the Office of Civil Aviation Security Operations. FAA generally concurred with the facts presented and provided clarification on how the investigative process works. Specifically, FAA said that the number of days elapsed between FAA’s learning of a violation and issuing an emergency order should not be equated with the time needed to process an emergency order. FAA explained that when it first investigates a violation, it may not even envision an emergency order, and only makes the decision after an investigation, when it has determined that a lack of qualifications or other immediate threat to safety warrants an emergency order. Even then, FAA explained, the recommended emergency order must be reviewed by legal staff, and additional investigation may be required before FAA issues the emergency order. FAA also provided additional possible explanations for the regional variations we observed in issuing emergency orders, and for the number of emergency orders issued to pilots. For example, we noted FAA’s observation that the higher numbers of medical certificates suspended or revoked using emergency orders in certain regions may reflect the larger population of pilots in those regions. We added information or revised the report, where appropriate, to reflect these suggestions.

Scope and Methodology

To determine the extent to which FAA used emergency actions in fiscal years 1990 through 1997, we analyzed data from FAA’s Enforcement Information System (EIS) database. We also used this database to analyze the types of certificate holders affected by these emergency orders and the time frames for issuing the orders. While we were unable to verify the accuracy of all the data FAA provided, we did undertake several validation procedures to ensure the quality of the data. First, we performed extensive checks of the internal consistency of EIS in the fields used. In several cases, we uncovered blank fields and coding errors. We discussed the resolution of these discrepancies with the FAA staff responsible for the database. Second, we reviewed available information from an internal FAA study on EIS in evaluating the reliability of the data we used.

We discussed our findings, the circumstances under which FAA uses emergency orders, and changes to FAA Order 2150.3A that might have affected the agency’s use of emergency orders for fiscal years 1990 through 1997 with the following FAA personnel: the Assistant Chief Counsel and other staff in FAA’s Enforcement Division, all nine counsels in FAA’s regions, the Acting Director of the Flight Standards Service and members of his staff, the Manager of the Compliance and Enforcement Branch in the Civil Aviation Security Division, and the managers of the Medical Specialties and Aeromedical Certification Divisions in the Office of Aviation Medicine. In addition, we discussed the appeals process with NTSB’s Deputy General Counsel. We also discussed FAA’s use of emergency orders with several aviation attorneys from the private sector. These attorneys, who have defended individuals or aviation entities in cases in which FAA used emergency orders to revoke or suspend their certificates, had experience with FAA’s Office of the Chief Counsel, are members of the NTSB bar, and/or serve on state aviation commissions.

We conducted our review from February 1998 through June 1998 in accordance with generally accepted government auditing standards.

As you requested, unless you publicly announce its contents earlier, we plan no further distribution of this report until 30 days from the date of this letter. We will then send copies to the appropriate congressional committees; the Secretary of Transportation, the Administrator, FAA; the Director, Office of Management and Budget; and other interested parties. We will also make copies available to others upon request.

If you have any questions about this report or need additional information, please call me at (202) 512-3650. Major contributors to this report are listed in appendix VI.

Types of Operating Certificates Issued by FAA

FAA’s Process for Appealing Emergency and Nonemergency Certificate Actions

Certificate holders have several options for appealing nonemergency and emergency certificate actions. Certificate actions are adjudicated by a National Transportation Safety Board (NTSB) administrative law judge. The certificate holder may then appeal the case before the full Board or seek review in a federal court of appeals. In the case of a nonemergency action, the certificate holder may continue to operate until the appeal process has been completed. In contrast, an emergency order takes effect on issuance. The certificate holder does not have the opportunity to contest the order before it is issued, and, unlike nonemergency certificate actions, the emergency order remains in effect while the certificate holder appeals.

When faced with an emergency order, a certificate holder has several appeal options. First, the certificate holder can appeal the emergency nature of the order. The certificate holder may seek a direct review of the Federal Aviation Administration’s (FAA) emergency determination by a federal court of appeals. In such cases, the certificate holder petitions the court for a review of the emergency order or seeks a stay of the order.According to the Assistant Chief Counsel in FAA’s Enforcement Division, such cases are generally decided by the federal court of appeals within 5 to 7 working days. The certificate holder may also appeal the emergency order to NTSB. The certificate holder must appeal within 10 days after receiving the emergency order from FAA. NTSB is required to set a hearing date no later than 25 days after the certificate holder received the emergency order. The presiding administrative law judge’s initial decision is made orally at the end of the hearing and is final unless appealed. Any appeal by the certificate holder or FAA of the initial decision must be filed with NTSB within 2 days of the hearing, and the entire matter must be resolved within 60 days of the date on which the FAA Administrator advised NTSB of the emergency nature of the order. Further appeals are available to both FAA and the certificate holder in the federal courts of appeals. Figure II.1 shows the steps in initiating and appealing an emergency order.

Nonemergency: FAA issues a notice of proposed certificate action (revocation or suspension)

Is appeal denied or sustained?

Is appeal denied or sustained?

Is appeal denied or sustained?

FAA’s Use of Emergency Orders to Initiate Actions by Certificate Type, Fiscal Years 1990-97

Operators include, for example, airport operators, agricultural operators, scheduled and on-demand air carriers, and scheduled cargo carriers.

FAA’s data did not include a certificate type for these actions.

Elapsed Time for Investigating and Issuing Emergency Orders by Certificate Type, Fiscal Years 1990-97

In fiscal years 1990 through 1997, most violations that led to the issuance of emergency orders took many months to investigate, issue emergency orders, and resolve. For more than half the cases, over 13 months passed between the date of the violation and the final resolution of the case. Once FAA learned about the violations, about 2 percent were resolved within a month and 63 percent within a year, while the remaining 37 percent of the cases took more than a year to resolve. (See table IV.1.) After the issuance of the emergency order, cases were not resolved until any appeals were completed and certificates were returned to FAA. At each step, the process was potentially subject to delays, some of which were not under FAA’s control.

FAA Learned of Many Violations a Month or More After They Occurred

In 70 percent of the cases in which FAA issued emergency orders, the agency did not learn of the violation on the date that it occurred. FAA learned about approximately 30 percent of the violations on the date that they occurred and about nearly half of the violations within a month of their occurrence. But discovering violations often took months or years: While FAA learned of 87 percent of the violations within a year of their occurrence, it did not learn of the remaining 13 percent of the violations for from just over a year to nearly 17 years from the date of occurrence. (See table IV.2.)

FAA learned more quickly about violations related to some types of certificates than about those related to other types. While a pilot’s deviation from an assigned flight altitude may be detected promptly by an air traffic controller, FAA might not learn about a falsification of maintenance records until years after the repair was made, according to the Acting Director of Flight Standards. FAA became aware within 5 days of half of the violations that resulted in the issuance of emergency orders to revoke or suspend pilot licenses. These time frames were significantly longer for cases involving medical certificates (74 days) or mechanic certificates (131 days).

Investigation of Violations and Issuance of Emergency Orders Generally Took Months

FAA’s investigation of violations that led to emergency orders and the issuance of those orders generally took months to complete. FAA completed its investigation and case preparation and issued the emergency order to revoke or suspend the operating certificate within a month for 11 percent of the cases, but about one-third of the cases took longer than 6 months. While FAA does not always learn of violations promptly and has little control over the time needed for resolution once it issues an emergency order, the agency has more control over the time its program office staff needs to investigate a possible violation and its legal staff needs to prepare and issue the emergency order. As discussed below, however, many factors may influence the amount of time needed for investigation or review and preparation of the case by legal staff.

Program Office Staff Completed Half the Investigations in Under 3 Months

For half the cases closed in fiscal years 1990 through 1997, less than 3 months elapsed between the time that FAA learned of the violation and the time that the program office completed its investigation and gave the case to FAA’s legal staff to prepare the emergency order. While about 19 percent of the investigations were completed in 30 days or less, about three-quarters were completed within 6 months, while the remaining one-quarter required 6 months or more. (See table IV.3.)

FAA Order 2150.3A describes the process for program offices to follow in investigations once a potential violation has been identified. Inspection staff gather evidence; interview witnesses, if appropriate; prepare the draft enforcement case file; and have the proposed emergency revocation or suspension reviewed by local and regional program office managers. Typically, we found that cases were with the program office for investigation four times as long as they were with the legal office preparing the emergency order. Not all of this time was necessarily spent on the investigation, however. According to the Acting Director of the Flight Standards Service, safety inspectors usually have many other ongoing responsibilities, including inspections, accident investigations, and recurrent training, as well as other enforcement cases.

Some types of violations may take longer to investigate. For example, it may take time to obtain and review records to determine whether an aircraft was actually available and used to perform required flight training as claimed in an airline’s training records, according to the Acting Director of the Flight Standards Service. In addition, he said that violations involving the falsification of records may require a court order and search warrant to obtain documents. Finally, certain types of cases, such as those in which unapproved parts were alleged to have been used, may involve a number of different customers and suppliers, as well as extensive coordination with the Federal Bureau of Investigation or other law enforcement agencies. Similarly, if FAA learns from a comparison of medical certificates with data in the National Driver Register that a pilot may have drunk driving convictions, weeks or even months may be needed to obtain the corroborating evidence from state or local court records, according to the Manager of the Compliance and Enforcement Branch in FAA’s Civil Aviation Security Division. Our analysis showed that violations related to certain types of certificates generally required longer to investigate. While the program office took about 60 days to investigate half of the cases to revoke or suspend pilot certificates, investigation time frames were longer for half the mechanic certificates (3 months) and medical certificates (nearly 8 months). (See table IV.4.)

Half of the cases processed in fiscal years 1990 through 1997 spent 20 days or less with FAA’s legal staff for case preparation and the issuance of an emergency order. About one-third of the cases took 10 days or less from the time the legal staff received the case until it issued the emergency order, and emergency orders were issued within 6 months for 94 percent of the cases. The remaining 6 percent of the cases took longer than 6 months from the date the legal staff received the case until it issued the emergency order. (See table IV.5.) According to the Assistant Chief Counsel for Enforcement in FAA’s Office of the Chief Counsel, even after cases are forwarded to the legal staff, they sometimes require additional investigation to have sufficient evidence to support the issuance of an emergency order. In such cases, the legal staff must request additional documentation from the program office’s investigative staff. Typically, FAA’s legal staff had a case for about one-fourth as much time as the program office needed for the investigation.

The time needed to issue emergency orders varied less by certificate type than did the time needed for investigation. For all types of certificates, FAA legal staff issued the emergency order for over half the cases within 30 days of receiving it.

Case Resolution Required Additional Time

Once FAA issued an emergency order, it needed additional time to resolve a case. In fiscal years 1990 through 1997, half the cases were resolved within 73 days of the issuance of the emergency order. While nearly one-third of the cases were resolved within 30 days, 72 percent of the cases were resolved within 6 months, while the remaining 28 percent required longer than 6 months to resolve. (See table IV.6.) Time frames for case resolution were somewhat longer for half the cases involving mechanic certificates (over 96 days) and medical certificates (over 70 days).

According to the Assistant Chief Counsel of FAA’s Enforcement Division, several factors may delay case resolution. First, it may be some days or weeks before the individual or aviation entity returns the operating certificate to FAA and the case can be closed out. In addition, he said that cases may be appealed before NTSB and the U.S. Court of Appeals. NTSB administrative law judges hear appeals, and their decisions may be appealed again by the violator or FAA before the full Board. NTSB’s rules call for a decision within 60 days. The Assistant Chief Counsel said, however, that some violators waive their right to this expedited review of emergency cases and have their cases reviewed together with other nonemergency certificate actions, which may take 1 to 2 years before a final ruling is issued. NTSB heard appeals on 1,277 emergency order cases in fiscal years 1990 through 1997. Violators may also appeal to the U.S. Court of Appeals, which often requires a year or more before a decision, according to the Assistant Chief Counsel of FAA’s Enforcement Division. He noted that the decision to appeal and the time needed for case resolution following the issuance of an emergency order are not within FAA’s control.

Recommended Type of Emergency Action Compared With Other Final Actions Taken, Fiscal Years 1990-97

Civil penalty (fine)

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